November 14, 2009 · 00:55

Another commission for Indonesian legal reform?

With the brewing scandal over the Indonesian police’s ham-handed efforts to blackball the Corruption Commission (KPK), it appears there is talk once again of a commission to reform Indonesia’s legal system. According to Reuters, Adnan Buyung Nasution, recently appointed by President Yudhoyono to a task force to respond to the scandal, has proposed a new state commission to oversee and enforce legal reforms:

I would like to see the whole case [the recent scandal] as an entry point to reform the legal institutions in Indonesia,’ Mr Nasution, 75, said in a telephone interview. With enough evidence, ‘we might make a recommendation to establish a state commission to reform the legal institutions so that we have rule of law in Indonesia.

Nasution also warned that corruption in the country has deterred foreign investors. Read the entire story here.
My own thoughts – this is probably a temporary balm on a much deeper problem. Nasution cites the example of Hong Kong’s Independence Commission Against Corruption, but studies suggest that political willpower was the most important factor in ICAC’s success. By contrast, recent reports implicate SBY in the conspiracy caught on tape. Indeed, the KPK indicted SBY’s son’s father-in-law, and, according to The Jakarta Post, was said to be preparing indictments against more members of his inner circle. While there is no evidence directly tying SBY to the conspiracy, so far Indonesians do not see him as a profile in courage, according to new polls.
Another concern is the fate of the last Indonesian commission established to reform the legal sector – namely the Judicial Commission. Several years ago, when the Judicial Commission accused several Supreme Court justices of corruption, the Supreme Court turned around and sued the commission in the Constitutional Court. The Constitutional Court accepted the Supreme Court’s arguments and stripped the Judicial Commission of its enforcement powers. [Simon Butt recently published a paper on the case]. 
This case dramatically shows just how vigorously Indonesia’s judges will protect their vested interests. Judges have tended to rally around accused colleagues rather than assist reformers, even if it damages the credibility of both themselves and their court. More ominously, the case also showed just how uncoordinated and disunited stakeholders in the legal sectors have been. Successful legal reform needs committed stakeholders, but so far it seems corruption runs throughout the entire legal system – judges, police, prosecutors, even the bar associations. Whenever one legal institution tries to reform part of the system, another simply undercuts it. In this case, the Judicial Commission and Constitutional Court, both post-Suharto reform institutions, interpreted judicial independence and the rule of law differently. 
Maybe a commission with full presidential backing and oversight over the entire system will fare better than the Judicial Commission. However, the late Indonesian legal scholar Daniel Lev predicted that it would take a generation to achieve meaningful legal reforms. Ten years after the fall of Suharto, Nasution claimed the new legal commission would need 10-20 years to complete its work. Sadly, I fear this predictions are correct and that Indonesian legal reform will only succeed with the arrival of a new generation of Indonesian government officials. 

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Filed under corruption, indonesia, KPK, Mahkamah Konstitusi, Simon Butt

November 12, 2009 · 18:39

New National University of Singapore Centre for International Law

The National University of Singapore, Southeast Asia’s premier law faculty, recently opened a Centre for International Law (CIL). Unlike most centers for international law, this one seems destined to focus on Southeast Asia in particular. In fact, one of the CIL’s first projects is “Integration through Law: The ASEAN Way in a Comparative Context.” You can read the project’s mission statement online. 

ASEAN has consistently lacked any sense of legal institutionalization. For 40 years, it has really been just a “talk-shop.” The new ASEAN Charter was intended to provide the region with a legal identity (i.e., in theory ASEAN can now be sued). However, the region still has a multiplicity of legal systems, so any deeper legal integration will likely take some time. The new CIL and other projects* will probably play an important role because, quite frankly, most scholarship on ASEAN has focused on political and economic rather than legal aspects. 
* The ASEAN Lawyers Association seems like it should be playing a leading role in this field, but from what I can tell it’s mostly a networking club. Does anybody know whether they are involved in ASEAN legal initiatives (besides the Thailand Reconciliation Project)?

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November 5, 2009 · 14:10

Above the Law in Burma

My article on Burma’s constitution, Above the Law, was just published in The Irrawaddy. I published it under a nom de guerre (that sounds so much better than pseudonym) because I do hope to return to Burma at some point. However, I doubt Burmese military intelligence reads Rule by Hukum, so I think it’s alright to cross-post here.

