Melbourne Law School - Theses
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ItemIslamising Indonesian laws? : legal and political dissonance in Indonesian shari'a, 1945-2005( 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.
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ItemAdat and land law in a plural system : a study of forestry regulations and Indonesian 'legal development'( 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.
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ItemThe tension between the right of states to control FDI and the commitment to liberalise FDI under international investment instruments( 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.
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ItemGood corporate governance in Indonesia- where to from here?( 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.
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ItemIs Rawlsian liberalism compatible with Islam?: A case study of post-Soeharto Indonesia( 2015)This thesis explores the interaction between law and religion in a democratic state where religion plays a significant role in public life, using post-Soeharto Indonesia as a case study. It considers the relevance of John Rawls’ thinking about constitutional democracy, specifically his political liberalism. Rawls addresses value pluralism, and the proper use of state authority. A case study of a prosecution under Indonesia’s Blasphemy Law demonstrates the contribution Rawls’ thinking can make in a democratic, majority Muslim country. The 2005 jailing of Yusman Roy for promoting dual language Muslim prayer (sholat dwi bahasa) in East Java is investigated to illustrate how law can be deployed to control minority (and allegedly deviant) Muslim voices. The case study deals directly with issues central to Rawls’ thinking, as he pays special attention to the role of fundamental freedoms, including religious freedom. The case study considers diversity within the majority faith of Islam, the place of Islamic doctrine in state law and policy, and the prominent role played by the Majelis Ulama Indonesia (MUI, the Ulama Council of Indonesia) in shaping public debate on these issues, especially as regards blasphemy. It finds a convergence between, first, the government’s aim to respect the place of the majority faith, and, second, MUI’s aim to promote itself as the arbiter of orthodox, mainstream Islamic doctrine. The Blasphemy Law was upheld by the Mahkamah Konstitusi (Constitutional Court) but the thesis finds it inconsistent with the state’s obligation to respect religious freedom. Rawls’ political liberalism can play a valuable role in understanding Islam in Indonesia because Islam is not monolithic, and limits on the exercise of state power are just as relevant to members of the majority faith as they are to other faiths. Further, Indonesia’s status as a constitutional democracy reduces the strength of claims that ‘Western’ political theory cannot apply in other settings. The thesis finds that a trend towards greater centralisation of Islamic authority is not consistent with the diversity in Indonesian Islam, or its liberal and democratic constitution which, for Rawls, is legitimate only when the state exercises power consistent with constitutional essentials, endorsed by citizens.
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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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ItemMorality and the nation: law, pornography and Indonesia's Islamic Defenders Front( 2013)This thesis examines how largely symbolic law reforms can be used to establish and enforce societal norms. In 2005-6, Indonesia’s Islamic Defenders Front (Front Pembela Islam, FPI) campaigned for the controversial Anti-Pornography Bill. It reported three alleged violations of Criminal Code (KUHP) provisions prohibiting pornography to the police: an artwork (Pinkswing Park), Indonesian Playboy (which had no nudes) and Indonesian Princess (Puteri Indonesia) 2005, a Miss Universe entrant. Between them, these cases represent three contentious areas regulated in Indonesia’s controversial Pornography Bill (the arts, the media and display of the human body). This Bill caused heated debate across Indonesia between two opposing groups. On the one hand, conservative Muslims argued that the state should legislate to ensure the upholding of the nation’s morality, according to Islamic values. On the other, progressive Muslims and others opposed the Bill, including ethnic and religious minorities and artists. This latter group argued that religion and morality should be personal issues and responsibilities. Despite their objections, the Bill was passed as Law No 44 on Pornography in 2008. Of the three cases reported by FPI, only Playboy proceeded to court, progressing through appeals, until the prosecutors reached the Supreme Court on cassation (kasasi). Here the editor of Playboy was found guilty on charges of violating the prohibition of pornography in the KUHP and was imprisoned. This decision, however, was overturned in a Reconsideration (Peninjauan Kembali or final appeal) judgment in the Supreme Court. Although this may seem like a set-back for FPI, this thesis argues that, in fact, these cases may have been reported more as publicity for the Pornography Bill than to punish the individuals involved. This relates to the wider question of how law is used to effect change in Indonesian society and whether the chief purpose for passing the Pornography Law was largely symbolic, given that there have long been Articles in the KUHP which prohibited pornography. Drawing on the theories of Islamic legal concepts as a type of legal transplant, the symbolic nature of law, and law as a field in the struggle for power, this thesis investigates each case, to develop insights into the nature of Islamisation in contemporary Indonesia. It concludes that while some conservative Islamist groups are pushing for their form of Islam to be enforced through legislation, the struggle for Islamisation is one that is in progress rather than concluded, and it remains contested.
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ItemJudicial review in Indonesia: between civil law and accountability?: a study of constitutional court decisions 2003-2005( 2006)This thesis assesses Indonesia's new Constitutional Court (Mahkamah Konstitusi, MK) through an analysis of the decisions it handed down in 2003-2005. Established in 2003, the MK has jurisdiction to resolve jurisdictional disputes between state institutions; to rule on disputed electoral returns and motions to impeach the President or VicePresident; and to review statutes. It is the first Indonesian court to have jurisdiction over these matters. In some of its decisions, the Court has exercised its judicial review powers vigorously. It has struck down unconstitutional statutes, discovered and enforced implied rights and government obligations, and assessed government policy. Its decision-writing style, however, reflects traditional French civil law influence, providing little transparency in its decision-making process. This raises questions about the level of accountability to which the Court exposes itself. Its accountability is brought further into question by some of its institutional characteristics, such as its lack of external supervision, the dearth of judicial training for its judges and the absence of performance-based career incentives. I show that the government is prepared to ignore, or circumvent, decisions of the Court. I argue that to command more respect, the Court could increase the transparency and accountability it provides, by writing decisions that are better reasoned. Alternatively or additionally, it could reduce its activism so as to reduce the level of accountability it should provide. The Court has already begun doing this - notably by declaring that its decisions operate only prospectively and by allowing unconstitutional statutes to stand in the 2005 and 2006 Budget cases. This thesis argues that, although these cases are a good start, the Court could further improve the level of accountability it provides. Unless the Court issues better reasoned decisions, or less political dramatic decisions, or both, the Indonesian government might not comply with the Court's decisions. The government might claim that it does not understand the Court's decisions or the rationale for them, or might be unwilling or unable to comply. Unless the Court succeeds in achieving compliance with its decisions, it may end up being counted in the long list of failed attempts at Indonesian judicial reform.
