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The Indonesian Constitutional Court
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trial, they would be dismissed under Article 32(1)(c) of Law No 30 of 2002 on
the Anti-corruption Commission, which states:
Anti-corruption Commission leaders are to leave their position or be removed
from their positions if they become a defendant (terdakwa) in a criminal case.
One of their arguments was that the Constitution gave citizens the right to be
presumed innocent until proven guilty, despite the Constitution not expressly
stating this presumption. Article 32(1)(c) breached that right, they said.
The Court affirmed that due process of law is a fundamental constitutional
guarantee. It requires that all legal processes are fair: people must be informed
of legal processes against them and must have the right to be heard before
their rights, freedoms or property are taken away.
26
In particular, the Court
argued, due process of law and the presumption of innocence are primary
principles of Indonesia’s democratic Negara Hukum. It agreed that Article
32(1)(c) contravened the presumption of innocence because it imposed a
sanction without trial. As the applicants had argued, they could be dismissed
before being found guilty of an offence – indeed, even if they were never
found guilty of an offence.
10.3. Criticisms
In these cases, the Court has provided scant reasoning to support its decisions.
Most significantly, the Court has not explained the ‘version’ of the rule of law
it has adopted or applied in these cases. This is highly problematic because,
as we will see, the ‘rule of law’ (or Negara Hukum in the Indonesian context)
is a concept that has been misused as a legitimising tool for decades to sustain
authoritarianism.
This failure to adequately explain has not been recognised as a significant
shortcoming by Indonesian lawyers and politicians who, as mentioned, have
focused their critiques on the particular outcomes of these cases. This is partly
because Indonesian judicial decisions have not traditionally provided detailed
reasoning. Indonesia’s legal system follows the civil law tradition. Under that
tradition, many courts produce short decisions, leaving much of the reasoning
and contextualisation of decisions to other actors, such as legal academics,
and there is generally no formal system of precedent.
27
26
Constitutional Court Decision 6-13-20/PUU-VIII/2010, para 3.18.
27
Mitchell Lasser, ‘Anticipating Three Models of Judicial Control, Debate and Legitimacy: The
European Court of Justice, the Cour de Cassation and the United States Supreme Court’,
Jean Mooet Working Paper 1/03.
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Simon Butt
However, the unique status that Constitutional Court decisions have in
the Indonesian system – legally, politically and historically – increases the
transparency and accountability threshold the Court must reach, beyond
those of Indonesia’s other courts. The Court’s roles – as adjudicator of the
Constitution and its meaning, by which the Court can displace the deci-
sions of a democratically elected legislature and as arbiter of important mat-
ters of state – encumber it with a significant ‘explanatory burden’.
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Other
Indonesian courts can point out that their decisions do not formally create
law, and argue that accountability and transparency mechanisms are, there-
fore, less critical for them because their decisions affect only the parties. By
contrast, the Court has no such ‘defence’ at its disposal and, indeed, the
Court’s identification and application of unexpressed constitutional rights
appears to further increase its ‘burden’.
Another reason why the Court must explain its reasoning in more detail
is the widespread presence of judicial impropriety. Most Indonesian courts
are notorious for corruption.
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The more detailed and convincing the reason-
ing, the less likely are suspicions that ‘something else’ is behind the Court’s
decision-making. While the Constitutional Court is almost certainly much
cleaner than most other Indonesian courts, opportunities for graft abound, as
the Akil Mochtar conviction demonstrates.
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