LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 33/September/2013
In This Issue
The Parliamentary Disorder in Electing Public Officials
House of Representative
Filling the Supreme Court Justice Chair: Minimizing the Middleman’s Role in Positioning
Establishing Liaison Office of the Judicial Commision
Judiciary
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House of Representatives
The Parliamentary Disorder in Electing Public Officials
The selection process of public officials done by the House of
Representatives is often problematic. From corruption practices during the Bank Indonesia Deputy Governor Election of Miranda Gultom, the
commissioner selection process of the National Human Rights Commission and the Business Competition Supervisory Commission that went far beyond the specified time, up until the most recent; indication of
middlemen in the process of selecting Supreme Court Justices done by the Third Commission. Many factors can potentially cause the emergence of these problems, but we need to look back on the process of filling positions by the House of Representatives is set in the legislation.
The fourth amendment of the constitutions allows the House to process the election of public officials. There are five types of positions whose selection process must go through the House; Ambassadors, Chief Justices, Financial Audit Board Members, Judicial Commission Members and several Constitutional Court Members. For these positions, the House is given three types of authority (consideration, approval and submission), which are then adopted into Law No. 27 on the MPR, DPR, DPD and DPRD (The MD3 Law) as a law specifically regulating representative institutions and the Order of the House of Representatives.
The House’s authorities stated in The MD3 Law and the Order of the House of Representatives regarding the filling of public official positions merely duplicate existing provisions in the 1945 Constitution; both do not comprehensively regulate how the House should process the
consideration, approval and submission of officials. These laws also do not regulate on the House’s authority in selecting other public official
positions, other than the five set in the 1945 Constitution. Post-reform, after the House was given more legislative authority, they tend to authorize their own institutions in selecting public officials.
A poor practice of the filling of public official positions is the different use of terms used by the House, such as “selection”, “appointment”, “approval”,
“suggestion”, “submission”, “consultation”, “consideration”, and so on. In practice, there are two types of selections in the House; the selection process that goes through a Plenary Session and the selection process where the House is simply consulted, gives its consideration, and the result is directly given to the President without a Plenary Session. From the many selection varieties stated in the 1945 Constitution and the Law, there has yet to be a set of rules that regulates each of the differences and what are the consequences in terms of implementation. (SMR)
In 2013, the Supreme Court needs 8 Supreme Court Justices to replace those who are entering retirement tenure. To cover this need, the Judicial Commission shoved 24 candidates to the Third Commission. During this process, there has been indication of the role of middlemen done by the Third Commission by involving the House of Representatives. This of course threatens the integrity of the Supreme Court Justices that were resulted in the process.
The past few weeks has seen the Third Commission of Indonesia’s House of Representatives busied by the Supreme Court Justice election. This stage in the House is a step within a series of processes that candidates must go though. The process of selecting the Supreme Court Justice is based on Article 30 Paragraph (2) of Law No. 48 of 2009 on Judicial Power. Nominees for the position are selected and recommended by the Judicial Commission to be later handpicked by the House.
Even though the system of engaging the House is a principle matter in filling strategic positions of state
agencies, the use of middlemen still remains an intolerable practice. One cause that led to the rise of the middlemen is the existence of space for competition between the candidates, which gave opportunities for them to profit from. One alternative to minimize this problem is by subtracting the number of Supreme Court Justice candidates that reach the House. Ideally, the number of candidates in the House should only be 1, equivalent to the number of candidates that passed selection. Therefore, the House should only have to approve or not the proposed candidate. This system would eliminate the chance of middlemen practice by the House. Although, normatively, this is confronted with obstacles; based on Article 30 Paragraph (2), the House has authority to select, meaning there has to be more than one candidate to choose from. Essentially,
provisions of this Article potentially contradict with the 1945 Constitution, mainly Article 24A Paragraph (3), stating that the House is only authorized to approve a candidate. (GAT)
House of Representatives
Filling the Supreme Court Justice Chair: Minimizing the Middleman’s Role in Positioning
Judiciary
Establishing Liaison Offices of the Judicial Commission
The Judicial Commission has constructed liaison offices in six provincial capitals in Indonesia, namely Medan, Semarang, Surabaya, Mataram, Samarinda and Makassar.
The selection of these six cities were based on several matters which are the number of public complaints towards the Judicial Commission, the complexity of problems at the local court and regional representation.
The establishment of these Liaison Offices is an implementation towards the provision of Article 3 Paragraph (2) Law 18 of 2011 on the Judicial Commission. According to the article, the Judicial Commission can appoint liaisons in provinces in
accordance with the requirements. The establishment of these offices is done to facilitate the Judicial
Commission in performing their duties, as well as to facilitate the public in providing reports of any violations
towards the judge’s code of conduct in each province.
The Liaison Offices are in charge of receiving these reports from the public, monitoring trials, and
conducting dissemination regarding the judge’s code of conduct and institutions of the Judicial Commission.
Forming Liaison Offices of the Judicial Commission is part of a step that has been taken before; creating a network with community groups in various regions. The central position of the Judicial Commission makes the institution need networking in provincial regions to assist the performance of its duties, as well as bring the Judicial Commission closer to the public. The existence of these offices is expected to increase monitoring towards the judiciary, particularly the judges, thus capable of supporting the establishment of a clean court system. (FN)
