Democracy and Islam in Indonesia

President Susilo Bambang Yudhoyono stressed his resolve to purge the “judicial mafia,” calling on law-enforcement agencies to commit to the fight. “Remember, in the hands of corrupt law enforcers, anything bent can be straightened and the straight can be bent. I want judicial mafia practices to cease,” said Yudhoyono at the State Palace. … Law-enforcement officials, whether in Jakarta or the regions, should not manipulate the law, he said. The President named eliminating corruption in the judiciary as one of his top priorities when announcing the government’s first-100-day program in October.

For most of Suharto’s three-decade reign, there were virtually no effective checks on the exercise of state power: government was for the most part not done by law. A constitution formally bound the government and declared Indonesia to be a “law state” (Rechtsstaat), but no judicial institution had power to hold the government to account for breaching it.² In any event, by many accounts most judges were corrupt and lacked independence from government: their decisions were routinely ordered by government (sometimes by telephone) or purchased by litigants (often with court clerks acting as brokers).³

The result was a dysfunctional legal system that consistently failed citizens but served the Suharto government well, providing almost complete legal impunity for many state actors, in particular military perpetrators of human rights abuses.⁴ Daniel Lev’s damning account of the decrepitude of the Indonesian legal system by the end of the Orde Baru (New Order) suggests the magnitude of the problem that faced Suharto’s successors after “the old man” resigned in May 1998:

Despite the enormity of the task facing the post-Suharto Reformasi (Reformation) movement and, in particular, the advocates of law reform, Indonesia’s legal system has since taken important steps toward developing a system of governance based on the rule of law or, as it is known in its Indonesian manifestation, negara hukum (literally “law state”). Negara hukum is, in general terms, the equivalent of the Dutch Rechtsstaat, and in theory both terms should be distinguished from the Anglo-American common-law notion of “rule of law.”⁶ Despite this distinction, the three terms are increasingly used interchangeably by Indonesian law reform advocates (particularly civil society organizations), and the common-law notion of “rule of law,” with its links to representative democracy and separation of powers, is beginning to displace other meanings in common usage.

Negara hukum is identified as the basis of the state in Article 1(3) of the Indonesian Constitution,⁷ but to our knowledge it has never been formally defined in Indonesia by regulation or by a court. It has, however, been variously articulated in a range of contexts to require legality—that is, that the state (including government officials and institutions, local governments, and the military) must itself comply with the law when performing its functions; that there must be an independent judiciary; and that fundamental human rights must be protected.⁸ In addition, it has been found that the negara hukum principle requires the state to provide citizens with rights to legal aid, legal certainty, access to justice, a fair trial, and due process.⁹

This chapter seeks to assess how far Indonesia’s legal system has come along its path from the “institutional shambles” of 1998 to the rule of law, focusing on the role of the Mahkamah Agung (Supreme Court). We consider reforms aimed at removing government control over the administration of the courts (which bears upon the “judicial independence” limb of the negara hukum); and the Supreme Court’s task of reviewing perda (regional regulations) to ensure that they do not breach national-level laws (which relates to the “legality” limb of the negara hukum).

Pursuant to these amendments, the Mahkamah Konstitusi (Constitutional Court) was established in 2003 (Art. 24C of the Constitution). This new court has the task, among others, of enforcing the Constitution and implementing the trias politika. It does this by resolving disputes between state entities, determining impeachment, acting as a court of disputed returns, and, most important, reviewing national statutes (undang-undang) at the request of citizens and legal entities to determine whether the statutes comply with the Constitution (including, of course, its human rights provisions). It can invalidate noncompliant statutes if it considers that necessary. These tasks the Court has generally carried out competently, reliably, and impartially.¹¹ The Court has even identified several implied rights that Indonesia, as a “law state” (negara hukum), must provide to its citizens.¹² The Constitutional Court is thus now widely seen as an important check on the exercise of national legislative power and perhaps the most professional judicial institution in Indonesian legal history. However, its reach in review cases is limited: it lacks the power to test whether the many thousands of lower-level laws (including perda, regional regulations) comply with the Constitution and national statutes. This task is left to the Supreme Court. As we show later, the Supreme Court has thus far failed to perform this function effectively.

