Countries at the Crossroads 2006 - Indonesia

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Indonesia has been dramatically transformed since President Suharto's government collapsed in 1998. From being a society in which an authoritarian regime severely constrained political expression and organization, in little over a year Indonesia became a vigorous multiparty democracy with a vibrant media and civic life. However, the democratic transition was marred by a series of violent communal and separatist conflicts. Corruption scandals rocked successive governments. Government institutions often proved ineffective as they struggled to respond to the many challenges of Indonesia's political transition and the severe economic crisis that began in 1997 and from which the country has still not fully recovered.

Since late 2003, political reform has continued, albeit not at the dizzying pace of the immediate post-Suharto years. In April 2004, the second post-Suharto legislative elections were held, producing a national parliament dominated by seven major parties. Following a fourth round of constitutional amendments in 2003 (the first round was in 1999), the first direct election by voters of the president and vice-president also took place in 2004 (previously they had been chosen by members of the People's Consultative Assembly, or MPR). The successful candidates, winning with 61 percent of the popular vote in a second round of voting in October 2004, were the former general Susilo Bambang Yudhoyono and his running mate, Jusuf Kalla, who campaigned on a platform of combating corruption, restoring economic growth, and improving government services. The principle of direct popular elections was also applied for the first time for choosing heads of regional governments in provinces and districts. About 200 such elections were held in 2005, with more to follow in coming years.

Other new bodies mandated by the reform process have come into being, including a Constitutional Court (established in August 2003), an Anticorruption Commission (December 2003), and a Regional Representative Council (DPD), a kind of upper house for Indonesia's parliament, albeit one without strong powers (its members were elected in the April 2004 elections).

Indonesia is no longer ruled by an authoritarian government that systematically restricts political participation and resists efforts to make it accountable, as was the case in the Suharto years. Instead, the political system is open and democratic in its basic structures, and multiple actors compete to assert influence. Despite the restructuring of the political architecture, however, less progress has been made in transforming the modalities of political behavior or the inequalities and attitudes that underpin them. Many of the country's democratic institutions function poorly or are sanctuaries of undemocratic and abusive behavior. Abuse of public office for private gain remains endemic. There is no longer a systemic authoritarian blockage to reform at the top, as in the past, but corrupt relationships between powerful private actors, government bureaucrats, politicians, and security officials infuse the political system and undermine it from within. The Yudhoyono government has promised to pursue political reform and tackle corruption, but given this context, even the most determined government would face enormous challenges in pursuing these goals.

Moreover, the political challenges are unevenly distributed across the country. A far-reaching process of decentralization, implemented after 1999, has transformed the country into a political mosaic in which pockets of more accountable and effective governance coexist with regions in which corruption and abuse of power are virtually unchecked. The problems have been especially great in areas that have experienced civil conflict. In the years following the collapse of the Suharto regime in 1998, previous separatist conflicts erupted with renewed strength in Papua and Aceh, and communal conflicts occurred in, among other places, Maluku (the Moluccas islands) and Poso, Central Sulawesi. In these areas, governance problems of all kinds have been amplified, and security forces have committed egregious human rights abuses. In the period covered by this survey, conflict in Maluku and Poso declined in intensity. In Aceh, conflict first dramatically peaked with the declaration of a military emergency by the government in May 2003, but then sharply declined following the December 26, 2004, Indian Ocean tsunami and successful peace talks between the government and the Free Aceh Movement.² In Papua, amid imperfectly implemented central government political concessions, popular distrust of Jakarta remains high, and there are intermittent violent incidents, but large-scale violence has not erupted.

Accountability and Public Voice – 4.70

The most dramatic change in Indonesian politics has been the rapid and successful institutionalization of elections as the means of appointing governments. The year 2004 witnessed several further milestones in this regard: the second democratic legislative election since the fall of Suharto; the ending of reserved military and police seats in legislatures, meaning that legislative bodies are now entirely elected; and amendments to the Law on Regional Government, paving the way for the first elections of heads of regional governments in 2005. Under Indonesia's electoral laws, legislative and executive elections are held on a five-year cycle, all citizens over 17 years of age may vote, and elections are supervised by an independent General Elections Commission.

Reports of irregularities were common in the various national and regional elections in 2004 and 2005, including intimidation of voters, attempted vote buying, and, especially, fraud in vote counting. However, the level of such irregularities appears low compared to other post-authoritarian countries in Southeast Asia such as Thailand and the Philippines. Electoral authorities moved to punish those responsible and, in several cases, ordered recounts or repeat votes. Many domestic and international independent electoral monitoring groups observed the polls and declared them free and fair.

