Indonesia Inquiry

Indonesian Public Policies, Religious Laws, and Non-Religious Laws (Annotated Bibliography)

December 8, 2015 Annotated Bibliographies Data Research Resources 0

Indonesian Public Policies, Religious Laws, and Non-Religious Laws (Annotated Bibliography)

Compiled by: Stephanie Razo

Directed Individual Study, Fall 2015

Texas A&M University-Corpus Christi

Azhar, Haris. 2014. “The Human Rights Struggle in Indonesia: International Advances, Domestic Deadlocks.” SUR: International Journal on Human Rights 11 (20). 

After the fall of Suharto’s authoritarian regime, in 1998, human rights have only been formally recognized in Indonesia, both by law and in the Constitution. Yet, civil society in that country has managed to overcome their past fear of authoritarianism, and have been very vocal and vibrant, including the media, in what has been called a democratic opening. In this article, the author describes the challenge of impunity for human rights violations in present Indonesia, the role of civil society organizations at national and international levels to resist the perpetuation of human rights abuses, and finally the author reflects on the role of Indonesia at the international scenario as emerging power and what it means for human rights protection on the ground.

Bagir, Zainal Abidin. 2012. “Defamation of Religion Law in Post-Reformasi Indoesia: Is Revision Possible?” Australian Journal of Asian Law 13 (2).

The Indonesian Law on Defamation of Religion of 1965 has created serious problems for non-mainstream religious groups, with the Ahmadiyah group being the hardest hit in recent years, and more recently still, the Shi’as. Despite the post-1998 Reformasi trend of strong legal acknowledgment of universal human rights and religious freedom, the 1965 Blasphemy Law has been used more frequently within and outside court. Further, in 2010 its standing was reinforced by the Constitutional Court, which found it to be constitutional, though it also suggested the Law needed to be revised. This paper analyses the contents of the law and considers to what extent the Law can be ‘revised’, such that it does not contradict Indonesian aspirations for a civic, non-discriminatory, pluralist society. The argument takes as its sources comparison with similar regulation in other countries; recent shifts in the position of the Organisation of Islamic Cooperation (formerly Organization of the Islamic Conference) on defamation; and the Constitutional Court proceedings.           

Bowen, John R. 2010. “Religious Discrimination and Religious Governance Across Secular  and Islamic Countries: France and Indonesia as Limiting Cases.”

In this article, the author explores resemblances and overlaps of very different regimes of religious governance, the secular and the religious, in the ways they address religious discrimination. The author defines religious discrimination broadly and considers the possible solutions available to those (usually) democratic states that respond to complaints of discrimination. The author considers two limit cases: Indonesia, which bases its Islamic judicial system on scripture; and France, which proclaims that it does not recognize or support any religion. The author argues that although these two countries begin at opposite ideological positions with respect to the state’s relationship to religion, in fact they adopt policy positions that share several features, including granting formal privileges to recognized religions and maintaining the state’s legal superiority to scripture as the source of law. The author argues, not that this overlap is to be expected in all cases, even of democratic societies responsive to discrimination claims, but that we ought to pursue further comparative research into its scope.

Buehler, Michael. 2011. “Indonesia’s Law on Public Services: Changing State-Society Relations or Continuing Politics as Usual?” Bulletin of Indonesian Economic Studies 47 (1). 

Institutional reforms introduced after the collapse of the New Order regime have brought state-society relations in Indonesia under increased scrutiny. This paper uses an evaluation of Law 25/2009 on Public Services as a means to assess whether the new political setting has increased the leverage of the citizenry over the state. Adopted in July 2009, the law introduced a range of regulations for public service providers. It also expanded the responsibilities of the Ombudsman’s office and called for the establishment of citizen committees to monitor public service delivery. However, the legal quality of the law is poor and the broader institutional and political environment is not conducive to its enforcement. Overall, the law aims beyond the capacity of the current political and legal system. Ironically, in order for society to gain greater leverage in politics, state capacity must increase as well.

Butt, Simon. 2012. “Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in Indonesia.” Sydney Law Review 32 (2).

Since Soeharto’s fall in 1998, Indonesia has transformed from one of the world’s most authoritarian states to one of its most democratic and decentralized. Significant lawmaking powers have been devolved to around 1000 local legislatures and executive officials. The combined legal output of these lawmakers has added great bulk, complexity and uncertainty to Indonesia’s legal system. Many new local laws have been criticised for being misdirected or unclear, violating citizen’s rights, imposing excessive taxes, even breaching Indonesia’s international obligations. This article examines the bureaucratic mechanisms by which the national government can exercise control over local lawmaking, allowing it to strike down local laws contravening national law or the ‘public interest’. It also analyses decisions of the Indonesian Supreme Court, which has jurisdiction to decide whether local laws contradict national laws. The article shows that bureaucratic and judicial review are flawed and are used largely to review and invalidate local laws imposing illegal taxation or user charges. Laws egregious for other reasons are, this research shows, likely to escape review altogether, or to be upheld by the Supreme Court without satisfactory explanation. This undermines the rule of law, may compromise the human rights provided to citizens in national laws and could affect Indonesia’s ability to comply with some of its international obligations.