Important, too, has been a major reconfiguration of the organizational structure of Indonesia’s other courts. In 2004, administrative, financial, and organizational control of the general, administrative, religious, and military courts was transferred to the Supreme Court pursuant to Law No. 35 of 1999. The executive branch—in particular the Department of Judicial Affairs—had previously controlled them.¹³ In addition, the armed forces had authority over the Military Courts, and the Department of Religion over the Religious Courts. Before the 2004 reconfiguration of the organizational structure of the country’s courts, the administration of the courts was often contested, typically ineffective, and always overwhelmingly dominated by the executive branch and its political interests.¹⁴ Moreover, to ensure decisions that the state favored, the executive is said to have frequently exploited judicial dependence on government for positions, pay, and promotion.15

As with the creation of the Constitutional Court, the reforms that gave the Supreme Court sole authority over judicial administration were part of the broad regulatory and institutional response to demands for an independent judiciary stemming from the popular Reformasi movement that emerged in 1998. This movement was driven largely by civil society and in particular by many of the nongovernmental organizations (NGOs) concerned with governance and law reform that had been quickly established as the New Order’s systematized legal and administrative repression of civil society evaporated. These organizations’ idea that Indonesia’s judicial system required urgent and radical overhaul soon became mainstream and bipartisan, endorsed by each administration succeeding Suharto and included in each successive national development plan. The idea led in 2009 to the much publicized (if also much questioned) commitment by the newly reelected Yudhoyono administration that appears at the start of this chapter: to put an end to “judicial mafia,” a popular term for institutionalized corruption and dysfunction entrenched in the legal system and inherited from the New Order.

A major step in the reconfiguration of the judiciary to respond to these demands for reform was the amendment in 2001 of Article 24 of the Constitution. This provision was originally a bland grant of power to government to deal with the judiciary as it saw fit.¹⁶ It made no mention of justice, for example, or of judicial independence. In its amended form, however, Article 24 is now a clear statement of the judiciary’s independence from government as well as formal recognition of the different branches of the judiciary. As amended, this article states that

The new principles in Article 24 are set out again in the Law on the Judiciary, Law No. 4 of 2004, which requires judicial independence in a number of its provisions. They are further implemented through the cascading chain of regulation that is typical of legal administration in Indonesia.¹⁷ The changes these regulations introduced were intended to remove judges’ dependence on government favor for pay, promotion, continuing employment, and favorable transfers.18 Together they are usually referred to generically as the “one-roof” (satu atap) reforms, a reference to the fact that under the New Order the courts were housed beneath two roofs—that is, under both the Supreme Court and under the executive—but are now principally under the sole authority of the Supreme Court.

The reforms were not just structural, however. The leadership of Chief Justice Bagir Manan (2001–2008) saw the Supreme Court embark on an unprecedented program of internal reform. This process involved new partnerships with civil society, including, for example, Lembaga Kajian dan Advokasi untuk Independensi Peradilan (LeIP, Institute for Study and Advocacy for Judicial Independence) a leading judicial reform NGO.¹⁹ The idealistic young lawyers of LeIP, led by Rifqi Assegaf, helped the Court draft ambitious Judicial Reform Blueprints, which, although imperfectly and incompletely implemented, have now become a central part of the Court’s routine administration.

It is clear that the raft of reforms resulting from the implementation of the satu atap restructuring through the Blueprints has begun to create a more open judicial culture in the Supreme Court. It also appears to have begun to build a greater degree of judicial independence—from government at least, in the sense that the central government can no longer direct Supreme Court decisions and indeed now finds the Court quite willing to decide against it, a very rare occurrence under Suharto.²⁰

All these reforms are the result of a genuine demand that something at last be done about the desuetude of the Indonesian judicial system, entrenched since at least the late 1950s.²¹ These demands were supported by many Indonesians, most obviously in civil society, but also in small and determined groups of reform-minded leaders within government and the courts themselves. The reforms have now begun to trigger positive, albeit very slow, change to Indonesia’s legal system but are often overlooked or discounted in assessments of Indonesia’s post-Suharto Reformasi. This has been in part because legal system reform is usually an inherently complex and slow process in any country, regardless of the type of system involved.²² It is also overlooked because the changes that have taken place within the Indonesian judiciary are often not immediately apparent to the public observing the day-to-day activity of the courts through the lens of the media and local politics. Controversial political cases and corruption scandals are rarely an accurate measure of the complex business of court reform.

