Secondly, how do the constitution and the political institutions contribute to the court’s role in constitutional interpretation? This question will be studied in the viewpoints of the legacy of New Order and Guided democracy regimes. During New Order regime, constitution had to be accepted as presupposed document that cannot be challenged. Meanwhile, political parties, the parliament, and the politics in general were controlled by the regime. No doubt that constitution is in fact not only a legal document, it is also a political document. Therefore, the state of politics itself will be an important factor to constitutionalism.

The content of this paper will be presented in three sections. The first section will discuss the independence of judiciary in Indonesia. It will describe and examine constitutional basis for judicial power as well as its implementation, which is strongly influenced by politics. The first section, then, will be a basis for the second section, which will observe how the court implements constitution. In section three, I will discuss the recent developments in the judiciary.

2. COURT IN CONSTITUTION BEFORE 1999: QUESTIONING THE INDEPENDENCE OF JUDICIARY IN INDONESIA

The prevailing constitution of Indonesia is the 1945 Constitution, which was enacted as soon as the proclamation of independence in 1945. As the subsequent paragraphs will further explain, there were also the Constitutions of 1949 and of 1950. However, the 1945 Constitution was re-enacted in 1959 and became effective since then. In the two constitutions before 1959, the particular provisions remained untouched. Therefore the Indonesian constitution, in this sense, is understood not only as the text of the constitution, but also as the interpretation of it.

The existence of the 1945 Constitution can be divided into three periods. The first period was during 1945 to 1949. The second period was from 1959 to 1966, but between the first and second period, there were two constitutions replacing the 1945 Constitution, namely those of 1949 and 1950. The 1949 Constitution was the result of negotiation between the Dutch Government, as a former coloniser of Indonesia that refused to recognise the 1945 independence, and the Government of Indonesia. The negotiation resulted in the enactment of the 1949 Constitution, which established the United States of Indonesia. Afterwards, there was the 1950 Constitution or ‘Temporary Constitution of 1950’, which reformed the structure of government from federal state into unitary state and mandated the establishment of ‘Konstituante’ or Constitutional Assembly with the task of drafting a new and definitive constitution to replace the temporary constitution. Konstituante conducted its task from 1956 until 1959, which was then considered to have failed in July 1959 and resulted in the re-enactment of the 1945 Constitution by the Presidential Decree of 5 July 1959.³ This re-enactment marked the second period. During this period, authoritarian government under the name of Guided Democracy (Demokrasi Terpimpin) administered by Sukarno ruled the country based on the abusive implementation of the 1945 Constitution.

The third period was marked by the administration of Suharto replacing the Guided Democracy in 1966. The famous slogan of Suharto’s ‘New Order’ regime was ‘back to 1945 Constitution in a pure and consistent manner’. As the original text of the 1945 Constitution is known for its vague and brief content, the New Order regime took advantage of the ambiguities, and created another authoritarian government.

The original text of the 1945 Constitution contained 37 articles providing a minimum framework for a newly established country. The basic content of a constitution, which consists of human rights, the division and limitation of power, and the manifestation of state based on the rule of law; were not sufficiently accommodated in it. As a result, it was easily abused by whoever holds the power, as happened during the Soekarno’s as well as Soeharto’s administration. Therefore, soon after the fall of Soeharto in 1998, the process of amendment to 1945 Constitution started. Beginning since 1999, there were three amendments to 1945 Constitution, which soon will be followed by the fourth in August 2002.

I have to admit that there are significant changes regarding judicial power in the third amendment. However, changes in the text cannot automatically reform the whole system that is, borrowing Professor Sahetapy’s words, ‘rotten through and through’,⁴ which is resulted from a long history of strong political interference to judicial system. Moreover, the amendment that was done only recently has not been put into practice. Therefore, in this section I will discuss how the Court is framed in the original text of Constitution, which has contributed to the ‘rotting’ of judiciary power in Indonesia.

The original text of 1945 Constitution contained minimum provision regarding judiciary. There were only two articles containing basic provisions concerning judiciary, which left the implementation to be enacted in legislations. It reads:

Article 24

 

1.                 The judiciary power shall be exercised by a Supreme Court and such other courts of law as are provided for by law.

