AustLII Home | Databases | WorldLII | Search | Feedback

University of New South Wales Law Journal Student Series

You are here:  AustLII >> Databases >> University of New South Wales Law Journal Student Series >> 2021 >> [2021] UNSWLawJlStuS 31

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Hwang, Jessica --- "A Democratic Constitutional Court In Indonesia: Judicial Independence And The Appointment Process" [2021] UNSWLawJlStuS 31; (2021) UNSWLJ Student Series No 21-31


A DEMOCRATIC CONSTITUTIONAL COURT IN INDONESIA: JUDICIAL INDEPENDENCE AND THE APPOINTMENT PROCESS

JESSICA HWANG

I INTRODUCTION: OWEN FISS & JUDICIAL INDEPENDENCE

An assumption that underlies discussions about judiciaries, particularly in regimes that have transitioned from dictatorship to democracy, is that every effort must be made to ensure judicial independence.[1] This assumption is reflected in international standards with independent judiciaries being described as of the ‘highest value in every society’ and an ‘essential pillar of liberty and the rule of law’.[2] The United Nations has also formulated basic principles to assist members secure and promote judicial independence, specifically calling for it to be enshrined in the Constitution or the law of the country.[3]

Owen Fiss, however, believes that the concept of judicial independence in the context of democracy is far more complex than it first appears.[4] In his paper, ‘The Right Degree of Independence’, Fiss outlines three forms of independence: party detachment, individual autonomy and political insularity.[5] He argues that although achieving all forms of independence may be recognised as a ‘cardinal virtue’, a judiciary that is completely insulated from legislative and executive branches can interfere with the decisions of the elected government, thereby frustrating the will of the people.[6] Too much independence can be a threat to popular sovereignty – a fundamental principle of democracy that ensures the powers of government are given by the people for the benefit of the people.[7] Fiss observes that in order to minimise these tensions between judicial independence and popular sovereignty, independence needs to be ‘optimised’ by a balance with sufficient judicial accountability measures.[8] Indeed, international standards have acknowledged that a degree of involvement by the executive, the legislature and the public is essential for democratic accountability to be respected and upheld.[9]

This paper will endeavour to apply Fiss’ theory to the fairly new democratic regime in Indonesia. In particular, it will examine the appointment process of Indonesia’s Constitutional Court justices. This process has direct bearing on the independence and integrity of a Court which until around 2013, had been praised as a vital instrument to the country’s post-Suharto transition to democracy.[10] It is important to acknowledge Fiss’ positionality as an American scholar whose discourse is centred around transitional regimes within Latin America. His arguments are informed by the history of the US judicial system and the principle of popular sovereignty that is ingrained in the US Constitution.[11] As such, it may be questionable whether Fiss’ ideas are relevant to Indonesia and its history of dictatorship. Fiss himself stresses that it would be a grave mistake to associate his views with countries that have led entirely different histories without giving sufficient critical thought.[12] But with growing corruption and problematic appointments undermining public confidence in the integrity of the Indonesian Constitutional Court,[13] Fiss’ views towards reinstating faith in courts as institutions of justice and limited power may in fact be greatly applicable.[14] Given Fiss has been described as one of the great constitutional scholars of his generation,[15] applying his theory to Indonesia may be a worthwhile analysis.

Part III of this paper will examine key appointments that have been made by the President and the People's Representative Council of Indonesia (the ‘DPR’) which have led to increasing concerns of corruption and political influence in judicial appointments. In response to these concerns, Indonesia has made multiple attempts to improve the judicial appointment process through legislative reforms to the Constitutional Court Law. The outcome of these efforts, however, demonstrate that priority has been given to securing the Court’s political insularity at the expense of judicial accountability. As such, this paper will suggest ways to improve the Court’s accountability to the public, focusing on enforcing greater transparency and public participation in appointment processes. The importance of these measures is signified by the fact that in many instances within the country’s history, the most important defenders of democracy have been Indonesia’s civil society and NGOs.[16] Indeed, Fiss’ theory appears to be ringing true in Indonesia. In order for the Constitutional Court to become a truly democratic institution that has the respect of the people it was created to serve, a balance needs to be struck between securing independence and increasing judicial accountability.

II OVERVIEW OF INDONESIA’S CONSTITUTIONAL COURT

Since his rise to power in 1965, Indonesia’s former president, Suharto, maintained ‘unlimited’ power through the 1945 Constitution which conferred key executive, legislative, judicial and national security powers to the president.[17] Indonesia’s armed forces also supported the foundations of Suharto’s regime. Namely, the belief that economic developments must take priority and in order for this to be achieved, social and political stability must be maintained.[18] Thus, from the mid-1960s, President Suharto and the military created a regime that focused on enforcing a high degree of ‘social order’ across the state with the Constitution providing little to no checks and balances on the President’s exercise of power. By issuing Act No. 14 of 1970, Suharto hampered the implementation of an independent judiciary – assigning all administrative matters to the Ministry of Justice, rather than an independent judicial body.[19] Indeed, under Suharto‘s dictatorship, Indonesia’s Supreme Court had no authority to exercise constitutional interpretation and judicial review of the laws passed by Parliament.[20]

