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The Indonesian Constitutional Court in Crisis over the Chief Justice’s Term Limit

Stefanus Hendrianto, Santa Clara University

On January 12, 2015, the Indonesian Constitutional Court Justices unanimously elected Arief Hidayat, a lesser-known academic from Diponegoro University, as the new Chief Justice. After his inauguration, Hidayat stated that “the process [of election] was very smooth.” But before Hidayat took over the reign of Chief of Justice in a smooth transition, there was a dramatic power struggle between the then Chief Justice Hamdan Zoelva and the Joko “Jokowi” Widodo administration.

The crux of the matter is the term length for the Chief Justice and Associate Justices of the Constitutional Court. The Law prescribes that the Chief Justice of the Constitutional Court shall be elected by his fellow associate justice for a limited term of two years and six months.[1] Chief Justice Zoelva was elected as Chief Justice on November 1, 2013 and was supposed to stay in office until 2016. The problem arises when the term of Chief Justice does not run concurrently with the term of Constitutional Court justices. The Law provides that Constitutional Court Justices shall be appointed for a five year term, which can be renewed for a second term.[2] The then President Susilo Bambang Yudhoyono appointed Hamda Zoelva as an associate Justice on January 7, 2010, which means that he would finish his first-five year term on January 7, 2015. As Chief Justice Zoelva was approaching the end of his first five-year term, the Jokowi administration hinted that Chief Justice Zoelva would not be re-appointed for his second term, which meant that Zoelva had to end his tenure as Chief Justice earlier.[3]

On November 11, 2014, President Jokowi established a selection committee to find a successor for Hamdan Zoelva. In response to Jokowi’s decision, Chief Justice Zoelva mobilized his brethren to write a letter of objection to the appointment of the selection committee, which consists of eight legal academics and practitioners. The Justices expressed their disapproval of some members of the selection committee, especially two lawyers who have often been involved in arguing cases before the Court. They predicted that conflicts of interest would arise in the future if the selected Justice had to deal with cases involving those two lawyers. Some of Jokowi’s supporters slammed the Court as being arrogant and suspected the letter was meant to protect Zoelva’s political interests. The Jokowi administration ignored the letter and proceeded with the hunt for Zoelva’s successor.

Having realized that he could not play hard ball with the Jokowi administration, Chief Justice Zoelva hinted that he was prepared to be reappointed if Jokowi wanted to keep him in the position. When the selection committee opened a public competition for Zoelva’s position, Zoelva put aside his ego and applied for his position. Chief Justice Zoelva went back to playing hard-ball when the selection committee called him for an interview.  Zoelva sent a letter stating his objection to attending the interview with the selection committee. He said that he had already fulfilled the requirement to serve on the bench when he was interviewed to become an Associate Justice in 2010. The selection committee maintained that Chief Justice Zoelva would not receive any special treatment and he could not take any shortcut. The committee finally decided to drop the bid of Chief Justice Hamdan Zoelva.

Before he left office, Chief Justice Zoelva urged the lawmakers to reform the term limit for Constitutional Court Justices and Chief Justices. [4] He argued that a longer term limit is necessary to preserve judicial independence. Some politicians and analysts immediately dismissed Zoelva’s suggestion as a sign of frustration. Nonetheless, there is some truth in Zoelva’s proposal. If the appointment term is longer, the constitutional court judges would perhaps be more independent in exercising their authority

Chief Justice Hamdan Zoelva basically shares a similar trajectory with the first Chief Justice Jimly Asshiddiqie. Six years ago, Chief Justice Asshiddiqie declined to be interviewed by the House Judiciary Committee for his second term. The House, however, gave a shortcut to Asshiddiqie and re-appointed him for the second term without any interview. Despite his success in securing special treatment from the House, Chief Justice Ashiddiqie had to face a tough re-election battle within the Court and he subsequently failed to secure his position as Chief Justice. There was some speculation that the Yudyonono administration orchestrated the downfall of Chief Justice Asshiddiqie. Although the Executive has no authority to remove the Chief Justice, the Yudhoyono administration might have used the term limit as a loophole to plot against Chief Justice Asshiddiqie.

