High Court and Federal Judicial Officers Get A Pay Rise...

The Remuneration Tribunal has awarded a 3 per cent pay rise to High Court and Federal Court judicial officers. However, it is expected that more rises might be on the way.

The salaries for judges are pretty good, but with increasing workloads and demands a 3 per cent pay rise might not be enough, particularly if the government is trying to attract high calibre people to the bench. For many judges coming out of private or public practice of the law quiet often means a considerable salary sacrifice, making the move a labour of love as much as anything else.

So, the 3 per cent rise takes the base salary of the Chief Justice of the High Court to a respectable AUD 446,580 annually. The Chief Justices of the Federal and Family Courts see their base salaries rise to AUD 378,170 annually.

This pay rise should also see the salaries of Supreme Court judges rise in each of the states. Supreme Court judges earn a salary pegged at 85 per cent of that earned by a High Court justice.

I do not have a problem with judges getting a pay rise as most of them more than earn it.

Indonesian Supreme Court News

The Parliament appears destined to pass the new Supreme Court Law which will set the retirement age of Justices at 70 years of age. It is expected that the bill will be passed into law in the next Plenary Session on 17 December 2008. The raising of the retirement age was particularly controversial earlier in the process as many saw it as a not too covert attempt by the then Chief Justice to maintain his stranglehold on the leadership of the Court. Personally, I always thought it was making a mountain out of a mole hill, but that is just me.

The beauty of the debate though was that it got people talking about the Court and regeneration and particularly the appointment of new blood to the Court as a means of reinvigorating it not just in terms of the human resources present but also in terms of the Court's intellectual vigor.

Past is prologue and as such Bagir Manan is history. He is retired. The intrigue now is who will become the next Chief Justice of the Court. The Justices get to make this decision amongst themselves, at least, in so far as they choose from among their own.

It seems that the most likely candidates are all around the 67 age and as such any appointment might last a mere three years before the Court is once again looking for a new Chief.

Perception and Reality

It seems that the recent survey by the Political and Economic Risk Consultancy Ltd (PERC) that ranked Indonesia as the worst of the 12 Asian countries surveyed has raised an interesting debate about the reality of perception and the perception of reality.

The survey per se is not all that controversial as it asks those surveyed for their opinions based on their perceptions. However, what the survey has done is to highlight how perception and reality can diverge. The survey has also highlighted why perhaps some of those Indonesian institutions who have embarked on comprehensive programs of reform might want to also consider getting some public relations help in order to highlight these reforms in the public domain.

Arsil, a researcher from Lembaga Independensi Peradilan (Institute for an Independent Judiciary / LeIP), which focuses exclusively on judicial reform in Indonesia holds a similar opinion. Arsil feels that the results of the survey highlight the disgraceful reputation that the judiciary and the judicial system have in Indonesia. Nevertheless, Arsil was quick to note that the survey was more about perception than anything else and perception is a reflection of the ability of the courts to management their public communications. The simple philosophy here is that it the courts better manage the flow of information about itself then the public will have access to better and more accurate information on which to base any future judgments or perception.

The courts have been subject to significant judicial reform and this process of reform is ongoing. However, Arsil sees a critical mistake and that is how the Supreme Court manages the reform process internally and then projects this information to the broader public. The reality is that the public can only form their perceptions based on the information that they have at their perusal.

Not all of these reforms have a direct impact on the public and an example of this is a Decision by the Chief Justice contained in Decision No. 144 of 2007. This Decision was the first of its kind for an Indonesian institution and required a greater level of transparency in court processes. Even though the focus of the Decision was internal transparency within the courts it would have nonetheless been good public relations for the court. However, it was decided that because the Decision had no direct impact on the public then it was not necessary to promote this reform publicly.

Clearly the party most responsible for changing the image and consequently the perception of the Supreme Court is the Supreme Court itself. Unfortunately, to date the Supreme Court has been what can best be described as passive. In contrast the police have been active in publicly promoting police reforms. However, the lag time between publicly promoting reform and a change in perception is considerable.

The reality is that there is a distinct connection between the perception of the institution and the public’s trust in that institution. Poor perception means a low level of trust. This in turn leads to a credibility problem in that the public does not see the institution as being credible with regard to its primary function. In the case of the Supreme Court this means that the negative perception results in a belief that the Court is not a credible law enforcement agency.

Mas Achmad Santosa, a highly regarded legal practitioner active on law reform matters, stated that he can see the survey itself from two perspectives. First, he sees it from the perspective that any law or judicial reform efforts undertaken by the Supreme Court are yet to yield any concrete results with respect to public perception. Second, poor public communication in terms of self-promotion of the initiatives undertaken and the successes achieved.

To overcome this it is clear that the Supreme Court needs to do two things according to Mas Achmad Santosa. Firstly, an internal evaluation of the reforms undertaken to date and a catalogue of successes created. Secondly, there needs to be a communication strategy developed so that the Supreme Court can better promote the reforms undertaken. It is thought that the best means of developing a successful communication strategy would be to work with the Department of Communication and Information or perhaps even the Indonesian Capital Investment Coordination Board (Badan Koordinasi Penanaman Modal / BKPM).

