Indonesia’s Constitutional Court has done it again. A few weeks ago, the Mahkamah Konstitusi announced that it would require national legislative and presidential elections to be held simultaneously. The campaigning for the 2014 elections has already begun, so the decision will not go into effect until 2019 (Indonesia’s elections take place every 5 years. However, critics, including elections lawyer Refly Harun, allege that the decision “could” have gone into effect for 2014 if the MK had released it earlier. According to The Jakarta Globe, the MK actually reached its decision last May.
At first glance, it might seem relatively innocuous – and perhaps even efficient – to hold elections concurrently. However, Indonesian presidential elections depend heavily on coalition formation because only parties that had won 20% of the DPR seats or 25% of the popular vote can nominate candidates (the MK allowed this requirement to stand). Most Indonesian political parties do not meet this requirement; after the 2009 elections, only the Democrats, GOLKAR, and PDI-P would qualify. Thus, many of the smaller parties would need to form coalitions to gain a seat in the administration, often by putting forward the vice-presidential candidates.
So the biggest remaining question seems to be how will the process of coalition formation change with the simultaneity requirement if they cannot form coalitions after having seen the DPR results? This might lead to parties forming coalitions based on previous election results and polling. Or, it could lead to parties taking greater account of ideology and policy platforms to form stronger policy-based identities before elections.
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.
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.
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.
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.
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.