When Hamdan Zoelva was elected as the Chief Justice in November 2013, he inherited a court in crisis after his predecessor Akil Mochtar was arrested for bribery.[5]  Many legal academics and analysts argued that the root of the crisis is the fact that the Court had been filled with many corrupt politicians like Mocthar.  President Yudhoyono then decided to issue a Government Regulation in Lieu of Law, which stipulated that a Constitutional Court Justice must not have had links to a political party for at least seven years.[6] The architects of the law missed an opportunity to identify the real structural problem in the Court. While it is true that the Court has been filled with many politicians who turned out to be less than competent judges, the more basic problem is in the term limit instead of political party affiliation. First, there is not a large potential pool of candidates for the Constitutional Court. Indonesian legal academia and society have not been able to generate a large number of constitutional scholars and lawyers who are capable of sitting as constitutional court justices. Consequently, it is difficult to find good potential candidates to fill the Constitutional Court in a five year cycle. Second, a quick turnover of judges has given many opportunities for the Legislators, President and the Supreme Court to appoint their favorite judges and dismiss any sitting judges who do not serve their interests.[7]

As Arief Hidayat officially steps into the role of Chief Justice, he needs to reflect on how the history will remember him. None of his predecessors has enjoyed a swansong towards the end of their career. The first Chief Justice Jimly Asshiddiqie had to resign in disgrace after he failed to secure his re-election. The second Chief Justice Mohammad Mahfud resigned from the Court in order to advance his presidential ambition. When he failed to attract substantial support, he took a job as the Head of Campaign Manager for the losing presidential contender Prabowo Subianto. Mahfud’s political adventure became ludicrous to many people and undermined his statesmanship. The third Chief Justice Akil Mochtar has been sentenced to life in prison. Finally, the fourth Chief Justice Hamdan Zoelva headed for an early exit from the Court. Chief Justice Hidayat perhaps can make a significant breakthrough during his tenure by pushing for the reform of the term limit of Constitutional Court Justices and Chief Justice. If he succeeds, he will deserve a better swansong than the sad ending of his predecessors.

Suggested citation: Stefanus Hendrianto, The Indonesian Constitutional Court in Crisis over the Chief Justice’s Term Limit, Int’l J. Const. L. Blog, Feb. 5, 2015, at: http://www.iconnectblog.com/2015/02/the-indonesian-constitutional-court-in-crisis-over-the-chief-justices-term-limit/


 

[1] Article 4, Law No. 8 of 2011 on the Amendment of Law No. 24 of 2003 on the Indonesian Constitutional Court

[2] Article 22, Law No. 24 of 2003 on the Indonesian Constitutional Court

[3] There was some speculation that President Jokowi did not re-appoint Chief Justice Zoelva because the Court did not rule in favor of Jokowi’s political party, the Indonesian Democratic Party of Struggle (PDI-P) in some cases before the Court. For instance, the PDI-P challenged the Law on the election of the Speaker of the House (commonly known as MD3 Law). The Court held that the PDI-P has no standing to challenge the Law. In addition, Zoelva’s political affiliation is to the Star and Crescent Party that opposed Jokowi in the last presidential election.

[4] Hamdan Zoelva, interview with Metro TV News. The interview can be watched at https://www.youtube.com/watch?v=Tl9LdEw83ls

[5] Stefanus Hendrianto, The Indonesian Constitutional Court at a Tipping Point, Int’l J. Const. L. Blog, Oct. 3, 2013, available at: http://www.iconnectblog.com/2013/10/the-indonesian-constitutional-court-at-a-tipping-point/

[6] The Government Regulation in Lieu of Law No. 1 of 2013; the House of Representative certified the Government Regulation in Lieu of Law into the Law No. 4 of 2014. The Constitutional Court, however, struck down the Law on February 13, 2014

[7] Article 24C (3) of the 1945 Constitution provides that the Constitutional Court shall be composed of nine judges of whom three shall be nominated the President, three nominated by the House of Representative and three nominated by the Supreme Court.

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Published on February 5, 2015
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