November 9, 2023
JAKARTA – The Constitutional Court’s ethics council ordered the removal of Chief Justice Anwar Usman from his leadership post on Tuesday and barred him from weighing in on election disputes after it found him guilty of a “serious ethical violation” when he used his position to clear a path for his nephew to run for vice president.
And while the council stopped short of dishonorably discharging Anwar, the decision was enough for petitioners, legal experts and activists to breathe a sigh of relief as they held on to hope for an institution in a crisis of credibility.
Anwar had been under investigation by the council for his role in enabling his nephew, Surakarta Mayor Gibran Rakabuming Raka, to run for high office by ruling to circumvent the age minimum for presidential and vice presidential candidates under certain circumstances.
The three-member ethics panel, led by former chief justice Jimly Ashiddiqie, found that Anwar had committed a “serious ethical violation” for failing to uphold the principle of impartiality when he declined to recuse himself from the controversial case last month.
Anwar was also found guilty of violating the principle of independence in his privileged role by paving the way for “intervention by outside parties” in the court’s decision-making process, meddling that the ethics counsel said led the court to clear the legal barrier preventing Gibran, the eldest son of President Joko “Jokowi” Widodo, from entering the 2024 presidential race.
“The council orders the deputy chief justice to immediately hold a meeting to elect a new chief justice, without [Anwar] having the right to be nominated in the process,” Jimly said on Tuesday as he read out the verdict.
At the center of the investigation were 21 complaints filed against all nine justices of the court, 15 of which revolved around Anwar, who swayed the decision of the bench in favor of adding an exception to the age requirement just a week before the candidacy registration period came to a close.
Anwar had initially recused himself from ruling on three ultimately unsuccessful petitions seeking to change candidate age provisions, but he later participated in a petition that saw several justices switch sides and where he cast the decisive vote in a 5-4 ruling to allow candidates who had served as elected regional leaders to be exempted from the 40-year age minimum.
The courts nine justices were all reprimanded for failing to speak out against Anwar’s conflict of interest as a result of what Jimly called the culture of ewuh pekewuh, a Javanese term denoting a refusal to confront illicit practices, as well as neglect for the principle of equality among justices.
“The [bench] collectively allowed the violation of a constitutional justice’s ethical code of conduct to occur, without any serious intention to remind one another, including the chief justice, not to,” Jimly said.
“The principle of equality among justices was neglected and the ethical violation has become a normalized habit.”
Remedial efforts
Activists, legal experts and complainants have praised the ethics panel’s work in investigating and ruling on Anwar’s ethics breach, but some regret that the council did not dismiss the chief justice altogether, rather than being content with a “compromised sanction”.
One of the complainants, Yance Arizona, a lecturer in constitutional law at Yogyakarta’s Gadjah Mada University (UGM), told The Jakarta Post that the ethics panel should have dishonorably discharged Anwar, as the findings, including his role in enabling outside intervention, clearly indicated a severe ethics violation.
“It was very unfortunate that the sanction was not the maximum sought, as stipulated in the court’s provisions regarding the ethics council,” Yance said.
The council maintained that while it had the authority to investigate ethics violations involving court justices, it could not decide on the validity of the court ruling that altered the candidate eligibility requirements. However, efforts to reverse October’s controversial court decision are under way, with five fresh petitions submitted demanding that the top court reexamine the question of age limits, without Anwar.
The court is set to hold a hearing on Wednesday on one such petition filed by a law student at Yogyakarta’s Nahdlatul Ulama University. The petition demands stricter requirements for electoral candidates: that the only people under the age of 40 who should be allowed to run for president or vice president are governors who have been reelected to their posts.
“The reexamination must be sped up, as there is public urgency to ensure that the upcoming election is not impeded,” said Susi Dwi Harijanti, a professor of constitutional law at Padjadjaran University.
“This could also serve as a lesson for the court not to rule on a petition relating to elections when the process is already under way.”
Tuesday’s ruling was also welcomed by the campaign team of presidential candidate Ganjar Pranowo and his running mate Mahfud MD, who praised the ethics council for not allowing Anwar to adjudicate election disputes next year, given that “there was a clear conflict of interest”.
“Hopefully the Constitutional Court will truly become the guardian of the Constitution and of our hope to ensure honest and fair elections,” said Arsjad Rasjid, chairman of the Ganjar-Mahfud campaign team.
Following Tuesday’s verdict, the campaign team for presidential candidate Prabowo Subianto and his running mate Gibran expressed gratitude that their nominees were still able to compete in the February election.
The campaign officials also called on the Indonesian public to let go of any doubt that Prabowo and Gibran would fail to take over from President Jokowi.
“Our team has ensured that the Prabowo-Gibran nomination is not affected in any way by the court’s ethics council decision,” said Hinca Panjaitan, a Democratic Party politician who is leading the campaign team’s legal division. (alf/tjs)