Category Archives: Mahkamah Konstitusi

April 3, 2013 · 21:31

Big change at the MK (Indonesia)

After Mahfud’s departure, the Mahkamah Konstitusi selected Akil Mochtar as the new chief justice. According to The Jakarta Post, Mochtar won 7 votes compared to two for Harjono. Mochtar was a former GOLKAR DPR member, which continues the trend of having politicians serve as chief justice (Mahfud was a PKB member).

However, Mochtar’s election also brings new questions. In 2010, then-Justice Mochtar was also accused of bribery in a district elections case from North Sumatra. While the MK eventually cleared him of all charges, will the ensuing stigma affect the MK’s reputation?

Thus far, the MK has has acquired a reputation for integrity – not inconsiderable given the extent of corruption in Indonesia’s government. Former chief justices Jimly and Mahfud both had clean reputations and no scandals, which helped the court weather attacks from the DPR and president when the justices issued controversial rulings. Will Mochtar have enough clout to act as a champion for the MK? All we know for sure is that the MK is undergoing an important transition.

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Filed under Akil Mochtar, indonesia, Mahkamah Konstitusi

March 8, 2013 · 17:02

Mahfud, we hardly knew ye (Indonesia)

The DPR has voted and Pak Arief Hidayat, professor of law at Diponegoro University in Semarang, Central Java, will replace Mahfud MD on the Mahkamah Konstitusi.

However, his confirmation was somewhat more controversial than previous MK candidates. During his “fit-and-proper” test, he opined that “Indonesia should implement human rights that are compatible with the local context, instead of unconditionally implementing so-called ‘universal values’.” This seemed to insinuate that he would be less vigorous in enforcing human rights than his predecessor. Hidayat was confirmed with 42 out of 54 votes in the DPR, but has been greeted cooly by editorials in Indonesian newspapers.

Frankly, it’s still a bit too early to judge how Hidayat will rule from the bench. Previous MK candidates have been known to make statements designed to appease legislators. Mahfud himself promised that the MK would not legislate from the bench, although critics claim his activism exceeds even that of his predecessor. The real test will come when he decides a case in which human rights seem to conflict with Indonesian or Islamic culture.

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March 5, 2013 · 16:36

The race is on! (Indonesia)

With Mahkamah Konstitusi Chief Justice Mahfud MD stepping down, the race to replace him is already underway. The current candidates are Arief Hidayat, Sugianto and Djafar Al Bram, law professors at Indonesian universities. They have already undergone the “essay-writing” portion of the fit and proper test.

According to The Jakarta Globe, several other candidates, including former Justice and Human Rights Minister Patrialis Akbar and law professors Lodewijk Gultom and Nimatul Huda have dropped out of the race. Patrialis had been the most prominent candidate in the race. According to Ruhut Poltak Sitompul, a member of the House of Representatives Komisi III, Patrialis withdrew because he likely would not have become chief justice. Instead, current justice Ali Mochtar will likely get the role.

With Patrialis out of the race, it also leaves a dearth of candidates with high-profile political experience. Many of the serving justices served either as MPs, ministers, or judges. There is a debate in the literature as to whether political experience helps judges resist demands from the other branches of government. Both Chief Justices Mahfud and Jimly had served in the legislature in some capacity and both were infamous for being canny tacticians. In the U.S., some of the most celebrated justices, such as Earl Warren and Hugo Black, made their careers in politics.

A law professor might also bring a more doctrinal perspective to the bench. Some Indonesian scholars believe the “politician-justices” are too pragmatic in their decisions. The charge “legislating from the bench” is often leveled. The law professors might bring a more theoretical approach to their judging.

So far, Mahfud is the only confirmed resignation, but Harjono also must resign at the end of this term (he’ll have served two terms). None of the other justices are required to retire, so it looks like the bench will remain largely the same.

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Filed under indonesia, Mahkamah Konstitusi

November 29, 2012 · 04:42

Mahfud’s on top (almost) (Indonesia)

A few days ago, I posted news that Mahkamah Konstitusi Chief Justice Mahfud MD is leaving the court after his term expires next year. I speculated that this is directly linked to his presidential ambitions. Lo and behold, a new poll from Lembaga Survei Indonesia finds Mahfud to be one of the most popular potential presidential candidates. Over 74% had a favorable impression of his leadership ability (second only to Jusuf Kalla at 79%). Moreover, Mahfud scored highest on a question asking about general positive image (79% versus Kalla’s 77%).

A caveat is that the poll does not necessarily ask whom respondents will vote for. Voters can of course respect a candidate but for various reasons choose another, perhaps because of a specific policy proposal.

Nonetheless, it seems the question is not if, but how, Mahfud will run. From the polls alone, a Kalla-Mahfud pair sounds unbeatable. Mahfud, as Javanese (Kalla is from Sulawesi) might even make more sense at the head of the ticket. But all we have thus far is speculation. My guess is that Mahfud will have a more difficult time passing the first round of the presidential voting than the second. In other words, he’d need enough name recognition and a political party apparatus to support his bid and make it past the first round.

Mahfud’s response to all the speculation has certainly not been Shermanesque. According to The Jakarta Post, his response to the speculation was:

I can’t decide now because it will affect my present position as chief justice with the Constitutional Court, as well as at my [academic] institution. Let’s wait until after my term expires in April.

Which sounds like a good reason for retiring from the MK!

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November 28, 2012 · 00:17

Mahfud’s heading out (Indonesia)

Chief Justice Mahfud announced recently that he will not seek a second term as chief justice of the Mahkamah Konstitusi. When going through his confirmation hearings, Mahfud promised to be less outspoken and to not “legislate from the bench”. However, the chief justice has become a mainstay in the public media, often commenting about hot-button political issues. The court has also taken an increasingly populist turn under his watch. Recently, the MK declared BP Migas unconstitutional because it undermined state control over natural resources.

Many suspect that Mahfud’s stepping down next year will allow him to run for the presidency in 2014. As a former professor of Islamic law, Mahfud has Islamic credentials without being too “fundamentalist”. His decisions from the bench and lack of corruption scandals both allow him to portray himself as a populist. Given the relatively weak presidential field next year, he has a fair shot at president or vice-president. The biggest question might be which party he chooses to join. He was a DPR member from PKB from 2004-08, but I could imagine him forming an alliance with a larger party to pass the electoral threshold for fielding a presidential candidate.

The Jakarta Post has a brief retrospective.

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Filed under indonesia, Mahfud, Mahkamah Konstitusi