May 20, 2013 · 03:15

Who rules the forests? (Indonesia)

New owners?

The Alliance of Indigenous Peoples of the Archipelago (AMAN) filed a petition for constitutional review back in March asking the Mahkamah Konstitusi to remove state ownership from customary forests. According to Art. 1f of the 1999 Law on Forestry, “customary forests are state forests located in the areas of custom-based communities” (emphasis added). The justices agreed with AMAN. According to Justice Alim, “Members of customary societies have the right to clear forests belonging to them and use the land to fulfill their personal and family needs. The rights of indigenous communities will not be eradicated, as long as they’re protected under Article 18b of the Constitution.”

What’s perhaps more surprising is that the government seems fine with having lost the case. According to The Jakarta Globe, Ministry of Forestry spokesperson Sumarto claimed, “The Ministry of Forestry considers indigenous peoples living in a certain area as being part of the forest itself. They cannot be separated.” Of course, this could just be PR spin. After all, why would the central government want to cede control over forest resources? However, there also seems to be an implicit subtext in his comments, namely that the government might be glad to be rid of some of the burden in managing the forests.

One broader question is why the MK has found itself handling so many forestry cases in the first place. According to the MK website, the justices have heard 10 cases dealing with forestry law. To some extent, this is not surprising given the importance of forest resources in Indonesia, which has the largest remaining forest reserves in Southeast Asia (and possibly East Asia as a whole). However, it also seems to stem from the legacy of the New Order era and the lack of clarity in ownership over natural resources (or, put another way, the clarity that the government might seize resources and distribute them to clients). 
Another possibility (one I am investigating through my dissertation) is that forestry law appears so frequently in the court’s docket because the plaintiffs – often indigenous peoples with limited resources – cannot fight their battles in the legislature but can appeal to the court. This would suggest that the MK acts as something of an equalizing force in Indonesian politics, giving disadvantaged groups a greater say in policymaking. 

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Filed under environmental, forests, indonesia, Mahkamah Konstitusi

May 19, 2013 · 02:43

Facebook & Twitter pages!

Hello Rule by Hukum readers. After almost four years, I’ve decided it’s time to enter the social media age and set up a Facebook and Twitter account for Rule by Hukum. Of course, I’ll still be posting articles on this blog, but now Facebook and Twitter addicts can receive posts there as well. Better late than never…

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April 20, 2013 · 06:55

A different chief justice running for president? (Indonesia)

There’s been quite a bit of speculation regarding former Constitutional Court chief justice Mahfud MD’s presidential ambitions. However, according to The Jakarta Post, Mahfud’s predecessor, Jimly Asshiddiqie, has suggested that he might contest in the Democratic Party primary election. Jimly has not officially announced – as chairman of the Election Organizers Ethics Council (DKPP) he must remain neutral – but he has suggested that he would run if asked.

Two questions about Jimly’s candidacy spring to mind. First, is Jimly visible enough to win the primary? His reputation as chief justice was nearly impeccable, but he has not been on the court for almost 5 years. Moreover, the average Indonesian voter during his term (2003-2008) knew very little about the Constitutional Court. Second, what would Jimly’s constituencies be? Would he appeal to technocrats or progressives? Unlike Mahfud, it’s not clear Jimly has built-in support amongst Islamic groups.

Of course, it’s still early to speculate. One possibility is that Jimly uses the primary to demonstrate his electoral strength, even he does not win outright. This could lead to a vice-presidential nomination. He also has time to build his political base for the 2019 elections if need be – after all, he is only 56 years old!

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Filed under indonesia, Jimly, Mahkamah Konstitusi

April 17, 2013 · 21:22

Is ATCA dead? (Myanmar/Burma)

I have published a short review of John T. Dale’s Free Burma in the Journal of World-Systems Research. Dale’s book explores the implications of transnational human rights litigation, focusing on the case that Burmese rights groups filed against UNOCAL under the Alien Tort Claims Act (ATCA).

One of my questions about the book is whether ATCA suits represent a viable tool for human rights advocates. According to the U.S. Supreme Court, probably not. In Kiobel v. Royal Dutch Petroleum Co., the majority, led by Chief Justice Roberts, declared that there should be a “presumption against extraterritoriality” in the application of the law. While this doesn’t bar future ATCA suits – and EarthRights notes the decision does not bar all ATCA suits against corporations – it certainly will discourage lower court judges from admitting them.

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Filed under ATCA, Burma, human rights, Myanmar

April 11, 2013 · 19:36

Survey says… judicial corruption is still a problem (Indonesia)

My past few posts about Indonesia have mentioned surveys about corruption and the extent of the problem. A new survey by the Indonesian Legal Roundtable suggests that the judiciary’s reputation remains low – amongst the lowest of all government institutions in the country. According to ILR, only 23% of respondents believed judges could not be bribed. 32% believed that businessmen could easily influence the judiciary, while 30% believed political parties could influence the judiciary.

Of course, perception doesn’t always equal reality. These results don’t necessarily tell us the extent of corruption in the judiciary. However, courts do rely upon public opinion for institutional support and depend upon citizens to file cases. With such low confidence ratings, there’s a real risk that, rather than spurring judicial reforms, dissatisfaction with the courts will spur apathy.

For the record, ILR does not mention the Mahkamah Konstitusi and it appears most Indonesians don’t immediately think of the MK when asked to evaluate “the judiciary.” The latest polls I’ve seen about the MK (still several years old) suggest that a majority of people have confidence in the court, but large numbers of people still aren’t fully aware of it or what it does.

For a summary of ILR’s findings, see this Jakarta Post article. For an executive summary of the survey results, see here.

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Filed under corruption, indonesia, rule of law