LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 35/October/2013
In This Issue
The Government Regulation Substituting the Law on the Constitutional Court Doesn’t Fulfill the Forced Urgency Category
Legal PolicyThe Re-election of Constitutional Judges as a Momentum in Reorganizing the Public Officials Elections
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Legal Policy
The Re-election of Constitutional Judges as a Momentum in
Reorganizing the Public Officials Elections
The arresting of Constitutional Judge Akil Mochtar a few weeks ago made the selection and recruitment system of constitutional judges increasingly questionable. The public’s suspicion towards a process that is neither transparent nor accountable seems to be validated with the corruption allegation involving a constitutional judge. Various ideas have been initiated in order to solve this problem, one of them by holding a re-election of all the constitutional judges with the implementation of a new system that is more transparent and accountable.
In article 24C paragraph (3) it is clearly stated that the nominating of constitutional judges is done by the President, House of Representatives and Supreme Court. In article 19 of Law No. 24 Year 2003 on the Constitutional Court, it is further regulated that the nomination of constitutional judges are done in a transparent and participatory manner.
Looking back on the implementation to date, it is clear that the principle regulated in article 19 has not been carried out by the President, the House or even the Supreme Court. These three institutions perform the elections behind closed doors, without any public participation. This is why the violation towards the provision of this law should be stopped.
The President, the House and Supreme Court should have a clear standard and mechanism in electing constitutional judges along with a participatory and transparent implementation.
By viewing the root of the problem, the idea of holding a re-election becomes unnecessary, even potentially providing injustice towards other constitutional judges. Should there be a constitutional judge named as a suspect in the future, there will be a separate mechanism in solving the problem, thus improvements in the selection and recruitment system do not collide with the occurring criminal process. (FN)
Legal Policy
The Government Regulation Substituting the Law on the
Constitutional Court Doesn’t Fulfill the Forced Urgency Category
President Susilo Bambang Yudhoyono’s plan to issue the Governmenr
Regulation Substituting the Law (Perppu) based on the alleged criminal act of corruption that befell the Chairman of the Constitutional Court, Akil
Mochtar, needs to be given serious attention. In several of the media, it has been outlined that the President has stated there will be 3 (three) main points in the Perppu, namely requirements of the constitutional judges, the networking and election of constitutional judges and supervision of the Constitutional Court.
It should be acknowledged that the 1945 Constitution does provide the constitutional right towards the President to issue a Government Regulation Substituting the Law (Article 22) when in the context of an occurrence of forced urgency. The details of the Government Regulation Substituting the Law state that it is a noodverordeningsrech or product of the law that is issued based on the subjective rights of the President in order to regulate in
precarious and urgent situations. The President’s subjective rights given by the constitution are then further regulated in Law No. 12 Year 2011 on the Establishment of Legislation (Article 1 paragraph 4, Article 7 and Article 11).
Whereas the mechanism in approval by the House of Representatives on whether or not the Government Regulation Substituting the Law will be enforced is regulated in Article 52 of Law No. 12 Year 2011.
“The occurrence of forced urgency” needs to be explained further. What is meant be “forced” is any matter relating to substance. There are no
substantial problems that force the issue of a Government Regulation Substituting the Law, because even when under normal circumstances, the requirements of constitutional judges, election of constitutional judges and the supervision should have already been normatively regulated by the law.
Doesn’t the President have constitutional authority to establish laws along with the House of Representatives? Then why not suggest alterations in the Law on the Constitutional Court, for example? Furthermore, what is meant by “urgency” are matters relating to time/conditions. Is there a certain time/
condition in which the President is obliged to issue a Government Regulation Substituting the Law? The answer is no; the reality up to this day is that the number of constitutional judges still fulfill the quorum requirement for holding trials and court proceedings are still ongoing. (MSG)
Note
This article was written before the issue of the Government Regulation Substituting the Law on the Constitutional Court by the President on 17 October 2013.
