Indonesia’s brave experiment in reinventing its legal system

Tim Lindsey

Since 1998, Indonesia’s notoriously dysfunctional legal system has been the focus of determined efforts to reinvent it.

Hundreds of new statutes and regulations have been enacted and dozens of major new institutions have been established. These include human rights courts, anti-corruption courts, a judicial commission, an anti-monopoly commission and local and national ombudsman commissions. The Supreme Court (Mahkamah Agung) finally has control of the administration of all courts, a power previously held by the Minister of Justice. In theory, this reduces opportunities for government interference in judicial decisions, and Indonesia’s much-maligned judges have the chance to chart a new path.

Constitutional revolution

These reforms have been supported by far-reaching constitutional amendments and a consequent regulatory overhaul. The adoption of a bill of rights that closely tracks the Universal Declaration of Human Rights and the creation of the Regional Representative Council (DPD), are among the most significant of these amendments. The new human rights guarantees have been quickly asserted by litigants and the DPD is a sort of ‘senate’ for the provinces, intended to allow regional communities a limited role in central government, in line with the post-Suharto decentralisation of state powers.

Constitutional reform has transformed Indonesia from what was effectively a dictatorship into a working electoral democracy. Other important amendments supporting this transition include the introduction of direct presidential elections, the abolition of appointed members of the legislature (ending the longstanding practice of reserving seats for the military), and a massive shift of power from the presidency to the legislature. These were accompanied by regulations that pushed the military out of mainstream politics and legitimised party political activity, which soon returned with vigor, despite its absence for decades under Suharto.

The constitutional amendments were thus a radical rethinking of the entire Indonesian state system and have resulted in a new, complex and still largely-untested model. To regulate the new system, a Constitutional Court was established, with a new authority to review laws that are against the Constitution. It has shown itself willing to use these powers, particularly in upholding the new human rights amendments and their implementing laws.

These and other reforms are too often glossed over in accounts of post-Suharto Indonesia despite the fact that they are substantial, significant and far-reaching. They have transformed the country. Return to repressive, military-backed authoritarian rule seems impossible now to most Indonesians – or at least to those living outside conflict zones.

Sound and fury

The results of ‘reformasi hukum’ (legal system reform) are, however, still far from satisfactory. The reforms are real enough, but so too are the problems they have brought with them. This is the source of the criticism typical of most analysis of Indonesian law reform. The new, amended Constitution, for example, is certainly a major step forward but it remains incomplete and few of the changes it mandates have been fully implemented.

Reform efforts fail because they are implemented by the same rent-seeking officials who for so long abused the system.

In an underfunded and underskilled public sector still recovering from the ‘corruption franchise’ of the Suharto system and decades of ‘stupidisation’ (pembodohan) imposed by the stifling official culture of the New Order, government reform efforts lack both coordination and effective implementation. This is hardly surprising, given that most of these initiatives rely for implementation on many of the same rent-seeking public officials who for so long abused the system to enrich themselves. They have nothing to gain and much to lose – including in some cases their jobs and even their liberty – by pushing reform through.

Genuine reformers face opposition from these elites, but also receive bitter criticism from the public for a perceived lack of progress. Many eventually give up, worn out by the demands of trying to reform an antiquated and complex legal system amid attacks from all sides.

Within this chaos, important new institutions must struggle to establish themselves and attract public and government support. They must also fight for their share of a meagre public purse, still suffering the effects of the1997 economic crisis.

The result is that most new laws passed have not delivered change at all, except on paper.

The courts

A legal system is, of course, much more than laws. The Indonesian Supreme and Constitutional Courts now have expanded authority that enables them to control the enforcement of existing laws and implementation of much of the reform process. In particular, because the Indonesian system allows an almost unimpeded right of appeal up the court hierarchy to the Supreme Court, that court is able to stamp its character on the state’s entire judicial system. It is thus a critical player in reformasi and when its power is combined with that of the legislature, they may together outweigh the authority of the now constitutionally-constrained presidency.

The good news is that reformers within the Supreme Court appear to be slowly gaining ground and the constituency for change is having more influence on the court’s policy directions and day-to-day decision-making.

