–Stefanus Hendrianto, Pontifical Gregorian University
On August 13, 2023, Indonesia celebrates the twentieth anniversary of the establishment of the country’s Constitutional Court. When the Court was initially established twenty years ago, it was a kind of joke that later turned out to be a serious affair.[1] The Court was originally intended to be a court of impeachment with limited judicial review authority. Nevertheless, under the chairmanship of Jimly Asshiddiqie and Mohammad Mahfud, the Court was transformed into a reputable judicial institution. Fast forward twenty years later, the institution has been marred with many serious failures, so now the Court has become a joke once again.
Marriage of State
One of the pieces of evidence that the Court did not take judicial affairs seriously is the marriage between Chief Justice Anwar Usman and the younger sister of Indonesian President Joko Widodo, commonly known as Jokowi.[2] On May 26, 2022, Chief Justice Usman, a 65-year-old widower, married his fiancé, Idawati, on her 56th birthday. According to Islamic law, the words of the proposal (ijab) and acceptance (qubul) in Islamic marriage must be uttered by the contracting parties or their agents (wali) in each other’s presence and hearing. As the bride’s elder brother, President Jokowi acted as the bride’s wali, with Vice President Ma’ruf Amin and the Chairman Joint Chief of Staff, General Andika Perkasa also present to witness the ceremony.
While the marriage is a private matter, Usman’s wedding has sparked public debate over how he can avoid a potential conflict of interest as the Chief Justice, considering that the Court must deal with many judicial review cases against the Jokowi administration. Some sections of civil society have expressed their demand that Chief Justice Usman resign from his position to prevent a conflict of interest. Usman, however, made it clear that he did not intend to step down.”[3]
Usman’s response showed that he was out of depth in constitutional politics. He seems unaware that the crux of the matter is that the law and the Indonesian Constitution do not explicitly require recusal when there is personal bias or other conflicts of interest. In other words, there is no formal rule as to when justices should recuse themselves. The new familial bond between Chief Justice Usman and President Jokowi has raised concerns about the legitimacy of the institution. But Chief Justice Usman seems to care less about the Court’s legitimacy or his own integrity.
The Dismissal, the Breach, and the Leak
During his tenure as Chief Justice, Usman not only showed his lack of intellectual leadership but also his lack of political and social leadership in leading the Court through a series of scandals in recent years. The first scandal is the dismissal of Justice Aswanto by the House of Representatives. Justice Aswanto was initially appointed by the House of Representatives in 2014, and according to the new Law, which allows the Justice to serve for fifteen years, Aswanto was supposed to serve until 2029. But following a majority vote in a closed-door meeting of the House Judiciary Committee decided to replace Aswanto.[4] The Judiciary Committee then recommended the decision to replace Aswanto to the House plenary session. At the House plenary session, five factions agreed with the recommendations, one faction approved with an objection letter on procedural grounds, one faction voted no, and two factions did not present. [5] Under the Rule of the House of Representatives, a decision only requires a majority of the vote (50 percent+1), [6] and, therefore, the coalition-led House easily agreed in a plenary session to dismiss Aswanto. The House overstepped its authority,[7] destroying the independence of the Constitutional Court, but what is saddest about this scandal is that the Court itself did not know how to respond, let alone fight back against this intrusion into judicial independence.
The second scandal is the breach of the canon of judicial ethics by newly appointed associate justice Guntur Hamzah.[8] The House Judiciary Committee replaced Aswanto with Guntur Hamzah, and on November 23rd, 2022, Hamzah took the oath of office in a ceremony at the State Palace. Hamzah’s inauguration came only hours before the Court rejected the petition to ask the Court to issue an injunction to stop the removal of Justice Aswanto. Just six hours after his inauguration, Hamzah immediately made editorial changes to the Court’s decisions concerning the removal of Aswanto.[9] Hamzah could make such changes due to his previous role as the General Secretary of the Court. So, he instructed the administrative clerks, who were his subordinates, to make editorial changes. After several hearings and examinations by the Ethics Council, Justice Hamzah was found guilty of breaching the code of ethics by altering a court ruling without the knowledge of the other justices. Nevertheless, Hamzah was let off with a mere warning, instead of dismissal.[10]
The third scandal is an alleged leak detailing the Court’s decision related to the judicial review of the Election Law, in which a few political parties sought to restore the closed-list system for the 2024 General Election. [11] On May 28, 2003, Denny Indrayana, the former deputy Minister of Justice, claimed he had obtained information from a reliable source within the Court that with a 6 – 3 ruling, the Justices would rule in favor of the plaintiffs and restore the closed list system. On June 15th, 2023, with an 8-1 decision, the Court rejected a petition to reinstate the closed-list electoral system for the 2024 General Election.[12] Following the announcement of the decision, the Deputy Chief Justice, Saldi Isra, held a press conference in which he denied the leak of a draft opinion. According to Justice Isra, by the time the alleged leak came out on May 28th, the justices were still having a deliberation meeting, and only after they finished the deliberation process did the final decision and the draft come down, on June 7th.[13] Hence, it is impossible that a leak has occurred since there was not yet a draft at the end of May 2023.
