- Four Constitutional Court Justices Reported
- Constitutional Court Decideson Eliminating Judicial Commission’s Authority on Recruitment of Justices
- The Indonesian Police Chief Circular on Anticipating Hate Speech
- NGO Coalition Submits Tracking Results of Ombudsman Member Candidates
- House of Representatives Disapproves Two Judicial Commission Proposed by President
Four Constitutional Court Justices Reported
The Jakarta Law Students Movement (Gerakan Mahasiswa Hukum Jakarta/GMHJ) reported four justices of the Constitutional Court (Mahkamah Konstitusi/MK) to the police for alleged abuse of power as stipulated in the Criminal Code. This report relates to the MK decision regarding the authority of the Judicial Commission (Komisi Yudisial/KY) in the selection of justices of the district court. The decision states thatcandidate selections for justices of the district court do not involve the KY.GMHJ thinks there is a conflict of interest between the applicants, namely the Indonesian Judge Association (Ikatan Hakim Indeonesia/IKAHI) with three justices in the MK who are handling this case; Manahan Sitompul, Suhartoyo and Anwar Usman, whereas the MK Chairman, Arif Hidayat, was also reported because he did an omission.
Another step taken by GMHJ was reportingthose four justices to the MK Ethics Board. They found several violations of ethics during the trial of this case. In the trial, the Law and Constitutional Studies Forum(Forum Kajian Hukum dan Konstitusi/FKHK) sent an objection letter to the MK stating that three MK justices came from the Supreme Court so there would be a conflict of interest since MK justiceshandle the cases filed by IKAHI.However, the MK did not confirm this until the VII session; when FKHK asked for confirmation on the panel of justices, the Chief Justice cut short the explanation from FKHK and asked the clerk to turn off the loudspeakers. Furthermore, outside the court, GMHJ recorded a constitutional justice attending the swearing-in and inauguration of a district justice together with a number of Supreme Court justices, High Court justices, and registrars.
The basis of reporting a crime and a violation of conduct is Article 17 paragraph (5) Law No. 48 of 2009 on Judicial Power, which states that justices or registrars should resign from the trial should they have a direct or indirect interest to the case being examined. In Article 17 paragraph (6), it is also stipulated that if there is violation to paragraph (5) then the decision declared invalid and the justice or registrar is penalized with administrative or criminal sanctions in accordance to the regulations. Meanwhile, the aspect of ethics that has been violated is stipulated in MK Regulation No.09/PMK/ 2006 on the Declaration of the Ethics and Conduct Code, namely the Principle of Independency and Impartiality. (RW)
Supreme Court and the Judiciary
Constitutional Court Decideson Eliminating Judicial Commission’s Authority on Recruitment of Justices
On 7 October 2015, the Constitutional Court granted a request by the applicant Indonesian Justices Association (IKAHI) to eliminate the authority of the Judicial Commission (KY) in the recruitment process of justices in the district courts. Amendments to the Law on the General Court, Religious Court, and State Administrative Court of 2009 mandates that the selection of district court justices is conducted “together” by the Supreme Court and the Judicial Commission. However, the Laws do not regulate and further explain how the word “together” can be implemented.
Article 24 paragraph (1) of the Constitution states that the judicial power is an independent power to organize judicial administration to uphold the law and justice. To achieve these objectives, the existence of strong institutions with sustained human resources in the form of qualified justices, is a requirement that cannot be denied. Research conducted by the National Law Commission (Komisi Hukum Nasional/KHN) mentioned that the process of recruitment of justices was measuredas being susceptible to corruption, collusion, and nepotism. Candidates who should not qualify for being in the selection in fact get to be justicesdue to having ties with officials at the Supreme Court.
Authority given to the Judicial Commission in the selection of district court justices intended to strengthen the judiciary by recruiting qualified candidates. In addition, the involvement of KY in the justice selection process was expected to uphold transparency and accountability. With the Court decision, the expectations of the amendments in the Law on the General Court, Religious Court, and State Administrative Court of 2009 that selection process must be conducted in a transparent, accountable, and participatory manner will face a major challenge. (ED)
The Indonesian Police Chief Circular on Anticipating Hate Speech
Religion based riots that hit Indonesia recently, such as the Tolikara and Singkil Incident, has become the main reason for the Indonesian Police Force to issue Circular No.6 of 2015 on Anticipating Hate Speech. A circular is an internal directive that is only applied inside an institution as a form of technical application of a law. Therefore, this circular is an affirmative act from the law that already exists right now, such as the Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP), Law on Information and Electronic Transaction, Law on Elimination of Racial and Ethnic Discrimination, and so on.
