Melbourne Law School - Theses
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.
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ItemTuan Guru, community and conflict in Lombok, Indonesia( 2010)Violence is an ongoing issue of concern in Indonesia. Recent periods of political, social and economic instability have seen outbreaks of violence across the archipelago, often between rival religious or ethnic groups. This has also been the case on the eastern Indonesian island of Lombok, which has both an ethnically and religiously diverse population. Lombok’s capital, Mataram, and the surrounding area of West Lombok form the focus of the field research for this thesis. Both have a Muslim majority and large Christian and Hindu minority communities. This religious and cultural diversity has at times been a source of tension. This thesis explores two local communities in Mataram and West Lombok, as well as looking more broadly at Mataram during provincial elections. The research examines not only communal and political tensions that arose in these communities, but also how conflict was successfully avoided or resolved. This thesis argues that partnerships between state and non-state actors and institutions are integral to conflict management. This cooperation is of particular importance given the relative weakness of state institutions in Lombok, including the police and courts. Therefore, the value of local communities and non-state actors in conflict avoidance and resolution cannot be underestimated. Local religious leaders, Tuan Guru, are key non-state actors who are essential to conflict management processes in Lombok. Tuan Guru have a high degree of influence in pious Lombok society. This means that they are able to act as social stabilisers and mediators during periods of tension in local communities. This thesis also points to the localised nature of dispute resolution, as highlighted in case studies of conflict avoidance during the 2008 NTB gubernatorial elections and dispute resolution in the West Lombok village that I have named ‘Bok’. These cases demonstrate that social relationships both within and between communities, adat (customary practices) and local leadership all play vital roles in resolving tensions and protecting citizens from the effects of violence. Of particular importance are good social relations, the absence of which can lead ethnic minorities to become marginalised and alienated from the rest of the community. Without strong social relationships, minorities are vulnerable to violence should tensions arise. This thesis demonstrates that conflict management in Mataram and West Lombok, whether it be during local provincial elections or within a local community, is an intricate process. Rather than creating ‘one-size fits all’ solutions, conflict management in the highly localised context of Lombok draws upon local legal culture(s) that offer a range of social and legal tools. These include drawing upon sources of locally relevant authority, both state and non-state, such as religious leaders, public servants and the police. Working together, these groups can assist in facilitating community solutions to avoid or resolve conflict. The actors involved and approaches used will differ from community-to-community and depend upon the circumstance, but in most cases Tuan Guru are key to the outcome.