Nonetheless, the leak drama still had a lingering effect on the Court’s integrity. Apart from issuing a statement denying the leak, the Court did not address the fundamental issue of how the workforce in the Court – permanent employees and administrative clerk – show their loyalty to the institution by respecting the confidentiality of the judicial process.
Between Mundane Tasks
In recent years, the Court has repeatedly refused to review the presidential threshold requirement, which stipulates that a presidential candidate shall be nominated by a political party or a coalition of political parties that have managed to secure at least 20% of the total seats in House of Representatives or 25% of the valid national votes in the last general election. In rejecting those cases, the Court always invokes the so-called “open legal policy,” which signifies that certain statutory regulations fall under the jurisdiction of the lawmakers to decide.
While the Court has repeatedly refused to deal with the democratic blockages in the name of open legal policy, however, the Court has reviewed many cases closely related to statutory regulations. For instance, in the last term, the Court was busy reviewing the new Law on the Constitutional Court, especially the minimum age limit to be a constitutional court justice, which was changed from 47 to 55 years old.[14] In addition, the Court was also busy reviewing the provision that increases judicial tenure from two five-year terms to 15 years. Recently, the Court reviewed the tenure of the Commissioners of the Anti-Corruption Commission.[15]
The Court majority did not seem to bother to invoke the so-called “open legal policy” concerning the age limit and tenure, which is technically within the jurisdiction of the legislative branch. The trend continues with the recent case of the judicial review against the age limit for Presidential and Vice-Presidential candidates. The 1945 Constitution does not stipulate a minimum age for presidential and vice-presidential candidates. According to the General Election Law, the minimum age requirement for presidential tickets is 40 years old. Several individual petitioners and a small party called Indonesian Solidarity Party have filed a petition and requested the Court to lower the minimum age requirement for presidential tickets from 40 to 35 years old.
The minimum age requirement for presidential tickets clearly falls under the legislative branch’s authority to decide, and it is not a province of the Constitutional Court to stipulate a specific age requirement for presidential tickets. Nevertheless, this case could be a game-changer in the upcoming presidential election. There has been some speculation that the petition was intended to pave the way for the eldest son of President Jokowi to secure the vice-presidential nomination. In recent years, the supporters of President Jokowi have tried to change the presidential term limits so that Jokowi can run for the third term.[16] While the initial proposal has been defeated, Jokowi’s supporters have floated a new proposal to back Jokowi’s eldest son, Gibran Rakabuming, currently, the Mayor of Solo, to be a potential vice-presidential candidate.[17]
The petition, if granted, will not only allow Jokowi’s son to have a chance to join the race, but also it will continue to erode the Court’s already tarnished reputation. One might hope the Justices will try to resuscitate their tarnished reputations after serious mishaps in recent years. But the evidence so far suggests that the Court’s majority under the leadership of Anwar Usman will not make such an effort.
Suggested citation: Stefanus Hendrianto, The Decline of the Indonesian Constitutional Court, Int’l J. Const. L. Blog, Aug. 25, 2023, at: http://www.iconnectblog.com/the-decline-of-the-indonesian-constitutional-court/
[1] Stefanus Hendrianto. Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes. (Abingdon Oxon UK: Routledge, 2018).
[2] The Jakarta Post, “Marriage of convenience”. March 25th, 2002, https://www.thejakartapost.com/opinion/2022/03/24/marriage-of-convenience.html.
