A Critical Analysis of Judicial Appointment Process and Tenure of Constitutional Justice in Indonesia

The judicial appointment process is one of essential elements for maintaining judicial independence and public confidence of a court. This article analyses the practices of judicial appointment process exercised by three different main state institutions in selecting constitutional justice in Indonesia where the mechanism and process for selecting them have been implemented differently. It also examines the tenure of constitutional justice, which is a five-year term and can be renewed for one term only, that may lead to another problem concerning the reselection process of incumbent constitutional justices for their second term. The article concludes that the judicial appointment process and tenure of constitutional justice in Indonesia have to be improved. It suggests that if the proposing state institutions could not meet the principles of transparency, participation, objective and accountable required by the Constitutional Court Law, the judicial appointment process should be conducted by creating an independent Selection Committee or establishing a cooperation with the Judicial Commission. Additionally, the tenure of constitutional justices should also be revised for a unrenewable term with a longer period of nine or twelve years.


INTRODUCTION
James J. Spigelman, the Chief Justice of New South Wales, argues that there is no single model of judicial appointment applicable in every system of judiciary. 1However, it is believed that judicial appointment process plays an important role to maintain 1 James Jacob Spigelman. (2007)."Judicial Appointments and Judicial Independence", paper presented at the Rule of Law Conference, Brisbane, August 31, p. 16.

Judicial Appointment Process
As explained above, the judicial appointment process for selecting constitutional justice received criticsm because the three branches of goverment do not implement the same mechanism.This section will analyse those practices in order to improve the judicial appointment process.

Justice Selection
The practice of constitutional justice selec-  The DPR then selected the candidates who were only nominated by the Expert Team. 15  This new mechanism was undertaken by the DPR to restore public trust in the DPR and the Constitutional Court.

Improving the Selection Mechanism
Many  where each branch of government has a power to select three constitutional justices.

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Jimly decided to resign from his position as a Constitutional Justice just one month after he was reselected for the second term (2008)(2009)(2010)(2011)(2012)(2013).Jimly reasoned that he had completed his duty to establish the Constitutional Court during its first five years.Nevertheless, a strong argument is that Jimly's resignation was due to him not being reselected as the Chief Justice.In close voting among the Constitutional Justices, Jimly was defeated by his colleague Mahfud MD, 5:4 votes.In addition, Jimly's resignation was also taken to avoid the emergence of leadership disharmony in the Constitutional Court.PDIP-P is the party where President Jokowi becomes one of its members.However, Palguna assured that he would be independent from any political party, including from the PDI-P, as shown when he was serving as a Constitutional Justice under the leadership of Chief Justice Jimly Asshiddiqe (2003)(2004)(2005)(2006)(2007)(2008).
was not extended since he had greatly con-  (2003-2008;2008-2010), Muhammad Alim (2008-2013;2013-2018) and Anwar Usman (2011-2016; 2016-2021) Court (Mahkamah Konstitusi, or MK) has nine constitutional justices nominated by the president, the People Representative Council (Dewan Perwakilan Rakyat, or DPR) and the Supreme Court (Mahkamah Agung, or MA).The number of constitutional justices and its selection model is identical to the system implemented in South Korea.Harding and Leyland named this selection model the Korean representative. 3This model establishes an ideal check and balance mechanism among constitutional justices in which the executive, the legislative and the judiciary branches of government select nine constitutional justices.The advantage of this selection model is that it can build and share trust between the three branches of government because they directly participate in selecting and determining constitutional justices.In addition, the selected constitutional justices have stronger political legitimacy compared to the selection model determined by a single branch of government.For example, if the president or the DPR appoints all constitutional court justices, the two other branches of government may criticise their choices or blame them if the Constitutional Court performs poorly.fault/files/Judicial-Appointments-EN.pdf.[AccessedMay 11, 2016].Andrew Harding and Penelope Leyland."The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia" in Andrew Harding and Penelope Leyland (eds).(2009).Constitutional Courts: A Comparative Study.London: Wildy, Simmonds & Hill Publishing, p. 329.Moreover, many cases handled by the Court are closely linked to political and constitutional issues, thus political legitimacy is required.The selection model determined by three different branches of government is also believed to generate constitutional justices from different backgrounds, deemed advantageous in deciding various constitutional cases.This selection model of constitutional justice is acceptable, in theory.However, this practice for selecting constitutional justices has many problems.The main cause being that the three branches of government do not have the same mechanism in selecting constitutional justices.The Constitutional Court Law only regulates some general provisions relating to the nomination and selection procedure of the constitutional justices: Article 19: The nomination of constitutional justices is conducted transparently and participatory.Article 20: (1) The procedure for selection, election and submission of constitutional justices are regulated by the respective authorised institutions as referred in Article 18(1).(2) Selection of constitutional justices referred in paragraph (1) shall be conducted objectively and accountably.The question is how to improve the judicial appointment process for selecting constitutional justice in Indonesia in order to strenghten judicial independence and public confidence of the Constitutional Court?In this article, I will start by examining constitutional justice selection practices in each branch of government holding power to select candidates.The weaknesses of the current selection mechanism are analysed in order to improve the system.Given that the selection mechanism of constitutional justices is closely related with its tenure, this article will also examines the current provision concerning the tenure or term of office of constitutional justices.

