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A Matter of Political Will

The establishment of a Constitutional Court is facing doom--a rush has started for positions as justices of the constitution.

ZAINAL Arifin looked absorbed in his work of examining the stack of documents on his desk on the seventh floor of the Nusantara I Building of the House of Representatives (DPR) last Thursday. Unlike the other DPR members, who have gone on recess since July 9, these days Zainal is preoccupied with studying the draft law that was completed on Saturday two weeks ago. "I'm putting the finishing touch on the bill as it will be discussed on Tuesday," said the Chairman of the Standing Committee on the Draft Law on the Constitutional Court.

Assisted by a five-member DPR team of experts, Arifin raced to complete the bill for discussion by the Standing Committee on July 29. On the next day the bill will be submitted to a session of a special committee before being passed at an extraordinary plenary meeting of the DPR on July 31. This express work is intended to reach the deadline of August 17 for the establishment of the Constitutional Court as laid down in the 1945 Constitution.

The Constitutional Court is a new phenomenon indeed. Its powers can be termed extraordinary. Next to testing a law to the 1945 Constitution, those powers include settling any conflict of authority between state institutions, settling general election disputes, dissolving political parties, and examining the legality of any impeachment. The last mentioned power has drawn the strongest reaction.

According to political science expert Prof. Dr. Jimly Asshiddiqie, this is a trauma caused by the impeachment of Abdurrahman Wahid at the Special Session of the People's Consultative Assembly (MPR) of 2001. The draft Article 29 of the bill requires the DPR to submit the relevant request accompanied by strong evidence that the president and vice president are suspected of a legal violation, in the form of treason, corruption, bribery, culpable action, and other serious criminal acts. Only when the Constitutional Court has handed down its verdict, can the DPR submit the case to the MPR for impeachment of the president.

The Constitutional Court oversees the impeachment process through a legal mechanism, although actually the MPR does not always have to grant the request to impeach the president. Should an impeachment occur, while the Constitutional Court has not been established yet, automatically, Jimly says, the process should go through the normal political mechanism. Just like when the DPR brought the Aburrahman case to the Special Session of the MPR.

That's not the end of the story. Indirectly the government and the DPR would in that case also create a bad precedent, because that would open the door to any bargaining about the implementation of other articles of the Constitution. "Obviously, this would damage our political system," says this lecturer of the University of Indonesia's school of law.

The present delay is purely a matter of negligence. In the past year the DPR completed passage of a host of political laws, such as the Law on General Election of the President and Vice President, and the Law on the Composition and Status of the MPR. According to Zainal Arifin, there is no specific deadline for this law. The DPR prioritizes the handling of this law, because of the need for the General Elections Commission to start working forthwith.

The dragging on of the discussion of this bill is also a consequence of the great number of people who are desirous of becoming justices of the constitution. That's why, says Arifin, the discussion taking a relatively long time concerns the clause governing the title of law graduate as a prerequisite for justices of the constitution. This article bogged down in the Special Committee, the Standing Committee, and the formulation team. As a consequence, the last word on Article 16 paragraph (1)b will not be heard until July 29.

Minister of Justice & Human Rights, Yusril Ihza Mahendra, last week even threatened to declare a deadlock if a non-law graduate were allowed to take up the position. "But, perhaps that's exactly what he has been longing to do," said A.M. Luthfie, a member of the Special Committee from the Reform Faction, to Tjandra Dewi of TEMPO News Room. That's the more likely as the government has contended all along that this is too tough a matter to be rushed to meet the deadline. Not surprisingly, the government's inventory of problems related to this DPR-initiated bill lists no less than 355 points.

The Chairman of the Special Committee on the Constitutional Court Bill, Zain Badjeber, however, is optimistic that this issue can be solved. When it has been passed on July 31, he says, the selection of the justices of the constitution can be done until all the nine prescribed justices have been obtained, namely three chosen by the president, three others by the Supreme Court, and three more by the DPR. In Jimly's judgement the two remaining weeks are sufficient for the government and the DPR to complete their tasks in this issue. "It's just a matter of political will," he says.

Abdul Manan.

TEMPO, AUGUST 04, 2003-047/P. 20 Heading National


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