LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 08/February/2014
In This Issue
Constitutional Court
“Your Weekly Updates on Indonesian Law Reform”
Constitutional Court Judge Selections and Politician Nominees
Supreme Court The Judicial Commission’s Recommendation towards the Sudjiono Timan Case
Bill Discussions on the Local Government, MD3 and Presidential Elections to be Done after General Elections
The Constitutional Court will have new judges in upcoming months. The selection process at the Parliament has already started and has managed to obtain 12 candidates. The next step, based on unconstitutional Law No. 4 Year 2014 on Election Models, is the establishing of a Selection Committee by the Parliament, consisting of constitutional law experts and prominent figures to help them elect the Constitutional Judges among the 12 candidates.
The issue of the current selection, reflecting upon the Akil Mochtar case, is that the Parliament and Selection Committee need to ensure the election of the most qualified and reputable candidate in restoring the Constitutional Court’s credibility among people. In considering the 12 candidates, the Parliament and Selection Committee need to restrain themselves from choosing politicians as Constitutional Court judges. The problem with politicians as constitutional court judges is that it will further reduce public trust towards the Constitutional Court as a court institution, apart from the highly unfavorable perception about politicians as being corrupt as well as questionable when related to impartiality while handling cases. Furthermore, it is suggested that, based on the previous second term Constitutional Court leadership, politicians tend to give politically motivated decisions rather than ones solely based on facts and laws. (GAT)
Constitutional Court
Constitutional Court Judge
Selections and Politician Nominees
House of
Representatives Supreme Court Launched Annual Report 2013
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The Judicial Commission plenary meeting has decided on the panel of judges for the Judicial Review of the Sudjiono Timan case. The panel of Supreme Court Justices who examined and decided upon the Judicial Review towards the Rp. 2,2 billions of Bank Indonesia Liquidity Assistance (Bantuan Likuiditas Bank Indonesia / BLBI) corruption case fugitive, Sudjiono Timan, were recommended to sentence a 6-month non-job penalty (hukuman non-palu). This recommendation will then be given to the Supreme Court to be decided upon. There are 4 (four) Supreme Court Justices that have been found guilty by the Judicial Commission; Suhadi, Andi Samsan Nganro, Abdul Latief, and Sophian Martabaya.
Meanwhile the remaining Supreme Court Justice, Sri Murwahyuni, was ruled as not guilty because she’s providing a dissenting opinion.
The core of the problem was when the panel of Supreme Court Justices, who granted a Judicial Review request by Sudjiono Timan, did not appropriately quote the statement from Yahya Harahap; a former Supreme Court Justice who is also an active writer in various legal literature. The statement, which was taken from the literature wrote by Harahap; states that a Judicial Review can only be given to those who abide by the ruling.
While the fact is, Sudjiono Timan did not abide by the ruling and instead became a fugitive of the Attorney General. From the technical aspect, the proceedings for
the Judicial Review were requested by the wife of Sudjiono Timan. However, referring to Article 263 and 286 of the Criminal Procedure Code, it states that the request for a Judicial Review must be filed by the convicted person or their heir.
If we refer to Article 24 B of the 1945 Constitution and Law No. 22 Year 2004 as amended by Law No. 18 Year 2011, the main role of the Judicial Commission is to propose Supreme Court Justices and maintain their honor, dignity and behavior. Therefore, the Judicial Commission played a role in the ethics realm; not the principal substance of the case or the decision. The core substance of the case or the decision both have different realms, therefore, it is challenging for both to be done through legal efforts. This is a different case if during the decision-making process a breach of ethics involving Justices is found; then the ethical sanction can be recommended by the Judicial Commission and to be future determined by the Supreme Court. Therefore, the problem which exists is that the mentioned recommendation from the Judicial Commission was derived from an improper point of assessment and should be reconsidered. Because of its nature as a recommendation, the Supreme Court has the authority to reject or decide upon this based on a different judgment, which is not based on examinations towards the ruling. (MSG)
Supreme Court
The Judicial Commission’s Recommendation towards the Sudjiono Timan Case
Supreme Court Launched Annual Report 2013
On Wednesday, 26 February 2014, Chief Justice Hatta Ali issued the 2013 Supreme Court Annual Report in a special plenary session. The issuing of the annual report is a very positive effort consistently conducted by the Supreme Court since a decade ago. As quoted on the w e b s i t e o f t h e R e g i s t r a r ( h t t p : / / kepaniteraan.mahkamahagung.go.id/), the Chief Justice presented the six major achievements of the Supreme Court in 2013.
