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.
Category Archives: indonesia
The Centre for Democratic Institutions commissioned Prof. Simon Butt, probably the foremost Western expert on Indonesia’s Constitutional Court (Mahkamah Konstitusi) jurisprudence, to assess the MK’s handling of local elections cases in this report. In particular, Butt worries that the court had not adequately defined its standard for overturning an election (a “structured, systematic, and massive” breach) and does not rigorously evaluate evidence.
This report was published in March, so long before Akil-gate, but it still provides invaluable to the MK’s elections cases and some of the problems that plagued the system even before this October. One has to wonder now how much of the MK’s fuzziness on these matters was deliberate.
The Akil-gate scandal involving former Constitutional Court justice Akil Mochtar just became an order of magnitude more serious as the Financial Transaction Report and Analysis Center (PPATK) found US $8.9 (Rp. 100 billion) in wire transfers in Akil’s account. According to The Jakarta Post, there are now suspicions that Akil was engaged in money laundering and that corruption might have tainted many more elections cases. Meanwhile, Indonesia Corruption Watch is calling for a more exhaustive probe into Akil’s wealth.
What’s particularly worrying about all of these reservations is that it becomes much harder for the Constitutional Court as a whole to plausibly deny and knowledge of Akil’s activities. A single bribe can be hidden quite easily, but it appears that Akil’s activities likely generated a completely different lifestyle for the former chief justice. Why did his activities and behavior not raise suspicions earlier? I suspect Indonesians will increasingly be asking themselves those questions.
It’s no secret that Indonesia’s legislature, the DPR, takes a long time to pass laws. As such, in the wake of Akil Mochtar’s arrest three weeks ago, one could perhaps sympathize with President SBY’s latest attempt to impose stronger judicial ethics requirements on the Mahkamah Konstitusi by executive decree (perppu). The decree calls for an ethics council composed of members of the Judicial Commission and the MK. The decree would also prohibit anybody who had been a member of a political party during the previous 7 years from serving on the court.
However, the president’s executive decree powers are limited to responding to immediate crises – . A group of lawyers has challenged the constitutionality of the perppu before, ironically enough, the MK. According to The Jakarta Post, the lawyers have lined up the support of key stakeholders, including former chief justice Jimly Asshiddiqie and law professor Yusril Ihza Mahendra. Former chief justice Mahfud MD has also stated his opposition to the president’s plan, remarking that such a response would be necessary for nearly every government institution in Indonesia.
There are two key questions that will likely arise from this case. First, will the court exercise constitutional review over a presidential regulation? Technically, the MK’s constitutional jurisdiction covers statutes (undang-undang), not regulations. The Supreme Court does have jurisdiction over regulations but has hesitated to exercise that power. However, the legal grounds might be “fudged” here if the petitioners successfully argue that the president did indeed attempt to promulgate a statute through executive means.
Even if the petition passes the jurisdictional threshold, it is unclear if it would succeed on the merits. On the one hand, the MK knows it needs to institute some mechanism to enforce ethical duties on judges. On the other, the justices have formally stated that the Judicial Commission (KY) has no ability to enforce ethical rules on MK justices. In 2006, the MK stripped the KY of any power to enforce ethical requirements on Supreme Court justices (Case No. 005/PUU-IV/2006 ). In fact, the justices even went out of their way to clarify that the KY also had no power over MK justices, even though that part of their decision was obviously dicta. Last week, Deputy Chief Justice Hamdan Zoelva has already announced that the MK would proceed with its own plans to establish an ethics commission, without the KY’s involvement.
Because of the nature of this suit, because the petitioners are challenging a perppu and not undang-undang, it will be particularly difficult for the MK to do what it did in 2011, invalidating the DPR’s attempt to circumscribe the MK’s power to issue ultra petita verdicts. If the MK goes out of its way to invalidate a perppu, critics could portray it as being resistant to the need for reform and then propose even tougher measures. However, the perppu is clearly at odds with how the MK thinks it needs to respond to this crisis. Either way, I imagine this case will be expedited so we should know the verdict soon.
It’s pretty much given now that the Mahkamah Konstitusi will be subject to greater scrutiny in the wake of Akil Mochtar’s arrest. Now, according to The Jakarta Post, former chief justice Mahfud MD has opened a complaints center for former litigants who feel their cases were not decided fairly. The center does not seem to possess any legal status to overturn decisions or sanction judges, but it should at least help the court – and Mahfud – stay ahead of the controversy by demonstrating a commitment to transparency.