PSHK: Fourth Amendment Bill to the Constitutional Court Law Efforts to Disable the Constitutional Court

The Center for Indonesian Law and Policy Studies (PSHK) urges the DPR and the president to stop discussing the Draft Law on the Fourth Amendment to the Constitutional Court Law (Fourth Amendment to the MK Law) because its substance is not aimed at strengthening the authority and institutions of the MK. PSHK believes that the discussion of the Fourth Amendment to the Constitutional Court Law on May 13 was an attempt to paralyze the Constitutional Court.

“The Fourth Amendment to the Constitutional Court Law shows the bad faith of the legislators because the amendment was drafted through a silent, closed, hasty process with minimal public participation, and its substance is thick with political interests to subdue the Constitutional Court,” wrote PSHK in a press release (15/5).

PSHK believes that this step is a form of autocratic legalism that damages the democracy and independence of the Constitutional Court. Because the planning for the Fourth Amendment to the Constitutional Court Law is not registered in the 2020–2024 National Legislation Program (Prolegnas), it is not registered in the 2024 Priority Prolegnas or in the open cumulative list for 2024. PSHK suspects that this discussion takes advantage of the transition period towards a new period of government, or the lame duck period. In fact, significant constitutional decisions should not be taken during the transition period because they have the potential to raise issues regarding the legitimacy of the decisions.

“Through the Fourth Amendment to the Constitutional Court Law, the DPR and the president are trying to expel a number of unwanted constitutional judges, who will then replace them with figures who can become their extensions,” explained PSHK.

The Fourth Amendment to the Constitutional Court Law is seen as again messing with the term of office of constitutional judges. The terms of office of constitutional judges have gone through three changes in the last decade, but there is no adequate justification for these changes, and they have not been accompanied by tightening enforcement of judges’ ethics.

Furthermore, PSHK explained that Article 23A paragraphs (2), (3), and (4) of the Fourth Amendment to the Constitutional Court Law are considered to be the basis for the recall of constitutional judges with a five-year evaluation mechanism by the proposing institution. This practice is an intervention by the proposing institution, not a normal constitutional practice.

“This could hamper the independence and impartiality of the Constitutional Court’s constitutional authority because constitutional judges will be dependent on the wishes of the proposing institution,” he explained.

Efforts to intervene against the Constitutional Court are not only in the term of office and exercise of authority but also in its ethics enforcement agencies. Article 27A of the Fourth Amendment to the Constitutional Court Law also adds personnel to the MK Honorary Council (MKMK) as proposed by the three proposing institutions.

PSHK also urges the factions and members of Commission III who were not involved in the Level I discussions to firmly reject the discussion and ratification process. Apart from that, PSHK also urges the Constitutional Court to firmly reject the Fourth Amendment to the Constitutional Court Law, especially the clause on the evaluation of constitutional judges by the proposing institution, because it interferes with independence and impartiality. []