Centre for Indonesian Law, Islam and Society
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ItemEnding Child Marriage in Indonesia: The Role of Courts(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2020)UNICEF and Statistics Indonesia (BPS) estimate that one in nine girls in Indonesia (11 per cent) marry before they have reached 18 years of age, placing Indonesia in the top ten countries in the world for numbers of child brides. This compares with just one in a hundred boys in Indonesia who marry before 18. In September 2019, the Indonesian legislature agreed to revise the 1974 Marriage Law to raise the age at which parents may provide their consent to marry their daughters, from 16 to 19 years, making it the same age for both boys and girls. This legislative amendment implements a decision of the Constitutional Court of Indonesia of December 2018 in a case brought by three women applicants who had been married as girls. However, the amendment to the 45-year old Marriage Law does not alter the fact that there is still no absolute minimum age of marriage set by legislation in Indonesia, because parents are still able to apply to the Indonesian courts for dispensation to marry sons or daughters under the age of 19 years. The paper reviews research findings recently published by the Australia Indonesia Partnership for Justice based on an analysis of over 1,000 marriage dispensation cases and half a million divorce cases in Indonesia. UNICEF estimates that two million Indonesian girls under the age of 19 are married each year in Indonesia. Instead of being the point at which a judge simply grants or denies dispensation for a girl or boy to marry, the 14,000 marriage dispensation cases that currently come to the courts could instead be the point at which a range of integrated counselling, legal, education, scholarship and reproductive health services are mobilised to ensure that girls and boys in Indonesia benefit from 12 years of education and defer having children until they are over 18.. This paper proposes a number of recommendations that would improve the ability of judges to accurately assess the views of boys and girls when considering marriage dispensation cases in Indonesia.
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ItemIslamic Preaching and State Regulation in Indonesia(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2019)Indonesia’s Muslim preachers carry out their mission in a regulatory environment that is liberal when compared with the demanding regulations negotiated by preachers in Brunei and Malaysia. In recent times, however, the Indonesian government has given signs that it might favour a stricter regime of supervision and control. The authors – all of them social scientists with experience in studying Islamic communication in Indonesia – evaluate the pros and cons of such a move. Throughout this working paper, the authors approach preaching as a variety of public communication, but do not assume that preaching messages should faithfully replicate national norms of ethical citizenship. After all, preaching is communication oriented to Indonesians in a specific context, namely the context created in their routines of Islamic worship and learning. The authors provide an overview of social and political contexts for Islamic preaching, and examine the norms and rules that currently constrain preaching, referring both to Islamic norms as well as Indonesia’s positive law. The paper’s recommendations confirm the appropriateness of the low level of regulation traditionally applied to Islamic preachers, and encourage the government to be more sensitive to the ways in which the policies of Indonesian governments provide models for preachers about how the nation’s diversity should be treated in public communication.
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ItemNormalising Intolerance: Elections, Religion and Everyday Life in Indonesia(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2018)Indonesia was built on the premise of pluralism, as enshrined in the state ideology, Pancasila but tension over the relationship between religion and the state has always been present. Recently, ‘othering’ along primordial lines became a prominent part of political and social discourse. During the 2017 Jakarta elections, the country saw divisive public debates and mobilisation, anchored in the intersection of politics and faith, driven by intolerance and primordialism. Having ignored the issue for decades, most Indonesians were caught off-guard. Why did this happen, and what does it mean for Indonesian democracy? In this paper, Dr Hamid looks at the every-day lives of Indonesians and asks what has allowed religious intolerance to take centre stage?
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ItemThe Second Decade - Looking Back, Looking Forward: Women’s Access to the Religious Courts of Indonesia(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2018)Reflecting on over a decade of collaboration that has contributed to more than a million more women accessing the Indonesian family courts for Muslims known as the Religious Courts, this paper considers the elements that contributed to the results and what is important for programmes that prioritise women’s access to justice and, in particular, access to the formal justice system. The authors also look forward and address changes needed in the coming decade to further accelerate improvements in women’s access to the courts and address the quality of service they receive. Six concluding reflections are offered, summing up some of the striking lessons. These: include: the importance of inclusive (and sometimes unlikely) networks or coalitions that support reform; the need for research and knowledge publications that lay an evidence base to present to national agencies that control budget resources; the value of adequate time to trial approaches, building trust to show results; and the importance of paralegals supporting women and girls to access the formal justice system. An earlier version of this paper was presented by the authors at the World Congress on Family Law and Children’s Rights in Dublin in June 2017.
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ItemDemand-Side Constitutionalism: How Indonesian NGOs Set the Constitutional Court’s Agenda and Inform the Justices(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2018)Since its creation in August 2003, the Indonesian Constitutional Court’s decisions have legalised the defunct PKI (Partai Komunis Indonesia, Indonesian Communist Party), mandated an open party-list election system, invalidated efforts to privatise the electricity and water sectors, and required the government to formally recognise indigenous faiths. This paper argues that non-government organisations (NGOs) have had a crucial and underappreciated impact in determining both which cases reach the justices, and the content of the Court’s final decisions. It finds that NGOs are responsible for bringing the majority of socioeconomic claims, resulting in some of the Court’s most controversial and far-reaching decisions. In addition, the justices are significantly more likely to quote petitions submitted by NGOs, meaning that the information NGOs include in their briefs is critical in shaping the justices’ understanding of the legal and policy issues at stake. These findings have important implications for rule of law projects in Indonesia. In particular, they underline the importance of demand-side reforms. Donors should consider improving the capacity of NGOs to detect and inform the Constitutional Court about rights violations. They should also consider investing in the research capacities of NGOs as the justices rely heavily upon the information they provide.