Nonparty candidates are not allowed to run in legislative elections (except for the less important DPD). Registration requirements for political parties are relatively stringent; as a result, of 237 parties listed with the government in February 2003, only 24 eventually passed verification.³ The most onerous requirement is that parties must show they have branches in at least half the districts in half the provinces, a rule designed to exclude local parties perceived as threatening to national unity. The registration rules are applied fairly, however, and once parties have successfully registered, they have equal campaigning opportunities.

Institutionalization of open elections offers the opportunity for effective rotation of power. To a large degree that opportunity has been exercised. There was considerable turnover in legislatures in the 2004 elections (for instance, representation of former President Megawati Soekarnoputri's PDI-P party fell from 154 seats to 109 seats in the national legislature), and new players were elected to executive posts. However, a combination of highly fragmented party representation in legislative bodies, few substantial policy differences between parties, a pervasive culture of money politics, and a tendency for de facto grand coalitions when dividing up executive power, has tended to limit voters' choice in practice. Political parties competed during elections, but at the national level they colluded and formed party cartels once in power.⁴ At the local level, the parties were often so weak that they allowed independent figures, often with only minimal links to the parties, to dominate executive office.⁵

These trends were especially visible prior to 2004, when heads of the executive were elected by party representatives in legislatures rather than directly by citizens. Instead of leading to competition between candidates with clearly delineated policy alternatives, this system frequently produced opportunistic horse-trading, alliances of convenience, and vote selling for corrupt payments. Winning candidates for executive positions often did not represent the largest parties but were those with the most money and strongest bureaucratic networks. The election of Susilo Bambang Yudhoyono, and of many new regional heads, suggests that direct popular elections provide better avenues for dissatisfied voters to replace their governments. However, there are still elements of continuity. For instance, Yudhoyono's cabinet includes representation of almost all major parties, continuing the party cartel approach. A requirement that candidates in direct elections at the local level be nominated by parties with a minimum representation in the relevant legislative body has produced a tendency among parties to auction nominations to the highest bidders.⁶ Overall, the pervasiveness of corruption means that oligarchic business interests exercise a preponderant influence on parties, legislatures, and the executive.

The influence of money politics has been a matter of considerable public concern in Indonesia, and regulations limit funds that individuals and companies may provide to political parties and candidates, as well as require parties to disclose their finances in a timely and transparent manner. However, members of corruption watchdog organizations and the General Election Commission itself have strongly criticized these regulations for containing loopholes and lacking sufficiently tough sanctions.⁷ The result is that political parties often remain beholden to powerful donors.

There have also been efforts to improve government accountability, although they have been less successful than the reforms to the electoral system. Since 1999, Indonesian lawmakers have entrenched the separation of powers principle in the constitution and designed mechanisms to enable the executive, legislative, and judicial branches of government to oversee and hold each other accountable. A major step in this regard was the establishment of the Constitutional Court in August 2003, which among its several powers has the authority to determine the constitutionality of laws and declare them invalid. The court has thus far struck out provisions of several laws, including an attempt to limit the court's own authority to review laws to only those passed since 1999, as well as a prohibition on former members of the Communist Party running in elections and another allowing retroactive punishment of terrorism offenses. Previously, no effective mechanism had existed for determining whether the legislature, in passing laws, was submitting to the limits on its power set out in the constitution. By providing such a mechanism, the Constitutional Court has the potential to become a foundation for the rule of law.⁸

The record of legislative bodies in scrutinizing the executive at national and regional levels is mixed. Democratization has invigorated the legislatures and, on some issues, legislators have been fierce critics of government on all manner of topics, ranging from privatization of government assets to instances of high-level corruption. On the whole, however, the dominant trend has been rent-seeking rather than monitoring, with legislators using legislative review to extort bribes from government officials.⁹

In principle, members of the civil service are selected, promoted, and dismissed on the basis of open competition and merit. In practice, corrupt payments and connections are often crucial in recruitment and career advancement. The local press has reported on the role of brokers who charge fees to secure places for applicants during civil service recruitment drives, even detailing the prices for admission to more lucrative departments.¹⁰ The new government has recognized the problem and encouraged the public to report bribery cases. However, the practice remains widespread.