In this chapter, we seek to identify some key impediments remaining to judicial reform and to offer an assessment of the trajectory of Indonesia’s legal system since 1998. In the next section, we deal with direct impediments, showing that judicial illegality (and, in particular, corruption) survives in most courts (with a few honorable exceptions)23 and hampers progress toward the rule of law. We argue that this continued judicial illegality is to a large extent the result of successful resistance to reforms aimed at improving external judicial accountability. This resistance has been led by the Supreme Court, which, although willing to undertake a limited and gradual internal reform process, has seen external accountability mechanisms as threatening and has “pushed back” aggressively against them. This attitude has resulted in particular in the effective emasculation of the Komisi Yudisial (Judicial Commission), a new body established in 2005 and entrusted with detecting impropriety among Indonesia’s judges as a counterbalance to the increase in judicial autonomy created by the satu atap reforms. The result is that the Supreme Court is still often unable to perform competently and honestly the pivotal role allocated to it: impartially adjudicating disputes not only between citizens, but also between citizens and the state, and between state institutions themselves, including the various tiers and arms of government.

In the second half of this chapter, we discuss another key obstacle to reform of the Indonesian legal system that we argue is also a result of judicial dysfunction, albeit indirectly: decentralization and the legal chaos that has followed in its wake. Decentralization has clearly fulfilled aims of enhancing democracy and bringing government closer to the people.²⁴ Indonesia has by most accounts now transformed from one of Southeast Asia’s most repressive and centralized political systems to its most decentralized, open, and electorally democratic.25 Indonesians have voted in more free, fair, and highly competitive elections and more often than citizens of nearly any other democracy since 2004.²⁶ Decentralization has not, however, always improved the quality of governance for many Indonesians: closer government does not necessarily mean better government. Rather, as this chapter seeks to show, it has given broad-ranging lawmaking powers to many hundreds of lawmaking institutions and individuals, most lacking lawmaking expertise and experience, let alone training. The result is the production of many thousands of laws, a significant proportion of which may be ill-directed, inconsistent or unnecessary, and, in some cases, unjustifiably burdensome and even nonsensical. Many of these laws also exceed the lawmaking powers of those purporting to enact them. No matter how redundant, repugnant, or illegal these local laws may be, however, many are virtually impossible to remove from the books.²⁷

Again, as this chapter explains, the latter problem is attributable, in part at least, to the Supreme Court and its failure to perform its functions adequately—in this instance, to review the legality of local laws against standards and principles established in national law. In particular, the Supreme Court has flatly refused to conduct some reviews, imposing an overly restrictive limitation period on the lodgment of petitions, and in other cases it has allowed questionable local laws to stand without providing any real justification for its decisions. These behaviors are, we argue, a further example of how the Supreme Court’s continued dysfunction impedes the realization of the rule of law in Indonesia. In particular, we argue that in the perda (regional regulations) review cases the Supreme Court has failed to adequately referee disputes over the competing jurisdictions of various tiers of government arising out of decentralization and has failed to clarify what the “law” is, despite being asked to do so, thus creating confusion and uncertainty. Citizens and governments alike can hardly be expected to comply with the law if one of the highest courts in the land consistently fails to declare the relevant law in important disputes involving the government.

These failures obviously have the potential to inflict enormous damage on Indonesian governance, and they mean that despite reform of Indonesia’s legal system the business of creating an open, transparent, clean, and effective judiciary remains unfinished. The centrality of the courts in resolving disputes involving the state and in interpreting and applying the law means that continuing weakness in the courts affects the entire legal system and hampers the progress of Reformasi more broadly. Reform of the Supreme Court as the apex of the various branches of Indonesia’s judicature is especially vital to Indonesia’s prospects of becoming a properly functioning rather than aspirational rule-of-law state, which, in turn, means that Indonesia still has a long way to go to achieve the negara hukum that so many thought they had won twelve years ago.

With respect, first, to the problem of judicial corruption, numerous surveys indicate that despite post-Suharto judicial reform, Indonesia’s courts are still perceived to be among the most corrupt institutions in the country.28 Some judges have, in fact, admitted to extorting money from litigants using an auctionlike process in which parties bid for a favorable judgment.²⁹ It is widely believed that judicial corruption remains institutionalized, particularly in first-instance courts. Lower-ranked judges who accept bribes are still expected to pass a proportion of the spoils up the chain to their various superiors.

Low judicial salaries and operational budgets have long been identified as triggers for judges to seek additional sources of finance and income, but despite substantial increases in judicial salaries in Indonesia in recent years, corruption levels have by most accounts not decreased correspondingly. There is, of course, a degree of naïveté in thinking that an already corrupt judge would suddenly be persuaded to righteousness by a windfall salary increase, and many therefore dismiss the salary increases as a “reward” for the corrupt that will likely only enhance their sense of impunity.³⁰

We acknowledge that most claims about the extent of judicial corruption in Indonesia are based on anecdotal accounts, commonly revealed in media reports and informal discussions with lawyers and law reform activists, rather than on firm empirical data.³¹ There are obvious dangers in relying on such accounts, particularly from media sources,³² but in the face of overwhelming public perception and ever-increasing anecdotal evidence and with little to indicate the contrary, we proceed on the assumption that they are largely accurate.

