The July 9th, 2015 edition of Kompas daily paper reported a meeting between Vice Chief of the Supreme Court (Non-Judicial Division) Suwardi with Chief of the People’s Consultative Assembly (MPR) Zulkifli Hasan. On that opportunity, Suwardi voiced a suggestion from the Supreme Court to erase the Judicial Commission from the 9th Chapter of the 1945 Constitution.
Suwardi argued that the inclusion of Judicial Commission in Chapter 9 of The 1945 Constitution regarding judicial power is a constitutional accident. A media quoted Suwardi saying that judicial power should be in power without supervision. The mass media also reported that the People’s Consultative Assembly Chief promised to study the suggestion from the Supreme Court.
The report plunged in the middle of Judicial Commission proposing a recommendation of ethical sanction to sole judge Sarpin Rizardi to the Supreme Court regarding to the handling method of pre-court case of Commissary General Budi Gunawan versus Corruption Eradication Commision (KPK). At the same moment, the news was occupied with law trading cases. A number of judges, lawyers, and other law enforcers in Medan, Bandung, Semarang, and other places also became offenders in various cases of corruption and bribe.
On the other hand, in relation to the case of the Judicial Commission and the Supreme Court, National Police Chief Badrodin Haiti suggested that each institution doesn’t have to correct each other (Kompas.com, 17/7/2015).
Chapter 24A (2) and 24 B The 1945 Constitution from the result of the 3rd amendment that was settled in the Annual Court of People’s Consultative Assembly (MPR) on November 9, 2001, decreed the forming of Judicial Commission. Next, the 1945 Constitution gave power and duty to the Judicial Commission to elect candidates for the Supreme Judge to the People’s Representatives (DPR) and to keep and enforce honor, dignity, and behaviour of the judge. The decree was legalized by the MPR in relation to the Indonesian reformation in order to build a foundation of a democratic and law state.
Chapter 1 Article (2) emphasized that power is in the hands of the people and is executed according to the Constitution, replacing the previous article which states that the people’s sovereignty is executed fully by the MPR. Chapter 1 Article (3) was added to emphasize that Indonesia is a rule of law state. According to that, the 1945 Constitution amendment emphasized, Indonesia implements principles of separation of power, check and balances, independent judicial power, respect towards human rights, periodic and democratic power circulation, etc.
The constitution reformation also underlined that all state institution received their power from the 1945 Constitution, and the 1945 Constitution is the highest law that has to be obeyed by everyone. Then, it is clear that Indonesian democracy is a constitutional democracy.
Thus, what became the final reference of power is not the will of political power or the person in power (rule by law and/or rule of man), but the 1945 Constitution (rule of law) and the legal law. In which the constitutionality of the law towards the 1945 Constitution is enforced through the forming of Constitutional Court whose power is to test the constitutionality of the 1945 Constitution.
Independency of Judicial power
The implication of change is very basic and broad. Law becomes the reference for everything and thus the judicial process happens in every aspect, including politics and economy.
Through the judicial process and the independency of judicial power which is, in fact, needed so that the judicial power is able to do its duty and authority to enforce law in the right way and impartially, the independent judicial power becomes a broad and deciding power.
But, law cannot define and carry out itself. In its implementation, law cannot be separated from the involvement of man, in this case judges. With the involvement of judges, who is also human, there is a chance for law to be negatively influenced and become a tool for the judges personal interest (rule of judges or rule of man), something that we want to avoid with the rule of law. And that interest is not limited in monetary form, but also in forms of social-political interest and so on.
Therefore, and according to the thoughts of democracy, judicial power which penetrates deep into every aspect of life (judicialisation), needs accountability. Judicial power should not be exclusive and untouchable. Internal supervision is not enough to build the needed accountability. A judicial power which is very wide and broad should be able to be held accountable and transparent.
With that said, independence and accountability of judicial power is both needed, not contradicting each other, is two sides of the same coin. Seventeen centuries ago, Aristotle reminded that the character and orientation of judges is the essential aspect in law enforcement.
Along the amendment process, Ad Hoc Committee I (PAH I) Worker Body of the MPR deeply discussed this topic. PAH I argued that mechanism and/or an authorized institution to keep the judge accountable without disturbing the independent judicial power is needed. At that time, MPR argued that independence and accountability of the judicial power is side by side and does not contradict each other.
