Melbourne Law School - Theses

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    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.
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    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.
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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.