As such, after Suharto was forced to resign in 1998, a key focus for reforms to the 1945 Constitution was securing judicial and institutional independence. Specifically, the establishment of a fair and independent judiciary willing to hold political actors accountable to legal and constitutional protections.[21] The Constitution saw four amendments from 1999-2002, of which the Third and Fourth Amendments are the most significant for the purposes of this paper. In particular, they established Indonesia’s Constitutional Court and conferred power of judicial review and constitutional interpretation to this new institution.[22] Where the amendments of 2000 had introduced an extensive bill of rights into the 1945 Constitution, there was now a powerful institution that could enforce these rights independently from the state.[23] Article 24C(1) of the Constitution now provides that the Court, among other powers, possesses final authority in reviewing laws against the Constitution and resolving conflicts of authority between state institutions.[24] Further, Article 24 of the Constitution and Article 2 of the Constitutional Court Law guarantees that these powers will be exercised independently and for the purpose of enforcing law and justice.[25]

Undoubtably, there is a strong relationship between judicial independence and the foundations of Indonesia’s Constitutional Court. The Court has played an essential role in Indonesia’s transition to constitutionalism and democracy, and generally speaking, has earned public trust for the way in which its processes were developed and operated.[26] Particularly in its early years, the Constitutional Court had earned the respect of Indonesia’s citizens with its decisions being largely accepted as final and binding by the government, the parliament and state institutions. [27] However, with the arrest of Akil Mochtar and other problematic judicial appointments as discussed in Part III, the strength and integrity of the Court has diminished. This decline is demonstrated by instances where the Court’s decisions have been ignored, such as in 2014 when the Supreme Court issued a circular that overrode the Court’s ruling that criminal cases can be reviewed more than once.[28]As a body that was founded on the intention to achieve independence, it is clear that when there are threats to its integrity, Indonesia will wish to respond by prioritising the restoration of the Court’s position as an honourable, independent judicial institution.

III THE APPOINTMENT PROCESS OF CONSTITUTIONAL COURT JUSTICES

This response was made especially clear in Indonesia’s efforts towards improving the Constitutional Court’s appointment process. Article 24C(3) of the 1945 Constitution provides that the Court shall be composed of nine justices where the Supreme Court, the DPR and the President will appoint three each.[29] This framework has two key advantages. First, in theory it is an ‘ideal checks and balances mechanism’ – building trust amongst the three branches of power and conferring greater political legitimacy to the appointed justices and the decisions that they make.[30] With equal representation of all three branches of power, the composition of the Court ensures that no single institution’s interests are favoured over another. Ginsburg observed that in such systems, usually no branch of power appoints justices that are overly sympathetic to their own interests because the other branches can also respond by appointing loyal partisans.[31] Second, this selection model is advantageous for ensuring that the Court is comprised of people with varied backgrounds. A bench with homogenous views and expertise is highly undesirable for resolving the complex political and constitutional issues that the Court oversees.[32] From this perspective, the judicial appointment process for Constitutional Court judges appears to not only reflect the philosophy of the separation of powers, but also seeks to ensure the strength and political legitimacy of the institution.

In practice, however, this framework for judicial appointments is not as sound as it is in theory. Indonesia’s Constitutional Court Law allows each nominating institution to regulate the selection of their respective justices but does not provide detail on how this should be done in order to promote objectivity and accountability.[33] The Law only provides a general statement that the nomination of candidates is to be conducted in a ‘transparent’ and ‘participatory manner’.[34] The explanatory memorandum for Article 19 provides that these terms mean that proposed candidates must be announced in print and electronic mass media so that the community may observe and comment on them.[35] Despite this, the three branches of power appear to have made their own interpretations of these terms – continuing to exercise different versions of closed, internal mechanisms for judicial appointments. The Court Monitoring Coalition, an NGO working on legal reform, has also criticised Indonesia’s lack of standard procedure for appointments as this means that transparency and participation are generally denied.[36]

Further concerns have been raised about the vulnerability of the current appointment framework to political influence, particularly in regards to the appointments made by the President and DPR. [37] Fiss acknowledges that judges may be sovereign in the sense of speaking the law and articulating the rights of citizens, but in order for their decisions to have actual enforcement power, courts are inescapably dependent on the legislature and the executive.[38] Despite the observations made by Ginsberg, it is questionable whether justices are actually experts who can best perform their role, or if they are only there to represent the political forces of the three institutions.[39] Jurists and commentators believe that an essential requirement for maintaining both accountability and confidence in the political insularity of the Court is complete openness and transparency in the selection process.[40] However, by giving complete authority to the three branches of power in regulating their own appointments, the Constitutional Court Law has led to issues of inconsistency and non-accountability.

The only form of constraint to the authority of the three nominating institutions are the constitutional and statutory requirements for appointment. Article 24C(5) of the Constitution states that judges of the Constitutional Court must possess integrity, be of an impeccable personality, have a strong understanding of the Constitution and public administration, and must not hold any position as a state official during their service to the Court.[41] In essence, they must be fundamentally ‘fit and proper’ to hold the role as a Constitutional Court judge. These requirements are reinstated in the Constitutional Court Law with the addition of further prerequisites in Article 16.[42] Notably, the only statutory requirements that have remained consistent since the Constitutional Court Law’s enactment in 2003 are that judges must be Indonesian citizens and hold a degree in law. They have otherwise largely been the subject of continuous amendment, the most recent being in September 2020. This is discussed further in Part IV. In order to understand why ongoing reforms to the statutory requirements have been necessary, it is important to examine the growing concerns of corruption that have arisen from key appointments made by the President and DPR.

