President Susilo Bambang Yudhoyono’s appointment of Patrialis Akbar as a judge of the Constitutional Court was not the right move. This decision makes the president seem non-transparent. It is understandable if organizations under the Civil Society Coalition for Saving the Constitutional Court declared their rejection and filed a lawsuit against this decision at the State Administrative Court (PTUN). They called on the president to cancel his inauguration of Patrialis, who was set to replace former judge Ahmad Sodiki who went into retirement.
Members of the coalition include a number of organizations, such as the Indonesian Legal Aid Institute (LBH), Indonesia Corruption Watch, and Kontras, which believe the appointment of Patrialis violates three laws. One includes Law No. 24/2003 on the Constitutional Court. Article 19 of this law states that the nomination of a constitutional judge must be transparent and participative. Meanwhile, article 20 paragraph two says the election of a constitutional judge must be objective and held accountable. These regulations have been violated.
This actually makes sense because the Constitutional Court has already established a tradition of selecting judges in a transparent and participative manner, especially during the second phase of the selections for the court for 2008 to 2013. During that time, the judges were selected in a transparent manner by the government and House of Representatives (DPR). The fit and proper test conducted by the House resulted in the election of Jimly Asshiddiqie, Mahfud Md., and Mohammad Akil Mochtar.
A similar process was conducted by the government. The president appointed Adnan Buyung Nasution, a member of the Presidential Advisory Council (Wantimpres), to form an election commission. This commission then held a fit and proper test in order to appoint three constitutional judges. The process was held transparently and three judges were selected: Abdul Mukti Fadjar, Maria Farida Indrati, and Achmad Sodiki. Only the selection process at the Supreme Court was not revealed to the public.
The open selection held by the House and government is an example of transparency. Therefore, if the government is now imitating the Supreme Court’s closed selection process with the president’s direct appointment of Patrialis, this is a step backward.
The presidential palace claimed that appointing the former justice and human rights minister did not violate articles 19 and 20 of the law on the constitutional court because they held a process that included an opinion hearing and recommendation of a number of ministers. However, this is not enough to prove that a process was conducted in anon-transparent manner.
Different interpretations regarding transparency related to elections occur due to Article 10/1 contained in the law on the constitutional court, which states how the selection process, appointment, and nomination of a constitutional judge is regulated by each institution, which are the House, government and Constitutional Court. Problems arise because up until now, there is no specific regulation that provides an explanation about this article. As a result, each institution interprets transparency in its own way. This is a weakness that must be resolved. A clear explanation about the article must immediately be made in order to avoid any misinterpretations.
Now Patrialis has been appointed. Whether or not this appointment will stick depends on the State Administrative Court’s verdict over the lawsuit. We hope the court will be able to make an objective decision in order to cancel Patrialis’ appointment and hold a re-election process that is more transparent. (*)
