Feri Amsari – On 27 August 2024, former Constitutional Court Chief Justice Anwar Usman lodged an appeal against a Jakarta Administrative Court (PTUN) ruling (604/G/2023/PTUN.JKT) that cancelled ethical sanctions imposed on him by the Constitutional Court. He did so because it also denied his request to be reinstated as head of that court.
Anwar, the brother-in-law of outgoing President Joko "Jokowi" Widodo, was removed from his post as chief justice on 7 November 2023 by a ruling of the Constitutional Court's Ethics Council. It found him guilty of a breach of judicial ethics for failing to recuse himself from being involved in a decision of that court that paved the way for Gibran Rakabuming Raka – Jokowi's son and Anwar's nephew – to become Prabowo Subianto's vice-presidential pick for the February 2024 presidential election (Decision No. 90/PUU-XXI/2023).
For Anwar, his appeal of the Administrative Court decision marks a new chapter in his attempt to reclaim his position as leader of one of Indonesia's most powerful state institutions. But for many Indonesians, it seems like another threat to the principle of the rule of law that they believe should underpin the country's democratic system.
Few observers would disagree with the contention that Indonesia's status as a constitutional state is showing signs of erosion under President Jokowi. This is indicated by, among other things, the deterioration of the administrative courts and the weakening of rights protections through laws and court decisions, both of which have taken place on Jokowi's watch. The Anwar Usman case seems to embody these problems.
This whole saga began with a wedding.
A marriage of convenience
Anwar married Jokowi's sister, Idayati, on 26 May, 2022. The wedding immediately sparked controversy. Critics said that it would lead to a conflict of interest on the part of Anwar because his new in-law, President Jokowi, along with the House of Representatives (DPR), are default defendants in most judicial review cases in the Constitutional Court.
I joined the many calls for Anwar to resign from his post, but they fell on deaf ears.
Our fears were vindicated when on August 7, 2023, a little over a year after what people called the "royal wedding", Almas Tsaqibbirru, a student at the University of Surakarta, filed a judicial review petition in the Constitutional Court, challenging Article 169(q) of the 2017 Elections Law. He requested that the minimum age limit for presidential and/or vice-presidential candidates, originally set at 40 years, be changed to 35 years. This would allow Gibran, Anwar's nephew, to run for vice-president.
The conflict of interest facing Anwar was clear. In his petition Almas, explicitly admitted to being a big fan of Gibran. He was not alone. Other parties also filed a similar request, including the Indonesian Solidarity Party (PSI), which was then chaired by Gibran's younger brother, Kaesang Pangarep. Under the court's Code of Ethics, Anwar should have been barred from hearing the judicial review petition, considering that it was filed by ardent supporters of Gibran, his nephew, and a political party chaired by another nephew, Kaesang, and given that the decision would obviously directly affect the political fortunes of Gibran.
The controversy did not stop there. It was revealed that, for reasons that remain unclear, Almas withdrew his petition before judgment and resubmitted a new one, although that is not allowed by a 2021 MK Regulation on Judicial Review Procedures. Moreover, he did so on a Saturday. In a bizarre coincidence, Anwar just happened to be in the office that day, even though he was not supposed to be at work. The bigger problem, however, was that, according to our investigations, Almas' petition then seems to have gone straight to judgment without there ever being an evidentiary hearing.
Questionable ethics verdict
The examination of Anwar by the Ethics Council of the Constitutional Court (MKMK) that followed the court's decision on Almas' petition resulted in Anwar's dismissal as chief justice in November 2023, but not as a Constitutional Court justice. This decision was controversial and became the object of the legal dispute in the Jakarta Administrative Court.
The MKMK members – Jimly Asshiddique (founding chief justice of the court), Bintan R. Saragih (a senior constitutional law academic), and Wahiduddin Adams (then a justice of the court) – did not issue a unanimous decision.
Bintan stated that the grounds for Anwar's removal as chief justice were not recognised in the Constitutional Court Law or Article 41(c) or Article 47 of Constitutional Court Regulation 1 of 2023 on the MKMK, which recognises only three kinds of punishment for justices who commit an ethical violation: 1. verbal warning; 2. written warning; and 3. dishonourable dismissal. If Anwar was found to have committed a serious violation, agued Bintan, then the appropriate sanction should have be "dishonourable dismissal" as a constitutional justice. This would have entailed removal from both his position as a justice and the court's top post.
Jimly and Wahiduddin, however, differed. According to Jimly, dishonourable dismissal based on the provisions of the Constitutional Court Law and Constitutional Law Regulation opened up an opportunity for Anwar to appeal to a new panel of MKMK members. This could be problematic, he argued, since the Constitutional Court was busy preparing for disputes over the results of the upcoming 2024 Presidential and Legislative Elections. An MKMK appeal would have allowed Anwar to keep his post pending the outcome of the appeal, which would be very disruptive for the court at a busy time.
In other words, Jimly seemed to have believed that there would be no appeal if Anwar was removed as chief justice but remained a justice of the court. While Jimly's argument may seem reasonable, some critics did raise concerns over potential bias given that he openly supported the Prabowo-Gibran candidacy.
In any case, regardless of Jimly's expectations, Anwar did appeal, but chose to challenge the MKMK decision not before another MKMK panel but in the Jakarta Administrative Court. There, Anwar argued that the MKMK decision was a form of administrative decision and was contrary to Article 47 Constitutional Court Regulation 1 of 2023 because that provision only allowed the three sanctions mentioned above, and did not allow dismissal as a chief justice without dismissal as a judge as well.
Anwar's legal crusade
This decision is odd for a number of reasons, first because 'restoring the honour and dignity' of Anwar is an ethical issue that is within the jurisdiction of the MKMK under Article 23 of Law 7 of 2020 on the Constitutional Court. In my view, the Administrative Court's role is limited to restoring the administrative rights of citizens against state actions, and it does not have the authority to handle MKMK decisions on judicial ethics. The MKMK is a state institution under Law 7 of 2020 but it is also judicial institution. Its decisions are therefore not administrative in nature.
Second, nowhere in its decision did the Administrative Court find that Anwar did not have a conflict of interest in deciding Almas' petition. In fact, there was no real discussion of the issue – the Administrative Court seems to have focused solely on whether the sanctions imposed by the MKMK were authorised by Constitutional Court Regulation 1 of 2023. It remains unclear on what basis the Administrative Court could 'restore' Anwar's 'dignity and honour' given the MKMK had clearly found that he had committed an ethical breach.
The third, and more problematic, aspect of the Administrative Court verdict is that it basically paved the way for Anwar to reclaim his post. But it is strange that it chose to remove Suhartoyo from his post as chief justice but not to reinstate Anwar – Suhartoyo was only elected chief justice because the position was left vacant when Anwar was ousted.
In short, the Administrative Court decision is as confusing as the MKMK ruling it was reviewing, albeit in different ways.
The Administrative Court decision is now on appeal to Jakarta High Administrative State Court (PTTUN), and pending the outcome of that, Suhartoyo remains chief justice for now. However, a final legal victory for Anwar does not seem far-fetched. If that happens – and if Anwar returns to the top job in the Constitutional Court – it will likely trigger a further crisis of confidence in the court and raise wider questions about the state of the rule of law in Indonesia.