Although the political influence of well-connected business and bureaucratic groups remains dominant, Indonesia's democratic transition has also seen a dramatic widening of space for political engagement and monitoring by civil society. A broad range of groups can testify and comment on pending government policy or legislation, and civil society groups beyond Jakarta have especially flourished. However, their influence varies greatly, depending on the nature of the interests arrayed against them. There have been notable successes. For example, a law on domestic violence passed in September 2004 was the culmination of years of lobbying by women's organizations. Yet, when they confront powerful vested interests (for instance, when lobbying on bills dealing with defense and security), civil society groups are less influential.

To a large degree, nongovernmental organizations (NGOs) are free from legal impediments and onerous requirements for registration. Under Indonesian law it is relatively simple to establish a yayasan (foundation), which is the legal form taken by most NGOs. Funders of civic organizations and policy institutes are likewise mostly free of pressure, although the government intermittently circumscribes foreign funding agencies and NGOs in conflict areas such as Papua and Aceh.

Another sphere that has seen dramatic progress is media independence and freedom of expression. The Suharto government's onerous licensing procedures for media outlets were abolished, as was direct censorship of media content. The principle of press freedom is now enshrined in law, and the country is home to an array of vigorous media outlets, even in regional areas. Generally, the state no longer engages in direct or indirect forms of censorship, nor does it as a matter of policy use funding or other indirect measures to elicit favorable reporting. Private citizens have unrestricted internet access.

However, there are exceptions to the generally favorable climate. For instance, government media intervention persists in conflict areas. When the government declared a military emergency in Aceh in May 2003 (which continued until May 2004, when it was replaced by a civil emergency until May 2005), it imposed extensive controls on journalists.¹¹ Another cause for concern has been government efforts to exert control over the broadcast media. On the basis of a controversial 2002 law on broadcasting, in late 2005 the government issued four regulations that, inter alia, granted the government the power to issue and revoke licenses and blocked local media from directly relaying news programs from foreign providers (a staple of many local radio stations), prompting protests from associations of private television and radio broadcasters.¹²

While official censorship has become exceptional, major threats to press freedoms derive from the corrupt nexus between private interests and state officials, especially at the local level. There are frequent reports of journalists suffering violence and intimidation by security officials or private actors (especially preman, or gangsters) when they cover corruption, land disputes, or similar issues that involve major financial interests; such reports are rarely followed by criminal investigations or prosecutions.¹³ Another cause for concern is the recourse by powerful interests to civil and criminal defamation laws. In one such case, the politically well-connected businessman Tomy Winata took the respected newsmagazine Tempo and its sister organization, the Koran Tempo newspaper, to court for articles implying he was involved in a fire in Jakarta's Tanah Abang district and gambling in South Sulawesi; the publications were ordered to pay punitively high damages (US$1 million in the case against Koran Tempo), while Tempo's editor was sentenced to 12 months' imprisonment. One obstacle to press freedom is that the judicial system is so corrupt that it cannot be relied on to investigate or decide on such cases impartially. Of equal concern is corruption in the media itself, with envelope journalism (by which journalists are handed envelopes containing cash to encourage favorable reporting) widely practiced by state officials and businesses. Reflecting both progress and significant continuing difficulties, Reporters sans Frontieres places Indonesia 102nd out of 167 in its 2005 Worldwide Press Freedom Index, a considerable slide since the country ranked 57th in the organization's first index in 2002.¹⁴

Restrictions on cultural expression, such as literature and cultural productions, which were a feature of the Suharto era, have largely disappeared (in theory, some literary works by left-wing authors like the famous novelist Pramoedya Ananta Toer remain banned, but the ban is not enforced). However, creative artists, television producers, and filmmakers complain of unpredictable but increasing censorship of images deemed sexually provocative (including dance movements and on-screen kissing) due to pressure from religious groups.

Recommendations

• There is continuing need for election campaign finance reform in order to reduce incentives for corruption and to increase the ability of electoral bodies and monitoring organizations to scrutinize party accounts.
• Anticorruption agencies should be empowered to investigate reports of corrupt payments being made to political parties to secure nominations in legislative and executive elections.
• Criminal libel laws should not be used to control the media, and the authorities should prioritize investigation of instances of physical violence and intimidation against journalists.
• The government should revise the broadcasting law and associated regulations to ensure full independence from government control of electronic media.

Civil Liberties – 3.70

Indonesia has made substantial progress in protection of civil liberties. A remarkably open political climate has replaced the authoritarian restrictions of the Suharto years. In general, the state recognizes the rights of civic, business, and political associations to organize, mobilize, and advocate for peaceful purposes. The constitution establishes freedom of association and assembly, and the state no longer compels citizens to join any association, as it did during the Suharto era. This liberalization has produced a proliferation of civic, political, and religious organizations, most of which would attest to much-improved civil liberties. The government has also liberalized rules concerning trade unions, although intimidatory methods are sometimes used by management, hired thugs, or security forces against labor activists.

