Constitutional Court Rules out Trust

By Lauren Gumbs 17/11/2013

The Indonesian public lost much of its faith in the Constitutional Court following the arrest of former Chief Justice Akhil Moktar, proving that corruption taints even the highest law of the land.

There are now calls for a total replacement of the other eight justices.

Moktar was arrested for taking bribes in an electoral dispute and the extent of public mistrust was evident last Thursday when a violent protest broke out in the courtroom after a ruling on the Maluku election.

The court’s lack of legitimacy caused a mass demonstration of contempt for the court, which new Chief Justice Hamden Zoelva said “was not only an affront to the court’s dignity, but also that of the state,” reported in the Jakarta Post.

However, Zoelva’s comments are part of the problem whereby elites and apparatchiks perpetuate an inverted relationship of state to citizens.

The state is duty bound to the people, not the other way around, and if the state and its institutions lose legitimacy through corruption and ineptitude it is then a violation of the democratic social contract.

This consciousness has clearly flowed down to the public in such a way that the highest court is not beyond their reproach, particularly when it comes to review and ruling on election disputes.

The Setara Institute for Democracy and Peace recently conducted a survey on the performance of the court over ten years, the “Perception Index Report,” revealing that the public wants an ad hoc court to deal with local election disputes as well as reform to the recruitment process.

The Indonesian public has quickly become accustomed to the idea of state responsibility as a social contract, and the expectations for sound governance that come with that, which makes it all the more frustrating when political, military, and judicial power vested by the people is wielded illegitimately.

The rise of rights and justice based civil society organisations, open media, and the success of Indonesia’s anti-corruption KPK, have put many of the oligarchy on edge, who have responded by pushing back, such as with the restrictive Mass Organisations (ORMAS) Bill, but the positive cycle of pluralistic, inclusive institutions who are held accountable, has taken root.

This is why it was a shocking disappointment that the Constitutional Court, long seen as competent, was thwarting the outcomes of democratic elections.

According to the survey of 200 state administrative experts, not one of Moktar’s rulings was satisfactory, yet Zoelva made headlines this week for supporting Moktar’s decision regarding the Bali gubernatorial elections earlier this year. Zoelva said voting by proxy was legitimate and likened it to a traditional tribal system used in Papua.

A voter cannot be represented by another person when casting his or her vote as this is contradicts both international law and Indonesian electoral law due to the potential for fraud, vote buying, and multiple voting.

Now Zoelva wants to restrict the public attending trials, which is also a breach of the law as the court must be open to the public in all non-judicial conferences, and decisions reached without being open to the public are not binding.

PDI-P lawmakers have called for a review of all rulings made under Moktar but this was rejected by the Constitutional Court Justices.

People are rightly wondering if Moktar acted alone and how the use and abuse of power is so difficult to eradicate when there are such huge profits to be made merely from controlling power.

Justices’ political affiliations and past political involvements come with loyalties and mean that they may still owe supporters, particularly as Indonesian elections have substantial price tags and consist of making promises, pledges, and favours that might take many years to repay.

President Yudhoyono enacted an emergency law, Perppu, to restore trust in the court, yet this illustrates the fragile balance inherent in establishing democracy, where too much power in any one place undermines crucial check and balances.

By removing authority from the judiciary, the executive removes not just credibility but checks and balances on its own power.

The Perppu has had five formal requests for judicial review. Yet the process itself for review comes under the Constitutional Court, which will argue that the law was not in response to emergency.

While the current focus is on the verdicts of local elections, the Constitutional Court also rules on administrative laws and local bylaws purportedly in breach of the constitution. Once these laws are passed it is highly difficult to reverse them.

Setara Institute Chairman Hendardi said that the Constitutional Court has adequately exercised its authority in conducting judicial reviews of contentious laws and regulations, but with many of these contentious laws involving local taxes, and with over 800 dubious laws waiting on review, it would not be surprising to learn that vested interests have bribed beneficial outcomes in this area of activity too.

Lauren is a freelance journalist and human rights student.