A The President

In 2008, President Susilo Bambang Yudhoyono (‘President SBY’) formed an independent Selection Committee to publicly announce registration for the Constitutional Court judge position, perform ‘fit and proper’ person tests for all candidates and recommend their selection for appointment by the President.[43] However, in 2013, when selecting Patrialis Akbar as a Constitutional Court justice and re-appointing Justice Maria Indrati for a second term, the President did not form an independent Selection Committee and simply issued a Presidential Decision.[44] The public response to this Presidential Decision is a key demonstration of why Mietzner observes that within Indonesia’s history, civil society has been the most important defenders of the country’s democracy.[45] NGO activists known as the ‘Coalition to Save the Constitutional Court’ viewed the decision as a violation of the principles of transparency and public participation required under the Constitutional Court Law. They filed a lawsuit with the Jakarta State Administrative Court (‘PTUN’).[46] The PTUN initially ruled in favour of the legal activists, annulling the appointment of Akbar and Indrati.[47] However, a year later, the justices’ application for appeal was accepted.[48] Indrati continued to serve her second term as one of the few justices with outwardly progressive views and the only woman among the Court’s nine members.[49] Akbar, however, continued to serve until 2017 when he was found guilty by the Jakarta Corruption Court for accepting monetary bribes in connection to a judicial review petition.[50] Interestingly, in his application to the PTUN, Akbar argued that failure to appeal the withdrawal of his appointment would ‘endanger the court.’[51] If the decision had remained, the Court at the time would have had less than the seven judges required to render a decision on any case.[52] However, Akbar was perhaps one of the most controversial appointments to the Court. By prioritising personal gains from his position as a Constitutional Court judge, he in fact was the greatest danger to the Court and its status of integrity in Indonesia.

As a result, when it came to appointing the new generation of Constitutional Court justices, the current President Joko Widodo (‘President Jokowi’) was sure to re-establish an independent selection committee to conduct the appointment process.[53] The process undertaken for the replacement of Akbar with the new Constitutional Court judge, Saldi Isra, is a clear example of the principles of transparency and participation being prioritised. The selection panel was broad, consisting of former Constitutional Court judges to esteemed lawyers and professors.[54] There was also an open nomination period, administrative screenings, publicly held interviews and processes by which members of the public and other organisations could submit reports on the track record of candidates.[55] Fiss disputes the notion that judges who are appointed by the President are independent of politics, arguing that presidents will inevitably select someone whose concept of justice is similar to their own and who is more likely to accept the policies of their administration.[56] Whilst this may be true, the appointment of Saldi Isra signified a step closer towards achieving the balance between judicial independence and accountability required to protect the public’s confidence in the Constitutional Court.

B The DPR

When the Constitutional Court was first established in 2003, the DPR was the only body to enforce a formal process by which it appointed its justices. Each DPR faction proposed candidates who were screened by the DPR Commission.[57] Their names were then released to the public for comment in addition to carrying out ‘fit and proper’ tests and a plenary session to approve the chosen justices.[58] In contrast to the other branches which did not explain how their candidates fulfilled the requirements for appointment, the DPR’s selection process was considered to be the most transparent with mass media coverage and live broadcasting.[59] Nevertheless, the DPR’s process has been criticised for the potential to be influenced by the political party affiliations of each candidate.[60] The 1945 Constitution’s Transitional Provisions provide that all laws remain in effect until replaced by new laws that conform with the Constitution.[61] The implication of this provision is that the decisions made by the Court can override the statutes of the DPR. As such, it is plausible that DPR members will want to make judicial appointments that align with their political beliefs in order to avoid Constitutional Court decisions threatening their legislative prerogatives.

These criticisms were exacerbated by the rise of internal corruption with the arrest of Akil Mochtar, the Chief Justice of the Constitutional Court at the time. Mochtar was arrested by the Corruption Eradication Commission (‘KPK’), an independent body with supervisory and investigative powers over state institutions, for accepting hefty bribes in exchange for favourable rulings in regional electoral disputes.[62] Notably, one of these “bribe payers” was a politician from the Golkar party – the political party in which Mochtar had been an active member before becoming a Constitutional Court judge.[63] In response, acting again as the greatest protectors of democratic values, Indonesia’s civil society raised significant criticisms against law enforcement in Indonesia and in particular, the DPR who had appointment Mochtar to his position.[64] Their concerns were also fuelled by the fact that Mochtar had been permitted to bypass any ‘fit and proper’ tests before being re-selected for his second term.[65] Former justices of the Court have argued that Chief Justices should not need to reapply and re-sit the fit and proper test and rather, only their performance and ‘track record’ should be used to assess their competence as Constitutional Court justices. [66] However, in the case of Mochtar, it is clear that excusing him from a re-examination of his fitness as a justice was a significant oversight. Although this incident may not be objective evidence for the assertion that DPR members tend to appoint justices directly in accordance with their political beliefs, it does highlight the need for greater consistency in selection processes and the monitoring of political affiliations when screening judicial candidates. Although the KPK successfully ensured a life sentence for Mochtar,[67] the damage to the Constitutional Court’s reputation as an independent institution and an integral pillar to Indonesia’s democracy had already been done.

