TEMPO.CO, Jakarta - The House of Representatives (DPR) Law Commission must be transparent in its selection of the new Constitutional Court (MK) judge. Constitutional Court judge Arief Hidayat, who is also the chief justice of the court, is within his rights to put his name forward again. But Arief, whose term of office ends next April, should stand for selection alongside other candidates.
The DPR gives the impression of not striving to find the best candidates for the MK. The fit-and-proper test of four candidates was scheduled for the end of November but was canceled after a fuss in the mass media. The DPR had previously not opened applications to other candidates, and suddenly it emerged that the legislature intended to test the suitability of Arief Hidayat, as the sole candidate.
That is unacceptable. Firstly, Arief has a dubious track record. He is suspected of trying to persuade a number of politicians to reselect him as a Constitutional Court judge-this lobbying was revealed by, among others, no less than DPR Legal Commission deputy chairman Desmond J. Mahesa. If this accusation is true, Arief’s conduct was improper. He should defend the independence and dignity of Constitutional Court judges. The lobbying in the selection process was also at odds with the MK Law, which states that the selection process for its judges must be transparent and participatory. The public should be involved in examining the track record of candidates.
The DPR surely has the right to decide what happens to Arief because he was selected by parliament five years ago. Other institutions with the power to propose Constitutional Court judge candidates are the President and the Supreme Court. When he was chosen in 2013, Arief did pass a fit-and-proper test. But the DPR cannot use this as an excuse to make him the sole candidate this time around. The conduct of a person can change. The DPR needs to give other candidates a chance to vie for the position.
Senayan politicians should learn from the case of Akil Mochtar four years ago. The DPR selected Akil as a Constitutional Court judge for a second period without a selection process. Several months after his term was renewed, Akil, who by then was MK chief justice, was detained by the Corruption Eradication Commission (KPK). He was charged with bribery in a disputed regional head election. Akil was eventually dismissed.
Now Arief’s integrity is in question. Apart from the accusation of lobbying the DPR, last year he was disciplined by the MK Ethics Council. He was found to have sent a note to the junior attorney general on behalf of a relative who was a prosecutor in East Java. Issuing such a memo, which was an abuse of authority, was not appropriate for a Constitutional Court judge.
The reselection of Arief also has the potential to be part of a deal. At present, the MK is examining the law that is the legal basis for the DPR establishing a Committee of Inquiry to investigate the record of the KPK. The public may very well suspect that as Constitutional Court chief justice, Arief could issue a ruling that will favor the DPR in exchange for a second term in office.
These suspicions will only disappear if Arief is not involved in the final ruling-this is possible because, under certain circumstances, an MK ruling does not have to be decided by all nine Constitutional Court judges. Moreover, the MK Ethics Council needs to investigate Arief’s lobbying of the DPR. because it is suspected this also breached the Constitutional Court judges’ guidelines.
DPR should not sacrifice the credibility of the Constitutional Court for narrow interests. Therefore, Senayan must find other candidates besides Arief and preside over a transparent selection process. A judge whose job is to defend the spirit of the Constitution must not be selected via indecent lobbying.
Read the full article in this week's edition of Tempo English Magazine
