Category Archives: Mahkamah Konstitusi

May 30, 2011 · 23:10

Change in Indonesia’s Constitutional Court?

It’s always been a bit of a mystery why Indonesia’s parliament agreed to create a constitutional court during reformasi. One researcher concluded that most legislators simply hadn’t realized what was actually in the reform packages they’d voted on. Whatever the motivation at the time, now it appears the parliament is going back and considering revising the court. According to The Jakarta Post, legislators are looking at judges’ pensions, tenure, and appointment mechanisms – in other words, some of the foundations of judicial independence.

In other news, Indonesian police are investigating allegations that a Democrat Party official falsified an order from the Constitutional Court in an elections case. The police have been investigating it for a year, but have taken no action. Meanwhile, the official involved is now the Democrat Party’s spokesman. Sadly, that’s Indonesia – corruption making a mockery of the justice system.

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Filed under indonesia, Mahkamah Konstitusi

February 18, 2011 · 05:20

Consequences

Sometimes, as academics, we study the decisions of constitutional courts for their political and legal value. However, sometimes the most important impact of these decisions is on the lives of ordinary citizens. Sadly, a recent outrage in Indonesia reminds us that the decisions courts make can have grave consequences.

A while back, I mentioned a case in which Indonesia’s Mahkamah Konstitusi upheld the 1965 Blasphemy Law as applied to the Ahmadiyah sect. Now, as has been widely reported, less than a year later, a mob of Muslims attacks and stabbed three Ahmadis to death in a village not far from Jakarta. This has justly been portrayed as a black eye for Indonesia. The Economist accuses the government of “fudging” on protecting human rights. Yet, few commentators seem to have drawn the line back to the Mahkamah Konstitusi. Of course, the justices bear absolutely no blame for the violence – that lies solely at the feet of a small number of disturbed young men. Still, I can’t help but wonder if a clear moral mandate from the court might have sent a signal that suppression of minorities would not be tolerated.

In a recent speech, president SBY encouraged Indonesians to utilize legal means to resolve their disputes. I certainly hope more of his countrymen heed his advice.

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Filed under indonesia, Islam, Mahkamah Konstitusi

December 19, 2010 · 05:25

KKN reaches Indonesia’s Constitutional Court?

While observers often complain about corruption and nepotism within Indonesia’s judiciary, they usually allow that the Constitutional Court (Mahkamah Konstitusi) has been an exception to this rule. Now, allegations have arisen that one justice’s daughter and brother-in-law accepted bribes from a candidate in an election dispute before the court. The justice in question, Arsyad Sanusi, has just announced his retirement, which he claims is due to the fact that he will reach retirement age of 67 early next year. However, The Jakarta Post points out that he had earlier said he would “resign,” but this would have prevented him from receiving his pension, so he later corrected it to “retire.” Justice Arsyad denies all accusations of wrongdoing and has complained that his reputation has already suffered in the court of public opinion. If the accusations are true, it could cast a shadow on the Constitutional Court’s integrity. However, there was this odd scruple of honesty from one of the clerks: according to his attorney, a court clerk who had allegedly received Rp 35 million from the candidate decided to return the money when the court ruled against the candidate anyways. In other words, the candidate received a refund for his bribe. Hopefully this suggests that money doesn’t have the same power and influence in the halls of Indonesia’s Mahkamah Konstitusi.

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Filed under indonesia, Mahkamah Konstitusi

April 20, 2010 · 13:33

Blasphemous Constitutionalism

Indonesia’s Mahkamah Konstitusi just decided in an 8-1 decision that the country’s 1965 Blasphemy Law does not violate the Constitution. While the law recognizes the six major world religions (Islam, Catholicism and Protestantism, Hinduism, Buddhism, and Confucianism), some worry that it hinders minor sects and tribal religions by punishing deviations from mainstream teachings. The case arose when a group of NGOs challenged the law, partially concerned about the treatment of Muslim minority sects such as Ahmadiyah.

According to Human Rights Watch Deputy Asia Director Elaine Pearson:

The Constitutional Court’s decision on the blasphemy law poses a real threat to the beliefs of Indonesia’s religious minorities… If President Yudhoyono is serious about promoting religious pluralism in Indonesia, he should work to have this law and others like it taken off the books.

