Constitutional Court of Indonesia

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Constitutional Court of the Republic of Indonesia
Mahkamah Konstitusi Republik Indonesia
National emblem of Indonesia Garuda Pancasila.svg
Established 13 August 2003
Country Indonesia
Location Jakarta
Composition method 3 nominated by DPR, 3 by the President, 3 by the Supreme Court, and Presidential appointment.
Authorized by Constitution of Indonesia
Judge term length Five years
renewable once
No. of positions 9
Website www.mahkamahkonstitusi.go.id
Chief Justice of the Constitutional Court of Indonesia
Currently Arief Hidayat
Since 14 January 2015
National emblem of Indonesia Garuda Pancasila.svg
This article is part of a series on the
politics and government of
Indonesia
Pancasila (national philosophy)
Constitution
Foreign relations

The Constitutional Court of the Republic of Indonesia (Indonesian: Mahkamah Konstitusi Republik Indonesia) is an court in Indonesia which part of Judicial branch of Government of Indonesia, whose primary role is the reviewing of constitutionality under the Constitution. It also has administrative law functions such as ruling on competence disputes between governmental entities, giving final decisions on impeachments, and making judgments on the dissolution of political parties.

It was established as a consequence of the third amendment to the Constitution of Indonesia, ratified by the People's Consultative Assembly on 9 November 2001. Between the adoption of the third Constitutional amendment and the establishment of the Constitutional Court, the duties of the Constitutional Court were carried out by the Supreme Court.[1]

History[edit]

Aerial view of the Constitutional Court building

Between the adoption of the third Constitutional amendment and the establishment of the Constitutional Court, the duties of the Constitutional Court were carried out by the Supreme Court.

In August 2003, the People's Consultative Assembly passed the Constitutional Court Act (Law No 24 of 2003) and the nine justices were appointed on 15 August. They were sworn in the following day. On 15 October 2003, the Supreme Court handed over authority, marking the start of the Constitutional Court's activities.[2] The nine founding judges were:

For the first time, a prominent scholar who was actively involved in the process of discussing amendments to the Indonesian constitution and with the introduction of the idea of the constitutional court, Prof. Dr Jimly Asshiddiqie was elected the first chief judge (2003–2006). With the successful completion of his first period on the court, he was then re-elected as the chief judge for a second term of 2006-2009. He resigned from the court after finishing his first five-year term of office. After the completion of this first five years periode, the Constitutional Court has been considered one of the icon of Indonesian reform success story, together with the Anti Corruption Eradication Commission. The leadership of the court continued under Prof. Dr Mohammad Mahfud, a senior politician of National Awakening Party and member of parliament.

The constitutional court has five jurisdictions:

With the establishment of the court, the aim is to safeguard democracy and the constitution according to the principle of rule of law, and the constitutional rights of the people and human rights can be protected accordingly. The high-profile performance of the constitutional court has made it a respected institution in Indonesia. During the general election and the first presidential election in 2004, the role taken by the constitutional court was widely appreciated by the people. Many landmark decisions have been made in the fields of politics, social, and economic law since its first year of establishment. The rehabilitation of the political rights of former members of communist party, the prohibition of retroactive law of anti-terrorism, the abolition of articles of subversive law and of defamation against presidential institution, etc., are among the landmark decisions which made it influential in guiding the new democracy of Indonesia. Public interest in the court has included discussion of the appointment processes of judges; the delineation of responsibilities between the Constitutional Court and other parts of the legal system; and overall approach that the Court has taken to the issues that it has considered.[3]

In mid-2011 the Indonesian parliament approved certain changes to the 2003 Constitutional Court Law that established the Constitutional Court.[4] The revisions approved include changes to the arrangements for the Court's ethics council, a strengthening of the qualifications and experience required for the appointment of justices, a reduction in the term of the Court's chair and deputy chair (to two-and-a-half years, down from three years), and raising the mandatory retirement age for justices from 67 years to 70 years. The proposal to change the arrangements for the membership of the Court's ethics council was a controversial issue with the first chief judge of the court, Jimly Asshiddiqie, describing the planned changes as "frivolous."

In October 2013, in a move designed to improve the standards of appointment of justices to the Court following the arrest of the then-chief justice Akil Mochtar, president Susilo Bambang Yudhoyono issued a regulation-in-lieu-of-law (known as a Peraturan Pemerintah Pengganti Undang-undang or Perppu). The Perppu set out new arrangements relating to the processes of selection of justices. Under the proposed arrangements, a Constitutional Court justice is not to have had links to a political party for at least seven years and would have to undergo screening by an independent selection panel. In addition, a permanent ethics committee was be established to monitor the performance of the Court. On 19 December 2013 the Indonesian parliament endorsed the Perppu.[5]

Powers[edit]

The court has the same legal standing as the Supreme Court. Its powers, set out in article 24C of the Constitution, include the final say in reviewing laws concerning the Constitution, disputes over the authority of state institutions, the dissolution of political parties and disputes over election results. It also is obliged to rule on any attempt to impeach the president.

Its jurisdiction on the electoral disputes [6] was first limited to the five-yearly general elections (such as the 2004 and 2009 general elections). However, since 2009 the definition of general election has been broadened and includes the election of governors and regency heads (bupati). To date, of the five jurisdictions of the court, most cases handled have centred around issues of judicial review, disputed electoral results, and disputes between state institutions. The Supreme Court continues to perform an informal judicial review function.[7]

A major problem for the court, like other parts of the legal system in Indonesia, is enforcement of decisions. The ability of the court system in Indonesia to have decisions enforced is sometimes quite weak and in recent years across Indonesia local officials have, in some cases, refused to abide by important decisions of the Constitutional Court.[8]

Organisation[edit]

Chief Justice[edit]

The chief justice of the court is elected by the members of the court from amongst their number.

