Historicity of the Establishment of the Constitutional Court

    Before the formation of the MK as stated in Article 24C of the 1945 Constitution, there was a fairly heated debate in the MPR Annual Session regarding this constitutional court institution. In the 2000 and 2001 Annual Sessions, there were three main ideas regarding the position of the MK. The three thoughts are: (i) the MK is part of the MPR, (ii) the MK is attached to or becomes part of the Supreme Court, and (iii) the MK is independently positioned as an independent state institution.[3] Collectively, these three thoughts overlap and place different proportionality of independence and impartiality of the MK.

    The idea of integrating the MK into the internal body of the MPR is a form of injury to the independence and impartiality of the MK. The MPR as an institution that is thick with political elements and covers the legislative field, the formation and amendment of the constitution, is very unlikely to be united with the MK as a judicial institution. John Adler said, as quoted in “Introduction to Constitutional Law” (Asshiddiqie, 2009: 310), “The principle of separation of powers is particularly important for the judiciary”. Thus, the formation of the MK as part of the MPR is very contradictory to the principle separation of power.

    If viewed from another side, it will appear that the institutional merger of the MK into the MPR also includes an injury to institutional independence. Djohansjah includes institutional independence as an aspect that must be fulfilled in order for the definition of “Independent” to be realized. Djohansjah also explained that what is meant by institutional independence is that there is no influence from other institutions, especially the executive and legislative, which interferes with the independence of judicial power (Usman, 2020: 130). The non-establishment of the MK as part of the MPR is a form of commitment to upholding the independence and impartiality of the MK as a constitutional court.

    The next idea is the formation of the MK as part of the Supreme Court. In contrast to the previous idea which made the MK part of the MPR, this idea is more rationally acceptable to law considering that the Supreme Court is also a judicial institution. The role of the Supreme Court as a court will certainly not influence the MK with political elements, which will occur within the internal scope of the MPR as a political institution. Starting from the statement above, the Supreme Court and the MK are not entirely the same considering that the scope of authority of the two institutions is different from each other. The Supreme Court is more identical with court of justice while the Constitutional Court is more identical to court of law (Huda, 2021: 213).

    In addition to being diametrically opposed in terms of scope of authority and form, the Constitutional Court and the Supreme Court also differ in terms of institutional nature. Unlike the Supreme Court, the Constitutional Court is quasi judicial so that in carrying out its functions and authorities it does not purely adhere to the principles that apply in ordinary courts. Thus, it is not appropriate to place the Constitutional Court as part of or equivalent to the Supreme Court.[4]

    In addition, the factor behind the establishment of the Constitutional Court separately from the Supreme Court is that the Court should not be under another Court. The word Court should be used by institutions that have the position, duties and authorities that are supreme or the highest in the judicial environment. Another factor is that the Constitutional Court focuses on the professionalism of judges in handling constitutional and state affairs and avoids the accumulation of case burden in the Supreme Court.[5]

    Based on the explanation above, it can be examined and seen how the spirit of establishing a constitutional court institution that has high independence and impartiality. The constitutional court institution as a new institution is strictly guarded so that it is not affected by tendentious effects that can affect the independence and impartiality of constitutional judges. The spirit contained in the post-amendment constitution is delegated to the law as a derivative rule in order to regulate further. This arrangement is contained in the Constitutional Court Law, namely Law Number 24 of 2003 as amended by the latest amendment with Law Number 7 of 2020.

    Dynamics of the Independence of the Constitutional Court

    The first normative foundation that is the antecedent of the legitimacy of the establishment of the Constitutional Court as guardian of constitution is Law Number 24 of 2003 which in its consideration mentions Article 24C of the 1945 Constitution. Specifically, the Law a quo is categorized as an attributive legal norm because it receives orders from the constitution directly to regulate the appointment, dismissal, and other provisions regarding the Constitutional Court.[6] The delegation to laws by this constitution occurs because the regulations stipulated by the constitution are only limited to the outline; such as the authority, obligations, and composition of the Constitutional Court Justices. This outline is presupposed as a final and valid norm that binds the detailed rules below (Jimly Asshiddiqie, M. Ali Safa'at, 2021, pp. 90-91).

    One aspect that is regulated in more detail in the Constitutional Court Law that is not regulated in the 1945 Constitution is the term of office of the Justices. In constitutional practice, the model of the Justices' term of office has experienced a shift in dynamics from various models, from a periodization model to a retirement period. Even in the Fourth Revised Constitutional Court Bill, the model of the Justices' term of office is added with the requirement to obtain approval from the proposing institution.[7]

    The historicity of the Constitutional Court Law above shows how the normative transformation of political products affects the appearance of the Constitutional Court as a judicial institution. The composition of the Constitutional Court Justices within the internal body of the Constitutional Court has experienced turmoil due to requirements that are too dynamic and political. The dynamics of the revision potentially constitute a form of interventive extension of the legislature into the body of the law-reviewing institution. Furthermore, this Bill could impact three Constitutional Court Justices; namely Saldi Isra, Enny Nurbaningsih, and Arief Hidayat because all three issued legal considerations in the form of dissenting opinion.[8]

    In the Academic Paper of the 2016 Constitutional Court Bill, it is mentioned that the arrangement of the term of office periodization has the potential for intervention or deviation in the re-appointment of constitutional justices by interested parties. The consequence is that the Constitutional Court will enter into the politic institutional environment.[9] The proposing institution, which is dominated by political interests, namely the President and the DPR, can easily restructure the Constitutional Court Justices based on their political interests.