Butt, Simon. 2014. “The Position of International Law Within the Indonesian Legal System.” Emory International Law Review 28 (1).

Indonesia’s role in international and regional affairs has increased markedly since the fall of Soeharto in 1998. It has, for example, signed many international treaties. However, Indonesian law is silent on the position of international law, whether treaty or custom, in Indonesia’s legal system. This has led to a significant unresolved legal debate about whether Indonesia follows monism or dualism. This Article argues that, while Indonesia appears to be dualist in practice, there is some evidence of monism, particularly in the decisions of Indonesia’s Constitutional and Supreme Courts. Regardless, the uncertainty has allowed the Indonesian government to, on the one hand, leave the international community to believe that ratified treaties have automatic application, but on the other hand, to refuse to grant any rights to citizens that those international treaties seek to provide, claiming that treaties have no domestic application until incorporated by an Indonesian legal instrument.

Butt, Simon and Parsons, Nicholas. 2014. “Judicial Review and the Supreme Court in Indonesia: A New Space for Law?” Indonesia 97.

Political scientists and legal scholars have long argued that law “in practice” is primarily dictated by non-legal factors in Indonesia. While this remains largely true in post-Suharto Indonesia, it no longer appears to describe accurately the operation of the legal system in all cases. Law is becoming more relevant in new types of cases in which the state fights itself, such as in disputes between central and regional government over jurisdiction. However, the increasing space for and resort to law has highlighted major shortcomings of the rules for delineating and enforcing the powers and responsibilities of state institutions.

Cammack, Mark. 1989. “Islamic Law in Indonesia’s New Order.” The International and Comparative Law Quarterly 38 (1).

In July 1973 the “New Order” government of Indonesia’s President Suharto introduced a national marriage bill in the Indonesian Parliament. The proposal had two objectives: to reduce the frequency of polygamy, divorce and child marriage and to “unify” Indonesian marriage law as part of the programme of national unification under the state ideology of Pancasila.

Collins, Elizabeth F. 2002. “Indonesia: A Violent Culture.” Asian Survey 42 (4).

Does his assessment match the country’s reality? Is Indonesia really a violent culture, or are arguments such as those made by Prabowo and other Indonesian elites advanced to suit other purposes? In this article, I suggest that the latter is the case. These arguments are useful to elites, who make them to mobilize people behind campaigns for a return to order and stability as a means of protecting their own interests against groups demanding land rights, higher wages, and political reform. The Suharto regime institutionalized state terror by labeling political opposition “communist,” using military and paramilitary forces against protesters and separatists when necessary. In the post-Suharto era, the failure of leaders to address economic injustice, the continued resort to military suppression of protests, the deployment of paramilitary groups by elites, and the failure of security forces to enforce the law have led people to take the latter into their own hands and social unrest to take a violent turn. This combination of circumstances has created the appearance of a culture of violence.

Crouch, Melissa. 2007. “Regulating Places of Worship in Indonesia: Upholding Freedom of Religion for Religious Minorities.” Singapore Journal of Legal Studies. 

Focusing on places of worship in Indonesia, this paper examines whether the right to freedom of religion for religious minorities is protected by recent changes to the law. The paper begins by looking at an Old Decree, which was an attempt by the New Order to control religion and came to be used as justification by radical Islamic groups to close churches. Given a number of key changes in the law since the end of the New Order, this Old Decree became obsolete. The second part of this paper analyses the New Regulation. It does this by charting the debate surrounding the New Regulation, outlining the present framework of the Regulation and then discussing the response of the public since its introduction. The final part reflects on why the New Regulation was passed by the government and suggests options to restore the right to freedom of religion for religious minorities in relation to places of worship.

Crouch, Melissa. 2010. “Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics, and Court Action.” Asian Studies Review 34 (4). 

This article examines the local implementation of the national Joint Regulation 2006 on places of worship in Indonesia. It focuses on the case study of the Protestant Christian Batak Congregation, which became one of the first churches to successfully challenge the authority of a local leader to cancel its permit to build a church. I begin by exploring the history of the regulation of permits for places of worship in Indonesia and the various proposals for law reform that have been put forward since 1998. I then outline the provisions of the new Joint Regulation and highlight the ongoing problems for religious minorities at the local level because of the failure of local authorities to implement the national regulation. I will demonstrate how religious minorities are challenging the decisions of local authorities by complaining to independent watchdogs, taking court action and using the political process. In conclusion, I argue that the Protestant Christian Batak Congregation court case is part of a broader trend for local authorities to use conflict over places of worship as an opportunity for political gain in the highly competitive political atmosphere since the downfall of Suharto in 1998.

