The Indonesia Council is being held from 20-21 November 2019 at ANU.
The following panels focus on constitutional law in Indonesia
Panel 1: Constitutionalism and the Courts in Indonesia
Chair: Melissa Crouch, UNSW
Attacking Free Expression and the Rise of Authoritarianism in IndonesiaHerlambang P. Wiratraman
Indonesia’s democracy is challenged by the increasingly authoritarian model of governance (Power 2018; Wiratraman 2018, 2019; Heufer 2017). First, the political pattern established by the New Order continues to be influential; many practices are still rooted in its bureaucratic systems. This pattern was characterised by corruption and the use of political violence to resolve social-economic conflicts. Second, the state has shown a lack of political commitment to strengthen human rights, seemingly leading to circles of impunity (Wiratraman 2019). Unsurprisingly, the authorities readily reproduced numerous draconian laws which threatened public spheres, freedom of expression and opinion. Even worse, several attacks have been made on the right of citizens and groups to express their views through discussion, film screenings, art festivals, and even academia. Unfortunately, the government and its apparatuses have failed to protect such activities. Although the Constitution stipulates freedom of expression as fundamental rights, the words “… prescribed by statute” following free expression article have proved problematic, even, adverse situation has been clearly shown under all regimes since independence (Bedner 2001; Wiratraman 2014). This article aims to evaluate the development of freedom of expression as a fundamental freedom, especially in the context of the return of authoritarianism.
Constitutional (un)clarity: International Law in the Indonesian Legal SystemArie Afriansyah
The Indonesian Constitution only states on how Indonesia makes international agreement without addressing the implementation of such agreement into domestic law. In addition to that, Indonesia must implement decisions of international organisations where Indonesia is a member, such as the United Nations Security Council (UNSC) Resolutions. Legal enforcers such as judges, police, and military officers are bound by the legality principle. This means that legal proceedings must be based on Indonesian law despite such norms originally come from international agreements. The only relevant law on international agreements (Law No. 24 Year 2000), unfortunately, does not provide clear mechanism to implement international rules into domestic law. The inadequacy of Indonesia’s position towards international law is made so much more difficult in the implementation at the domestic level. This article observes Indonesia’s inconsistent practices in implementing international law and seeks some options to rectify such issue.
Title: Striking the Right Balance: Winding Back Indonesia’s ‘Big Bang’ Decentralisation
Dr Rachael Diprose
Abstract: Indonesia has achieved significant political and institutional reform over the past two decades with many wide-sweeping changes introduced during the early years of democratisation. Four sets of amendments to the 1945 Constitution allowed for the enactment of Indonesia’s decentralisation laws, which were ratified in 1999 and revised again in 2004. These reforms transferred significant fiscal and political authority to the districts and municipalities, bypassing the once powerful provincial administrations and providing this level of government with only oversight and coordinating functions, unless sectoral imperatives cross-cut district boundaries. This went some way to addressing subnational demands for greater political and fiscal autonomy that had long beleaguered Indonesia’s central administration – complaints that policy responses ineffectual in some regions or favoured other regions and groups, which in the extreme resulted in regional rebellions and separatist insurgencies.
However, while the new centre-periphery bargain that was struck mitigated past tensions, it presented new opportunities, challenges and in some cases, conflicts. Services are in many cases more readily accessible locally, and pockets of policy innovation suited to Indonesia’s wide-ranging and varied local contexts are evident. Yet, the substantial increase in the scale of actors vying for power and influence at the subnational level has introduced complexities to resolving disputes and seen larger numbers of actors pursuing predatory rent-seeking practices. Transnational actors have been able to bypass the centre in their efforts to access markets and resources by directly influencing subnational power brokers and authorities. Centre-periphery tensions over licensing authority have become increasingly acute when the licenses issued for land and resource use have overlapped or been unclear, and the central government struggled to respond to international and domestic complaints. In responding to these challenges, successive central administrations have sought to strengthen central powers in particular sectors, such as in mining. The most recent iteration of the decentralisation laws – the 2014 Local Governance Law – has also wound back the licencing authority of district and municipal governments in many of the most lucrative resource sectors to favour provincial governments. This was the tier of government that lost out in the initial ‘Big Bang’ decentralisation reforms. The question remains as to whether the emerging slow creep of recentralisation strikes the right balance in Indonesia’s centre-periphery and intra-periphery distribution of power and authority, learning from the lessons that brought about the initial reforms.
Title: Finding the Right Path to Establish Election Court in Indonesia
Fritz Siregar, Bawaslu
After General Election Law (Law Number 7 Year 2017) was enacted, an enormous authority to adjudicate election dispute was brought upon Election Supervisory Agency (Bawaslu). This authority leads to an enigma beneath Bawaslu, could Bawaslu become a fully function election tribunal. In order to adjudicate election dispute and administrative violation, each Bawaslu’s member from regency level, provincial level until national level need to learn and act like a real judge in the court. Even, judicial function was conducted by Bawaslu from regency level until national level. Bawaslu has a duty to excogitate a “judge” who could deliver a just decision in a very thin time frame. There are two main questions that need to be answered in regard to Bawaslu’s authority. First, could Bawaslu become an election tribunal and could Bawaslu become an election tribunal that possess an authority to adjudicate election result dispute. This authority was temporarily possessed by Constitutional Court according to Article 157 paragraph (2) Local Election Law (Law Number 10 Year 2016). It is also possible that actually Bawaslu already becomes an election tribunal that possessed an election supervision function. If Bawaslu already possesses an election tribunal function, should Bawaslu make its own nomenclature that represents Bawaslu as an election tribunal. If Bawaslu is an election tribunal, should Bawaslu fall within the authority of Supreme Court. There is also an option that Bawaslu could stand alone as an election tribunal outside of the authority of Supreme Court like Commission of Information.