[3] Diana Mariska, “Chief Justice Marries President Jokowi’s Sister in Solo,” The Indonesia.Id, May 26, 2022,
[4] Jimly Asshiddiqie, “The DPR attacks the Constitutional Court – and Judicial Independence,” Indonesia at Melbourne, October 10, 2022, https://indonesiaatmelbourne.unimelb.edu.au/the-dpr-attacks-the-constitutional-court-and-judicial-independence/
[5] Susana Rita Kumalasanti & Nikolaus Harbowo, “Mendadak, DPR Ganti Hakim MK Aswanto dengan Sekjen MK Guntur Hamzah,” (The House suddenly removed Justice Aswanto with the Court’s Secretary Guntur Hamzah), Kompas.com, September 29, 2022, https://www.kompas.id/baca/polhuk/2022/09/29/mendadak-dpr-ganti-hakim-konstitusi-aswanto-dengan-sekjen-mk-guntur-hamzah
[6] Rules of the House of Representative No. 1 of 2020, Article 313 (1).
[7] While the Judiciary Committee did not explain the reason behind the dismissal, there was speculation that it was due to Aswanto’s decision to join the Court’s majority opinion that declared the Omnibus Law of Job Creation conditionally unconstitutional. See Stefanus Hendrianto, The End of the Beginning of Abusive Constitutional Borrowing in Indonesia: On the Suspension Order of the Omnibus Law of Job Creation, Int’l J. Const. L. Blog, Feb. 12, 2022, at: http://www.iconnectblog.com/2022/02/the-end-of-the-beginning-of-abusive-constitutional-borrowing-in-indonesia-on-the-suspension-order-of-the-omnibus-law-of-job-creation/
[8] Jimly Asshiddiqie, “Can a Constitutional Court judgment be changed? Newly installed judge faces Ethics Council,” Indonesia at Melbourne, April 3, 2003. https://indonesiaatmelbourne.unimelb.edu.au/can-a-constitutional-court-judgment-be-changed-newly-installed-judge-faces-ethics-council/
[9] The Court announced its decisions: “Therefore, the dismissal of a Constitutional Court judge before the end of their term can only be done for these reasons.” Nevertheless, in the decision minutes, the phrase “therefore” is changed to “in the future.” Even though the changes were only made to two syllables, it had a significant impact as the phrase “therefore” meant that the Court declared the replacement of Aswanto was unconstitutional. Nevertheless, the phrase ‘in the future’ signified that the replacement of Aswanto is lawful. See the Constitutional Justice Tenure IV case, Decision Number 103/PUU-XX/2022
[10] Nur Janti, “Found Guilty of Ethics Breach, Top Court Justice gets off with mere warning”. The Jakarta Post, March 22, 2023, https://www.thejakartapost.com/indonesia/2023/03/22/found-guilty-of-ethics-breach-top-court-justice-gets-off-with-mere-warning.html.
[11] Dio Suhenda, “Court ruling ‘leak’ revives opposition to closed-list election”. The Jakarta Post, May 30th, 2023, https://www.thejakartapost.com/paper/2023/05/30/court-ruling-leak-revives-opposition-to-closed-list-election.html.
[12] The Closed-List Electoral System case, Constitutional Court Decision No. 114/PUU-XX/2022
[13] “MK Berikan Respons Atas Pernyataan Denny Indrayana,” (The Constitutional Court Gives a response to Denny Indrayana), June 15th, 2023.
[14] In the last term, the Court reviewed at least four cases related to the tenure and age limit for constitutional court justices.
[15] The Anti-Corruption Commissioner tenure case, Constitutional Court Decision No. 112/PUU-XX/2022.
The Court extended the tenure of the commissioners from four years to five years. In addition, the Court also dealt with the age limit for the Commissioner, which according to the Law, must be at least 50 years and maximum of 65 years old. The Court that held a commissioner of the Anti-Corruption Commission is allowed to be reelected without having to be aged at least 50.
[16] Stefanus Hendrianto, After Twenty Years of the 2002 Indonesian “Constitution”: Will President Jokowi Stay in Power Longer? Int’l J. Const. L. Blog, Apr. 16, 2023, at: http://www.iconnectblog.com/2023/04/after-twenty-years-of-the-2002-indonesian-constitution-will-president-jokowi-stay-in-power-longer/
[17] Yerica Lai,”Parties await ruling on presidential age limit”. The Jakarta Post, August 2nd, 2023, https://www.thejakartapost.com/indonesia/2023/08/02/parties-await-ruling-on-presidential-age-limit.html.
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