Deputy Chief Justice[edit]

Deputy Chief Justice of the Constitutional Court of Indonesia is second highest-ranking official serving on the Constitutional Court of Indonesia. Like the Chief Justice of the Constitutional Court of Indonesia, the Deputy Chief Justice is elected by the nine serving justices on the court from among their number.

Justices[edit]

The Indonesian Constitution specifies that the Court must have nine justices. The Indonesian Parliament (the DPR or House of Representatives), the president and the Supreme Court are each entitled to appoint three justices to serve five-year terms.[9][10]

After the dismissal of Patrialis Akbar in January 2017[11] and the appointment of Saldi Isra to replace him on April,[12] the justices of the Constitutional Court are:[13]

The process of appointment of justices to the court is subject to some controversy. For example, in mid-August 2013 president Susilo Bambang Yodhoyono appointed a new justice, Patrialis Akbar, to replace retiring justice Achmad Sodiki, and reappointed former justice Maria Indrati. The appointment was challenged by a group of legal activists in a challenge that was upheld by the Jakarta State Administrative Court in December 2013.[14] The appeal by Yudhoyono's office on behalf of Akbar and Indrati was ultimately successful.[15]

Former Justices[edit]

Former justices of the Court include:[16]

Secretary-General[edit]

Secretary General of the Constitutional Court (Sekretaris Jenderal) is official responsible for technical administration of the court. The Secretary General is responsible for:

  • Bureau of Planning and Supervision (Biro Perencanaan dan Pengawasan)
  • Bureau of Finance and Employment (Biro Keuangan dan Kepegawaian)
  • Bureau of Public Relation and Protocol (Biro Hubungan Masyarakat dan Protokol)
  • Bureau of General Affairs (Biro Umum)
  • Centre of Research and Dispute Analysis, Information and Communication Technology Management (Pusat Penelitian dan Pengkajian Perkara, Pengelolaan Teknologi Informasi dan Komunikasi)
  • Centre of Pancasila and Constitution Education (Pusat Pendidikan Pancasila dan Konstitusi)

Court Clerk[edit]

Court Clerk (Panitera) of Constitutional Court is a court official responsible for judicial administration. The Court Clerk is responsible for the two Junior Court Clerk. Junior Court Clerk I is responsible for judicial review, state institution dispute arose from the constitution, and legislative and presidential election dispute. Junior Court Clerk II is responsible for adjudication on impeachment, adjudication on dissolution of a political party and local executive election dispute.

See also[edit]

References[edit]

  • Denny Indrayana (2008) Indonesian Constitutional Reform 1999-2002: An Evaluation of Constitution-Making in Transition, Kompas Book Publishing, Jakarta ISBN 978-979-709-394-5
  • Jimly Asshiddiqie (2009), "The Constitutional Law of Indonesia: A Comprehensive Overview", Thompson Sweet & Maxwell Asia, Singapore.

Notes[edit]

  1. ^ Denny Indrayana (2008), pp. 241, 266
  2. ^ Constitutional Court Website: History of The Constitution Court accessed 17 May 2009
  3. ^ Prodita Sabarini and Ina Parlina, 'Constitutional Court: Independence of the last resort', The Jakarta Post, 3 May 2013.
  4. ^ 'Constitutional Court's power to be limited', The Jakarta Globe, 15 June 2011. Dicky Christanto, 'House passes amendments to Constitutional Court law', The Jakarta Post, 22 June 2011
  5. ^ Haeril Halim and Ina Parlina, 'House endorses SBY's MK reform plan', The Jakarta Post, 20 December 2013.
  6. ^ Jimly Asshiddiqie, The Constitutional Law of Indonesia: A Comprehensive Overview, Thompson Sweet & Maxwell Asia (2009).
  7. ^ Palmer, Wayne; Missbach, Antje (2018). "Judicial Discretion and the Minimum Statutory Sentence for Migrant Smuggling through Indonesia". Asian Journal of Law and Society: 1–19. doi:10.1017/als.2018.7. ISSN 2052-9015. 
  8. ^ See International Crisis Group, Indonesia: Defying the State Archived 2 September 2012 at the Wayback Machine., Update Briefing, Asia Briefing No 138, 30 August 2012.
  9. ^ Ina Parlina and Margareth S Aritonang, 'House begins selection of new Constitutional Court justice', The Jakarta Post, 28 February 2013.
  10. ^ Ina Parlina, Jokowi appoints PDI-P cadre as new justice. Jakarta Post, 7 January 2015. Accessed 25 October 2016.
  11. ^ Yustinus Paat and Eko Prasetyo, Patrialis Akbar Dismissed From Constitutional Court. Jakarta Globe, 28 January 2017. Accessed 2 February 2017.
  12. ^ a b "Saldi Isra hopes to bring change as youngest constitutional court justice". The Jakarta Post. 2017-03-11. 
  13. ^ Biographical details of the judges are at the official website of the Court.
  14. ^ Ina Parlina, 'Administrative court strips Patralis of MK seat', The Jakarta Post, 24 December 2013.
  15. ^ Simon Butt, The Constitutional Court and Democracy in Indonesia, pg. 41. Leiden: Brill Publishers, 2015. ISBN 9789004250598
  16. ^ Prodita Sabarini and Ina Parlina, 'Profiles of new Constitutional Court justices', The Jakarta Post, 3 May 2013.

External links[edit]