These six major achievements are: 1) Improvements in case-handling performance, 2) Implementation of the case information system on first instance court, 3) Being awarded from the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) for integrity in the public sector, 4) The Unqualified Opinion (Wajar Tanpa Pengecualian) status from the Supreme Audit Board, 5) Being awarded by the Ministry of Finance, and
6) Being the highest-ranked on realization by type of expenditure nationwide.
It is important to applaud and appreciate these achievements by the Supreme Court. However, the next challenge is to ensure that these achievements could bring real and direct positive impacts for justice seekers.
Several good efforts initiated by the Supreme Court are also in need for further follow-up. For example, the number of verdicts published by the Supreme Court is now more than 600 thousand (685.406 as of December 2013). Such online publication could raise very simple questions; who and why one should read those? Also, how? Do the judges, lawyers, academicians, law students read and study those decisions? It is a good start and an interesting challenge for both the Supreme Court and the legal community, since it is a very significant effort in law reform towards legal certainty and justice. (EN) Supreme Court
A number of strategically significant bills are still going to be be discussed after the General Elections on 9 April 2014. These are bills on the Amendment towards Law No. 27 Year 2009 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives, and Regional House of Representatives (Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, Dewan Perwakilan Daerah, dan Dewan Perwakilan Rakyat Daerah / MD3 Bill), Bill on the Local Government, and Bill on the Amendment towards Law No. 42 Year 2008 on the Presidential Election. These three Bills have been included in the 2014 National Legislation Program. Initially, each of these Bills had varied statuses; the Presidential Election Bill was about to be withdrawn from the 2013 National Legislation Program, but it was cancelled.
But in the 2014 National Legislation Program the Presidential Election Bill does not appear; which makes it possible the Presidential Election Bill could be re- discussed. Especially after the results of the General Elections and configuration of the power of political parties who can propose candidates for President and Vice-President. Based on Law No. 42 Year 2008, a party or coalition of political parties are able to propose President and Vice-President pair for candidacy if they possess a minimum 0f 20% chairs at the House of Representatives or a minimum of 25% from the total legitimate votes of the House of Representatives General Elections. This proposal scheme is open to alter, especially if there is an urge from political parties to ensure their ability to propose Presidential candidates.
As for the Local Government Bill, even though it has been discussed since 2012, up until early 2014 it has not been completed. There are several issues that incite tough debates between the House of Representatives and the Government. One of themI is the urge of the House of Representatives to access the material of the division between central and regional affairs, which has already regulated by the Government Regulation; to be included into the Bill. The more technical materials from the bill are going to be included as attachments. Materials aside; a low level of attendance by the House of Representatives is often found at several work unit meetings, including those discussing the Local Government Bill. This is because the House of Representatives are more preoccupied with preparations for the General Elections on 9 April; scheduled meetings are then cancelled and re-scheduled.
Political parties interests on are not only related to qualifications aspects of presidential candidates in the Presidential Election Bill, but also the ease towards establishing political parties, as regulated in the MD3 Bill.
Political parties demand the qualifications of establishment to at least be the same as the parliamentary threshold, so there will no longer be a need for coalitions. Flexible qualifications of political party establishment will have an impact on the acceleration of decision-making. Fulfilling the minimum quorum will be difficult because there is a dependency towards middle and small-scaled political parties.
Members of middle and small-scaled political parties will ultimately complicate their own parties in functioning, since the demand for a representative in each House of Representatives work unit cannot be ideally fulfilled. (RR)
Bill Discussions on the Local Government, MD3 and Presidential Elections to be Done after General Elections
House of Representatives
