In a recent talk at CSIS, Secretary of Commerce Gary Locke cited the rule of law as the biggest deterrent to U.S.-Indonesia trade. This suggests that rule of law technical assistance might be part of the Comprehensive Partnership that I blogged about a few weeks ago. Watch his speech here (the rule of law comment is about 34 minutes in).
Category Archives: indonesia
Rule of Law as biggest deterrent to U.S.-Indonesia ties
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Pornography gets a Pass
Indonesia’s Mahkamah Konstitusi has just ruled that the controversial anti-pornography law does not violate the 1945 Constitution. According to the BBC,* the court ruled that the law was sufficiently clear and not biased against any group. As such, the law is constitutional.
From what I’ve seen of MK decisions, the court does seem primarily concerned with issues of bias and specificity when adjudicating freedom of speech cases. The justices seem to be balancing the right against the scope and purpose of the law, as well as whether it is appropriate for a democratic society. This is fairly normal behavior for a constitutional court I don’t yet know whether the court has (or will) formalize its legal test for constitutional interpretation.*
Finally, here’s a picture courtesy of the Jakarta Globe of a traditional Indonesian dancer dancing before the justices.
* The case isn’t yet available through the English portal of the Mahkamah Konstitusi.
Will judicial reform be part of the U.S.-Indonesia Comprehensive Package?
Of course, we all know how serious a problem corruption has become within the country’s legal institutions (here’s my last post on the subject). USAID already has a Justice Sector Reform Program, but I’ve heard many complaints from both within the agency and without that it simply isn’t enough. So, what to do?
Much has been made of the new U.S.-Indonesia Comprehensive Partnership. The details will be unveiled next week when Obama goes to Jakarta. However, I came across an article in Asia Times that hints that the agreement might include increased support for judicial reform. Here is the quote:
One soft power priority could be assistance in reforming the judiciary. Dishonest judges, police and prosecutors are not only a source of distrust of government among Indonesians, but also discourage the foreign investment Indonesia needs to build modern infrastructure and realize its vast economic potential.
On the one hand, this seems to make sense – it’s certainly an issue that both the U.S. and Indonesian governments would like to tackle. On the other, many in the development community see judicial reform as a thankless morass. Unlike building roads or schools, which often produces clear, immediate outcomes, judicial reform involves change political cultures and confronting elite interests. Placing judicial reform at the center of U.S.-Indonesia relations would be risky and ambitious, but rewarding if it succeeds. In fact, the inclusion of judicial reform could be an indicator of how confident Obama and Yudhoyono feel in their relationship.
I’ll post more thoughts on the Comprehensive Partnership and its implications for the rule of law in Indonesia when it’s unveiled next week. [Obama has delayed his trip to Indonesia yet again. It may not happen until June, if at all].
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Indonesia’s Supreme Court gets technical
While looking for a copy of an Indonesian statute, I came across news of an odd case in HukumOnline. Apparently, under the Indonesian Code of Criminal Procedure (“KUHAP”) Article 263(1), only convicts or their heirs can seek a judicial review of their conviction. In Taswin Zein, the Supreme Court recently rejected an appeal from a Department of Labor and Transmigration official convicted of corruption because his lawyer filed the appeal on his behalf. Of course, for American lawyers, that outcome is unimaginable – we tend to assume that laypeople wouldn’t know how to file a pro se appeal. However, beyond this obvious fact, two things struck me about this case.
First, there seems to be a growing debate within the Supreme Court over whether to interpret a statute strictly or loosely. In other words, should the law be applied facially even when it results in a perverse outcome, or should it be reinterpreted to fit current norms of justice? This is a question that plagues any court that engages in any legal interpretation (that is, almost all of them).
According to the HukumOnline article, courts had tended to interpret such laws in a relatively relaxed manner. Now, there is more support for a strictly technical approach. I’d be curious to learn the reasons behind this shift. Indeed, the provision in question in the Taswin Zein case seems to be of the worst kind of legal technicality – the one that makes people hate lawyers. However, Justice Krisna Harahap did provide one plausible explanation in support of a purely facial reading of KUHAP § 263(1):
Many convicts… are convicted whilst being fugitives in other countries… if an attorney could file a case review for such convicted fugitives, it would be tantamount to a luxury extended to corruptors by the justice system.
I’ll leave it up to the Indonesian lawyers to resolve this legal debate. I do wonder though if it will eventually evolve into philosophical divisions of the kind we see in U.S. jurisprudence, like originalism or active liberty or purposivism, that construct legal theories justifying approaches to legal interpretation.
Another thing I noticed is that the HukumOnline article addresses the Indonesian Supreme Court justices as “Mr.” Supreme Court Chief Justice Harifin Tumpa is referred to as Mr. Tumpa. This seems to be a basic breach of protocol. It could well be a cultural difference, but I don’t ever recall seeing Indonesian justices referred to as “Mr.” before. Rather odd…
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Freedom of Speech in Indonesia?
According to the Economist, Indonesia has revived the Suharto tradition of banning certain controversial books. The list apparently includes everything from an expose of the 1965-66 massacres to shady financial dealings during SBY’s presidential campaign. Needless to say, the government justified this as necessary to preserve “national unity.”
Should the ban remain, this seems like an easy case for the Mahkamah Konstitusi. In a past petition for review of a censorship law (Law No. 8 of 1992), the court called censorship “behind the spirit of the times.” The court decided not to strike the statute down, but said it must be implemented in a manner that respects “democracy and human rights.” (MK Decision No. 29 of 2007). For more discussion of this case, see my previous post on Indonesian constitutional law.
Unfortunately, the court doesn’t provide much doctrinal rationale behind the decision. As such, it might also be instructive to consider how other countries handle free speech cases. For the moment, I won’t discuss U.S. First Amendment law – as today’s Supreme Court ruling shows, our unrestrictive interpretation of freedom of speech is something of an outlier in comparative constitutional law. Most countries have adopted a proportionality test to balance freedom of speech against other government policies. While each country has its own variant, Canada’s version, the most widespread, can be summarized as follows:
1) The objective of the law must be of sufficient purpose to warrant overriding freedom of speech
2) The means chosen must be reasonable and demonstrably justified:
a) The policy behind the law must have a rational basis;
b) The law must be the least restrictive means possible;
c) There should be a sense of proportion between the objectives and effects of the law.
In R. v. Keegstra, [1990] 3 S.C.R. 697, the Canadian Supreme Court used this approach to decide that prohibiting hate speech did benefit society more than the marginal value of permitting such speech.
I’ll let readers know if this new censorship case ends up in the Mahkamah Konstitusi. I’ll be particularly interested in seeing whether the court takes a firmer stand against this type of blatantly political censorship and lays out a clear legal test along the lines of Keegstra.
Dominic J. Nardi, Jr. 
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