As mentioned, the problems of institutionalized corruption in the judiciary are closely associated in public perception with the Supreme Court, which is commonly assumed, at least in legal circles, to be one of the most corrupt judicial institutions in Indonesia. No matter how impartial, competent, or otherwise professional adjudication provided by lower-level courts may be, it is assumed that a manipulated outcome is likely in the Supreme Court, the final avenue of appeal in all but constitutional cases.33 These perceptions are aggravated by the fact that the Supreme Court has a longstanding and deeply entrenched culture of guarding its own and resisting outside scrutiny.³⁴ Although most judges in the Supreme Court now publicly accept the need for reform and for presenting their institution as more open and transparent, and although some measures to achieve these goals have been undertaken (for example, by making more decisions freely available to the public),³⁵ the Court remains intransigent in its hostility to external attempts to hold individual judges to account for apparent misconduct.

There are many examples of this resistance, but one conspicuous recent case involved the Court’s response to the Judicial Commission when the commission began investigating Supreme Court judges soon after the former’s establishment in 2005. Most countries around the world have established institutions (usually judicial commissions or judicial councils) that attempt to strengthen judicial accountability, including by holding judges to account for impropriety.³⁶ Some of the targeted judges brought a case before the Constitutional Court seeking to strike down Judicial Commission Law provisions that allowed the Commission to supervise the Supreme Court’s performance by analyzing its decisions. These judges argued that Judicial Commission scrutiny might cause them to decide cases differently than the way they usually would or would otherwise put undue pressure on them and might therefore compromise the independence that the amended Constitution and the new satu atap model now required of them. The Constitutional Court agreed, prohibiting the Judicial Commission from reviewing Supreme Court or Constitutional Court decisions—and perhaps even those of other Indonesian courts.³⁷ As mentioned, the result of this decision was to remove the primary accountability mechanism put in place to counterbalance the greatly increased autonomy the satu atap reforms brought to the Supreme Court and the courts below it. The decision also left the Judicial Commission able to do very little beyond suggesting new appointments to the Supreme Court.

The result is that detecting and punishing judicial impropriety are now, in a formal sense, almost exclusively a matter for the Supreme Court, but the Court has virtually no incentive to actively pursue allegations of judicial corruption among its own ranks. After all, corruption brings significant financial benefits to Supreme Court judges personally and provides funds arguably critical to the running of the Supreme Court and the courts for which it is responsible.

Even if the Supreme Court were inclined or pressured to pursue particular allegations, corruption is by its very nature a difficult crime to detect, and the Court has few investigatory powers and little experience in this area. Responsibility for dealing with judicial conduct in Indonesia has accordingly shifted largely from the formal sector to the informal. Most revelations of judicial misbehavior in recent years have thus come not from the courts or the Judicial Commission or from the police or public prosecution service or even from the two agencies that have reported large numbers of public complaints about judicial corruption, the Komisi Pemberantasan Korupsi (Corruption Eradication Commission)38 and the Ombudsman.³⁹ Rather, the most active judicial “watchdog” is still civil society and, in particular, the media and those same NGOs that were in the vanguard of the legal and governance Reformasi movement a decade or so ago—such as LeIP, Pusat Studi Hukum dan Kebijaksanaan Indonesia (Center for Indonesian Law and Policy Studies), Yayasan Lembaga Bantuan Hukum Indonesia (Indonesian Legal Aid Institute Foundation), Indonesia Corruption Watch, Masyarakat Transparensi Indonesia (Indonesia Transparency Society), and the like.

Unfortunately, even when judicial impropriety is detected by either formal or informal means, as it sometimes is, there is little prospect that offenders will be punished. If a judge has committed a criminal offense, he or she will be tried before a court from which appeal will inevitably reach the Supreme Court, and so decisions have generally favored fellow members of the bench. Even in the highly publicized “Endin and the Three Judges” case,⁴⁰ where Endin, a calo or go-between, gave evidence that he had bribed three Supreme Court judges, the courts found in favor of the judges, using poorly justified and spurious technical arguments to defeat the action in a pretrial hearing (pra-peradilan), and then even dissolved the government’s Tim Gabungan Pemberantasan Tindak Pidana Korupsi (Joint Anticorruption Team), which was prosecuting the case. Endin himself was convicted in another proceeding of criminally defaming the judges by making the original allegations of corruption against them.⁴¹ For obvious reasons, internal Supreme Court mechanisms are even less likely to result in punishment of judges than would a trial, and even if punishment does ensue, it is likely to be relatively light—a transfer or suspension, for example.

