Constitutional Court Law Revision: In Whose Interest?
The House of Representatives (DPR) and the government recently passed the second revision of the Constitutional Court Law. The law revision was deliberated quickly, and took only seven days to complete.
Minister of Law and Human Rights Yasonna Laoly signed the draft of Constitutional Court Bill in the DPR Commission III meeting room at the Parliament Building Complex, Senayan, Jakarta, Monday (31/8/2020).
The House of Representatives (DPR) and the government recently passed the second revision of the Constitutional Court Law. The law revision was deliberated quickly, and took only seven days to complete. It was also conducted behind closed doors. The public’s suspicions, that the revision was laden with vested interests, have only grown (Kompas, 27/8).
Pangeran Khairul Saleh, who headed the House working committee for the deliberation of the proposed Constitution Court law revision, said that the deliberation was held in a closed-door session so as not to cause any misunderstandings (Kompas, 28/8). This excuse undermines the people’s common sense. Misunderstandings always arise from exclusion, not from inclusion.
Also read: Revision to the Constitutional Court Law
The bill contained five main revisions. The first concerned the minimum age and terms of Constitutional Court justices as well as transitional provisions for current justices on the bench. The second regarded the term of office of the court’s chairman and vice chairman, and the third regarded the retirement age of panitra (court clerks). The fourth was on the code of ethics and the Ethics Council. The fifth regarded the decisions of the Constitutional Court. The revisions contained only three substantial issues, namely the justices’ minimum age, changes to the judicial term and the terms of the court’s chairman and vice chairman. The rest were editorial changes.
The deliberation and the substance of the revisions could potentially be tested at the Constitutional Court. The deliberation process violated the principle of transparency in accordance with Article 5, letter G of the Law on the Establishment of Legislative Regulations. The revisions’ substance departs from the need to maintain judicial independence and integrity, and does not support the Constitutional Court in carrying out its functions to review, hear and decide on the constitutionality of cases.
Age and tenure
At least three ethical violations and two corruption cases have harmed the credibility of the Constitutional Court. The idea to revise the law on the court then emerged to prevent repeating these mistakes. The first aim was to regulate a more rigid selection process for Constitutional Court justices so it was truly transparent and objective. This was necessary to result in justices that possessed good statesmanship. The second aim was to raise the minimum age requirement for the court’s justices. This idea was based on the conventional assumption that age is directly proportional to the maturity of an individual’s sense of integrity. Third, the term of a Constitutional Court justice should be limited to a single term, so their independence was unaffected by an interest in being elected for a second term.
Instead of establishing an objective and transparent selection mechanism, the DPR and the government focused on the second and third points, namely increasing the minimum age requirement to 55 years and replacing the judicial term with a retirement age. Constitutional Court justices can serve until they reach 70 years of age. If a justice is appointed at 55, they can serve up to 15 years.
Also read: Politicians Must Become Statesmen
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Saldi Isra, one of the judges of the Constitutional Court.
The Constitutional Court’s history proves that age is not always directly related to the maturity of a justice’s integrity. Four people have been appointed as justices of the court when they were below 50 years of age: Jimly Asshiddiqie, Hamdan Zoelva, I Dewa Gde Palguna, and Saldi Isra. These Constitutional Court justices possessed integrity and were undoubtedly independent. Even Jimly and Hamdan were once entrusted with chairing the court during difficult times. Jimly was named the court’s chairman in his first term, and Hamdan was the chair when public trust in the court was at its lowest point. Both justices filled their roles responsibly.
On the other hand, the two Constitutional Court justices who violated the code of ethics and were involved in corruption cases were appointed when they were over 55. It is clear that raising the minimum age requirement for Constitutional Court justices is irrelevant to maintaining judicial independence and integrity.
Also read: The End of Procedural Democracy
Limiting the judicial term to a single term can indeed eliminate the potential for interfering with the justices’ independence in ruling on cases, because they will not be concerned about being reelected for a second term. One term is enough, but for a longer time in office. However, this decision must take into account the potential for abuse of power and unprofessional actions, because the justices hold safe and undisrupted positions. The judicial term, which can now last up to 15 years, should therefore not be too long. Ten years is long enough so as to reduce the potential for abuse of power and to ensure professional performance. Another way to minimize the potential for abuse of power is to establish an appropriate and integral institutional mechanism for oversight. It is not enough to just expand the number of members on the Ethics Council.
Critical substance
Revising the Constitutional Court Law was indeed necessary. It contains critical substances that need changing, namely those provisions regarding the authority, procedural law, and implementing the decisions of the Constitutional Court. Two legal developments also need to be accommodated in the changes to the provisions on authority in the Constitutional Court Law.
