October 5, 2022
JAKARTA – Former Constitutional Court justices have accused the House of Representatives of violating the Constitution by removing the court’s deputy chief justice Aswanto before his term ends.
Former Constitutional Court chief justice Jimly Asshiddique said the House did not have the authority to dismiss a sitting justice.
“[The House] has violated the Constitution. This is an arbitrary act. If left unchecked, this could destroy the independence of the judiciary,” Jimly told reporters after several former court justices met with lawmakers on Saturday.
Jimly explained that according to prevailing law on the Constitutional Court, the dismissal of a Constitutional Court justice should be decided through a presidential decree upon request from the court chief.
“If there’s no letter [of request] from the Constitutional Court, a justice cannot be dismissed,” he said.
Aswanto is a 58-year-old House-appointed justice who was elected deputy chief justice in 2018. Prevailing law states that three of the nine Constitutional Court justices — including Aswanto — are nominated by the House, another three by the president and the other three by the Supreme Court with presidential approval required for all of the appointments.
On Thursday, the coalition-led House agreed in a plenary session to dismiss him. This came following a recent Constitutional Court ruling that rejected a challenge to repeal a passage of the latest Constitutional Court Law revision in 2020, which allows justices to serve a maximum 15-year term between the ages of 55 and 70.
Following the ruling, the Constitutional Court sought to notify the House that the three sitting justices proposed by the House, namely Aswanto, Arief Hidayat and Wahiduddin Adams, would have their tenures extended and end their terms in 2029, 2026, and 2024, respectively, in line with the revision.
However, following a majority vote in a closed-door meeting of House Commission III, which oversees legal affairs and human rights, the House plenary session decided to replace Aswanto with Guntur Hamzah, the Constitutional Court’s secretary-general.
Bambang Wuryanto, chairman of House Commission III said the decision to replace Agus was due to his “disappointing performance” and lack of commitment to the House.
He used an analogy that justices nominated by the House owed their position to the House, much like a “director on a board” is appointed by the “company owner”.
“[Agus’s performance] of course has been disappointing. How come the legislation produced by the House is annulled by him, when he was [proposed] by the House itself?” said Bambang.
Aswanto was among the five justices who voted in favor of the court’s ruling that described the Job Creation Law — the controversial centerpiece of President Joko “Jokowi” Widodo’s ambitious reform agenda – as “conditionally unconstitutional”.
In the same plenary session, the House planned another revision to the Constitutional Court Law with new provisions that will allow the House, the president, and the Supreme Court to evaluate the sitting justices every five years.
The former Constitutional Court chiefs also met with Coordinating Political, Legal and Security Affairs Minister Mahfud MD — who is a former Constitutional Court justice himself — who said that the government would not “interfere with the appointment and dismissal of Constitutional Court justices proposed by the [legislative branch].”
Maruarar Siahaan, another former justice, called on Jokowi to reject the proposal.
“Our conclusion was that in order to neutralize the situation, we suggested through Mahfud that the President not sign the presidential decree on the dismissal,” he told reporters.
Aswanto’s dismissal, if promulgated by Jokowi, Maruarar said, would set a new precedent for the nine-justice bench to be reshuffled to the liking of the incumbent president, the House and the Supreme Court.
Feri Amsari, a constitutional lecturer at Andalas University, described the rationale behind the House’s decision on Aswanto’s dismissal as “misguided” and “politically charged”.
“Justices are appointed to examine whether the laws produced by the House are in accordance with the Constitution. So the House cannot blame them for its failed product or for making the House uncomfortable,” Feri told The Jakarta Post.
Feri added that the attempt to dismiss Agus might suggest that lawmakers were seeking ways to expand their interests through a new composition of Constitutional Court justices, which will handle election disputes in 2024.
Zaenal Arifin Mochtar, a constitutional law lecturer at Gadjah Mada University, noted that Agus’ dismissal strengthened the indication of political meddling in the court.
“I suppose what the House did was only an extension of the President’s wishes. The difference is, the House did it first, the President will approve it later,” he said in a live-streamed discussion on Friday.