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ItemStalemate: Refugees in Indonesia — Presidential Regulation No 125 of 2016(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2018)This policy paper examines Presidential Regulation (Perpres) No 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia, signed by President Joko Widodo on 31 December 2016. This long-awaited regulation reiterates Indonesia’s long-held position on its responsibilities towards asylum seekers and refugees. Perceiving itself as a transit country only, Indonesia attempts to protect refugees but welcomes them only for terminable period. This policy paper analyses the content of this Presidential Regulation, pointing out its strengths and weaknesses, in order to alert policy-makers to the remaining gaps in the protection of refugees. Although it makes some progress in regard to rescuing refugees in emergency situations, our analysis concludes that the Presidential Regulation still lacks substantial commitment to the effective protection of refugees. Rather than offer any durable solution for asylum seekers and refugees staying on in Indonesia, the current policies create ‘permanent temporariness’. Not only are resettlement options in safe third countries shrinking, but voluntary repatriation to their conflict-ridden countries of origin is often not feasible. So long as local integration into the Indonesian society, which the United Nations High Commissioner for Refugees (UNHCR) would like as a third durable solution, is not an option, refugees and asylum seekers will continue to suffer the most in the current stalemate.
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ItemCombating Corruption in Yudhoyono's Indonesia: An Insider's Perspective(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2016)Combating corruption in Indonesia is not an easy task, even for a president. Professor Denny Indrayana shares his own experience of just how complicated it was. He analyses the Yudhoyono government’s efforts to protect the Indonesian Corruption Eradication Commission from attack by its many enemies, including corruptors. He argues that Yudhoyono tried hard to beat corruption and had some successes but many basic problems persist. In particular, the corrupt political landscape continues to make the war against corruption extraordinarily difficult.
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ItemSentencing People-Smuggling Offenders in Indonesia(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2016)Against a backdrop of massive global displacement, facilitators of irregular movements (‘people smugglers’) have become a centre of attention in public discourse, which often wrongly deems them to be solely responsible for the hardship asylum seekers experience during their journeys in search for effective protection. Australia and Indonesia are at the forefront of combatting people smuggling in the Asia-Pacific region, often at the price of undermining humanitarian protection and increasing harm for asylum seekers and refugees. This Policy Paper examines the sanctions applicable to people smuggling after it was defined for the first time as a criminal offence in Indonesia, in May 2011. Based on a sample of Indonesian court decisions in 99 people smuggling cases between May 2011 and October 2015, it analyses the socio-economic profiles of offenders, including their age, gender, citizenship, origin and religion, previous employment, and their roles in people-smuggling operations. The data also provides information about charges laid against accused people smugglers and the severity of sanctions handed down by the courts. Using this data, the policy paper provides a picture of recurring patterns within people-smuggling operations in Indonesia.
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ItemThe Hidden Driver of Deforestation: Why Effecting Reform of Indonesia's Legal Framework is Critical to the Long-term Success of REDD+(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2016)In 2015, the state parties to the United Nations Framework Convention on Climate Change (UNFCCC) agreed a mechanism that could be deployed by developing country governments to create economic, social and environmental incentives to reduce greenhouse gas emissions through avoiding deforestation and forest degradation, called REDD+. Countries around the globe have commenced the process of implementing REDD+, including Indonesia. Indonesia introduced a dedicated REDD+ Agency, regulations on the topic, and made policy progress in key areas of REDD+. The legal and policy framework supporting REDD+ is, however, in a state of flux, after the legal and bureaucratic infrastructure put in place to support it was recalibrated following the election of President Joko Widodo in 2014. Given this uncertainty, this paper assess Indonesia’s existing legal framework for REDD+ and outlines some legal strategies that could be implemented to revive the REDD+ policy process in Indonesia.
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ItemThe 2014 Indonesian Elections and Australia-Indonesia Relations(Centre for Indonesian Law, Islam and Society, University of Melbourne, 2014)Joko Widodo’s election in 2014 as Indonesia’s seventh president reflects a mood of change from Susilo Bambang Yudhoyono’s Indonesia. On the campaign trail, Widodo addressed this mood for change with a populist appeal to voters as a politician who listened to their concerns and would work to make their lives better. His greatest challenges as president come domestically. On this front, he must demonstrate to voters that unpopular decisions such as raising fuel prices are ultimately in their interests. He must also live up to his pledge of a new way of doing politics, despite appointing a cabinet broadly similar in composition to that of his predecessor. Internationally, Jokowi must answer expectations for a more influential Indonesia, but can do so by maintaining substantial continuity in Indonesia’s foreign policy settings. Nevertheless, Australia should not interpret the likelihood of continuity in Indonesia’s international standing and orientation as justifying a status quo approach to bilateral ties.