One of the most essential characteristic of the Law No. 2 year 2004 regarding the Industrial Relations Dispute Resolution Tribunal (“the Law”) is the institution of ad-hoc judges in adjudicating industrial relations disputes, both in the State Court level and at the Supreme Court level. These ad-hoc judges are appointed by the President upon the recommendation of the Chairman of the Supreme Court based on the list of candidates proposed by labor union or business organization to the Minister of Justice (Article 63). 

The Law further stipulates normative prerequisites for appointment of the ad-hoc judges, namely (1) an Indonesian citizen, (2) at least 30 years of age, (3) physically healthy, (4) honest and fair, (5) must have an undergraduate decree and for ad hoc judges on the supreme court must have a bachelor in law and (6) have at least 5 years of experience in industrial relation practices (Article 64).

Further enumeration on the appointment and dismissal of ad hoc judges is regulated through a government regulation, No. 41 of 2004 on Procedures for Appointment and Dismissal of Ad Hoc Judges to the Industrial Relations Court and the Supreme Court (the “Regulation” or “GR 72”) as mandated by Article 72 of the Law.

Most of the Articles of the Regulation constitutes verbatim repetition of the Law. Article 3 of the Regulation however, detailed article 63 of the Law by clarifying that candidates of Ad Hoc Judges from Business Organization/Labor Union to fill ad Hoc Judges positions at the State Court or Supreme Court level shall be proposed by the Business Organization/Labor Union to the Minister. The minister wil then conduct administrative selection to the candidates and hold a written test to nominate the names of the judges. Provisions concenring administrative selections, written examination and determination of the nominated names will be further regulated through a ministerial decision. Article 4 of teh Regulation stipulates that the nominated names will be submitted to the Supreme Court Chairperson. The Supreme Court Chairperson will conduct a competence selection of Ad Hoc Judges through training. Only candidates who pass the training process can be proposed to the President to be appointed as Ad Hoc Judges. Subsequent to the appointment, Supreme Court Chairperson will determine allocation of the Ad Hoc Judges to regions.

To maintain neutrality and prevent conflict of interests, ad hoc judges are barred by the Law from holding other offices such as (i) State High Institutions, (ii) Governor, Regent or Mayor, (iii) Speaker of Regional Representative, (iv) Government Employee, (v) Armed Forces or the National Police, (vi) Executive of Political Parties, (vii) Advocate, (viii) mediator, (ix) conciliator, (x) arbiter or (xi) executive of labor unions or business organizations. Breach of this provision may cause annulment of appointment of the ad-hoc judge (Article 66 of the Law).

Ad Hoc judges may be honourably terminated from their offices in the event of (i) death, (ii) their own personal request, (iii) physical or mental illnes lasting to 12 months, (iv) reach 62 years of age for State Court ad hoc judges and 67 years of age for Supreme Court ad-hoc judges, (v) incapable of performing their duties, (vi) its term of office has officially ended. The term of office for ad hoc judges if 5 years and reappointment is only possible for one time (Article 67).

Dishonourable discharge of Ad-Hoc Judges is possible in the event of (i) the ad hoc judges is proven guilty of criminal charges (ii) there has been neglect of their duties for three times consecutively in one month and (iii) violation of judge’s oath. The aforementioned discharge will be conducted subsequent to a hearing before the Supreme Court (Article 68). Temporary dismissal prior to the permanent discharge is also possible.

GR-72 enumerates this stipulation by clarifying the need to form an Honorary Comittee (“HC”) by either Chief of the State Court or Chairperson of the Supreme Court to investigate the violations conducted by Ad Hoc Judges which leads to the dishonourable discharge from their office. Result of the investigation by the HC must then be submitted, in written, to the Chief of the State Court of the Chairperson of the Supreme Court. Ad-Hoc Judges have 30 days – counted from the moment after the investigation result is submitted-- to prepare for their self defense. The hearing on self-defense will be conducted by the HC on the State court or Supreme Court level. The Regulation also details the ‘temporary dismissal’ mechanism of the Law. According to Article 9 of GR-72, such temporary dismissal may be conducted at the event of arrest of the ad hoc judges for criminal offences or simply necessitated for the process of HC’s investigation. Ad Hoc judges may forward a plea of self-defense against this ‘tenporary dismissal’ but when this rights is exercised, they will lost their right to plea for self defense at the institution of hearing for permanent dishonourable discharge. Article 10 of the Regulation clarifies that when the accusation cannot be proven, the authorities and rights of the ad hoc judges will be restored and its ‘temporary dismissal’ will be revoked.

HC will issue necessary recommendation to the Chief of the State Court or Chairperson of the Supreme Court towards the ad hoc judges’ plea within 30 days after the plea is accepted. If the HC deems necessary, the time period may be extended to another 30 days.

Article 12 of the GR-72 regulates the possible annulment of appointment of ad hoc judges due to the revocation of recommendation from either business organizations or labor union toward their appointment. The Regulation emphasis that the decision pertaining this matter depends on the deliberation of the Chairperson of the Supreme Court, which may either approve or deny the petition forwarded by the business organization or labor union. However, presumably, the actual authority on removal of ad hoc judges from their offices rests on the hands of the President. (mma)