Nevertheless, restrictions on political expression remain. Marxism-Leninism is still banned, and it is illegal to "insult the head of state" (a charge under which 14 persons were tried and imprisoned during the Megawati Soekarnoputri presidency). Above all, makar (treason) provisions are used extensively against persons peacefully advocating secession in Aceh, Papua, and Maluku. In July 2004, for example, the regional police chief in Maluku announced that arrest warrants had been issued for 300 members of the Maluku Sovereignty Front (FKM), and several of its leaders were subsequently tried and given long prison sentences.

It will be immediately apparent from this and the following discussion that human rights abuses by security forces have been especially severe in conflict areas during the period covered by this report, especially in Aceh and Papua, where separatist sentiment has been strongest. It should also be noted, however, that the human rights situation in Aceh improved dramatically after the signing of the peace agreement between the government and Free Aceh Movement rebels in mid-2005.¹⁵ In Papua, by contrast, the central government often appears indifferent or even hostile to local aspirations and has interpreted key elements of its own Special Autonomy Law very narrowly. This dynamic has fostered a climate in which political tensions, violent demonstrations, and abuses by security officers remained a feature in Papua, while the peace process achieved remarkable success in Aceh.¹⁶ An important conclusion is that two of the most important steps the government can take to improve civil liberties protection in Indonesia are keeping the peace process on track in Aceh and engaging in serious dialogue with local leaders in Papua, with a view to responding positively to local aspirations for greater autonomy.

In addition to harassment of groups espousing secession, there are reports of less systematic maltreatment of other political activists, especially when they threaten the interests of well-connected business or bureaucratic groups in the regions. Physical attacks by thugs hired by such groups or individuals have occurred, with targets including human rights groups critical of military abuses, labor activists, and peasants involved in land disputes.¹⁷ In September 2004, a noted human rights activist, Munir, was murdered by arsenic poisoning while on a flight to the Netherlands. A court in December 2005 found a Garuda airlines pilot guilty of the crime; the presiding judge implied the killing was part of a conspiracy involving the State Intelligence Agency, BIN. More generally, the state sometimes fails to protect citizens from abuse by private actors; for example, some police and security officials collaborate with criminal elements involved in extortion and protection rackets.

The picture is similarly mixed with respect to public protests, which have become a regular feature of political life. Citizens are required by law to notify police when they seek to protest; authorities in most cases merely authorize and monitor them. However, in some instances, especially in locations distant from the capital, police have responded brutally. Among the more significant cases in 2004-2005 were a protest by farmers in Ruteng, Flores, at which police shot dead six participants, and a violent rampage by police through a university campus in Makassar, South Sulawesi, in May 2004 that left more than 350 persons injured. Police officers are rarely punished in such instances, although the commanding officer in Ruteng was removed from his post and given a written reprimand, and 20 officers in Makassar were removed from their posts or jailed for up to 21 days.¹⁸

There are widespread accusations that officers of the state commit torture, especially in Aceh and Papua and during interrogations of individuals accused of terrorism offenses. Reports are also frequent of violent methods being used during interrogation of ordinary criminal suspects. Prison conditions are generally poor, with overcrowding common. Prisoners commonly must rely on relatives or friends to provide good quality food and other amenities; corruption is rife so that wealthy prisoners are often able to purchase special privileges.¹⁹ However, reports of systematic violence or other vindictive behavior by prison authorities are rare.

Indonesia's criminal procedures code provides protection against arbitrary arrest, and these protections are partially observed, again with the notable exception of conflict areas like Aceh (before the peace process) and Papua, although efforts to improve police practice have even been made in Papua.²⁰ Long-term detention without trial is also unusual. Even during the crackdown in Aceh in 2003-2004, the authorities generally moved quickly to try most of the hundreds of people they arrested (the quality of these trials, however, fell far short of international standards of fairness). In recent years there have been efforts to reform the police, including by improving policing practices and institutional accountability. Serious problems remain, including poor capacity, inadequate numbers, and low salaries that encourage police officers "to seek additional income from other sources, both legitimate and illegitimate."²¹ At best, progress in police reform has been uneven.

