A new regulation aimed at preventing future corruption and restoring public trust in the Constitutional Court is expected to be brought forward as early as this week, the president announced on Monday.
“Tonight, I led a cabinet meeting discussing the draft government regulation,” President Susilo Bambang Yudhoyono tweeted on Monday.
“Insya Allah, within the next two days I will sign the regulation.”
Yudhoyono added that the regulation would seek to codify three main points. It will set out what is required of the court’s justices, the selection process to appoint new justices, and the oversight to which the sitting justices will be subject.
The president said ministers and state lawyers had contributed to the discussions on the regulation.
“This regulation will be in accordance with the Constitution, and we will make it so that the selection process for Constitutional Court justices is free from political-party interests,” he said.
“Although the Constitution gives the authority to the president, the House of Representatives and the Supreme Court to choose Constitutional Court justices, the selection process should be made accountable and transparent.
“My hope is that this regulation will restore public trust, so the Constitutional Court will be able to work well.
“It’s very dangerous if the Constitutional Court with its sweeping power doesn’t receive trust from the public,” the president added, referring to the fact that all Constitutional Court rulings are considered final and binding, and must be carried out by all state institutions.
The president’s statement, which said that he would sign the regulation in lieu of the law, or Perppu , as early as some time this week, comes in the wake of the arrest on Oct. 2 of Akil Mochtar, the court’s now-suspended chief justice.
Akil was nabbed by the Corruption Eradication Commission (KPK) while allegedly transacting a bribe at his home with a House legislator and a lawyer representing one of the losing candidates in the Aug. 31 election for district chief in Lebak, Banten. Akil was presiding over a dispute over the outcome of that election.
Satya Arinanto, a professor on state administrative law, welcomed Yudhoyono’s move, saying the president had made the right decision to uphold the Constitution.
“The perppu will be very positive for the court in the future, especially to restore its dignity and authority,” he said in Jakarta on Tuesday.
Satya said that the points in the regulation were part of the government’s efforts to uphold the court’s own regulations, including to cover the absence of an oversight body.
“The substance in the requirements and selection of constitutional judges is to carry out regulations under the Law on the Constitutional Court, while the point related to supervision is meant to cover the absence of an oversight committee for the court’s justices,” he said.
Refly Harun, also an expert on state administrative law, said he hoped that the court’s oversight committee would be manned by independent figures and that if the Judicial Commission was not considered the right body to supervise the court, then the authority should be given to court’s ethics council.
Refly said the Judicial Commission could be authorized to set up a selection committee for the appointment of the Constitutional Court justices, which meant that the current mechanism whereby the nine justices were recommended by the president, legislators and Supreme Court, should be scrapped.
“Most importantly is that the justices cannot come from political parties. If they do, they should at least have retired from their parties for five years, just as the Constitutional Court previously decreed for members of the KPU [General Elections Committee] and Bawaslu [Elections Supervisory Board],” Refly said.
Akil was a House legislator with the Golkar Party for 10 years, retiring in 2009. He joined the Constitutional Court that same year.
Yusril Ihza Mahendra, a former justice minister and an expert on state administrative law, said the president needed to issue the perppu immediately, otherwise it would lose its meaning and function.
“The longer it’s postponed, the bigger [the chance] it will lose its meaning,” he said on Monday.
Yusril said that Akil’s arrest had triggered a massive loss of public trust in the Constitutional Court, previously seen as one of the only incorruptible state institutions, along with the KPK. Yusril added that the perppu would only be a stop-gap solution for the current crisis.
“That’s why if the president spends too much time [on issuing it], the essence of the regulation will evaporate, especially now that the court has made plans to set up its own oversight committee,” he said.
However, Yusril also warned that the regulation should be fully thought-out, otherwise it could risk being struck down if brought for a judicial review before the Constitutional Court.
“If the perppu grants supervision [of the court’s justices] to the Judicial Commission, it has to be supported by a clear legal argument,” he said.
Conversely, Martin Hutabarat, a member of House Commission III, which oversees legal affairs, said the president should drop his plan to issue the regulation if it was still not out in two weeks’ time, and should instead concentrate on amending the Law on the Constitutional Court.
“If in two weeks’ time the president still hasn’t issued the perppu, while the KPK continues to make progress in its investigation and the Constitutional Court has set up an ethics council to carry out an internal investigation, I suggest the president drop the plan to issue the perppu because it will no longer be urgent,” he said on Tuesday.
“The president should just invite legislators to revise the existing law on the Constitutional Court. The revision can be conducted in early 2014.”
He added that the amendments would serve as a long-term fix for the problem, whereas the perppu was by its nature an emergency solution.
Martin also called for any amendments to include an increase in the number of the Constitutional Court justices from the current figure of nine to 11 or 12.