The article was actually intended to be a brief synthesis of the longer law review article I am currently working on. I hope to finish a draft by February 2010, when I will present the paper at the Inaugural East Asian Law and Society Conference in Hong Kong.
Like this brief op-ed, my longer* article will apply political science theories about courts and constitutions to the 2008 Burmese constitution. One interesting possibility that I discuss in both articles is that the National Convention adopted a Constitutional Tribunal to serve as an additional veto player, blocking any state or hluttaw initiatives that might threaten the military’s interests. This could become particularly important because the new constitution adopts a quasi-federal structure, so it will be more difficult for the military to manage political elites than it has been in the strictly hierarchical army.

Thanks to Htet Aung and the rest of the Irrawaddy editorial team for working with me on the article. I also love Harn Lay’s graphic for the piece. Make sure to check it out here.

* The operative word being longer. I already have 10 pages written about Burmese legal history, but that only brings it up to independence in 1947.

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Filed under Burma, constitutional tribunal, courts, Myanmar

October 29, 2009 · 04:07

Can ASEAN Learn about Human Rights from Africa? Part Deux

Sorry I haven’t published much on the blog lately. I’ve been getting bogged down in Ph.D. applications and other work. I promise to have a few posts on Burmese legal history up soon. In the meantime, here is a revised version of my surprisingly popular article comparing ASEAN’s Intergovernmental Commission on Human Rights with Africa’s Human and People’s Rights Commission. It was recently published in the foreign policy newsletter PacNet.

PacNet #70A – Wednesday, Oct. 28, 2009

Can ASEAN Learn about Human Rights from Africa?Dominic J. Nardi, Jr. (freedom4@mac.com) is a visiting research fellow with the Governance Institute, a legal think-tank dedicated to promoting the rule of law. He has worked with human rights organizations in Southeast Asia and advised women’s’ rights NGOs in East Africa. In addition, he has a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS.

Even before its birth this past weekend at the 15th ASEAN Summit in Cha-am, Thailand, many commentators expressed disappointment with the ASEAN Intergovernmental Commission on Human Rights (AICHR). Human rights activists allege that ASEAN stripped the commission of any “teeth” in order to appease perennial human rights violators, such as Burma. Defenders counter that the result was a necessary political compromise in accord with the “ASEAN Way.” Indeed, measuring the AICHR against the European Court of Human Rights would seem unfair because Europe consists exclusively of liberal democracies. However, even when compared to the rest of the developing world, ASEAN still has much to learn about much about establishing an effective human rights body from – of all places – Africa.

Despite the continent’s many challenges, the African Union has developed a fairly advanced human rights system. During the 1980s, African leaders adopted the Banjul Charter on Human and People’s Rights. Since then, the region has also adopted treaties protecting children’s and women’s rights, as well as a charter on democratic governance. Africa’s human rights system exists not only on paper, but also has teeth: the African Commission on Human and People’s Rights. African Union member countries elect 11 commissioners for a six-year renewable term. These commissioners are independent from their respective governments and must be human rights experts of the “highest reputation.”

Impressively, the Commission has both the mandate and political will to rule against African governments for discrimination, censorship, arbitrary detention, torture, and a variety of other rights violations. In the late 1990s, the Commission ordered Nigeria’s military junta to release a journalist who had been arrested without a warrant and prosecuted in a military tribunal. In 2004, it ruled that the president of Guinea violated the Banjul Charter by inciting solders to evict, rape, and torture Sierra Leonean refugees. The Commission has interpreted African treaties broadly, proclaiming that a state of emergency does not justify violating human rights. It has even ventured into political disputes, condemning the king of Swaziland for prohibiting political parties. According to one study, African governments have either fully or partially complied with over 70 percent of Commission decisions issued between 1987 and 2003.

Admittedly, the African human rights system is far from perfect. The Commission has no independent enforcement mechanisms against those governments that refuse to comply. Also, the Commission’s docket has become backlogged as it only meets for two 15-day sessions each year. However, the Commission has taken important steps toward not only supporting individual human rights victims, but also promoting human rights norms throughout the continent. Despite Africa’s concern for national sovereignty after the horrors of European colonialism, many Africans now consider it appropriate to intervene in order to protect human rights. In 2005, the African Union even suspended Togo in response to an unconstitutional seizure of power, which convinced the government to call new elections. Moreover, the African Union is currently establishing an African Court of Justice and Human Rights with enforcement powers that will work alongside the Commission. As a result, according to Freedom House, Africans on the whole currently enjoy more civil and political freedom than Southeast Asians. While Africa still faces many challenges, human rights violations are no longer considered acceptable thanks in part to the African Commission on Human and People’s Rights.