When they experience abuses by public officials, citizens have several avenues for petition and redress, including a National Human Rights Commission. However, these avenues are often inaccessible for ordinary citizens (the commission has offices in only two provinces outside Jakarta and is poorly resourced), and collusion and ineffectiveness in the police, prosecutors, and courts often mean effective follow-up is minimal. On the other hand, the new climate of media freedom means that some victims of abuses are able to publicize their cases widely.

The constitution guarantees all persons freedom from discrimination and grants both men and women equal civil and political rights. The Ministry of Women's Empowerment aims to promote gender mainstreaming, affirmative action, and laws and regulations favoring women.²² However, numerous areas of gender discrimination persist, and the state's record in reviewing laws and practices discriminating against women has been mixed. Some substantive progress has been made in recent times, including the 2004 law on domestic violence. On the other hand, when an interdepartmental working group drafted revisions to Islamic civil laws to promote gender equity in marriage, inheritance, and divorce (including by banning polygamy), an outcry from conservative Islamic groups caused the minister of religion to shelve the plan. A draft law on pornography and porno-action being considered by the national legislature as this article goes to press includes provisions that have been widely condemned by women's and other groups for criminalizing women's bodies (for example, one section makes it illegal to "display certain sensual parts of the body," including the navel, waist, breasts, and thighs, in whole or in part).²³ In Indonesia's newly plural political system, groups favoring women's equality, visibility, and free expression have been empowered, but so too have groups that would restrict them. It is not yet clear which will be stronger in the long run, although so far those favoring greater equality have had more victories.

However, there is substantial regional variation. In the context of decentralization of political power to the regions, conservative Islamic forces have been able to influence local governments in several regions to introduce regulations that restrict women's autonomy. In the province of Aceh, which has begun to implement elements of Sharia as part of special autonomy arrangements, Muslim women are obliged to wear Islamic dress in public. Several district governments in other parts of Indonesia likewise require female public servants to wear Islamic dress. An especially controversial example of this trend was the introduction of an anti-prostitution regulation in the district of Tangerang, West Java, that prohibited any person whose "attitude or behavior is suspicious and gives rise to the opinion that s/he is a prostitute" from being in public places; this regulation led to the arrest of large numbers of women.²⁴ Even in areas where such requirements are not embodied in law, the state rarely intervenes to protect women from pressures from conservative groups.

The state has begun to take measures to prevent trafficking of women and children, although they are not yet sufficient to address the massive scale of the problem (UNICEF estimates that 100,000 women and children are trafficked in Indonesia each year).²⁵ Some persons involved in this trade have been prosecuted successfully, although they often receive relatively light sentences, averaging just over three years.²⁶ A law on child protection was passed in 2002 under which some involved in trafficking have been prosecuted. Human rights groups have campaigned on the need for a law on human trafficking, and one is being prepared.

No single ethnic group dominates in Indonesia, meaning that discussion of discrimination on ethnic, linguistic, and cultural grounds must be highly contextualized. The state motto is "unity in diversity," and pride in Indonesia's multiethnic makeup runs deep in official circles and the wider public. Active state discrimination against minority ethnic groups has been minimal. One exception has been ethnic Chinese, who under Suharto were subject to a range of discriminatory rules. Post-Suharto governments have removed several legal impediments to their full equality, but discrimination continues in practice.

During the Suharto era, the central government also frequently rode roughshod over minority indigenous groups, especially in resource-rich areas. Decentralization has enhanced the ability of such groups to assert their interests but has also given rise to official discrimination against minorities (especially migrants from other parts of Indonesia) in some districts. For example, non-indigenous residents in Bali are required to have special Migrant Resident Identity Cards, are charged special fees, and complain about harassment by village officials.²⁷ The special autonomy law for Papua requires that candidates for governor be indigenous Papuans, leading to the disqualification of two candidates in elections in early 2006.²⁸ In many districts, complaints are more frequent about less formal discrimination against migrants, for instance, in recruitment of civil servants or the awarding of contracts for construction work.

Although the state engages in little overtly discriminatory behavior, it also takes little positive action to prevent discrimination in such areas as employment. Members of ethnic and religious minorities sometimes complain of discrimination in employment, and gender is often specified in job advertisements. The government has ratified international conventions prohibiting racial and gender discrimination, but there is no readily available legal recourse for people who feel they have suffered discrimination. Prosecution for discrimination is unknown, and the country lacks an antidiscrimination law. Similarly, although a 1997 law prohibits discrimination against persons with disabilities, the state has taken virtually no action to enforce that prohibition. The state makes almost no effort to provide information about government services and decisions in ways that are accessible to persons with disabilities.