2.                 The composition and powers of these legal bodies shall be regulated by law.

 Article 25

The appointment and dismissal of judges shall be regulated by law.

 Then, the elucidation of the Constitution states:

The judicial power is independent to such an extent that it is free from government interference. Thus, the status of judges should be guaranteed by law.

These articles had opened a wide opportunity for the parliament and the president (in legislative process) to regulate detail provisions regarding judiciary. Although the elucidation explicitly stated that the judicial power is independent, because of the vagueness, that set of provisions was widely open for interpretation by dominant power to secure its power. Thus, it was highly depending on the political configuration of the state.⁵ During Soekarno’s Guided Democracy regime, for instance, under the name of ‘revolution’, president’s interference had a legal basis in Law No. 19 of 1967 concerning Basic Law on Judicial Power. Article 19 of the law explicitly said that the president may interfere court matters for the purpose of “revolution, the honor of the state and the nation or the urgent interest of the people.”

Soeharto’s administration applied similar interpretation with different approach. In 1970, he enacted Law No. 14 of 1970 concerning Judicial Power (“Law on Judicial Power”), which then followed by Law No. 14 of 1985 concerning the Supreme Court (“Law on Supreme Court”).⁶ The Laws put the two feet of the Judiciary in different places. Whereas the Judiciary had the full authority in judicial matters, its organisational, administrative, and financial matters were managed by the Ministry of Justice. In practice, government interference was considerably strong, as it played significant role in the promotion, transfer, recruitment, and compensation of the judges. This system also fuelled the tendency of the judges to associate themselves as part of bureaucracies, which in turn weakened their independency.

At this point, I need to visit Jayasuriya’s thesis on the judicial independence in East Asia, which takes Indonesia, China, and Singapore as case studies. In his work, he differentiates between liberal legalism, which requires a liberal state and autonomous civil society, and statist legalism, which is “located within a corporatist state and a managed and regulated civil society”, and argues,

Through case studies of Singapore, Indonesia, and China it is proposed that notions of judicial independence in statist model of legalism take on corporatist form where there is significant concertation or collaboration between the judiciary and the executive. Crucial to this argument is the fact that these corporatist notions of judicial independence are embedded in specific conceptions of stateness. However,it is important to recognize that these corporatist structures will vary in terms of the degree of autonomy and independence granted to the judiciary.⁷

In light of Jayasuriya’s explanation, the ambiguity of constitutional provisions then filled by the notion of ‘stateness’ supported by the state, which is known as the concept of ‘integral state’. This idea puts forward the notion of “cohesion and harmony embedded in the nation of stateness”.⁸ This notion was first suggested during the drafting of the 1945 Constitution by Soepomo, who stated:

State functionaries are leaders who unite spiritually with the people, and the state functionaries should always maintain strongly the unity and the harmony of the society.⁹

Under this idea as a framework, “judicial independence implies a degree of harmony between judicial power and state interests.”¹⁰ Although this conception had not been transformed into texts of legislation, this notion strongly influenced the framework in which state and judiciary interact. To borrow Jayasuriya’s conception, this pattern of interaction between judiciary and the state can be categorized as a ‘statist model of legalism’.

Law on Judicial Power was also built under this framework. The elucidation of Article 1 of the Law reads:

The independence of the Judiciary should imply that there is an independent Judiciary free from interference from other state institutions, free from pressures, directions or recommendations, which originated from extra-judicial authorities except in the things permitted by Law.

Freedom in implementing judicial authority is in itself not absolute because the function of judges is to uphold the law and to find justice based on Pancasila through interpretation of law, and findings of its basics and principles through cases leading to decisions that reflect the sense of justice of the Indonesian people.¹¹

Although the Law seemed to give a reasonable degree of independence to judiciary, it held reservations, namely (1) forms of interference that are permitted by law (2) the notion of justice had to be based on Pancasila – the state ideology. Pancasila in itself, as a principles of nationhood, is not harmful, but during Soeharto’s regime, it was used to legitimise every state action to create the ‘harmony’ in the nation.

