As soon as a judge is removed because his decision was not liked, it is in fact the collapse of the pillars of the rule of law. Because this means that authorities have control over the judiciary.
By
Bivitri Susanti
·4 minutes read
SALOMO TOBING
Bivitri Susanti
Fiat justitia ruat caelum: uphold justice even though the sky may fall. This adage is used as the main guideline for law enforcers in their efforts to fight for justice. However, what happens when the sky of law collapses because the pillars have fallen?
The pillars of the law are unstable lately. Look at the incident in which constitutional judge Aswanto was replaced by the House of Representatives (DPR) with Guntur Hamzah, who was previously secretary-general of the Constitutional Court. The replacement was preceded by controversy because the process violated the law. Various protests were filed, including for the President not to sign the presidential decree that legalized the DPR's arrogant actions. However, the President was unmoved. Thus, as stated by the members of the DPR, a judge has been dismissed because his decision was deemed to be against the will of the legislature.
As soon as a judge is removed because his decision was not liked, it is in fact the collapse of the pillars of the rule of law. Because this means that authorities have control over the judiciary by threatening them to be replaced if the decision does not please authorities. Therefore, anywhere in the world, this model of dismissal in the middle of a term of office is strictly prohibited if a country wants to have independent judicial power.
The bad news is that the DPR has even drafted a revision to the Constitutional Court Law, which essentially contains the legalization of the treatment of judges like Aswanto. The revision of this law, if the President approves it, will immediately be discussed. It is not impossible that the act of removing a position appointed by a politician if their action is not in accordance with expectations will become a new pattern in constitutional law.
Power increasingly reveals its arbitrary and unethical character. However, all this is difficult to see directly because it is strengthened by legal products and legal political processes. This is the hallmark of autocratic legalism, namely the perspective that puts forward legalism, but with an autocratic character. The phenomenon of autocratic legalism is usually marked by the weakening of all institutions capable of supervising power (Corrales, 2015; Scheppele, 2018). Three democratic institutions whose role is to monitor power are weakened: the Corruption Eradication Commission (KPK) with the revision of the KPK Law, the opposition in the DPR using the rules of the game related to coalitions and civil society through legal means of physical and cyber violence. There was only one thing left, which was finally completed yesterday: the judiciary.
In the phenomenon of autocratic legalism, many things go according to law so they appear to be true, but actually violate the principles of the rule of law and democracy. Various laws are made for the purpose of power, for example, the Job Creation Law. Its impact is felt now when many dismissals have been carried out due to the economic crisis, while the tools to protect workers' rights have been cut.
There is also the Electronic Information and Transaction Law which sentenced 332 people for expressing their opinion between January 2019 and May 2022 (Amnesty International Indonesia, 2022). When implemented, laws are also implemented in a rigid (positivistic) way so that they only benefit those who have access to law enforcement.
Not only are the legislature and the executive interfering with the independence of the judiciary, the judges also dishonored their own profession. Two Supreme Court justices have become suspects in an alleged corruption case. We also remember that two constitutional judges were convicted of corruption and the behavior of lawyers, prosecutors and police was often criticized.
There is a lot of homework on overcoming the problem of law enforcement. This is slowly undermining the pillars of the rule of law, but can be resolved with institutional action. Behavioral problems, for example, can be overcome by law enforcement and ethics, while prevention can be done by improving the monitoring system, recruitment and legal education.
The serious problem lies in the intervention of power. The independence of the judiciary is like the main pillar of a constitutional state. Imagine the many legislations or political steps that may be unconstitutional, but the Constitutional Court no longer has the courage to make objective decisions. In pragmatic calculations, do not forget, the Constitutional Court will hear the dispute over the results of the 2024 General Election.
Do not let the Fiat justitia ruat caelum motto become a laughing stock. If it is not resisted, perhaps the sky will indeed fall and justice will not be upheld.
BIVITRI SUSANTI, Lecturer at Jentera Indonesia School of Law