a
Constitutional Court Justice also received criticism from the public.They also asked the DPR to take responsibility for their decision in extending Mochtar's tenure for a second term (2013-2018).Mochtar's tenure had been extended by the DPR on February 2013, eight months before his arrest.In response to such criticism, the DPR conducted an internal evaluation of the selection mechanism for constitutional justices.In selecting the fourth generation of constitutional justices in 2014, the DPR, for the first time, established the Expert Team of the Constitutional Justices Selection consisting of academics and national figures.

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Law Number 4 of 2014 on The Enactment of Government Regulation in Lieu of Law Number 1 of 2013 on the Constitutional Court revoked the new Law entirely using the following main arguments.First, the Constitutional Court reasoned that the nomination of constitutional justices, through the Expert Panel established by the Judicial Commission, reduced the constitutional powers granted by the Constitution to the President, the DPR and the Supreme Court.Furthermore, the Expert Panel will select constitutional justices with the same standards, including similar background.The Court stated that selected constitutional justices should have different backgrounds because they originally come from three different branches of government.According to the Court, favouritism and populism should be avoided in the selection of constitutional justices. 25Second, the Constitutional Court said that the Judicial Commission is not a supervisory body of the constitutional justices. 26The Court considered the involvement of the Judicial Commission in the recruitment process and the supervision of constitutional justices to be a form of 'smuggling of law' (fraudem legis). 27Third, the Court reasoned that the additional requirement for constitutional justhe Second Amendment to Law Number 24 of 2003 on the Constitutional Court (hereinafter the Enactment of Interim Emergency Law on the Constitutional Court).25 Constitutional Court Decision Number 1-2/PUU-XII/2014, reviewing Law No. 4 of 2014 on the Enactment of Government in Lieu of Law on the Constitutional Court Law (MK Perppu (2014) case), pp.110-111.26 See Constitutional Court Decision No. 005/PUU-IV/2006, reviewing Law No. 22 of 2004 on Judicial Commission (Judicial Commission (2006) case).27 Ibid., p. 115.tice candidates, to not be a member of any political party at least seven years prior nomination, negatively stigmatises political party members.According to the Court, such stigmatisation injures the citizens' constitutional rights as guaranteed by the Constitution because it lacks a solid and valid legal basis. 28Fourth, the Constitutional Court found that the Interim Emergency Law on the Constitutional Court did not meet the constitutional requirements of emergency circumstances or a state of necessity according to the Constitution and the Constitutional Court decision. 29As a result, the Constitutional Court entirely annulled the Law.Given that it was an unpopular decision, the Court received a lot of criticism from the public.The question remains: how should the selection mechanism of constitutional justices be improved?In my view, based on the evaluation of the past twelve years, the selection of constitutional justices can still use the model, the so-called Korean representative, 30

