19 February 2008

Judicial Appointments

The soon-to-be retirements of a number of Justices from the Indonesian Constitutional Court and the imminent end to the remaining Justices appointments for their first term has re-ignited the debate about the mechanisms for deciding judicial appointments and the format of any term of appointment. Re-ignited the debate at least in legal and political circles. It would not be of any surprise if the majority of the population was not following the developments or they did not give the proverbial 'rats' on the outcome.

For legal and political watchers the filling of legal vacancies and the amount of passion that arises in US circles is testament to the critical role that judges play and the influence they can exert on our lives. For this reason alone people must care about who gets the nod and who does not when it comes to judicial appointments, particularly to the highest courts in the land. In the Indonesian case this is either the Supreme Court or the Constitutional Court.

Having recently had the opportunity to hear the current Chief Justice (he prefers to call himself the President) of the Constitutional Court speak and the role he envisages that his first 5-year term has played in setting up the future direction of this particular court, then Indonesians should be concerned and interested in what appointments are to follow.

In the US justices to the US Supreme Court are lifetime appointments. Justices can retire and in some cases might even be forced out where they become just too old, and dementia or senility sets in and their abilities wane. Some jurisdictions such as Australia set a mandatory retirement age of 70 years old. Others such as South Africa set term limits to 12 years for a once only term.

Indonesia on the other hand sets a mandatory retirement age of 67 and also term limits of 5 years with the possibility of a judge being appointend for 2 terms. The Indonesian age and term limits reflect arguments and debates advanced at the time of the drafting of the legislation. When one considers that in the immediate aftermath of the brutal dicatatorial regime of the former President Soeharto there was a fervent desire to ensure that power could never become entrenched in a similar manner again, the simplest answer was obviously setting time limits to public service.

This needs to be re-evaluated now that this fervour has died down and more realistic mechanisms and systems of appointment to judicial positions can be discussed and debated. The key issue is the independence of the judiciary from influence from government or other places. The idea of a 5-year appointment and the possibility of an additional 5-year appointment flies in the face of the concept of an independent judiciary.

Simply, the first 5 years will be spent ensuring that you stay on the right side of your potential backers for a second 5-year appointment. This means that the courts ultimately become overtly political and increase the difficulty of justice ever being seen to be done.

The idea of a one-off 12 or 15 year appointment is also problematic if there is a mandated retirement age which might fall before the appointment ends. But even more troubling with a one-off appointment is what a waste of knowledge and experience if at the end of the one-off appointment the relevant Justice is still a further 10 years away from mandatory retirement!

People are living longer and the economic reality is that as a community we are going to have to keep people working longer in order that they can save enough for what is likely to be a long retirement.

Appointments for life to the highest courts are not such a bad idea. Specific conditions can be put in place with regards to annual health checks after a certain age (75, 80, 85, or 90, whatever). However, where the stakes are considered to be too high for a lifetime appointment to be agreed a mandatory retirement age without any term restrictions is the way to go. Simply, it does not matter whether you are appointed at age 35, 40, 50, or 67, if the mandatory retirement age is 70 then you retire at 70!

This all seems too simple to me. I do not see where the hassle lies. I guess politics gets in the way!

The rule of law and legal certainty demand that the Indonesian judiciary and the Indonesian parliament face up to this task and make some headway into resolving this emerging problem. It is not a now or never issue but it is a sooner the better one!

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