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.
Showing posts with label Mandatory Retirement. Show all posts
Showing posts with label Mandatory Retirement. Show all posts
24 September 2008
09 May 2008
Industrial Relations in Indonesia - The Good, The Bad, and The Ugly
The Industrial Relations Court (Pengadilan Hubungan Industrial / PHI) located in the Central Jakarta District Court has handed down an interesting decision that has implications for the employment of expatriates across the board. This particular dispute arose between a number of teachers who believe that they have been unfairly, arbitrarily, and unilaterally dismissed contrary to the provisions enshrined in the Labor Law (Law No. 13 of 2003) to protect them.
In a blow to labor of all forms in Indonesia the PHI has sided with the employers in this case. Why is it a blow? The decision expands the previous interpretations of the provisions of the Labor Law in a manner which clearly favors employers over their employees. This brings into question whether employees have any real employment security once an employer decides to terminate their services for any reason, real or imagined, in a unilateral manner.
The Labor Law is presumably to enhance and protect the interests of both parties in this situation and to ensure this occurs a limited interpretation of the provisions must be applied. Limited in this sense refers to interpretations that comply not only with the spirit of the provisions but with the wording of those provisions as well.
An interesting aside to this case is that there was a previous mediated decision formulated by the Labor and Transmigration Office of West Jakarta that indicates that the Respondents in this case were in breach of the provisions of the law. This mediated decision made an award to the Plaintiffs. However, there was a stipulation that if either party disagreed with the award then they could proceed with an action in the PHI.
In this case the Respondents chose this option. It is worth noting that the PHI did not give any consideration to the mediated settlement decision of the Labor and Transmigration office despite the document being entered into evidence.
Of most interest to employers in this decision is that Specified Term Employment Contracts (Perjanjian Kerja Waktu Tertentu / PKWT) cannot morph into Unspecified Term Employment Contract (Perjanjian Kerja Waktu Tidak Tertentu / PKWTT) even where the employer fails to renew the expired PKWT. The reasoning offered by the PHI was that the Labor Law requires expatriates to be on PKWT.
The literal reasoning and application of the provision above flies in the face of the creative interpretation offered by the PHI with regard to the language of PKWTs. The Labor Law at Article 57(1) seems to explicitly suggest that a PKWT must be in Indonesian. One of the claims of the Plaintiffs was that the only contracts they had were in English. However, the PHI held that the contracts in English fulfilled the necessary requirements under the law.
For employees it is important that they understand that once they have been terminated that the “clock is ticking”. This means that the prevailing laws and regulations only allow for a certain amount of time to elapse before any claim must be lodged. It is important to note that the PHI made specific reference to matters that were submitted outside of the stipulated time frame.
However, in a win for employees, the PHI held that if an individual was engaged into employment after the mandatory retirement age then an employer could not rely then on Article 167 to terminate the employee because they had entered mandatory retirement age.
The decision was determined on 8 April 2008 and read out in open court on 17 April 2008.
The Plaintiffs have already commenced the process of appeal. A reading of the judgment suggests that there was a considerably large amount of "evidence" that did not make it into the record of evidence and an equally large amount of uncontested evidence submitted by the Respondents in the case.
Perhaps an impartial review by lawyers not connected to the case needs to be part of the appeal strategy of the Plaintiffs in this case.
This is not the first case where teachers have been unilaterally dismissed by their employers. In a previous case that was judged at the PHI the decision was in favor of the teacher.
In a blow to labor of all forms in Indonesia the PHI has sided with the employers in this case. Why is it a blow? The decision expands the previous interpretations of the provisions of the Labor Law in a manner which clearly favors employers over their employees. This brings into question whether employees have any real employment security once an employer decides to terminate their services for any reason, real or imagined, in a unilateral manner.
The Labor Law is presumably to enhance and protect the interests of both parties in this situation and to ensure this occurs a limited interpretation of the provisions must be applied. Limited in this sense refers to interpretations that comply not only with the spirit of the provisions but with the wording of those provisions as well.
An interesting aside to this case is that there was a previous mediated decision formulated by the Labor and Transmigration Office of West Jakarta that indicates that the Respondents in this case were in breach of the provisions of the law. This mediated decision made an award to the Plaintiffs. However, there was a stipulation that if either party disagreed with the award then they could proceed with an action in the PHI.
In this case the Respondents chose this option. It is worth noting that the PHI did not give any consideration to the mediated settlement decision of the Labor and Transmigration office despite the document being entered into evidence.
Of most interest to employers in this decision is that Specified Term Employment Contracts (Perjanjian Kerja Waktu Tertentu / PKWT) cannot morph into Unspecified Term Employment Contract (Perjanjian Kerja Waktu Tidak Tertentu / PKWTT) even where the employer fails to renew the expired PKWT. The reasoning offered by the PHI was that the Labor Law requires expatriates to be on PKWT.
The literal reasoning and application of the provision above flies in the face of the creative interpretation offered by the PHI with regard to the language of PKWTs. The Labor Law at Article 57(1) seems to explicitly suggest that a PKWT must be in Indonesian. One of the claims of the Plaintiffs was that the only contracts they had were in English. However, the PHI held that the contracts in English fulfilled the necessary requirements under the law.
For employees it is important that they understand that once they have been terminated that the “clock is ticking”. This means that the prevailing laws and regulations only allow for a certain amount of time to elapse before any claim must be lodged. It is important to note that the PHI made specific reference to matters that were submitted outside of the stipulated time frame.
However, in a win for employees, the PHI held that if an individual was engaged into employment after the mandatory retirement age then an employer could not rely then on Article 167 to terminate the employee because they had entered mandatory retirement age.
The decision was determined on 8 April 2008 and read out in open court on 17 April 2008.
The Plaintiffs have already commenced the process of appeal. A reading of the judgment suggests that there was a considerably large amount of "evidence" that did not make it into the record of evidence and an equally large amount of uncontested evidence submitted by the Respondents in the case.
Perhaps an impartial review by lawyers not connected to the case needs to be part of the appeal strategy of the Plaintiffs in this case.
This is not the first case where teachers have been unilaterally dismissed by their employers. In a previous case that was judged at the PHI the decision was in favor of the teacher.
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!
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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