The First Ten Years of The Indonesian Constitutional Court: The Unexpected Insurance Role

–Stefanus Hendrianto, Santa Clara University

On August 13, 2013, Indonesia celebrates the tenth anniversary of the establishment of the country’s Constitutional Court. The rise of the Indonesian Constitutional Court, indeed, has been one of the success stories of the democratization process in Indonesia. In this essay, I would like to provide a brief overview of the first ten years of the Court’s experience through the lens of a political actor, Yusril Ihza Mahendra, a constitutional law professor and former Minister of Justice. By looking at Mahendra’s story, one can see the evolution of the Indonesian Constitutional Court as a forum for political dissidents to challenge their adversaries.

Tom Ginsburg, a comparative constitutional law professor from the University of Chicago, postulates his “insurance model of judicial review,” in which whenever political forces cannot guarantee their reelection, they will create constitutional courts in order to ensure that they will have a forum to challenge the new electoral winner. The establishment of the Indonesian Constitutional Court, however, shows a type of political insurance that Ginsburg never imagined. Ginsburg’s insurance theory suggests that judicial review and constitutional courts may serve as insurance for potential electoral losers against their political adversaries. The Indonesian Constitutional Court, however, provides a different angle on insurance. First it was the winning party who proposed a constitutional court as insurance to safeguard their power. Second, as a member of the winning party, Yusril Ihza Mahendra was never fully convinced that the Court can serve as political insurance. It was not until Mahendra became a political pariah, that he began to realize that the Constitutional Court can be used as an avenue to challenge his political opponents.

On July 13, 2001, the Indonesian People Consultative Assembly (MPR) decided to impeach President Abdurrahman Wahid and chose Vice President Megawati Soekarnoputri as his successor. President Megawati was aware that it would be difficult to maintain a strong presidency under the fragmented political configuration of Indonesia; therefore, she needed additional insurance like the impeachment mechanism that was to be supervised by the Constitutional Court. On November 9, 2001, the Assembly (MPR) unanimously agreed to adopt the Third Amendment of the Constitution that established a new Constitutional Court that has authority to supervise the impeachment process. In addition to supervise the impeachment process, the Constitution also equipped the Court with different kind of authorities such as to review constitutionality of statue and to review dispute between political branches of government.

The Constitution mandated the Government to erect the new Constitutional Court by August 17, 2003 at the latest; however, the Court had still not been constituted as the deadline loomed. Yusril Ihza Mahendra, then the Minister of Justice, argued that the Government needed time to carefully discuss the Bill, considering the significance of the Constitutional Court in the new Indonesian constitutional system. Mahendra was a constitutional law professor and he had a conviction that the impeachment clauses in the Constitution were too vague. Thus, he was concerned that the new Constitutional Court would not be able to provide an adequate insurance for President Megawati should she face an impeachment threat. As the Executive branch was reluctant to discuss the bill, the House Judiciary Committee took the initiative to discuss the bill in July 2003. The House rushed to approve the bill establishing the Constitutional Court on August 6, 2003 and the Court started its business on August 13, 2003.

In the first year of the Court’s operation, Mahendra argued before the Court multiple times, defending the constitutionality of the Executive branch policies. Mahendra continued to defend the Executive branch, even after President Megawati lost her 2004 re-election campaign to Susilo Bambang Yudhoyono, a retired four star general. As a reward for his allegiance, President Yudhoyono named Mahendra as the Secretary of State in his cabinet. In his capacity as the Secretary of State, Mahendra continued to advise President Yudhoyono on constitutional issues that were adjudicated before the the Court.

The honeymoon period between President Yudhoyono and Mahendra, however, did not last very long. In May 2007, President Yudhoyono dismissed Mahendra due to his alleged involvement in several high-profile graft cases at the Ministry of Justice. There was some speculation that Yudhoyono dismissed Mahendra because he was seen as a potential rival in the next presidential race. After his dismissal, Mahendra went into political wilderness, and, soon, he himself sought to use the Constitutional Court as political insurance against the Yudhoyono administration. On June 24, 2010, the Attorney General’s Office (hereinafter the AGO) named and then charged Mahendra under the Anti-Corruption Law for his approval of the Ministry of Justice’s online corporate registration system(Sistem Administrasi Badan Hukum – Sisminbakum), in which the revenue of the registration was disproportionately distributed to the private provider of the Web site. Mahendra, however, believed that the case was weak from and he suspected that his political rivals had forced the AGO to push on the investigation.

