Indonesia Inquiry

Legal Institutions in Indonesia (Annotated Bibliography)

November 18, 2015 Annotated Bibliographies Data Research Resources 0

Legal Institutions In Indonesia (Annotated Bibliography)

Compiled by: Stephanie Razo

Directed Individual Study, Fall 2015

Texas A&M University-Corpus Christi

Alexandra, Lina. 2012. “Indonesia and the Responsibility to Protect.” The Pacific Review 25 (1). 

While governments in Southeast Asia, together with other countries in the world, have shown their unanimous support toward the RtoP, the implementation of such principle needs more than just states’ commitment. Since state actor, in many cases, is the perpetrator of crimes included in RtoP, the role of civil society is indeed crucial to put pressure toward the government to fulfill its responsibility to protect its populations. This article aims to describe Indonesia’s position so far in responding to this RtoP principle. It tries not to cover only the government’s position, but instead to also delineate the civil society’s standpoint, which is an important element particularly, to provide a more comprehensive overview. As based on the latest elaboration of RtoP within the UN Outcome Document (2005) into three strategic pillars, it is interesting to observe whether both sides, the government and civil society are comfortable to recognise all pillars altogether or rather incline to take one or two pillars only. Nevertheless, robust development of civil society in Indonesia, as one of positive implications from process toward democracy has opened ample opportunities for the application of RtoP principle. Local NGOs that particularly focus on human rights issue have demonstrated the ability to put pressure on the government to exercise its responsibility as reflected in the first and second pillars. Since the government has stressed upon the importance of prevention to implement RtoP principle, the involvement of civil society is a must, particularly to carry out the role of early-warning to prevent the outbreak of mass atrocities that fall within the scope of RtoP, which can become another worthy discussion to elaborate. Finally, RtoP is all about implementation. Genuine political will from the government would be needed while partnership with the civil society element is nothing but important

Bakker, Laurens and Timmer, Jaap. 2014. “Justice in Indonesia: The Social Life of a Momentous Concept.” The Asia Pacific Journal of Anthropology 15 (4).

In this article we argue that efforts in Indonesia to improve access to justice for the disadvantaged would greatly benefit from a pragmatic approach that takes local circumstances of custom, values and social relations into account at least as much as legal reform and bureaucratic transparency. We maintain that in post-Suharto Indonesia ‘justice’ can be conceptualised as the inverse of injustice and is manifested in terms of sovereign interests. Ideal justice, such as associated with rule of law implementing programs, assumes a functioning of government and judiciary that might bring about such results. Building on our own research as well as on the articles in this special issue we argue that engaging with the role and meaning of justice should involve solid ethnography of justice-seekers’ life-worlds, understanding of the strategies and institutions that provide justice, and paying attention to the networks and interactions that connect actors in an ever moving field.

Bedner, Adriaan. 2013. “Indonesian Legal Scholarship and Jurisprudence as an Obstacle for Transplanting Legal Institutions.” Hague Journal of the Rule of Law 5 (2). 

Theory on legal transplants makes a distinction between reception in law and reception in society. Both topics generate their own debates: the former are concerned with the question how the deeper lying legal epistemological structures shape the way in which transplanted rules and institutions acquire new meaning, the latter with how such rules work out on the social processes they ought to regulate. Usually the cases chosen for looking at the legal side are from well-developed legal systems, whereas those about developing countries focus on the social effectiveness. This ignores that many such systems in the world — including in Asia — are fragmented, unevenly developed, and unlikely to be capable of effectively appropriating and reconstructing new rules. The present article takes Indonesia as an example to show how structural problems of legal systems in countries adopting legal transplants may prevent legal rules and institutions from being accommodated into them. The article argues that this resistance can be explained only in part from factors such as governmental fragmentation, corruption, malfunctioning of the political system, or a legal plural colonial heritage, and that they are inherent in the state of legal scholarship and jurisprudence. In Indonesia these are incapable of producing the coherent legal theories required for effective reception of foreign law and legal institutions, a situation likely to be found in many countries. Given the structural factors underpinning this state of legal scholarship and jurisprudence, change will be very difficult to effect and the rule of law is an ideal that remains far away.

Bowen, John R. 2000. “Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society 1960-1994.” Law and Society Review 34 (1).

I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takengen, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges’ perceptions of a more individualized society.

Butt, Simon. 2009. “Asian Law in Translation: Translator’s Note on the Indonesian Corruption Court Law.” Australian Journal of Asian Law 11 (2).

The article discusses the creation of a new Corruption Court Law in Indonesia, as well as the role of the Anti-Corruption Commission or Komisi Pemberantasan Korupsi (KPK). KPK was created to investigate and prosecute corruption in the government and the cases it prosecutes are heard by the Corruption Court. The success of KPK has led its target to challenge the constitutionality of laws it uses to prosecute and convict people.