In practice, there were many types of behaviour and system in the relationship between executive and the judiciary that were developed as an effect of this statist legalism. For example, there was a ‘tradition’ for the Chief Justice to visit the president to acknowledge his/her respect towards the president (‘this is known as Javanese culture termed ‘sowan’, which means visiting somebody that is older or respected to gain her/his blessings). In regions outside Jakarta, there was also a ‘convention’ that a judge cannot make any decisions that might cause ‘instability’, which definition is determined by New-Order-invented institution of ‘Coordination Body for National/Regional Stability’ (BAKORSTANAS/DA).¹² Apart from that, there was also another New-Order-invented institution called the Assembly of Regional Leaders (MUSPIDA) that strongly influenced independence of judiciary.¹³

Another way of interference during the New Order regime was the instalment of trusted military figures or politically compliant civilians to key legal positions, which include Chief Justice and Attorney General. This was enabled by the provision in the Law on Judicial Power and Law on Supreme Court, which regulate that Chief Justice shall be appointed by president based on the candidates nominated by People’s Representatives Assembly (Indonesian parliament, Dewan Perwakilan Rakyat, DPR). In reality, as seats in DPR were obtained by New Order’s trusted persons,¹⁴ it was almost impossible to have a Chief Justice that was not granted approval from Soeharto.

Other than systemic interferences during Guided Democracy regime and New Order regime, the weaknesses in the organisational and administrative system have resulted in massive corruption and collusion practices in Indonesian judiciary. Mafia Peradilan (Court Mafia) is the famous phrase amongst Indonesian people to name lawyers, court clerks, and even judges who can ‘take care of things’ to win cases.

The fact that Court is part of the problems, instead of the respected institution to solve them, faced by Indonesia in the current transitional process can be seen in some statistical report regarding corruption. National Ombudsman Commission reported that citizens’ complaints against judicial corruption reached 35% of 1.723 reports received by Ombudsman in 2000 and the number increased to 45% of 511 reports filed in 2001.¹⁵ Worse than that, it was also reported that during the ‘life’ of JIT, which had the task to assist Attorney General’s Office to investigate corruption cases, most of the cases reported were corruption in judiciary. From 641 reports that JIT received from its first establishment until 31 May 2001, corruption in Courts was on top of the report list, reaching 104 cases. The complete list of report categorised according to the source of corruption is as follows.¹⁶

No.	Origin of Report	Total
1.	Judiciary	104
2.	Executive	60
3.	Individuals	69
4.	Private Companies	44
5.	Banks & IBRA (Indonesian Bank Restructuring Agency)	10
6.	State-owned Enterprises	7
7.	Social Foundations	3
8.	Hospitals	3
9.	TVRI (State-owned TV Station)	2
10.	Co-operatives	2
11.	Other	3
	T OT A L	307

Further, JIT focused its work on the judicial corruption as it viewed judicial corruption as the key factor in obstructing corruption cases in other fields. In a seminar, a member of the ‘late’ JIT stated that the reason for JIT to focus on judicial corruption was:

The rise of the spirit of ‘reformasi’ among the Indonesian public has led to a subsequent decline in popular trust in law enforcement. This is mainly because law enforcers have taken opportunity on ongoing social unrest since 1998 to extract unlawful benefits from the cases they have been handling. Several corruption cases that had drawn public attention were terminated prior to the trial. Even if cases successfully brought before the courts resulted in acquittals generating suspicion that there must be something wrong. In responding to the public suspicion, the judges responsible replied that the allegations of the prosecutors were so weak that they could do nothing other than to free the alleged corruptors. The public are thus confronted by failure one way or another – if not on the part of the judges, then the prosecutors – and they begin to doubt that the rule of law can be upheld. The truth and justice seem to just keep on ‘walking away’.¹⁷

After the fall of the New Order regime, the wind of change started to blow and the first step taken was amending Law on Judicial Power with Law No. 35 of 1999. In Law No. 35 of 1999, the “one roof” (satu atap) system was introduced; the organisational, administrative and financial matters of judiciary were transferred from the Ministry of Justice to Supreme Court. Due to the pressures from pressure groups as well as international forces,¹⁸ the system has started to change. However, as the transfer is not a one-for-all remedy for independence of judiciary.