    In addition to the problem of periodization, another controversial article is the approval from the proposing institution. Approval from the proposing institution as a condition for the continuation of the term of office of a Constitutional Court Justice greatly violates the principles of independence and impartiality of the judicial institution. The principles of independence and impartiality of the Constitutional Court Justices will be influenced by the political desires of the proposing institution. For example, if a Constitutional Court Justice decides a case that does not support the political desires of the proposing institution, then the proposing institution will not give approval for the justice concerned to continue his term of office. Furthermore, the justice concerned is very likely to be dismissed as in the case of Justice Aswanto, which, as quoted from Bambang Wuryanto, the dismissal was very thick with politics.[10]

    Bagir Manan mentioned that one of the main conditions for guaranteeing the independence of judges is the aspect of the judge's term of office (Usman, 2020: 112). The regulation of the term of office of Constitutional Court Justices must be guaranteed by providing concrete and definite limitations so that a Constitutional Court Justice feels safer in carrying out his duties without worrying that he will be dismissed at any time (Usman, 2020: 113). Maintaining the principles of independence and impartiality of judges is oriented towards preventing and prohibiting all forms of intervention from powers outside the judicial power. All forms of actions taken by judges must be solely according to the law, not according to a group or individual (Usman, 2020: 114).

    References

    • Asshiddiqie, J. (2009). Introduction to Constitutional Law. Depok: Rajawali Pers.
    • MPR RI Assessment Body. (2017). Checks And Balances In The Indonesian Constitutional System. MPR RI Assessment Body.
    • Buana, M. S. (2023). Comparative Constitutional Law: Philosophy, Theory, and Practice. East Jakarta: Sinar Grafika.
    • Hady, N. (2016). Theory of Constitution & Democratic State. Malang: Setara Press.
    • Huda, N. (2021). Indonesian Constitutional Law. Depok: Rajawali Pers.
    • Jimly Asshiddiqie, M. Ali Safa'at. (2021). Hans Kelsen's Theory of Law. Jakarta: Konstitusi Press.
    • Ministry of Law and Human Rights. (2016). Academic Paper of the Draft LawConcerning the Constitutional Court of 2016. Ministry of Law and Human Rights. Magnis-Suseno, F. (2023).
    • Political Ethics: Basic Moral Principles of Modern Statehood. Jakarta: Gramedia Pustaka Utama. Palguna, I. D. (2020).
    • Palguna, I. D. (2020). The Constitutional Court & The Political Dynamics of Law in Indonesia. Depok: Rajawali Press.
    • Usman, A. (2020). The Independence of Judicial Power (Forms and Relevance for Law Enforcement and Justice in Indonesia). Depok: Rajawali Pers.

    [1] Article 1 paragraph (2) of the 1945 Constitution Before the Amendment

    [2] Article 1 paragraph (2) of the 1945 Constitution Third Amendment

    [3] Drafting Team of Comprehensive Manuscript, Comprehensive Manuscript of the Amendment to the Constitution of the Republic of Indonesia Book VI Judicial Power Jakarta: Secretariat General and Registrar of the Constitutional Court, 2010, p. 443

    [4] Ibid

    [5] Ibid, p. 461-462

    [6] Article 24C paragraph (6) of the 1945 Constitution Third Amendment

    [7] Ady Thea DA (2024) “Former Chief Justice of the Constitutional Court: The Fourth Amendment Bill to the Constitutional Court Law Threatens the Rule of Law”; accessed on June 22, 2024 from https://www.hukumonline.com/

    [8] BBC NEWS Indonesia (2024) “Revision of the Constitutional Court Law 'retaliation for three judges who expressed dissenting opinions' in the 2024 Presidential Election dispute”; accessed on June 22, 2024 from https://www.bbc.com/indonesia

    [9] Ministry of Law and Human Rights. (2016). “Academic Paper on the Draft Law on the Constitutional Court in 2016”. Ministry of Law and Human Rights, p. 52

    [10] Fitria Chusna Farisa (2024) “Aswanto's Figure, a Constitutional Court Judge Who Was Suddenly Dismissed for Frequently Annulling DPR Products”; accessed on June 22, 2024 from https://nasional.kompas.com/