Upcoming changes to powerful Indonesian court will erode judges’ independence, experts fear

Indonesia is poised to make revisions to the Constitutional Court, including requiring its judges to be evaluated and approved by the president and parliament for continuation, which legal experts say could expose it to political influence.

If the proposed revisions to the law on the Constitutional Court’s governance go through, they coincidentally will also affect three of the current justices who gave dissenting opinions in cases that challenged the results of the Feb. 14 presidential and legislative elections.

These changes to the powerful court were proposed in February 2023, after it declared a number of proposed laws invalid, including President Joko “Jokowi” Widodo’s cherished one, the Jobs Creation Law, ruling party members openly told Indonesian media.

Jokowi will step aside in October but if the law is ratified, the path to implementing policies will be smoothed for President-elect Prabowo Subianto and his deputy, Jokowi’s eldest son, when they take office. For critics who had accused the outgoing president of whittling away at democratic norms, this development seems to provide them more fodder.

A constitutional law lecturer, Khairul Fahmi, said that making the extension of judges’ terms contingent on evaluations would make them more compliant.

“It will definitely reduce the independence of judges because the confirmation process can be used as a tool to pressure judges to follow the wishes of the nominating institution,” the lecturer from Andalas University in West Sumatra told BenarNews.

That’s because after their evaluation, the judges who have been on the bench for five years have to also be approved by the institutions that nominated them, which include the president and the parliament.

Another revision, reducing judges’ tenure to 10 years from 15, makes the five-year evaluation even more important to pass.

It is all but certain the changes will go through, two lawmakers indicated.

Members of Parliament Taufik Basar and Adies Kadir said the bill on the court’s governance would be ratified by the president and the legislature at the parliament’s next plenary session that begins May 20.

The controversial revisions were approved by the two in a closed-door meeting on Monday.

Lawmakers defend the changes, saying they aim to improve the court’s performance and accountability. 

Mohammad Mahfud MD, who was the coordinating minister for political, legal, and security affairs when the changes to the law governing the Constitutional Court were proposed, claimed that he always rejected them.     

“That’s why I refused revisions [when I was legal affairs minister]. This endangers independence,” Mahfud MD, a former chief justice of the Constitutional Court, said in an Instagram post on Tuesday.

“Why? The judges will be intimidated in subtle ways, so their independence will be held hostage,” said the former minister, who was a losing vice-presidential candidate in the February 2024 election.

He resigned as a minister in the Jokowi administration in January, claiming the president, who should be neutral, was showing support for the ticket that had his son and Prabowo on it.

Meanwhile, one law lecturer firmly believed the changes were meant to discredit the three judges who gave dissenting opinions in the cases that disputed the election results.

“This is clearly unfair. Authority has been used arbitrarily,” Abdul Fickar Hadjar, a professor at Trisakti University, told BenarNews.

Of the nine constitutional judges, the two justices who have both dissented and served more than five years but under 10 are Deputy Chief Justice Saldi Isra and Enny Nurbaningsih. 

The third judge who dissented was Arief Hidayat.

According to The Jakarta Post, he would have finished 10 years on the bench last year, which means his term is over under the proposed new rules.