House of Representatives’ Decision can Harm Judicial Independence
The sudden decision to replace Constitutional Court Justice Aswanto with Constitutional Court secretary-general Guntur Hamzah has been criticized for being arbitrary and harming the independence of the judiciary.
SUSANA RITA KUMALASANTI, NIKOLAUS HARBOWO, DIAN DEWI PURNAMASARI
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JAKARTA, KOMPAS - The House of Representatives has decided not to extend the term of constitutional judge Aswanto, who is also the Constitutional Court’s chief justice. The sudden decision to replace Aswanto has been criticized for being arbitrary and harming the independence of the judiciary.
The decision to replace Aswanto was conveyed at the 7th House of Representatives plenary meeting of 2022-2023 on Thursday (29/9/2022). “We will not extend the term of the constitutional judge who was proposed by the House, namely Aswanto, and [instead] appoint Guntur Hamzah as a constitutional judge from the House,” said House Deputy Speaker Sufmi Dasco Ahmad.
House Commission III, said Sufmi Dasco, held an internal meeting on Thursday morning to probe Constitutional Court secretary-general Guntur Hamzah’s willingness to become a constitutional judge from the House. “House Commission III’s internal meeting resulted in accepting Guntur’s willingness,” said Sufmi Dasco.
Former Constitutional Court chief justice Jimly Asshiddiqie and former constitutional judge I Dewa Gede Palguna, in separate instances, criticized the House’s move. “Essentially, the House dismissed Constitutional Court judges and had them replaced without undergoing the appropriate legal procedure, considering that Aswanto was supposed to serve his term until 2029. The House has no authority to dismiss him. Secondly, the House is not authorized to elect new judges when there are not any vacancies. This was an arbitrary decision. If left unchecked, this can ruin the judiciary. The independence of the judiciary will be ruined,” said Jimly.
At the end of July 2022, the Constitutional Court chief justice sent a letter notifying the Court’s decision regarding the judicial review of Law No. 7/2020 concerning the third amendment to the Constitutional Court Law, particularly to Article 87 Letter B on the tenure of constitutional judges. The letter stated that the Court had decided that transitional provisions should not be used to grant veiled privileges to certain individuals serving as constitutional judges. Thus, the Constitutional Court is of the opinion that legal action is needed in the form of confirmation of the institution proposing the constitutional judge in office.
This legal action is in the form of a constitutional judge, through the Constitutional Court, being notified of continuing their term, which now does not recognize periodization. In the letter, it was also stated that the terms of constitutional judges from the House, including Arief Hidayat, Aswanto and Wahiduddin Adams, will end in 2026, 2029 and 2024 respectively.
Jimly explained that the procedure to replace constitutional judges, according to the Constitutional Court Law, must start with a three-month notice period from the Court regarding the end of the term. Such notices are made so that the proposing institution can select a new judge within three months. “This notice was not made,” said Jimly.
He urged the President not to follow up on the results of the House’s plenary meeting by issuing a presidential decree appointing Guntur Hamzah as a constitutional judge. “The mechanism is incorrect. If this decision is justified, then the House will have the authority to fire a constitutional judge at any given time. Later on, the Supreme Court would also start firing constitutional judges. The President too,” he said.
Former Constitutional Judge I Dewa Gede Palguna assessed that the House’s decision to propose Guntur Hamzah as a judge of the Constitutional Court seemed to justify the contents of the fourth revised draft of the Constitutional Court Law, which was also approved by the House during Thursday’s plenary meeting. In the draft, the House is given the right to evaluate the judges of the Constitutional Court five years after assuming office, or at any time, if there are public complaints regarding institutions that propose constitutional judges, namely the Supreme Court, the House and the President.
Evaluating the judges of the Constitutional Court, according to Palguna, can grow into a serious issue as it concerns judicial independence. Meanwhile, judicial independence is what gives the judiciary power.
Director of the Center for Constitutional Studies at Andalas University in Padang, West Sumatra, Feri Amsari, is of the opinion that there were political interests behind the House’s decision. The President and House want to reformat the composition of constitutional judges considering that the political year will soon be over. They sought to control the power of the judiciary.
“The current situation is much worse, with the House having the power to meddle with judges of the Constitutional Court through an evaluation. How could the independent judiciary be evaluated with such confirmations?” he asked.
Constitutional Court spokesman Enny Nurbaningsih, who is also a constitutional judge, claimed that she had not received any information regarding Aswanto’s replacement with Guntur Hamzah. She said she had only found out through the media.