The BKPM might seem like a strange choice. However, as Mas Achmad Santosa points out, part of the BKPM’s role is to provide a source of information to current and potential capital investors in Indonesia about the legal framework, the degree of legal certainty, and the legal system in general. It is well within reason that the BKPM as part of this information strategy also publicize court reforms, particularly if there is an impact on business.

In a purely business sense the failure of the courts generally and the Supreme Court specifically to successfully communicate reforms means that the impact of surveys such as this one can be far-reaching. Investors will think twice before investing in Indonesia if they take the results of this survey at face value. An under-performing and corrupt legal and judicial system is most likely to be seen as a hindrance to good business. To overcome this potential problem the court must ensure that reforms remain on track and a communication strategy must be developed as a matter of urgency.

To this end Mas Achmad Santosa provided an example of where the Head of the Religious Court had been sanctioned for an indiscretion. The sanction itself highlights that the Supreme Court is more serious than it has been in the past to clean up its image. However, the fact that the sanction was never communicated to the public meant that the public knows nothing of the sanction. The question is then, “how can the perceptions of the public towards the courts change if the reforms and sanctions are never communicated?”

Mas Achmad Santosa is still hopeful that the Supreme Court can develop this communication strategy and better inform the public of the progress being made.

Interestingly, not all people agree that there is a difference between the reality and the perception when it comes to the performance of the courts. Emerson Yuntho from Indonesian Corruption Watch (ICW) was unequivocal in stating that the results of the survey not only reflect the perception but are close to the truth. In Emerson’s view the idea of controversial verdicts and corruption in the court system or the judiciary is not a perception but a fact and consequently the perception and the reality are the same. One of the key problems that Emerson sees is that the courts themselves are not taking these matters seriously and cites the fact that judges who accept bribes and are guilty of other misconduct are, at best, subject to administrative sanctions. Therefore, when people see judges getting away with merely administrative sanctions then public confidence in the judiciary is eroded even further.

Emerson was far more skeptical when questioned about Supreme Court reform. When asked about this Emerson answered the question with a question, “what has the Supreme Court done?” In his opinion the only reforms of note have been with regard to ‘openness’ of information and that this reform has only occurred because of donor pressure. Emerson was certain that when donors stopped funding reforms and pressuring the court to undertake reforms that these ‘reform’ programs would cease automatically.

This suggests that there is no real intent to reform within the court or judicial system, but rather talking reform is all about getting money through aid programs directed at law reform.

The Retirement Age for Justices Set to Rise

The Working Committee of Commission III established to discuss and debate the Bill on the Supreme Court has agreed that the retirement age of justices of the Supreme Court should be raised to 70 years of age. However, it seems that the bill is not going to negotiate the halls of power in time for the current Chief Justice, Bagir Manan, to enjoy the benefits of the amendments.

The mandatory retirement ages for judges and justices (judges preside in lower courts and justices generally preside at the Supreme Court) has been steadily rising but is dependent on judges and justices satisfying required medical and health standards. Within this context there has been some debate as to whether judges should be appointed for life in the same way that justices are appointed to the Supreme Court of the United States of America. The idea of life appointments was to free judges and justices from political interference as they would no longer be worried about future appointments when their respective terms expired.

The setting of a mandatory retirement age would be the middle ground between renewable term appointments and appointments for life. In Indonesia, for example, appointments to the Constitutional Court are for a term of five years. At the conclusion of this term a justice can reapply for reappointment for an additional five year term.

The most recent increase in the mandatory retirement age has allowed Manan to serve as Chief Justice through until his 67th birthday which falls on 6 October 2008. Manan has not been seen to be active in the debate and discussion on the latest push to raise the mandatory retirement age and dismissed persistent questions on the matter from journalists with, “that’s the business of government”. When pushed he simply said that the Supreme Court has no legislative function as a judicial body and that the bill is part of “the authority of the President and House of Representatives (DPR)”.

However, Manan did add that in a philosophical way the push to raise mandatory retirement age makes sense as the longer a judge or justice serves in that capacity the more capable they would become in the performance of their jobs and duties. In response to persistent whispers that Manan might benefit from the amendments to the retirement age he invited journalists to his office and happily pointed out all of the empty bookshelves adding that his personal library had been moved to Bandung.

The bill is expected to be finished after Eid or perhaps in the next parliamentary sitting according to M. Nasir Jamil who has been involved in the discussion and debate of the bill and represents the Prosperous Justice Party. Jamil went further to say that none of the discussion related to any particular individuals and that the bill, once passed, will not operate retrospectively. According to Jamil the only way for Manan to extend his term is for Manan to do it for himself. However, Manan has ruled this out unequivocally by informing all of the journalists present in his office that he has already submitted his resignation to the President and all that remains to make his retirement official is the completion of the necessary administrative procedures.