On July 6, 2010, Mahendra fought back by filing a petition to the Constitutional Court, in which he challenged the constitutionality of the Law No. 16 of 2004 on the Attorney General Office. Mahendra challenged the statutory provision which stated that the Attorney General would remain in the office until he was dismissed from his post. Mahendra contended that the provision was problematic because it did not set any term limit for the Attorney General. He presupposed that an Attorney General is a cabinet official and therefore he serves during the length term of a cabinet. The then-Attorney General Hendraman Supandji served as the Attorney General in the first administration of President Yudhoyono. After President Yudhoyono was re-elected in 2009, Supandji remained as the Attorney General and the President never formally re-appointed him in his second term.

Mahendra argued that Supandji was an illegitimate Attorney General because he had never been formally inaugurated as the Attorney General in his second term. “The attorney general has no legitimacy to take legal actions against me as he has never been inaugurated by the President,” Mahendra said. One of the President’s legal advisers, Adnan Buyung Nasution, made a counter argument that a formal inauguration for the Attorney General was unnecessary because President Yudhoyono never terminated Supandji as the Attorney General, and, therefore, he was still a legitimate Attorney General. Denny Indrayana, the other Presidential legal adviser, argued that the Law did not set any term limits for the Attorney General in order to preserve the independence of the Attorney General Office. The Court majority ruled that the term limits clause in the Attorney General Office Act creates legal uncertainty because the Attorney General would not be subjected to any term limit. The Court also concurred with Mahendra’s presupposition that an Attorney General is a cabinet official, and, therefore, he serves during the length term of a cabinet. After the Court announced its decision, Chief Justice Muhammad Mahfud urged the President to dismiss the Attorney General Hendarman Supandji immediately.

President Yudhoyono decided to uphold the Court ruling by removing Hendarman Supandji from his post. The dismissal of Supandji, however, did not stop the AGO to continue the graft probe against Mahendra. Having realized that he had won the battle but not the war, Mahendra, initiated a new legal maneuver, in which he asked the AGO to compel President Yudhoyono to testify in the investigation. Mahendra argued that he should not be held accountable for the online registration system because it was the Executive branch decision that was made by former President Wahid. Mahendra asserted that President Yudhoyono (the then Minister of Political and Security Affairs) and former President Megawati (the then Vice President) were present in the Cabinet meeting in May 2000, when President Wahid approved the online registration system. Thus, Mahendra requested that the AGO summon President Yudhoyono and former President Megawati to testify. The AGO, however, refused to summon President Yudhoyono and former President Megawati because they did not qualify as a witness in the investigation, since they did not see, hear or experience the crime themselves. The AGO referred to the Criminal Procedural law which states that a witness in a criminal case must have heard, seen, or experienced a criminal event and he must be able to explain the event in a reasonable way.

Mahendra made a countermove against the AGO’s decision, in which he asked the Court to review the Law on Criminal Procedure, especially on the definition of a witness in a criminal investigation. Mahendra disputed the narrow definition of witness in the Law, in which he argued that although President Yudhoyono never saw, heard or experienced the financial fraud in the Ministry of Justice, the President knew that the Wahid administration was the architect behind the online corporate registration system in the Ministry of Justice. Furthermore, Mahendra requested the Court to strike down the witness clause because it has curtailed his constitutional rights to request the AGO to summon President Yudhoyono to testify. The Court ruled in favor of Mahendra that denying the right of a citizen to propose a witness in his or her defense trial or during investigation was against the Constitution. Furthermore, the Court ruled that a witness in a criminal case might include anyone who can provide information during an investigation and a trial, and should not necessarily be limited to those who have heard, seen or experienced the criminal event themselves.

