Supreme Court, Gender, and Backlogs -- Indonesia

There was an interesting article in The Jakarta Globe that suggests that a recent appointment to the Indonesian Supreme Court can thank her gender for her appointment.

Sri Murwahyuni who previously sat on the Surabaya District Court has successfully negotiated the fit and proper testing procedures conducted by the House of [not so] Representatives to take her place as the 51st member of the Supreme Court bench. Yes, you read right, 51 members of the bench.

The other appointment was Sofyan Sitompul. Unfortunately, it would seem his gender was not of any assistance as he only just scraped through with 29 out of 57 votes of Commission III on legal affairs.

There are now six women on the 51 member Supreme Court bench. Not truly representative in a population sense, but certainly a move in the right direction.

However, I would be somewhat concerned that the perception is being allowed to develop that she was appointed based on her gender rather than her qualifications and skills, and more specifically what she brings to the Supreme Court as one of its newest members. This perception has developed and will continue to develop if legislators and other commentators do not re-orient their sound bites.

Let's face it,when the Head of the Commission suggests that gender played a role and was an advantage this immediately detracts from the appointee. This is plain and simple sad. This is even more so when the following sentence runs along the lines of "Oh, and she was also qualified too!" But, to add insult to injury, Benny K Harman, the Head of the Commission went one step further to reinforce a stereotype about women being more emotional than men and relying on unknown and unquantifiable other skills.

In this case, Harman said that "A female judge can use her intuition more than a man can and this is what the people want." Huh? What the people want, Benny, is consistency and equitable application of the law. The people want fairness. The people want to know that when they enter the legal system in pursuit of justice that they have every opportunity to find it.

Sad, Benny, sad!

But on a slightly different note. Ruhut Sitompul, no relation to the candidate, stated that there was no corruption in the process because he had never met Sofyan before the vote. I have to say, Ruhut, this hardly engenders any confidence in the process. So, if you had met him before then you might have been open to some good old-fashioned horse trading? But, this is about par for the course for Ruhut in pursuit of getting his head on TV. After all, it was not all that long ago he was seeking support for an idea to amend the constitution to allow SBY to seek a third presidential term for no other reason than all prospective candidates were lousy (in his view).

Sad, Ruhut, sad!

On a completely different note. There are now 51 members on the bench of the Supreme Court. There really should be no delay in seeking justice at the Supreme Court. There should not be any backlog of cases. A country of a similar population size, the USA, has a Supreme Court bench of just nine justices. They seem to manage their workload pretty well in comparison.

Ho hum...

The Age of Magistrates -- Does It Matter?

How young is too young? Or perhaps the question should really be how much experience is enough in order to be appointed a magistrate in NSW. This is a question that seems to have struck a chord in NSW with the recent appointment of Ellen Skinner as a magistrate at the age of 33.

Personal opinion, age is but a number. If the committee that selected her and recommended her for appointment believe that she has the skills and qualifications necessary to do the task, then so be it. It does not matter that she is 33 as it would not matter if she was 43, 53, or 63.

The appointment has drawn the ire of the NSW opposition who claim that the process is not transparent and the criteria for appointment are unclear. So, this appointment seemingly represents a case of providing someone the inside running to a career on the bench. This is nothing short of a little bit of grandstanding. By all accounts, Skinner is an accomplished lawyer and a worthy appointment.

The appointment makes Skinner the youngest ever person appointed to the bench as a magistrate in NSW.

Good luck to her and may she have a long and successful career on the bench.

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!