Established in 2001 as a guardian of the Constitution and Indonesian democracy, the Constitutional Court had served as a reliable judicial institution to keep the powers of the executive and legislature in check. However, a series of political maneuvers by the House of Representatives in recent years has undercut the independence of the court and dashed hopes for an objective review of the new Criminal Code. 

A coalition of some 40 civil groups staged two days of protests to reject the Tuesday’s passage of the code, which contains illiberal provisions they say are reminiscent of New Order authoritarianism. 

Law and Human Rights Minister Yasonna Laoly and House legal affairs commission chairman Bambang Wuryanto have suggested that those who object the new law should file a judicial review with the Constitutional Court.

"Please simply file an appeal for judicial review with the court. There is no need to stage protests," said Bambang, who, like Yasonna, is a member of the Indonesian Democratic Party of Struggle (PDI-P). 

Activists, however, doubt that turning to the court will make any difference. 

"We have yet to consider filing a judicial review. [...] We no longer consider the Constitutional Court a strategic institution to review problematic laws," Indonesian Legal Aid Foundation (YLBHI) chairman Muhamad Isnur told The Jakarta Post.

"When [Bambang] told us to bring [our objections] to the Constitutional Court, we all knew that the court had been weakened."

Compromised independence 

Fears that the Constitutional Court has lost its independence have grown following the House’s controversial decision to remove a sitting justice for alleged “poor performance”, defying constitutional law experts and former justices who said the move would be unconstitutional and an affront to the court’s independence.

The justice in question, Aswanto, was removed last month after President Joko “Jokowi” Widodo ratified the House’s decision. His dismissal drew criticism from civil society groups who accused lawmakers of punishing the justice for ruling against them on key legislative products.

Aswanto was one of the three House-appointed justices on the bench. The six others were appointed by the President or the Supreme Court.

Critics maintain that the House may only appoint justices, not remove them. Amid the controversy, the House has proposed a revision to the Constitutional Court Law to allow it, along with the President and the Supreme Court, to review justices every five years – or at any time they deem necessary – until the judicial retirement age of 70.

In addition to the House’s attempt to influence the court, democracy activists are also concerned about potential conflicts of interests in the institution. 

"There is an extraordinary conflict of interest. The Constitutional Court chief is the president's brother-in-law," said Bivitri Susanti of the Jentera School of Law, referring to chief justice Anwar Usman who married Jokowi’s sister, Idayati, in May.

Feri Amsari, a constitutional law lecturer at Andalas University, said a judicial review was still worth pursuing. 

“Turning to the Constitutional Court is not always about winning a judicial review petition. It is about explaining to public why we disagree and dislike the new legislative product,” he said.

Civil disobedience

Beyond holding street protests, some groups have called on the public to stage a wider civil disobedience movement to oppose the law.

“The penal code not only restricts people’s activities. It criminalizes them,” said Julius Ibrani of the Indonesian Legal Aid and Human Rights Association. “It is against human rights. It is worse than the colonial criminal code.” 

He said citizens should reject the legislation and show the House and government that its passage was not in the public interest. 

“The people can show their objection by exercising all their basic rights that are banned by the Criminal Code, at the same time and throughout Indonesia.” (ahw) 

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