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Harding and Leyland, Op.Cit., p. 329    At this stage, as a new judicial institution with strategic roles, the Indonesian Constitutional Court still needs support and political legitimacy from other state institutions, particularly the president, the DPR and the Supreme Court.Thus, shared responsibility from the three state institutions towards the performance of the Constitutional Court is required since they all contribute in selecting constitutional justices.In addition, the Constitutional Court has become the midpoint for implementing checks and balances within the constitutional system in Indonesia.Nevertheless, a main weakness of this model is the possibility of candidates being selected as constitutional justices who lack expertise and competencies, but may have strong personal relationships with the President, the DPR Law Commission members or the Chief Justice of the Supreme Court.This type of constitutional justice selection is motivated by efforts to secure the interests of the nominating state institutions.Moreover, there is also a concern that ordinary candidates will intentionally be selected by the nominating institutions to weaken the Constitutional Court performances, known as 'the Trojan horse strategy'.There are several suggestions to avoid or at least to minimise these weaknesses of the current constitutional justice selection mechanism.First, each branch of government must create specific and permanent procedures for selecting constitutional justice candidates.This procedure can be regulated internally.Without a clear mechanism and procedure, however, the selection of constitutional justices may change every time depending on the interest of nominating institutions.The establishment of an Independent Selection Committee or an Expert Panel by the President and the DPR should be continued as an initiative from the respective state institutions.This establishment is needed to avoid the subjectivity of decisions made by the President, the DPR Law Commission members and/or the Chief Justice of the Supreme Court.Second, the President, the DPR and the Supreme Court can cooperate formally with the Judicial Commission.These three state institutions can ask for assistance from the Judicial Commission, as the Selection Committee, to nominate the best candidates for constitutional justices.A formal cooperation like this would not conflict with the Constitution or the Constitutional Court decision because it would be based on the respective state institutions delegating some of their power to the Judicial Commission.However, the final decision to select the constitutional justices would remain in the hands of each state institution, since the Judicial Commission only nominates the candidates of constitutional justices.In addition, the President and the DPR have previously agreed to establish the Expert Panel for the Judicial Commission, as stated in the Interim Emergency Law on the Constitutional Court.It has also received input from the Supreme Court during the consultative meeting between the president and other state institutions.Therefore, if the three state institutions remain consistent in their decisions and recommendations, there is no reason for these institutions to reject the involvement of the Judicial Commission or an Independent Selection Committee for nominating constitutional justices.Third, another frequent problem in the selection process is that there are too few candidates interested or considered worthy to be selected as constitutional justices.Therefore, the Selection Committee or the Expert Panel should be more active in inviting and searching for candidates.Presently, many legal and constitutional experts are not interested in registering themselves, due to the political lobbying practiced in the selection process.With the establishment of an Independent Selection Committee or an Expert Panel free from political intervention, it is expected that more constitutional justice candidates, with different expertise, will be interested in registering themselves, or being registered by others.It will be easier for state institutions to select nominated candidates when the number of qualified registrants increases.
stitutional justices.According Article 22 of the Constitutional Court Law, the tenure of a constitutional justice is five years and can be renewed for one term only. 31A problem occurs when an incumbent, including the Chief Justice of the Constitutional Court, is to be reselected for their second term.Should they register and follow the fit and proper test again with other new candidates?The absence of clear provisions in the Constitutional Court Law has resulted in each branch of government implementing their own procedures for reselecting the incumbent constitutional justices.The following section analyses the problems caused by the tenure and reselection mechanism of constitutional justices.Problems of Tenure and Reselection Mechanism At the end of his tenure, Chief Justice Jimly Asshiddiqie (2003-2008) was not interested in extending his position for a second term because he would have to reapply and follow the selection process from the beginning, again.However, the professionalism and progressiveness showed during his leadership lent credibility and trustworthiness to the Constitutional Court.

