Restoring Public Trust in the Indonesian Constitutional Court

Azeem Amedi

University of York

Recently, the Indonesian Constitutional Court has been under increased scrutiny from the public, due to various issues both inside and surrounding the Court. There is a growing feeling of public dissatisfaction after the recently appointed Justice Guntur Hamzah was found guilty of altering a Court’s decision, and sanctioned for violating the ethics code. This post outlines some of the other incidents that have led to this growing sense of dissatisfaction, and then proposes some ways in which the Court can work to regain the public’s trust.

Justice Hamzah’s case is just one example of a myriad of issues that the current Court – under the leadership of Chief Justice Anwar Usman – has faced. The Court has become less of a hero than it used to be in the days of its early formation, especially after some Justices were found guilty in graft cases and of ethics violations, as well as the Chief Justice marrying the sister of  the incumbent President Joko Widodo. Thus, the integrity of the Justices has been questioned by the public.

Furthermore, the Constitutional Court has recently delivered decisions in which it arguably took on the role of ‘soldier’ of the government instead of a ‘guardian of the constitution’, or appeared too afraid to deliver a robust judgment invalidating legislation under review. For example, the Court did not question the democratic legitimacy of the deliberation process in relation the Amendments to the Law of the Corruption Eradication Commission in 2019 and the Law of the Constitutional Court in 2020.  The Court also failed to take a concrete stance on the unconstitutionality of the Job Creation Law in 2021, despite thoroughly investigating the creation of the Law.

This decline in the quality of decisions, the integrity of the Court, and citizens’ trust in the institution has not solely been caused by those cases alone, but also by the meddling by the executive and the legislative powers in judicial politics. Constitutional Court Justices are nominated by three state institutions: the executive, the legislature and the Supreme Court. Each of these institutions nominate three of the Court’s nine Judges. Through this mechanism, the executive and the legislature – which are currently dominated by the governing alliance of parties that endorse the incumbent President Joko Widodo – can expand their influence on the Constitutional Court by electing judges who align with their political agenda. This can minimise resistance coming from other government branches, as well as undermine the strength of the Court – hence decreasing the effectiveness of institutional checks within the Indonesian constitutional system.

The most recent example of the governing alliance expanding its influence on  the Court was the forced removal of Justice Aswanto by the People’s Representative Council (the Indonesian legislature) in favour of Justice Guntur Hamzah. The move to replace Justice Aswanto was problematic since the removal was not in accordance with the Law of the Constitutional Court, since he did not commit any crimes, did not engage in any unlawful misconduct, and  did not request to step down as a judge, and Justice Aswanto’s tenure – which originally lasted for 5 years since his re-appointment in 2019 - had not yet elapsed. Many scholars suspected that the decision to replace Justice Aswanto was politically motivated, in order to streamline all state institutions and assist the advancement of the Government’s political agenda.

Besides the direct appointment of Justice Hamzah to the Court, the executive and the legislature have recently meddled with the Constitutional Court through a formal amendment to the Law of the Constitutional Court in 2020. The amendment extended the tenure of Constitutional Court judges so that they would remain on the Court until they reached the age of 70 years old. This change is seen as a ‘gift’ from the government to the Constitutional Court Justices so that the Justices feel obligated to pay the government back by delivering judgments that are in favour of their agenda.

In order to save the Court from being heavily influenced by the governing party, the Justices need to re-internalise their roles as the guardians of the constitution. They have to insulate themselves from political influences that could potentially harm their independence and impartiality, while remaining sensitive to the political context of the issues at hand in order to deliver robust and just decisions that the public – as the primary source of sovereignty in a constitutional democracy – would support. For instance, the Court should have taken a concrete stance to strike down the 2020 amendment that grants Justices an extension to their tenure, as it is against the spirit of the constitutional limitation of power and becomes a threat to judicial impartiality.

Secondly, the Court needs to be more faithful to the defence of individual constitutional freedoms. These freedoms are not limited to the freedoms of association and expression, but extend to participation in politics, including law-making processes. Should there be any legislation that does not respect citizens’ participation – as mandated by Article 28D(3) of the 1945 Constitution and Article 96 of Law No. 12/2011 on Legislation – then the Court should thoroughly investigate the process and strike down the statute whenever it has proven to be violating the Constitution.

A good combination of sensitivity towards public opinion about the issue at hand and judicial activism can also improve the robustness of the Court’s decision-making, which in turn can improve the effectiveness of the system of checks and balances. By combining the proactivity of the Court to deepen the analysis of a constitutional issue and an understanding by the Court of what the public demands as a form of control by the judicial institution, the Court can better understand what is best for constitutional democracy, which guarantees limitation of power and protection of fundamental rights.

Lastly, to further improve institutional checks, the Court – with its power to exercise strong judicial review – can help with the reform of the legislative institution. Thus, not only can the Court act as an alternative channel for the people to voice their concerns that were previously left unheard by their representatives, but the Court can also require the legislature to engage with those who were left out. In this way, the Court can ensure that that the legislature is fulfilling its function as a democratic institution and uphold the principle of meaningful participation in the legislation process.

It is important for the Constitutional Court, as the institution that was founded in the hopes of leading the democratisation of the nation, to regain the trust of the public. No other institution in Indonesia can become the defender of the people’s interest stipulated in the 1945 Constitution, and prevent them from being violated by political forces. As Honore Balzac (quoted by Kirchheimer) said, belief in the judiciary must be retained in order to keep a democratic society intact.

Azeem Amedi is an LLM student in Legal and Political Theory at the York Law School, University of York. His main research focuses are Indonesian constitutional law, comparative constitutional law and theory, judicial politics, and human rights.

Suggested citation: Azeem Amedi, ‘Restoring Public Trust in the Indonesian Constitutional Court’ IACL-AIDC Blog (29 June 2023) https://blog-iacl-aidc.org/2023-posts/2023/6/29/gd121xoz08wl4apf6v0h8blj9le8he.