Most Indonesians, including those in public life, value religious pluralism. The constitution guarantees freedom of religion, but it also enshrines the principle of "belief in one supreme God." This has translated into official recognition of only five faiths (Islam, Protestantism, Catholicism, Buddhism, and Hinduism).²⁹ The state generally does not interfere in private religious practices of citizens, including those outside the five officially recognized faiths. However, members of religious groups other than the main five (a small proportion of the overall population) can face discrimination. For example, they may experience difficulties in obtaining national identity cards or official permission to establish houses of worship. Every person is expected to have a religion, and promotion of atheism is formally banned by the criminal code.

There are also instances of state suppression of minority religious practice. The government reserves the power to ban groups it labels deviant sects, usually accusing them of endangering religious harmony, but effectively in order to enforce orthodoxy in the five main religions. In 2005, police failed to protect followers of the Ahmadiyah group when their headquarters in Bogor, West Java, were attacked by a mob of 10,000 who believed the group contravened Islamic teachings. Ahmadiyah, founded by a nineteenth-century Pakistani prophet, has about 200,000 adherents in Indonesia.³⁰ A 1984 Ministry of Religion decree bans dissemination of the groups teachings, and following the attack, local officials in some districts closed Ahmadiyah offices and banned its activities. Physical attacks by mobs on Ahmadiyah premises have continued in some areas.

Advocates of unorthodox practice or belief are occasionally placed on trial and imprisoned, usually under "insulting religion" provisions of the criminal code. For instance, in 2005 a preacher in East Java was jailed for using the Indonesian language in Islamic prayers. Another form of enforcement of orthodoxy occurs in those (relatively few) regions where elements of Sharia are being introduced by regional governments. As noted above, a feature of many such regulations is enforcement of Islamic dress codes for women (especially public servants), but such regulations also sometimes include other elements restricting individual religious autonomy. In Aceh, for example, the tasks of the new Sharia police include ensuring that all Muslims attend Friday prayers and that businesses are closed during prayer times.

There are also various informal restrictions amounting to religious discrimination. Members of religious minorities (especially Christians) have long complained that a 1969 government decree restricted their ability to establish new houses of worship because it required government permits and local community consent, which are not always forthcoming. In 2005, several instances were reported of Muslim mobs closing down irregular Christian churches that lacked authorization. In 2006, the government revised the decree, but a requirement that any new house of worship would have to be supported (in writing) by at least 60 local residents and have at least 90 registered users was criticized by spokespersons of some minority religions as entrenching the restrictions in the 1969 decree. However, the government does not intervene in the appointment of religious or spiritual leaders or in the internal activities of faith-related organizations.

Recommendations

• Articles of the criminal code on treason, hatred-spreading, insulting the president, and insulting religion should be amended or removed to ensure they cannot be used to persecute persons for peacefully expressing political views or practicing their own religious faiths.
• The government should pass an antidiscrimination law providing avenues of legal redress for persons who have suffered from discrimination.
• Laws should be amended to provide equal status to all religious beliefs, not just the five currently recognized; the government should cease all restrictions on unorthodox and minority religious views and groups and provide them protection from harassment and violent attacks.
• Allegations of torture as well as violence by authorities when responding to peaceful protests should be investigated promptly and followed by criminal prosecution and punishment.
• The National Human Rights Commission should be funded to open offices in all provinces and provided with expanded investigatory powers.
• The government should take all steps to ensure successful implementation of the peace process in Aceh and improve implementation of the 2001 Papuan Special Autonomy law, engaging in genuine dialogue with Papuan leaders.

Rule of Law – 2.97

A major challenge confronting implementation of the rule of law in Indonesia is the extreme corruption that pervades the judiciary and other law enforcement agencies. Indonesian commentators speak of a court mafia in which brokers arrange for plaintiffs and defendants to pay bribes to judges, defense lawyers, prosecutors, and police in order to fix the outcomes of trials. The effect is that judicial decisions are routinely bought and sold or otherwise determined by collusion and connections rather than according to legal principles. This results in a system of law enforcement that is both inconsistent and inequitable and lacks the confidence of much of the population.

Undeniably, significant efforts have been made to strengthen the rule of law, including strengthening judicial independence and improving the professionalism of law enforcement agencies. In early 2004, the Supreme Court launched a new blueprint for judicial reform, while the new Constitutional Court has the potential to become an exemplar of judicial professionalism. Numerous individual judges and other officials have struggled to uphold rule of law principles in difficult circumstances.