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ItemTriggering institutional change in an environment of endemic corruption: the Indonesian Corruption Eradication Commission( 2012)KKN, an Indonesian acronym denoting corruption, collusion and nepotism (korupsi, kolusi, nepotisme), encapsulated popular resentment against the authoritarian Soeharto regime during the financial and political crisis of 1998. Public demands to control widespread corruption were transformed into a set of legislation enacted between 1998 and 2002. Because corruption was endemic in existing law enforcement agencies, the centrepiece of the new legislation was the establishment of a new and independent agency to enforce them. Since 2004, this new entity, the Corruption Eradication Commission (KPK), equipped with a broad mandate in both prevention and enforcement, has spearheaded the government’s efforts against corruption. It has done so more effectively than any previous attempts in Indonesia and more successfully than comparative studies of specialized agencies in other developing countries would predict. This thesis examines the factors contributing to the KPK’s initial success. My research applies a theoretical framework derived from new institutional economics with reference to the growing body of literature on anti-corruption agencies. The analysis is based on a detailed review of legislation and associated policy documents. Application of the new laws by the KPK and its impact on formal and informal institutions is examined by drawing on semi-structured interviews during 2009 with more than sixty decision-makers and observers including academics, NGOs and donor agency representatives. These data are supported by content analysis of selected Indonesian media. This study finds that effective anti-corruption reform can be achieved in a highly corrupt environment if the third-party enforcement agencies maintain their political independence and integrity and in turn retain public support, so that the incentives that lead to corruption can be changed through consistent preventive measures and law enforcement. In Indonesia, the economic crisis, regime change and popular pressure led to a political consensus on the establishment of new formal anti-corruption institutions including new third-party agencies. The design of these anti-corruption institutions was influenced but not predetermined by international precedents and donor intervention. Precautions were put in place to maintain the integrity and political independence of the KPK, most notably the sequential selection recruitment of its leadership, thereby diluting loyalties of the nominees to particular groups. The KPK’s human resource management system has avoided the weaknesses of the Indonesian civil service system through higher, more transparent remuneration that aligns individual performance with organisational objectives. The KPK has increased the risks of engaging in corruption but, impeded by its organisational design, has as yet failed to reduce the opportunities and systemic weaknesses that lead to endemic corruption. The KPK’s law enforcement has generated public support but also resistance from vested interests. Resistance to the KPK has mostly taken legal form, allowing for examination by the courts and public pressure that have in turn consolidated the KPK and the Anti-Corruption Court. The long-term sustainability of the KPK and other formal anti-corruption institutions is dependent on consistent law enforcement, more preventive measures at national level and on maintaining public trust in their integrity.
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ItemIndonesian constitutional reform 1999-2002: an evaluation of constitution-making in transition( 2005)In 1999, the MPR (Majelis Permusyawaratan Rakyat, the People's Consultative Assembly) enacted the First Amendment to the 1945 Constitution of Indonesia. Over each of the next three years, it passed a further amendment. Despite their important contribution to Indonesia's transition from Soeharto's authoritarian regime, no comprehensive study has been made of these four amendments, and the process by which they were produced. This thesis is an attempt to fill this gap, by critically evaluating the process and outcomes of these amendments, in the context of constitutional theory and the experience of other countries, in particular, South Africa and Thailand. This thesis argues that the 1999-2002 constitutional amendments lacked what have widely been accepted as key features of a democratic constitution-making process: (i) there was no clear plan for determining the key elements of the process, such as when the amendment would occur, how it would be conducted, and what the outcomes would be; (ii) the MPR failed to win the people's trust in its capacity as a constitution-making body; and (iii) public participation was limited and badly organized. Many of these problems with the reform process, however, related to fundamental issues within the Constitution itself. It contained two aspects seen as crucial to the identity and survival of the country by most nationalists, including the military: the rejection of an Islamic state and the imposition in its place of a nationalist state ideology, the Pancasila, contained in the preamble to the Constitution. Many nationalists feared that opening the Constitution to real change would jeopardize these positions, which they saw, and still see, as non-negotiable. The result was a slow, patchy and tentative process marked by constant negotiation and deal-making as most stakeholders sought a way to dismantle Soeharto's dictatorship without disturbing these twin nationalist principles. Despite these problems, at the end of the process, the Constitution was more democratic in form. In particular, the amendments established a clearer separation of powers between the executive, legislature and judiciary; and more impressive human rights protections. This is because the euphoric transitional period provided a setting that encouraged open constitutional debates in the MPR and allowed public participation in these debates, despite the flaws in the MPR's system for public engagement. The amended Constitution remains, however, far from perfect. This thesis recommends further amendments to, first, strengthen the system of checks and balances introduced between 1999 - 2002; and, second, to entrench the preamble and guarantee the difficult relationship between Islam and state in their current form.