IX. Sixth Indonesian Constitutional Court International Symposium
Symposium
I am back in the United States but finishing up some pieces of my internship remotely. On August 10 and 11, I participated virtually in the Sixth Indonesian Constitutional Court International Symposium as a speaker and respondent. The theme of the symposium was “Constitutional Court and Judicial Independence: A Comparative Perspective,” containing five sub-themes on inependnece of the Constitutional Court in the Democracy Era; Independence of Constitutional Judges in the Decision-Making Process; Threats to Judicial Independence Posted by Populist Movements; The Constitutional Court’s Budget and Financial Independence; and Constitutional Court Performance and Independence of Judicial Staff.
Agenda
The full symposium agenda with speaker bios is available on the ICCIS website. Deputy Chief Justice Prof. Saldi Isra and the first Chief Justice of the Constitutional Court Prof. Jimly Asshiddiqie. I think I might have commented on this in another post, but both jurists have an extensive background as legal scholars separate from their position as justices, which I find interesting considering the fairly narrow pipeline for becoming a US Supreme Court justice, usually involving some years in firm practice or the US Attorney’s office before doing their time on their federal bench.
The other speakers represented Indonesia, Philippines, Australia, Hungary, South Korea, El Salvador, the United States, and Palestine, and presented research examining the status of constitutional adjudication in those countries and more, such as Poland and Mexico. They provided their many insights for how constitutional courts deal with the common problem of self-preservation and maintaining their credibility. I was assigned as a respondent to a paper by Dr. Idul Rishan, a professor of constitutional law at the Islamic University of Indonesia, examining “court packing” in the Constitutional Courts of Indonesia, Hungary, and Poland, which greatly enriched my understanding of the constitutional background and structure of those courts, some common features of court packing, how some of these strategies have weakened independence in each country, and what political conditions make courts ripe for packing.
Presenting
My paper was titled “Comity or Controversy: Budgeting Independence of the American Judiciary” and focused on the fourth sub-theme of financial independence. But it also dealt with Constitutional Court performance and independence of staff, which is not really disconnected from financial independence. When fiscal authorities in the other branches are making budgeting decisions, they are very interested in the performance of the judicial branch, and the judicial branch is interested in arming itself with data measures to help strengthen its position in budget negotiations. The independence of judicial staff is related to budgeting decisions in the other branches. The legislature might not be able to put pressure on the constitutionally protected salaries of judges but there is less stopping them from scrutinizing their staff, especially if their staff are undifferentiated among other employees of the civil service.
I have written heavily about this subject in other blog posts, so I won’t go further to summarize my research. But the comments of the other speakers and attendees definitely sharpened my thinking and gave me new avenues for research. The respondents for my paper were Dr. Osayd Awawda, a professor of Constitutional Law at Hebron University in Palestine, and Dr. Irfan Nur Rachman from the Indonesian Constitutional Court. They asked me several questions including how judges’ performance should be measured and whether the constitution should set a percentage benchmark for the judiciary, which is how education is protected in Indonesia.
As far as performance measures, I wanted to clarify in my answers that the CourTools measures that I discussed measure the performance of courts, although this of course involves aggregating judges managing their cases. When court systems ask for salary increases for judges, generally they are just asking for a percentage cost of living or recruitment and retention increase for the whole judiciary without differentiating among judges. Court systems often just try to benchmark judicial salaries in one state to federal salaries, other states, or salaries in the private sector to make them competitive.
That kind of neglects performance measures though. What I as a legislator or taxpayer might want to know is of course not just whether increasing judicial salaries, or not increasing judicial salaries, would make state judges’ salaries more like federal judges’ salaries. The judiciary says it wants to attract “talented” people in the legal profession to the judiciary or prevent people in the judiciary from leaving for the legal profession. How do you even know what “judicial talent” looks like? What knowledge, skills, and abilities do you need to be a judge? How do we know whether salary increases are working to recruit or retain people who have them? And ultimately how does that impact things like access, fairness, efficiency, speediness, and all these other performance measures we have for courts?
This latter especially I think is very complicated to answer and when you start talking about performance measures for judges you get into awkward areas of supervision and autonomy. It’s great if you want to say for example that we could reduce the overall time to disposition in this trial court if we spent some money to give each judge an additional clerk or that we could save by investing in technological solutions. That’s not very offensive to judges. Saying we could reduce time to disposition by 15% if we pressured the “worst performing” judges to retire by withholding their inflation-adjusted salary increases can obviously be offensive to them.
I was a little skeptical of constitutionally setting budget levels at a percentage of the overall state budget. That might be effective in securing year-to-year revenue, but it also feels like a blunt instrument that ties judicial budgets to executive budgets. If government grows, judicial budgets must grow. If the government shrinks, judicial budgets may shrink. Does it protect the judiciary from across-the-board spending cuts? Meanwhile, the alternative of a doctrine providing that the judiciary must have funding “reasonably necessary” to carrying out its functions might give you more precisely tailored number, but that’s a very fact-intensive standard that puts things more in doubt. I might want to look more at how the education in Indonesia is protected, as the education budget is currently pegged at 20% of the overall state budget. You could also compare that with how education is protected in the United States with budget adequacy provisions in some state constitutions interpreted in different ways by state supreme courts.