Interestingly, while the court and government agreed that religion was a private affair, they justified the law as protective of religious minorities:

Top government officials who served as witnesses in the court’s examination, Suryadharma Ali, minister of religious affairs, and Patrialis Akbar, minister for law and human rights, both argued in favor of the constitutionality of the law, saying that if it were overturned, violent mobs would probably attack religious minorities.

In somewhat Orwellian logic, they argued that the law placates the majority of the country (mainstream Muslims) by banning religious minority deviations so that those deviations do not arouse the majority into attacking the minority… In essence, if something’s outlawed, it won’t be a target for vigilantes.

While the Mahkamah Konstitusi as an institution represents a major step forward for Indonesia’s democratization process, in a way this result shouldn’t be too surprising. The court, as currently structured, seems designed to uphold majoritarian policy preferences. The justices only have five-year terms on the court, so the DPR and president can appoint judges who appoint their views pretty regularly. Any justice that strays too far from the popularly elected majority can be replaced soon enough.

Indeed, former Chief Justice Jimly Asshidiqie, who is often credited with some of the court’s boldest decisions during its first term, was not reappointed last year. While the Mahkamah Konstitusi gained a reputation in some quarters as willing to strike down DPR laws (especially when they violated Article 33 of the Constitution). However, it is unclear whether that will still hold true without Jimly Asshidiqie. I suspect that in the future the court will act much more like a majoritarian institution, rather than as a protector of minority interests.

For more on the role of Islam in Indonesian constitutional law, check out this book by Nadirsyah Hosen.

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Filed under indonesia, Mahkamah Konstitusi, religion

November 14, 2009 · 00:55

Another commission for Indonesian legal reform?

With the brewing scandal over the Indonesian police’s ham-handed efforts to blackball the Corruption Commission (KPK), it appears there is talk once again of a commission to reform Indonesia’s legal system. According to Reuters, Adnan Buyung Nasution, recently appointed by President Yudhoyono to a task force to respond to the scandal, has proposed a new state commission to oversee and enforce legal reforms:

I would like to see the whole case [the recent scandal] as an entry point to reform the legal institutions in Indonesia,’ Mr Nasution, 75, said in a telephone interview. With enough evidence, ‘we might make a recommendation to establish a state commission to reform the legal institutions so that we have rule of law in Indonesia.

Nasution also warned that corruption in the country has deterred foreign investors. Read the entire story here.
My own thoughts – this is probably a temporary balm on a much deeper problem. Nasution cites the example of Hong Kong’s Independence Commission Against Corruption, but studies suggest that political willpower was the most important factor in ICAC’s success. By contrast, recent reports implicate SBY in the conspiracy caught on tape. Indeed, the KPK indicted SBY’s son’s father-in-law, and, according to The Jakarta Post, was said to be preparing indictments against more members of his inner circle. While there is no evidence directly tying SBY to the conspiracy, so far Indonesians do not see him as a profile in courage, according to new polls.
Another concern is the fate of the last Indonesian commission established to reform the legal sector – namely the Judicial Commission. Several years ago, when the Judicial Commission accused several Supreme Court justices of corruption, the Supreme Court turned around and sued the commission in the Constitutional Court. The Constitutional Court accepted the Supreme Court’s arguments and stripped the Judicial Commission of its enforcement powers. [Simon Butt recently published a paper on the case]. 
This case dramatically shows just how vigorously Indonesia’s judges will protect their vested interests. Judges have tended to rally around accused colleagues rather than assist reformers, even if it damages the credibility of both themselves and their court. More ominously, the case also showed just how uncoordinated and disunited stakeholders in the legal sectors have been. Successful legal reform needs committed stakeholders, but so far it seems corruption runs throughout the entire legal system – judges, police, prosecutors, even the bar associations. Whenever one legal institution tries to reform part of the system, another simply undercuts it. In this case, the Judicial Commission and Constitutional Court, both post-Suharto reform institutions, interpreted judicial independence and the rule of law differently. 
Maybe a commission with full presidential backing and oversight over the entire system will fare better than the Judicial Commission. However, the late Indonesian legal scholar Daniel Lev predicted that it would take a generation to achieve meaningful legal reforms. Ten years after the fall of Suharto, Nasution claimed the new legal commission would need 10-20 years to complete its work. Sadly, I fear this predictions are correct and that Indonesian legal reform will only succeed with the arrival of a new generation of Indonesian government officials. 

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Filed under corruption, indonesia, KPK, Mahkamah Konstitusi, Simon Butt