Forgotten Dairies
From Political Appointments to Constitutional Statesmen: Reconstructing Indonesia’s Constitutional Court Recruitment Through Transparent and Accountable Multi-Institutional Design — A Comparative Study with Germany, the United States, Italy, South Africa, and South Korea -By Fransiscus Nanga Roka
What counts most, though, is that we have to redefine our thinking about the aim of recruiting. Our goal is not to fill positions. It is to train up constitutional statesmen.With comparative experience, one point is absolutely clear. No system is perfect. The United States labours under division. Germany goes its way with elite consensus. South Africa is under pressure from politics. But all accept one basic truth – the need to establish their constitutional authority.Indonesia is at a crossroads.
A constitution court’s strength lies in the people who sit on its bench. In Indonesia, that strength is increasingly called into question-not because the Constitution lacks weight, but due to what are in the process of choosing its guardians could be more streetwise politics instead of statecraft.
The problem cannot be sloughed off. It is structural, visible and persistent.
Indonesia’s constitutional court justices are appointed by three state organs: the executive, legislature and judiciary. As a tripartite mechanism, the idea should be to keep structures in balance and ensure variety; it is theoretically based on power, mutual check-and-balance. But in practice, it generates obscure power struggles, elitist division, fragmented chains of accountability. It promises checks to be made-but actual performance is at someone’s discretion.
What emerges is not a meritocratic pipeline toward constitutional statesmanship, but a negotiation table where legal excellence can be crowded out by political conveniences.
This is not just a procedural flaw. It is a crisis of legitimacy
A constitutional judge is not an ordinary public servant. They interpret the chief law, umpire conflict between institutions and define state power’s bounds. Their authority must be rooted not only in formal appointment arrangements, but also accepted by the people. If recruitment is not transparent, this liability begins to eat away at the credibility of judicial decision-making even before a zedsentence is uttered
Compare this with Germany, where constitutional court justices are elected by parliament through a system requiring constitutional majorities. This setup forces political actors to move beyond mere party loyalty and towards the wider concent of acceptability. The result is not depoliticization-politics never disappears–but, restrained politics, subject to regularized institutional rules.
In the United States, the process is obviously political, yet extremely transparent. Nominees face public hearings and intense scrutiny once they undergo examination by committee. The process is belligerent, even polarizing, but it is open, in broad daylight. People watch the manufacture of constitutional authority. In this model, legitimacy is not constructed through consensus but rather driven by being aired.
Indonesia, by contrast, risks combining the worst of both worlds: political access without transparency, discretion sans restraint. Italy offers another model, mixing appointments from various branches while maintaining procedural clarity and professional standards. South Africa goes farther still by consolidating public interviews through a Judicial Services Commission. As a result, candidates find this body subject to open review and examination. South Korea, despite its political turbulence, has a regular order of appointment whose institutional roles are fixed and widely understood to be public. Across all these systems runs a single principle: people power is not an incidental, but engineered phenomenon. Indonesia has yet to grasp this. The core is not the participation of tools of power in the selection of judges. Such is inevitable in any constitutional democracy. The actual is absence of enforceable standards that is, of standards determining just who is a constitutional judge rather than being a man not only of professional but of constitutional quality. It falls short of a constitutional judge, if one sees citizenship as a matter only of technique. She must be a constitutional diplomat, that wiailig to these principles of the Constitution which lie at the very soul, not the interests III big Democracy can resolve can it be possible to unscramble the outcome? Without clear rules, open process or any responsibility to institution, such selection is liable to fall into capture. Once it has been captured, the consequences are grave. Decisions continue to be issued but the authority of those decisions is challenged. Thus bases are still manned though the troops are weakened. That is how constitutional systems decline: not popularly seen collapsed dramatically, but slowly crushed from inside. The reconstruction cannot be put off. It matters for life or death to take action. Indonesia must proceed from a set of closed- door, inscrutable appointments toward ones that are transparent by design, monitored during operation and with accountability built into enforcement upon results. This means open ways to choose candidates, public evaluations of every candidate, standardized bases for judgment, and spelled out reasons for appointments. I t also involves changing the roles played by appointing bodies from ones of power broker into constitutional gatekeeper roles.”
What counts most, though, is that we have to redefine our thinking about the aim of recruiting. Our goal is not to fill positions. It is to train up constitutional statesmen.With comparative experience, one point is absolutely clear. No system is perfect. The United States labours under division. Germany goes its way with elite consensus. South Africa is under pressure from politics. But all accept one basic truth – the need to establish their constitutional authority.Indonesia is at a crossroads. It can choose to regard judicial appointments as institutional privileges, shielded from public gaze. Or it can redesign these actions as constitutional responsibilities, supported by transparency and fairness.If Indonesia opts for the latter, this choice will affect more than just the make-up of one particular court. It will determine whether in fact constitutional justice has any credibility at all.Because where constitutional judges are appointed without being vetted publicly, it is not so much that the Constitution is being interpreted as that it ceases to exist. It is then only a matter of time before the Constitution goes out of existence.And where the Constitution goes, justice goes. No longer are you assured of it; now it will all depend on power.
Fransiscus Nanga Roka
Faculty of Law University 17 August 1945 Surabaya Indonesia
