Legal and Judicial System

Need to hit points:

 Indonesia’s legal system is a “complex amalgam” of traditional, customary or adat, Islamic and
state law. (It is influenced by the Roman-Dutch civil law system)
 Legal pluralism - to integrate plural communities into the Indonesian nation but is also a source
of conflict, as different common law traditions of different indigenous communities can
contradict each other or collide with state laws.

Suharto’s “New Order” Government

 The Islamic legal principles adopted into the codified state law were mostly restricted to family,
inheritance, or banking law.

Administrative decentralization

 since 1999, Indonesian provinces, municipalities, and districts are permitted to pass Sharia-
based local regulation, peraturan daerah, or “perda,” focusing on moral enhancement
(“morality enchantment”). Religious courts authorized to apply these regulations are subject to
judicial review by the Supreme Court.

 The state court system, possess jurisdiction over criminal and civil law cases, has two additional
tiers:
1. State Courts (pengadilan negara) – district level
2. Court of Appeal – provincial level
 Under the New Order government, courts were essential “instrument of power” and were
deeply integrated into Suharto’s authoritarian style of governance
- This had a lasting effect on the professionalism and capacity of the court system as a whole,
and numerous corruption scandals after 1999 have further tarnished the reputation of the
“Judicial mafia”
 More recently, individual courts of administrative, tax, human rights, and labor disputes have
been established so judges can specialize in a single field of law, but this innovation has also
created institutional friction and jurisdiction disputes
o Problems relating to weak capacity and corruption in the judiciary are also apparent in
Indonesia’s position in international ranking: According to the World Bank’s Rule of Law
indicator, Indonesia ranks seventh among the eleven countries considered, trailing even
Vietnam and the Philippines (World Bank 2017c). In the Corruption Perception Index of
Transparency International, Indonesia has experienced a more positive trend and was
ranked fourth in the region in 2015 (Transparency International 2015)
 The Constitutional Court (Mahkamah Konstitusi, MK) established in 2003 quickly acquired a
reputation as an independent, incorruptible, and efficient institution. Modeled after the South
 Korean Constitutional Court in structure and jurisdiction and after the German tradition of
specialized judicial review, the court has (9) nine judges (Hendrianto 2010).
- The Constitutional Court is responsible for the judicial review of parliamentary laws, the
resolution of constitutional disputes among constitutionally-mandated political institutions,
election disputes and decisions over party bans, and the admissibility of the presidential
impeachment process (Art. 34C.1). Most of the cases heard by the court are election
complaints, followed by cases for judicial review and institutional disputes (see Table 4.6).
Constitutional complaints grant individuals, traditional communities, legal persons, and
government institutions access to judicial review if they feel an act of parliament violates
their constitutional rights
- In its first years, the Constitutional Court developed a strong reputation as a guardian of the
constitutional order. For example, the court’s very first judicial review decision struck down
a clause that would have restricted its jurisdiction to review laws passed after 1999
(Stockmann 2007, pp. 31–33) and has since annulled several criminal law provisions used as
instruments of political repression under Suharto (Mietzner 2010b, pp. 408–409).
- In October 2011, the judges granted an appeal against a revision of the Law on the
Constitutional Court that would have restricted the Court’s authority to review clauses
concerning the Constitutional Court itself and those not explicitly mentioned by an applicant
(ultra petita). On several occasions, the Court has ruled against the government when it
invalidated, in part or in toto, laws deregulating the nation’s oil and natural gas, energy, and
water supply sectors and has declared parts of the national budget unconstitutional
(Stockmann 2007, pp. 53–61; Butt 2009a, p. 2). Finally, in one of its most controversial
decisions, the Court in 2008 invalidated the closed-party list system, a decision that led the
Election Commission to adopt an open-list PR system. This had far-reaching consequences,
as it moved the existing party-centered electoral system to a more candidate-centric system
(Butt 2015, pp. 205–211; Fox 2016).
- Despite its positive track record, there are also some limitations to be mentioned that might
constrain the role of the Constitutional Court as a guardian of a constitutional order based
on the principles of the rule of law.
I. First, court decisions have no effect on ongoing judicial proceedings or past verdicts
based on the respective piece of legislation and present no legal grounds for appealing a
verdict
II. Secondly, the Supreme Court (Mahkamah Agung, MA) reviews all administrative
regulations, executive orders, and court proceedings not under the review authority of
the Constitutional Court. However, the Supreme Court rarely accepts cases concerning
the constitutionality of administrative regulations or presidential decrees (Butt and
Lindsey 2008, p. 256) and has refused to consider Constitutional Court decisions in its
own decisions in several cases.

