Melbourne Law School - Theses

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    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.
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    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.
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    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.  
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    Is Rawlsian liberalism compatible with Islam?: A case study of post-Soeharto Indonesia
    Fenwick, Stewart Ferguson ( 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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    The use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008
    Zhang, Diane ( 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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    Morality and the nation: law, pornography and Indonesia's Islamic Defenders Front
    PAUSACKER, HELEN ( 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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    Triggering institutional change in an environment of endemic corruption: the Indonesian Corruption Eradication Commission
    Schütte, Sofie Arjon ( 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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    Opposition to Christian proselytisation in democratic Indonesia: legal disputes between Muslims and Christians in West Java (1998-2009)
    Crouch, Melissa Amy ( 2011)
    Indonesia has a history of conflict between Muslims and Christians. Between 1998 and 2001, violence between these two communities increased across the archipelago. Some radical Islamists continue to wage sporadic campaigns against Christian religious activities. These campaigns are centred on the allegation that Christians are attempting to convert Muslims to Christianity, referred to as ‘Christianisation’. This thesis examines how and why Muslim opposition to Christian proselytisation, real and perceived, has intensified since 1998, and to what extent this has affected the resolution of disputes between Muslims and Christians through legal processes. This thesis argues that Muslims are opposing Christian efforts at proselytisation by using democratic state institutions and processes to legitimise violence, to establish laws that are based on Islam with little concern for religious minorities, and to publically condemn and punish converts from Islam to Christianity and those accused of insulting Islam. This opposition has increased since 1998 because of greater opportunities and freedom for all religious groups to practise and express their religion and beliefs. Free and fair elections, and the decentralisation of power to local governments, has created a more competitive political environment and contributed to the politicisation of religion at the local level. Radical Islamists have had a disproportionate voice in public debates on religion and law reform because of government ambivalence towards vigilante actions against minorities. This has affected the extent to which legal disputes between Muslims and Christians have been resolved, with local courts under pressure to issue decisions favourable to the religious majority. In response, Christians have exercised their democratic rights by appealing to independent human rights bodies and participating in the political process through debates, advocacy and political parties. Some churches have initiated judicial review of administrative decisions cancelling their building permits, while others have sought judicial review of laws and regulations that are perceived to discriminate against religious minorities. Through three case studies of litigation relating to religious education, church permits and blasphemy, this thesis demonstrates that Islamists are increasingly pressuring legislatures to pass laws, and the judiciary to make decisions, that discriminate against religious minorities, particularly Christians. This contest over Christian activities, intensified in an atmosphere of greater democratic freedoms, has placed increasing demands on the legal system and the courts to resolve disputes concerning religion. This is particularly problematic at the local level in an era of decentralisation, where the district courts remain weak, corrupt and easily intimidated by radical Islamic groups. This thesis argues that hostility towards Christian proselytisation, real or perceived, is partly responsible for many of the emerging legal disputes between Muslims and Christians in democratic Indonesia. It concludes that Muslim opposition to Christian proselytisation remains a key to understanding and addressing the escalation of legal disputes between Muslims and Christians in Indonesia.
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    Tuan Guru, community and conflict in Lombok, Indonesia
    KINGSLEY, JEREMY JACOB ( 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.