By Heather Blakeman, Juris Doctor Candidate (2015), Northwestern University School of Law
The Supreme Court of the Republic of Indonesia is the judicial arm of the state, maintaining the court system established by the constitution of Indonesia as an independent branch of government. According to Fifiek Mulyana, an Indonesian Supreme Court and judiciary reform expert and 2013 Eisenhower Fellow, although the legitimacy of the Indonesian constitution is neither substantially challenged in the courts nor in society, the judicial branch nevertheless lacks the adequate respect needed to function fully as the protector of the rule of law.
In 1945, the end of the Indonesian colonial period ushered in a sense of unity throughout the country. After the fall of Japanese rule during World War II, future president Sukarno and future vice-president Hatta, among other nationalist leaders, participated in the Agency for Investigating Efforts for the Preparation of Indonesian Independence, a committee created to draft the constitution. The 1945 constitution established, among many other provisions, the Indonesian judicial system and limited separation between the executive, judicial, and legislative branches. As a national leaderafter he led the independence movement, Sukarno chaired the drafting committee and lent great legitimacy to the constitution as a national figure and hero. The constitution was celebrated as a victory of independence and as a legal framework for the budding Indonesian government.
However, severe problems with the application of the constitution existed, particularly within the judicial system. Although the constitution established an independent judicial branch, a centralized executive power exerted great control over the courts and their decisions. President Suharto, president of Indonesia from 1967 to 1998, established a “New Order” regime, characterized by a corrupt and powerful executive branch. According to Mulyana, the New Order usurped the independence of the courts and the people of Indonesia lost great respect for the judicial branch. Judges were not viewed as employing their independent, legal judgment but rather as catering to the demands of the President. Groups favored by the executive, such as a few large corporations, were consistently and systematically favored by the courts to the detriment of their opponents, often small businesses and individuals.
The reform movements in 1998, the so-called “Reformasi,” however, offered new legitimacy to the constitution and to the judicial branch. President Suharto stepped down in 1998, when severe economic crisis and widespread unrest forced his resignation. From 1999 to 2002, the legislative branch passed four waves of constitutional amendments, drastically democratizing the government, including a constitutional court established to safeguard the constitution. The creation of the constitutional court legitimized both the judicial and constitutional systems by offering a systematic mechanism to review the constitutionality of laws, to resolve disputes of constitutional jurisdiction between the branches of government, to review election results of the newly established democratic election system, and to impeach the president or vice-president when necessary. The reformed constitutional amendments also established the Judicial Commission, which has the authority to appoint justices to the Supreme Court. Finally, the reduced power of the executive branch allowed judges to base legal decisions on sound legal principles without fear of repercussion. The Reformasi period, from the perspective of Mulyana and the judiciary, enhanced the legitimacy of the constitutional and judicial systems by increasing separation between the executive, legislative, and judicial branches and by encouraging citizens to exercise their rights in the courts, knowing their claims are more likely to be heard and resolved legally.
There remain, however, challenges to the reformed judicial system. Residual distrust of judges from the New Order period and an overloaded judicial system continue to challenge the legitimacy of the judiciary. According to Mulyana, heightened respect for the judiciary is essential to protect the legal authority of judicial opinions and the political authority of the courts, and to encourage citizens to bring their legal claims for resolution in the courts. As part of a judiciary reform team, Mulyana seeks to remedy this problem by implementing judicial training in the Supreme Court of Indonesia. In her view, inconsistent outcomes among similar cases, coupled with minimal training requirements to become a judge (four years of post-grade school legal education and two years of training in the Supreme Court judicial candidate program) have led, among other factors, to decreased respect for the judiciary. In response, Mulyana has helped to develop a 25-year Blue Print for the Supreme Court judicial training center, to encourage judges to continue their legal education throughout their tenure on the bench. The program, she hopes, will increase the legitimacy of the courts, particularly of the Supreme Court, by ensuring that qualified judges give consistent opinions.
Continued improvement of the judicial system of Indonesia will give effect to the rights granted to the citizens in the constitution and protect the separation of powers among the branches of government. Though there is no easy path to such institutional reform, reformers like Mulyana working within the system give hope that systematic improvements will be implemented to increase consistency within the courts. If such reforms are successful, they are likely to reach Mulyana’s goal: Creating a system that consistently and legally protects individual rights and thus will be more likely to be viewed as legitimate by the people it purports to protect.
The author would like to extend her gratitude to Fifiek Mulyana for her time and valuable insight.
For further reading, see “From Reformasi to Institutional Transformation: A Strategic Assessment of Indonesia’s Prospects for Growth, Equity, and Democratic Governance” by Anthony Saich et al., Rajawali Foundation Institution for Asia of the Ash Center for Democratic Governance and Innovation at the John F. Kennedy School of Government at Harvard University.