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Although Mahfud MD had been campaigning seriously, and he helped the National Awakening Party (PKB) increase their seats in the DPR, Mahfud was not nominated as a candidate for President or Vice President by any political party, including PKB.Mahfud just became the Head of Campaign Team for Presidential Candidate Prabowo Subianto, who was defeated by his opponent Joko Widodo in the 2014 Presidential Election.ived a special procedure from the DPR to bypass any fit and proper test.The DPR only asked if he would be willing to be reselected as a constitutional justice for the period of 2013-2018.Fourth Chief Justice Zoelva's selection, by President SBY, followed a different procedure for his reappointment.If he would like to continue his second term in 2015, the newly elected President Jokowi would need to reselect him.In selecting a new constitutional justice, as discussed previously, President Jokowi formed a Selection Committee in order to fulfil the selection principles mandated by the Constitutional Court Law.The Selection Committee announced that incumbent Chief Justice Zoelva still had to register himself, or be registered by others, to be a candidate for constitutional justice.There was also an obligation for him to follow all selection processes without any distinction from other candidates.These selection processes consisted of administrative selection, assessment of track record and an open interview by the Committee and the public.The decision taken by the Selection Committee was different from the previous selection process and cannot be separated from public concern caused by the arrest of previous Chief Justice Mochtar.Although Zoelva was registered by human rights NGOs, such as the Impartial and the Indonesian Legal Aid Foundation, he decided not to follow the selection processes and left the decision about his second tenure to President Jokowi.Given that Hamdan did not have a public interview, the Selection Committee could not nominate him as a constitutional justice candidate to be selected by President Jokowi. 35Zoelva argued that, ethically, a constitutional justice, particularly the Chief Justice of the Constitutional Court, did not need to reapply and follow the fit and proper test again in order to assess his feasibility as a constitutional justice candidate.In an interview on national television, Zoelva said that the President and the Selection Committee only needed to assess his performance and track record during his first tenure as the Chief Justice or a Constitutional Justice.From that assessment, according Zoelva, the President or the Selection Committee could decide whether he should continue his term or not, without following another fit and proper test.Zoelva also argued that his decision was taken to maintain the dignity and the honour of the Constitutional Court.Many people regretted that Zoelva's tenure 35 President Jokowi finally selected I Dewa Gede Palguna, a former Constitutional Justice from the first generation (2003-2008) and a law lecturer at Faculty of Law of the University of Udayana in Bali.Palguna is also a former member of Group Delegates (Utusan Golongan) of the People's Consultative Assembly (MPR) proposed by the Bali Provincial DPR (1999-2004).Together with Hamdan Zoleva and Patrialis Akbar, Palguna involved in the Ad-Hoc Committee III during the process of the 1945 Constitutional amendment and the establishment of the Constitutional Court.Given that the Group Delegates was abolished in 1999, Palguna chose to join the Indonesian Democratic Party-Struggle (PDI-P) because the Party won almost 80% of votes in Bali at the time.
tributed in leading the Constitutional Court, restoring public trust during the critical period after Mochtar's case, particularly when he led the Constitutional Court in resolving hundreds of cases concerning legislative and presidential elections disputes in 2014.Hamdan compared this treatment to the two former Constitutional Court Justices, Jimly Asshiddiqie and Akil Mochtar, who were reselected by the DPR without taking any fit and proper test.Furthermore, other Constitutional Justices were reselected for their second term by the President and the Supreme Court through direct personal interviews only.For instance, President SBY reselected Abdul Mukthie Fajar (2003-2008), as a Constitutional Justice, for a second term (2008-2010) through a personal interview.Likewise, President SBY also reselected Maria Farida Indrati (2008-2013) for a second period (2013-2018) without a fit and proper test.In addition, the Supreme Court reselected Maruarar Siahaan

