The 2020 amendments to the law on the Constitutional Court: a “gift” for judges?

The amended law on the Constitutional Court weakens the accountability mechanisms of a court that has seen two of its judges convicted of corruption in recent years. Photo by Charles Wiriawan on Flickr.

On September 1, the Indonesian National Legislature (DPR) passed amendments to the Constitutional Court Law. This statute, which has been amended three times since its promulgation in 2003, covers many aspects of the functioning of this Court, including its jurisdiction and the appointment and dismissal of its judges.

Renowned Indonesian academics, researchers and legal advocacy groups came together to form the so-called “Coalition to Save the Constitutional Court” to protest these amendments before and after their enactment, saying they reflected vested interests and would harm the Court.

Some even claimed that the amendments reflected political interests – more specifically, that the amendments were a ‘gift’ to the judges of the Courtintended to persuade them to side with the government and the legislature when they review controversial legislation. The Court is seized with a challenge to the widely condemned 2002 KPK amendments and will no doubt be called upon to review the Jobs Creation “Omnibus Bill” once enacted.

Critics have also argued that the amendments did not follow proper legislative processes. They point out that the amendments were – like many controversial bills the legislature has passed recently, including amendments to the KPK Act – not placed on the list of legislative priorities and were deliberated very quickly.

The amendments to the law on the Constitutional Court were deliberated only for two days in Commission III of the legislature despite 121 questions to discuss raised by the government, before being submitted to a plenary session, where all party factions approved them. The timing of the changes was certainly odd: it’s unclear why the legislature decided to enact them in the midst of a devastating pandemic, since there did not seem to be an urgent need. The process too lack of transparency and public participation.

It is easy to understand why the amendments could be considered a “gift” for the judges of the Constitutional Court. The amendments certainly provide judges – particularly sitting judges – with various benefits. For one, the Chief Justice and Associate Chief Justice now serve five-year terms, doubling their previous 2.5-year terms. (As before, they may be reappointed once to their respective posts.)

The minimum age for Constitutional Court judges has also been raised from 47 to 55, with the mandatory retirement age remaining at 70. In the past, judges could not be appointed if they were 65 or older, but this restriction has been removed. Some have speculated that this change is intended to facilitate the removal of some younger, and perhaps more legally adventurous, judges from the court.

But one of the transitional provisions of the amendments dispels this theory. This provision stipulates that judges in office at the time of the adoption of the amendments may remain in office until the age of 70, regardless of their current age or their age at the time of their appointment. There is only one caveat: judges cannot serve on the Court for more than 15 years.

Although these provisions are very beneficial for serving judges, the raising of the minimum age constitutes a significant obstacle to entry into the judiciary. In this context, it should be noted that some of the Court’s most esteemed judges joined the Court when they were under 55, including the Court’s First and Second Chief Justices – Jimly Asshiddiqie and Mahfud MD – former Chief Justice Hamdan Zoelva, and serving Justice Saldi Isra. The amendments would have barred them from sitting on the Court when they did, although they presumably could have held a position on the Court later in their careers.

Perhaps the most important amendment relates to the term of office of all judges of the Constitutional Court (whether they are Chief Justice, Deputy Chief Justice or not). The Court consists of nine judges, with the Legislative, Executive and Supreme Court each appointing three positions. Previously, these judges had five-year terms. Once their term expired, they left the bench unless they were reappointed for a second (and final) term by their nominating institution (or one of the other nominating institutions).

Under the amendments, once appointed, judges of the Constitutional Court can no longer be removed from office before reaching the age of 70, unless they meet the conditions for removal (which include negligence in their homework and misconduct).

Of course, allegations of judicial negligence or misconduct could be fabricated by politicians who want to remove certain judges, but another amendment makes that difficult. The only body empowered to investigate the judges of the Constitutional Court and to dismiss them for misconduct is the Council of Honor of the Constitutional Court, which applies the code of ethics of the Court.

Under the old rules, the Council was made up of representatives of the three nominating institutions – the legislature, the executive and the Supreme Court – as well as a judge from the Constitutional Court and a member of the Judiciary Commission. The amendments removed the three representatives of the nominating institutions from the Council: it now only includes a judge of the Constitutional Court, a member of the Judicial Commission and an academic in law.

The government and legislature therefore removed their own formal powers to be involved in the dismissal of Constitutional Court judges. Even though members of this Council can be persuaded to side with political actors seeking impeachment, it is now unclear whether the Council can, in fact, issue sanctions against Constitutional Court judges. Indeed, the amendments also appear to have removed the provision that set out the sanctions the Council can impose on offending judges, including dismissal. It is therefore possible to read these amendments as removing the Council’s power to completely dismiss judges for misconduct.

If the legislature intended the amendments as a strategy to secure judicial loyalty, then the strategy appears to have failed. Far from seeking to influence or control the Court by bestowing the “gift” of a term of office, the legislature and government have shielded Constitutional Court judges from any retribution they might wish to demand for unfavorable rulings.

On the contrary, the amendments granted too much independence to the judges of the Constitutional Court. It seems unwise to weaken the accountability measures of a court that has seen two of its judges convicted of corruption in recent years.

Ironically, one of the only ways to reverse these amendments is to challenge their constitutionality before the Constitutional Court itself. However, based on past decisions, the Court is unlikely to invalidate provisions that allow it to escape external control. We can only hope that the honest and capable core of the Court will be able to dominate, to ensure the responsible and continued exercise of the Court’s considerable powers.

The author thanks Miftah Fadhli for his help in researching this piece.