Press Release from the SETARA Institute and the Constitutional Democracy Forum (CDF)
February 13, 2014
Decision No. 1-2/PUU-XII/2014
THE CONSTITUTIONAL COURT UNDERMINES THE QUALITY OF CONSTITUTIONAL DEMOCRACY
Decision of the Constitutional Court of the Republic of Indonesia No. 1-2/PUU-XII, which reviewed Law No. 4 of 2014 on Government Regulation in Lieu of Law (Perppu) No. 1 of 2013 concerning the Second Amendment to Law No. 24 of 2003 on the Constitutional Court, thereby enacting it into law, marks a new phase in the systematic erosion of the quality of Indonesia’s constitutional democracy. The Constitutional Court has presented itself as an institution that is resistant to criticism, opposed to oversight, and uncooperative in strengthening the quality of Indonesia’s constitutional democracy. The Constitutional Court’s decision to invalidate a law intended to strengthen the institution of the Constitutional Court has dashed the public’s hopes that the Court, which had previously fallen from grace, could regain its standing. With this ruling, it will be increasingly difficult for the Constitutional Court to restore its credibility. This includes the very real possibility of defiance against the Court’s rulings during the 2014 election process.
Considering the arguments put forward by the Constitutional Court, this ruling is not based on justice and constitutional truth, but rather on the emotions of the justices, who—following the arrest of M. Akil Mochtar—became the target of public outrage, including ostracism by the President of the Republic of Indonesia and other state institutions, which excluded the Constitutional Court from addressing the crisis within the Court last October. The argument that the Constitutional Court is independent, not subject to pressure, and even angered by pressure from other parties, further demonstrates that the basis for this ruling is solely rooted in the political interests of the Constitutional Court as an institution and its justices.
The arguments regarding checks and balances that the Constitutional Court used as the basis for refusing to be supervised by the Judicial Commission are also highly absurd. The same applies to the Court’s rejection of the recruitment process through the Expert Panel. The Constitutional Court appears to be defending the constitutional authority of other institutions (the House of Representatives, the Supreme Court, and the President) to nominate judicial candidates as stipulated in the Constitution. In reality, however, the Constitutional Court is constructing an argument to weaken the Expert Panel and the Judicial Commission, including by citing a previous ruling that affirms that Constitutional Court Justices are not subject to oversight in the same way as Supreme Court Justices.
Meanwhile, to defend the interests of political parties, the Constitutional Court invokes human rights principles—such as the rights to assembly, association, and membership in political parties—which are, in fact, entirely subject to legitimate restrictions. The Constitutional Court also applies such restrictions on human rights in numerous rulings regarding the eligibility requirements for candidates seeking certain public offices. It is clear that the Constitutional Court constructs arguments that appear to defend citizens’ constitutional rights, when in reality it is smuggling in the political interests of political parties to control the Court. This is a serious, ongoing consequence of politicians who, without pause, wield judicial power in interpreting and adjudicating constitutional cases.
SETARA Institute and the Constitutional Democracy Forum (CDF) deeply regret this ruling, although it must still be complied with. In light of the tensions that have arisen since October 2013, SETARA Institute and the Constitutional Democracy Forum (CDF)—which in November 2013 released the findings of their research titled “10 Years of the Constitutional Court”—remind us:
First, the way the President of Indonesia responded to the Constitutional Court crisis in October 2013—by issuing a Government Regulation in Lieu of Law (Perppu) and by sidelining the Constitutional Court—is an example of poor political conduct and communication among state institutions, which ultimately created new problems. SETARA Institute and CDF have believed from the outset that the Perppu would be challenged by the Constitutional Court itself, because the process of “rescuing” the Court actually marginalized it and made it the target of public anger.
Second, in response to the Constitutional Court’s ruling, all state officials must engage in constructive dialogue—including reestablishing inter-institutional relations—to safeguard the integrity of the 2014 elections.
Third, with this ruling, it is hoped that as soon as possible—without delay—the House of Representatives (DPR), the Supreme Court (MA), and the President, without getting bogged down in debating this Constitutional Court ruling, will begin the process of recruiting Constitutional Court justices to fill the full complement of nine justices on the Constitutional Court following the arrest of M. Akil Mochtar and Harjono’s planned retirement. This also includes the possibility that the President of the Republic of Indonesia’s appeal against the annulment of the Presidential Decree on the appointment of Justices Patrialis Akbar and Maria Farida will be rejected.
Contact Person:
Ismail Hasani, Research Director at SETARA Institute, Lecturer in Constitutional Law at UIN Jakarta, and Presidium Member of the Constitutional Democracy Forum (CDF): 08111 88 47 87