Further adding to the damage done by Mochtar to the Constitutional Court is the ongoing intermingling of politics and judicial appointments. Specifically, there is evidence of judicial candidates lobbying DPR members for their appointment and re-appointments to the Court. Former-Chief Justice, Arief Hidayat, has been alleged to have lobbied a number of politicians to extend his term of office.[68] He allegedly threatened that if his term was not extended, he would be replaced by Saldi Isra who is renowned for his support of the KPK.[69] Hidayat was also alleged to have offered promises that if he continued to lead the Constitutional Court, he would give the DPR permission to examine the KPK, which is likely to have been motivated by the DPR’s ongoing pursuit to weaken the KPK’s investigatory powers. [70] These allegations came to light after the oral reprimand issued by the Court’s Honour Council as a result of a finding that Hidayat had breached the code of conduct.[71] Although this sanction by the Council was in line with regulation, a stricter approach was required to restore public confidence in a Court that was already facing criticisms for its record of problematic justices. In agreement with Hosen, Hidayat should have otherwise resigned from his position in the interests of the Court’s integrity.[72]

IV AMENDMENTS TO THE CONSTITUTIONAL COURT LAW

A The 2013 Interim Emergency Law

With corruption threatening the Court’s integrity as an independent judicial institution, it is possible to make the argument that Fiss’ theory on ‘optimising’ judicial independence does not apply to Indonesia and maximising political insularity should be its only priority. However, this would be a premature conclusion, particularly in light of the 2013 Interim Emergency Law which did in fact strive to reinstate a balance between judicial independence and accountability. When Mochtar was dismissed, President SBY issued the Emergency Law, which sought to make three key amendments to the requirements for judicial appointment.[73] First, all candidates must undergo a ‘fit and proper’ test conducted by an Expert Panel. Second, a permanent Constitutional Court Honour Council must be established to investigate allegations of judicial misconduct. Finally, candidates must not have been a member of a political party for seven years prior to being nominated as a Constitutional Court judge.[74] The Law stipulated that the establishment of both the Judicial Honour Council and the Expert Panel would involve the Judicial Commission, a body with authority to enforce codes of conduct and oversee the behaviour of justices.[75] The involvement of the Judicial Commission exemplified a potential mechanism whereby the political insularity of justices could be secured whilst also improving the accountability of the Court and its nominating institutions.

However, within only a few months of its enactment, the Constitutional Court invalidated the President’s emergency amendments. According to Butt, the Court’s findings were both justifiable and constitutionally correct.[76] With respect to the first amendment, by creating an Expert Panel consisting of Judicial Commission members and only one representative from each branch of power, the Law was seen to be reducing authority given to nominating institutions under Article 24C(3).[77] Specifically, this article gives the President, DPR and Supreme Court absolute discretion in choosing their justices. It further implies that the involvement of other state institutions in this process cannot be imposed by statute.[78] In regards to the second amendment, the role of the Judicial Commission in establishing a permanent Judicial Honour Council was also contested on the grounds that the Commission did not have jurisdiction to supervise the Constitutional Court, referring to the decision in Supreme Court v Judicial Commission.[79] Despite the importance of Honour Councils in overseeing judicial behaviour, the invalidation of this amendment has meant that these Councils continue to operate but only on an ad-hoc basis.[80] Finally, the third key amendment to the political party requirement for candidacy was also held to be in breach of the Constitution. In particular, it was found to violate Constitutional provisions which prohibit discrimination and entitle citizens to participate in government.[81] The Court also considered the fact that introducing this requirement in response to Mochtar and his prior relationship with the Golkar party was an indication of ‘political stigma’ and a demonisation of those involved in politics.[82] Despite the efforts of the Emergency Law in imposing measures of accountability, its invalidation has significantly limited the role of the Judicial Commission to merely providing ‘moral’ controls and investigating judicial behaviour with no enforcement power.[83] As a result, the procedures by which Constitutional Court judges are monitored and disciplined are largely internal through codes of conduct and ad-hoc Honour Councils.[84] However, the insufficiency of these processes is made most apparent in the case of Hidayat as discussed in Part III.

B The 2020 Amendments

On the 1st of September 2020, the DPR passed revisions to the Constitutional Court Law. The revisions included raising the minimum age for justices from 47 to 55 years, increasing the maximum judicial term to 15 years (where previously the limit was 5 years with possible re-appointment for a second and final 5-year term) and allowing justices to hold their position until the age of 70 (10 years longer than previously permitted).[85] Removing the possibility of reappointment altogether is likely to resolve the issue of inconsistent reappointment processes and the debates around whether existing justices should need to reapply. Further, these amendments have brought Indonesia’s requirements for appointment and security of tenure closer to international expectations for judicial independence. According to the International Association of Judicial Independence and World Peace, judicial appointments should generally be for life, subject to dismissals and compulsory retirement at a fixed age.[86] By giving justices certainty of tenure, it is arguable that the Court can make truly independent decisions that are free from political influence and the government bodies who appoint them.

These amendments were not without the criticism of Indonesia’s persistent civil society groups and activists.[87] Specifically, some critics believe that the amendments were a ‘gift’ to the Court’s current justices, intending to persuade them to side with the DPR in upcoming reviews of controversial legislation.[88] Most concerning of these criticisms is that the amendments appear to have increased judicial terms without any improvements to accountability, which is particularly problematic for an institution that has been criticised for corruption over the past several years. This is made pertinent by amendments which appear to have removed the provisions that sets out sanctions issuable by the Constitutional Court Honour Council against errant judges.[89] It is possible to interpret this change as removing the power of the Council to dismiss judges for misconduct altogether.[90] At the same time, however, the amendments also removed all three nominating institution representatives from the Council. By removing the formal powers of the Government and Legislature in the investigation of errant judges, the amendments appear to have deterred the possibility of political influence on decisions of judicial dismissal. It is early to predict how these changes will actually affect the operations of the Court and its appointment processes. However, the overall impression from the 2020 amendments is that priority has been given to protecting the Court’s image of judicial independence whilst simultaneously weakening its internal processes for supervision and discipline.