Crouch, Melissa. 2011. “Asia-Pacific: Ahmadyiah in Indonesia: A History of Religious Tolerance Under Threat?” Alternative Law Journal 36 (1).

Indonesia is a multi-religious society with a long history of religious tolerance. Ahmadiyah, a minority religious community that identifies with Islam, has existed peacefully in Indonesia for over 80 years. The Ahmadiyah community in Indonesia, however, is increasingly under threat of attack by radical Islamic groups, and there are ongoing demands from conservative Islamic groups that the state implement further legal restrictions on Ahmadis. An analysis of the recent decision of the Constitutional Court on what is known as Indonesia’s ‘Blasphemy Law’ will show the ongoing potential risk of Ahmadis being convicted for blasphemy, in addition to threats and violent attacks from radical Muslims.

Crouch, Melissa. 2012. “Criminal (In)Justice in Indonesia: The Cikeusik Trials.” Alternative Law Journal 37 (1).

The prosecution of perpetrators of violence between religious communities is essential to resolve religiously motivated conflict and to promote religious tolerance. In Indonesia, however, the light sentences handed down in the Cikeusik Case, in which 12 men were implicated in a recent conflict that left three Ahmadis dead and five others seriously injured, raised serious questions about the implementation of criminal justice. This is because of the failure to ensure due process, to protect the independence of the judiciary, and to maintain security at the hearings of criminal trials in cases concerning religious violence. These issues go to the heart of the state’s responsibility to protect religious freedom, including for religious minorities, which is failing due to the combination of state policies on religion and the practises of the criminal justice system.

Crouch, Melissa. 2012. “Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis.” Sydney Law Review 34 (3).

The right to religious freedom is included in arts 28E and 29 of the Constitution of the Republic of Indonesia 1945 (Undang-Undang Dasar Republik Indonesia 1945, ‘the Constitution’). This right is under threat, however, for religious minorities such as Ahmadiyah, an Islamic sect which has existed in Indonesia for over 80 years. Since 2005 and the renewal of a fatwa (Islamic legal decision) by the Indonesian Ulama Council (Majelis Ulana Indonesia) against Ahmadiyah, this group has experienced increasing attacks from radical Islamic groups. This article analyses the implications of the controversy over Ahmadiyah for religious freedom and tolerance in Indonesia. It begins by highlighting the origins and formation of Ahmadiyah in Indonesia. and then examines several regional regulations (peraturan daerah) and administrative decisions that ban the activities of Ahmadiyah. This article demonstrates why it is unlikely that an application for judicial review of these regional regulations will succeed in the Supreme Court (Mahkamah Agung). If this is the case, it means that local governments remain free to restrict the rights of religious minorities such as Ahmadis.

Crouch, Melissa. 2013. “Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Myanmanr and Indonesia.” Hague Journal of the Rule of Law 5 (2).

The adoption of public accountability institutions has become a crucial aspect of rule of law projects worldwide. This article focuses on National Human Rights Institutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed from global actors, and the reliance on regional and sub-regional networks. Through case studies of Indonesia and Myanmar, it examines several possible meanings and sources of ‘Asian legal transplants’, particularly the role of regional networks as sources of legitimacy. It argues that the sub-regional NHRI network in Southeast Asia has evolved as an alternative site of legitimacy, and that the extent to which a NHRI in Southeast Asia may rely on it depends not only on the regime it operates under, but also on the relative position of the NHRI within the regional network.

Curnow, Jayne. 2015. “Legal Support Structures and the Realisation of Muslim Women’s Rights in Indonesia.” Asian Studies Review 39 (2).

Access to courts in Indonesia is remarkably low. An estimated 90 per cent of disputes are handled through informal mechanisms (World Bank, 2008; Clark and Stephens, 2011), raising doubts about whether there is any prospect of the reach and efficacy of Indonesian law ever being expanded to facilitate judicial protection of human rights and the rights of women. This article considers this issue and places it in the context of a number of other factors, such as the critique of human rights as a western import and the influence of the state, Islam and feminism on women’s rights in Indonesia. Given gender relations in the current political and legal environment, I argue that “support structures for legal mobilisation” (SSLMs) provide a crucial link to the community that enables the exercise of women’s rights. The article focuses on the example of one such SSLM. PEKKA is a national NGO that leverages international support in its efforts to empower women and facilitate access to courts – including religious courts, which determine access to government social safety nets and many other entitlements for many Indonesian women and their families.

Elson, R. E. 2010. “Nationalism, Islam, ‘Secularism,’ and the State in Contemporary Indonesia.” Australian Journal of International Affairs 64 (3).