Indonesia's judiciary is increasingly independent politically. Full responsibility over the administrative and financial affairs of the judiciary was transferred to the Supreme Court from the Ministry of Justice in 2004. Although political intervention is still possible at the highest levels, overall it appears that judges are appointed, promoted, and dismissed in a relatively unbiased manner. Government authorities generally (though not always) comply with judicial decisions. In contrast, training for judges is often perfunctory and poorly resourced, so that "judges do not receive training matching the needs."³¹ The skills of judges, and their ability to administer justice fairly, vary widely between courts and from individual to individual; in many, perhaps most, cases they are inadequate, especially in lower courts.

The law stipulates that every person charged with a criminal offense is presumed innocent until proven guilty. In practice, however, many judges have not shaken off Suharto-era habits of viewing themselves as partners of police and prosecutors, to the great disadvantage of the accused.³² Although hearings are generally public and timely, they are thus often neither fair nor impartial. Judicial monitoring organizations note frequent and often glaring deviations from prescribed procedures in court cases.³³ The criminal procedures code provides that all persons accused of crimes have the right to access to independent legal counsel, and persons able to afford such counsel usually receive access. The code also requires the state to provide free independent counsel to all persons without means who are charged with a crime punishable by a custodial sentence of five years or more; in practice such assistance is rarely provided.

Indonesian corruption and judiciary watchdog bodies have accused prosecutors of being highly politicized and also corrupt and of refusing, avoiding, sabotaging, or prematurely ending corruption investigations into prominent political figures, military officers, and businesspeople. The new attorney general has promised sweeping reform, and the government has achieved some dramatic successes in anticorruption prosecutions (see below). However, there is no evidence that the promised thorough reform among prosecutors has taken place.

Enforcement of property rights and contracts is dependent on the vagaries of the legal system and is thus often inadequate and inconsistent. Theft of intellectual property is widespread. Businesses (especially foreign investors) frequently complain about poor enforcement of contracts and violations of property rights (for instance, illegal mining on company leaseholds) that go unpunished because of official collusion. In fact, the people whose property and contractual rights are least secure are the poor. For example, poor landowners and indigenous communities are vulnerable to land expropriation by developers and/or state authorities, while employers frequently violate workers' employment contracts with impunity.

In sum, although the Indonesian constitution provides equal status before the law, effective access to justice is often determined by wealth and political connections. A World Bank study on access to justice for village people found that "Formal justice institutions – the police, prosecutors and courts – are [viewed as being] biased and remote. As a result, many choose to bury their grievances instead of seeking redress."³⁴ Public officials are rarely prosecuted for abuses of power or other wrongdoings.

Although they espouse human rights principles, security forces are generally not respectful of these rights. Some police and military personnel have been punished by military courts and other tribunals for using violence against civilians. However, those punished are usually junior, their crimes are often relatively minor, and their punishments are invariably light. Notably, all senior military officers who were tried by ad hoc human rights courts for abuses committed during the Suharto era or during East Timor's transition to independence in 1999 have been acquitted, either in the first instance or on appeal. Thus, while the security forces no longer enjoy complete impunity for human rights abuses, they have something close to that status.

Like past post-Suharto governments, Susilo Bambang Yudhoyono's government has promised sweeping military reform. In some areas there has been progress (e.g., winning military agreement to the Aceh peace process), but no substantive new reforms have yet been implemented. Somewhat more progress has been made in reforming the police force, for example, by the introduction of a new community police program, supported by international donors.³⁵

In theory, security forces, including both the military and the police, are now subject to civilian control. Certainly, they do not exercise direct influence in politics as they did under Suharto. Active military officers have been removed from government posts and legislatures. Other measures have been taken to reform the security sector, including separating the police from the military and thus in theory reducing the military's role in internal security. In practice, however, it has proved difficult for the legislative and executive branches to carry out meaningful oversight of the armed forces (the police are marginally less problematic). Civilian legislators and bureaucrats lack the skills, inclination, and confidence to scrutinize military budgets and behavior. As a result, the military has almost complete autonomy in organizing its internal affairs and is virtually unchallenged when determining security policy.

Ineffectiveness of civilian control is based on two deep foundations. The first is continuation of the military's territorial structure, by which military forces are distributed throughout the country in a system of commands that shadow civilian administrative structures at every level. This arrangement provides military officers with extensive opportunities to become involved in local political and economic affairs. Attempts to reform this structure, which began in the early post-Suharto period, have stalled.

