Indonesia's Top Court Under Fire

The Indonesian public has lost much of its faith in the Constitutional Court, one of the country’s two highest tribunals, following the Oct. 3 arrest of former Chief Justice Akil Mochtar. There are now calls for a total replacement of all the other eight justices.

Mochtar’s arrest shocked the media and the country. That is because the court was established in 2001 as a revolutionary new body outside the formal – and malleable – court system in place for decades under the rule of the late strongman Suharto. The powerful court has wide-ranging jurisdiction equal to that of the Supreme Court.

The former justice was detained on allegations of taking bribes in an electoral dispute involving a powerful Golkar Party clan in Kalimantan. The extent of public mistrust was evident last Thursday when a violent protest broke out in the courtroom after a ruling on a local gubernatorial election in Maluku Province. Dozens of protesters ran amok in the courtroom, breaking windows and throwing chairs.

Riot police arrested five people in the effort to stop the melee. President Susilo Bambang Yudhoyono condemned the protest, saying “such vandalism is a direct attack on the integrity of the court system in this country” and calling on all parties, including judges, prosecutors and lawyers to respect the court.

Mochtar’s replacement, the new chief justice, Hamden Zoelva said the mass demonstration in the courtroom “was not only an affront to the court’s dignity, but also that of the state,” according to local media.

However, the newly appointed Chief Justice Zoelva’s comments may be part of the problem. He made headlines last week for supporting a Mochtar decision in Bali elections earlier this year in which the disgraced chief justice ruled that voting by proxy was legitimate and likening it to a traditional tribal system used in Papua. However, proxy voting contradicts both international law and Indonesian electoral law due to the potential for fraud, vote buying, and multiple voting.

According to a Setara Institute survey of 200 state administrative experts, not one of Mochtar’s rulings was deemed judicially satisfactory. Zoelva’s support of the Bali decision raised questions about his own standards.

Zoelva has also issued statements advocating restricting public attendance at trials, also a breach of Indonesian law, which states the courts must be open to the public in all non-judicial conferences, and decisions reached without being open to the public are not binding.

Critics are now questioning whether Mochtar acted alone amid suspicions over the use and abuse of power when huge profits are to be made merely from controlling power. Although lawmakers of the Indonesian Democratic Party of Struggle, or PDI-P, have called for a review of all rulings made under Mochtar, the Constitutional Court Justices rejected the demand outright.

The Setara Institute also conducted a survey on the performance of the court over 10 years, the “Perception Index Report,” revealing that the public wants an ad hoc court to deal with local election disputes as well as reform to the recruitment process. The institute’s chairman, Hendardi said the Constitutional Court “has adequately exercised its authority in conducting judicial reviews of contentious laws and regulations.” However many of these contentious laws involve local taxes, and more than 800 dubious laws are waiting for review.

The rise of rights and justice-based civil society organizations, open media, and the success of Indonesia’s anti-corruption KPK, have put many of the oligarchy on edge, who have responded by pushing back, such as with the restrictive Mass Organizations Bill, which was passed in July and which critics said was aimed at non-governmental and human rights organizations critical of the state. The law requires that that mass organizations are “obliged to maintain the unity of the state, uphold morality and ethics and nurture the country’s religious and cultural norms.” The measure also outlaws “receiving or giving illegal support from and to foreign agencies.” It has been roundly condemned by human rights organizations.

President Susilo Bambang Yudhoyono enacted a government regulation in lieu of law, known as a Perppu, in the effort to restore the credibility of the Constitutional Court, despite opposition from lawmakers.

The new regulation bans candidates who have had links with political parties within seven years of joining the court, creates a permanent ethics body to supervise the court and requires judicial candidates to undergo a “fit-and-proper” test by an independent selection panel comprising seven people nominated by the Supreme Court, the House of Representatives, the government and the Judicial Commission.

Lawmakers have rejected the President’s plan, saying it was poorly timed given the proximity of the legislative and presidential elections in the coming few months. Legal experts and activists are also divided over the President’s move. The Perppu has had five formal requests for judicial review, yet the process for review comes under the Constitutional Court, which is expected to argue that the law was not in response to an emergency. It could well be thrown out. But by removing authority from the judiciary, the executive removes not just credibility from the Constitutional Court but checks and balances on its own power.

(Lauren Gumbs is a freelance writer living in Indonesia.)