The result is that there are now no apparent disincentives for corruption in the Supreme Court other than “shaming” by the media and NGOs, and shaming in this context is a limited sanction, the effect of which will always be relative to the thickness of the judicial hide, individual or collective. This lack of disincentives matters because corrupt judges are rational individuals, disinclined to change their behavior unless their improprieties are likely to be detected and punished in a way that might cause them significant damage.42 Being rational, corrupt judges will therefore continue to prioritize “wet” (basah) cases—for example, commercial cases or major criminal or corruption cases, where the personal or financial stakes are high, and opportunities for bribery better—over “dry” cases, such as administrative disputes involving branches of the bureaucracy, or petty crimes, for example.

Judicial corruption has significant implications beyond the manipulation of individual cases, however. Corrupt judiciaries cannot be relied on to consistently enforce any type of laws—including those that purport to restrict government power. When judges perpetuate or legitimize the illegality of the actions of parties to litigation by not properly applying, interpreting, enforcing, or upholding the law, they contribute, of course, to the erosion of the rule of law. This erosion is all the greater when the parties are governments or state officials, and the courts are, in effect, providing governments with immunity for illegal acts.

Regardless of the rationale for, or even the nature of, government actors’ illegality, if the judiciary fails to enforce the law against state officials, whether judges or others, then there is little else to prevent the state acting illegally, save, as mentioned, “shaming” through the media or academic critique. Such shaming strategies can be risky, however, if the state actor can wield political or physical power or threats, as most can to some extent at least. During the New Order period, for example, journalists were routinely threatened and publications shut down for criticizing the government. Even after the fall of Suharto, and despite a general opening up of the media and more permissive stance toward criticism of the state, some critics have faced threats of civil and criminal defamation litigation.

Without an effective judiciary, government in Indonesia can proceed largely unrestrained by law, and, as we show in the next section, government in Indonesia now means more than just “Jakarta.” It reaches down to the local level, and it is at this level that the failure of the Supreme Court—the institution charged with the responsibility for reviewing local laws—to reform itself sufficiently to carry out its curial responsibilities effectively, predictably, and transparently is beginning to have a hugely damaging effect on the rule of law.

With the diffusion of government power following Suharto’s departure came a proliferation of lawmaking bodies and the production of a vast mass of new regulation at lower levels of government. Provinces (propinsi), districts or regencies (kabupaten), and municipalities (kota) all now have the widest possible autonomy (otonomi seluas-luasnya) to make their own policies and local laws, usually referred to as perda (from peraturan daerah, regional regulations), on any issue not expressly reserved for the national government.⁴⁵ Even villages have formal powers to pass laws on some issues. By 2010, there were thirty-four provinces and almost five hundred municipalities and districts spread across Indonesia.⁴⁶ Each tier of government now has its own legislature and executive, both equipped with these broad lawmaking powers to issue perda.⁴⁷ Decentralization has thus spawned more than one thousand lawmaking institutions and individuals. By 2006, it was claimed that local lawmakers had issued around twelve thousand perda altogether.⁴⁸ Yet despite the efforts of the World Bank (which, at time of writing, had uploaded almost three thousand perda to a Web site, www.perdaonline.org), estimating the number of enacted perda is virtually impossible: there is no central repository. If each lawmaking institution or individual passes more than one perda per year, as invariably they do, the actual numbers are likely to be much higher than this estimate—probably several times over.