This article seeks to explain the impact of Muslim politics on the Indonesian nation and, in particular, why Islamism has found so little political traction. It argues that Islamist ideas were late in emerging in modern Indonesia, and long remained marginal to Indonesians’ ideas of what their nation should be and do. It notes, however, that Indonesia’s deepening Islamisation has resulted in a sense of growing sectarianism and a developing accommodation of Islamic agendas by Indonesia’s pseudo-secular state that requires careful management if respectful pluralism and mutual tolerance is to be maintained.

Gouwgioksiong. 1965. “Interpersonal Law in Indonesia.” The Rabel Journal of Comparative and International Private Law 29 (3).

More than two decades ago, a learned jurist exclaimed: “Victory starts from Malang” (“Van Malang begint de victorie”). This exclamation, to be found in an annotation of a decision of the Malang Court of First Instance in 1938, was made by professor Wertheim, who before the Second World War held a special chair at the Djakarta Law School in “International” or “Intergentile” Law (in Dutch: “Intergentiel recht”; in Indonesian: “Hukum Antargolongan”). What was the mainspring that made our professor so high spirited? It was none other than the fact that in the decision of the Malanf Court was shown for the first time a healthy tendency, namely the judge’s exhaustive consideration of various aspects of interpersonal relations in that case. The decision was rightly hailrd, for, contrary to earlier practice, it is to be found there for the first time an exhaustive analysis of the interpersonal issues. Subsequently we have witnessed the growth of a movement which has made the judges of our archipelago conscious of these interpersonal issues. The seed sown by the “father of interpersonal law”, professor Kollewijn, has now started to bear fruit.

Hadiprayitno, Irene Istiningsih. 2009. “Defensive Enforcement: Human Rights in Indonesia.” Human Rights Review 11 (3).

The objective of the article is to examine the human rights enforcement in Indonesian legal and political system. This is done by studying the legal basis of human rights, the process of proliferation of human rights discourse, and the actual controversies of human rights enforcement. The study has the effect of highlighting some of the immense deficits in ensuring that violations are treated under judicial procedure and the protection of human rights is available and accessible for victims. The author inevitably came into a conclusion that the openness of legal and political arenas for human rights discourses is not followed with a tangible impact on the entitlement positions of the people. The problems of the weak institutions and the unenthusiastic enforcement show that, in Indonesia, human rights are formally adopted as a political strategy to avoid substantial implementation.

Hamayotsu, Kikue. 2013. “The Limits of Civil Society in Democratic Indonesia: Media Freedom and Religious Intolerance.” Journal of Contemporary Asia  43 (4). 

 Indonesian democracy has been challenged by rising religious intolerance and discriminatory attitudes in civil society since the mid-2000s, despite expanded freedom in many areas including the media. Why has Indonesian civil society been put on the defensive by radical and conservative Islamic elements in the context of democratic consolidation? What role has expanded freedoms and a flourishing of new media and information technologies played? This article argues that two factors have contributed to the rising influence of religious hardliners/radicals and increasing religious intolerance. The first is hardliner access not only to new media but, more importantly, to traditional means and institutions for religious and political mobilisation, including state apparatus, to cultivate antagonistic sentiments and attitudes against what they consider the enemies of Islam within the Muslim communities while disseminating narrow and dogmatic interpretations of Islam. The other is the rise of conservative Muslim politicians within the state who are ready and eager to embrace new media and communication technologies while using the state office and prerogatives to advance conservative religious visions and agendas. In order to assess how those conservative politicians exploit their ministerial prerogatives and state patronage to curtail civil society, particularly the freedom of expression and religion, this article examines two prominent and controversial Muslim politicians: Tifatul Sembiring from the Islamist Prosperous Justice Party and Suryadharma Ali from the United Development Party.

Harijanti, Susi Dwi and Lindsey, Tim. 2006. “Indonesia: General Elections Test the Amended Constitution and the New Constitutional Court.” International Journal of Constitutional Law 4 (1).

The Indonesian constitutional amendments—Constitutional Court—general elections—Dewan Perwakilan Rakyat (DPR)—Dewan Perwakilan Daerah (DPD)—Majelis Permusyawaratan Rakyat (MPR)

Kaartinen, Timo. 2014. “Perceptions of Justice in the Making: Rescaling of Customary Law in Post-Suharto Maluku, Indonesia.” The Asia Pacific Journal of Anthropology 15 (4).

This article questions how successful neo-traditional law has been in providing access to justice to Kei Islanders of Maluku, Eastern Indonesia during recent political transitions. It describes the prevailing model of justice in which traditional law draws some of its authority from the state but provides its own normative framework for addressing community disputes. After the fall of Suharto’s New Order regime, people began to apply neo-traditional law to ethnic and resource conflicts, arguing that it took precedence over state law in these emerging domains. Although the neo-traditionalist revival affirmed the autonomy of traditional legal institutions, actual legal procedures and outcomes depended on the response of state authorities and national publics to newly activated traditional normative frameworks. The politics of legality in post-Suharto Indonesia have produced increasingly state-oriented models of justice, but legal outcomes still determine the choice between different normative frameworks.

