Aswanto was replaced after voting against the laws passed by the House in a number of judicial review hearings, including the one filed against the Job Creation Law. The legislature reasoned that Aswanto was a judge representing the House, so he should have defended the interests of the legislature (The Jakarta Post, “Legislative overreach”, Oct. 10).

Based on Budiman Tanuredjo's analysis, this legal event is called political recalling (Kompas, Nov. 26) and at its core is a political move by the legislature without constitutional grounds to tame the judiciary.

This constitutional problem has worsened as President Joko “Jokowi” Widodo, as the representation of executive power, failed to rectify the House’s move through a checks and balances mechanism. Instead, the President endorsed Aswanto’s dismissal and the appointment of Guntur Hamzah as his replacement as part of administrative requirements (the Post, “Jokowi gives nod to controversial removal of constitutional justice”, Nov. 24). 

From a political standpoint, the President's decision to ratify the House’s decision is a form of accommodative politics. If we observe it more deeply, we will establish three crucial elements.

First, President Jokowi was reluctant to clash with the House. In this way, accommodating the political interests of the legislature is a political settlement. Moreover, he will bear no responsibility in the future for his accommodative decision as he will leave office in 2024.

Second, the President has expressed his tacit assent to the House's political maneuvers. Of course, this is related to the fact that the President's policies require the House’s consent and that the continuation of his legislative program after he leaves office will depend on the legislature.

Finally, the House’s political maneuvers and the President's approval provide impetus for the next revision of the Constitutional Court Law, which is likely to formulate a provision that Constitutional Court justices are representatives of the state institutions that nominate them, namely the House, the President and the Supreme Court, to make sure they defend the interests of their sponsors.

In the case of Aswanto, the House and the President have fundamentally ignored this country's basic structure, namely, the constitutional state, as stipulated in Article 1 paragraph 3 of the Fourth Amendment of the 1945 Constitution. Therefore, three central messages can serve as a warning for the legislative and the executive powers.

First, from the inception of the Republic, particularly during the debate over the Constitution, founding fathers Mohamamd Hatta and Soepomo anticipated the potential of power-oriented behavior of the state. Therefore, the two proposed a constitutional state structure, or constitutionalism, to limit state power. In another sense, the founding fathers underlined the rule of law, rather than rule by law, as the best option for guarding Indonesian democracy.

While the 1945 Constitution has provided a legal basis for the limitation of the powers of state officials, the House's overriding of the Constitutional Court Law in the Aswanto case has undermined the structure of the rule of law. Simply put, the House has awakened the spirit of absolutism in a constitutional democracy.

Second, conceptually, both the rule of law and constitutionalism aim to limit state power to protect citizens' fundamental rights. In a sense, the principle of democracy is the extent to which the power that contains the will of the majority and the interests of a few political elite is limited.

Furthermore, in Constitutional Theory (2008), Carl Schmitt underlines the essence of the rule of law (rechtsstaat). First, the law prioritizes ratios, neither the will of one group nor the majority. Second, the rule of law is rooted in the tradition of scholasticism, influenced by Aristotle's ideas that democracy must be delimited by laws that have legitimacy. It aims to prevent the emergence of political demagogues or called nomocracy. Finally, the legislature passes laws that apply without exception. This reflects a balance between power and wisdom to create an equitable legal order.

Even so, in dismissing Justice Aswanto, the House turned a blind eye to the law it had made, thereby showing that its legislative power was not bound by law and sat above applicable law or simply paralyzed constitutionalism. In the end, the decay of the rule of law is awaiting.

Finally, the Constitutional Court’s recent decision regarding the judicial review filed against Article 23 of the Constitutional Court Law, which relates to the dismissal of Constitutional Court justices, contains three key messages that serve as a red flag for the House and the President.

First, dismissing ta Constitutional Court justice before the end of their term of office and outside the provisions of Article 23 of the Constitutional Court Law is unconstitutional. Second, these unconstitutional steps can destroy and disrupt the independence of Constitutional Court justices. Third, the unlawful actions of the House have damaged the core of a constitutional state, namely, the independence of the judiciary.

Therefore, two lessons can be drawn from the House’s maneuvers.

First, as a result of the House’s unconstitutional behavior, the judiciary’s power is highly vulnerable to interference from the powers that be for the sake of political ambitions. This susceptibility will hold the judiciary hostage and undermine its independence. As a result, degradation of the rule of law is unavoidable.

Finally, the judicial review mechanism is supposed to be a key instrument to ensure the viability of the rule of law. The reason is that judicial review in constitutionalism is directly embedded (Cliteur, Ellian, 2019) as a fundamental mechanism for judicial institutions to check the harmony between the law and the Constitution, as well as to protect the fundamental rights of citizens.

The dismissal of Aswanto as Constitutional Court justice is a manifestation of the legislature’s political intervention in the judiciary. Through its plot, the House has awakened a sleeping giant, namely absolutism.

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The writer is a researcher in the Politics and Social Change Department of the Centre for Strategic and International Studies (CSIS) Indonesia.