On one view, this dispersion of lawmaking power and the multitude of new laws that it has produced are highly desirable. After all, one of the main purposes of regional autonomy was to give power to the regions to regulate their own affairs and to bring government “closer to the people” so that it could be more responsive to citizens’ needs.⁴⁹ These expectations have, it appears, been met by some local governments, which have drawn praise for issuing perda providing impressive yet affordable public services or setting meaningful environmental standards, for instance.⁵⁰ By other accounts, however, many local legislative bodies have fallen far short of these expectations.⁵¹ Many complaints relate to perda that seek to impose conservative religious or traditional norms, such as the controversial Islamizing perda syariah (sharia), although we do not consider these regulations further in this chapter.52 More common still are complaints that lawmakers have used their lawmaking powers primarily to issue perda that impose new and often excessive taxes (pajak) and user charges (retribusi) upon citizens, businesses, and investors.⁵³ It is also of real concern that officials without legal or drafting experience are often given the task of conceiving and wording perda. The result has been perda that are so unclear as to be unworkable, are unnecessary, contradict other local laws or national laws, or are simply oppressive and unreasonable. According to a central Finance Department official, “What [has happened] is a type of euphoria, where the region appears no longer to observe the applicable rules, including by enacting regulations that regulate issues outside of their jurisdiction.”⁵⁴

If even a small proportion of perda issued by local lawmaking bodies suffer one or more of these reported flaws, then “problematic” perda might number in the hundreds or even thousands. If, as it is commonly suspected, the proportion is higher, then regional autonomy is creating an unworkable mass of law. The result inevitably is that the original governance objectives of the decentralization process are being lost in a web of regulation that is overlapping, redundant, clunky, and sometimes plain unfair.

The significance for legal Reformasi more generally of the limited progress made in judicial reform described earlier in this chapter becomes apparent when the obvious question arising from our account of decentralization is articulated: What can be done about inappropriate perda?

There are currently two mechanisms for the review of perda. One involves the executive branch, but the other (and in our view the more important) involves the Supreme Court. Both mechanisms are unfortunately flawed for reasons that we describe here, but the Supreme Court’s continuing dysfunction means that it has failed almost completely as a means of checking local government regulatory incoherence and misbehavior. The result is that once perda are enacted, citizens can do virtually nothing to challenge those that they believe breach their constitutional or other legal rights, which, in turn, means that there are very few means by which the poor governance outcomes created by the decentralization reforms can be reversed.

We turn now to the first review mechanism, which we call “bureaucratic review.” Provincial lawmakers must send their perda to the Ministry of Home Affairs within seven days of enactment. The ministry then reviews the perda, often with the assistance of the Ministry of Finance. It does so by reference to two criteria—the “public interest” (kepentingan umum) and consistency with “higher laws” (peraturan perundang-undangan yang lebih tinggi)—and can invalidate perda that fail to satisfy these criteria.55 Similar mechanisms exist for the review of district and city perda by provincial government officials.⁵⁶ Several thousand perda have so far been reviewed through this process, and several hundred have been revoked, virtually all of which sought to impose an illegal tax or user charge prohibited by a national law.⁵⁷ Many perda, however, bypass the bureaucratic review mechanism altogether, in three ways. First, some local governments have avoided having their perda reviewed by simply not sending them to the ministry.⁵⁸ Second, some perda continue in force by default. The central government’s right of review expires sixty days after the regulation is sent for review. If it does not invalidate the perda within this time, then the perda will come into force automatically.⁵⁹ According to some reports, many perda slip through simply because the central government has not allocated sufficient resources to review all the perda it receives.⁶⁰ Third, some local governments are said to have defiantly refused to rescind perda that the central government has invalidated.⁶¹

The other external mechanism for the review of perda is “judicial review” conducted by the Supreme Court. This avenue is the only one available to local legislatures and executives to challenge the central government’s revocation of their perda.⁶² It is also the sole means by which citizens can challenge perda that they believe do not comply with national legislation.⁶³ A reading of the sixteen Supreme Court perda review decisions available to us⁶⁴ reveals that, like the Ministry of Home Affairs, the Supreme Court has invalidated very few types of non-revenue-raising perda.⁶⁵ More significantly, however, this reading also uncovers two trends that undermine the Supreme Court’s credibility in adjudicating jurisdictional matters between national and local governments—a function that, as we explain later, is essential for a working rule-of-law system in Indonesia.

The first trend, clear from several cases, is that the Supreme Court strictly follows a 180-day limitation period set by internal regulations the Court issued to govern lodgment procedures in review cases.⁶⁶ By so doing, the Court has consistently refused to hear cases lodged more than 180 days after the contested perda was enacted. In such cases, it simply dismisses the application for review without even considering the merits and, in particular, the presence of flaws in the perda. The Court surely should not avoid hearing these review cases on the basis of a lower-order procedural regulation, particularly when the right to review is provided by the Constitution itself, which does not impose time limits for the lodgment of reviews. Rather, the Court should recognize the importance of its function in maintaining Indonesia’s legal order and adopt a less formalistic and restrictive approach. Its failure to do so suggests it does not wish to deal with perda review cases, perhaps because they involve complex issues, are politically controversial, and are usually “dry”—that is, they are unlikely to be a significant source of rents for the judges.

