Legal reform must overcome a history of authoritarian development

Agung Putri

With the fall of Suharto in 1998, Indonesians began to turn to the nation’s courts as a means of protecting their rights. Why would people hope that the legal arm of the old authoritarian regime would offer them succour?? Under Suharto, most people viewed the courts as a symbol of the regime and its control over society. Judges exercised their power systematically to remove basic freedoms and prevent access to justice for the community.

An important motivation for the demands for legal reform coming from ordinary Indonesians was the desire to punish Suharto and his cronies for what they had done. The courts should be somewhere to turn to. These demands were echoed by the nation’s political and legal elites, although their aims were for more ambitious reform of the justice system. But can reform of Indonesia’s justice system overcome 60 years of distorted development?

Early history

The struggle for an independent judiciary and an effective justice system in Indonesia began before independence. Indonesia’s first judges, trained in colonial times, were early advocates for an independent judiciary. The desire to create an Indonesian state based on law (rechstaat) was strong during the constitutional debates of the early 1950s. However, this important struggle was continually undermined by the executive government – the president, the civil service and the military.

Under Sukarno, failure was largely due to neglect. The government’s focus on international politics left little room for the development of an effective and independent judicial power. So when Suharto gained power, many had high expectations for improvement.

At first Suharto’s efforts were greeted positively. People saw signs of rationality and modernisation of the legal system. The passage of Law No. 14/1970 on judicial power, for example, was thought to provide a sound foundation upon which to build legal institutions. Among other things, it theoretically enshrined the independence of the judiciary and prohibited government interference in court processes. Later, in the mid 1980s, the government introduced protections of the rights of defendants in the new Criminal Code and Criminal Procedures Code.

Control and manipulation

The laws looked good on paper, and the rhetoric often sounded right. The problem, however, was that these laws were implemented by a regime that increasingly sought to control all aspects of society. Modernisation became an instrument of government control and centralisation.

The government unified and codified laws such as the Marriage Law in 1974 and the Village Governance Law in 1989. Most controversially, in 1985 parliament passed a package of five regulations concerning the conduct of national politics. These regulations ensured elections, the parliament itself, political parties and social organisations all operated within a framework tightly controlled by the government.

Further, with modernisation came the expansion of the formal bureaucracy into more and more areas of life, including local justice and dispute resolution. Progressively, local and traditional mechanisms of justice, which people were accustomed to, were lost. The government stripped the authority of local and tribal leaders and institutions such as the Batak ‘raja ni hula-hula’ in North Sumatra, the ‘batin’ in Riau, the ‘raja’ in the Kei islands, Maluku, and many others. These were converted into, at most, cultural institutions (lembaga adat) with roles limited to giving advice to village government. In 1989, Ministry of Home Affairs’ regulation took away traditional institutions’ control over land and their role in mediating conflicts on land issues. This authority was instead given to village heads, who were expected to make decisions in line with central government policy.

More serious was the Suharto government’s repression of political life. It banned political parties and organisations, and arrested and killed their leaders. It investigated individuals to ensure their beliefs and political orientation was ‘suitable’ before they could get jobs as public servants. It banned books, and broke up political meetings. Arbitrary killing, kidnappings and rapes were common in conflict areas. In this way, the regime implemented a kind of state terrorism.

Yet in the face of this the courts systematically failed to provide anything near a fair trial. People were often detained without being given access to lawyers. While in detention, they were commonly treated badly and even tortured. Lawyers were intimidated. Judges sometimes awarded stronger sentences than those requested by prosecutors.

Judicial failure

In practice, the Suharto government’s strategies for modernising and rationalising the justice system did not promote independence of the judiciary. While asserting judicial independence, Law No. 14/1970 had also made judges government officials, administratively part of the Department of Justice. This provision was exploited by the government to secure judges’ loyalty and subservience. The courts distorted fair process to suit government policy. Thus, even when local court decisions went against government policy, the Supreme Court inevitably turned the decision around in the government’s favour. Take, for example, Henok Hebee Ohe, the Papuan who won his case against the government in his indigenous land claim. Or the people of Kedung Ombo in Central Java, who won their case to stop the government from appropriating their land to build a dam. In both cases, the Supreme Court found in the government’s favour on appeal.

Not surprisingly, with courts and judges acting as part of the government, they were given no power to review legislation or to examine human rights violations by state officials. Power to conduct judicial review of laws in relation to the Constitution is an essential constraint on government power in most democracies. But such a power was never granted under Suharto.

There were also many trials of political activists and human rights defenders. From the start, with trials of communist leaders in the 1960s, the courts invariably endorsed the government’s self-serving interpretations of subversion and public disturbance laws. Soon the same was happening in trials of Muslim activists, Acehnese, Papuans, workers and student activists. For example, Papuan leader Dr Thomas Wanggai was sentenced to 28 years imprisonment in 1990; 25 Acehnese activists were sentenced in 1991 to between eight and 17 years imprisonment; and between 1988 and 1990 a number of student activists were sentenced to eight years imprisonment for distributing novels banned by the Suharto government.

The government also promoted non-judicial mechanisms to keep matters outside judicial processes. Examples included the ‘Pancasila’ industrial relations mechanism to mediate disputes between workers and employers, and national land institutions to solve land disputes. And to further ensure control and repression of opposition, a ministerial decree allowed military intervention in industrial disputes, particularly in the event of worker demonstrations. This particular ‘non-judicial mechanism’ of injustice resulted in the infamous death under torture of Marsinah, a female worker leader, at a local military post in 1993.

Suharto’s legacy, then, was a system of law and justice that had been designed to prop up the most authoritarian system of government in the country’s history.

After Suharto

Since Suharto’s resignation the parliament has made significant attempts to reform the legal system. It repealed the anti-subversion law. It sought to restore the power of the Supreme Court, established a Judicial Commission to oversee the courts, and made judges subject to the Supreme Court and not to government departments. It incorporated key human rights provisions in the Constitution, authorised the National Human Rights Commission (Komnas HAM) to conduct judicial investigations, and established Human Rights Courts.

So have the reforms made a difference? Have the people been encouraged to place their trust in the courts and the justice system?

The truth is that the community is again losing confidence in the justice system. The people want Suharto and his cronies held to account. However, the justice system still lacks the capacity to bring key state officials, including Suharto and military officers, to justice for gross human rights abuses. In the three major cases heard to date by the Human Rights Court, those most responsible for the violence in East Timor during the referendum, for the massacre at Tanjung Priok and in the abuse and torture in Abepura, have all been acquitted and have even been able to retain their senior positions in government and the military.

Day to day realities haven’t changed either. Police still arbitrarily shoot, beat and detain student activists, peasants and workers. The courts still support the state apparatus as they did previously, accepting without question its allegations against those opposing the government or other powerful interests. In conflict areas such as Aceh and Papua, military violence has continued.

Law reform is a difficult and complicated process. There is confusion about overlapping jurisdictions between courts, and many reform initiatives lack coherence. Military and bureaucratic reforms lag even further behind. These factors seriously impede the justice system’s ability to protect people’s rights.

Yet despite the difficulties and disappointed hopes, the Indonesian people know they have no alternative. All recognise the courts are important. But there is much still to be done before the average citizen can access justice.

Agung Putri (putri@elsam.or.id ) is the director of the Institute for Policy Research and Advocacy (ELSAM), Jakarta. ELSAM (www.elsam.or.id) is the premier human rights research organization in Indonesia.