The first is the authority to determine the results of the regional head elections. The Regional Elections Law still stipulates that the Constitutional Court has the authority to settle election disputes until a special electoral court is formed under the Supreme Court. However, it has been more than five years since the plan for the special was announced and it still has not been formed, while the court’s probable establishment is diminishing. In order to possess strong legitimacy, it is of course necessary to regulate this authority in the Constitutional Court Law Revision.
Level I decision making meeting of the Constitutional Court Bill in the DPR Commission III meeting room at the Parliament Building Complex, Senayan, Jakarta, Monday (31/8/2020).
Second, the societal developments indicate that the Constitutional Court must possess the authority to decide on constitutional issues as part of its authority to review the constitutionality of laws as regards the 1945 Constitution. Many cases have occurred in which citizens have been punished under the stipulations of laws that the Constitutional Court later declared were unconstitutional.
To prevent “delayed justice”, which essentially means injustice, individuals and justices should be able to raise issues of legal constitutionality with the Constitutional Court.
The second important substance that needs changing is procedural law. The court currently has procedural law, but it is regulated internally as part of the Constitutional Court Regulation (PMK). As a matter of fact, procedural law regulates binding general procedures and is intended to protect the rights of citizens and deliver justice, so it should be made democratic, namely in the form of a law.
Also read: The Constitutional Court and the Omnibus Law
The procedural law in the PMK is also lacking. One such shortcoming is regulation on formally reviewing laws in light of the 1945 Constitution. Currently, no parameters exist regarding the judicial review of the legislative process. The absence of such parameters means that no formal test is available. In fact, the public deems the many legislative processes to be flawed in [Indonesian] law and democracy. One of these is the closed-door discussion on the revisions to the Constitutional Court Law. If the legislators intend the authority of the Constitutional Court to be a kind of checks and balances, then of course they need not be concerned if the law they just passed is revoked.
The third substance that must be regulated in the Constitutional Court Law Revision is the implementation of the Constitutional Court’s decisions. The 1945 Constitution clearly states that the decision of the Constitutional Court is final and binding. This means that when the Constitutional Court declares that a legal norm in a law contradicts the 1945 Constitution, the legislation is no longer legal. In fact, it is not uncommon that a legal norm in a law that was annulled by the Constitutional Court reappears in a new law. Some judges of the lower courts still refer to legal norms as a basis for their rulings, when those norms have been revoked by the Constitutional Court.
Chairman of Commission III of the House of Representatives, Pangeran Khairul Saleh handed over the draft of the Constitutional Court Bill to the Minister for Administrative Reform and Bureaucratic Reform Tjahjo Kumolo (left) in the DPR Commission III meeting room in the Parliament Building Complex, Senayan, Jakarta, Monday (31 / 8/2020).
A clear example of noncompliance with a Constitutional Court decision is the inclusion of Law No. 4/2014 on regulation in lieu of law Perppu No. 1/2013 in the preamble to the Constitutional Court Law Revision, even though the court revoked the law because it did not meet the requirements for legal urgency and need. This means that Law No. 4/2014 should no longer exist. Regulations on implementing the Constitutional Court decisions are vital to realizing a unified judicial hierarchy. The decisions of the Constitutional Court interpret the constitutional norms. If the court\'s decision is not implemented, it is also a violation of the Constitution.
Compiling and discussing important legal substances that should be part of the Constitutional Court Law Revision of course require more energy and time. But should have not been an issue because the DPR and the government had at least until 2024 to deliberate the law revision. However, it has turned out that the DPR and the government preferred the quick and easy way, even at the expense of public involvement. We don’t know for whose interests the revisions were made.
Testing the revisions
No one can be a judge in their own cause
The Constitutional Court can be petitioned to review the revisions to the Constitutional Court Law, because on the procedural side, the deliberative process violated the principle of openness, while on the substantial side, it increases the potential for abuse of power. Of course, the question arises as to whether the justices of the Constitutional Court can issue a decision on a law that regulates the court itself under the principle of nemo judex idoneus in propria causa (no one can be a judge in their own cause).
The Constitutional Court has accepted and heard 42 judicial reviews of the Constitutional Court Law. The court issued decisions in nine of these cases, including one on Constitutional Court justices. The decision was issued under the argument that the Constitutional Court was bound by the principle that it should not reject the petition, and that the petitioner had no recourse but the court in requesting a judicial review of the law.
Muchamad Ali Safa’at
We believe that the sitting Constitutional Court justices remain independent and possess integrity, and that they must demonstrate this through their actions and decisions. The Constitutional Court justices will certainly be objective in their decisions and take into account the standing of the Constitutional Court in the longer term. The court’s justices should not be so easily held hostage by an interest in the legislators’ extension to their judicial terms.
Muchamad Ali Safa\'at, The Dean of the Brawijaya University Law School.
