Constitutional Court of Indonesia

Constitutional Court of the Republic of Indonesia
Mahkamah Konstitusi Republik Indonesia

Established 13 August 2003
Country Indonesia
Location Jakarta
Composition method 3 nominated by DPR, 3 by the President, 3 by the Supreme Court, and Presidential appointment.
Authorized by Constitution of Indonesia
Judge term length Five years
renewable once
Number of positions 9
Website www.mahkamahkonstitusi.go.id
Chief Justice of the Constitutional Court
Currently Arief Hidayat
Since 14 January 2015
Indonesia
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The Constitutional Court of the Republic of Indonesia (Indonesian: Mahkamah Konstitusi Republik Indonesia) was established as a consequence of the third amendment to the Constitution of Indonesia, ratified by the People's Consultative Assembly on 9 November 2001 [1]

History

Aerial view of the Constitutional Court building

Between the adoption of the third Constitutional amendment and the establishment of the Constitutional Court, the duties of the Constitutional Court were carried out by the Supreme Court.

In August 2003, the People's Consultative Assembly passed the Constitutional Court Act (Law No 24 of 2003) and the nine justices were appointed on 15 August. They were sworn in the following day. On 15 October 2003, the Supreme Court handed over authority, marking the start of the Constitutional Court's activities.[2] The nine founding judges were:

For the first time, a prominent scholar who was actively involved in the process of discussing amendments to the Indonesian constitution and with the introduction of the idea of the constitutional court, Prof. Dr Jimly Asshiddiqie was elected the first chief judge (2003–2006). With the successful completion of his first period on the court, he was then re-elected as the chief judge for a second term of 2006-2009. He resigned from the court after finishing his first five-year term of office. After the completion of this first five years periode, the Constitutional Court has been considered one of the icon of Indonesian reform success story, together with the Anti Corruption Eradication Commission. The leadership of the court continued under Prof. Dr Mohammad Mahfud, a senior politician of National Awakening Party and member of parliament.

The constitutional court has five jurisdictions:

With the establishment of the court, the aim is to safeguard democracy and the constitution according to the principle of rule of law, and the constitutional rights of the people and human rights can be protected accordingly. The high-profile performance of the constitutional court has made it a respected institution in Indonesia. During the general election and the first presidential election in 2004, the role taken by the constitutional court was widely appreciated by the people. Many landmark decisions have been made in the fields of politics, social, and economic law since its first year of establishment. The rehabilitation of the political rights of former members of communist party, the prohibition of retroactive law of anti-terrorism, the abolition of articles of subversive law and of defamation against presidential institution, etc., are among the landmark decisions which made it influential in guiding the new democracy of Indonesia. Public interest in the court has included discussion of the appointment processes of judges; the delineation of responsibilities between the Constitutional Court and other parts of the legal system; and overall approach that the Court has taken to the issues that it has considered.[3]

In mid-2011 the Indonesian parliament approved certain changes to the 2003 Constitutional Court Law that established the Constitutional Court.[4] The revisions approved include changes to the arrangements for the Court's ethics council, a strengthening of the qualifications and experience required for the appointment of justices, a reduction in the term of the Court's chair and deputy chair (to two-and-a-half years, down from three years), and raising the mandatory retirement age for justices from 67 years to 70 years. The proposal to change the arrangements for the membership of the Court's ethics council was a controversial issue with the first chief judge of the court, Jimly Asshiddiqie, describing the planned changes as "frivolous."

In October 2013, in a move designed to improve the standards of appointment of justices to the Court following the arrest of the then-chief justice Akil Mochtar (see below), president Susilo Bambang Yudhoyono issued a regulation-in-lieu-of-law (known as a Peraturan Pemerintah Pengganti Undang-undang or Perppu). The Perppu set out new arrangements relating to the processes of selection of justices. Under the proposed arrangements, a Constitutional Court justice is not to have had links to a political party for at least seven years and will have to undergo screening by an independent selection panel. In addition, a permanent ethics committee will be established to monitor the performance of the Court. On 19 December 2013 the Indonesian parliament endorsed the Perppu.[5]

Powers

The court has the same legal standing as the Supreme Court. Its powers, set out in article 24C of the Constitution, include the final say in reviewing laws concerning the Constitution, disputes over the authority of state institutions, the dissolution of political parties and disputes over election results. It also is obliged to rule on any attempt to impeach the president.

Its jurisdiction on the electoral disputes [6] was first limited to the five-yearly general elections (such as the 2004 and 2009 general elections). However, since 2009 the definition of general election has been broadened and includes the election of governors and regency heads (bupati). To date, of the five jurisdictions of the court, most cases handled have centred around issues of judicial review, disputed electoral results, and disputes between state institutions.

A major problem for the court, like other parts of the legal system in Indonesia, is enforcement of decisions. The ability of the court system in Indonesia to have decisions enforced is sometimes quite weak and in recent years across Indonesia local officials have, in some cases, refused to abide by important decisions of the Constitutional Court.[7]

Chief Justice of the Constitutional Court

The chief justice of the court is elected by the members of the court from amongst their number.

First chief justice. The first chief justice was Prof. Dr Jimly Asshiddiqie. He was well known as law professor of the University of Indonesia, and actively involved in the process of Indonesian constitutional reform and the political transformation to democracy. During the crisis in the transitional era under the presidency of Habibie (1998–1999), he chaired the Reformation Committee for law reform. As scholar, he often makes media appearances and offers comments on a range of public policy issues, until he was elected Chief Justice of the Court. As a scholar he has published more than 40 books on various legal and constitutional issues and some textbooks used in the universities all over Indonesia.

