Feminisation of the Judiciary between Thick and Thin: Women as Model Minority Judges in Indonesia

Melissa Crouch

University of New South Wales

Indonesia’s Constitutional Court has been crucial to the past two decades of reform and has consolidated the shift from authoritarian rule to constitutional democracy. Yet, it was not until 2008 that the first female judge was appointed and since then there has only ever been one female judge out of nine on the bench at any one time. 

Symbolically, the Constitutional Court does not begin to meet global demands for women’s equal representation in the judiciary for the world’s third largest democracy. 

So, what role do women judges play on Indonesia’s Constitutional Court? To what extent can we speak of the feminisation of the judiciary in Indonesia, both in a thin sense of entrance to the profession and in a thick substantive sense of gender equality? These are the questions I begin to explore in my chapter in Women and the Judiciary in the Asia-Pacific.

I argue that one reason women may be appointed to apex courts is because of the need for a model minority judge. A model minority judge is one who is appointed as a means of symbolically representing a recognised minority group, such as women or religious minorities. These minority judges are considered to be models because they have a reputation for integrity, intellect and professionalism and are respected while in office because of their exemplary conduct. This explains Justice Indrati’s appointment to Indonesia’s Constitutional Court and the high regard for her term of service.

I also identify that the appointment of women judges, or thin feminisation, has been slow across the courts generally. In turn, the ability of women judges to advocate for gender equality, or thick feminisation, is constrained.

Thin Feminisation of the Constitutional Court

In almost 20 years, the Constitutional Court has not come very far in terms of the entrance of women on the bench or the thin feminisation of the judiciary. There were no female judges at all during the seminal first term of the bench (2003-2008). 

In 2008, Justice Maria Farida Indrati became the first female judge to be appointed to the bench. She served on the Constitutional Court for two terms or ten years in total (2008–2018). 

There has never been more than one female judge on the bench. There has also never been a female chief justice. In this regard, there is still a glass ceiling to break.

In 2018, when Justice Indrati retired from her position, there was public debate about whether her replacement should be a woman or not. This occurred at a time when Indonesia experienced its #MeToo moment. There was national social outcry when a judge of the Supreme Court convicted the female victim of sexual harassment for defaming her male harasser. 

The debate over judicial appointment had echoes of a classic merit versus gender representation argument. Should there be a quota of one woman judge on the bench (but why only one, said women’s groups!)? Or should judicial appointments be left to the nebulous concept of merit?

The outcome of this debate was that: another woman judge, Professor Enny Nurbaningsih, was appointed to replace Justice Indrati. Justice Nurbaningsih’s appointment shows the politics of intersectionality in Indonesia in terms of gender and religion. Justice Nurbaningsih is a Muslim, in contrast to Justice Indrati who was known to be a devout Catholic. The majority of Indonesians are Muslim and the past five years has seen the increasing influence of conservative religious values in public life and politics. 

Thick Feminisation

In Indonesia, the extent to which women judges support gender equality is constrained, and so the thick feminisation of the judiciary is limited. Model minority judges need to maintain both high personal integrity and professional formalism.

Justice Indrati was considered to be a model minority judge as a woman and as a devout Catholic. Former Chief Justice Mahfud MD has noted publicly that she was regarded with respect by her colleagues for fasting every Monday and Thursday. The research staff of the Court have also affirmed her strong work ethic.

In terms of her legal approach as a judge, she declined to identify herself as a feminist. Instead, she emphasised her commitment to the law, rather than to  values such as gender equality. 

Prior to her appointment in 2008, Maria Farida Indrati was a professor of law at the University of Indonesia. Her formalist approach to the law is evident in her work on law-making, her role as a scholar and then her role as a judge. This formalist approach can be traced back to key Indonesian legal thinkers and jurists such as Hans Kelsen. 

Justice Indrati was one of the most frequent dissenting judges on the Court. Despite there being no tradition of dissenting judges in Indonesia’s civil law system, Constitutional Court judges are able to write dissenting judgments.

Further, Justice Indrati was perceived to be an advocate of women’s and children’s rights because some of her concurring and dissenting opinions related to cases challenging laws that discriminate against women and children. The Court heard a range of cases concerning issues such as pornography, child marriage, women’s quotas in politics and the rights of children born out of wedlock. Each time, she was known for supporting the rights of women and children, even if often in a constrained and measured way.

She was also known (at least early on) for her support for religious freedom and for religious minorities in particular, because of her dissenting judgment in the first Blasphemy Law case (2010). This won her favour with religious minorities.

Despite what could be seen comparatively as a  muted approach to promoting gender equality, her contribution in the context of Indonesia was significant. he replacement of Justice Indrati with Justice Nurbaningsih potentially signals a backward step in the thick feminisation of the judiciary. 

Just prior to her appointment, Justice Nurbaningsih served on the National Law Development Body that was responsible for preparing draft amendments to the Penal Code. These amendments have been criticised by human rights advocates for, among other reasons, provisions that would ban extramarital sex, restrict the ability of women to obtain an abortion, restrict the promotion of contraception and potentially target the LGBTI community.

Where, then, does this leave us in the debate over the thick and thin feminisation of the judiciary? The Constitutional Court clearly has a long way to go with women’s representation on the bench; attitudes at present appear to be stuck on the view that one woman judge on a nine-person bench is sufficient. 

Nevertheless, Justice Indrati’s contribution can be understood as measured support for gender equality. Her replacement, Justice Nurbaningsih, is also a model minority judge in the sense that she is the only woman on the Court and at a time of democratic decline, she appears to reflect views of the government. It also seems that as the only woman judge, she has the mandate of speaking publicly about women’s issues, such as the constitutional protection against gender discrimination. Yet, her involvement with the draft Penal Code has raised concerns.

The question now is how long or to what extent Justice Indrati’s legacy will last, and whether any male judges will advance gender equality.

Melissa Crouch, Faculty of Law & Justice, University of New South Wales, Australia

Suggested Citation: Melissa Crouch, ‘Feminisation of the Judiciary between Thick and Thin: Women as Model Minority Judges in Indonesia’ IACL-AIDC Blog (16 November 2021) https://blog-iacl-aidc.org/women-judiciary/2021/11/16/feminisation-of-the-judiciary-between-thick-and-thin-women-as-model-minority-judges-in-indonesia.