Having secured another victory in the Constitutional Court, Mahendra vowed that he would continue to challenge the AGO. “This case has been going on for three years. [All those years] I have been held hostage. It hinders my activities as I cannot travel abroad,” he said adding his plan to challenge the travel ban that was imposed upon him. Initially, the AGO issued the travel ban on June 25, 2010 preventing Mahendra from the leaving the country for a year. On June 27, 2011, the AGO issued a new decision that banned Mahendra from leaving the country for another six months.
Mahendra, then, filed a petition to challenge the constitutionality of the Immigration Law that became the basis for the AGO to impose travel ban upon him. The Law states that the AGO may issue a travel ban in a criminal case and it may be extended at any time for a maximum period of six months. Mahendra posited that the law does not set a limit on how many times the AGO can extend the travel ban, and, thus, created the opportunity for the AGO to act arbitrarily and to violate a citizen’s constitutional rights. The Court ruled that the statutory provision on travel ban might result in legal uncertainty, because the suspects cannot be assured as to when the travel ban would end. Moreover, the Court ruled that the statutory provision constitutes a violation of one’s constitutional right to “leave the state territory” guaranteed by the constitution.

Mahendra filed the petition on September 9, 2011 and the Court announced its decision on June 13, 2012. The travel ban itself had expired on December 27, 2011 and the AGO did not issue a new decision to extend the ban. In other words, Mahendra had enjoyed his freedom to travel long before the Court issued a decision on the constitutionality of the Immigration Law. Moreover, two weeks before the Court issued its decision, the AGO had dropped the criminal charges against Mahendra.

For scholars who study the Indonesian Constitutional Court, we all know that this phenomenon is not unorthodox because the Court decision only pronounces the consistency of statute with the Constitution, and it has no effect to remedy injury that was suffered by the claimant. In order to understand to this phenomenon, one has to look at the statutory provision which states that the Court decisions have legal effect after they are read out. In other words, the effects of the Court’s decision only begin on the day of the announcement of the decision. The provision has become one of the most controversial provisions regarding the Constitutional Court, because the Court interprets it as its decisions have only prospective effect. Moreover, in the first five years of its operation, the Court had established a doctrine that the Court decision would not remedy any injury that was suffered by the claimant.

The political saga between Yusril Ihza Mahendra and President Yudhoyono shows how the Indonesian Constitutional Court has turned to play an unexpected role in providing political insurance for the losing party. While he was in power, Mahendra was reluctant to support the establishment of the Constitutional Court. It was not until his dismissal from the office that Mahendra began to see the Court as a form of political insurance against his adversaries. Over the course of his political rivalry with the Yudhoyono administration, Mahendra scored many victories in the Constitutional Court. Nevertheless, not many people realize that Mahendra never really received the full benefit from the Court decision, because it had no immediate effect to remedy Mahendra’s injury.

In the first case, the Court did not deal with the constitutionality of the graft probe against Mahendra. The Court was simply interpreting the constitutionality of the term limits of the Attorney General. Thus, the Court decision did not stop the AGO from continuing the graft probe. In the second case, the Court’s ruled that President Yudhoyono was qualified as a witness in the criminal investigation and Mahendra has constitutional rights to propose a witness during the investigation. In the aftermath of the Court decision, the AGO never summoned President Yudhoyono to testify in the graft probe against Mahendra. In the third case, the Court decision did not provide any remedy to Mahendra and it was obvious that the decision was merely a kind of advisory opinion. The Court was simply interpreting the constitutionality of the Immigration Law, after the AGO had redressed Mahendra’s injury by dropping the case. Although Mahendra never claimed any real victories from the Constitutional Court, he did prove that it was worth the money and energy to bring cases before the Court, because it could grant a moral victory for the citizens who want to defend their constitutional rights. Furthermore, the Court’s decisions brought some pressure for the Executive branch to drop the criminal charges against him. Without a specific win, Mahendra still demonstrated the Court’s power.

Suggested citation: Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, IConnectBlog, August 25, 2013, available at http://www.iconnectblog.com/2013/08/the-first-ten-…insurance-role/ ‎