V SUGGESTED IMPROVEMENTS TO THE COURT’S APPOINTMENT PROCESS

The result of invalidating the 2013 Interim Emergency Law in addition to enacting the 2020 amendments has created a strong impression that Indonesia prioritises the Constitutional Court’s independence over measures of accountability. With the insight provided by theorists such as Fiss, it is possible to criticise these changes for not sufficiently prioritising judicial accountability and the protection of democratic values. In fact, with the rise of corruption and the demise of public confidence in a Court that was once described as a pillar of the country’s democracy, Fiss’ theory appears to be persuasive. The only way for the Court to restore its integrity and gain the respect of Indonesia’s civil society is if accountability is enforced through greater transparency and public participation in its processes. As such, potential improvements to the Court’s selection process are as follows.

Firstly, each nominating institution should create permanent and publicised procedures by which Constitutional Court justices are selected. This suggestion would bring Indonesia’s appointment processes in line with the standards for judicial independence in the Asia-Pacific region. Particularly in the absence of the Judicial Commission’s involvement, the standards provide that procedures should be clearly defined and information about them should be made available to the public.[91] Alike the process undertaken by President Jokowi in the appointment of Saldi Isra, nominating institutions should hold open registration periods, assess all candidates for whether they are ‘fit and proper’, and conduct publicly held interviews that allow members of the public, civil society groups or NGOs to submit questions and concerns about the candidate. Although the issue of inconsistency would still exist between the three branches as they continue regulating their own appointments, this improvement will ensure that exceptions to their publicised procedures are not made according to the institution’s interests at the time or the candidate in question.

The second suggestion takes inspiration from the 2013 Interim Emergency Law which attempted to enforce accountability by establishing an Expert Panel through the Judicial Commission. Rather than involving the Judicial Commission, individual ‘expert panels’ should be established by the President and DPR and used consistently in all of their appointments. These panels should consist of members of society such as professors and lawyers in order to act as a safeguard against improper influences being taken into account in selection processes.[92] By providing broad and extensive opportunity for transparency and participation early in the appointment process, these suggestions will not only protect against political influences, but will also ensure that the authority of the nominating institutions is held to account by the public – the most important defenders of Indonesia’s democracy.[93]

VI CONCLUSION

Owen Fiss believes that striving for judicial independence at the expense of judicial accountability is a threat to key democratic values. In the beginning of Indonesia’s transition to democracy, the key motivation for the Constitutional Court was to create an independent judicial body that would assist in avoiding another Suharto-like dictatorship. However, with growing concerns of corruption and instances of problematic judicial appointments, maximising judicial independence no longer seems sufficient in maintaining the Court’s integrity. In accordance with Fiss’ theory, in order to protect the Court’s integrity as an institution representing the country’s democratic values, improvements must be made to the processes by which justices and their nominating institutions are held accountable. A key opportunity for ensuring judicial accountability is to start as early as the selection process. Indeed, it is widely accepted that in order to maintain both accountability and public confidence in the political insularity of the judiciary, complete and continuous openness and transparency in the selection process is required.[94] Whilst working within the framework that currently governs judicial appointments, the suggestions provided in Part V aim to ensure that the appointment process allows for public comment and scrutiny. These suggestions are arguably true representations of what was meant by nominations occurring in a ‘transparent’ and ‘participatory manner’ as required under the Constitutional Court Law. Throughout the country’s history, Indonesia’s civil society and NGOs have played an essential role in protecting the country’s democracy. Thus, their participation within the appointment process only makes sense in order for the Court to restore public faith in its integrity and to continue acting as a pillar of Indonesia’s democracy.

VII BIBLIOGRAPHY

A Articles/Books/Reports

Ali Akkas, Sakar, ‘Appointment of Judges: A Key Issue of Judicial Independence’ [2004] BondLawRw 17; (2004) 16(2) Bond Law Review 200

Butt, Simon. The Constitutional Court and Democracy in Indonesia (Brill Nijhoff, 2015)

Butt, Simon, Melissa Crouch and Rosalind Dixon, ‘The First Decade of Indonesia’s Constitutional Court’ (2016) 16(2) Australian Journal of Asian Law 1

Faiz, Pan Mohamad, ‘A Critical Analysis of Judicial Appointment Process and Tenure of Constitutional Justice in Indonesia’ (2016) 2(2) Hasanuddin Law Review 152

Fiss, Owen, ‘Perspective: The Limits of Judicial Independence’ (1993) 25(1) University of Miami Inter-American Law Review 57

Fiss, Owen, ‘The Right Degree of Independence’ in Irwin Stotzky (ed), The Transition to Democracy in Latin America: The Role of the Judiciary (Westview Press, 1993)

Ginsberg, Tom, Judicial Review in New Democracies (Cambridge University Press, 2003)

Harding, Andrew and Peter Leyland, ‘The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia’ (2008) 3(2) Journal of Comparative Law 118

Hosen, Nadirsyah, ‘The Indonesian Courts: From Non-Independence to Independence without Accountability’ in Hoong Phun Lee and Marilyn Pittard (ed), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge Press University, 2017) 186

Kingsbury, Damien, Power Politics and the Indonesian Military (RoutledgeCurzon, 2003)

Mahfud MD, Mohammad, ‘Separation of Powers and Independence of Constitutional Court in Indonesia’ (Conference Paper, 2nd Congress of the World Conference on Constitutional Justice, 16-18 January 2011)

Mietzner, Marcus, ‘Indonesia’s democratic stagnation: anti-reformist elites and resilient civil society’ (2012) 19(2) Democratization 209

Muhammad, Asrun, ‘The Crisis of Judicial Independence in Indonesia under Soeharto Era’ (2015) 3(8) Scientific Research Journal 6

Patrick, John, Understanding Democracy: A Hip Pocket Guide (Oxford University Press, 2006).

