TEMPO.CO, Jakarta - Anwar Usman`s appointment as chief justice of the Constitutional Court is no happy news. In a time when Constitutional Court justices are divided and the courts credibility is under threat, he is not someone most people look to as the person to save the institution. But Anwar has a golden opportunity to prove us wrong.
Anwar, who joined the Constitutional Court from the Supreme Court, has so far sided with the group that often produces controversial judicial review rulings. We all know that Constitutional Court justices are appointed by the Supreme Court, House of Representatives (DPR) and the President. Each senior institution appoints three individuals. The varied recruitment sources seem to be one of the reasons for the polarization-a hypothesis that is difficult to prove but seems evident in every Constitutional Court ruling.
One example of Anwar's strange stance was his ruling last year on the judicial review of the revision of the law on adultery in the Criminal Code. The petitioner wanted adultery to be criminalized, irrespective of the marital statuses of the persons involved and in the absence of a report. Five Constitutional Court justices resolutely rejected the petition, but Anwar, along with Arief Hidayat, Wahiduddin Adams and Aswanto sided with the petitioner and issued a dissenting opinion.
Anwar and his associates' view is dangerous as it shows that they condone the state's intrusion much too far into the private sphere. As Constitutional Court justices, they also stepped over the line because they wanted to establish a new norm-something that should have been left to the DPR and the government as lawmakers.
Three years ago, Anwar also played a role in the revision of the requirements to run in elections for governor, regent or mayor. Anwar, Arief, Patrialis Akbar, Manahan Sitompul, Wahiduddin, and Aswanto agreed that former felons should be allowed to run in regional head elections. Anwar's position, clearly at odds with the efforts to eradicate corruption, was also evident in the legal challenge to the DPRs right of inquiry into the Corruption Eradication Commission. He was among the justices who approved the House's maneuver.
With this kind of track record, it would be difficult for the public to hope for much from Anwar. Plus, he bears a heavy burden. He must be able to restore the Constitutional Court's credibility, now tarnished by a number of cases. The court's authority has been weakened further because of Akil Mochtar scandal, Patrialis Akbar's bribery affair, and Arief Hidayat's recent ethics violations.
Furthermore, Arief is still a Constitutional Court justice-although he has been replaced by Anwar as chief justice-despite strong indications that he violated the code of ethics by meeting with DPR members last year, to discuss his candidacy for another term at the Constitutional Court.
The DPR and the government must reform the selection process so that the process may produce constitutional justices with integrity. Polarization would not have occurred within the Constitutional Court if all of its justices were independent and had integrity. Constitutional Court Justices have always been selected by the President, the Supreme Court and the DPR using different methods. But the selection process should be made transparent and should include an element of public participation.
The justices themselves can also participate in the endeavor to reform the Constitutional Court. Putting his flawed track record aside, Anwar has been given a golden opportunity should he wish to restore the institution's credibility an
Read the full article in this week's edition of Tempo English Magazine
