–Stefanus Hendrianto, University of Notre Dame
More than a decade since its inception, the four prior Chief Justices of the Indonesian Constitutional Court are all either disgraced or in prison. Considering the fates of his predecessors, one presumed that the current and fifth Chief Justice of the Indonesian Constitutional Court, Arief Hidayat, would be more prudent in his actions and judgment. But it appears that Arief Hidayat did not learn any lessons from his predecessors. Barely one year in his tenure as Chief Justice, Hidayat shocked the public with indications of an ethics violation.
Hidayat allegedly wrote a letter to Widyono Pramono, the then Assistant Attorney General for Special Crimes, concerning Hidayat’s recommendation for Pramono’s becoming a professor at the University of Diponegoro Law School, where Hidayat was previously Dean. In return, Hidayat requested special treatment for his “family member,” Zainur Rochman, an assistant District Attorney at Trenggalek Regency, East Java.
Following this disclosure, the Constitutional Court’s Ethics Council moved to investigate the allegations of an ethics violation. Hidayat admitted before the Ethics Council that he did write the letter, but he never intended to seek any special treatment for his “relative.” Hidayat argued that he simply wrote that he was “entrusting you (Pramono) to take him (Rochman) under your wing and to treat him like your son.” According to Hidayat, what he meant by those words was a simple request for Pramono to be a mentor for Rochman in terms of improving his skill and knowledge as a young prosecutor, rather than any request for illicit special treatment.
The Ethics Council ruled that the Chief Justice acted with a lack of prudence in issuing the letter of recommendation because it could create negative perceptions. Nevertheless, it did not find any gross violations of ethics and largely accepted Chief Justice Hidayat’s version of events. On March 2016, the Ethics Council recommended that Chief Justice Hidayat be given a private warning (sanksi teguran).
Regardless of the result of the investigation of the Ethics Council, the letter of recommendation scandal is just the tip of the iceberg of ethical problems in the Indonesian Constitutional Court. The Court moved to establish the permanent Ethics Council following the arrest of Chief Justice Akil Mochtar in 2013 on serious corruption charges (for which he is currently serving a life sentence). The Council is composed of a former justice of the Constitutional Court, a law professor, and a community figure. It has authority to investigate complaints of judicial misconduct and judicial incapacity, and it can recommend whether to temporarily suspend a justice and to establish an Honorary Council, which has authority to remove that justice permanently. It is however doubtful whether the Council will actually prove effective in disciplining justices on the Court.
Apart from the letter of recommendation scandal, one of the fundamental ethical problems on the Indonesian Constitutional Court is the absent of any recusal mechanism. For instance, on the First Indonesian Constitutional Court (2003 – 2008), Justice Natabaya never recused himself from the series of cases that reviewed the constitutionality of the Attorney Law, despite the fact that he was the principal drafter of the Law. Justice Patrialis Akbar was the Minister of Justice who represented the government in the Blasphemy Law I case, but after he was appointed as an associate justice, he did not recuse himself in the Blasphemy Law II case. The second Chief Justice (2008 -2013), Muhammad Mahfud, never recused himself in the series of cases that involved constitutional challenges to the Legislative Election Law. Prior to his position as Chief Justice, Mahfud was a member of the House Judiciary Committee and was involved in drafting the Legislative Election Law. Mahfud argued that it was unnecessary for him to recuse himself from the cases because he played two different roles as a legislature and a judge.
Recently, three Constitutional Court Justices refused to recuse themselves in a case that involve a constitutional challenge by the Association of Indonesian Judges (Ikatan Hakim Indonesia – IKAHI), despite the fact they had been members of IKAHI. One of the parties involved in the case filed a complaint with the Ethics Council. After examining the complaint, the Ethics Council ruled that there was no conflict of interest in the case because IKAHI is an association for career judges and those justices had ceased to be members of IKAHI when they were appointed to the Constitutional Court.
All of these ethical problems, and the failure of the Ethical Council to resolve them, raise big questions about the future of the Indonesian Constitutional Court. Hidayat will remain as Chief Justice at least until 2017, but memories remain fresh for the public to perceive the Constitutional Court as yet another corrupt and untrustworthy public institution.
Suggested citation: Stefanus Hendrianto, The “Ethics” of the Indonesian Constitutional Court: How Low Can It Go?, Int’l J. Const. L. Blog, May 25, 2016, at: http://www.iconnectblog.com/2016/05/the-ethics-of-the-indonesian-constitutional-court-how-low-can-it-go/
 Constitutional Court Chief Under Fire for Memo to AGO, The Jakarta Globe (Jan. 21, 2016), http://jakartaglobe.beritasatu.com/news/constitutional-court-chief-fire-memo-ago/
Indonesia Law Reform Weekly Digest, “Ethics Violation Allegedly Committed by Constitutional Court Chief Justice,” February 15, 2016, http://www.pshk.or.id/id/publikasi/lrwd-edition-01-january-2016-2/ Hidayat and Rochman did not have any familial relationship, but Indonesia has an extended family system and in some way or another people can claim that they have familial relationship.
 Ethics Council Decision No. 13/Info-III/BAP/DE/2016, March 15, 2016, at 5.
 Id. at 2. The original wording in the letter says, “Mohon titip dan dibina, dan dijadikan anak Bapak.”
 Id. at 5.
 Id. at 23.
 Id. at 25.
 Id. at 25.
 Constitutional Court Regulation No. 2 of 2014, art 15 (1).
 Constitutional Court Regulation No. 1 of 2014, art. 4
 See Rita Triana Budiarti, Kontroversi Mahfud MD: Di Balik Putusan Mahkamah Konstitusi (Controversy of Mahfud MD: Behind the Constitutional Court Decisions), (Jakarta: Konstitusi Press, 2013), 239
 The Constitutional Court Decisions No. 43/PUU-XIII/2015
 The Ethics Council Decision No. 11/LAP-II/BAP/DE/2015, 25