As things now stand, local governments can quite easily avoid a Supreme Court review altogether. Local governments aware of the limitation period (as most are) might pass a controversial perda but put off implementing or enforcing it for 180 days in order to deliberately render it unreviewable. In other cases, citizens might not become aware of the injurious effect of a perda until more than 180 days after its enactment. Even at the national level, access to legal information—such as statutes, government regulations, and the like—has long been extremely problematic, and there is evidence that it is worse still at the local level.67 It is thus certainly conceivable that citizens might not even be able to obtain laws made by their local parliaments or executives within 180 days of their enactment.

Also of considerable concern is the second trend identified. In several decisions, the Supreme Court has upheld perda without categorizing the subject matter and scope of the perda in question or considering the scope of higher-level national laws that potentially cover the same or similar subject matter.⁶⁸ In such decisions, the Supreme Court has simply declared that the perda’s subject matter, being a local political matter, falls within the jurisdiction of the local government; the Court thus entirely ignores the issues of potential clash with higher-level laws.

A conspicuous example of this type of decision was the Supreme Court’s review of a notorious Tangerang City perda that, among other things, purported to allow “public-order officials” to detain persons on suspicion of prostitution.⁶⁹ In 2007, this perda was used as the legal basis to detain a number of people, including Lilies Lindawati, a pregnant woman who claimed to be waiting for her husband but who was suspected on the flimsy grounds that she was alone on the street after dark, was wearing makeup but no head scarf, and had lipstick in her bag. This incident drew domestic and international media attention.70 According to press reports, the public advocate representing Ms. Lindawati (and two other women who had been detained under the same perda) put forward several arguments for the perda’s invalidity, including that the local government lacked jurisdiction to make the perda, that the law contradicted higher-level laws, and that it breached international antidiscrimination laws. We have not been able to obtain a copy of the Supreme Court’s decision. Indeed, at the time of writing (several years later), the Court was yet, to our knowledge, to formally issue the decision. Supreme Court spokesperson Djoko Sarwoko instead simply “announced” it at a press conference. In a sparse statement reminiscent of reasoning employed in other “second-trend” review cases, Sarwoko simply declared that the Court had held that the perda’s subject matter was a “political matter” and was therefore within the power of the Tangerang City authorities. In other words, the Court held that the perda was “a political product of the executive and legislature” and therefore was formally valid and outside the jurisdiction of the Supreme Court, but without explaining why this could be so.⁷¹ No mention was made of the basic question of whether the perda conflicted with higher-level laws.

The lawmaking practices of many local governments, and the failure of the Supreme Court, and the Ministry of Home Affairs to invalidate defective perda that contradict higher laws are undermining the rule of law in Indonesia in important ways. For one thing, local governments are not being constrained by law in their lawmaking—that is, by the jurisdictional limits imposed by the 1999⁷² and 2004 Autonomy Laws. Local governments have thus been able to pass many thousands of poorly drafted laws purporting to regulate almost any subject matter, regardless of their perversity, their internal structural and drafting flaws, their potential injuriousness to citizens or business, the detriment to local and national economies or to standards of public services, or their inconsistency with higher-level laws—even those that purport to provide for basic human rights. It is only when these local laws seek to raise revenue for local governments that local legislators face constraints.

The implications for rule of law of the Supreme Court’s recusance in the review of perda local legislation are more far-reaching still. It should be understood that despite common perceptions and claims to the contrary,⁷³ the central government has lost no formal lawmaking power through decentralization. As mentioned, Article 10(3) of the 2004 Autonomy Law reserves several areas as the exclusive domain of the central government, and Article 10(5) declares that the central government retains power to legislate in all areas not mentioned in Article 10(3).74 Legally speaking, then, the central government can continue to regulate any matter over which regional governments also have jurisdiction. In other words, local governments have no exclusive lawmaking jurisdiction. Rather, they have been given a limited list of powers that they share with the central government and in respect of which the central government retains overriding power because most types of national laws formally override local laws that are inconsistent with them. A “hierarchy of laws” (tata urutan peraturan perundang-undangan),⁷⁵ the binding cornerstone of Indonesia’s legal order, ranks the relative precedence or weight of perda below that of a plethora of national laws, including the Constitution, statutes, government regulations, and presidential regulations. Local laws, therefore, will have legal force, at least formally, only if, when passed, they do not contradict a higher law on the hierarchy; and once passed, a perda is susceptible to being overridden by a statute, government regulation, or presidential regulation.

