Melbourne Law School - Theses

Permanent URI for this collection

Search Results

Now showing 1 - 10 of 22
  • Item
    Thumbnail Image
    ‘Not served on a silver plate’: The role of civil society actors in promoting the human rights of refugees in Indonesia
    Walden, Max Conrad Fretwell ( 2023-05)
    Indonesia is one of the main hosting countries for refugees and asylum seekers in Southeast Asia but is not a signatory to the 1951 Refugee Convention and has scant domestic law pertaining to refugees. This thesis analyses the extent to which refugees can access the rights to education, healthcare, and livelihoods in Indonesia, as these rights have been identified by refugees themselves as fundamental rights for a dignified life while in prolonged “transit” in Indonesia. I argue that in the absence of the state, civil society plays a key role in service delivery and advocacy for the realisation of these human rights for marginalised non-citizens. The thesis also proposes that Indonesia’s denial of employment rights, which renders some refugees destitute thereby necessitating a return to their country due to economic compulsion, may constitute what human rights groups have deemed “constructive refoulement”. Civil society organisations (CSOs), whether international non-governmental organisations (NGOs), local NGOs or refugee-led organisations such as learning centres, fill a major gap in service provision and undertake advocacy to advance refugee rights. They do so in what scholars have identified as an increasingly illiberal political environment under President Joko Widodo. The difficult conditions created by the COVID-19 pandemic have only emphasised the important role of civil society organisations in providing for refugees’ basic needs in Indonesia. However, my research finds that while CSO service provision and activism is remarkably effective in the Indonesian context, ultimately the state must assume greater responsibility to ensure refugee protection and that Indonesia’s obligations under international human rights law are fulfilled.
  • Item
    Thumbnail Image
    Criminal Sentencing in Indonesia: Disparity, Disproportionality and Biases
    Sjarief, Rifqi ( 2020)
    This thesis assesses 1,100 Indonesian criminal justice decisions on theft and embezzlement-related offences as well as corruption in four first instance courts (2011-2015, but excluding 2013) to better understand sentencing practices in that country. Using a socio-legal methodology, it investigates the consistency and proportionality, as well as fairness (unbiased) of the sentencing practice, particular between offenders of different socio-economic backgrounds as well as the legal and extra-legal factors that contribute to sentencing outcomes. This thesis finds unwarranted disparity and disproportionality in sentencing practices in Indonesia, particularly in cases involving medium and large losses. Further, while offenders charged with corruption received overall relatively longer imprisonment sentences than offenders charged with theft and embezzlement-related offences in the same categories of loss, when the differences in the offences’ minimum and maximum penalties – as the expression of an offence’s seriousness – are put into the equation, corruptors are indeed punished disproportionally more lenient compared to thieves and fraudsters. This is because the minimum and maximum imprisonment sentences for corruption are much longer then for theft and embezzlement-related offences. I also find that many law enforcers and judges have suffer from class-bias or are involved in corruption, which leads them to be lenient in charging and sentencing corruption offenders from middle and upper socio-economic backgrounds. They did so, including, by deliberately misinterpreted provisions in the Anti-corruption Law and Supreme Court guidance. Judges’ perspective of different offences seriousness between theft-related offences and corruption (with the first-mentioned offences are generally seen as more concerning to the public as the later one) also influence the disproportionality of sentences between the two types of offences. This thesis also shows that while judges do consider legal factors in sentencing, particularly the type of offence committed and the amount of loss caused, they tend to be overly influenced by a desire to avoid appeal by prosecutors (which would increase their workload and prolong the time that offenders have to spend behind bars due to the practice common of pretrial detention and, to a lesser extent, the long appeal process). This often leads judges to follow the prosecutor’s sentencing recommendations, particularly in theft and embezzlement related offences. Worse, to avoid appeal, judges imposed more severe sentence than what is permissible on minor theft and embezzlement offenders simply because the prosecutor mischarged them by non-minor offences provisions (that demand longer prison terms). In other words, how the case is processed by the investigator and prosecutors significantly shapes sentencing outcomes. The Supreme Court’s failure to provide sufficient sentencing guidelines and, more importantly, consistent decisions, including enforcing the existing guidelines, also contributes to these problems. In summary, this thesis empirically confirms the public perception of class-bias and corruption in the Indonesian criminal justice and, further, illustrates how poor law enforcement, case management and weaknesses in the Supreme Court distort sentencing.