There are critics of the proposal to raise the mandatory retirement age of justices to 70 years of age. One of these criticisms is that there will be no ‘regeneration’ in the Supreme Court’s judicial ranks. This is unlikely to gain much of a foothold as there is clearly a belief and an understanding that the justices that are to sit on the highest court in the land are to be the best of the best and as such when a vacancy becomes available then the next and most highly qualified candidate will be vetted and subsequently appointed to fill the vacancy.
The current retirement age for Supreme Court justices is 67 years of age. Current justices on the Supreme Court that are going to reach the mandatory age of retirement over the next several months include the following:

1. Prof. Dr. H. Bagir Manan SH, MCL / 6 Oct. 1941 / Chief Justice
2. Marianna Sutiadi SH / 12 Oct. 1941 / Deputy Chief Justice (Judicial Matters)
3. Dr. H. Parman Suparman SH, MH / 13 Oct. 1941 / Junior Chief Justice (Criminal Matters)
4. Prof. Dr. H. Kaimuddin Salle SH / 23 Oct. 1941 / Justice
5. Iskandar Kamil SH / 31 Oct. 1941 / Junior Chief Justice (Special Crimes)
6. Soedarno SH / 9 Nov. 1941 / Justice
7. German Hoediarto SH / 24 Nov. 1941 / Junior Chief Justice (Military Matters)
8. Andar Purba / 19 Dec. 1941 / Justice
(Source: Supreme Court Law and Public Relations Bureau)

Nevertheless, there are those that believe that regeneration is the key to success in terms of reform of the judiciary. A former Supreme Court Justice, Benyamin Mangkoedilaga, is one of those. However, he is also in favor of raising the current mandatory retirement age to 70. This agreement is based on the condition that any amendment to the mandatory retirement age does not become effective until 2009.

Generally, there is agreement on the need for the increase in the mandatory retirement age, and as Jamil has stated, the bill is set to be finalized and passed in the near future.

The Indonesian Supreme Court

The spat between the Indonesian Supreme Court and the State Audit Board headed up by Dr. Anwar Nasution has been an up and down ding dong battle with the Supreme Court seemingly coming out on top for now. The problem revolves around how the Supreme Court is to report the revenue it generates from court fees. This revenue is categorized as non-tax State revenue and in theory does not have to be reported in the same manner as tax revenue. However, it seems unconscionable that this revenue is not to be reported or accounted for at all!

The reality is that the Supreme Court is balking at an audit because it knows that it cannot account for all of the revenue collected. For most statements to the effect that all of the money has been legitimately spent on administrative matters like case management and photocopying rings a little hollow if this has not been properly receipted. If other tax payers are held to account and required to document their claims, then it is reasonable that State institutions be held to the same standard.

Indonesian Corruption Watch (I can link you to their site but it has been hacked by the Free Kosovar Movement and after more than a month the site still has not been repaired) is reporting that the Supreme Court has collected somewhere in the vicinity of IDR 31 billion and to suggest all this money has been utilized only for photocopying and filing purposes and some court administration procedures beggars belief. The Supreme Court should and must be able to do better than that. It is worth noting that the Supreme Court and the Chief Justice (photo above) are on record as to having agreed to be audited once the government passes legislation to that effect. This agreement is one that goes forward and therefore meanings any indiscrepancies or past abuses will be immune from the audit process.

In an era of legal reform both in the laws themselves and the institutions involved, the Supreme Court's approach is not one that rings true of this spirit of honesty, transparency, and equality of justice. For this reason alone it is no wonder that people remain skeptical of the Court's commitment to true reform!

Jimly Asshiddiqie & the Constitutional Court

The only thing apparently standing in Jimly's way to a second term on the Constitutional Court is personal political ambition! The previous months have often seen Jimly in the public eye at political events. Whether this is openly courting support for a second term on the Constitutional Court or courting support for a bigger play on the political stage such as the Vice-Presidential nominee on a favourable ticket remains to be seen. But there seems little doubt that the Chief Justice (or as he prefers the President of the Court) is angling for much bigger fish!

There is considerable parliamentary support for the current Chief Justice and in this sense he would be an unbackable favourite to be one of the three nominations that the parliament can make. The other six nominations are split three a piece between the Supreme Court and the Government (red: President).

The thing about Jimly is that he is consistent in his decision making and that provides a degree of certainty in the legal process. It is pretty much a case of you know what you will get decision wise. I certainly do not always see eye-to-eye on the interpretation of the Constitution aspects nor the manner in which retro-activity has been defined and now enshrined in Indonesian law (I know who cares, he is the Constitutional Law Professor and expert and you are but a mere lawyer -- yep, but an opinionated lawyer!). But to the Court's credit it has been consistent on this front.

Nevertheless, the danger is always going to be judicial ego, the idea of overstepping the mark from judicial review and interpretation to that of law makers. I have recently had a short but interesting "to and fro" with the Chief Justice on this point. The Court views itself as the ultimate guardian and interpreter of the Constitution and in this respect sees itself as a balancing and where necessary a correcting force to all those less educated souls on constitutional law.

My personal view is that the Chief Justice should throw his hat into the ring for another round. If he is serious about leaving a legacy, then two-terms on the Court should pretty much enshrine any legacy he wants to leave in the judicial sense. But if the call of public service is too great, and I am sure that it is, he will more than likely be opting to try and kick start a political career where any legacy he might leave could be much broader and far-reaching than any legacy he might leave at the Constitutional Court...

Time will tell!