Leadership Shake-Up at the Indonesian Constitutional Court

–Stefanus Hendrianto, Loyola University Chicago

Just a few months before the Indonesian Constitutional Court will celebrate its tenth anniversary in August 2013, it has undergone leadership change. In November 2012, Chief Justice Mohammad Mahfud told the House of Representative that he intends to leave his job in April 2013. On April 1^st, 2013, the Chief Justice Mahfud officially resigned from the Court. Following the resignation of Chief Justice Mahfud, there is much speculation about his tenure, the future of his political career and the future of the Constitutional Court itself.

Mahfud was elected as the Chief Justice in August 2008, and he was re-elected for another three-year term in August 2011. Mahfud is a notable Constitutional Law Professor from the Islamic University of Indonesia who had served as Minister of Defense and Minister of Justice under President Abdurrahman Wahid’s administration. Prior to his appointment to the Court, Mahfud had expressed his disagreement with the then Chief Justice Jimly Asshiddiqie’s approach to judicial review. He accused Chief Justice Asshiddiqie of steering the Court in the wrong direction, and he urged the Court to exercise judicial restraint in order to get back on track. Mahfud then came to the bench with a vision of strong judicial restraint. Although he vowed judicial restraint, he did not remain completely faithful to that vow.  He broke it in some instances when the Court reviewed governmental policies and statutory regulations. For instance, the Court nullified the appointment of the Attorney General on administrative grounds because President Susilo Bambang Yudhoyono did not reinstall the Attorney General when he began his second term in office. In a different case, the Court held that the deputy minister’s post compromised the constitutional and administrative law system, and, therefore, the Court struck down the statutory regulation on the appointment of deputy ministers. The Mahfud Court was quite defiant in the area of administrative law; nevertheless, in the area of civil and political rights, the Court tended to defer to the government’s decision. In some cases, the Court hold that the government decision to restrict individual rights is not contrary to the Constitution, as long as such limitation is based upon consideration of morality, and public order in a democratic society (see the Blasphemy Law case and the Pornography Law case).

In November 2012, Chief Justice Mahfud stunned the government on two different fronts. First, the Court ordered that the Government Regulatory Agency responsible for oil and gas exploration be disbanded. The Court’s decision was made following a case filed by some NGOs and political activists challenging the statutory regulation on oil and gas industry. Second, Chief Justice Mahfud harshly criticized President Yudhoyono’s decision to grant clemency to a drug convict, which would have changed her death sentence to life imprisonment. He asserted that the Presidential palace had been infiltrated by “the drug cartel.” Accordingly, there is some speculation that Chief Justice Mahfud decided not to seek re-election because he is aware that the government might not be upset by his behavior on the bench, and, therefore, he might faces some opposition if he tries to run for a second five-year term. At the same time, there have been rumors that Mahfud is a potential candidate for president in the 2014 election. Therefore, his decision to resign, some believe, is part of his bigger plan to run for president. Indeed, on his last day in the office, Mahfud stated, “If the opportunity is really there, I am ready to be nominated as a presidential candidate” (the Jakarta Post, April 2, 2013).

On April 3, 2013, the Court elected Akil Mochtar as the new Chief Justice for the period of 2013-2015 (In 2011, the House passed the Law that reduce the tenure of the Chief Justice from three years to two years and six months). Mochtar does not share a similar background with the previous two Chief Justices, Asshiddiqie and Mahfud, who are constitutional law professors. Mochtar is a seasoned politician from Golkar, the former ruling party under the military dictatorship. After he lost his bid for Governor of West Kalimantan Province in 2008, the Golkar party nominated him as an associate justice and he was appointed to the Court in 2009. In 2010, Mochtar was linked to a bribery case in the Constitutional Court. Since 2008, the Court has been equipped with a new authority to hear the local election disputes. In the election dispute of Simalungun district, the lawyer of the Head of Simalungun District accused Mochtar of receiving some money from his client in exchange for a promise of a favorable decision in return. Nevertheless, the Court cleared him of all of the allegations because it did not find any incriminating evidence. Shortly after he was elected as the Chief Justice, Mochtar stated, “I will bring the Court toward the right track” (the Jakarta Post, April 3, 2013). Whether he will do so remains to be seen.

Suggested Citation: Stefanus Hendrianto, Leadership Shakeup at Indonesia’s Constitutional Court, April 7, 2013, available at http://www.iconnectblog.com/2013/04/leadership-shake-up-at-the-indonesian-constitutional-court.