The bad news is that the enormous challenges of actually delivering the institutional restructuring and regulatory framework necessary to implement its new authority have not been easy for the court. Accordingly, although judicial independence has improved since Suharto, entrenched and systemic corruption and incompetence continue to severely undermine the courts’ capacity to properly function. This is true despite the exceptional efforts of some dedicated champions of change, both within and outside the judiciary.

It is now no longer always impossible to get a fair trial, and there have been convictions in corruption cases - such as the former Minister of Religion, Said Agil Munawar. There is also now some evidence that courts may sometimes be preferred by some villagers to informal justice, particularly in cases of corruption at the local level. While some notorious cronies - Tommy Suharto and Bob Hasan, for example - have found their way into prison, most - Akbar Tanjung, for example - have not. Indeed, it remains the case today that no Jakarta-based current power-holder who is pribumi (non-ethnic Chinese Indonesian) has yet been imprisoned in the post-Suharto period.

Judicial enforcement of human rights law in Indonesia also remains very disappointing. The courts have imprisoned a Timorese militia leader for human rights abuses but have consistently failed to convict military personnel alleged to have been involved in serious violations, including in East Timor. The perception remains that those in power, and those close to them, continue to enjoy legal impunity, a view strengthened by the recent decision not to pursue charges against the elderly and ailing Suharto himself.

In the meantime, violence continues in Papua and Aceh and in other conflict zones throughout the archipelago. There are also continuing instances of religious intolerance involving Muslim attacks on other religionists, mainly Christian (in some areas, vice-versa) and on perceived ‘deviant’ sects, such as Ahmadiyah. Similarly, little action is yet apparent on other long-standing human rights problems, including child labour and human trafficking, especially of migrant workers.

And despite all the reforms, violence remains part of the state repertoire, as demonstrated by the murder of activist Munir in September 2004. Most Indonesians believe he was poisoned on the orders of senior military officers in a national intelligence agency, although the legal system has so far failed to follow the trail of evidence that far.

Why is this happening?

By its very nature, legal reform is extremely complex and very political. It is a difficult and slow process in any country.

It is therefore not surprising that the courts are still the subject of constant allegations of corruption and incompetence, some of which appear justified. The reality is that the courts remain institutions of limited capacity under extreme political pressure for reform but lack the resources needed to achieve it. To give two examples, the Supreme Court received only about a quarter of the budget it requested from government this year and the Anti-Corruption Court is grossly under-resourced. Its few judges are forced to endure an overwhelming case load and sit extremely long hours without adequate administrative support.

Sadly, there is little prospect of the state committing more resources to a judiciary seen as failing to meet existing standards, despite the fact that an effective judiciary is a key to improving standards. As things stand, reformers can see no way out of this dilemma other than continuing the current long, hard slog for years to come.

Civil society

And what of the alternatives to the courts?

One of the features of the Indonesian state system after 1998 has been the creation of a large number of quasi-governmental commissions (such as ombudsmen) to undertake tasks that might, elsewhere, be the responsibility of the courts. This reflects the reform strategy of avoiding the dysfunctional judiciary by creating alternative bodies to carry out judicial or quasi-judicial functions. This strategy has not been as successful as hoped, as none of the new agencies have been properly resourced nor have their powers been identified in clear, unequivocal fashion.

Outside the state and quasi-state systems, a continuing sense of uncertainty in politics, business and public administration has led Indonesian governments to turn to civil society and, in particular, academics, professionals and NGOs, for analysis and policy development. The fall of Suharto led to a dramatic and continuing growth of civil society activism, with the proliferation of thousands of governance-oriented NGOs.

Almost all of these become involved with legal issues. Advocating or supporting law and policy reform is now part of the daily business of most reputable NGOs and many have thus assumed an important role in the development of public policy, especially in the legal sector. It is increasingly common for government – especially relevant departments like the Ministry of Justice and Human Rights - to involve NGOs in policy formation, drafting of laws and policy documents and ‘socialisation’ (education, dissemination and consciousness-raising).