 

3. CONSTITUTION IN COURT: A REVIEW ON INDONESIAN SYSTEM OF JUDICIAL REVIEW

The original text of 1945 Constitution did not explain the scheme of interaction between judiciary and the other branches of government. The basic provision for judicial review is Law on Judicial Power and Law on Supreme Court. Then, as guidance in conducting this function, the Supreme Court issued Supreme Court Regulation No. 1 of 1993. However, there are weaknesses in this set of regulations. Firstly, the Supreme Court has the authority only to review regulations or executive actions. This means the Supreme Court does not have the authority to review the laws based on the Constitution. The elucidation of article 26 of Law on Judicial Power explained that the authority to review laws based on Constitution cannot be regulated in this Law because the 1945 Constitution does not provide such power to Supreme Court, therefore “this law cannot give the Supreme Court the authority to review, let alone the authority to review the substance of Law based on Constitution.”¹⁹ Thus, it can be said that the basic idea of court’s role in ensuring the supremacy of constitutional principles had been reduced. The basis for judges to invalidate regulations was not constitutional principles; rather it was a mere interpretation of the text.

Secondly, judicial review can only be done through the standard legal procedure that has to start from the District Court. Hence, petition to judicial review should be submitted first to District Court, Appellate Court, and finally Supreme Court to get the final decision. This system, however, was changed by the Supreme Court Regulation No. 1 of 1993, which allows judicial review petition to be directly submitted to the Supreme Court.

In 1986, Administrative Court was established through Law No. 5 of 1986. Administrative Court is designed to allow citizens to challenge the legality of written decision made by government officials acting in their official capacity. Under this system, the decision of the Administrative Court can nullify an executive act if it has conflicting provisions with superior legislation. Moreover, the Court may also rule an administrative act null and void on the grounds that it is an abuse of power. The difference between the authority of the Administrative Court and the Supreme Court’s authority of judicial review established by Law on Judicial Power and Law on Supreme Court is that the former can only be applied to cases concerning written decisions that has the characteristics of concrete, individual, and final (beschikking).

Thus, Indonesia did not have a system that allows legislative acts to be reviewed, whereas the basic notion of judicial review is to enable the citizens to control the state in implementing its policies through judicial procedure. Then, in 2000, People’s Consultative Assembly (Majelis Permusyawaratan Rakyat, “MPR”)²⁰ issued MPR Decree No.III/MPR/2000 introducing the system that grants the power for MPR itself to invalidate laws as being unconstitutional. The system was termed as ‘legislative review’. However, the system does not work. The reason for this is that review over legislation is a routine and permanent task, whereas 695 members of MPR only hold one assembly each year. There are Ad-Hoc Committees that work throughout the year, but it is a temporal body, which task is to collect necessary materials for the purpose of collective decision making during the annual assembly. Also, Ad-Hoc Committees do not have the authority to make any decision on behalf of MPR.

At this point, I would give ‘no’ as an answer to question on whether or not Court plays important role in constitutionalism in Indonesia. There are two reasons for this answer. Firstly, from the procedural point of view, Indonesia does not have a system that opens wide possibility to check constitutional principles in the day-to-day life. Judicial review system does exist and Administrative Court does work in practice, but there is no system that allows judicial review to be applied to legislative acts. Also, both systems are heavily based on the procedural rather than substantive matters. The basis for the Judge’s decision should be either confliction with superior legislation or abusive practices. Constitutional principles are not the issue here, since the Court does not have the authority to interpret the Constitution and apply it in a case. Although the original text of 1945 Constitution did not state explicitly about this authority, when a modern democracy is adopted by having a written constitution with the state apparatuses, it is presupposed that the authority of the Court to do so is adopted. Yet, the pattern of interaction between executive and judiciary, which has been developed under the state ideology of Pancasila and integral state, has diminished this presupposed authority. As stated by Mardjono Reksodiputro:

The judiciary has no control over the executive, however, the judges are controlled through the Department of Justice. There were insufficient safeguards for them to resist politically motivated transfers or disciplinary measures. There are internal individually pressures which force the judges to protect the government’s political interest in cases coming before their courts.²¹

Secondly, there are issues of impartiality and lacking of independence in the application of judicial review. It is true that the existing judicial review procedure and Administrative Court have been utilised by the citizens to defend their rights and have been used by certain judges to show their integrity and impartiality, but the institutional impartiality of the Court is still subject to question. Tempo case is a good example for this.