Lev, Daniel S. 1985. “Colonial Law and the Genesis of the Indonesian State.” Indonesia 40.

It should be obvious that new states owe a great deal to colonial precedent, for even the most shattering revolutions, very rare among new states, cannot wipe out the past. Yet, as Harry Benda made us see over twenty years ago in his debate with Herbert Feith, it is easy to take seriously the present’s claim to exist in the present only, unique and devoid of debt to a despicable and embarrassing history. Benda himself and more recently Heather Sutherland and Ben Anderson have illuminated the unbroken chain of evolution that runs from colony to independent state by focusing on institutional continuity. My objective in this article is to build on their work, using legal history to trace significant features that were sewn into the fabric of the colonial state and have yet to unravel. Law is an especially rich lode for this kind of mining, because it records (literally) the structure of the state and reflects (virtually) the distribution of political, social, and economic advantages. In modern states generally law and legal process are an essential ingredient of the (Gramscian) hegemony that defines and justifies relationships of ruler and subject. How large an ingredient naturally varies from state to state, depending on local culture, ideology, political structure, and much else. But in whatever measure, as law and legal institutions abstractly represent a configuration of power relationships, masking it with a cover of legitimate authority, the bear much significance beyond themselves.

Leyser, J. 1954. “Legal Developments in Indonesia.” The American Journal of Comparative Law 3 (3).

Indonesia is one of the great European colonial possessions in Asia to achieve national within the last decade. Just as India and Burma, so in Indonesia, World War II had a great influence on the movement for independence, and the establishment of a national state. In Indonesia this influence was, if anything, greater than elsewhere, as the country fell into the Japanese early in the war and remained under their occupation until after the end of the war. Yet in contrast to both India and Burma, Indonesia did not gain independence without prolonged military action against colonial rule. Fighting against the military forces of the Netherlands, which tried to re-establish its regime after the end of World War II, continued in Indonesia until 1949. It was mainly due to the patient work of the United Nations Commission for Indonesia that a Dutch-Indonesian round-table conference met and finally agreed on the transfer of sovereignty from the Netherlands to the new Indonesian State. This took effect from December 27, 1949.

Lindsey, Tim and Crouch, Melissa. 2013. “Cause Lawyers in Indonesia: A House Divided.” Wisconsin International Law Journal 31 (3).

The article focuses on the cause lawyering in Indonesia with the tension between the Indonesian legal profession’s history of activism for social justice causes. It mentions the fluid and dynamic nature of cause lawyering in Indonesia through a case study of religious freedom, rejection of the legal aid and human rights organizations in Indonesia and role Lembaga Bantuan Hukum (LBH), a non-governmental organization (NGO) in seeking the judicial review of government decisions.

Lukito, Ratno. 2012. “The Training, Appointment, and Supervision of Islamic Lawyers in Indonesia.” Pacific Rim Law & Policy Journal 21 (1).

Lawyers who practice before Islamic courts play a crucial role in framing and presenting the issues for decision and in mediating between the courts that apply Islamic law and the public who have recourse to the state’s official Islamic legal institutions, but research on the professional training and governance of these lawyers is almost entirely lacking at present. This article offers a descriptive overview of the training, work, and professional regulation of Islamic lawyers in contemporary Indonesia. This material is presented in a clear format, structured to highlight key aspects of how these lawyers are trained, accredited, and organized. In doing so, this article not only presents new empirical data on an increasingly important class of legal professionals, but also facilitates comparative reflections on their work in relation to that of their colleagues practicing before Shari’a courts in the neighboring countries of Malaysia and Singapore

Lynch, Coleman. 2009. “Indonesia’s Use of Capital Punishment for Drug-Trafficking Crimes: Legal Obligations, Extralegal Factors, and the Bali Nine Case.” Columbia Human Rights Law Review 40 (2).

As reflected in Professor Hood’s quote above, worldwide debate over the role and legality of capital punishment is increasing. In December 2007, the U.N. General Assembly passed a resolution calling for a moratorium on the death penalty, by a vote of 104 to 54, with 29 abstentions. Within the United States, New Jersey recently abolished the death penalty, and the Supreme Court reconsidered whether lethal injection is “cruel and unusual punishment,” in contravention of the Eighth Amendment.

Millie, Julian, Barton, Greg, Hindasah, Linda, and Moriyama, Mikihiro. 2014. “Post-Authoritarian Diversity in Indonesia’s State-Owned Mosques: A Manakiban Case Study.” Journal of Southeast Asian Studies 45 (2).

