Few might have ever thought when this nation – through its representatives in the People's Consultative Assembly – agreed in 2001 to establish the Constitutional Court, that the new judicial institution would emerge as such a powerful body that many fear it could undermine democracy itself.
Criticism of the Constitutional Court for annulling the 2004 Truth and Reconciliation Commission Law and for questioning the legitimacy of the Anticorruption Court earlier this month has capped widespread anxiety that the Constitutional Court is exceeding its jurisdiction.
Both domestic and international rights campaigners say the striking down of the Truth and Reconciliation Commission Law will only serve to perpetuate the impunity of those who perpetrate the sort of crimes against humanity that have been such a feature of the Indonesian scene in the past. For its part, the House of Representatives perceives the court ruling as infringing on its legislative powers as the decision to annul the entire statute went far beyond the original petition impugning the legislation.
When it tampered with the 2002 Corruption Eradication Commission Law by declaring the Anticorruption Court, as currently constituted, to be inconsistent with the country's judicial system, many lashed out at the court for undermining the nationwide anticorruption drive.
A group of lawmakers have gone so far as to demand the amendment of the 2003 Constitutional Court Law in order to restrict the court's powers.
In the more than three years since its inception, the court has reviewed no less than 50 statutes and made changes to 28 of them. Some of its decisions won applause, including this month's ruling annulling a Criminal Code provision outlawing "insults" against the presidency, and a June ruling requiring the government to allocate 20 percent of the national budget to education. Some others have drawn criticism, including its ruling against the retroactive application of the antiterrorist legislation in the trials of those linked to the 2002 Bali bombings, and the controversial recognition of West Irian Jaya province.
"Many have perceived us as going against the mainstream," the court's president, Jimly Asshidiqqie, said during a ceremony to commemorate the court's third anniversary last August, referring to its controversial rulings.
Billed as the guardian of the Constitution, the court was intended to ensure that the checks and balances mechanisms, which have proved so unreliable in the past in Indonesia, might finally be allowed to work. Besides having the right to annul laws that it finds are repugnant to the Constitution, the court also has jurisdiction to hear and decide upon moves to impeach the president.
It is obvious, however, that the dispute between the House and the Constitutional Court does not really center on the court's rulings, but rather on the fact that the nine-member court can undo the work of 700 legislators elected by the Indonesian people. The court's judges were selected by the House, or, to be precise, the members of the House legal affairs commission.
While the argument looks valid, the Constitutional Court has taught the lawmakers, as well as the government, the valuable lesson that the law-making process requires competence, as well as political will and compromises.
In fiscal 2006, the House allocated Rp 640 million for each bill it drafted, while the government spent up to Rp 6 billion. The House plans to double this funding next year in a bid to boost productivity in the framing of legislation. Statistics show that the lawmakers have chronic problems with productivity. They endorsed 14 out of the 55 bills in the pipeline in 2005, while this year their performance has only slightly improved, with 37 out of 78 bills being passed.
Quality is another weak spot plaguing the framing of legislation in Indonesia, as the Constitutional Court has pointed out. Therefore, improving the capacity of our lawmakers is imperative; otherwise a tidal wave of challenges to the constitutionality of statutes will ensue. The Constitution, which provides the legal foundation for all legislation, must be upheld if the nation wishes to achieve real democracy and prosperity.
However, it may be dangerous to leave the job of interpreting the Constitution to the Constitutional Court alone. Moreover, there is no longer any institution that can assess the work of the court after it annulled the power of the Judicial Commission to oversee the work of members of the judiciary, including the nine Constitutional Court judges, last July. "The Constitutional Court has the potential to emerge as a superbody," commented worried constitutional law expert Lodewijk Gultom.
Such concerns are worth considering and should spark a debate on how to redraw the rules of the game. As Gultom has put it, a fifth amendment to the Constitution is required to redefine the boundaries of the Constitutional Court's jurisdiction and to reinstate the annual People's Consultative Assembly plenary session to hear and evaluate reports from the high organs of state, including the Constitutional Court.
To make the system of checks and balances effective, no single high organ of state should be able to stand above the others. A healthy discourse on the Constitutional Court's jurisdiction is essential to building an independent court that protects and upholds the Constitution. Otherwise, the court could turn into a monster.