Can a Constitutional Court judgment be changed?

Dit blog is een follow up van een eerder bericht (22 oktober 2022) op deze website over ontwikkelingen aan het Indonesische Constitutionele Hof. Het werd op 3 april gepubliceerd op de website Indonesia at Melbourne, en is met toestemming van de auteur van het blog en de hoofdredacteur van de website overgenomen.

A Constitutional Court judge was dismissed and replaced by order of the House of Representatives (DPR) and the president in highly controversial circumstances last year.  Legal scholars deemed the dismissal of Justice Aswanto and his replacement by Justice Guntur Hamzah to be improper, as it was not made on the basis of Law No. 24 of 2003 on the Constitutional Court.

This led Zico Leonard D Simanjuntak, an advocate, to lodge a request for a judicial review with the Constitutional Court. This was rejected on 27 January but in its judgment, the court did not approve the way Justice Aswanto was dismissed.

Instead, the court held that the provision of the Constitutional Court Law that allowed for his dismissal was conditionally constitutional, that is, it was valid only if interpreted as follows:

“Therefore, the dismissal of a Constitutional Court judge before the end of their term can only be done for these reasons: they have stepped down on their own request, which has been put forward to the chief justice of the Constitutional Court; they are physically or mentally ill for a period of three consecutive months to the point that they can no longer carry out their duties, as certified by a doctor; or because they have been dishonourably dismissed for reasons as set out in Article 23(2) of the Law on the Constitutional Court.”

None of these grounds applied to Justice Aswanto’s dismissal by the DPR and president, which was therefore not compliant with the constitution (although the Constitutional Court does not have the power to reinstate him).

However, after the Constitutional Court’s decision was read in a public hearing, a change was made to the text and the version of the judgment that was uploaded to the court’s public  website.

The word “Therefore” (“Dengan demikian”) had been changed to “Going forward” (“Ke depan”). In other words, the three grounds on which a Constitutional Court judge could be dismissed that the court had identified could only apply from the date of the judgment – they would not apply to Justice Aswanto’s dismissal (which took place before the judgment). This suggests there may have been some motivation for personal gain by the judge who decided to make this change.

The media and the public quickly picked up the change, and pressure grew for an investigation by the Constitutional Court’s Ethics Council (Majelis Kehormatan Mahkamah Konstitusi, MK-MK), which had appeared long dead.

In response, the Constitutional Court eventually issued a new regulation on the Ethics Council and appointed  Enny Nurbaningsih (a judge of the court), Gede Dewa Palguna (a former judge of the court) and Sudjito (an academic) to constitute it.

After several hearings taking evidence from stakeholders and experts, the Ethics Council concluded on 20 March that Justice Guntur Hamzah had directed a clerk to change the text of the judgment. Hamzah was, of course, the very judge who had replaced Justice Aswanto, and the Council found he was the only judge with a personal stake in the wording of the text.

The Ethics Council also found that because he had not been involved in the deliberations that led to the drafting of the judgment, it was unethical for him to intervene and make changes to the text that had already been read in public. He had therefore committed a violation of the code of ethics and they sanctioned him with written warning –  but not dismissal.

This may seem a light punishment for the serious matter of meddling in the legal wording of a court judgment but the practice is, in fact, more common than you might think. Changes to the texts of legal documents after they have been officially ratified happen regularly in the realm of government, in the DPR, and even in regulations, administrative decisions, or court verdicts. Flexibility with words is common habit in Indonesia and other countries with an underdeveloped culture of administrative governance.

One highly visible example was the omnibus Law on Job Creation, which was eventually declared unconstitutional – in part because so many changes were made to the text after it was ratified by the DPR. The principle of due process of law-making was clearly violated, and in deciding this the Constitutional Court carried out the first “formal review” of a law  (that is, a review of the constitutionality of the process by which a law was enacted, rather than its substance ) in the history of the Indonesian court system.

As a matter of law, every bill is passed into law the moment it is ratified by the DPR. Endorsement by the president is only an administrative formality (according to Article 20(5) of the Constitution), because even if the president does not sign the draft, it is automatically passed into law after 30 days. For this reason, it is important that bills passed by the DPR are not changed. This same principle must also be applied to court verdicts – and especially those made by the Constitutional Court.

In light of the recent controversy over the Law on Job Creation, a textual change to a Constitutional Court judgment on the dismissal and replacement of a judge is a very serious problem for the establishment of modern and trustworthy judicial governance in Indonesia, especially for a Constitutional Court that is already suffering from a loss of public trust.

For these reasons, it would have been reasonable for the Ethics Council to dismiss Justice Hamzah from his position on the Constitutional Court. Yet several arguments can be made for the lighter sentence that he received.

First, the changing of the words from “Therefore” to “Going forward” proved not to have any influence on the status of Justice Aswanto, who had already been dismissed and replaced by Justice Hamzah. Because decisions of the Constitutional Court are not retrospective but prospective, they can only apply to future events. This means that the word swap had no real influence on the status of the two judges, and so could be seen as a simple misunderstanding – even if it remains unjustifiable in principle and should be sanctioned.

Second, Justice Hamzah has just been appointed by Presidential Decree as a Constitutional Court judge. Regardless of the flawed process of the dismissal and replacement of Justice Aswanto, the decision of the Ethics Council, based on the principle of presumption of innocence, must be respected. It could be seen as unrealistic or excessively harsh if a newly-appointed judge were dismissed for reasons of integrity and professionalism that could be resolved through training to improve his behaviour in the future.

Third, although it is undesirable, the habit of changing text in official and legal documents is, as mentioned, still widespread across many state institutions. In light of this, the sanction for Justice Hamzah should be one of education and training, not a “death sentence”.

Nonetheless, his sanction should serve as an important warning – not only for his own education, but for that of the eight other Constitutional Court judges, and the Indonesian justice system at large.