Butt, Simon. 2010. “Islam, the State and the Constitutional Court in Indonesia.” Pacific Rim Law & Policy Journal 19 (2).

Indonesia is home to more Muslims than any other country. Yet it is not an Islamic state and is unlikely to become one, despite the strong and sustained urgings of some Muslim groups. Indonesian Islam is, like Indonesian society itself, dynamic and diverse, accommodating a wide variety of practices and beliefs. One area of contention between conservative Muslims on the one hand, and the state (supported by many more moderate Muslims) on the other, is the extent to which Islamic law should be recognised, applied and enforced by institutions of state. The Indonesian government’s response has generally been to limit formal recognition of Islamic law to specified areas of family law and finance, codifying the relevant principles and enforcing them through Islamic courts. This article considers whether the constitutional freedom of religion, introduced in 2000, requires the state to provide mechanisms to apply and enforce the corpus of Islamic law. In particular, it discusses two cases in which Muslims asked the Indonesian Constitutional Court to consider whether freedom of religion required the state to remove restrictions on polygamy, and to allow Indonesia’s Religious Courts to apply Islamic law in its entirety, including criminal law.

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.

Butt, Simon and Schutte, Sofie Arjon. 2014. “Assessing Judicial Performance in Indonesia: The Court for Corruption Crimes.” Crime, Law, and Social Change 62 (5).

New specialized courts have emerged in many countries, both in response to international pressure for legal reform and reflecting states’ own choice. Among these courts are specialized anti-corruption courts. The Indonesian Court for Corruption Crimes in Jakarta, originally established by statute in 2002, gained prominence and notoriety for its near-100 % conviction rate in over 250 cases. However, in 2010, exclusive jurisdiction over corruption cases was ‘decentralized’ to special corruption courts established in Indonesia’s 34 provincial capitals. The prudence of this has been strongly criticized, with questions raised about whether these regional courts have maintained the professionalism of the sole Jakarta court. This paper examines the rationale for the establishment of these courts and whether conviction rates are useful indicators of their performance.

Cammack, Mark E. and Feener, R. Michael. 2012. “The Islamic Legal System in Indonesia.” Pacific Rim Law & Policy Journal 21 (1).

This chapter describes the historical evolution and current structure of lndonesia’s Islamic legal structure. The current system of Islamic courts in Indonesia is traceable to a late nineteenth century Dutch decree establishing a system of Islamic tribunals on the islands of Java and Madura. The decree created collegial courts in which a district-level religious official called the penghulu acted as chair and was assisted by member judges chosen from the local religious elite. The courts were authorized to decide matrimonial and inheritance disputes, but execution of the courts’ decisions required an executory decree from the civil court. The system was expanded to south Kalimantan in the 1930s, but at the same time the jurisdiction over inheritance was transferred to the civil courts. At independence, the Islamic judiciary was placed under the authority of the Ministry of Religion, which used executive powers to expand the system to other parts of the country. It was not until 1989 with the passage of the Religious Judicature Act that the existence of the courts was guaranteed by statute. The 1989 Act also vested the courts with enforcement powers and mandated changes in the organization and staffing of the courts modeled after the parallel system of civil courts. The substantive jurisdiction of the courts has also been expanded to include inheritance cases as well as a so far little-used power to decide cases involving economic transactions based on Islamic law. In 2004, the administrative supervision of the Islamic judiciary was transferred from the Ministry of Religion to the Supreme Court. In 1999, the province of Aceh was granted special autonomy status that included the authority to enforce Islamic law in areas beyond the established jurisdictions of Shari’a courts in the rest of the country. These developments add a new dimension to the institutional structures for the practice of Islamic law in the country.

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.

Finkelstein, Lawrence S. 1951. “The Indonesian Federal Problem.” Pacific Affairs 24 (3).

Pressing day-to-day issues have submerged longer-range questions of form and structure of government since Indonesia’s “unitarian” structure was instituted in August 1950; yet, after a year of experience with the new system, the prospect of efforts at constitutional reform seems more likely. National elections, looking to the creation of a Constituent Assembly, are being prepared, although they probably cannot be held before 1952. Under the constitution, the Constituent Assembly, “together with the Government”, is to replace the existing “provisional” constitution with a permanent one.

Halim, Fachrizal A. 2013. “Contestation of the Oath Procedure in Colonial Indonesia’s Islamic Court.” Indonesia & the Malay World 41 (119).