Stotzky, Irwin, ‘The Constitutional Scholar’ (2003) 58(1) University of Miami Law Review 1

B Cases

Jakarta High Administrative Court Decision No. 55/B/2014/PT.TUN.JKT (Jakarta High Administrative Court)

Constitutional Court Decision 005/PUU-IV/2006 (Indonesian Constitutional Court)

C Legislation

Constitution of the Republic of Indonesia 1945

Government Regulation in Lieu of Law Number 1 of 2013 on the Second Amendment to Law Number 24 of 2003 on the Constitutional Court (Indonesia)

Law No. 24 of 2003 on the Constitutional Court (Indonesia)

Law No. 30 of 2002 on the Commission for the Eradication of Criminal Acts of Corruption (Indonesia)

D Other

Afra Sapiie, Marguerite, ‘Committee created to find replacement for only female’, The Jakarta Post (online, 17 April 2018) <https://www.thejakartapost.com/news/2018/04/17/committee-created-to-find-replacement-for-only-female-mk-justice.html>

Asia-Pacific Human Rights Information Center, Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (19 August 1995)

Assegaf, Rifqi, ’20 years of judicial reform: mission not yet accomplished’, Indonesia at Melbourne (Article, 2 May 2018) <https://indonesiaatmelbourne.unimelb.edu.au/20-years-of-judicial-reform-mission-not-accomplished/>

Assegaf, Rifqi, ‘The DPR Inquiry into the KPK: what’s it really all about?’, Indonesia at Melbourne (Article, 27 July 2017) <https://indonesiaatmelbourne.unimelb.edu.au/the-dpr-inquiry-into-the-kpk-whats-it-really-all-about/>

Basic Principles on the Independence of the Judiciary, GA Res 40/146, UN GAOR (13 December 1985)

Butt, Simon, ‘The 2020 Constitutional Court Law amendments: a ‘gift’ to judges?’ Indonesia at Melbourne (Article, 3 September 2020) <https://indonesiaatmelbourne.unimelb.edu.au/the-2020-constitutional-court-law-amendments-a-gift-to-judges/>

Constitution Committee, Judicial Appointments, House of Lords Paper No 25 (2012)

‘Constitutional Court Chief, Political Lobbying, and an Alleged Ethical Offense’, Indonesia Corruption Watch (Article, 20 December 2017) <https://antikorupsi.org/en/article/constitutional-court-chief-political-lobbying-and-alleged-ethical-offense>

‘Declaration of Independence: A Transcription’, National Archives (Web Page, 4 July 1776) <https://www.archives.gov/founding-docs/declaration-transcript>

Ghaliya, Ghina, ‘House passes Constitutional Court Law revision amid public outcry,’ The Jakarta Post (online, 1 September 2020) <https://www.thejakartapost.com/news/2020/09/01/house-passes-constitutional-court-law-revision-amid-public-outcry.html>

Halim, Haeril, ‘Historic sentence for Akil’, The Jakarta Post (online, 1 July 2014) <https://www.thejakartapost.com/news/2014/07/01/historic-sentence-akil.html>

International Association of Judicial Independence and World Peace, Mount Scopus International Standards of Judicial Independence (19 March 2008)

Kahfi, Kharishar, ‘Former MK justice sentenced to 8 years in prison’, The Jakarta Post (online, 4 September 2017) <https://www.thejakartapost.com/news/2017/09/04/corruption-court-to-issue-verdict-for-former-mk-justice.html>

Leo, PJ, ‘MK chief justice, Golkar lawmaker arrested for bribery charges’, The Jakarta Post (online, 3 October 2013) <https://www.thejakartapost.com/news/2013/10/03/mk-chief-justice-golkar-lawmaker-arrested-bribery-charges.html>

‘Mahkamah Konstitusi, 58 Tahun yang Lalu,’ Hukumonline (online, 17 August 2003)

Parlina, Ina, ‘Administrative Court Strips Patrialis of MK Seat’, The Jakarta Post (online, 24 December 2013) <https://www.thejakartapost.com/news/2013/12/24/administrative-court-strips-patrialis-mk-seat.html-0>

Presidential Decision 87/P of 2013 (Indonesia)

Tanziel Aziezi, Muhammad, ‘High hopes for Saldi Isra to restore trust in Constitutional Court’, Indonesia at Melbourne (Article, 11 April 2017) <https://indonesiaatmelbourne.unimelb.edu.au/high-hopes-for-saldi-isra-to-restore-trust-in-constitutional-court/>

Tanziel Aziezi, Muhammad, ‘Is Anyone Watching the Constitutional Court Judges?’ Indonesia at Melbourne (Article, 20 October 2016) <https://indonesiaatmelbourne.unimelb.edu.au/is-anyone-watching-the-constitutional-court-judges/>

Tanziel Aziezi, Muhammad, ‘Why Indonesia’s judiciary ignores Constitutional Court decisions – and how to fix that’, The Conversation (online, 21 December 2018) <https://theconversation.com/why-indonesias-judiciary-ignores-constitutional-court-decisions-and-how-to-fix-that-104970>


[1] Owen Fiss, ‘The Right Degree of Independence’ in Irwin Stotzky (ed), The Transition to Democracy in Latin America: The Role of the Judiciary (Westview Press, 1993) 55.

