Category Archives: indonesia

November 27, 2009 · 04:25

Of Geckos and Crocodiles

When the Washington, D.C., think-tank crowd gathers for an event on legal reform in Indonesia, you know a major scandal is brewing. At a CSIS event earlier this week, November 23 2009, Michael Buehler, of Columbia University’s Weatherhead East Asian Institute, discussed the ongoing controversy surrounding Indonesia’s Corruption Eradication Commission (KPK). Appropriately titled Of Geckos and Crocodiles,” the talk discussed the KPK (nicknamed the geckos), and its failure to root out vested interests in the police and judiciary (the crocodiles).
Buehler began his talk with a tour de force of Indonesia’s current anti-corruption legal framework. He later discussed the institutional capacity of Indonesia’s legal institutions, particularly the KPK. As of 2009, the KPK has a staff of 400 and a budget of $22 million – an obvious improvement over the Suharto era, but miniscule compared to its counterparts in Hong Kong and Singapore. According to Buehler’s data, the the KPK Corruption Court (TIPIKOR) handled over 30% of all corruption cases in the country. Impressively, it has a 100% conviction rate against defendants, versus less than 40% in the regular judiciary. However, most of those officials convicted in the TIPIKOR have been lower-level officials rather than the “big fish.”

Unfortunately, the SBY administration watered down the legal basis for the KPK and TIPIKOR in the Corruption Court Law of 2009. Previously, TIPIKOR judge panels consisted of a mix of ad hoc and career judges. The former were seen as more independent than the latter, who often must please superiors to receive promotions. However, the new law would replace the ad hoc judges entirely with career judges. Furthermore, the district court chief judge can alter a panel of TIPIKOR judges at will, even further weakening their independence. The law also establishes a branch of the TIPIKOR in all 33 provinces, but some critics allege that this would simply stretch the KPK’s already limited resources too thin.

Buehler made an interesting point about the “legal mafia.” According to a study he recently conducted, Indonesian conglomerates pay tuition for law students and recruit them to serve in the judicial service. Then, when they graduate, the conglomerate knows it has a network of loyal judges throughout the district courts. I am in the process of tracking down this report and will post comments as soon as possible.

The Istana Merdeka announced a policy that resembled traditional Javanese aloofness more than the vigorous activism legal reformers had hoped for. According to BBC, SBY has suggested the two KPK officials – Bibit Samad Rianto and Chandra Hamzah – should not face trial, but also resisted pressure to interfere directly in the case. SBY hinted that the scandal should be settled out of court, i.e. that nobody would face justice on corruption charges. Buehler criticized this as sending precisely the wrong message about corruption, and that’s certainly the image foreigners have taken away from this scandal.
While far from blameless, one thing that bothers me about all of these attacks on SBY is that they seem to ignore the finer points of Indonesian law. Any American lawyer knows that the president cannot simply intervene in an ongoing prosecution. Just imagine the outcry if President Bush had publicly condemned Patrick Fitzgerald’s prosecution of Scooter Libby for outing CIA agent Valerie Plame. As the Economist pointed out, it’s ironic that legal reformers are now criticizing SBY for refusing to take a similar action. As lawyers, we should be concerned with process as well as justice. Just because Bibit and Chandra are sympathetic figures on the side of righteousness, it wouldn’t make a good precedent for the president to take extra-constitutional steps to protect them. Unfortunately, this is not the first or last time legal reformers have urged foreign governments to take certain reforms without considering local context.

Note: if you haven’t been following the story, check out BBC’s Q&A about the scandal.

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Filed under corruption, indonesia, KPK, Michael Buehler

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

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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October 9, 2009 · 01:15

Random thoughts on Indonesian Law

Many Indonesia experts have remarked that Bahasa Indonesia possesses an acronym for everything and anything: ABRI, KKN, KPK, GESTAPU, BAPPENAS, POLRI, PKS, PP, FHUI, PERPU, LBHI, etc… Despite the country’s unique skill in this regard, it rarely bestows creative names to its legislation. Most laws are known by a long name (e.g., Law on Judicial Affairs…), by a number, and by the year it was passed. By contrast, in the U.S. legislators take great pride in silly acronyms and titles for famous legislation (PATRIOT, No Child Left Behind, SCHIP, VAWA, SSA, APA, NEPA, etc.). Does anybody know any creative Indonesian names of laws? I’d be curious to know.

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October 2, 2009 · 17:39

Literature Review: Indonesia’s Constitutional Rights: Strong or Conditional?

Citation: Simon Butt, Conditional Constitutionality, Pragmatism, and the Rule of Law, Sydney Law School Research Paper No. 09/28 (May 2008)


Philippa Venning, Determination of Economic, Social, and Cultural Rights by the Indonesian Constitutional Court, 10 Australian J. Asian L. 100 (2008)

How has Indonesia’s Constitutional Court, the Mahkamah Konstitusi (MK), balanced constitutional rights with the country’s other economic and social goals? Simon Butt of Sydney Law School and Philippa Venning of AusAID propose two ways of understanding the MK’s approach to constitutional interpretation.
Butt discusses the Mahkamah Agung’s reluctance to strike down certain laws despite acknowledging that they might be applied unconstitutionally in some instances (a practice he calls “conditional constitutionality”). For example, in a case decided last year, the MK decided not to strike down a pre-reformasi censorship law, but did admonish the Censorship Board to administer it in the new spirit of “democracy and human rights.” (Decision No. 29 of 2007). Likewise, the court decided to not strike down the national budget for failing to allocate the constitutionally-mandated 20% of funds for education. Rather, it required the legislature to progressively increase funding for education from year to year (Decision No. 26 of 2005). Butt acknowledges “conditional constitutionality” is not uniquely Indonesian, but worries that the MK has not provided enough guidance on how government agencies should treat laws deemed “conditionality constitutional.”

