WahyudiDjafar's Blog

It would have been the usual Wednesday to Thursday day-changing in October if the Corruption Eradication Commission (KPK) had not busted Constitutional Court (MK) Chief Justice Akil Mochtar for allegedly accepting Rp 3 billion in bribes.

The arrest changed many things. The midnight raid badly hurt the country’s trust on the court and added the latest debacle to Indonesian judicial system. On a serious note, Akil’s corruption allegation brought concerns on the court’s verdicts on at least 10 regional election disputes. We must pay attention to the more urgent matter: the court’s impartiality and preparedness to face numerous disputes in the upcoming general election this year.

MK as political court

For a transitioning state like Indonesia, the Constitutional Court was established to make sure that the democratization takes place in its track and not bring the country back to the totalitarian regime. The court’s ultimate purpose is to guard the constitutional supremacy and to be the guide during the transition. Said Amir Arjomand (2003) stated “in the new constitutionalism, just as the constitutional courts have assumed the function of guiding the transition to democracy”. Arjomand highlighted the court was incepted to legalize and legitimate the political reconstruction and to uphold the law after the authoritarian era.

According to Tom Ginsburg (2003: 21-22), the establishment of the court, and its function in constitutional amendment, reflects the country’s need for the new democracy. During the transition period, the court owns the power to ensure that every political move follows the law.

The court is entitled with the authority to review the laws through the mechanism of judicial review. MK is expected to be a neutral place to end the political transaction and negotiation at the parliament. This is what called as judicialization of  politics, a situation that will foster the strong and independence judiciary system. In the previous regime, the political transaction came first; making the politicization of judicial was rampant.

Today, the court is responsible to review the troubled law passed by the House of Representatives, end the election-related disputes, dissolve the political parties, end the disputes among state institutions, and to determine whether the President and/or Vice President commits on constitutional abuses. The future of politics lies on the hands of nine Constitutional Court judges.

Juristocracy as a consequence

The strong judicialization of politics gives a lot of benefits for the creation of lawful state. The downside is that we are very dependent on the Constitutional Court justices to end any political dispute. The judges’ powerful position makes the court is prone to what Ran Hirschl (2006) described as juristocracy.

In short, juristocracy refers to any judicial activism which prioritizes the judge’s personal political consideration. As the result, the ruling might not follow the fundamental pillars of law: justice, legal certainty and purposiveness.

The global trend reveals that juristocracy is found in many countries where the judicial body functioned as the final gate of political activities. According to Hirschl, juristocracy is a consequence of the strong constitutionalism ideology.

He said that juristocracy emerged when ruling political elites feel threatened by the process of democratic transition. The elites, who want to maintain status quo, strive to keep their power by penetrating the judicial body.

Those elites will use the judiciary when (a) their hegemony in decision-making is interrupted by peripheral groups; (b) the judiciary enjoys the reputation of integrity and political impartiality; (c) the judiciary’s verdicts go against the elites’ ideological inclination (Hirschl, 2004: 214).

Our Constitutional Court is not immune from juristocracy practices. KPK investigation revealed that the judge were allegedly involved in several case-fixing of the result of regional elections. It is not a coincidence that Akil’s cases often drag incumbent elites. Indeed, some elites have really gone the distance to keep the power in their hands. Before Akil’s scandal was disclosed, the court enjoyed public support for years.

Verdicts say all?

One of the ways to measure the practice of juristocracy at MK is by analyzing its verdicts. When it comes to regional election disputes, it is MK ruling that fails or brings a candidate to power.

The case of Bali gubernatorial election is worth discussing. There were two main problems in the last year’s election: people who casted their ballot more than once and people who used other’s identity to vote. Ballot recapitulation was crucial matter, given that incumbent governor Made Mangku Pastika and Ketut Sudikerta defeated contender pair of AAN Puspayoga and Dewa Sukrawan with only 996 votes higher.

In the reasoning of judgment (ratio decidendi), the court admitted there were problems on the ballot number. However, the verdict confirmed the election result, upholding the victory of Pastika. The court used the purposiveness principle to defy the general election’s rules of direct, free, fair and confidential.

The ruling of Bali case contradicted the court’s verdict on the 2010 election of Bangli regent in Bali. The Bangli regent election shared the similar problems with the gubernatorial election. The court, presided by Akil’s predecessor Mahfud MD, said that the ballot manipulation violated the regulation and annulled the result of the election. The court stated that the manipulation tainted democracy and the fair election principle.

Over the few years, the court’s inconsistency is mostly found in the election disputes. According to the court, the principles of free, fair and confidential election must become the main consideration when endorsing a verdict. The court cannot use other legal reasoning, let alone personal consideration, that conflict the election principles (Verdict No. 002/PUU-II/2004 and No. 114/PUU-VII/2009).

With the antigraft body investigating more case-fixing indications on Akil’s case, including the controversial East Java Gubernatorial Election, we will have more stories to analyze the level of juristocracy inside the country’s top judicial agency.

Amid the anger and disappointment over the court’s impartiality, we must never forget to encourage the improvement of the court. As the important part for democratic transition, the court should ideally “give effect to the supremacy of the constitution and the new human rights culture introduced by the commitment to constitutionalism” (Heinz Klug, 2003).

The court could regain its respect when real statesmen, instead of advocates turn politicians or vice versa, sit as the judges. The Constitutional Court Law firmly states that the justice candidates must own the sufficient capacity and undergo a series of recruitment process. Clearly, the law is made to make sure that only right people will sit in the right position.

We must frequently monitor the court’s performance. Hopes are high that the court will always become the last defender of constitution and human rights protection. [ ]

Wahyudi Djafar

Researcher and Human Rights Advocate at The Institute for Policy Research and Advocacy (ELSAM) Jakarta