By contrast, ASEAN has yet to adopt a regional human rights treaty and struggles to condemn gross rights violations committed by members. Unlike African human rights treaties, neither the ASEAN Charter nor the AICHR Terms of Reference detail specific rights, but rather list vague principles, such as “non-discrimination.” ASEAN’s human rights declarations only cover migrant workers and human trafficking. Furthermore, the AICHR will not be able to rely upon international human rights conventions because only two have been ratified by all ten members: the Convention on the Rights of the Child and Committee on the Elimination of Discrimination against Women. Thus, it is not even clear whether Southeast Asians possess the same human rights that Africans currently enjoy.

Moreover, the AICHR will not be nearly as strong as its African counterpart. It cannot hear individual complaints from ASEAN citizens whose rights have been violated. In addition, the Commission has no power to monitor or investigate abuses in ASEAN countries. Rather, its main function appears to be merely promoting human rights awareness. The Terms of Reference provides little guidance on the qualifications for commissioners – a far cry from the Africa Union’s requirement that its commissioners be human rights experts of the “highest reputation.” All of the commissioners appointed during the ASEAN summit were government representatives, except for those of Thailand and Indonesia. More ominously, should a commissioner become too vocal, the Terms of Reference allows the government to remove him at any time.

ASEAN and the Africa Union are two very different regions. Nonetheless, the comparison provides some useful lessons for the AICHR. First, a strong regional human body can coexist with political diversity, conservative cultures, and national sovereignty. The African Commission hears individual complaints from human rights victims who live under authoritarian governments. This may embarrass politicians, but has certainly not threatened the regimes of dictators such as Zimbabwe’s Robert Mugabe. It is likewise difficult to see how a stronger AICHR would topple Burma’s Than Shwe.

Part of the African Commission’s success derives from its application of nuanced legal interpretations to balance the concerns of sovereign governments with the imperative of protecting rights. For example, under the principle of exhaustion of local remedies, the Commission requires human rights victims to work within their country’s own justice system before appealing to the Commission. This allows governments the first chance to redress any rights violations and prevent embarrassing litigation. Moreover, the principle of progressive realization acknowledges that some governments may not have the institutional or financial capacity to implement all human rights immediately, but requires that they at least respect rights and remedy any violations.

Rather than formulating a similar compromise, ASEAN seems to have simply hid behind the mantra of the “ASEAN Way.” Indeed, the AIHRC got off to a poor start when the Thai Foreign Ministry refused to allow several civil society delegates to attend the Cha-am summit. As a possible path to compromise, Southeast Asian policymakers and human rights activists should study other regional human rights bodies, particularly Africa’s, in order to appreciate the variety of models available. ASEAN itself has admitted that the AIHRC is a “work in progress” and plans to review the Terms of Reference every five years. In the next draft, ASEAN could adopt the principles of exhaustion of remedies, progressive realization, or “ASEAN minus X” in order to strengthen the AICHR. Doing so will help create a stronger ASEAN Community and provide both ASEAN and its member governments more legitimacy in the eyes of their citizens. In fact, given Africa’s relative experience with human rights, perhaps we will soon see African Union legal advisors sent to Southeast Asia in order to help the AICHR comply with international human rights standards.

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Filed under africa, asean, ASEAN Intergovernmental Commission on Human Rights

October 11, 2009 · 14:00

The Next Nobel Peace Prize Should Go to Indonesia

While President Barack Obama has certainly excited the world with his vision of American diplomacy, one can’t help but wonder if the Nobel Committee overlooked the man who helped lead the world’s fourth largest country toward peace and democracy – former Indonesian President Jusuf Habibie.

To explain why Habibie deserves the Nobel Peace Prize, it might be helpful to travel back to early 1998. The Asia Financial Crisis had just taken the wind out of Indonesia’s economic growth. Protests rocked Jakarta and rioters burned and looted shops owned by non-pribumi. Even as President Suharto started to lose his grip on power, few believe the TNI would step back from politics. Many analysts predicted Indonesia would tear itself apart, leading to a bloodbath worse than the Balkans. A senior general even threatened student protesters with another “Tiananmen Square,” in reference the China’s bloody crackdown in 1989, rather than cede power.

