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Cablegate: Constitutional Court: New Justice Selection Process

VZCZCXRO6201
OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #1509/01 2210633
ZNR UUUUU ZZH
O 080633Z AUG 08
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9742
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEHBY/AMEMBASSY CANBERRA 2878
RUEHLM/AMEMBASSY COLOMBO 1182
RUEHKA/AMEMBASSY DHAKA 1151
RUEHNE/AMEMBASSY NEW DELHI 2084
RUEHKO/AMEMBASSY TOKYO 2337
RUEHWL/AMEMBASSY WELLINGTON 2928
RUEHHK/AMCONSUL HONG KONG 2865
RUEHPT/AMCONSUL PERTH 1020
RUEHLMC/MILLENNIUM CHALLENGE CORP 0063
RUEAIIA/CIA WASHDC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/SECDEF WASHDC
RUEAWJB/DEPT OF JUSTICE WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RHMCSUU/FBI WASHINGTON DC
RHHJJPI/USPACOM HONOLULU HI
RHEHNSC/NSC WASHDC

UNCLAS SECTION 01 OF 03 JAKARTA 001509

SIPDIS

DEPT FOR DS/ICI/RFJ, DS/IP/EAP, DS/DSS/ITA, DS/CC,
DS/IIP/SC, EAP, EAP/MTS, INR/EAP, INL FOR BOULDIN, USAID/MCC
DEPT FOR EEB/IFD/OMA
DOJ FOR AAG SWARTZ, OPDAT FOR LEHMANN/ALEXANDRE
TREASURY FOR IA-BAUKOL
FBI FOR ETTUI/SSA ROTH
NCTC WASHDC
NSC FOR EPHU

E.O. 12958: N/A
TAGS: PGOV KJUS KCOR PREL ID
SUBJECT: CONSTITUTIONAL COURT: NEW JUSTICE SELECTION PROCESS

REF: 07 JAKARTA 000821

JAKARTA 00001509 001.2 OF 003


1. SUMMARY: (U) The first 5-year term of the nine
Constitutional Court justices ends August 15 and three
Constitutional Court justices are retiring. Each of the
three branches of government is involved in selecting
replacements for the Constitutional Court, which is an
important player in regional and national elections.
President Yudhoyono (SBY) is closely overseeing the selection
process for the executive branch's nominees. END SUMMARY.

STILL A YOUNG INSTITUTION

2. (U) Although the Constitutional Court is one of the
judiciaries stipulated in the 1945 Constitution, it did not
exist independently until it was separated from the Supreme
Court in 2003. The court's first term ends on August 15,
marking the first turnover on the bench. The nine justices
on the Constitutional Court are appointed equally by the DPR,
the Supreme Court and the President, each for a term of 5
years. They may be re-appointed for one subsequent term.

3. (U) The Constitutional Court will play an important role
in the upcoming presidential and legislative elections in
2009. Among other issues, it has jurisdiction over election
result disputes, the dissolution of political parties and
laws regarding political participation. Already, its recent
ruling on August 4 that incumbent governors, regents and
mayors were not required to resign to seek re-election will
have significant impact on the regional elections. So far,
the Constitutional Court has maintained a reputation as a
professional body (reftel) generally immune from political
influence.

HOUSE OF REPRESENTATIVES (DPR) CALLS FOR A PUBLIC PROCESS

3. (U) Because the law gives no guidance regarding the
Constitutional Court justice selection process, the
appointment process (by the executive branch and the Supreme
Court) is widely perceived as the prerogative of the
President and the Chief Justice. In January 2008, however,
Trimedya Panjaitan, head of the DPR Judicial Commission,
asked that the DPR, the Supreme Court and the executive
branch conduct the selection process in a transparent and
public manner.

SOME MORE TRANSPARENT THAN OTHERS

4. (U) On March 14, the DPR appointed their three candidates
to the Constitutional Court after undergoing an extensive and
public selection process. The head of the DPR judicial
commission stated that the two incumbent justices, Prof.
Jimly Asshiddique (chief) and Prof. Moh Mafud MD, were not
required to submit to the selection process as they remained
eligible for re-appointment to the Court. Before settling on
DPR member Akil Mochtar for the third court seat, the DPR
commission opened registration for three nominees from each
of the political parties in the DPR. DPR Commission III then
narrowed the field of candidates to 18 (three DPR members,
two sitting Constitutional Court justices and the remainder
from a variety of law professions) and evaluated them based
on a written test and oral interview. Before the final
selection, the DPR committee conducted a "fit and proper
test" of the final candidates, including the two incumbents,
to determine if they were able to carry out their duties as

JAKARTA 00001509 002.2 OF 003


justices of the Constitutional Court.

5. (U) The Supreme Court appointed three incumbents: Maruarar
Siahaan, Arsyad Sanusi and Muhammed Alim. The incumbents
told the press that there was no open selection process and
that each had been called by Chief Justice Bagir Manan of the
Supreme Court and asked to serve a second term.

SBY COMMITS TO TRANSPARENCY

6. (U) On August 2, the executive branch's candidate
selection committee released the list of 15 candidates for
the Constitutional Court. The candidate selection committee,
chaired by the President's legal advisor, Adnan Buyung
Nasution, began seeking nominations in February 2008. SBY
had Nasution publish the methodology of the selection process
to ensure transparency. The selection committee solicited
public input, is currently interviewing candidates and plans
on August 9 to announce a select list of nine candidates,
from which the President must choose three, by August 11.

7. (U) The executive branch's nominees include:

--Abdul Mukhtie Fadjar, incumbent on the Constitutional Court

--Achmad Sodiki, professor of law, Brawijaya University,
Malang, East Java

--Ahmad Ali, professor of law, Hasanuddin University,
Makassar, South Sulawesi; commissioner of the Indonesia-East
Timor Commission on Truth and Friendship (CTF)

--Aminuddin Ilman, professor of law, Hasanuddin University,
Makassar, South Sulawesi

--Amzulian Rifai, lecturer, Sriwijaya University, Palembang;
Ph.D in constitutional law, Monash University, Australia

--Atip Latipulhayat, telecommunication law expert,
Padjadjaran University, Bandung, West Java

--Latief Fariqun, Brawijaya University, Malang; deputy
minister, prevention of gross human rights violations,
Ministry of Women's Empowerment

--Dwi Andayani Budisetyowati, professor of constitutional
law, Tarumanegara, Jakarta

--Fajrul Falaakh, constitutional law expert, Gadjah Mada
University, Yogyakarta; outspoken critic of the
Constitutional Court

--Harkristuti Harkrisnowo, director general, human rights
affairs, Department of Law and Human Rights; law faculty,
University of Indonesia

--Indriyanto Seno Adji (who later withdrew his nomination)

--Maria Farida Indrati, legislation expert, law faculty,
University of Indonesia

--Ningrum Natasya Sirait, law faculty, North Sumatra
University, research focus on business competitiveness

--Rudi Rizky, Faculty, Padjadjaran University, Bandung, West

JAKARTA 00001509 003.2 OF 003


Java

-- Satya Arinanto, law faculty, University of Indonesia;
former energy expert Constitutional Court

POSITIVE RESPONSE

8. (U) Public reaction to the executive branch's selection
process has been positive. Although the Community Alliance
for the Constitutional Court has been critical of the Court
in the past, their only criticism has been of the selection
process and the limitation of public input to one day--but
not of the results. The high caliber of the government's
list of candidates and the transparency of the executive
branch candidates' selection process bode well for the
court's professionalism in the future.
HUME

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