Given that the national government has issued a very large number of laws regulating many areas of Indonesian social, cultural, political, and economic life over the decades since independence in 1945, it is difficult to see what formal “space” is left for local laws beyond establishing and regulating particular local institutions and government services. In other words, it is highly likely that a large proportion of perda are, in fact, formally invalid because they attempt to regulate an issue that has already been regulated in a national-level law that formally trumps it. There may be an argument that certain powers have been delegated to the local level, either implicitly or expressly,⁷⁶ but this argument will not save a perda that directly conflicts with a higher-level national law. It seems reasonable to surmise that many perda either replicate or contradict national laws and are therefore superfluous because of the contradiction, hence irrelevant or invalid. But the absence of an effective review process means that there is a mass of local laws on the books that arguably have no little formal legal weight—that perhaps are not laws at all in a formal sense. No institution, not even the Supreme Court, is so far capable of cleaning up this legal debris or willing to do so.

The consequent unimpeded proliferation of these problematic local laws is now creating widespread legal confusion. The willingness of both the executive and the Supreme Court to allow perda to be implemented without assessing whether they fit within the existing legal framework leaves citizens, institutions, and businesses uncertain as to the laws with which they must comply and those that they can safely ignore. Even before regional autonomy, Indonesia’s laws and its legal system were already largely dysfunctional and often not deserving of much respect from citizens and governments alike. As the number of such laws rises, we are concerned that law is at risk of becoming increasingly irrelevant in Indonesia, with predictable consequences for governance and the rule of law.

The Indonesian courts are thus in a position of greater power and autonomy than they have been at any time in the past four decades at least. In theory, the judiciary is now a key arbiter of the post-Suharto Reformasi process that has sought to roll back the overwhelming power of the authoritarian state built under Suharto’s New Order and replace it with a more open, transparent system of governance in which individual rights have greater currency and the powers of the executive and the legislature are hemmed in by institutionalized democratic checks and balances.77 If, however, the courts are themselves dysfunctional or lawless, then none of this can happen, or at least it cannot happen in a predictable, rational, and fair fashion: a properly functioning judiciary is essential to ensure that government operates by law.

Governments everywhere push the boundaries of legality, and in a properly functioning separation of powers system it often falls to the judiciary to determine formally whether an act is illegal and, if so, to remedy it. Most executives and legislatures, in fact, inherently seek to expand their power through regulation and administrative action and simply by doing so inevitably test the limits of their formal authority. In some circumstances, governments may breach the law blatantly, deliberately, and with some form of ulterior intent—such as to remove political rivals or dissidents, to secure personal benefits from public resources, or to cover up military human rights abuses.78 In other circumstances, the legality or illegality of state action is far less clear-cut. Well-intentioned governments might test existing rules in an attempt to provide benefits to citizens or improvements to governance systems.⁷⁹ In the case of Indonesian decentralization, the sheer multiplicity of new organs of government and their enthusiasm for passing laws means that all these factors are in play simultaneously. The result is that regulating the substance of perda—“cleaning up the legal debris”—is fast becoming a task that is critical to the future of governance in Indonesia and one that the Constitutional Court has on several occasions suggested that it would be willing to undertake if it were granted the power to review lower-level laws—a power that is currently the monopoly of the Supreme Court. Some Constitutional Court judges have even openly speculated on ways they might reinterpret the Court’s jurisdiction to authorize the exercise of just such a power, despite the apparently clear words of the Constitution that limit the Constitutional Court to reviewing statutes against the Constitution. Adding this power would, of course, dramatically increase the Constitutional Court’s legal and political importance in Indonesia and correspondingly diminish that of the Supreme Court.

The Supreme Court’s inability to reform and rid itself of a defensive, involuted culture that protects institutionalized corruption, prioritizes rent seeking, and does not sufficiently value curial professionalism has contributed to its failure to deal with perda in the way contemplated by the laws regulating both the judicial system and decentralization. If the Supreme Court cannot rise quickly enough to the challenge of its new post-Suharto role as a key arbiter of legality in Indonesia, then it puts at risk both the future of Reformasi and the rule-of-law aspirations it embodies. The Supreme Court may again find itself relegated to the margins of public life it occupied under Suharto, with its hopes frustrated in achieving the respect and standing that should be its due as the peak appeal court of a new and vibrant democracy.