The Centre for Democratic Institutions commissioned Prof. Simon Butt, probably the foremost Western expert on Indonesia’s Constitutional Court (Mahkamah Konstitusi) jurisprudence, to assess the MK’s handling of local elections cases in this report. In particular, Butt worries that the court had not adequately defined its standard for overturning an election (a “structured, systematic, and massive” breach) and does not rigorously evaluate evidence.
This report was published in March, so long before Akil-gate, but it still provides invaluable to the MK’s elections cases and some of the problems that plagued the system even before this October. One has to wonder now how much of the MK’s fuzziness on these matters was deliberate.
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.