  • Item
    Thumbnail Image
    Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities
    Mulyani, Lilis ( 2020)
    An adequate definition of group legal personhood (that is, a rights and obligation-holding personality) in Indonesian law is essential if there is to be equal land rights distribution. The present unclear definition of groups in the law as legal persons, coupled with uncoordinated and fragmented government policies, means that land-related decision-making usually operates only for the benefit of persons seen by the law as an ideal legal subject. In this thesis, I focus on 'person' in the sense of a group of individuals that associate as a single unified entity. In Indonesia and in general legal doctrine, the lack of clarity in the definition of ‘legal person’ has resulted in traditional customary (adat) groups and their customary land title being excluded and this vulnerable to marginalisation and land expropriation. This has given rise to much debate about which groups can be said to have a legal personality as bearers of rights and obligation, and why. The thesis aims: to understand the core concept of a group as a legal or juridical person; investigate how decisions on land rights are made by the Indonesian government; how traditional customary (adat) groups themselves choose to be recognised; and how such distributions could be reformed to better protect adat groups. Two case studies on specific policies related to the asserting of the customary communal land title (hak ulayat) are reviewed, covering the background of decisions on land rights entitlement (socio-legal and political), the process for distribution, and the consequences of the policies chosen. The primary contentions of this thesis are as follows: first, the current practice of legal and political recognition of adat groups requires ‘regional regulations’ (that is, local by-laws) to be passed to make operational a form of legal personhood and operational land title specific to particular local adat groups and ulayat land. These measures can empower adat groups to function before the law. Second, Indonesian law relating to group personhood needs to clearly define which category of legal subject adat groups fall into. The current approach of the government (simplification and homogenisation) presents a fundamental obstacle to adat groups, who seek a legal form that best represents their values and systems, and accurately reflects their group identities. Third, legal exercises by government bodies to translate traditional customary land rights into operational land titles and forest rights have played an important role in creating a legal breakthrough. This has provided a (potential) answer to decades of deadlock in seeking to make ulayat (communal land and forest) rights into legally cognisable and registrable land rights. This research concludes that the legal definition of group personhood creates difficulties facing adat groups in asserting their personhood, which becomes a major obstacle to the capacity of adat groups to assert their rights to their traditional land, but it also concludes that it is not impossible for adat groups to navigate these challenges.
  • Item
    Thumbnail Image
    Decentralisation, Law, and the Failure of Palm Oil Licensing
    Khatarina, Josi ( 2019)
    This thesis seeks to understand why the Indonesian central government has been unable to ensure local government compliance with the national laws and regulations that govern the licensing of palm oil plantations. Using a socio-legal methodology, it finds that the central government’s failures are rooted in a poor legal framework, a lack of supportive institutions, and the absence of political will. These findings have implications for decentralisation, the sustainability of palm oil, and the management of natural resources in Indonesia. Theoretically, decentralisation of government is seen as the key to improve democracy, security, and development, as it promises to bring government ‘closer' to the public. Embedded in this concept is a more inclusive decision-making process. Thus, in the context of natural resources management, decentralisation is said to improve fairness in benefit distribution as well as the sustainability of natural resources. Yet, almost 20 years after decentralisation began, the management of natural resources has still not improved, as the proliferation of irregular palm oil licenses demonstrates. Much research has tried to explain why the promises of decentralisation have not fully materialised in Indonesia, and most look at local level actors. However, in a unitary state like Indonesia, the central government is the ultimate expression of sovereign power responsible for governmental affairs. The few scholars who have investigated the central government’s role usually argue that it has been reluctant to let go power, and that is why problems have dogged decentralisation. While that is largely true in some other natural resources sectors, such as forestry, this research has only limited application to the palm oil industry. As this thesis shows, the Ministry of Agriculture, the portfolio ministry, does not try to assert its power over local governments, and, in fact, remains inactive in the face of problematic licensing. Further, the central government does not try to take ‘advantage’ of problematic palm oil licensing by withdrawing the licensing power from local governments, as it has in other sectors, such as mining and forestry. In short, the existing scholarship does not explain the nature of the central government’s role in managing natural resources, particularly palm oil. My research finds that while the central government has an important constitutional role, there are at least three interrelated factors that hamper optimal implementation of its role in the decentralisation of palm oil licensing. Legally, the regulatory framework for its role has been very weak, particularly monitoring and oversight of local government licensing powers. This is worsened by the nature of the sectoral approach to natural resource management in Indonesia, which is characterised by vague and conflicting legal frameworks. Institutionally, the ministry of agriculture has not developed an appropriate structure for monitoring and overseeing palm oil licensing, and as a result, there is no national database of palm oil licenses. The third factor, which underlies the other two, is the absence of political will to ensure palm oil licensing is sustainable.