On 3 May 1995, three judges, with Benyamin Mangkoedilaga as the Chair, upheld a challenge against the Decision of the Minister of Information withdrawing Tempo magazine’s publication permit.²² This was a breakthrough in Indonesian judiciary and greeted by Indonesian legal community. However, soon after that, Benyamin Mangkoedilaga got ‘promoted’ to be the Chair of District Administrative Court in Medan (the capital of North Sumatra Provinc), which is understood as an exile for him, taking him away from prospective career. This was then termed as ‘di-Medan-kan’ (Medan-ised), which connotes that every state apparatus that applies decisions against the government’s preference will be ‘exiled’.²³

The most recent case in light of this argument was the dissolution of JIT through judicial review decision upholding a challenge against the Government Regulation No. 19 of 2000 establishing JIT. The case began with the investigation of the two active and one retired Supreme Court judges by JIT on July 2000. The judges were suspected of having received bribe from Endin Wahyudin, a witness in a land dispute. The lawyers for the judges then filed a claim against Government Regulation No. 19 of 2000 and won the case. The argument of the decision was that the existence of JIT is illegal as a matter of ‘legal formality’ as it contradicts higher laws and regulations, especially the Criminal Procedure Code. As a result, the JIT was dissolved, the suspected Judges are free as the case was investigated in the JIT and has been submitted to the Court, and ironically, the witness was put on trial for defamation. In contrast, in a similar case concerning Government Regulation No. 17 of 1999 on Indonesian Bank Restructuring Agency (“IBRA”), the Supreme Court rejected the claim on the basis that IBRA is an urgent need for national economic restructuring, so that Supreme Court must prioritise the benefits principle (doelmatigheid) over the legal formalism issue (rechtsmatigheid).

The dissolution of JIT was strongly attacked by activists, scholars, and legal community as it was considered as an obvious application of protecting the ‘fellow judges’ (esprit de corps) and against the spirit of reform. A justifiable criticism against the decision was the fact that Justice Paulus Effendy Lotulung, who acted as the Chair of the presiding panel of justices, at the same time also acted as legal counsel of the suspects pursuant to an order from the chairman of Indonesian Judges Association (IKAHI).²⁴

It is apparent from the two cases that the lack of independent judiciary has obstructed the Court’s role in interpreting constitution and ensuring constitutional principles. Indonesia’s statist legalism, with a state ideology that sees state and civil society as one unity in which state plays dominant role, asserts the notion that the power of the branches of government is given by the ‘state’. Indeed, ‘state’ is not an apolitical notion; rather, it will undoubtedly associated with the regime. Consequently, the judiciary is given a power to an extent where it will always be able to secure its dominancy. When the Court ruled a decision against the state, as the case happened to Benyamin Mangkoedilaga, political step would be taken against the person in charge of that decision as deterrence. Afterwards, when the reform has begun to eradicate such conception and the state intervention has been considerably minimum, the ‘rotten’ system still cannot handle the reform process, as showed in the JIT case.

4.  THE POST-1998 JUDICIARY REFORM PROCESS

As briefly mentioned above, there are recent developments that are hoped to bring about an independent and clean judiciary in Indonesia. It was started by the enactment of the Law No. 35 of 1999 in November 1999, amending Law on Judiciary Power (Law No. 14 of 1970). This Law initiated the “one roof” (satu atap) system. It stipulates that the administration over the lower judges would be transferred from the Department of Justice to the Supreme Court within five years after 1999. Accordingly, in 2004 the promotion, transfer, recruitment, and compensation of the judges will be conducted by the Supreme Court.

