Lecturer at Faculty of Law, Sawerigading University
Keywords: Constitutional Court, Judicial Independence, Political Interference, Selection Process.
WIN Media, Opinion – The Constitutional Court (Mahkamah Konstitusi – MK) is one of the state institutions exercising independent judicial power. This institution has a vital role in upholding the constitution and the democratic system in Indonesia. The MK was established in 2003 as a child of the reform era, born from a strong desire to create a mechanism for checks and balances between branches of state power. As an institution with the authority to review laws against the Constitution, adjudicate disputes over the authority of state institutions, and decide disputes over general election results, the MK is often referred to as “the guardian of the constitution.”
However, in recent years, the independence of this institution has faced serious threats. These threats primarily stem from the process of selecting constitutional judges, which is rife with political interests. Based on Article 24C paragraph (3) of the 1945 Constitution of the Republic of Indonesia, there are nine constitutional judges appointed by the President. Their composition comes from three elements: three proposed by the Supreme Court (MA), three proposed by the House of Representatives (DPR), and three proposed by the President. Article 24C paragraph (5) of the 1945 Constitution emphasizes that constitutional judges must possess integrity and an irreproachable character, be just, and be statesmanlike individuals who master constitutional and administrative law. Referring to Article 20 of the MK Law, the recruitment process for constitutional judges is required to fulfill the principles of transparency, accountability, and public participation.
Unfortunately, this constitutional and legal mandate often becomes a mere formality. In practice, the selection process is frequently conducted behind closed doors and does not involve public participation, thus opening loopholes for political interest intervention. Problems in the process of selecting constitutional judges have increasingly come to the fore in recent years. There are at least two patterns indicating serious issues in this selection process. The vagueness of procedural norms in the MK Law provides room for the DPR to propose candidates in a closed manner. This practice has even reached the stage of having a single candidate, thereby ignoring the principles of transparency, public participation, and accountability. As a result, the legitimacy of the MK as the guardian of the constitution has declined, and judicial independence is threatened.
The “Abracadabra” Replacement of a Judge
The peak of this problem occurred in early 2026, when the DPR surprisingly replaced a proposed constitutional judge. In August 2025, the DPR, through a plenary session, had approved Inosentius Samsul, a former Head of the DPR’s Expert Agency, as a candidate for constitutional judge to replace Justice Arief Hidayat, who was about to enter retirement. However, less than two weeks before Justice Arief Hidayat’s retirement, the DPR suddenly canceled Inosentius’s nomination and replaced him with Adies Kadir, who was the Deputy Speaker of the DPR. The selection process for Adies Kadir was very fast or “lightning-fast.” He underwent a fit and proper test by Commission III of the DPR on January 26, 2026, and was confirmed the very next day in a DPR plenary session.
Violations of Selection Principles
The process of selecting Adies Kadir was considered by various circles to have violated the selection principles mandated by law.
- Violation of the Principles of Transparency and Public Participation
The Indonesian Center for Law and Policy Studies (PSHK) asserted that the selection of Adies Kadir violated the principles of transparency and participation. Based on the explanation of Article 19 of the MK Law, constitutional judge candidates should be publicized so that the public has the opportunity to provide input. However, in this case, Adies Kadir did not go through the registration and administrative selection process that are general prerequisites for selection. - Absence of an Objective Selection Process
Adies Kadir was the sole candidate agreed upon by acclamation. There was no healthy competitive process, making the potential for conflicts of interest very high given his background as an active politician. In fact, the fit and proper test merely became a space for formality. - Rushed Process
Although a member of DPR Commission III, Soedeson Tandra, defended the process, stating it followed the mechanism due to sudden information about other assignments for Inosentius Samsul, the public still considered this haste to undermine the principle of accountability. A process that only took two days was deemed insufficient to conduct an in-depth assessment of the track record and capabilities of a judicial candidate.
A Threat to the Independence of the Constitutional Court
This problematic practice of selecting constitutional judges carries serious consequences for the independence of the Constitutional Court. Another concern arises from Adies Kadir’s background as a politician. A constitutional judge with a political background risks weakening the MK. In fact, the MK has been the last resort institution for the public to seek justice when policy products deviate from the constitution, with decisions that are final and binding.
Although this problematic selection process has occurred, various elements of society have not remained silent. The Constitutional and Administrative Law Society (CALS), comprising 21 constitutional law experts, reported Adies Kadir to the Constitutional Court Honorary Council (MKMK) and requested that he be removed from his position as a constitutional judge. They considered the selection process Adies Kadir underwent to be irregular and improper, as well as violating procedures. Various civil society organizations such as PSHK also urged the DPR to redo the selection of constitutional judge candidates by opening registrations widely and involving public participation in the candidate assessment process.
Going forward, systemic improvement measures are needed to save the MK’s independence. First, a revision of the MK Law is necessary to mandate an open, participatory, and auditable selection mechanism. Second, stronger internal oversight instruments within the DPR are needed to prevent the politicization of the constitutional judge proposal process. Third, the active participation of civil society and academics must be maintained to oversee every constitutional judge selection process.
Safeguarding the Constitutional Court
The problematic process of selecting constitutional judges, as occurred in the case of replacing Inosentius Samsul with Adies Kadir, has undermined the principles of objective, accountable, transparent, and open selection. More than just a procedural violation, this practice threatens the independence of the Constitutional Court as a judicial institution.
When constitutional judges are chosen through a process laden with political interests, the resulting decisions have the potential to lose their impartiality. Yet, in a state governed by law, nothing is more dangerous than a judiciary that loses its independence. The Constitutional Court must be protected as the last bastion for justice seekers, not turned into a political instrument for those in power.
Therefore, it is time for all parties, both the DPR, the President, and the Supreme Court, to return the constitutional judge selection process to the correct track. Only with judges selected in a transparent, accountable, and participatory manner can the Constitutional Court truly carry out its function as an independent and dignified guardian of the constitution. As John Marshall said, “What makes us trust our judges? Their independence in office and the manner of their appointment.”