[2] International Association of Judicial Independence and World Peace, Mount Scopus International Standards of Judicial Independence (19 March 2008) art 1.1.

[3] Basic Principles on the Independence of the Judiciary, GA Res 40/146, UN GAOR (13 December 1985).

[4] See Fiss, ‘The Right Degree of Independence’ (n 1).

[5] Ibid 55-56.

[6] Ibid.

[7] John Patrick, Understanding Democracy: A Hip Pocket Guide (Oxford University Press, 2006).

[8] Fiss, ‘The Right Degree of Independence’ (n 1) 58.

[9] See Mount Scopus International Standards of Judicial Independence (n 2) art 4.2.

[10] Simon Butt, Melissa Crouch and Rosalind Dixon, ‘The First Decade of Indonesia’s Constitutional Court’ (2016) 16(2) Australian Journal of Asian Law 1, 4.

[11] See ‘Declaration of Independence: A Transcription’, National Archives (Web Page, 4 July 1776) <https://www.archives.gov/founding-docs/declaration-transcript>.

[12] Fiss, ‘The Right Degree of Independence’ (n 1) 67.

[13] Rifqi Assegaf, ’20 years of judicial reform: mission not yet accomplished’, Indonesia at Melbourne (Article, 2 May 2018) <https://indonesiaatmelbourne.unimelb.edu.au/20-years-of-judicial-reform-mission-not-accomplished/>.

[14] Irwin Stotzky, ‘The Constitutional Scholar’ (2003) 58(1) University of Miami Law Review 1, 5.

[15] Ibid.

[16] Marcus Mietzner, ‘Indonesia’s democratic stagnation: anti-reformist elites and resilient civil society’ (2012) 19(2) Democratization 209.

[17] Nadirsyah Hosen, ‘The Indonesian Courts: From Non-Independence to Independence without Accountability’ in Hoong Phun Lee and Marilyn Pittard (ed), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge Press University, 2017) 186, 190.

[18] Damien Kingsbury, Power Politics and the Indonesian Military (RoutledgeCurzon, 2003) 30.

[19] Asrun Muhammad, ‘The Crisis of Judicial Independence in Indonesia under Soeharto Era’ (2015) 3(8) Scientific Research Journal 6, 6.

[20] Hosen (n 17) 189.

[21] Ibid 190.

[22] Constitution of the Republic of Indonesia 1945, art 24C (‘1945 Constitution’); See Hosen (n 17) 191.

[23] Andrew Harding and Peter Leyland, ‘The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia’ (2008) 3(2) Journal of Comparative Law 118, 123.

[24] 1945 Constitution, art 24C(1).

[25] 1945 Constitution, art 24; Law No. 24 of 2003 on the Constitutional Court (Indonesia), art 2.

[26] Mohammad Mahfud MD, ‘Separation of Powers and Independence of Constitutional Court in Indonesia’ (Conference Paper, 2nd Congress of the World Conference on Constitutional Justice, 16-18 January 2011) 7.

[27] Ibid; See Butt, Crouch and Dixon (n 10) 4.

[28] Muhammad Tanziel Aziezi, ‘Why Indonesia’s judiciary ignores Constitutional Court decisions – and how to fix that’, The Conversation (online, 21 December 2018) <https://theconversation.com/why-indonesias-judiciary-ignores-constitutional-court-decisions-and-how-to-fix-that-104970>.

[29] 1945 Constitution, art 24C(3).

[30] Pan Mohamad Faiz, ‘A Critical Analysis of Judicial Appointment Process and Tenure of Constitutional Justice in Indonesia’ (2016) 2(2) Hasanuddin Law Review 152, 153; See Harding and Leyland (n 23) 127.

[31] Tom Ginsberg, Judicial Review in New Democracies (Cambridge University Press, 2003) 45.

[32] See Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill Nijhoff, 2015) 95.

[33] Law Number 24 of 2003 on the Constitutional Court (Indonesia), art 20.

[34] Ibid art 19.

[35] See Butt, The Constitutional Court and Democracy in Indonesia (n 32) 37.

[36] Muhammad Tanziel Aziezi, ‘Is Anyone Watching the Constitutional Court Judges?’ Indonesia at Melbourne (Article, 20 October 2016) <https://indonesiaatmelbourne.unimelb.edu.au/is-anyone-watching-the-constitutional-court-judges/>.

[37] See Butt, The Constitutional Court and Democracy in Indonesia (n 32) 38.

[38] Owen Fiss, ‘Perspective: The Limits of Judicial Independence’ (1993) 25(1) University of Miami Inter-American Law Review 57, 64.

[39] ‘Mahkamah Konstitusi, 58 Tahun yang Lalu,’ Hukumonline (online, 17 August 2003) cited in Butt, The Constitutional Court and Democracy in Indonesia (n 32) 38.

[40] Sakar Ali Akkas, ‘Appointment of Judges: A Key Issue of Judicial Independence’ [2004] BondLawRw 17; (2004) 16(2) Bond Law Review 200, 201; See also Constitution Committee, Judicial Appointments, House of Lords Paper No 25 (2012).

[41] 1945 Constitution, art 24C(5);

[42] See Law Number 24 of 2003 on the Constitutional Court (Indonesia), arts 15-16.

[43] Faiz (n 30) 154.

[44] See Presidential Decision 87/P of 2013 (Indonesia).

[45] Mietzner (n 16).