This article discusses the Dutch initiative in applying oath-taking as part of the procedure of the Dutch East Indies’ Islamic court. This created a dilemma for local Muslim judges since Islamic tradition regards the oath procedure rather differently from that of Europeans. This application of an oath procedure epitomises the complex asymmetrical relationship between the Dutch colonial state and its Muslim subjects as it highlights not only the subjugation of Islamic law to the colonial state, but also the process of modernisation which produced differ-ent forms and practices in the Islamic court. The article draws on the writings and letters of the Dutch Orientalist, C. Snouck Hurgronje who was then advisor on native affairs for the Dutch colonial administration

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)

Indrayanto, Adi, Burgess, John, Dayaram, Kandy, and Noermijati. 2014. “A Case Study of Transformational Leadership and Para-Police Performance in Indonesia.” Policing 37 (2).

The purpose of this paper is to investigate and examine the mediating effect of trust and commitment on employees’ performance in the context of transformational leadership at Civilian Para-Police Force Institution. Design/methodology/approach – Leaders and employees at the Civilian Para-Police Force in Indonesia were surveyed and interviewed. Multiple regressions are used to examine and explore the direct and indirect relationship and also provide a model of transformational leadership. Findings – Transformational leadership does not directly influence towards employee performance; rather trust and commitment are found to be the mediating variables in the relationship between transformational leadership and employee performance. The result supports a model of transformational leadership that is considered to be more effective and suitable for improving performance in para-police organisations. Research limitations/implications – Limitations include the cross-sectional data analysis, the country and institutional specific focus, and a small sample size (n=132). Practical implications – Organisations with similar duties as those of the Indonesian para-police organisation could embrace the suggested transformational leadership model for the purposes of improving organisational performance through maintaining public order, while at the same time avoiding any abuse of social and religious norms, and human rights. Originality/value – This study provides a detailed account of the effectiveness of transformational leadership for para police organisations in the Indonesian context.

Jansen, David. 2008. “Relations Among Security and Law Enforcement in Institutions in Indonesia.” Contemporary Southeast Asia: A Journal of International and Strategic Affair 30 (3).

The dominant perceptions of the academic literature on relations among security and law enforcement institutions in Indonesia tend to be negative. In part, academic works on the past behaviour of security forces in some of Indonesia’s conflict areas inform the perceptions of the literature. Research on conflict zones often suggests that unclear boundaries of jurisdiction and poor internal command and control frustrated the efforts to coordinate security forces in such areas. While these conclusions may be accurate in places that are or were riven by high conflict, this article questions if such conclusions are accurate for the large parts of Indonesia that have only experienced low levels of security problems. The evidence presented in this article suggests that coordination and an effective division of labour does exist among government security agencies in a low conflict environment. This article outlines relations between the three primary law enforcement and security actors —the National Police, territorial units of the Indonesian military and regional government —in three district case studies in Yogyakarta. This article finds that while agencies at the sub-national level are highly autonomous, their autonomy does not present an obstacle for cooperation. In the case studies presented, government law enforcement and security actors acknowledge jurisdictional boundaries between one another. Where inter-institutional cooperation does take place, regional government plays an important, facilitative role. Despite this, the Indonesian police remain the lead agency in combating most threats to order and stability.

Kristiansen, Stein, and Trijono, Lambang. 2005. “Authority and Law Enforcement: Local Government Reforms and Security Systems in Indonesia.” Contemporary Southeast Asia 27 (2).

This article assesses the impact of decentralization and deregulation reforms in Indonesia on security and law enforcement. The research draws on qualitative and quantitative data from interviews, focus group discussions and household surveys in four selected districts. The main conclusions are that local security bodies are being developed without control by the central government or local level democratic bodies. There is a total lack of transparency and accountability in security affairs and much power is concentrated in the hands of the district heads, the bupati. Policy recommendations include increased central government control over policing, security organizations and law enforcement.

Lev, Daniel S. 1965. “The Politics of Judicial Development in Indonesia.” Comparative Studies in Society and History 7 (2).

Legal approaches to judicial development in the new states of Asia and Africa seem to be inadequate for at least two reasons. One is that we cannot assume a prior knowledge of the political and social factors bearing on the process of change in these countries. The second is that by emphasizing legislative aspects of development, the spotlight is shifted away from the institutions themselves. One way of meeting these two objections is to bypass momentarily the normal function of judicial institutions and to look at them first of all as organizations like any other with group interests to defend and ambitions to pursue. From that starting point, it is possible to get a glimpse of the politics and sociology of legal and institutional change.

Lev, Daniel S. 1973. “Judicial Unification in Post-Colonial Indonesia.” Indonesia 16.

