Melbourne Law School - Theses
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ItemDecentralisation, Law, and the Failure of Palm Oil Licensing( 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.
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ItemIndonesia as a weak state? Bank restructuring after the Asian Financial Crisis( 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.
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ItemInternational extradition between Indonesia and Australia( 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.
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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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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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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.