October 11, 2022
JAKARTA – It is not unusual for politicians to bend or even break rules to achieve their goals. In its most basic, if not cynical form, politics is nothing but a “means to an end”.
Thus, the legislative attempt, if not plot, to remove Constitutional Court justice Aswanto by refusing to “extend” his term is hardly surprising, despite its controversy. It is realpolitik at its most raw — it is in the interests of the ruling coalition controlling the House of Representatives that the 58-year-old justice must go before his retirement.
The lawmakers have been totally transparent about their motive. As a House-appointed justice, the lawmakers expect Aswanto to represent their interests in the court. But Aswanto appears to have done the opposite. In recent years, Aswanto has backed the court’s rulings declaring key House legislative products unconstitutional.
For the legislators, his removal is politically rational, if not somewhat transactional. In the words of one legislator, Aswanto’s performance has been “disappointing”.
The lawmakers should have known better that we are a country based on the rule of law. We are — at least on paper — a constitutional democracy, in which the authority of the majority is constrained by legal and institutional means.
Constitutional law experts, including former Constitutional Court chief justices, have slammed the House’s decision to recall Aswanto on sheer political grounds as “unconstitutional”. Regardless of whether Aswanto is a good or a bad justice, the prevailing laws do not grant lawmakers the authority to remove him.
According to former Constitutional Court chief justice Jimly Asshiddiqie, the 1945 Constitution only mandates the House to nominate a Constitutional Court justice. “Our conclusion is that, first, it is against the Constitution,” he told the media.
Moreover, the 2020 Law on the Constitutional Court stipulates that a justice can only be dismissed by a presidential decree based on a request from the court’s chief justice. The court has never requested the House to fill in a vacant seat in the court, meaning that it does not have a legal rationale to replace Aswanto.
The House has reportedly requested that President Joko “Jokowi” Widodo ratify the firing of Aswanto and the appointment of his replacement, Guntur Hamzah. It is not clear whether the President would give the House what it wants. When asked about his position on the matter, Jokowi said he would only follow the Constitution and the law.
Speculation is rife that Jokowi is part of the whole attempt to unseat Aswanto as he is seen as having sought legal leeway to stay in power, either by postponing the elections, or by serving as the running mate of a pro-government candidate in 2024. Earlier this year, Jokowi’s sister tied the knot with Constitutional Court Chief Justice Anwar Usman, a high-profile marriage that has sparked concerns over the court’s independence.
We should give the President the benefit of the doubt that he is not a part of the House’s alleged scheming — and that he would not stray from the Constitution.
Whether or not the withdrawal of Aswanto constitutes an overreach is debatable, but the nature of the House’s stunt is beyond questionable. A justice may have been appointed by the House, but on the bench, he or she submits only to the Constitution, not the political parties and their vested interests.