March 6, 2023
JAKARTA – The Constitutional Court is one of the pillars of our constitutional democracy. It is requisite that this judicial body, which serves as the ultimate interpreter of our constitution, is credible and free from any partisan influence of the other two branches of the government, namely the executive and legislative bodies.
We therefore need to closely watch the ongoing examination by the court’s ethics council on the irregularities surrounding its ruling regarding legislation that governs the rights of its nine justices: The 2020 Constitutional Court Law.
The scandal revolves around the apparent discrepancy between the reading of the ruling in the final hearing and the official copy of it that was uploaded to the court’s website. The discrepancy centers on the use of the term “therefore” in the court’s opinion, read out by justice Saldi Isra, which differed from the phrase “in the future” that appeared in the official copy of the document.
The change is no trifling matter, as it could change the nature of the ruling, particularly on the question of whether or not the firing of then-justice Aswanto was unconstitutional as argued by the petitioners.
The scandal is particularly concerning as it could destroy the credibility of the court, one of the reform era legacies that is, at least until recently, considered relatively independent.
The ethics council, led by former justice I Dewa Gede Palguna, has questioned five justices so far: Chief Justice Anwar Usman, justice Suhartoyo, justice Wahiduddin Adams, justice Manahan MP Sitompul and justice Arief Hidayat. It is set to question justice Saldi.
Critics have cast doubt on the council’s independence in handling the case, given that one of its members is one of the nine active justices, Enny Nurbaningsih.
Palguna has asserted his professionalism, saying that the council’s performance should be judged by the results of its decision. Palguna himself is a former two-time Constitutional Court justice between 2003 and 2008 under president Susilo Bambang Yudhoyono and between 2015 and 2020 under President Joko “Jokowi” Widodo.
It is too premature to measure the works of Palguna and his team. However, the council should know that the ethics probe is a test case for the court, the result of which will have serious implications for the state of our body politics.
Civil society groups have raised serious concerns about the potential co-option of the court by the executive and legislative bodies, which further fuels the belief that there has been an attempt by the political elites to dismantle our democratic institutions.
The controversial dismissal of Aswanto by the House of Representatives on the ground that he was not doing enough to represent the interests of the legislative body that had nominated him is a blatant attempt by the politicians to control the court. To further cement its grip on the court, the House has proposed a revision of the Constitutional Court Law that, if passed, would allow the House and the government to assess the performance of, hence recall, justices.
The fact that the current chief justice, Anwar, is the brother-in-law of President Jokowi is another issue that cannot easily be dismissed, given that the President has introduced a number of controversial laws to support his ambitious development programs.
It is only natural for a powerful institution like the Constitutional Court to be contested by the competing sociopolitical forces in the country. But we need to set out strict rules of the game to ensure that our democracy works in favor of the public, and not the select few with access to state and economic power.
The importance of the court cannot be overstated. As the guardian of the 1945 Constitution, it is our last defense against any oligarchic attempt to deny our basic civil rights as citizens, our last safeguard against any attempt to plunder state resources.