There is a dividing line between hate speech and freedom of speech. Generally, hate speech is based on hatred against ethnicity, religion, race, gender, sexual orientation, and disability, though in practice, hate speech often hides behind the freedom of speech. Seeing the potential damage that can occur from such acts, the law enforcement against the perpetrators of hate speech is appropriate. The real question is why does the police force seemblunt in dealing with cases of hate speech? Even without the circular, the police force has already had strong legal tools to take action.
The main issue is not about whether there the circular should exist or not, but rather about the law enforcement that should be done, especially by the police force. However, it is also necessary to criticize the circular for including insults and defamation as a form of hate speech that need to be anticipated. Insult and defamation aimed at an individual subject is clearly different from hate speech aimed towards a communal subject or group. (MSG/KFL)
NGO Coalition Submits Tracking Results of Ombudsman Member Candidates
On Monday, 26 October 2015, the Coalition of Concerned Citizens towards Public Services (Masyarakat Peduli Pelayanan Publik/MP3) submitted the tracking results of 36 (thirty-six) candidates for the Ombudsman of the Republic of Indonesia (ORI) Members to the selection committee. The tracking conducted was based on six aspects; legal compliance, integrity, capability, relationships with political parties, conflicts of interest, and performance. From this process, the Coalition identifiedas many as 15 (fifteen) candidates who were not recommended to continue for the next stage, while only 20 (twenty) candidates had competency.
The committee will filter out half the number of candidates to result to 18 (eighteen) candidates. In regards to this, the selection committee has conducted open interviews from 27 to 30 October 2015. The track record found by the Coalition has become material to confirm the findings in the open interview and will be considered by the committee before submitting the names to the President. There is hope from the public that the selection process that has been conducted will be able to produce competent names to carry out the functions of the Ombudsman in monitoring the implementation of public service.(ED)
House of Representatives
House of Representatives Disapproves Two Judicial Commission Proposed by President
The Plenary Session of the House of Representatives on Tuesday, 20 October 2015 has set 5 (five) candidates of the Judicial Commission (KY) members. Previously, Commission III of the House held a fit and proper test for 7 (seven) candidates proposed by the President and approved 5 (five) of them. The candidates who received approval were Joko Sasmito (former justice), Maradaman Harahap (former justice), Farid Wajdi (legal practitioner), Sumartoyo (legal practitioner), and Sukma Violetta (civil society). Meanwhile, two candidates who represented legal academics, Wiwiek Awiati and Harjono, were not approved by way of acclamation. The reason for non-approval, mentioned by Aziz Syamsuddin (Chief of Commission III),was the integrity factor, while monitoring results on Judicial Monitoring Coalition has shown that those reasonswere irrelevant because the fit and proper test held did not focus much on the integrity of the candidates.
The disapproval of two Judicial Commission candidates by the House re-opens the discussion on the authority of the House of Representatives in the selection process of Judicial Commission members. Article 24B of the Constitution states that the Judicial Commission members are appointed and dismissed by the President with the approval of House of Representatives. While Article 28 paragraph (6) of Law No. 18 Year 2011 on the Amendment to Law No. 22 Year 2004 on the Judicial Commission states that “The House of Representatives shall choose and assign 7 (seven) prospective members no later than 30 (thirty) days after receiving a proposal from the President.” Constitutional Court Decision No. 27/PUU-XI/2013 states the phrase “shall select and” is contrary to the Constitution as long as not understood as “authorized to approve or disapprove.”The Court in its consideration mentioned that the Law should provide space for the House in exercising authority to approve or disapprove candidates proposed by the President.
Problems arise when the law does not further regulate the mechanisms if the House does not approve candidates proposed by the President. The current condition urges the President to submit two more names to the House of Representatives because the law specifies a time limit for the President to determine the candidates elected from the date of the letter received by the House. If this deadline passes, the Judicial Commission will temporarily be run by 5 (five) Members. According to the Law, the Judicial Commission would still be able to carry out its duties and authorities with five members as a minimum. However, the minimum limit is inappropriate to be used as a standard because it is not impossible that this precedent would be repeated in the selection of other public officials.(ED)