Indonesia’s state-owned mosques are important sites for observing changes in religious life that have taken place since the demise of the Suharto regime. During the New Order period, ideological and political factors restricted access to mosques owned and managed by provincial and regency governments. In contemporary West Java, access to such mosques has been broadened, and they now display a diversity of religious programs and practices. Drawing on recent fieldwork, this article makes a case study of the intercession ritual known as manakiban which has recently emerged in government-owned mosques of West Java. It identifies two dominant factors behind the new inclusiveness: a desire for visibility and public legitimacy on the part of some members of the Sufi order that promotes the ritual, and secondly, a broadening of access to state-owned mosques as a result of more inclusive participation in the electoral process. The article contributes to knowledge of the politicisation of religion in contemporary Indonesia, and suggests new possibilities for understanding the meanings of public Islamic infrastructure.

Missbach, Antje and Crouch, Melissa. 2013. “The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia.” Australian Journal of Asian Law 14 (2). 

The issue of people smuggling is one of global concern that many states have responded to by introducing a specific criminal offence of people smuggling. In Indonesia, a country that is a key transit point for asylum seekers heading to Australia, new offences have been introduced since 2011 in order to criminalise people smuggling. In this article we analyse the legal framework that has been established to combat people smuggling in Indonesia, both before and after the reforms of 2011. We consider how arrests for people smuggling have been dealt with by the public prosecutor and the judiciary in practice. We argue that the implementation and outcome of the new offences for people smuggling in Indonesia must be considered within the broader social and political context in which courts are situated. We demonstrate that sentencing practices in people smuggling trials are informed by a range of factors in addition to corruption, including judicial discretion and broader social attitudes towards people smugglers.

Nurlaelawati, Euis and Rahim, Abdurrahman. 2012. “The Training, Appointment, and Supervision of Islamic Judges in Indonesia.” Pacific Rim Law & Policy Journal 21 (1). 

This essay discusses the creation and training of Islamic court judges in Indonesia. This includes an examination of the qualifications for appointment as a judge, the recruitment of new judges, the pre-appointment and in-service training provided for Islamic judges, and the substantive and administrative supervision of the Islamic judiciary. The paper shows that significant changes have occurred in the system of recruitment and training of Islamic court judges with the establishment of new educational qualifications and the implementation of broader and more systematic training programs. As a result of these changes, the quality, professionalism, and standing of the Islamic judiciary have been significantly strengthened.”

Parsons, Nicholas and Mietzner, Marcus. 2009. “Sharia By-Laws in Indonesia: A Legal and Political Analysis.” Australian Journal of Asian Law 11 (2).

In recent scholarly debates on sharia by-laws in Indonesia, many observers have claimed that such local regulations are unconstitutional and/or unlawful, and have criticised the central government for not overturning them. According to these scholars and activists, the Indonesian government is aware of the legal problems surrounding sharia by-laws (or perda syari’ah), but does not want to take action due to political concerns. Despite the controversial nature of such claims, there have so far been surprisingly few in-depth scholarly discussions of the legal status of sharia by-laws. This article seeks to fill this gap in the academic literature by analysing the position of perda syari’ah in Indonesia’s constitutional and legal framework. Our examination takes two main steps: first, we examine the mechanisms through which regional regulations may be challenged and ultimately invalidated; and, second, we apply these criteria for potential annulment to a selected number of perda syari’ah. Based on this analysis, we conclude that perda syari’ah are in a much stronger legal position than their opponents believe. Consequently, we suggest that legal obstacles are as relevant as political dynamics in explaining the remarkable resilience of sharia by-laws in contemporary Indonesia.

Pausacker, Helen. 2009. “Asia-Pacific: Indonesia’s New Pornography Law: Reform Does Not Necessarily Lead to More Liberal Attitudes to Morality and Censorship.” Alternative Law Journal 34 (2).

Soeharto’s New Order era in Indonesia ended in May 1998, heralding what has been called the ‘reformosi’ (reform) era. The reformosi era has been marked by greater community participation in the political process and greater press freedom. As this analysis of the new Indonesian Pornography Law shows, however, freedom of speech does not necessarily go hand-in-hand with more ‘liberal’ attitudes to censorship, particularly on issues of morality.

Rosser, Andrew. 2013. “Towards a Political Economy of Human Rights Violations in Post    New Order Indonesia.” Journal of Contemporary Indonesia 43 (2).

This article reviews the literature on human rights violations in Indonesia during the post-New Order period, evaluates the explanations it provides, and suggests avenues for future inquiry drawing on insights from Richard Robison’s Indonesia: The Rise of Capital and his subsequent book with Vedi Hadiz, Reorganising Power in Indonesia: The Politics of Oligarchy in an Age of Markets. It is argued that this literature either gives insufficient attention to the nature of the Indonesian state or does so in a way that obscures the interests of the country’s powerful politico-business oligarchy. Future research thus needs to examine the role of these factors, taking into account the way in which the oligarchy’s interests vis-à-vis human rights are mediated by the type of right and the structure of the economy.

Rosser, Andrew. 2015. “Law and the Realisation of Human Rights: Insights from Indonesia’s Education Sector.” Asian Studies Review 39 (2).

