Over the past few months the Constitutional Court has been hearing a case that could have serious implications for the rights of Indonesians. A conservative group called the Family Love Alliance (AILA) is challenging a number of articles in the Criminal Code, including Article 284 on adultery. As civil society and the media have watched the hearings with interest, many have questioned how judges with such limited and conservative understandings of human rights could end up leading Indonesia’s top judicial body.
This is not the first time that the quality of judges in the Constitutional Court has been called into question. Concerns peaked in October 2013, when the Corruption Eradication Commission (KPK) caught Chief Justice Akil Mochtar red handed accepting a bribe to rule on an election dispute. He was sentenced to life in prison by judges in the Corruption Court in the Central Jakarta District Court, a decision that was upheld on appeal to the Supreme Court, but the reputation of the Constitutional Court was seriously damaged.
Although it might not attract the same amount of press as the selection process for KPK commissioners or members of the National Commission on Human Rights (Komnas HAM), the selection process for judges at the Constitutional Court has not escaped the attention of civil society.
In fact, civil society lambasted a number of the current batch of judges when they were first proposed. In 2014, when the Supreme Court nominated Suhartoyo to replace the outgoing Ahmad Fadlil Sumadi, there were serious concerns raised about his capacity to do his job. Suhartoyo had previously been examined by the Judicial Commission over suspected ethics violations. He sat on a panel of judges in the South Jakarta District Court that cleared bribery suspect Sudjiono Timan of all charges in a case involving Bank Indonesia Liquidity Assistance (BLBI) funds dispersed during the 1997-1998 financial crisis. Similarly, many doubted Patrialis Akbar’s ability to remain impartial in electoral disputes given his past as a senior member of the National Mandate Party (PAN).
The fact that such figures could end up serving among the nation’s most senior judicial officials is a result of the serious lack of transparency and accountability in the selection process for Constitutional Court judges. The 2003 Law on the Constitutional Court (and its more recent amendments) does not regulate the process of selection of Constitutional Court judges in detail. It states only that there are nine judges, with the national legislature (DPR), the president, and Supreme Court responsible for selecting three judges each. Article 19 of the Law states that the nomination process should be transparent and participatory. The selection process is then entrusted entirely to each institution, although Article 20 states that the process should be objective and accountable. Aside from these few details, there is no other regulation on the selection of Constitutional Court judges.
The Court Monitoring Coalition (KPP), a collection of civil society organisations working on legal reform, previously objected to the lack of standard procedures for the selection process, which has meant that transparency and public participation are usually denied. In 2008, for example, the DPR said it would conduct a fit and proper test of all 21 candidates for the Constitutional Court but it never released any information on the results of these tests. Similarly, in 2011, when the Supreme Court named Anwar Usman and Irfan Fachruddin as candidates to replace the retiring Arsyad Sanusi, it provided no explanation for its choice. This pattern was repeated in 2014, when the Court named Suhartoyo and Manahan MP Sitompul as replacements for Ahmad Fadlil Sumadi and Muhammad Alim.
These opaque selection processes have even been challenged in the State Administrative Court. In August 2013, a coalition of civil society organisations challenged Presidential Decision No. 87/P of 2013, which appointed Patrialis Akbar and Maria Farida Indrati as Constitutional Court judges, over the lack of transparency and participation in the selection process. The Jakarta State Administrative Court ruled in favour of the petitioners, stating that the selection of the two judges violated Article 19 of the Law on the Constitutional Court. But the decision was reversed on appeal to the State Administrative High Court and Patrialis and Maria continue to serve.
So what can the public do to ensure that Indonesia has better quality judges and, consequently, better quality decisions? The Law on the Constitutional Court dictates that the selection of judges for the Constitutional Court is under the full authority of the DPR, government and Supreme Court, and cannot transferred to any other authority, including the public. This is consistent with the concept of the Constitutional Court as an institution that represents the three branches of state power: the legislative, the executive and the courts, where no single branch is more powerful than the others.
There is some merit to this mechanism of selection. In Austria, for example, the responsibility for the selection of Constitutional Court judges was intentionally handed over to the parliament. The rationale was that the parliament would be more likely to accept and comply with the Court’s decisions if it was responsible for selecting the judges who made them. By the same logic, the DPR, government and Supreme Court should be inclined to follow the Constitutional Court’s decisions because they have a degree of investment in the people making these decisions. It should also result in them being careful about proposing candidates for the Court, because the decisions that the judges make will ultimately affect the institutions themselves.
By this argument, there is the potential that too much public involvement in the selection process could end up reducing allegiances between these institutions and the Court and affect the potency of its decisions. This is not to suggest that the public should not be involved, as oversight is crucial for an objective and accountable process. Rather, more room should be made available for public involvement in the selection process in each of the nominating institutions.
In 2008, public involvement in the selection of Constitutional Court judges was intensive. The Civil Society Alliance for the Constitution (Amuk) was asked to participate in the selection process and the public provided input on the track records of the candidates nominated by the Supreme Court. But public participation has not been consistent since then.
To improve the quality of judges in the Constitutional Court, the public must continue to be involved, even if only in the context of providing information on candidates’ records. Greater public examination of the track records of candidates will make it harder for selection panels to make personal or subjective decisions.
Beyond the selection process, civil society should also encourage the recruitment of better quality judges by subjecting their decisions to greater scrutiny. Academics and civil society organisations should be conducting more studies on the decisions made by Constitutional Court judges, so that the judges feel that they are being watched. It is currently rare to find studies that critique Constitutional Court decisions, and this is not because the Court does not make mistakes.
Consider, for example, Decision No. 21/PUU-XII/2014, which stated that seizure of goods and searches could be challenged in pre-trial hearings under Article 77 of the Criminal Procedure Code. Seizure of goods and searches can only be conducted with court approval anyway, so there was no need for the Court to add another layer of judicial control, such as pre-trial hearings. And further, allowing suspects to challenge seizures and searches in pre-trial hearings could become a serious impediment to effective investigation of corruption cases. Increased scholarly attention to and criticism of the quality of Constitutional Court decisions will ultimately improve the quality of future decisions.
To improve the quality of the judges in the Constitutional Court, and have more decisions the nation can depend on, a number of things need to be done. Civil society needs to closely scrutinise the track records of candidates nominated by the DPR, government, and Supreme Court. At the same time, these institutions must be open to public participation and monitoring of the selection process. Beyond the selection process, civil society needs to provide stronger criticism of the Constitutional Court’s decisions. Only if all these things happen will Indonesia finally get guardians of the Constitution that it can believe in.