Chairman of the Indonesian Judicial Monitoring Society (MAPPI) M. Rizaldi as a relevant party delivering his statement in the judicial review hearing of the Supreme Court, Thursday (5/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The selection process for prospective supreme justices cannot fully capture the integrity of a prospective judge. Only in their term of office can their accountability be supervised by the Judicial Commission. Concerns regarding poor competency of a prospective supreme justice can be assuaged by supervision without the need to limit their tenure, said judicial system watchdog the Indonesian Judicial Monitoring Society (MAPPI) chairman M. Rizaldi in a follow-up judicial review hearing of Law No. 3 of 2009 concerning the Second Amendment to Law No. 14 of 1985 concerning the Supreme Court. The case No. 2/PUU-XVIII/2020 was petitioned Aristides Verissimo de Sousa Mota. The hearing took place on Monday (29/6/2020) in the Plenary Courtroom of the Constitutional Court with physical distancing in accordance with the health protocols set by the Indonesian Health Ministry to curb the spread of COVID-19.
Rizaldi further explained that not only judges but also the public participate in the selection of Supreme Court justices, because it is an open selection. For candidates who are politicians and businesspeople, there could be bias. He admitted that while monitoring the selection process MAPPI found shortages in the selection material when, in fact, the Supreme Court as a judex juris (judges that review laws) must maintain the main quality of its justices by appointing candidates who are not only able to examine cases. The Supreme Court deals with not only legal facts, but also the application of the law. Its justices must be able to explore legal cases and must understand the Court’s role at the first, appeal, and cassation levels.
"In the selection process, [such an] ability is often forgotten and the selection of prospective justices tends to concern matters that are less relevant. We believe that the ability to memorize articles [in the law] does not guarantee prospective justices can implement them fairly. Therefore, this lack of attention has led to the conflict against the Supreme Court’s aspiration to build legal unity in the judiciary in Indonesia," Rizaldi explained before the hearing chaired by Chief Constitutional Justice Anwar Usman along with the other eight constitutional justices.
Methods for Ensuring Integrity
MAPPI has conducted a comparative study of three methods in maintaining the integrity of a supreme justice in the court. First, setting the lifetime tenure adopted by the United States. Second, setting a retirement age adopted by Australia. Third, setting tenure adopted by South Africa.
Rizaldi stated that the lifetime tenure of Supreme Court justices in the U.S. potentially promotes corrupt practices, especially on the workload of justices who have to handle cases for a long time. Most Supreme Court justices in the United States are 52-53 years old at the time of appointment, end of tenure, and average tenure. This long tenure has been met with skepticism. It was later criticized because a supreme justice could serve for more than 40 years in the U.S. This was thought to potentially lead to declining performance.
Meanwhile, since 1977 Australia has set a retirement age for its supreme justices, with consideration of performance decline due to aging. "So, the retirement age of 70 has promoted justices’ independence in completing their duties and authorities to resolve every legal case that they face," Rizaldi said.
South Africa set 12-year tenure for its supreme justices with a retirement age of 70 years, for which they cannot be re-elected. This method is considered moderate, but also makes it difficult to maintain the independence of the court. "So this [type of tenure] when implemented generally does not continue. The aim is to prevent justices from behaving safely. Then, what is the objective selection process, when the selection of public office has political aspects? In the end, the results of this selection will rest with the DPR [House] and the DPR will chose [the justices]. Therefore, [it] is also not applicable in Indonesia," Rizaldi said.
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In the preliminary hearing, the Petitioner previously stated that the norms in the Supreme Court Law have caused discrimination because there are limits on the term of office of the president and vice president, but not to the Supreme Court justices. If a person is elected as a Supreme Court justice at the age of 45, then the person most likely will be in office for 25 years because the retirement age of the justices is 70 years. Therefore, the Petitioner requested that the Court decide the term of office of supreme justices for five years with a re-election for one more period. As such, the maximum tenure of supreme justices would be 10 years.
If a supreme justice has served for 10 years, after the ruling, they must resign. The tenure of a supreme justice who has served for over 5 years but less than 10 years will end after 10 years. In addition, the Petitioner also requested that the tenure of supreme justices who have served less than 5 years be determined at 5 years and after that they can apply for the supreme justice office. (Sri Pujianti/Tir/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 6/30/2020
Tuesday, June 30, 2020 | 09:16 WIB 245