The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia
Chair: Professor Ed Aspinall, ANU
Abstract: This book panel will feature several contributors and the editor of the volume The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019). Indonesia is the world’s third largest democracy and its courts are an important part of its democratic system of governance. Since the transition from authoritarian rule in 1998, a range of new specialised courts have been established from the Commercial Courts to the Constitutional Court and the Fisheries Court. In addition, constitutional and legal changes have affirmed the principle of judicial independence and accountability. The growth of Indonesia’s economy means that the courts are facing greater demands to resolve an increasing number of disputes. This volume offers an analysis of the politics of court reform through a review of judicial change and legal culture in Indonesia. A key concern is whether the reforms that have taken place have addressed the issues of the decline in professionalism and increase in corruption. This volume will be a vital resource for scholars of law, political science, law and development, and law and society.
Melissa Crouch, The Judicial Reform Landscape in Indonesia: Innovation, Specialisation and the Legacy of Dan S Lev
Daniel Pascoe, The District Courts: Sentencing Decisions as Evolving Legal Culture
Herlambang Wiratraman, Administrative Courts
Discussant: Fritz Siregar
Thursday, Session 6
The Constitution, the Courts and the Administration in Indonesia
Chair: Fritz Siregar
Title: Judicial Independence: A Threat to Indonesia’s Democracy?
Associate Professor Melissa Crouch, University of New South Wales
Is Indonesia’s judiciary and its claims to judicial independence a threat to Indonesia’s democracy? Since 1998, major efforts to reform the courts have taken place. This includes the ‘one roof’ (satu atap) reforms that transferred control over management and administration of the courts from the executive to the Supreme Court; the creation of a Constitutional Court; the establishment of a new Judicial Commission to ensure judicial accountability; and the introduction of a range of specialized courts. Through a series of cases, the powers of the Judicial Commission have been compromised and the notion of ‘judicial independence’ expanded to include significant autonomy without meaningful accountability. In this paper I suggest that initial efforts to balance judicial independence with accountability have been compromised. This resonates with the theoretical work of Holmes and Fiss, who suggest that there are particular risks and dangers in granting judicial independence as part of a democratic transition. In the case of Indonesia, the persistence of corruption jeopardises the integrity of judicial independence and makes judicial accountability impossible to attain. The example of Indonesia offers lessons on constitution-making and court reform for countries in a transition to democracy.
Title: Contesting Marketisation and Predatory Rule: The 1945 Constitution, Social Rights and the Politics of Public Services in Indonesia
Professor Andrew Rosser
Following the collapse of the New Order in 1998, the Supreme Deliberative Council (MPR) amended the 1945 Constitution to, among other things, incorporate new provisions providing for better protection of social rights. This paper assesses the impact of these changes, focusing on provisions related to the rights to education, health and water services. The paper argues that i) along with other political and legal changes following the collapse of the New Order, these provisions contributed to a wave of litigation aimed at challenging neoliberal reform of public services and predatory control over public service providers; and ii) the extent to which such litigation has been successful has depended significantly on several factors: the institutional design of the court system as amended since the fall of the New Order; the presence of support structures for legal mobilization; the ideology of the courts and judges; and the roles and willingness of litigants to pursue redress. Broadly speaking, it is argued, this litigation has served to promote fulfilment of the rights of the poor and marginalized, although gains have largely come through better access to services, while issues of improving quality have been less prominent.
Title: Human rights and terrorism in Indonesia: a critical view
In the face of increasing state repression in the name of countering terrorism, human rights advocates have focused on articulating a model of counterterrorism that would be compatible with respect for human rights. While this move might bring amelioration to certain individual victims, it accommodates the problematic discourse of terrorism which often forms part of the very conditions that breed human rights violations in the first place. It risks the “legitimisation and perpetuation” of the discourse of terrorism, “rather than its dismantling or destruction.” (Jackson 2016, 122) In this talk, I present illustrations of this dynamic from Indonesia. I look at the attachment of a human rights language to Indonesia’s police-led approach to counterterrorism, and the role that plays in inoculating police abuse from scrutiny. The presentation concludes with the idea of disentangling human rights advocacy from counterterrorism. A disentangled advocacy would reaffirm and advance the critique of the discourse of terrorism while recovering the practice of human rights from minimalism or the tendency to think small and the aversion to politics.Jayson Lamcheck, National University of Singapore
The Constitutionalisation of “Religious Values” in Indonesia
In two different sections of the Amendment to 1945 Constitution, the phrase ‘nilai-nilai agama’ (religious values) are mentioned. First, in article 28J(2) on limitations of constitutional rights, and, second, in article 31(5) on the duty of government to uphold these values in education. The main question is: how far the State must endorse ‘Religious Values’ in public life as a constitutional requirement? My presentation will examine the interpretation of the phrase ‘Religious Values’ in the constitutional cases decided by the Indonesian Constitutional Court (Mahkamah Konstitusi) and evaluate the context of socio-legal politics in Indonesia.