Salvaging the Constitutional Court – Editorial

Of the few state institutions intended to embody the goals of the Reform movement, the Constitutional Court was once considered the most resilient. 

But the court is far from flawless. It is not always able to rise above shortsighted political interests given that its nine justices are each appointed by one of the three branches of the government. Neither has it been totally free of the endemic culture of corruption. At least two Constitutional Court justices, Akil Mochtar and Patrialis Akbar, have been imprisoned for accepting bribes.  

While the court has clearly had its ups and downs in its 20-year history as a key legacy of the Reform Era, it was able to maintain a certain level of public legitimacy as the sole interpreter of the Constitution.

That is no longer the case. Its Oct. 16 decision in favor of a university student from Surakarta, Central Java, who petitioned to amend the statutory presidential age minimum so that his city’s 36-year-old mayor, Gibran Rakabuming Raka, could run on a presidential ticket in the next election, is an affront to the rule of law. 

The problem has little to do with whether Gibran is fit to hold the position, but rather with the circumstances by which the court reached its controversial ruling.

Gibran is the eldest son of President Joko “Jokowi” Widodo, whose younger sister is married to the court’s Chief Justice Anwar Usman. Anwar clearly has a conflict of interest in handling the case and should have recused himself from the proceedings. 

The chief justice made little effort, if any, to conceal his own bias. The ruling, for instance, was issued just days before the registration window for the presidential election opens, clearing the way for Gibran to join the 2024 race. The court’s rulings are final and binding, so its justices should have taken ample time to discuss the case. 

Saldi Isra, one of the four justices who dissented against the ruling majority, has accused Anwar of forcing the completion of the judicial review immediately.

That the court chose to partially grant the petition filed by the student after rejecting similar motions filed by more high-profile plaintiffs on the same day has baffled many, including one of the justices themselves.    

We do not believe that the problem lies with Anwar alone. It is naive to suggest that the court would work effectively if he stepped down, even though we feel it is proper for him to do so. What the court needs is a total overhaul.

In recent years, we have seen how the legislature has bent regulations to tighten its control over the justices it has appointed. A case in point is former justice Aswanto, who was fired for repeatedly going against the legislature’s interests.

Since late last year, the House of Representatives has been planning to amend the Constitutional Court Law to allow the House, the President and the Supreme Court to evaluate every five years, or at any time as they deem necessary, any or all of the three sitting justices they respectively appointed. The draft revision does not specify a clear mechanism or criteria for the assessment of the justices.

In other words, we must contend with a systemic issue that has weakened an institution as powerful as the Constitutional Court. The court is now at the nadir of its credibility. It can no longer function as a legitimate guardian of the Constitution and has lost its capacity to serve in the interests of the public, as apparent in the Gibran case.  

Our Mahkamah Konstitusi (Constitutional Court) has now been reduced to a servant of the oligarchic powers that control the executive and legislative branches. Following its ruling that clearly benefits Gibran, a nephew of the court’s chief justice, the court is now becoming little more than a Mahkamah Keluarga (family court).