Political Recalling of Constitutional Judge by the House of Representatives (DPR): Interference Against the Independence of Indonesian Constitutional Court

Abstract

The Constitutional Court (MK) has nine constitutional judges who come from the House of Representatives (DPR), the President, and the Supreme Court (MA), with each institution entitled to nominate three judges. The nine MK judges who come from the three nominating institutions are expected to fulfill a sense of justice in society through their decisions. To be able to make fair decisions, constitutional judges must always maintain independence and impartiality. But what happened was that the DPR intervened to pull constitutional judges into political territory. On Thursday, September 22, 2022, the DPR conducted a political recalling of sitting constitutional judge Aswanto. The DPR openly stated that the reason for the dismissal was because Aswanto was a Constitutional Court judge appointed by the DPR, so he should be a representative of the DPR, instead of annulling various laws created by the DPR. Along with the sudden dismissal, the DPR immediately nominated Guntur Hamzah to replace Aswanto without going through a fit and proper test. As a follow-up, President Joko Widodo then issued a Presidential Decree to appoint a new constitutional judge. Through normative legal research, this article finds the DPR's political recalling of Aswanto is unconstitutional. Two legal remedies can be taken against the intervention of judicial power. The first is to apply for the annulment of the KTUN, in this case the Presidential Decree Number 114/P/2022 through the State Administrative Court (PTUN) which has been registered with case register Number: 2/G/2023/PTUN.JKT. The second attempt is to file a constitutional complaint to the constitutional court, the Constitutional Court. However, the second effort related to the substance test of the Constitutional Court Law submitted by Zico Leonard Djagardo Simanjutak has been rejected by the Constitutional Court in Decision Number 103/PUU-XX/2022 on the pretext that it does not include its authority.

Keywords: Constitutional Judge; Political Recall; Independence of The Constitutional Court

DOI: 10.7176/JLPG/135-11

Publication date:August 31^st 2023