It is hoped that this new system will lead to the integrity, professionalism and independency of the Judiciary. To fulfil this hope, however, a mere transfer of authority is not enough. As some studies have shown, the problem is not only the fact that those procedures were done by the Department of Justice, but also some improper mechanism in such administrative procedures.²⁵ For instance, the current system of transfer and promotion of judges in lower courts (District and Appellate Court) cannot be said appropriate to create an effective human resources management within the Court. The standard evaluation for that only includes the position and the tenure of each evaluated judge,²⁶ whereas according to Beijing Principles of the independence of judiciary says “Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.”²⁷

The transfer of authority and the reform process as a whole are still underway, but one important development should be mentioned here. A thorough restructuring of a system would undoubtedly ‘threaten’ certain people within the system itself who have been benefited by the system, especially when it is related to power and wealth. This also appears in the reform process. There was lack of enthusiasm, if not reluctance, from the Supreme Court itself in conducting the reform. Nevertheless, the new law opened an important loophole for the reform. The Law stipulates that there can be “non-career” Supreme Court Justices and Chief Justice, so that lawyers and legal academics can be Supreme Court Justices and Chief Justice. In addition, Supreme Court Justices and Chief Justice is appointed by the President from the candidates submitted by the DPR, which should go through a fit and proper test in DPR.

The opportunity to fill in “the right people” came into realisation when the DPR had to conduct an election to fill 20 seats in the Supreme Court in 2000. Some Civil Society Organisations (“CSOs”) organised a coalition of CSOs to become the watchdog for that process in order to promote certain people who are considerably “clean and have the spirit of reform.”²⁸ That activity was based on the idea that what is needed is to put some people who can be trusted so that recommendations for reform can be accepted by the institution itself. In the end, 17 new Justices were elected and nine of them formerly were not judges (non-career).²⁹ The nominations of the Chief Justice was also held in this year. As stipulated in Supreme Court Law, the President shall appoint one of the candidates nominated by the DPR, however, the President refused to immediately execute his authority to do so. The seat for Chief Justice was empty for approximately five months.Finally, in October 2000 the President appointed Prof. Bagir Manan as the new Chief Justice. He was the President of the Bandung Islamic University and a well-known scholar.

The elected non-career Justices are not the only key for the reform. The overall system and the rest of the apparatuses within the Supreme Court itself that are not accommodative to reform cannot be overcome only by the nine new Justices. However, now there is “a hole to start breaking down the wall”. There is a set of ongoing studies and action plan for judiciary reform, which is conducted by the Supreme Court and other external institutions.³⁰ This is believed to be possible by the pressure from outside (from CSOs) as well as the opportunity opened by the new Chief Justice and Justices.

The next reform that is significant is the amendment to 1945 Constitution regarding judiciary power. In the third amendment in 2001, article 24 was changed and new paragraphs were inserted. The amendment reads:

Article 24

(1)               The judicial power shall be independent and shall possess the power to organise the judicature in order to enforce law and justice.

(2)               The judicial power shall be implemented by a Supreme Court and judicial bodies underneath it in the form of public courts, religious courts, military tribunals, and administrative courts, and by a Constitutional Court.

Article 24A

 

(1) The Supreme Court has the authority to hear a trial at the highest (cassation) level, to review ordinances and regulations made under any law against such law, and shall possess other authorities as provided by law.

(2)               Each justice of the Supreme Court must possess integrity and a personality that is not dishonourable, and shall be fair, professional, and possess legal experience.

(3)               Candidate justices of the Supreme Court shall be proposed by the Judicial Commission to the DPR for approval and shall subsequently be formally appointed to office by the President.

(4)               The Chair and Vice-Chair of the Supreme Court shall be elected by and from the justices of the Supreme Court.

(5)               The structure, status, membership, and judicial procedure of the Supreme Court and its subsidiary bodies of judicature shall be regulated by law.

Article 24B

(1)          There shall be an independent Judicial Commission which shall possess the authority to propose candidates for appointment as justices of the Supreme Court and shall possess further authority to maintain and ensure the honour, dignity and behaviour of judges.

(2)               The members of the Judicial Commission shall possess legal knowledge and experience and shall be persons of integrity with a personality that is not dishonourable.

(3)               The members of the Judicial Commission shall be appointed and dismissed by the President with the approval of the DPR.

 (4)               The structure, composition and membership of the Judicial Commission shall be regulated by law.