Accountability of Judicial Power
The next idea is developed in two forms. First, forming the Judicial Commission in every province and in national level, consisting of law experts from universities, practical law figures, and public figures. The Judicial Commission is given broad authority. In the regional level, to recruit and promote judges and in the national level, to elect candidates for supreme judge.
After that, according to its level, the Judicial Commission is given authority to enforce accountability of judicial power, without intervening the independent authority of judges to investigate and verdict a case. So, it is hoped that the recruitment and promotion of judges is transparent and is not only based on ability and skill, but also based on a good character and track record and the accountability of the judicial power can be kept.
The second idea, Judicial Commission, which consists of experts and suitable figures, is enough on the national level with authority and duty to elect candidates for supreme judge to the DPR and to keep and enforce honour, dignity, and judge behaviour.
As have been recorded in the meeting notes, PAH I also talked about the possibility of forming Corruption Eradication Commission and Ombudsman to be included in the Constitution in the body of judicial power integration.
From the comparative study in South Africa and other sources, PAH I gained comparisons and suggestions regarding accountability of judicial power. Chapter 165 Article (2) of the 1996 South African Constitution emphasized that judicial power is independent power in the hands of the court and only bows under the constitution and legal law, which has to be enforced impartially, without fear, inequality, and prejudice.
Then, Chapter 178 Article (1) of the South African Constitution decreed the forming of Judicial Service Commission (JSC). JSC has the authority to elect judges and investigate cases regarding judicial officers aside from giving input to the government about judicial problems and judicial administration.
Chapter 177 Article (1) of the South African Constitution also regulates that a judge can be dismissed only if JSC or the National Assembly (DPR) concludes that the judge does not have enough capacity and competence or did a serious mistake.
At the end, MPR decided that Judicial Commission needs to be formed by the Constitution which systematically needed as a part of the constitution because it’s role that is attached to the existence of the independent and accountable judicial power, instead of extraordinary, ad hoc, or supervision, while KPK, Ombudsman, and other can be formed through normal laws.
Next, the MPR assembly at that time concluded that it is enough if the Judicial Commission exist only in the national level and functions in order to recruit supreme judges aside from the function to keep and enforce honour, dignity, and the behaviour of all judges, does not have to include the recruitment and promotion of judges.
Of course, the 1945 Constitution can be changed and fixed if there is something not right or seen as not supportive to the steps of reformation. All sides, individual citizens or institution, can have a say and suggestion to perfect the 1945 Constitution. For that, the 1945 Constitution possess a mechanism to make changes in the Constitution as written in Chapter 3 and Chapter 37. Those are the mechanisms that has to be followed if a change is proposed to the 1945 Constitution.
But, before that, the requirements of the 1945 Constitution is binding and should be obeyed by everyone. In its relation with relationship of Judicial Commission and The Supreme Court, both institutions have to honour the Constitution. The Supreme Court and Judicial Commission each was directly given their authority from the 1945 Constitution. Thus, if one of them, The Supreme Court or Judicial Commission, felt that there is something wrong and decision needs to be taken, either of them, can ask the Constitutional Court (MK) to make the decision, according to the requirements of the Chapter 24C Article (1) of the 1945 Constitution which regulates that MK has the authority to judge and decide the case of state institutional authority which is given by the Constitution.
Drs. Jakob Tobing, MPA
President, Leimena Institute
Jakob Tobing is one of the most prominent architects of the new democratic Indonesia. He played an instrumental role in Indonesia’s transition from the authoritarian rule to democracy in 1998. He was then entrusted as the Chairman of the 1999 National Election Committee and the 1999-2004 Parliamentary Commission on the Constitutional Amendment – the two important bodies that decisively replaced authoritarianism with democracy in Indonesia. Under his leadership, the constitutional amendment has guaranteed the principles of democracy, rule of law, and human rights, which is now seen as a model by many other countries. He was a student leader against the old order in 1966, appointed as member of parliament in 1968, and became the Vice Chairman of the ruling party during the Suharto’s regime. But during the height of the authoritarian regime, he joined the opposition and was invited to join and establish the reform PDIP party by its Chairman Megawati Soekarnoputri, who later became the President of Indonesia. President Habibie decorated him with Mahaputera Utama medal in 1999. After more than three decades as a member of parliament, in 2004 he was appointed as the Indonesian Ambassador to the Republic of Korea, a leadership role which again he performed so outstanding that the Republic of Korea awarded him the Gwanghwa medal—the country’s highest diplomatic award. He received his graduate degree from the John F. Kennedy School of Government, Harvard University, USA.