[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part II of a five part series, in addition to the Introduction.]
—Herlambang P. Wiratraman, Faculty of Law, Airlangga University
The recent rise of authoritarianism has posed a threat to constitutionalism in Indonesia. Under President Jokowi’s administration, analysts have highlighted the country’s ‘defective democracy’, ‘democratic setbacks’, ‘democratic regression’, and ‘authoritarian turn’. The situation has been characterized by state-led attacks on freedom of expression, criminalization, and the shrinking space for civil liberties. In addition, the ever-expanding state surveillance, extra-judicial killings in Papua and alleged cases of human rights abuses by those linked to the state’s circle of power are all manifestations of growing impunity in Indonesian politics and governance. All this reflects the strengthening of authoritarian politics and autocratic legalism, which has been facilitated by the ‘cartelized political system’ that forms part of Indonesia’s electoral democracy. With regard to the judiciary, there are palpable indications of a return to the kind of ‘law and order’ that prevailed during Suharto’s authoritarian New Order, where the judiciary served as a legitimating tool for the regime.
The evolving symbiotic relationship between authoritarian politics and the judiciary contradicts Indonesia’s constitutional idea of a state based on the rule of law (Negara Hukum). While Suharto’s authoritarian regime was defined by the accumulation of power in the hands of Suharto and his inner circle based in Jakarta, under Jokowi’s administration, the power of the oligarchic network extends to the more decentralized state bureaucracy and manifests in the vested interests of key capital owners. What distinguishes Jokowi’s administration the most is that the role of the oligarchy is actually embedded in various state institutions and takes advantage of the legitimacy of democracy.
In any case, the growing influence of Indonesia’s authoritarian politics on its judiciary brings to light a recurring struggle in Indonesia’s constitutional experience – maintaining judicial independence and integrity. This contribution demonstrates that the obvious consequence of this is reflected in the difficulties of enforcing the rule of law, including human rights protections guaranteed in the 1945 Constitution of Indonesia.
Political Cartels and Human Rights Violations
The cartelized political system is formed through the control of political parties and elections. State patronage is crucial in the workings of Indonesia’s political cartel – influential businessmen, state bureaucrats, military personnel, and police officers form part of the larger network of power, and they are represented in key state institutions to provide political support and security to the President. As a result, governance and state institutions are shaped by the cartel’s social, political, and economic interests.
This network of oligarchic power has driven the state’s lackadaisical attitude in enforcing human rights protection and remedying past human rights abuses in Indonesia. Key law enforcement institutions, such as the prosecutor’s office and the police, are beholden to the President and they continue to be connected to and dominated by these oligarchic forces.
In the past few years, three key cases – the Munir case, the Novel Baswedan case, and the Budi Pego case – have epitomized the structural, institutional, and political challenges in upholding human rights and the rule of law in Indonesia. These cases bring to light Indonesia’s continuing struggles in combating the culture of impunity, especially within the corridors of state power. Not only have there been allegations of evidence tampering, loss or destruction of important documents for trial, and ‘protection’ afforded to alleged violators, the legal process has also become a vehicle for stigmatization and state persecution on the basis of political ideology. For example, victims have been accused of communist associations (this is significant in the context of Indonesia’s political history, given the anti-communist massacre in the 1960s) or pejoratively labeled as ‘Taliban’ or ‘social justice warriors’.
Consider the case of Munir – a human rights activist who died from arsenic poisoning on a Garuda Indonesia flight to Amsterdam on 7 September 2004. Those in the Indonesian circle of civil society and human rights activists believe that Munir was assassinated by politically influential actors. The report of an Independent Fact-finding Team has never been made public, and the Presidential Palace has denied ever possessing such document, even though the Team had submitted documents directly to the President in 2005. The document identified a number of high-ranking State Intelligence Agency officials who are suspected of being involved in Munir’s assassination. A letter from the Ministry of State Secretariat claimed that the state secretariat did not own such information. All this has been used by the state to avoid resolving the Munir case once and for all, despite promises by President Jokowi to protect human rights defenders.
A similar pattern was discernible in the case implicating a former investigator of the Corruption Eradication Commission (KPK), Novel Baswedan, who became the victim of an acid attack. The public prosecutor charged the defendants with assault and demanded only a one-year prison sentence. The judicial process has generated public distrust against the state and judiciary. A number of irregularities in the legal process were also exposed, and the mastermind behind the attack was not revealed by the Prosecutor. Afandi argues that the prosecutors had refused to bring certain witnesses to the stand as they were not included in the case files. This case is crucial in demonstrating the influence and impact of Indonesia’s political oligarchy on the rule of law – Novel Baswedan was a key investigator in a high-profile corruption case involving several high-ranking police officers.
Similarly, the Budi Pego case implicated gold mining activities of certain politically-connected businessmen in Jakarta. Heri Budiawan (Budi Pego), a farmer from Banyuwangi, had actively campaigned against mining activities in the Banyuwangi protected forest area. He was then charged with violating Article 107a of the Criminal Code for promoting communist ideology. In this regard, there was a clear disconnect between the charge and Budi Pego’s environmental protection campaign.
