Indonesia’s corruption fighters are back in the depths of despair after the arrest on bribery charges of a justice of the Constitutional Court, the country’s highest legal institution, once considered a success story of the democratic era.
Former National Mandate Party politician Patrialis Akbar, 58, was taken into custody by the Anti-Corruption Commission (KPK) last week, two and a half years after former Constitutional Court chief justice Akil Mochtar received a life sentence for the same offence.
Long-numbed by the string of thieving politicians and bureaucrats filing through the courts, Indonesians have been left to wonder whether they are witnessing not only a failure of the rule of law, but a systematic collapse in public morality that seems to have no end.
Akbar’s arrest further undermines confidence in a court that was once considered an icon of Indonesia’s reform success story. Established in 2003 under a 2001 amendment to the 1945 constitution, it was Indonesia’s first judicial body empowered to review government regulations (those below the level of actual laws).
It won plaudits in its early years under pioneering chief justice Jimly Asshidiqqie, but in subsequent years its shine dimmed amid suspicions of political interference under his successor Mohammad Mahfud. Now, with the arrest of a second justice on bribery charges, there have been calls to rein in some of its unlimited powers.
“The Constitutional Court has lost all its lustre,” said Natalia Soebagjo, the head of the Indonesian chapter of Transparency International. “It’s become just another banana republic institution. No-one in the anti-corruption movement is at all surprised.”
In the latest scandal, Akbar, a former justice minister, is accused of taking a 2 billion rupiah (HK$1.16 million) bribe from an Indonesian meat company over the judicial review of a regulation allowing the importation of livestock from designated clear zones in countries affected by foot-and-mouth disease. Mochtar, who had been on the court since 2008, was arrested in November 2013 for taking 60 billion rupiah in bribes during the adjudication of 15 disputed regional elections handled by the Constitutional Court. He was given an unprecedented life term in June 2014, still protesting his innocence despite evidence showing he had also laundered as much as 100 billion rupiah in other ill-gotten gains going back as far as 2002.
Tempo newsweekly called the two scandals “a genuine constitutional crisis” and urged the government to tighten its selection criteria to focus as much on candidates’ integrity as their knowledge of the law.
Legal experts are now calling for a new regulation, which apart from reintroducing more stringent screening procedures, would limit the Constitutional Court’s powers in conducting judicial reviews in cases where the court itself is affected.
Akbar was appointed to the nine-man bench by president Susilo Bambang Yudhoyono in 2013 under a process in which three justices are presidential nominees and the other six choices are split between parliament and the Supreme Court. Yudhoyono chose Akbar over the objections of legal reformists, who filed a challenge in the State Administrative Court, criticising the lack of transparency in the vetting process and questioning Akbar’s suitability. The court found in their favour, but the Supreme Court overturned the decision.
As Yudhoyono’s justice minister between 2009 and 2011, the one-time West Sumatran lawmaker had come under fire for handing out blanket remissions to people convicted of corruption, just when heavier penalties were needed to act as a deterrent.
Among them was former central bank deputy governor Aulia Pohan, father of Yudhoyono’s daughter-in-law, who ended up serving only 15 months of a four-and-a-half year sentence for making illegal payments to legislators. When Pohan was jailed in mid-2009, reformers said it was the most compelling evidence yet of the president’s commitment to Indonesia’s campaign against endemic corruption. But palace insiders later revealed his imprisonment had created more waves in the first family than anyone realised.
That explained why only a week later, Yudhoyono questioned the powers of the Anti-Corruption Commission. “I must caution the KPK,” he said. “Power must not go unchecked. The KPK has become incredibly powerful. It seems to be accountable only to God.”
For civil society groups, the comment could not have come at a worst time with the agency then under attack from the police, the Attorney-General’s Office and members of the graft-tainted House of Representatives, who have made repeated efforts to weaken its wire-tapping powers.
In 2010, Akbar was an expert witness who argued for the constitutionality of the blasphemy provision in the Criminal Code, claiming in a strange reversal of logic that if it was overturned violent mobs would attack religious minorities. The law was upheld and during the length of Yudhoyono’s presidency more than 130 people were charged with and convicted of blasphemy, compared to only eight cases over the previous four decades.
It has become even more controversial because of the ongoing blasphemy trial of ethnic-Chinese Jakarta governor Basuki Purnama, which hardline Islamic groups are using in an attempt to deny him a second term in the February 15 gubernatorial elections.
The Constitutional Court’s reputation – and that of Akbar’s successor, Mochtar – first came into question under the watch of its second chief justice, Mahfud, when another judge was fired for taking bribes in an appeal against a 2008 local election result and other irregularities.
According to investigators, the judge presided over what amounted to a family business. His wife ran a catering firm supplying food to the court, his daughter (a lawyer) handled many of the cases and members of his staff were given their own houses.
The whistle-blower in that affair, a constitutional lawyer, also claimed that in 2010 Mochtar had demanded 3 billion rupiah to decide favourably in a case involving a newly elected district chief who was facing a challenge from three losing candidates. Mahfud, a friend of Mochtar’s from their work together as Golkar Party lawmakers on the House of Representatives’ legal commission, had called him his “right-hand man” and said he had “100 per cent confidence” in him.
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After Mochtar’s later arrest on bribery charges, the government issued a regulation in lieu of law laying down tougher criteria for selection to the Constitutional Court, including the stipulation that a nominee could not have been an active member of a political party for seven years. Although the regulation was legalised as Law No4/2014, it was later rescinded by the Constitutional Court itself, demonstrating the unlimited authority of a court of last resort whose decisions cannot be repealed.