Many NGO leaders are, however, becoming cynical about current government attitudes to corruption and governance reform in Indonesia. They assume elite resistance and widespread ignorance among ordinary Indonesians of governance issues, despite a decade of campaigning for change. As with many other reformers, there is a growing sense of ‘reform fatigue’ among many leading civil society champions of law reform.

Brave new world?

Post-Suharto institutional and regulatory change has been extensive and ambitious, and makes a firm commitment to ‘negara hukum’ (rule of law), in rhetoric, at least. The new Constitution marks the first time since the 1950s that the proponents of liberal democracy have gained ascendancy over the supporters of the corporatist authoritarian state that dominated Indonesian politics for so long.

In terms of implementation and enforcement, however, the Indonesian experience of post-crisis legal infrastructure reform has mixed outcomes. In some quarters, aggressive institutional resistance has consistently stymied system reform and prevented regulatory change. In others, radical change has been enthusiastically embraced. Few donor-funded governance reforms directed at delivering certainty for investors have been completely successful. NGOs have been enthusiastic advocates of change but have limited authority and dwindling enthusiasm. The private legal profession remains disorganised, internally divided and unable to fully engage. Some institutions have responded, albeit sometimes slowly and only partially, as with the Supreme Court, the Ombudsman and legal educators. Others have fallen over at the start and are only now showing some signs of recovery, as with the Anti-Monopoly Commission or the Commercial Court. Others have tried but are simply unable to deliver change as yet, for example, the police, the prosecutors or the human rights judiciary.

The brave new world of reformasi thus still lacks content. Legal change has mostly yet to reach the level of petty officialdom where most Indonesians interact with the bureaucratic state. Reformasi has had only limited impact on ordinary Indonesians who are the usual victims of illegality and the violation of rights. They continue to operate in a world where law offers few solutions and the realities of power, money and, often, violence is still the real state system.

This is, unfortunately, to be expected. Law reform, even in sophisticated developed economies, usually takes a lot of time. One of the reasons for this ‘drag’ is that legal institutions - including courts - are the basic building blocks of rule of law. They are very complex and not easily built, developed or maintained. Law reform would logically be even more time-consuming in countries where the legal and institutional framework may be underdeveloped or may even not exist. This is particularly true in a society as vast, diverse and fragmented as Indonesia, which suffered massive and sudden economic and institutional collapse during the economic crisis and has since attempted a radical political, legal and institutional transition.

The dysfunctional legal system explains the rising popularity of conservative Islamic norms to create alternative legal models.

This may all make sense but it is, of course, cold comfort to those ordinary Indonesians deprived of rights by a still-dysfunctional legal system, predatory state officials or gangsters. This is one of the main reasons for the rising popularity of local responses to national regulatory failure drawing on conservative Islamic norms to create alternative legal models.

In Aceh, Makasar, Cianjur, Tangerang and elsewhere, these laws present ‘syariah’ (Islamic law – and an endlessly-contested term) in the form of moralising regional regulations (Perda) as the solution to the shortcomings of legal system reform. At the time of writing, the national legislature was debating the Anti Pornography Bill, essentially a national version of conservative Islamic Perda. Whether or not the bill is passed, the debate itself indicates that the failure of the current dominant liberal democratic model of law reform could usher in more extreme ideas of law derived from the long-standing ambitions of the proponents of an Islamic system in Indonesia.

Failure or the future?

So, has law reform failed in post-Suharto Indonesia?

Maybe, judged by the hopes of idealists who have fought for legal system reform through the muddle of the four administrations that have followed the New Order. They see too many reversals and compromises.

But perhaps compromise should not be seen as failure. Compromise is often the only way effective reform can be achieved, and it distinguishes democratic politics from dictatorship.

In the near term, Indonesia will likely ‘muddle through’, building and testing new laws and institutions, some of which will survive, some of which will not. Unpalatable for many champions of reform though this may be, it may well be what they should be aiming for. It is certainly what they will get, and it is not without hope. ii

Tim Lindsey (t.lindsey@unimelb.edu.au ) is Professor of Asian Law, director of the Asian Law Centre and deputy director of the Centre for the Study of Contemporary Islam at the University of Melbourne.