Why Judicial Commission Can Not Oversee Constitutional Judges

TEMPO.CO, Jakarta - The Constitutional Courts Honorary Council (MKMK) found the Constitutional Court Chief Justice Anwar Usman guilty of violation of the code of ethics in ruling the petition contesting the Article 169 letter q of the General Elections Law held on October 16. Not only granting the petition, the brother-in-law of President Joko Widodo also added a phrase, “Who previously has won a regional head election,” in the provisions regarding the requirements for vice-presidential candidates.

With the added condition, Anwar Usman smoothed the way for Gibran Rakabuming Raka, his nephew, to move forward to the presidential elections as Prabowo Subianto's running mate. However, he was eventually found to have violated the principles of conflict of interest for not recusing himself from the case that involved a close family member. The Ethics Council subsequently removed him from his post and also barred him from participating in election result dispute hearings, if there were any.

Article 17 of the Judicial Power Law has clear provisions governing conflict of interest issues for judges whose family members have run-ins with the law. The problem is that some interpret that the article is valid only for judges who handle general, not constitutional, court trials. Then who will monitor constitutional judges?  

Indonesia has the Judicial Commission whose duty is to keep tabs on judges. However, the Commission lost its oversight authority over constitutional judges when some party contested it at the Constitutional Court in 2006, and then in 2022. “The Judicial Commission completely lost its supervisory role over constitutional judges,” Judicial Commission Chair Amzulian Rifai explained to Tempo on Thursday, November 23.

In the interview that lasted about an hour, the law professor with the Sriwijaya University, Palembang, South Sumatra, elucidated the boundaries of the Judicial Commission authority in keeping watch on judges, judges who get caught in corruption, as well as the judge recruitment system. The interview was edited by Iwan Kurniawan to adjust the flow and the context.  

So, the Judicial Commission can't really control the constitutional judges?

We are talking rules here. No state agency should get excited seeing other agencies and jump on the bandwagon. You can't do that. Our authority is limited. Actually, we used to have oversight authority over all judges including constitutional judges. But a ruling was issued in favor of a judicial review of the Judicial Commission Law in 2006 which stated that the Commission may still monitor Chief Justice but not constitutional judges. Then another ruling for another judicial review came in 2022 which effectively removed the Commission from the Constitutional Courts Ethics Council.

Completely removing the Commission's role?

Completely. On several occasions, we speak up so that constitutional judges may also be monitored. But again, we have to comply with the regulations.

Jimly Asshiddiqie, the Chair of the Constitutional Courts Ethics Council and former Constitutional Court Chief Justice excluded the Judicial Commission from the Ethics Council because, in other countries, constitutional judges are not monitored by outsiders. Is it correct?

We can't always apply whatever from abroad in Indonesia. Perhaps in those countries, oversight, law (abidance), and so on have become a culture, not only among the state apparatus but also among the public. We are different. Here, unsavory things still happen despite strict oversight.

What is the difference between the oversight by the Constitutional Courts Ethics Council and the Judicial Commission?

The Constitutional Courts Ethics Council is not permanent because of its ad hoc nature. They work when there is a problem. It is a firefighter.

Should the Constitutional Courts Ethics Council be permanent?

As far as I know, it should be. That's the initial idea. Clearly, what distinguishes us (the commission) is that we are not ad hoc. The Judicial Commission is a permanent agency that is parallel to other top government agencies.

There is a new idea to reinstate the Commissions oversight authority over constitutional judges. Do you agree with it?

Why not? It can be a study material. Although if we talk about a judge as a legal profession, it should start with the judge himself. As regards integrity. That's why, for me, it's more about how these judges, including constitutional judges—as Pak Jimly himself once said—should be people who are done with themselves. I think that is valid for positions like these, not only constitutional judge but also chief justice. So, we won't be arguing about whether oversight is strong or not.

In the past two years, so many judges have been caught in corruption cases. Why?

There are two factors. First is the result of freedom of opinion, press, and openness. Without openness, I don't think these cases would have been exposed. Now, the public can see the behaviors of the state officials, whoever they are, including judges. Second, whatever the professions including judges, people have not been doing their jobs according to the code of ethics and the code of conduct. They have not observed, practiced or implemented them yet.

Read the Full Interview in Tempo English Magazine