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The Danger of Paralyzing the Constitutional Court

Monday, May 20, 2024

The latest revision to the Constitutional Court Law severely restricts the independence of Constitutional Court judges. Perpetuating authoritarian power.

arsip tempo : 172126692163.

The verdict hearing of the 2024 Presidential and Vice-Presidential Election Results Dispute at the Constitutional Court building, Jakarta, April 22. TEMPO/Febri Angga Palguna . tempo : 172126692163.

THE guile of the House of Representatives (DPR) revising the Constitutional Court Law must be seen as part of a major plan to turn Indonesia into an authoritarian country. By dismantling the Constitutional Court, the government and the DPR are free to hijack democracy.

During the recess, the DPR and the government of President Joko Widodo quietly continued discussing the fourth draft revisions to the Constitutional Court Law. Without the attendance of most of the members of the Law Commission, the DPR agreed to take the draft revised law to a plenary session. From the outset, the deliberations of these revisions have taken place behind closed doors, in secrecy and in haste, without any meaningful public participation.

As well as being against procedure, the substance of these revisions only targets the terms of office and age limits for constitutional justices. What is more dangerous is that the revision provides an opportunity for proposing institutions, such as the DPR, the president and the Supreme Court, to reevaluate constitutional judges considered as not in line with their interests.

Just look at Article 23 in the fourth revision of the Constitutional Court Law, which sets the term of office of constitutional justices at 10 years—previously it was 15 years. Every five years, constitutional justices have to return to the institutions that proposed them to undergo a revaluation.

Article 87 of the transitional regulation states that constitutional justices who have served between five to 10 years can only continue in their positions after obtaining approval from the institution proposing them. Saldi Isra, Enny Nurbaningsih and Suhartoyo are three constitutional justices who will be affected if this article comes into force.

Saldi and Enny—both proposed by the president—are two of the three judges that expressed a dissenting opinion when the Constitutional Court rejected the legal challenge concerning fraud in the 2024 election. Unlike other justices, the two took the opinion that there had been fraud in the election.

The DPR’s claim that these revisions are aimed at reinforcing the independence and accountability of constitutional justices is difficult to believe. With these two new articles, the government and the DPR can control constitutional justices, directing rulings in a manner aligned with their interests. The Constitutional Court will guarantee that laws produced by the DPR and the government all pass without any meaningful obstacles.

In the concept of judicial power, the evaluation process in the middle of a term of office could threaten the independence and impartiality of the Constitutional Court. The public will have much less opportunity to challenge and win cases through the mechanism of judicial review. This is despite the fact that many problematic bills are currently being deliberated and might be passed by the DPR—like the Broadcasting Bill banning investigative journalism.

This ill-intended effort to undermine the Constitutional Court began with its ruling on the formal review of the Job Creation Law in 2021. The Court ruled that the Job Creation Law was legally flawed and conditionally unconstitutional. The strategy to systematically paralyze the Constitutional Court—through a revision of the law—strengthened after the DPR dismissed Aswanto, who often annulled laws passed by the DPR, and who was replaced by Guntur Hamzah.

The move by the government to revise the Constitutional Court Law is a further strengthening of the signs of autocratic legalism that is damaging the rule of law. It is using a range of means to consolidate power so it looks as if it has been obtained legally, but in fact damages democracy and the Constitution.

As well as paralyzing the Constitutional Court, the revised law also damages the separation of power between the executive and the legislative branches. The loss of the control and correction mechanism means that policies from the executive have sailed through the DPR, which has acted as nothing more than a rubber stamp. The large coalition of parties supporting the government has paralyzed the function of the legislative.

Moreover, it is here that the Constitutional Court plays a vital role in maintaining the balance of power between the executive, legislative and judicial branches, as well as ensuring that one branch does not come to dominate the others. This separation of power is crucial to ensure accountability in a democracy.

Now the elites are destroying this principle. The demise of the Constitutional Court is a sign that this country is becoming a dictatorship. Before it is too late, we must fight back.

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