 The amendment has positively responded the criticisms about the minimum provision in the Constitution. It states clearly about the independence of judiciary, and more importantly, it introduced the new system of recruitment and disciplinary procedure by establishing Judicial Commission. These new improved provisions need implementing laws

 5. THE NEWLY INTRODUCED CONSTITUTIONAL COURT

 Moreover, the third amendment introduced Constitutional Court with the provisions as follows;

 Article 24C

 (1)          The Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose powers are given by this Constitution, deciding over the dissolution of a political party, and deciding over disputes on the result of a general election.

 (2)          The Constitutional Court shall possess the authority to issue a decision over an opinion of the DPR concerning alleged violations by the President and /or Vice-President of this Constitution.

 (3)          The Constitutional Court shall be composed of nine persons who shall be constitutional justices and who shall be confirmed in office by the President, of whom three shall be nominated by the Supreme Court, three nominated by the DPR, and three nominated by the President.

 (4)          The Chair and Vice-Chair of the Constitutional Court are elected by and from the constitutional justices.

 (5)          Each constitutional justice must possess integrity and a personality that is not dishonourable, and shall be fair, shall be a statesperson who has a command of the Constitution and the public institutions, and shall not hold any position as a state official.

 (6)          The appointment and dismissal of constitutional justices, the judicial procedure, and other provisions concerning the Constitutional Court shall be regulated by law.

Thus, Indonesian judicial review system has been changed by acknowledging judicial review on legislative acts by Constitutional Court, whereas the executive acts remain to be the authority of Supreme Court.

Would those changes be enough to lead to comprehensive reform in Indonesian judicial system? There are two issues that need to be addressed at this point. First, I need to use again Prof. Sahetapy’s saying about judicial system that he called as ‘rotten’. This labelling is not without a justifiable reason. The long history of executive domination and weak system of discipline and recruitment processes altogether have contributed to deep-rooted problems of corruption and impartiality—it is ‘rotten’. Therefore, what is needed is not only ‘one-roof’ system or massive removal of corrupt judges. It needs systemic institutional changes to be able to obtain significant reform and prepare the system that will be able to maintain it. The establishment of Judicial Commission and the new system of appointment of Supreme Court Judges and the Chair and Vice Chair of Supreme Court in the third amendment is hoped to be a key factor for the reform. However, the judgement cannot be done at this moment, as the system has not been applied.

Second, the reform process has to involve the civil society, especially Civil Society Organisations (CSOs) and legal community. It is not surprising that a comprehensive reform would face reluctances from people inside the system, as they have received benefit from the corrupt system. New people, who are relatively ‘clean’, have entered the system, as shown by the case of new Supreme Court judges and new Chief Justice; and people have put hope on them. However, they need to be supported from outside the system, thus the new system ought to enable civil society to involve in the process.

A justifying example for this can be seen in the process of nominating the new Supreme Court Judges in July 2000. A number of CSOs put pressure to DPR to have an open ‘fit and proper test’ rather than the ‘conventional’ procedure that was usually conducted behind a close door. Although the process had not been substantially changed, the CSOs insisted to involve in the process and used many ways to be able to do so. They conducted press conferences, lobbying, and make public aware of the process through the media. As a result, this process gained attention from public, which in turn created pressure for the DPR.

6. CONCLUSION

Reform needs a strong judiciary to overcome past problems and guide the country to a better life. Indonesian judiciary, however, has not been able to play the role, because it is part of the problem.

Constitutional provision is one of the contributing factors to the failure. Constitutional provisions regarding judicial power were very brief without giving the authority to judicial power to conduct judicial review. Moreover, being a constitution that is ambiguous, the original text of 1945 Constitution was open to politically heavy interpretation. This problem has been overcome by the third amendment in 2001. Nonetheless, the other problem still exists. The long history of institutional and political intervention from the state have weakened judiciary system and created a deep-rooted problem of corruption, collusion, and partiality.

The recent amendment perhaps will be a good start for a systemic reform, but a mere set of texts will not speak very much without supporting components. Here I see two components that are needed to support the reform, namely systemic institutional change and civil society participation. The former is needed to demolish the ‘rotten’ institution and rebuild a new one, whereas the latter is needed to put constant pressure to impose serious efforts from the people inside the system as well as to check the process itself.