Hidden Interests Behind the Plan to Amend the Constitutional Court Law

The Draft Law on the Fourth Amendment to the Constitutional Court Law (Fourth Amendment to the Constitutional Court Law) has generated a lot of controversy. This is because the Level 1 talks that were held on Monday, May 13, were very closed, rushed, and lacked public participation. A number of parties suspect that this is an attempt to paralyze the independence of the Constitutional Court.

If so, Professor of Constitutional Law at Padjajaran University, Susi Dwi Harijanti, believes that the plan to amend the Fourth Constitutional Court Law will lead to the collapse of independence through politicization. Whereas the reform of the judicial system is an important thing in the 1998 Reformation, which needs to be strengthened by guaranteeing the independence of the judicial power. She explained that the legal norms of the Constitutional Court are designed to protect and uphold constitutional norms, while at the political level to protect a democratic political system and protection of human rights.

“If the independence of the Constitutional Court has collapsed, then what else can we expect from the principle of the rule of law in the 1945 Constitution,” Susi said in a discussion held by the Indonesian College of Law Jentera, entitled ‘The Hidden Revision of the Constitutional Court Law Again’ (16/5).

Susi said that the strengthening of the Constitutional Court did not occur, because there was political intervention in the judicial institution of the Constitutional Court, through Bill No. 7 of 2020 concerning the Third Amendment to the Constitutional Court Law and continued with the Fourth Amendment Bill to the Constitutional Court Law. The two changes are considered to have no substantial changes, because they are only related to changes in the term of office of judges and the age requirements of constitutional judges.

In her notes, the discussion of the bill lacks the principle of necessity because there is no active involvement of the community and meaningful participation. Susi said that the bill should be avoided as far as possible from the accommodation of political needs, because it will be related to the function of the Constitutional Court as a neutral third party when there is a dispute between citizens and the state. In addition, during the government transition period (lame duck), there should be no decision-making that has a broad impact in the future.

“What is also crucial is that the content material that can weaken independence is also carried out during recess. Internally, the discussion of this bill is problematic because not all members involved in it participate in the discussion,” he explained.

A Silent Path to a Crisis in Law Enforcement

The Fourth Amendment to the Constitutional Court Law is seen as tinkering with the tenure of constitutional judges. The tenure of constitutional judges has gone through three changes in the last decade, but not accompanied by tightening the independence and ethical enforcement of judges. 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 an evaluation mechanism every five years by the proposing institution. This practice is an intervention from the proposing institution, not a reasonable part of constitutional practice.

“I am worried that the evaluation is a form of retaliation against judges who have made decisions or issued their considerations in dissenting opinions that are not favored by the proposing parties,” she said.

Susi said the evaluation should not have been carried out by the proposing institution, because the politicization of the courts makes society vulnerable to the power struggles of the political branches. If the court loses its authority to check political power and makes unpopular decisions, then it cannot uphold the constitution with the same effectiveness.

Former Chief Justice of the Constitutional Court for the 2013-2015 period, Hamdan Zoelva, said that efforts to amend the Constitutional Court Law could pose a serious threat to the independence of the judiciary due to changes in provisions regarding the recruitment and tenure of judges. Several judges are said to be affected by the provision that constitutional judges who have served for more than 5 years can only continue for up to 10 years if approved by the proposing institution.

“There are at least two judges who are threatened if this bill is passed, namely Saldi Isra and Enny Nurbaningsih,” Hamdan said.

Constitutional Court Independence on the Line

Meanwhile, former Constitutional Court Judge for the 2003-2020 period, I Dewa Gede Palguna, touched on the substance of the Fourth Amendment Bill to the Constitutional Court Law. According to Palguna, during the amendments to the Constitutional Court Law, there were many things that were never added to the substance that could improve the honor and answer public needs for the existence of the Constitutional Court.

Gede Palguna said that the revision of Law 24/2003 should have regulated the procedural law of case examination, which so far has only been regulated through Constitutional Court Regulations. Then he said, the mechanism for dissolving political parties should also be regulated in the Constitutional Court Law, not in the Constitutional Court regulations. In addition, he sees the need to add the authority of constitutional question, so that constitutional judges can examine the constitutionality of the application of the proposed law.

“Citizens who are harmed by the norms of laws that are contrary to the Constitution can already test them to the Constitutional Court. But, what if for example there are people who, when tried in the general court, only realize that the norms of the law used as the basis are contrary to the Constitution. This is called concrete judicial review or constitutional question,” Palguna explained.

Regarding the provision of evaluation of constitutional judges, Palguna said the practice was not carried out by other countries, generally the term of office of Constitutional Court judges could not be interrupted until completion. He views that what should be tightened is the recruitment process of constitutional judges, as stipulated in Article 24 paragraph (5) of the 1945 Constitution, namely having integrity, impeccable personality, fairness, statesmanship, mastering the constitution and state administration, and not concurrently as state officials.

“The evaluation of constitutional judges threatens the independence of judicial power. Because the provision gives a signal for constitutional judges if they do not take actions that are considered ‘good’ by the ruling party, they can be withdrawn or fired by the proposing institution and replace them with new constitutional judges,” he explained.

Former constitutional judge for the 2014-2024 period, Wahiduddin Adams, saw that the process of the Constitutional Court Law Bill had been carried out in a reactionary and emotional manner. He assessed that the revisions did not start with careful planning, including the process when discussed in the DPR. This can be seen from several important substances that should have been regulated further and in detail but were missed, such as procedural law, the authority of the Constitutional Court, and the registrar.

Wahiduddin suggested that it is better for the government to prepare a new draft of the Constitutional Court Bill to replace Law 24/2003 as material for the 2025-2029 national legislation program. However, he also said that constitutional judges should not be afraid of facing various challenges through the revision of the Constitutional Court Law, especially since the constitutionality test will still be submitted. []