The reason for writing this article is to pull together scattered   materials on the growth of a national judiciary in Indonesia during the Japanese occupation, the revolution, and early independence, and to put these materials in some perspective more useful that a merely legal one. This perspective is not in the first place a functional one, since the history of judicial integration had relatively little to do with the explicit work of courts. What it did have to do with, more than anything else, was the adoption of (and conflict over) new institutional symbols of authority that favored new ruling groups and new political and social visions.

MacMillan, Joanna. 2011. “Reformasi and Public Corruption: Why Indonesia’s Anti Corruption Agency Strategy Should Be Reformed to Effectively Combat Public Corruption.” Emory International Law Review 25 (January).

Indonesia was once at the “forefront of Asia’s economic miracle.”‘ Under President Suharto, Indonesia experienced “impressive gains in overall economic growth.” However, poverty remained pervasive, and corruption had “grown along with the economy.” In 1998, Transparency International’s Corruption Perceptions Index (“CPI”)” ranked Indonesia as number eighty out of eighty-five countries, placing the nation as one of the most corrupt countries in the world. Economic distortions caused by public corruption in Indonesia were a major factor contributing to the Asian Financial Crisis of 1998, leading to massive riots and a “total meltdown of governance.”

Meliala, Adrianus. 2001. “Police as Military: Indonesia’s Experience.” Policing: An  International Journal of Police Strategies & Management 24 (3).

The Indonesian police (Polri) were unique in that they were once part of the military as well as being an extension of the Government. Since the police joined the military and executed a paramilitary policing style, Polri has been characterised by three problems: their terrible weakness as law enforcers, the poor quality of policing and an unhealthy police‐public relationship. This article examines these problems and their history. It also reviews the present situation and offers some possible solutions for the future.

Mietzner, Marcus. 2010. “Political Conflict Resolution and Democratic Consolidation in Indonesia: The Role of the Constitutional Court.” Journal of East Asian Studies 10 (3).

This article argues that Indonesia’s Constitutional Court has played a significant role in that country’s transformation from a violence-prone polity into Southeast Asia’s most stable democracy. The Court has advanced institutional conflict resolution mechanisms and expanded democratic rights-two achievements identified by Linz and Stepan as major indicators of a consolidating democracy. Building on models developed by Ginsburg and Horowitz, my analysis also illustrates why the Court has been able to defend its autonomy and become an agent of democratization. While sharing Ginsburg’s emphasis on high levels of power diffusion as a key reason for the Court’s success, this article moves beyond such an approach. Most importantly, it suggests that the judges’ “judicial activism”-as expressed in a number of controversial but popular decision-increased Indonesian society’s support for the Court to such an extent that is has now become largely invulnerable to attempts of external intervention.

Nalla, Mahesh M., and Mamayek, Chae. 2013. “Democratic Policing, Police Accountability, and Citizen Oversight in Asia: An Exploratory Study.” Police Practice and Research 14 (2). 

One of the ways in which the ideals of policing mirrors democratic governance is the role played by citizens in dealing with matters relating to police accountability. While many western developed democracies have mechanisms for civilian oversight of police that include an active citizen role, the extent to which citizen oversight exists in new and emerging democracies is unclear. In this exploratory study, we examine the nature and extent of police accountability in emerging and new democracies in Asia, their efforts to democratize police organizations, and the extent to which civilians are included in police oversight mechanisms.

Stirling, Paul. 1965. “Comment on the Legal Situation in Indonesia.” Comparative Studies  in Society and History 8 (1).

Indonesian law and judicial institutions raise almost every conceivable theoretical and practical problem. Professor Jaspan certainly conveys admirably the bewildering confusion of diversity of custom, judicial practices, arguments about theory and policy, and political pressures describing dilemmas which, on sociological first principles, seem in the short (or even middle) run to be insoluble.

Villaveces-Izquierdo, Santiago. 2010. “Building Internal and External Constituencies for Police Reform: An Indonesian Case Study.” International Journal of Police Science & Management 12 (2).

How can donor assistance facilitate and empower actors of change inside and outside the police? How can donor assistance articulate itself to emerging institutional challenges while at the same time enforcing true local ownership for reform? This article explores such questions by revisiting ICITAP’s Institutional Transformation Project (ITP) one year after its completion. The article starts by providing the particulars of Indonesian political and institutional dynamics, and civil society engagement with police reform. With this backdrop the author shows how the ITP was conceived as an attempt to concretise a political concept into an institutional practice. In so doing, the author argues, the ITP became a vehicle for building relationships between police officers and local research institutions, advocacy groups and universities around a common ground that explored the reach of evidence-based planning. The article closes with a review of unanticipated effects and challenges that the outcomes of this project have had in the progress of police reform in Indonesia.