Rabu, 23 Oktober 2013

The Indonesian Constitutional Court at a Tipping Point

Stefanus Hendrianto, Santa Clara University

On Wednesday, October 2, 2013, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi – KPK) arrested Akil Mochtar, the Chief Justice of the Indonesian Constitutional Court, for alleged bribery. The spokesperson of the Commission said that the alleged bribery was linked to a regional election dispute case.
Mocthar began his terms as the Chief Justice in April 2013 after his predecessor, Chief Justice Mohammad Mahfud, officially resigned from the Court. In 2010, Mochtar was linked to a bribery scandal that related to the case involving an election dispute in the Simalungun district. The then-Chief Justice Mahfud established an independent ethics council to investigate the allegation. The Commission, however, did not find any incriminating evidence and cleared Mochtar of all charges. Three years later, Mochtar is in trouble for the second time after the Corruption Eradication Commission confiscated around US $ 260,000 from his residence. The money was connected to a case involving a regional election dispute for the Head District (Bupati) of Gunung Mas in Central Kalimantan, which is currently being litigated in the Constitutional Court.

Chief Justice Mochtar would not be the first person in the Court to be disgraced due to an election dispute scandal. In 2009, Associate Justice Muhammad Arsyad had to resign because of bribery allegations in an election dispute over the election for the Head of District in South Bengkulu. A candidate for the position, Nirwan Mahmud, bribed Justice Arsyad’s daughter and Arsyad’s brother in law in order to convince Arsyad to sway the Court’s decision in his favor. The Court’s Ethics Council found that Arsyad’s family had held meetings with Arsyad’s law clerk to discuss the cases. The Council concluded that Arsyad violated the judiciary code of ethics because he failed to stop his family members from making a deal with parties involved in cases being handled by the Court. Arsyad maintained that he did not commit any crime and he denied that his daughter had introduced the candidate to him. Nevertheless, Arsyad tendered his resignation and left the Court in disgrace.
All of these scandals originated in the expansion of the Constitutional Court’s jurisdiction in 2008. In April 2008, the House enacted a law expanding the Constitutional Court’s authority to handle regional election disputes, which include elections for Governor and Head of District (Bupati). It was the then Chief Justice Jimly Asshiddiqie who pushed the House to expand the Court’s authority to handle such disputes in his last year in office. The arrest of Chief Justice Mochtar might send a clear signal to the legislature that they need to reevaluate the Court’s authority to handle regional election disputes.
The bribery scandals have tarnished the Court’s reputation; however, there is a more pressing issue that everyone has ignored — the backlog in the Constitutional Court. From 2003 through 2008, the Court only received a small number of judicial review cases, an average of 25 cases per year. With less workload, the Court managed to issue decisions in a timely manner and to avoid a backlog. Since 2008, however, the Court has received an average of 80 judicial review cases per year, in addition to an average of 130 cases of regional election dispute per year. The Court’s docket has been overloaded, especially with the regional election disputes. In addition, Law No. 32 of 2004 on Regional Governance mandates the Court to settle election dispute within fourteen days. This has led the Court to delay its rulings in judicial review cases, since there is no time constraint for the Court to render a judgment in statutory review.
The arrest of Chief Justice Mochtar is a tipping point for the development of the Indonesian Constitutional Court. In the past, the Court has successfully created an image as an efficient and clean court. The recent scandal has tainted the image of the Court. A first small step that needs to be taken to restore the Court’s image is to reevaluate the Court’s authority to handle regional election dispute.
Suggested Citation: Stefanus Hendrianto, The Indonesian Constitutional Court at a Tipping Point, Int’l J. Const. L. Blog, October 3, 2013, available at:http://www.iconnectblog.com/2013/10/the-indonesian-constitutional-court-at-a-tipping-point

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