Second chief justice. The second chief justice, Mahfud MD, first elected in 2008, was re-elected in mid-2011 for a second term. Mahfud won the votes of five of the nine court judges, ahead of two other candidates. Mahfud MD was noted for his media and public comment. He was popular as a politician and member of parliament before being elected judge for the Constitutional Court. His comments and media appearances were sometimes controversial. Following his re-election, The Jakarta Post noted that "He is down to earth and his courage is well known" but also suggested that "As chief judge of the Constitutional Court, he should rather talk less and in contexts of the Constitution."[8] His name is sometimes mentioned in the media as a possible presidential candidate in the 2014 elections.[9] His term as chief justice ended on 1 April 2013.

Third chief justice. On 3 April 2013, Akil Mochtar was elected the third chief justice.[10] Akil was supported with seven of the nine votes cast. Akil, a former politician from the Golkar party, had been a justice on the Constitutional Court since 2008 and has a reportedly conservative approach in legal matters. He has said that in contrast to his predecessor, Machmud MD, he "would not talk to reporters much about politics."[11] On 2 October 2013, Mochtar was arrested by anti-corruption officials for allegedly accepting at least $250,000 in bribes, relating to a disputed election in Kalimantan.[12] Several days later, president Susilo Bambang Yudhoyono announced that Akil was temporarily suspended from his position as chief justice of the court and that new and stricter procedures for the appointment of justices to the court would be introduced.[13] Shortly after, the independent ethics council declared that Akil had been removed from his position and that the post of chief justice was vacant.[14] In the subsequent legal process, numerous instances of allegedly corrupt payments that Akil had received as a justice were presented by prosecutors.[15]

Fourth chief justice. On 1 November 2013 Justice Hamdan Zoelva was elected as the fourth chief justice for the period 2013-2016. Hamdan, a former member of parliament from the Muslim-based Crescent Star Party (Partai Bulan Bintang or PBB), was elected by his colleagues after two rounds of voting. Hamdan spoke of the need to reform faith in the court and said he would create a permanent ethics council to oversee the conduct of justices. Some observers, however, doubted that it would be easy for Hamdan to introduce such changes.[16]

Justices of the Constitutional Court

The Indonesian Constitution specifies that the Court must have nine justices. The Indonesian Parliament (the DPR or House of Representatives), the president and the Supreme Court are each entitled to appoint three justices to serve five-year terms.[17]

Current justices of the Constitutional Court (as of 21 March 2014):[18]

The process of appointment of justices to the court is subject to some controversy. For example, in mid-August 2013 president Susilo Bambang Yodhoyono appointed a new justice by decree, Patrialis Akbar, to replace retiring justice Achmad Sodiki. But the appointment was challenged by a group of legal activists. In December 2013 their challenge was upheld by the Jakarta State Administrative Court. Patralis said he would challenge the ruling and on these grounds, chief justice Hamdan Zoelva ruled that pending the result of the challenge, Patralis would remain a justice on the court.[19]

See also

References

Notes

  1. ↑ Denny Indrayana (2008), pp. 241, 266
  2. ↑ Constitutional Court Website: History of The Constitution Court accessed 17 May 2009
  3. ↑ Prodita Sabarini and Ina Parlina, 'Constitutional Court: Independence of the last resort', The Jakarta Post, 3 May 2013.
  4. ↑ 'Constitutional Court's power to be limited', The Jakarta Globe, 15 June 2011. Dicky Christanto, 'House passes amendments to Constitutional Court law', The Jakarta Post, 22 June 2011
  5. ↑ Haeril Halim and Ina Parlina, 'House endorses SBY's MK reform plan', The Jakarta Post, 20 December 2013.
  6. ↑ Jimly Asshiddiqie, The Constitutional Law of Indonesia: A Comprehensive Overview, Thompson Sweet & Maxwell Asia (2009).
  7. ↑ See International Crisis Group, Indonesia: Defying the State, Update Briefing, Asia Briefing No 138, 30 August 2012.
  8. ↑ 'Editorial: Focus on the Constitution', The Jakarta Post, 26 August 2011. This editorial provides useful commentary on the election of Mahfud MD to the position of chief judge and on his high profile role in Indonesia.
  9. ↑ ''Chances slim' for Mahfud M.D. to win presidency', The Jakarta Post, 7 January 2012.
  10. ↑ Ina Parlina, 'Ex-Golkar-lawmaker to lead Constitutional Court', The Jakarta Post, 4 April 2013.
  11. ↑ Prodita Sabarini, 'Akil Mochtar Turning the Tide', The Jakarta Post, 2 May 2013.
  12. ↑ Indonesia arrests top judge on corruption charges, BBC News, 3 October 2013
  13. ↑ 'SBY temporary dismisses Akil Mochtar from chief justice position.', The Jakarta Post, 5 October 2013.
  14. ↑ Hans Nicholas Jong, 'Former PBB lawmaker elected Constitutional Court chief justice', The Jakarta Post, 2 November 2013.
  15. ↑ 'Court reveals Akil's bribery record', The Jakarta Post, 22 February 2014.
  16. ↑ Anselmus Bata & Ezra Sihite, 'Hamza Zoelva Takes Over Helm of Constitutional Court', The Jakarta Globe, 1 November 2013.
  17. ↑ Ina Parlina and Margareth S Aritonang, 'House begins selection of new Constitutional Court justice', The Jakarta Post, 28 February 2013.
  18. ↑ Biographical details of the judges are at the official website of the Court. See also Prodita Sabarini and Ina Parlina, 'Profiles of new Constitutional Court justices', The Jakarta Post, 3 May 2013.
  19. ↑ Ina Parlina, 'Administrative court strips Patralis of MK seat', The Jakarta Post, 24 December 2013.

External links

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