the
Constitutional Court, equal to two terms of a constitutional justice's tenure.Revising the Tenure of a ConstitutionalJusticeBased on the discussion above, it is clear that a problem exists regarding the constitutional justice tenure and the mechanism to reselect the incumbent constitutional justices.In my view, the incumbent constitutional justices should be invited and asked whether they are willing to continue their term or not.They should not have to follow another fit and proper test again, let alone be asked directly about every decision they have ever made.Incumbent candidates can be assessed through their integrity, capability and independence during their tenure as constitutional justices.An examination can also be conducted on legal opinions and legal considerations made by the incumbent candidates in their Constitutional Court decisions.The selection process should also follow the principles contained in the Constitutional Court Law which are transparency, participation, objectivity and accountability.Nonetheless, it does not mean that all incumbent constitutional justices would be automatically reselected.If the assessment result is not good, then their tenure does not need to be extended.The Selection Committee then can begin looking for new constitutional justice candidates.This suggestion is a form of the compromise mechanism between the interests of the Selection Committee and the ethical issues faced by the Chief Justice or constitutional justices who will be assessed for their second term.However, this mechanism should be regulated by revising the Constitutional Court Law or by making an internal regulation in each nominating institution.However, the best improvement is not exactly related to the mechanism and procedure for reselecting incumbent constitutional justices.In my view, reforms should relate to the tenure of constitutional justices, set up as a five-year term and able to be renewed for another term.One reason to limit a term to five-years is to adjust to the five-year political cycle of presidential and legislative elections.This system exists because constitutional justices are considered as political representatives of their nominating institutions.Therefore, if the performance of a constitutional justice is not in accordance with the interests of the proposing institution, they will not be reselected.In this context, constitutional justices are vulnerable to the interventions of proposing institutions seeking to secure their own interests.Therefore, the provision concerning a constitutional justice's tenure should be revised for once and not renewed.However, ideally, tenure has to be longer than five years.There are several supporting arguments for revising this tenure.First, the impending expiration of tenure can potentially reduce the independence of constitutional justices since, to be reselected, they may make decisions deemed more study form other constitutional courts, as showed on the Table1 above, I suggest that the tenure of constitutional justices should be nine to twelve years and non-renewable.Lastly, the tenure of the Chief Justice and the Deputy Chief Justice, which are only two and a half years, should also be revised.The current system proved problematic during the leadership transition from Chief Justice Jimly Asshiddiqie to Chief Justice Mahfud MD, leading to the resignation of Asshiddiqie as a constitutional justice.Therefore, the tenure of the Chief Justice and the Deputy Chief Justice should finish at the end of his or her tenure as a constitutional justice.Thus, there would be no internal conflict among the constitutional justices who want to compete for the position of the Chief Justice or the Deputy of Chief Justice of the Constitutional Court.Moreover, the position of the Chief Justice and the Deputy of Chief Justice is a noble position, a symbol of Court leadership and court management.Therefore, it should not be frequently rotated among constitutional justices.CONCLUSION After twelve years since its establishment, the Indonesian Constitutional Court still faces many institutional challenges.This article shows a serious challenge faced by the Indonesian Constitutional Court related to the recruitment system for selecting constitutional justices.There was inconsistency in determining the selection mechanism since each proposing institution lacked a specific and permanent procedure to select constitutional justices.Moreover, criticism of the selection mechanism of constitutional justices often happened because the judicial appointment processes were deemed not transparent, participatory, objective or accountable, as required by the Constitutional Court Law principles.In this context, the state institutions that have a power to select constitutional justices are the president, the DPR, and the Supreme Court, and they must implement these principles.If they cannot meet the principles, they have to establish an independent Selection Committee that free from any intervention.Alternatively, the proposing state institutions can cooperate with the Judicial Commission to nominate the best candidates for constitutional justices.Furthermore, the reselection mechanism of the incumbent Chief Justice or the constitutional justices for their second term created a problem because it was done differently among the proposing state institutions.In resolving this problem, the tenure of constitutional justices should be revised.Currently, the Constitutional Court Justices hold a position for five years and their tenure may be renewed for one term only.In my view, the constitutional justices should serve for one term only for a period of nine or twelve years.This means the constitutional justices will have a longer tenure, yet it is unrenewable.The term of the Chief Justice and the Deputy Chief Justice, which is only two and