Do justiciable legal frameworks for the protection of human rights (JLFPHR) promote the realisation of human rights? This paper considers this question by examining a set of recent Indonesian court cases related to the right to education. It argues that citizens in these cases successfully used Constitutional provisions related to education rights to challenge government policies that undermined these rights because: (i) they encountered judges sympathetic to their cause; (ii) they had access to support structures for legal mobilisation (SSLMs); and (iii) they engaged in simultaneous political mobilisation that created a broader political climate conducive to judicial activism and policy change. As such, it is argued, these cases confirm comparative findings that judicial activism and SSLMs are important preconditions for JLFPHR to contribute to the realisation of human rights through courts, at least in contexts where court cases are costly; and point to the important role that political mobilisation can play in creating a broader political climate favourable to judicial activism and policy change. In policy terms, the implication is that JLFPHR need to be accompanied by efforts to nurture SSLMs, judicial activism and strategies that blend legal and political mobilisation.

Seo, Myengkyo. 2012. “Defining ‘Religious’ in Indonesia: Toward Neither an Islamic Or Secular State.” Citizenship Studies 16 (8).

Every state manages religion in one way or another, and religious violence often justifies state intervention to control how a religion should be presented, preached and, most importantly, limited. This paper examines the state management of religion in Indonesia with focus on state regulations promulgated during the New Order period. The Indonesian state has managed religion by making religious practices less focused on spirituality but more a matter of state administration. Four regulations in particular exemplify the state’s attitude toward religion, namely the Presidential Decree in 1965 on the state-recognised religions, the Joint Ministerial Decree on Houses of Worship in 1969 and 2006, the National Marriage Law in 1974 and the Ministerial Decrees on mission activities in 1978.In brief, this state management of religion has been enabling Indonesia, which has the world’s largest Muslim population, to be governed as neither an Islamic state like Saudi Arabia nor an outright secular state like Turkey among the Muslim countries.

Sezgin, Yuksel and Kunkler, Mirjam. 2014, “Regulation of ‘Religion’ and the ‘Religious’:     The Politics of Judicialization and Bureaucratization in India and Indonesia.” Comparative Studies in Society and History 56 (2).

This article compares the strategies through which Hindu-majority India and Muslim-majority Indonesia have regulated religion and addressed questions of what constitutes “the religious” in the post-independence period. We show that the dominant approach pursued by the Indian state has been one of judicialization—the delegation of religious questions to the high courts—while in Indonesia it has predominantly been one of bureaucratization—the regulation of religious issues by the Ministry of Religious Affairs. Contrary to the expectation that judicialization devitalizes normative conflicts while bureaucratization, more frequently associated with authoritarian politics, “locks” these conflicts “in,” we show that these expectations have not materialized, and at times, the effects have been reverse. Engaging the literatures on judicialization and on bureaucratization, we argue that what determines the consequences of the policy toward religion is less the choice of the implementing institution (i.e., the judiciary or bureaucracy) than the mode of delegation (vertical versus horizontal) which shapes the relationship between the policy-maker and the institution implementing it. Bureaucrats, judges, and elected politicians in multicultural societies around the world encounter questions of religious nature very similar to those that authorities in India and Indonesia have faced. How they address the challenge of religious heterogeneity has a profound impact on prospects of nation-building and democratization. It is therefore imperative that the consequences of the policy toward religion, and even more so the consequences of political delegation, be studied more systematically.

Shihab, Najwa and Nugroho, Yanuar. 2008. “The Ties that Bind: Law, Islamisation and Indonesia’s Prosperous Justice Party (PKS).” Australian Journal of Asian Law 10 (2). 

There are clear indications that Indonesia’s Prosperous Justice Party (Partai Keadilan Sejahtera or PKS) has shifted from being a hardline (garis keras) Islamist party, to take a more moderate stance, with significant changes to its platform. Prominent among these are decisions to step back from earlier demands for the enforcement of Islamic law and the creation of an Islamic state in Indonesia, as well as major modifications to doctrinal positions relating to the legal status of women as leaders, and formal relations with non-Muslims. This article investigates the factors that have contributed to this shift, and argues that it is a result of political processes in Indonesia that compel PKS to moderate its platform to expand its constituency. It is also argued that an ideological transformation has taken place within PKS, that the transformation is genuine, albeit contested internally, and that it is probably necessary for electoral success.

Siregar, Hansil Basri. 2008. “Lessons Learned from the Implementation of Islamic Shari’ah Criminal Law in Aceh Indonesia.” Journal of Law and Religion 24 (1).

