2016 Global Review of Constitutional Law

ality in the absence of a concrete dispute. 5
The Constitutional Court Law also allows
an individual to request a review. 6 If a law
is found unconstitutional, the Court will
either nullify the law or order the parliament
or the executive to make amendments. In
addition to the authority over statutory review,
the Constitution also equips the Court
with the authority to resolve disputes over
the power of state institutions; to decide
the legality of the dissolution of a political
party; to resolve disputes over the results of
general elections; and, to review a motion
for impeachment of the President. 7
The Court has nine justices that have equal
authority to decide all the important decisions.
The Constitution provides equal appointment
power among the three branches
of government: three justices are appointed
by the President, three appointed by the
People Representative Council (Dewan
Perwakilan Rakyat, hereinafter the “DPR”)
and three appointed by the Supreme Court. 8
There is a term limit imposed in which the
justices only serve for five years but can be
re-appointed for another five years. Also,
there is a mandatory age limit in which the
justices retire at age 70. The Chief Justice
and Deputy Chief Justice, however, only
serve for a term of two years and six months
but can be re-elected for the second term. 9
The associate justices will elect the chief
justice and his deputy through an internal
election mechanism.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
As explained earlier, most judges of the
current Court are “second-rate judges.” Two
major controversies have supported this
view in the 2016 term. The first controversy
was in a series of litigation in the Tax
Amnesty case. The tax amnesty policy is the
pet project of President Jokowi, and aims to
improve tax compliance in Indonesia.
In July 2016, some NGOs challenged the
constitutionality of the Tax Amnesty Law
before the Court. In response to this legal
challenge, the Jokowi administration moved
immediately to “pressure” the Court. After
the hearing process of the judicial review of
the Tax Amnesty Law had begun, President
Jokowi “summoned” Chief Justice Arief
Hidayat to the Presidential Palace. Chief
Justice Arief Hidayat denied that the meeting
was to discuss the tax amnesty cases. 10
According to Hidayat, his visit was intended
for an audience and conveyed a report to the
President about the international symposium
on the Asian Constitutional Court.
Regardless of the nature of the meeting,
obviously the Chief Justice did not make a
wise decision by attending a meeting with
the President while there was pending litigation
in the Court against the President.
The second controversy was the arrest
of Associate Justice Patrialis Akbar. On
January 25, 2017, in another major blow to
the reputation of the Constitutional Court, 11
the Anti-Corruption Commission arrested
Patrialis Akbar as he had allegedly received
bribes of US$20,000 (RP 266 million) from
a prominent beef importing businessman.
The businessman, Basuki Hariman, has
admitted giving US$20,000 to an aide of
Justice Patrialis Akbar, in which the assistant
assured Hariman that Patrialis Akbar
would help to sway the judicial review of
the Animal and Husbandry Law II case for
beef importers. 12 Indeed, Patrialis Akbar is
the exemplar of a “second-rate judge.” His
appointment was quite problematic from
the beginning, mostly because of his poor
record as the Minister of Justice. 13 During
his four-year tenure as an associate justice,
Akbar did not show any stellar performance
either, and he ended his career as a criminal.
MAJOR CASES
The Animal Health and Husbandry Law II
case (Decision No. 129/PUU-XIII/2015)
As explained earlier, this case brought down
constitutional justice Patrialis Akbar, in
which he allegedly accepted US$200.000
5
The Court only has authority to review a constitutional question in an abstract way and not to resolve a concrete constitutional case. The Court’s abstract
review does not aim to address the injury suffered by the claimant; rather, it would only pronounce on the constitutionality of the challenged statute. In contrast,
a concrete review aims to resolve the injury suffered by the claimant with a concrete remedy
6
Undang – Undang No. 24 of 2003 tentang Mahkamah Konstitusi (Law No. 24 of 2003 on the Constitutional Court), art 51
7
Constitution of Republic of Indonesia 1945, art 24C (1)
8
Constitution of Republic of Indonesia 1945, art 24C (3)
9
Initially, Article 4 (3) of the Constitutional Court Law 2003 provided that the Chief Justice and his deputy shall serve for a three-year term. But in 2011, the
lawmakers amended the law and reduced the term of Chief Justice to two years and six months. See Law No. 8 of 2011 on the Amendment of the Constitutional
Court Law
10
“Temui Jokowi, Hakim MK Klaim Tak Bahas Gugatan Tax Amnesty.” (Meeting with Jokowi, the Chief Justice Claims No Discussion on the Tax Amnesty
case) Suara.com, September 1, 2016. Accessed April 15, 2017. http://www.suara.com/news/2016/09/01/150944/temui-jokowi-hakim-mk-klaim-tak-bahasgugatan-tax-amnesty
11
In 2013, the Court’s reputation was seriously damaged when the then Chief Justice Akil Mochtar was arrested for accepting a bribe to rule on a regional
election dispute. Currently, Mochtar is serving life imprisonment
12
“Beef importer Basuki reportedly confesses to bribing Constitutional Court aide.”The Jakarta Post, January 27, 2017.
http://www.thejakartapost.com/news/2017/01/27/beef-importer-basuki-reportedly-confesses-to-bribing-constitutional-court-aide.html; see also
“KPK names MK justice Patrialis Akbar suspect in the bribery case,” The Jakarta Post, February 27, 2017http://www.thejakartapost.com/news/2017/01/27/
kpk-names-mk-justice-patrialis-akbar-suspect-in-bribery-case.html
13
President Susilo Bambang Yudhoyono appointed Patrialis Akbar as an associate Justice in August 2013. There was speculation that his appointment
was because of the collusion between President Yudhoyono and his in-law, Hatta Rajasa, the then Coordinating Minister of Economic Affairs. Akbar was a
member of the National Mandate Party (PAN), chaired by Mr. Rajasa. Some NGOs then filed a judicial review in the Administrative Court petition to challenge
the appointment of Akbar on the ground that the appointment process was not transparent. The Administrative Court quashed Akbar’s appointment on the
basis that it did not fulfill transparent and public participatory principle as required by Article 19 of the 2003 Constitutional Court Law. Nevertheless, the High
Administrative Court reversed the decision by the District Administrative Court
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