Indonesia’s PDI-P pushes back against top court Bill that could give Prabowo more power

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JAKARTA: Following pushback from the country’s biggest party, Indonesia has put the brakes on proposed revisions to its Constitutional Court (MK) rules which experts say would threaten judges’ independence and give greater power to the incoming president.

On Tuesday (May 28), parliament decided not to move forward with a Bill reducing the tenure of justices and placing extra conditions on long-serving judges who wish to continue their roles, after the ruling Indonesian Democratic Party of Struggle (PDI-P) rejected it.

“(The PDI-P will) reject articles which weaken the MK, reject articles which have the potential to undermine MK judges who are objective, critical and bold,” PDI-P politician Djarot Saiful Hidayat told reporters at the parliament building in Jakarta on May 28, adding that the PDI-P would lobby other parties to follow suit.

But despite rejections from parties and legal experts, Indonesia might still see legislative changes that could potentially weaken the country’s top court and the independence of its judges, politicians and analysts warned.

Mr Djarot said the amendment could still be revived at any moment as a Bill initiated by the executive branch of government or as one initiated by the 2024-2029 parliament.

On May 13, the revision to the law on Indonesia’s Constitutional Court was included in a list of Bills initiated by the country’s parliament, on the last day of a five-week parliamentary recess.  

The Bill would require judges who have served between five and 10 years to obtain approval from their respective appointing institutions if they wish to continue their tenure. 

The proposed changes would also reduce the tenure of justices from 15 to 10 years.

Constitutional Court judges are currently appointed by either the president, the parliament and the Supreme Court.

The revision would also change the composition of the court’s ethics council, which has the power to dismiss and sanction judges for ethical violations, to also include representatives from the president, the parliament and the Supreme Court. 

The proposed changes sparked strong criticisms from legal experts saying that they would threaten the independence of the judiciary.

“If the revision is passed into law, we will see judges trying to rule in favour of their appointing institutions because their jobs are on the line,” Mr Feri Amsari, a constitutional law lecturer at West Sumatra’s Andalas University told CNA.

There are currently three judges who have served between five and 10 years: Dr Suhartoyo, Professor Saldi Isra and Professor Enny Nurbaningsih.

Dr Suhartoyo and Prof Saldi are known to have dissented against several key court rulings, including changes to the election law which paved the way for Mr Gibran Rakabuming Raka to become Indonesia’s next vice president.

Mr Gibran is the eldest son of the outgoing president Mr Joko Widodo and was the running mate of Mr Prabowo Subianto in the February election. Mr Prabowo and Mr Gibran eventually secured 59 per cent of the votes and are scheduled to be inaugurated as the country’s next leaders on Oct 20.

“The revision will give greater control to the president and the parliament to install judges who favour them and oust those who oppose,” Mr Feri said.

NOT THE FIRST ATTEMPT

The law on the Constitutional Court has been revised three times since it was enacted in 2003. The latest came in 2020 when the parliament decided to, among other changes, extend a judge’s tenure from 10 to 15 years.

Mdm Bivitri Susanti, a lecturer at Jakarta’s Jentera Law School noted that past revisions have mostly revolved around adapting a judge’s tenure to suit the political landscape at the time.

“What we haven’t seen with these revisions are tighter and more transparent ways the judges are nominated and vetted to ensure that the Constitutional Court is only filled with those who are not only qualified but also of high integrity and independence,” she told CNA.

The 2020 revision, experts noted, greatly favoured former Constitutional Court chief, Professor Anwar Usman. Without the revision, Prof Anwar’s 10-year term would have ended in 2021 instead of 2026.

Prof Anwar, who led the body from April 2018, went on to marry Jokowi’s younger sister in May 2022.

He was also the court’s longest-serving chief because the 2020 revision also extended a chairman’s term from two-and-a-half years to five years with the possibility of being reelected for another term.

Months after he was reelected in March 2023, Mr Anwar was ousted from his chairman position in November that year. The ouster came after he was found guilty of ethical violations related to an October ruling which paved the way for his nephew Mr Gibran’s vice presidency nomination.

He was replaced by Mr Suhartoyo, who like many Indonesians goes by one name.

Mr Feri of Andalas University said it is hard to say why the parliament suddenly launched an attempt to revise the law for the fourth time.

“The fact that there was so much obscurity as to how this revision was initiated, how it was suddenly included in the list of Bills up for deliberation suggests that (the revision) might be political,” he said.

Mr Andi Agtas, chief of the parliament’s legislative body, which has the power to determine which Bill should be prioritised, denied this claim.

The fact that the revision came after several Constitutional Court judges issued a dissenting opinion on the ruling which favours Mr Gibran, and before Mr Prabowo and Mr Gibran are sworn in as the country’s next president and vice president, is simply “a coincidence,” he said, as quoted by Kompas on May 29.

Mr Andi is a member of Mr Prabowo’s Great Indonesia Movement Party (Gerindra).

Constitutional Court spokesman Fajar Laksono refused to comment on the revision attempt.

“The court cannot comment on a Bill because every law that has been enacted has the potential to be challenged (by members of the public) to the Constitutional Court,” Mr Fajar told CNA.

REMOVED, BUT OPEN TO REVIVAL

The Constitutional Court is the only judiciary body with the power to hear election disputes and repeal all or part of an existing law if it deems the law to be unconstitutional.

Indonesia will stage simultaneous regional elections on Nov 27, when 204 million eligible voters will hit the polls to elect 38 governors, 416 regents and 98 mayors.

“This is why it is important to maintain the court’s independence and keep the judges away from intervention from any external parties,” Mdm Bivitri said.

Although the parliament might have removed the revision from its list of priority Bills, attempts to change the law could still be revived as a priority Bill proposed by the government at any time.  

Such a Bill will have to be drafted and proposed for deliberation by the minister for law and human rights. The current minister, Yasonna Laoly is a member of the PDI-P which has aired its rejection of changing the law.

Experts noted that politicians can still try to make the 2024-2029 parliament, which could be dominated by political parties supporting Mr Prabowo’s incoming administration, deliberate the revision.

Mr Prabowo’s Advanced Indonesia Coalition is set to control 280 of the 580 seats in parliament. Two parties: the National Awakening Party (PKB) and the National Democratic Party (Nasdem) have expressed their interests in supporting Mr Prabowo’s administration, potentially bringing the coalition’s seats to 417.

“We have to watch out for this and reject any attempt to undermine the judges’ independence,” Mdm Bivitri said.

“Only the ethics committee should have the power to evaluate a judge and even then the evaluation is limited to their ethics and morals. This power should not be given to the president, the parliament or any other institution.”