  • Item
    Thumbnail Image
    Indonesia as a weak state? Bank restructuring after the Asian Financial Crisis
    Busch, Matthew Aaron ( 2019)
    This thesis presents an original case study of the Indonesian Bank Restructuring Agency (IBRA), which was established to manage virtually all interventions into Indonesia’s banking system during the 1997-1998 Asian Financial Crisis. Although a seminal moment in Indonesia’s economic history, there is limited scholarship and even less popular understanding about the crisis and IBRA’s work to overcome it. This thesis is interested in how the state goes about defining, legitimising, and executing its responsibilities. Often, the state, or, more accurately, its actors and organisations, seems to work at cross-purposes to its ostensible policy objectives. Indeed, sometimes the state becomes more a site for different groups or actors to contest these actions. Examined closely, these contests reveal much about the nature of power in a society. To conceptualise these tensions, this thesis uses the analytical framework of a ‘weak state’, at the centre of which is understanding of the institutional factors that make some states less effective. This thesis surveys sociology, political economy, and economics literatures to synthesise its own definition of a weak state, that is, a state reliant on informal, negotiated, and ad hoc strategies to accomplish its objectives. Frequently these strategies are at odds with the established legal or procedural tools at its disposal. They are, as the thesis shows, historically and institutionally embedded. The thesis applies the weak state premise through its original research on IBRA. This analysis uses data collected through interviews and audits of the agency. In particular, the thesis closely examines IBRA’s work to conclude contracts, known as Shareholder Settlement Agreements, with two owners of major private banks it took over during the crisis. These contracts were ‘out of court settlements’ designed to trade legal release for the bank owners for the transfer of assets that could be quickly sold to recover part of the government’s spending on the rescue. This analysis shows how despite initial aspirations, IBRA made most progress within the modalities of a weak state, including negotiated and ad hoc strategies. Indeed, the very essence of this work and the actual procedures used to accomplish these settlements were highly informal. Moreover, IBRA’s progress generated considerable controversy and opposition within the state. This continues to have implications today, as evidenced through the corruption conviction – and unprecedented acquittal – of former IBRA Chairman Syafruddin Temenggung for actions related to one of the Shareholder Settlement Agreements. Ultimately, as the thesis shows, it was not only IBRA’s strategies that were highly contested, but even the state’s attempts to adhere to a transparent and legal approach in dealing with private bank owners. Ultimately, although IBRA recovered but a fraction of the funds spent rescuing private banks – a finding confirmed by this research – the thesis challenges whether this really was a poor outcome in light of the institutional problems confronting the agency.
  • Item
    Thumbnail Image
    International extradition between Indonesia and Australia
    Dewi, Apsari ( 2018)
    Indonesia and Australia have not found extradition easy, despite the bilateral extradition treaty in force between them since 1992. This thesis is concerned with international crime cooperation in the extradition of fugitive offenders between Indonesia and Australia, but it also intended to augment the body of research on international cooperation in the enforcement and suppression of transnational and domestic crimes. It aims to find the answer to why there are still problems in extradition cooperation between Indonesia and Australia despite the presence of a legal framework for cooperation, and to identify ways in which these problems might be resolved. I argue that the problems in legal cooperation in extradition between Indonesia and Australia are the result of a complex mixture of factors that include social, political and legal aspects. The solution cannot be simply instrumental. Focusing solely on legislative change will not suffice unless it is also supported by other non-regulatory schemes, including, among other: developing a bilateral consultation framework between Indonesia and Australia with a view to creating a platform to address the differences peculiar to each legal system; and assigning a Liaison Officer for International Crime Cooperation at the Embassy of each country.  
  • Item
    Thumbnail Image
    Islamising Indonesian laws? : legal and political dissonance in Indonesian shari'a, 1945-2005
    Salim, Arskal ( 2006)
    This thesis seeks to offer a different perspective to account for growing demands among Muslims in Indonesia for the incorporation of religious law into the modem nation-state legal system. To this end, this study presents three cases: (1) unsuccessful efforts of Islamic parties to constitutionalise shari'a by amending Article 29 on Religion; (2) the nationalisation of shari'a by the state through the enactment of Zakat Administration Law; and (3) the ulama and the Mahkamah Syar'iyyah in the local implementation of shari'a in Aceh. Through these case studies, the thesis examines the interaction between shari'a and the nation-state and tests the hypothesis that the implementation of shari'a in Indonesia is fundamentally dissonant, in the sense that its implementation is characterized by a continuum between tensions in meanings at one end and direct contradictions in terms at the other. My research has identified a large range of examples of this dissonance at the constitutional level; at the level of political ideology and at the level of subordinate regulations. These dissonances essentially arise because of the difficulty in reconciling the centrality of shari'a for pious Muslims on the one hand, with, on the other hand, the fundamental importance of multi-faith tolerance for the plural religious system that is the heart of the conception of the Indonesia secular national state. The Islamisation of laws in Indonesia has not resulted in the introduction of the shari'a in any real sense. What on the surface may appear to be the Islamisation of laws in Indonesia is in reality a symbolic token for the most part. Although provisions refer formally to shari'a, the whole procedure to carry it out seems an almost irreligious activity, in the sense that it is essentially a secular endeavour. For this reason, instead of seeing the issue solely as an Islamisation of the Indonesian legal system, I argue that it is as much as an Indonesianisation of shari'a law that is currently taking place.