[46] Faiz (n 30) 154; Ina Parlina, ‘Administrative Court Strips Patrialis of MK Seat’, The Jakarta Post (online, 24 December 2013) <https://www.thejakartapost.com/news/2013/12/24/administrative-court-strips-patrialis-mk-seat.html-0>.

[47] Parlina (n 46).

[48] See Jakarta High Administrative Court Decision No. 55/B/2014/PT.TUN.JKT (Jakarta High Administrative Court Decision).

[49] Marguerite Afra Sapiie, ‘Committee created to find replacement for only female’, The Jakarta Post (online, 17 April 2018) <https://www.thejakartapost.com/news/2018/04/17/committee-created-to-find-replacement-for-only-female-mk-justice.html>.

[50] Kharishar Kahfi, ‘Former MK justice sentenced to 8 years in prison’, The Jakarta Post (online, 4 September 2017) <https://www.thejakartapost.com/news/2017/09/04/corruption-court-to-issue-verdict-for-former-mk-justice.html>.

[51] Butt, The Constitutional Court and Democracy in Indonesia (n 32) 41.

[52] See Law Number 24 of 2003 on the Constitutional Court (Indonesia), art 28(1).

[53] Faiz (n 30) 155; See also Afra Sapiie (n 49).

[54] Muhammad Tanziel Aziezi, ‘High hopes for Saldi Isra to restore trust in Constitutional Court’, Indonesia at Melbourne (Article, 11 April 2017) <https://indonesiaatmelbourne.unimelb.edu.au/high-hopes-for-saldi-isra-to-restore-trust-in-constitutional-court/>.

[55] Ibid.

[56] Fiss, ‘Perspective: The Limits of Judicial Independence’ (n 38) 62.

[57] Butt, The Constitutional Court and Democracy in Indonesia (n 32) 37.

[58] Ibid.

[59] Faiz (n 30) 155.

[60] Ibid 156.

[61] 1945 Constitution, Transitional Provisions art II.

[62] PJ Leo, ‘MK chief justice, Golkar lawmaker arrested for bribery charges’, The Jakarta Post (online, 3 October 2013) <https://www.thejakartapost.com/news/2013/10/03/mk-chief-justice-golkar-lawmaker-arrested-bribery-charges.html>.

[63] Ibid.

[64] See Faiz (n 30) 157.

[65] See Ibid 162.

[66] Ibid.

[67] Haeril Halim, ‘Historic sentence for Akil’, The Jakarta Post (online, 1 July 2014) <https://www.thejakartapost.com/news/2014/07/01/historic-sentence-akil.html>.

[68] Hosen (n 17) 203.

[69] ‘Constitutional Court Chief, Political Lobbying, and an Alleged Ethical Offense’, Indonesia Corruption Watch (Article, 20 December 2017) <https://antikorupsi.org/en/article/constitutional-court-chief-political-lobbying-and-alleged-ethical-offense>; See Law No. 30 of 2002 on the Commission for the Eradication of Criminal Acts of Corruption (Indonesia).

[70] ‘Constitutional Court Chief, Political Lobbying, and an Alleged Ethical Offense’ (n 69); See Rifqi Assegaf, ‘The DPR Inquiry into the KPK: what’s it really all about?’, Indonesia at Melbourne (Article, 27 July 2017) <https://indonesiaatmelbourne.unimelb.edu.au/the-dpr-inquiry-into-the-kpk-whats-it-really-all-about/>.

[71] Hosen (n 17) 203.

[72] Ibid 203-204.

[73] Butt, The Constitutional Court and Democracy in Indonesia (n 32) 39-40.

[74] Government Regulation in Lieu of Law Number 1 of 2013 on the Second Amendment to Law Number 24 of 2003 on the Constitutional Court (Indonesia); Hosen (n 17) 202.

[75] See 1945 Constitution art 24B.

[76] Butt, The Constitutional Court and Democracy in Indonesia (n 32).

[77] Ibid 94-95; 1945 Constitution art 23C(3).

[78] See Butt, The Constitutional Court and Democracy in Indonesia (n 32), 95.

[79] Constitutional Court Decision 005/PUU-IV/2006 (Indonesian Constitutional Court); Ibid 92-93.

[80] See Law Number 24 of 2003 on the Constitutional Court (Indonesia), art 23(3).

[81] Butt, The Constitutional Court and Democracy in Indonesia (n 32) 93-94.

[82] Ibid.

[83] Hosen (n 17) 207-208.

[84] See Law Number 24 of 2003 on the Constitutional Court (Indonesia), art 23(3)-(5).

[85] Ghina Ghaliya, ‘House passes Constitutional Court Law revision amid public outcry,’ The Jakarta Post (online, 1 September 2020) <https://www.thejakartapost.com/news/2020/09/01/house-passes-constitutional-court-law-revision-amid-public-outcry.html>.

[86] Mount Scopus International Standards of Judicial Independence (n 2) art 4.3.

[87] Simon Butt, ‘The 2020 Constitutional Court Law amendments: a ‘gift’ to judges?’ Indonesia at Melbourne (Article, 3 September 2020) <https://indonesiaatmelbourne.unimelb.edu.au/the-2020-constitutional-court-law-amendments-a-gift-to-judges/>.

[88] Ibid.

[89] Ibid.

[90] Ibid.

[91] Asia-Pacific Human Rights Information Center, Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (19 August 1995) art 16.

[92] See Ibid art 12; See Basic Principles on the Independence of the Judiciary (n 3) art 10.

[93] Mietzner (n 16); See Mahfud MD (n 26) 10.

[94] See Ali Akkas (n 40); See Constitution Committee (n 40).


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2021/31.html