Enter Bacharuddin Jusuf Habibie. Habibie certainly never seemed like the leader who would lead Indonesia’s democratic transition. An engineer by training, he served as Minister for Technology and Research from 1978 right up to early 1998, where he managed several strategic industries. Admittedly, not all of his ideas proved wise; in 1994, he convinced Suharto to purchase the former East German navy for over $1 billion. Many experts believe Suharto chose Habibie as his Vice President precisely because the bapak believed nobody would risk overthrowing him if it meant leaving Habibie in charge. The value of Indonesia’s currency, the rupiah, fell by 36% the day after the announcement. When Suharto finally resigned on 21 May 1998 and handed the presidency over to Habibie, few were optimistic about the country’s future.

As president, however, Habibie displayed a hidden seriousness and commitment to reformasi. When he learned of the hundreds of political prisoners languishing in jail, Habibie ordered the POLRI to either charge them with actual crimes or release them. Soon afterward, many high-profile prisoners walked free for the first time in years. He also lifted restrictions on the media, political parties, and labor unions. In response to the riots against Chinese earlier that year, he issued presidential instructions to reduce discrimination against non-pribumi. He signed a law that decentralized power to the provinces, which gave local provinces and ethnic minorities more autonomy. In January 1999, he announced that the government would allow the people of East Timor to decide their future in a referendum. When the Timorese chose independence, Habibie respected their decision. He embraced democracy and announced new elections for the MPR set for October 1999. Perhaps most importantly, when Abdurrahman Wahid won, Habibie stepped down from the presidency.

President Habibie lasted in the Istana Merdeka for just 517 days. However, in that short time, he changed Indonesia forever and set the country on its current path to success.

A decade after Habibie’s presidency, Indonesia is in much better condition than anybody had dared hope. Far from breaking apart, the country’s sense of national identity and pride have risen to new heights. Decentralization has given Indonesians more control over government and enabled provinces to pursue local economic initiatives. Democracy has grown firm roots throughout the country. This past July, over 120 million Indonesians reelected President SBY in free and fair elections. Meanwhile, even in the current Global Recession, the International Monetary Fund predicts the country’s GDP will grow by 4% in 2009. President Obama and others now refer to Indonesia as the world’s largest Muslim democracy and a model for the rest of the Islamic world.

Other political leaders have won the Nobel Peace Prize for leading their countries toward democracy. In 1990, Mikhail Gorbachev won the Nobel for liberalizing the Soviet Union, as well as for withdrawing from Eastern Europe. In 1993, former President F.W. de Klerk shared the prize with Nelson Mandela for ending apartheid in South Africa. Like Habibie, both men realized that the old order no longer worked and embraced political reform. These leaders gracefully stepped aside when political events in their countries overtook them. However, in retrospect, with authoritarian creeping back into Russia and poverty on the rise in South Africa, Habibie’s reformasi appears deeper and more successful than either of these other accomplishments.

Of course, thousands of other people played important roles in the transformation, including Megawati, Amien Rais, SBY, and, above all, the masyarakat Indonesia. However, Habibie deserves credit for helping to steer the country on the right path during a difficult time. It’s not difficult to imagine what might have happened if he had acted differently – just look at Burma. In 1988, the Burmese people rose up against the ailing socialist system. However, nobody inside the government had Habibie’s vision. When the General Ne Win resigned, President Maung Maung continued to defend the old order. Frustrated with the political stalemate, the Burmese military seized power and ruled the country directly. Even after Aung San Suu Kyi’s National League for Democracy won legislative elections in 1990, the army refused to transfer power. Today, the Burmese people suffer from poverty and widespread human rights abuses. Had Maung Maung been more like Habibie, he might have won the 1991 Nobel Peace Prize instead of Aung San Suu Kyi.

Habibie has not received the recognition he deserves for his statesmanship in the late 1990s. Without Habibie, the country where Obama spent his youth might be embroiled in chaos. In setting the world’s fourth largest country on the path to peace, prosperity, and democracy, Habibie certainly belongs with Gorbachev, de Klerk, and now Obama as a Nobel Laureate. The process of nominating candidates for the Nobel Peace Prize remains shrouded in mystery. However, if the Norwegian Nobel Committee wishes to recognize somebody who has made a real contribution to peace and democracy, it should consider awarding former President Bacharuddin Jusuf Habibie the 2010 Nobel Peace Prize.

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Filed under indonesia