In Indonesia, law reform is one of the important mandates of the national reform agenda, including the restructuring of various legal and political institutions at all levels of government, the regulatory implementation of the 1945 Constitution at the village level, and the ideological renewal necessary to make these changes real in Indonesian society.1 The policy direction of the People’s Consultative Council (MPR) has changed from domination by the central authority toward freedom, autonomy and local government empowerment. Laws that were once imposed from the top now reflect power-sharing with local governments. In particular, the government has granted special (and virtually unlimited) autonomy to the province of Nangroe Aceh Darussalam (NAD, also known as Aceh). This article will explore how that autonomy has been influenced by a more robust adoption of Shari ‘ah law in Aceh.

Uddin, Asma T. 2010. “Religious Freedom Implications of Sharia Implementation in Aceh, Indonesia.” University of St. Thomas Law Journal 7.

On Monday, September 14, 2009, the provincial legislature in Aceh, Indonesia passed Sharia regulations imposing stringent criminal punishments for various sexual offenses, such as adultery and fornication. 1 Sharia, literally meaning “way to a watering place,” is a set of divine principles that regulate a Muslim’s relationship with God and man by providing social, moral, religious, and legal guidance. It is implemented through fiqh , or Islamic jurisprudence, which is the science of interpreting religious texts in order to deduce legal rulings. The Acehnese Sharia regulations are the latest manifestations of a process of formal implementation of Sharia that began in 2002 in Aceh. 2 Given the gravity of the associated punishments, the regulations have caught national and international attention, with human rights activists across the world decrying the severity of the corporal punishments imposed by the regulations. Much less frequently scrutinized are the regulations’ implications for other human rights–such as religious freedom. This paper analyzes these regulations’ religious freedom implications for both Muslims and non-Muslims. Part I begins with an introduction to the religious freedom climate in Indonesia, including an overview of international and domestic religious freedom law and the extent to which Indonesia conforms to that law. Part II focuses on Aceh: its history and special character, including its semi-autonomy from the national government, and the process of Sharia implementation in the region. Finally, Part III analyzes Acehnese Sharia regulations in relation to international and domestic religious freedom law.

Venning, Philippa. 2008. “Determination of Economic, Social and Cultural Rights by the Indonesian Constitutional Court.” Australian Journal of Asian Law 10 (1).

Indonesia’s Constitution contains a swathe of economic, social and cultural rights which can now be judicially determined by the newly established Constitutional Court. Approaches to judicial determination of economic, social and cultural rights range from these rights being expressly justiciable to being mere statements of principle to guide the executive and legislative branches. These approaches, explored and evaluated in the light of practical examples from developing countries, are used as a basis to analyse how the Indonesian Constitutional Court has determined economic, social and cultural rights since its establishment in 2003. Two judicial review cases on the Electricity and the Water resources Laws are examined in detail and indicate that the court is taking a strong-form approach to determination of economic, social and cultural rights, squarely placing it in the realm of policy-making. The analysis in terms of theories of justiciability is placed in the context of the socio-political realities present in Indonesia to conclude that strong-form judicial review can provide a useful tool for the poor to advocate for social change in a transitional democracy prone to financial crises.

Warburton, Eve. 2008. “Asia-Pacific: Islam and Law in Indonesia: The Significance of Symbols.” Alternative Law Journal 33 (2).

In Indonesia, disputes over Islam’s political and moral role in public life are not new, but have a long history dating back as far as the constitutional debates of the 1940s. At that time, attempts by Muslim political groups to formally enshrine Islam within the new constitution were quashed, and Poncosilo became the ideological foundation for the nation.’ When President Suharto’s thirty-two-year reign came to an end in 1998, debates over these issues emerged once again. Attempts to gain constitutional recognition of Islam as the national religion have failed repeatedly, as have the electoral aspirations of formalist Islamic political parties. However, in recent years, new debates have emerged regarding the possibility of an enhanced political and social platform for conservative Islam in Indonesia. The emergence of syariah inspired by-laws at the local government level, and the proposal of a new Anti-pornography bill (Rancongon Undang-Undang Anti Pornografi don Pornooksi, ‘RUU APP’) in 2006 sparked widespread debate over the influence of conservative Islamic values in Indonesia’s public sphere.

Wolf, Charles Jr. 1950. “Problems of Indonesian Constitutionalism.” Pacific Affairs 23 (3). 

Sometime during 1951 an Indonesian constituent assembly will convene to adopt a permanent constitution for the Republic of the United States of Indonesia (RUSI), which became a sovereign state on December 27, 1949. To devise a constitutional instrument combining adequate provisions for both responsible government and stable government, for both restraints on the exercise of power and sufficient concentration of power, is always a difficult task. In Indonesia that task will be fraught with additional difficulties. In the first place, a tradition of responsible exercise of government is not a characteristic of indigenous Indonesian culture. Three centuries of colonial rule hardly contributed to the development of such a tradition. In the second place, economic and military exigencies may increasingly require the assumption of great power by the administration in the interests of both economic welfare and political stability. Such requirements will necessitate a strong executive arm of government, yet it may be exceedingly difficult to secure a strong executive by constitutional means in the face of the multi-party system under which the RUSI government will operate.