The Judicial Commission as a Complement to Judicial Power

The formation of the Judicial Commission is based on the highest law in the hierarchy of the legal system; the constitution is the supreme law of the land. The Judicial Commission is positioned structurally at the same level as the Supreme Court and the Constitutional Court. Historically, the purpose of establishing the Judicial Commission, in addition to selecting candidates for Supreme Court Justices, was to strengthen oversight of judges—including Supreme Court Justices—who have become increasingly difficult to monitor.

Internal oversight within the Supreme Court, particularly regarding Supreme Court Justices, has become so ineffective that there is a need for oversight by a specialised, independent, and external functional supervisory body. This was highlighted during the MPR’s first session in 2000 and 2001.

The Judicial Commission’s oversight of judicial conduct is not intended to interfere with judicial decisions. A judicial decision must be considered valid until overturned by a higher court (res judicata pro veritate habetur). However, judges, as the primary pillars of law enforcement and justice, must provide justice to all who seek it (ad officium justiciariorum spectat unicuique coram eis placitanti justitiam exhibere). It is unacceptable for decisions to be transactional or detrimental to any party (actus legis nemini facit injuriam). If a decision involves manipulation, it is undoubtedly done intentionally and with full knowledge. This reflects the judge’s intent, which is found in the legal reasoning (ratio decidendi). This constitutes the very soul of the decision (animus hominis est anima scripti).

In relation to the oversight of judges as practitioners of judicial power, the position of the Judicial Commission is both vital and strategic. The existence of the Judicial Commission is closely linked to the concept of an independent judiciary. It is regrettable that the enforcement of judicial conduct by the Judicial Commission is still viewed with scepticism. Through Constitutional Court Decision Number 005/PUU-IV/2006, the Judicial Commission was declared not to be an executor of judicial power, but rather a supporting element or state auxiliary organ. This prevents its supervisory authority from being positioned within a checks and balances framework, resulting in a weakened supervisory function where the Commission’s presence feels almost non-existent.

Furthermore, interpretations of judicial power have led to the dominance of the Supreme Court’s jurisdiction as the highest supervisory body. However, according to Article 2_4, Paragraph 1 of the 1945 Constitution, the independence of judicial power is limited to the administration of justice to uphold law and justice. The Judicial Commission is certainly involved in this area.

While the Judicial Commission is not intended to be an executor of judicial power, separating the Commission from the judiciary is akin to ‘separating the sweetness from the sugar’. Moreover, the Judicial Commission is the sole state institution mandated by the constitution to exercise authority related to judicial office. The phrase ‘in order to maintain and uphold’ following ‘other authorities’ refers to the actual process of applying ethics to judges, which inherently involves a supervisory function. This cannot be denied.

It is clear that the existence of the Judicial Commission corresponds to the mechanism of checks and balances in the execution of judicial power. The Commission was created through this mechanism of control and balance. Its existence addresses the primary need to realise an independent judiciary through the oversight of judges. Thus, the Judicial Commission should not merely be interpreted as a ‘tool’ to support the administration of justice.

Therefore, there should be no superiority regarding the oversight of judges, which has long been dominated by the Supreme Court. Achieving judicial independence certainly requires the implementation of oversight. If the oversight of judges weakens, judicial independence will also weaken, which will have negative implications for the judiciary. In other words, judicial independence is synonymous with the independence of judges. An independent judge leads to an independent judiciary, and a judge’s independence is determined by their conduct.

Oversight by the Judicial Commission serves as a ‘complement’ to judicial power. It is intended to realise a clean judiciary, which pertains to the conduct of judges. This aligns with the principle, ‘ma la yatimmu al-wajib illa bihi fahuwa wajib’—meaning that if an obligation cannot be fulfilled except through a certain means, then that means becomes obligatory. Realising an independent judiciary is an obligation in a state governed by the rule of law. Achieving this requires the oversight provided by the Judicial Commission. The Judicial Commission is needed as a complement to judicial power through its supervisory function. Without optimal oversight by the Judicial Commission, a clean judiciary can never be achieved, and consequently, judicial power can never be truly independent.