 The Supreme Court, the DPR’s Committee III for Judicial Affairs, and a presidential commission
each select (3) three justices for a 5-year term that is renewable once (UUD45, Art. 24C.3). The
Constitutional Court then elects a chief justice from their ranks. After their appointment by the
 president, the justices cannot be recalled and hold their office until the end of their term or until
they reach the pension age of 65. The court has full administrative and budgetary autonomy.
Together, these regulations are supposed to secure the court’s independence (Croissant 2010;
Mietzner 2010b).
 Nevertheless, the creation of the Constitutional Court was an overall success. Civil society
organizations (CSOs) have used the court’s lenient criteria for admissibility to hold the
government and parliament accountable for their legislative activity (Fenwick 2008a).
Electoral System and Elections
 Dutch introduced an indirectly elected People’s Council (Volksraad) with limited advisory
powers in 1918, the first general election to the legislature was held in 1955. From 1971
onwards, the New Order regime had regular representative national elections for the DPR
heavily manipulated in favor of Suharto’s Golkar party.
 Revisions to electoral and party laws as well as constitutional reforms in the period 1999 to
2003 introduced generally free and fair direct elections for president as well as for both
chambers of parliament. Since 1999, there have been four rounds of elections for the DPR,
three elections to the DPD, and three direct presidential elections.
Voting Requirements:
- The minimum voting age is 17 years
- married persons can vote regardless of age
(whereas members of the military and the police do not have the right to vote in elections)

Candidates for the presidency, DPR, DPD, and the regional parliaments:
- at least 21 years of age, profess a religious belief and possess a high school degree

For presidential elections: presidential and vice president candidates are elected on one ticket in a two-
round system. Only parties or coalitions of parties that win at least 25% of the national vote or comprise
20% of the seats in the national parliament can officially nominate candidates.

The electoral system: used for the DPR is proportional representation (PR) with closed party lists (1999),
restricted open lists (2004) and, since 2009, open party lists in multi-member
Districts. The election law requires that political parties must have established party offices in at least
three-fourths of all provinces and in half of the districts to nominate candidates for the DPR. to
prevent excessive fragmentation and thereby make it easier to form stable governments, political
parties must surpass a threshold of 3.5% of the total national vote.

The Election Commission allocates seats among those parties that have obtained at least 3.5% of the
national vote using the Hare quota method, while the allocation of remaining seats to political parties is
based on the largest remainder (LR Hare).
For the DPD, candidates stand on an individual basis. Each province returns four members through a
single non-transferable vote (SNTV) system in which each voter has one vote and the four candidates
with the highest number of votes in each district are elected

the General Election Commission (KPU) is responsible for organizing elections at the national,
provincial, municipal, and district levels. Since national and subnational elections are “synchronized,”
altogether, approximately 15,000 seats are filled on a single election day, with the number of candidates
easily exceeding 300,000 (Ufen 2010; Thalang 2005).

Political Parties and Party System

 The electoral system is one of several factors that shaped the development of
Indonesia’s post-authoritarian party system.
 Although most political parties were founded after 1998 (Tomsa 2008, p. 173) and
despite longer-term evolutions in Indonesian religious life that resulted in a “de-
aliranization” (Ufen 2008) of party politics, the origins of some political parties can be
traced to the political streams (politik aliran) that shaped the party system in the pre-
Suharto period (Mietzner 2008).

Herbert Feith’s categorization differentiates five aliran that were represented by a political
party:
1. nationalists (Sukarno’s National Party of Indonesia, PNI)
2. Islam (NU and Masyumi)
3. Javanese traditionalists (Partindo)
4. social democrats (PSI)
5. Communists (PKI)

In Suharto’s, the New Order regime eliminated the PKI and forced the remaining Islamic parties
to merge into the United Development Party (PPP) whereas the PNI was merged with non-
Islamic and nationalist parties into a new party called the Partai Demokrasi Indonesia
(Indonesian Democratic Party, PDI). These two parties, Suharto’s Golkar was the only other
political party allowed to register.

A 1973 ban on all party activities at the local level gave Golkar an edge over the PNI and PPP as
the regime party was represented locally through government officials and Golkar’s
ostensibly nonpolitical member associations.

In 1986, Pancasila was established as the “single basis” (azas tunggal) for all parties and societal
associations, further compressing the ideological spectrum
With the end of the New Order regime, the party system has again expanded. In addition to the
PPP and several other traditionalists (National Awakening Party, PKB), modernist (National
Mandate Party, PAN), and moderate Islamist (Prosperous Justice Party, PKS) parties, there is the
Indonesian Democratic Party of Struggle (PDI-P) of Megawati Sukarnoputri—the daughter of
Indonesia’s first president, Sukarno—which replaced the PDI.

Besides, there are several other parties, including three nationalist parties established or led by
former military officers, such as the Democratic Party of former President Lt. Gen. Yudhoyono
(SBY), the Great Indonesia Movement Party (Gerindra) of retired Lt. Gen. Prabowo, and the
Hanura Party (People’s Conscience Party) of former Gen. Wiranto.

Even though Golkar is still the second-largest party in parliament, it has lost its hegemonic
position, and with each successive election, voters have spread their support across a wider
array of parties.