Budi Pego’s trial and subsequent conviction illustrate the ways in which the judiciary can be complicit in upholding repressive laws and enforcing the state’s broader political agenda. Crucially, this case also highlights the significance of local socio-political contexts in shaping legal and judicial processes. In particular, there is a history of anti-communist violence in Banyuwangi, and during the course of the trial, judges faced immense pressures from anti-communist mobs protesting outside the court. The judicial decision demonstrated poor legal reasoning, and evidence of Budi Pego’s alleged communist activities and propaganda was never presented in court. The Supreme Court sentenced Budi to four years imprisonment.
The Judiciary and Oligarchic Politics
As Ginsburg and Moustafa argue, judicial politics in authoritarian states is often far more complex than we commonly assume. Courts help regimes maintain social control, attract capital, maintain bureaucratic discipline, adopt unpopular policies, and enhance regime legitimacy. At the same time, courts also have the potential to open a space for challenging state’s policies, and engage in judicial activism.
In today’s political context, the judiciary’s relationship with Indonesia’s political oligarchs is increasingly being brought to light. The business interests underlying the Budi Pego case, the police corruption scandals that foreshadowed the Novel Baswedan case, as well as the involvement of intelligence generals in the Munir case, are all connected to the political oligarchy today. At the same time, these cases illustrate the workings of Indonesia’s judicial politics in several ways. First, the judiciary has become a legitimation tool for the regime. The judicial processes reflect and accommodate political interests, but at the same time, they also provide important symbolic resources for a broader public propaganda that the formalities of law enforcement are underway. Second, the judiciary serves to institutionalize authoritarian politics. State institutions are subjected to the political power that supports the development of authoritarian politics, from the formation of laws to the enforcement of laws. Third, the judiciary is complicit – directly or indirectly – in strengthening impunity due to the absence of legal accountability for state actors who violate the law and in cases of state-sponsored violence. The upshot of all this is a vicious cycle of violence and human rights abuses, which the state will not be able to control eventually.
In conclusion, it is worth recalling Daniel S Lev’s assessment of the problems of legal and political culture in the Indonesian judiciary. While constitutional and political reforms have given the Supreme Court greater autonomy and an improved status, the judiciary remains hamstrung by immense internal incompetence, massive corruption (including bribery), and misconceptions about judicial independence vis a vis the role of case law in ensuring consistent legal interpretation and application. Unless and until the Supreme Court breaks away from its troubled past and transforms itself as a progressive institution, legal certainty and legal development will continue to be absent in many cases, and government excesses of power may continue to escape rigorous scrutiny.
[Note: An earlier version of this post was presented at a Webinar on Constitutional Struggles in Asia (1 – 3 December 2020). The event was part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore, the College of Law, Australian National University, and the Federal Law Review.]
 Marcus Mietzner, ‘Coercing Loyalty: Coalitional Presidentialism and Party Politics in Jokowi’s Indonesia’, 38(2) Contemporary Southeast Asia (August 2016), 209-232.
 Vedi R. Hadiz, ‘Indonesia’s Year of Democratic Setbacks: Towards a New Phase of Deepening Illiberalism?’, 53(3) Bulletin of Indonesian Economic Studies (2017) 261-278.
 Eve Warburton, Edward Aspinall, ‘Explaining Indonesia’s Democratic Regression: Structure, Agency and Popular Opinion’, 41(2) Contemporary Southeast Asia: A Journal of International and Strategic Affairs (August 2019), 255-285.
 Thomas P. Power, ‘Jokowi’s Authoritarian Turn and Indonesia’s Democratic Decline’, 54(3) Bulletin of Indonesian Economic Studies (2018) 307-338.
 Herlambang Wiratraman, Pemilu dan Neo-Otoritarianisme. Conference Proceeding, the 5th National Conference on Constitutional Law Batusangkar, 9-12 November 2018. (Ed.1., 1. Padang: PUSaKO), p. 98-110.
 Fachrizal Afandi, ‘The Indonesian Prosecution Service at Work: The Justice System Postman’, in Melissa Crouch (ed.), The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019).
 Herlambang P. Wiratraman, ‘Criminalising Justice’, Inside Indonesia (Oct-Dec 2019), 138.
 Tom Ginsburg and Tamir Moustafa (eds.), Rule by Law: The Politics of Courts in Authoritarian Regimes (CUP 2008).
 Ibid, p. 21.
 Björn Dressel, The Judicialization of Politics in Asia (Routledge 2012).
 Daniel S. Lev, Legal Evolution and Political Authority in Indonesia: Selected Essays (Martinus Nijhoff
 Rifqi S. Assegaf, ‘The Supreme Court: Reformasi, Independence and the Failure to Ensure Legal Certainty’, in Melissa Crouch (ed.), The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019), 31-58; Adriaan W. Bedner and Herlambang P. Wiratraman, ‘The Administrative Court: The Quest for Consistency’, in Melissa Crouch (ed.), The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019), 133-148.
 See generally, Adriaan W. Bedner, Administrative Courts in Indonesia: A Socio-Legal Study (Kluwer Law International 2001); Sebastiaan Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse (Cornell Southeast Asia Program 2005).
Suggested citation: Herlambang P. Wiratraman, Political Cartels and the Judicialization of Authoritarian Politics in Indonesia, Int’l J. Const. L. Blog, Feb. 21, 2021, at: http://www.iconnectblog.com/2021/02/symposium-constitutional-struggles-in-asia-part-ii-political-cartels-and-the-judicialization-of-authoritarian-politics-in-indonesia/