Jokowi gives nod to controversial removal of constitutional justice

Aswanto's removal drew accusations of legislative overreach, as prevailing laws do not grant lawmakers the authority to remove a justice.

Yerica Lai

Yerica Lai

The Jakarta Post


Nine justices of the Constitutional Court during a hearing session at the courtroom.(JP/Seto Wardhana)

November 24, 2022

JAKARTA – President Joko “Jokowi” Widodo has given a nod to lawmakers’ controversial dismissal of Constitutional Court justice Aswanto and the appointment of Guntur Hamzah as his replacement, setting what civil groups say is an alarming precedent that undermines the independence of the judiciary.

Guntur, previously the court’s secretary-general, was appointed by the House of Representatives in late September to replace Aswanto, a two-time House appointee who was supposed to end his tenure in 2029.

Aswanto’s removal drew accusations of legislative overreach, as prevailing laws do not grant lawmakers the authority to remove a justice. They stipulate that a justice can only be dismissed by a presidential decree in response to a request from the court’s chief justice.

On Wednesday, Guntur took the oath of office in a ceremony at the State Palace, with Jokowi in attendance.

“I’m asking for prayers from all my friends, the media, journalists. Please pray that I can carry out this duty as well as possible,” Guntur told reporters after the ceremony.

Asked about the controversy surrounding Aswanto’s dismissal, State Secretary Pratikno claimed the President “cannot change decisions made by the House”, including its decision to replace Aswanto with Guntur.

“If we look at the Constitutional Court Law, there is an administrative obligation for a sitting president to respond to the House’s decision [by ratifying it] through a presidential decree. So that is an administrative obligation that must be carried out by the President,” Pratikno added.

Attending the Wednesday ceremony was Constitutional Court Chief Justice Anwar Usman – who married Jokowi’s sister, Idayati, in May of last year. Anwar declined to comment on Aswanto’s dismissal, saying, “As justice, I am not allowed to comment on what happened. Justices only speak through their rulings.”

Guntur’s inauguration came only hours before the court ruled to reject petitions challenging a 2020 revision to the Constitutional Court Law that increased the term limit for justices from 10 years – in two, five year terms – to 15 years. The court also rejected petitions that called for sitting justices to be protected from replacement or removal during their terms.

A House plenary session in late September removed Aswanto from his post after House Commission III overseeing legal affairs and human rights voted in a closed-door meeting for Guntur to replace Aswanto.

A senior lawmaker said at the time that Aswanto had been replaced because of his “disappointing performance” and lack of commitment to the House. Aswanto had joined the five-justice majority that ruled the Job Creation Law – the controversial centerpiece of Jokowi’s ambitious reform agenda – “conditionally unconstitutional”.

At the same plenary session, the House planned another revision to the Constitutional Court Law that would allow the House, the president and the Supreme Court to evaluate sitting justices every five years.

Civil groups and experts say both Jokowi and the House’s moves have set a worrying precedent by undermining the independence of judicial institutions.

Titi Anggraini of the Association for Elections and Democracy (Perludem), a democracy watchdog, described the President’s legitimization of the House’s unconstitutional decision as “an open attack to the rule of law and the Constitution”.

“What happened will certainly affect other judges who have no guarantee of working freely because they can be removed at any time. They are [in the eyes of the President and legislature] regarded as mandate holders who owe their loyalty to the institution that appointed them,” Titi told The Jakarta Post.

Nicky Fahrizal of the Jakarta-based Centre for Strategic International Studies (CSIS) was unconvinced by the justification for Jokowi’s move, asserting that the President did, in fact, have the power to counter the House’s decision to remove the justice.

Constitutional law expert Bivitri Susanti described Aswanto’s removal as the latest, clearest example of “autocratic legalism”, as almost all institutions that had oversight power over the government – such as the Corruption Eradication Commission (KPK), the House, civil society and now the Constitutional Court – had been undermined.

Expert Feri Amsari noted that Aswanto’s removal set a worrying precedent that the nine-justice bench could be reshuffled at the whim of the President, House or Supreme Court.

“So later we will be in very embarrassing circumstances […] where we have a Constitution but it is not used or respected,” Feri said.

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