November 19, 2013 · 18:28

Bad apple or rotten core? (Indonesia)

In the wake of last week’s mob attack on the Indonesian Constitutional Court (MK), some politicians are taking the opportunity to remind the court about its legitimacy problems. According to Viva News, DPR representative Eva Sundari (PDI-P) has called on all eight justices to resign:

New justices should be elected: Those who do not share the sin of Akil Mochtar for endorsing his unaccountable rulings. (translation from The Jakarta Post)

Such calls raise an important question: was Akil Mochtar simply a bad apple or a sign of deeper problems with the MK as an institution? Is there a need to start anew with a clean slate?

First, some context. Corruption happens. It’s impossible to prevent all public officials from engaging in corruption all the time. Just last year, in the neighboring Philippines, Chief Justice Renato Corona was impeached and convicted on a variety of corruption allegations. Even the U.S. Supreme Court has not been immune to corruption. In 1969, Justice Abe Fortas resigned amid allegations that he accepted a large sum of money from a financier who was under government investigation. 
More importantly, there were plenty of signs even before October 2013 that Akil Mochtar’s appointment might embroil the MK in ethical problems. Back in 2006, Indonesian Corruption Watch alleged that Akil had taken money while serving on a government commission for redistricting. Several NGOs openly opposed his appointment to the MK in 2008 pointing to past allegations of corruption. In 2010, elections lawyer Refly Harun famously accused Akil Mochtar of having received money from a candidate in a North Sumatra regency election (an internal investigation held that there was insufficient evidence to discipline Akil). 
None of this is to say that the MK can afford to be complacent. There is a very active and productive debate currently ongoing in Indonesia about enforcing ethics in the MK. However, that debate is largely taking place amongst lawyers, NGOs, politicians, and the rest of the Jakarta elite. To many Indonesians, there is a real risk that the Akil Mochtar scandal is their first and most enduring impression of the court. They have no reason to believe that Akil’s corruption did not taint the rest of the court. The MK does need to find a way to rebuild its credibility. If the MK attempts a “business as usual” approach, it might well face increased calls for wholesale reform.

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Filed under indonesia, Mahkamah Konstitusi

November 18, 2013 · 16:11

Survey says… Amend the Constitution! (Myanmar/Burma)

On Friday, according to The Irrawaddy, local authorities in Naypyitaw refused to give the National League for Democracy permission to conduct a poll of local support for amending the 2008 Constitution. The government reversed itself soon after and allowed the poll.

Not surprisingly, the NLD found overwhelming support for constitutional amendment. Out of the approximately 25,000 people who participated, 88% supported amendment, 8% favored rewriting the entire constitution, and the rest were neutral.

As The Irrawaddy notes, the poll’s methodology is questionable; it certainly would not merit publication in a peer-reviewed academic journal. Asking people to attend a polling station creates a self-selection bias in which residents who are more likely to agree with the NLD are also more likely to participate. There was no attempt at random sampling.

Naypyitaw itself is hardly representative of the entire country. However, that fact might bias against the NLD’s results; one would imagine that, as the seat of government and the military, Naypyitaw is less likely to be a stronghold of the NLD (although in the April 2012 by-elections the NLD did win several seats).

More important is which constitutional amendments people would support. The NLD has prioritized reducing the role of the military in politics and allowing Burmese with non-citizen dependents (specifically, Aung San Suu Kyi) to run for president. It’s far from clear if and to what extent this platform represents the preferences of the 88% who voted in favor of amendment, much less the rest of the country. In fact, there are many other parts of the constitution that would benefit from amendment, including the overly vague provisions on the powers of legislative committees.

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Filed under amendment, Burma, constitution, Myanmar

November 16, 2013 · 08:36

Disorder in the Court (Indonesia)

Talking with several experts and activists these past few weeks, it’s clear that many are disappointed in the corruption scandal involving former Constitutional Court (Mahkamah Konstitusi) chief justice Akil Mochtar. Many are also disappointed that the court has not taken more aggressive measures to establish an independent ethics committee.

However, on Thursday (coincidentally, two days after I’d visited the MK library), public expressions of discontent with the MK reached a new phase as supporters of a party in a Maluku local election dispute stormed the MK building. According to The Jakarta Post, several shouted “the MK is a thief” because their favored candidate lost.

Increasingly, I hear people raising questions about the appropriate role for the MK in deciding local elections disputes. Most people I’ve met still think the MK will provide the fairest adjudication of cases, but it’s far from clear if retaining jurisdiction over the cases is good for the MK. Many seem to think that whichever institution is tasked with deciding these disputes will suffer, either from corruption, an overflowing docket, or popular anger. Unfortunately, there are no easy solutions and there seems to be little appetite for the large-scale institutional reform that would be necessary to create a separate court for local elections disputes.

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Filed under Akil Mochtar, elections, Mahkamah Konstitusi

November 1, 2013 · 11:44

New MK chief (Indonesia)

Indonesia’s Constitutional Court (Mahkamah Konstitusi) met earlier today to elect a new chief justice, former deputy chief Hamdan Zoelva. Chief Justice Hamdan won an internal vote of the eight remaining justices. According to Kompas, the main challenger was Arief Hidayat, a relatively new justice. It is not clear what the final vote tally was, but it appears that there were at least two rounds to the voting. Given that there were only eight justices present, it is possible that one vote ended up in a tie.
According to Kompas, after his election, Chief Justice Hamdan Zoelva gave a speech warning about  the dangers of corruption and declaring the need to detect possibly corrupt activities amongst justices and court employees early. 
Interestingly, Hamdan continues the tradition of Akil Mochtar, but also of Mahfud MD, of having served in the DPR and been affiliated with a political party (in Hamdan’s case, the PBB or Crescent Star Party). However, unlike his predecessors, Hamdan was chosen by the president, not by the DPR. Thus far, MK justices have not voted in clear blocs aligning with their appointing body (i.e., presidential appointees don’t all vote the same). Hamdan also has considerable experience in private sector practice. As such, it will be interesting to see if his background influences his management style as chief justice.
In other news, according to The Jakarta Globe, the MK’s internal ethics has officially discharged Akil Mochtar for violations of the judicial code of conduct.

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Filed under Hamdan Zoelva, indonesia, Mahkamah Konstitusi

October 30, 2013 · 14:57

The MK is not a calculator (Indonesia)

Yet another conveniently timed report about the Indonesian Constitutional Court. Veri Junadi, associated with the NGO Perludem, has written a book about the MK’s handling of elections disputes. The title of the report is The MK is not the Supreme Calculator, partly a critique of the fact that the MK often finds itself involved in assessing vote counts in elections cases. The book is only in Indonesian and unfortunately has not been translated, but worth checking out for students of the court.

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Filed under elections, indonesia, Mahkamah Konstitusi