  • Item
    Thumbnail Image
    Adat and land law in a plural system : a study of forestry regulations and Indonesian 'legal development'
    Darmono, Budi ( 2004)
    At independence in 1945, Indonesia inherited a plural legal system consisting of adat (traditional customary) law, Islamic law and Dutch law. The development of a unified national legal system was intended to solve legal problems arising from this plurality. However, after decades, the national legal system still does not function satisfactorily. This thesis asks what is wrong with legal development in Indonesia? Adat law, forestry law and land law are used as primary vehicle of analysis, because adat law is the oldest form of law existing in Indonesia and is still widely followed especially among the rural population, still the majority of people in Indonesia. Statutes regarding forestry and land are the formal laws which have the most profound effect on adat law communities. The thesis finds, first, that formal law enforcement in Indonesia is disappointing and this has led to a popular mistrust of the formal legal system. Second, it finds most of the population are still unfamiliar with formal legal norms. This is the result of a clash between, on the one hand, the conceptual notions relied upon by Indonesian government in establishing the law (based on assumption that `the people will follow the law'), and, on the other, those norms central to adat law (`the law will follow people's customs'). This fundamental conflict in grundnorm inevitably leads to disputes in connection with land, particularly in forest areas. These are made worse because rights are not properly enforced and dispute settlement procedures are ineffective. As a result the Indonesian land and forestry law regime is dysfunctional. This has adverse impacts on rural populations, especially adat law communities, in the sense that their land-related rights are weak, ignored or ineffective. The thesis recommends that the formal law-making process should be reformed to better adopt a key element of adat law-making process, that is, public acceptance, through improved consultation and public education. More specifically in relation to land and forestry law, the thesis recommends that formal law expressly acknowledge and protect adat communities and their adat land rights, especially, communal interests in land (ulayat rights). This should be done by new provisions that would: have binding force; allow formal registration of such interests; exclude adat forestland from the definition of state forestland; and acknowledge adat communities as legal persons.
  • Item
    Thumbnail Image
    The tension between the right of states to control FDI and the commitment to liberalise FDI under international investment instruments
    Erawaty, Elly ( 2004)
    This study explores the tension between the right of States to control foreign direct investment on one hand and the commitment to provide more favourable treatments to foreign investors on the other, under the circumstances of globalisation of free trade. It argues that the operation of this right has been immensely restricted by treaty and non-treaty based rules as found, in bilateral and multilateral investment instruments. In particular, the World Trade Organisation Agreement on Trade-Related Investment Measures has seriously restricted the right of (developing) States to control foreign direct investment and the behaviour of foreign firms. On the other hand, the existing bilateral and multilateral investment instruments require States to liberalise their foreign direct investment policies and these instruments also offer greater protection to foreign investors than did the customary international rule of States' responsibility for injuries to aliens. Given this fact, from the developing countries' perspective, a new multilateral investment treaty under the auspices of the World Trade Organisation undesirable. Nonetheless, if the pressure from economic globalisation is irresistible and the alternative to a new multilateral treaty is a push toward bilateral arrangements, then the idea of establishing such a treaty is in fact preferable. In this context, a prospective treaty would have to strike a balance between the right of States to control foreign direct investment and the commitment to liberalise foreign direct investment policies. To this effect, a new treaty would have to adopt development provisions, which give (developing) countries the flexibility to undertake obligations and commitments commensurate with their individual needs.
  • Item
    Thumbnail Image
    Good corporate governance in Indonesia- where to from here?
    Resdiano, Inge ( 2001)
    Poor corporate practices (despite Law number 1 of 1995 concerning Limited Liability Companies), capital market and stock exchange rules, and a dismal record of law enforcement are cited by many quarters of the society as the main culprits for Indonesia's corporate ills. The issue raised by this paper is reform to Indonesia's corporations statutes; regulatory body and judicial system to establish a strong foundation for good corporate governance. This reform is only possible if one has a clear understanding of what the term `corporate governance' means; the elements of good corporate governance; the parties that play a role in creating and maintaining a good standard of corporate governance; and, most importantly, the benefits a country and its people may reap by adopting and adhering to the principles of good corporate governance. All these issued will be addressed in part II of this paper. Part III will deal with real cases arising from poor corporate practices; weak and, to a certain extent, incompetent regulatory bodies; a corporate and security registration system which fails its purpose; and judiciary which is yet to gain the respect of people it serves for its competence and independence. Part IV will be a look at the most common form of corporations currently in existence in Indonesia; their governing regulations; regulatory bodies; and how they actually operate in practice. A proposal for reform of those regulations and other related regulations; regulatory bodies; and the judicial system will be outlined in part V of this paper with part VI deals with conclusion.