Courts in developing countries find it particularly challenging to enforce economic and social constitutional rights. Philippa Venning, a senior policy analyst with AusAID, compares the Mahkamah Agung’s approach to economic and social rights with that of other developing countries. In South Africa v. Grootbom, the South African Constitutional Court applied a reasonableness test to assess whether the government fulfilled the constitutional right to housing. The court acknowledged that South Africa could not afford to provide quality housing for everybody immediately, but judged the government on whether its policies progressively realized that goal. However, Venning claims Indonesia’s Mahkamah Konstitusi has adopted an even stronger form of judicial review (appropriately named “strong-form,” based on Tushnet’s framework) in which the court directly makes policy determinations about social and economic rights. For example, the the court invalidated a law to privatize the electricity sector because it found that the government had a positive duty to manage the industry under article 33 of the constitution (Decision No. 21, 22 of 2003). Thus, unlike Butt, she claims the MK has not deferred to the other branches of government or imposed conditionality in its constitutional jurisprudence.

So, what’s actually going on with the Mahkamah Agung? Is it exercising “conditional” or “strong-form” judicial review over constitutional rights?

Without reading all of the court’s decisions myself, I cannot say anything definitively. I suspect we may not fully understand the court’s jurisprudence until we see more cases. I also do not think the difference simply stems from the cases or time periods each author used – after all, both articles were published last year. However, I have a few thoughts that might explain this contradiction:

  • Both Butt and Venning probably overstate their analyses of the MK’s jurisprudence. With regard to “conditional constitutionality,” judges facing outside political pressure are often reluctant to make sweeping statements about the constitutionality of laws. Many courts, including the U.S. Supreme Court, often rule that a law might be unconstitutional in certain circumstances, but not as applied to the parties in the case at hand. In one case I read recently, the 7th Circuit decided that a registration requirement for sex offenders was applied constitutionally for one defendant but not the other, the difference between the two being a matter of a few months (U.S. v. Dixon, 551 F.3d 578 (7th Cir. 2008)). On the other hand, while the Mahkamah Agung has delved into intensive policy discussions, I don’t think this is quite the global abnormality that Venning portrays. While Venning classifies India as having a “weak-form” of constitutional review, the Indian Supreme Court has actively taken cases in order to rewrite policy directly from the bench.

  • The MK could be adopting different standards of review for different rights. Most constitutional courts use a generic proportionality test for all constitutional rights. However, some, such as the U.S. Supreme Court, have different levels of review depending upon the right at stake. For example, racial discrimination is reviewed more strictly than gender discrimination. The MK could be adopting a stricter standard of review for article 33, allowing it to engage in thorough policy analysis, than the education budget. However, I doubt that the justices are consciously “tiering” rights.

  • I think the most likely explanation is that the Mahkamah Agung uses policy determinations and pragmatism to substitute for the lack of a coherent constitutional theory of interpretation. In other words, there are no debates between “originalism” or “proportionality” or “active liberty.” I have yet to see anything akin to an Indonesian constitutional “test.” One advisor to the court even told me that the justices decide cases based upon their intuition and life experiences. Furthermore, the justices do not have much jurisprudence from which to develop legal analogies (only 6 years of case law). When this happens, courts often understandably look to other factors that can help them decide a case. Hopefully, in the future the MK justices will rely upon constitutional jurisprudence from other countries for ideas and inspiration.

I do agree with both authors that Indonesian legislators and judges sometimes use vague terms such as “human rights” or “democracy” without defining them. When I was in Indonesia, I was struck by the fact that the Foreign Investment Law contained so many requirements for corporate social responsibility projects without defining how much companies must engage in or what qualified as CSR. Some of this has probably been addressed in administrative regulations, but this leaves the executive with significant discretion. Likewise, returning to the MK’s censorship decision, would suppressing Mein Kampf (which is on sale in some Indonesian bookstores) promote or violate “human rights”? France and the U.S. have taken very different stances on this question, but the MK provides no guidance on how we should interpret “human rights.”


In short, neither “conditional constitutionality” nor “strong-form” review are particularly extreme at this point in the country’s constitutional history, but rather appear to represent the normal growing pains associated with constitutional review (as opposed to more insidious ones). I suspect that as the court develops its jurisprudence, we will see a more systematic theory of constitutional interpretation and fewer outright policy determinations.


If you’re interested in how Indonesia’s Mahkamah Konstitusi interprets other constitutional rights, here are a few more articles to read:


Simon Butt and Tim Lindsey, Economic Reform When the Constitution Matters: Indonesia’sConstitutional Court and Article 33 of the Constitution, Sydney Law School Research Paper No. 09/29 (2009)

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Filed under economic and social rights, indonesia, Mahkamah Konstitusi, Philippa Venning, Simon Butt