The polemic for the removal of Judge Aswanto by the DPR is still ongoing because, despite various criticisms, the DPR has ensured that it will continue to forward the decision to President Joko Widodo and then inaugurate the replacement of Judge Aswanto. The DPR’s decision confirms the intention and work of systematic and real efforts to undermine the independence of the judiciary and attempt to “subdue” the statesmanship of the Constitutional Court judges.
Prior to the amendment of the 1945 Constitution, Indonesia did not have a law review system, except for the examination of legislation under the Act, and this was not regulated in the 1945 Constitution, but in the Law on the Basics of Judicial Power. After the amendment of the Constitution, the establishment of the Constitutional Court with the crowning authority to review judicial review of the Act marked the adoption of the principles of constitutional supremacy and constitutionalism. From the point of view of the supremacy of the constitution, laws and regulations under the constitution must not conflict with the constitution, so there must be a mechanism to assess the constitutionality of a law. is the same as allowing the opportunity for abuse of power to open up the possibility of making laws that are contrary to constitutional norms, especially regarding the recognition and guarantee of human rights.
The statement by the Chairman of Commission III who was angry with his “delegation” in the Constitutional Court, can be understood academically, but it is wrong as a political decision and has the potential to damage the structure of the state administration. The discourse on judicial review in the context of the principles of constitutional supremacy and constitutionalism always raises fundamental questions regarding two things; namely the legitimacy of the institution and how this institution should be run. In institutional legitimacy, political institutions that are directly elected by the people (elected agency) such as the DPR stand in a superior position because of their legitimacy basis, while the Constitutional Court is an unelected agency. Thus the judicial review by the Constitutional Court is a form of ‘counter majoritarian’ because it cancels laws made on the basis of majority agreement in representative bodies. This has placed the Constitutional Court as a superior institution in relation to control over the legislative and executive branches of power, giving rise to fears of a state judge (rechterstaat), coup de’tat in courtroom (coup de’tat in courtroom) or juristochracy (Ran Hirschl: 2000). As for the question of how judicial review should be carried out, it is a more dynamic discourse regarding whether the Court can adjudicate ‘policy choices’ and their parameters, whether the Court can make decisions containing policies (judicial policymaking); whether the Constitutional Court can make a decision that results in a change in the norm phrase in an article or paragraph; and whether the Constitutional Court can make decisions that formulate legal norms for the implementation of provisions of paragraphs or articles or parts of a law. These dynamic issues have actually created a longstanding tension between the DPR and the Constitutional Court and finally the DPR “against” the Constitutional Court by amending the Constitutional Court Law (Amendment to Law No. 8 of 2011) which in Article 57 paragraph 2(a) which contains: limiting the contents of the decision, may not contain orders to legislators; and may not contain the formulation of norms as a substitute for norms from laws which are declared contrary to the 1945 Constitution of the Republic of Indonesia.
Threats to Independence and Submission of Statesmen
Whatever the tension of the DPR as the holder of the power to form laws, this should not threaten the independence of the judiciary. If this happens, the last bastion of justice will surely fall. Wasn’t the debate over establishing a judicial review institution and the Constitutional Court in the amendment of the 1945 Constitution, one of the bases of which was because the Supreme Court did not agree as an examiner of the law, due to public distrust of the judicial body (See Comprehensive Manuscript of Process and Result of Amendment to the Constitution 194, p. 461). The independence of the judiciary includes two aspects, institutional and its judges, which are then related to impartiality in deciding cases. Institutional independence is constitutional independence, namely, independence associated with the adoption of the separation of powers in the 1945 Constitution, namely the judicial power institution must be independent in the sense that the institutional position must be free from political influence. One of the indicators regarding the independence of the judiciary that has been agreed upon by international standards is “security of tenure”, namely the guarantee of the position of judges regarding the term of office and definite reasons for dismissal. In the context of the dismissal of Constitutional Justice Aswanto DPR, the reason for canceling the DPR’s product (UU) is clearly a threat to the independence of the Constitutional Court, and judges and is also an insult to the 1945 Constitution of the Republic of Indonesia which emphasizes that Constitutional Justices are statesmen who control the constitution and state administration (Article 24C paragraph (5).
The design for filling the positions of constitutional judges from the DPR, the President, and the Supreme Court is not just borrowing from the Constitutional Court model in various countries, but indeed this is a political choice whose fundamental basis should be fixed, namely ensuring the ‘independence and impartiality of the judiciary and its judges. Whatever the choice of model, either the scheme for filling the Constitutional Court judges by: 1. Representative Body + President; 2. Representative Body; 3. Representative Body + President + Supreme Court; and 4. Special Commission (Harding and Leyland: 2009), the fundamental arrangement is to ensure independence guarantee. The removal of the Constitutional Court judges by the DPR has given a clear message that “you are the representatives of the DPR and therefore the DPR’s products must be defended”. This message is addressed not only in cases of judicial review but also concerning other MK authorities: disputes over election results, disputes over the authority of state institutions, and the dissolution of political parties. If the intention to remove the “reshuffle” materializes, there is concern that it will “infect” the “senders” of the Constitutional Court judges from other elements, especially from the President, as the legislators with the DPR.
Reform of the Position of MK Judges
As a product of reform, the Constitutional Court must be saved from the erosion of independence, one of which is by reforming the filling of judge positions by strengthening its accountability. Filling the position of a Constitutional Court Judge should regulate the basic principles in the recruitment process: nomination, track record, capacity testing, and proof of statesmanship. The different standards and mechanisms among the proposing state institutions in the process of recruiting candidates for the Constitutional Court judges, risk being difficult to produce judges who have integrity and personality that are impeccable, fair, statesmen who master the constitution and state administration. Even after the election of the Constitutional Court judges, their supervision and accountability must be strengthened, including the need to reconsider the role of the Judicial Commission in its supervisory function. The bad face of the Constitutional Court after the cases of Chief Justice of the Constitutional Court Akil Mochtar and Constitutional Court Judge Patrialis Akbar has certainly never been forgotten by the public. The independence and impartiality of judges that are threatened will also threaten public justice. For this reason, ahead of this political year, the sanity of the state must be put forward in the fourth amendment to the Constitutional Court Law, which was proposed by members of the DPR, who wanted to revise the age provisions for judges and regulate the evaluation of judges.
Lecturer at the Department of Constitutional Law
Faculty of Law, Universitas Airlangga
Email : radian.salman@fh.unair.ac.id