Second is inadequate state funding of the security forces. Only an estimated 30 percent of security force funds are provided by the state budget.³⁶ Security officers raise the remainder through a variety of legal, semi-legal and illegal business activities, ranging from providing security services to large multinational companies in the mining sector to involvement in protection rackets, smuggling, prostitution, drug-dealing, and gambling. With security forces responsible for raising much of their own funds, the line between public and private interests in the forces becomes blurred, security officers are drawn into criminal activities (so much so that violent turf wars between police and army units sometimes occur), and government loses its ability to engage in effective oversight. The product is a security force that is still largely a law unto itself whose members are rarely held accountable for abusing office for personal gain. The 2004 Armed Forces Law requires military businesses to be transferred to the government within five years. The new defense minister, Juwono Sudarsono, has tried to implement this provision; senior officers, however, insist that the military should keep control of cooperatives and other bodies primarily concerned with soldiers' welfare, which could amount to as many as 197 of the military's 219 businesses.³⁷

Recommendations

• The government should accelerate efforts to take control of all military businesses, criminalize direct payments by companies and other private actors to the security forces, and eventually provide full funding of all security force activities from transparent budgetary sources.
• Stalled plans to reform the military's territorial structure should be restarted, with a view to its eventual abolition.
• Priority should be placed on continuing police reform, especially improving police accountability and introducing community policing programs.
• Using the Supreme Court reform blueprint as its basis, the government should support efforts to reform the judiciary and eliminate the court mafia that subverts the justice system. Training of judges should be improved and expanded.

Anticorruption and Transparency – 2.45

Corruption has been the bane of Indonesia's political transition. In 2005, Transparency International in its annual Corruption Perceptions Index ranked Indonesia as one of the most corrupt countries in the world, at 147th out of 159 countries surveyed.³⁸ A survey of 1,000 expatriate businesspeople in 2004 conducted by the Hong Kong-based Political and Economic Risk Consultancy (PERC) rated Indonesia as the most corrupt country in Asia.³⁹ However, although corruption is endemic, it is also universally and publicly condemned. Combating corruption is the theme par excellence of investigative media reporting; it was central to the platforms of most parties and candidates in the 2004 elections and is a major public preoccupation of the Yudhoyono presidency. A plethora of initiatives has been announced to overcome corruption as well as some high-profile prosecutions. Still, the magnitude of the challenge is enormous, because corruption is woven into the very fabric of political and economic life.

Arguably, the sociopolitical environment has become less conducive to corruption. Under the triple blows of the Asian economic crisis of 1997-98, a six-year IMF economic rescue package (1997-2003), and low investor interest in subsequent years, successive governments have pursued privatization polices, reduced direct state involvement in the economy, and cut back on bureaucratic regulations and other controls that increase scope for corruption. However, investors and economic commentators still complain about excessive government regulation. Decentralization has increased the scope for new regional players to intervene in economic decision making and extract corrupt payments. The most serious structural problems relate to the internal organization of the bureaucracy and require thorough civil service reform.⁴⁰

Corruption is so deeply entrenched in politics and the bureaucracy that public office is rarely separated from the personal interests of officeholders. No adequate rules govern how public officials should manage their business interests while in office, and no rules require divestment.⁴¹ The government has promised to issue new rules to regulate how businesses owned by officials and their family members participate in state-funded projects and to prevent state officials' misusing confidential information during tender processes, but no concrete progress had been made by the time this report was finalized.

Since the fall of Suharto, successive governments have introduced a battery of new regulations, investigative bodies, and procedures to promote integrity and prevent, detect, and punish official corruption. These include, most importantly, the Corruption Eradication Commission (KPK) established in late 2003, an Ombudsman's Commission, and specialist anticorruption courts. In addition, numerous auditing bodies monitor government expenditure. The Supreme National Audit Agency (BPK) regularly releases estimates of state funds lost to corruption. However, in the words of a World Bank report, "While there is no shortage of auditing, the audit process is flawed, reflecting poor funding of the Supreme Audit Agency, the lack of a modern state audit law, lack of systematic follow up on audit findings, and the inability of audit agencies to successfully prosecute cases of corruption."⁴²

During the first few years of the post-Suharto political transition, frequent accusations arose that political interference and corruption itself were impeding corruption investigations. In recent years, while such accusations still surface, it is generally acknowledged that some progress has occurred, especially in pursuing a handful of high-profile cases.⁴³ For instance, in 2005 two provincial governors (Abdullah Puteh of Aceh and Djoko Munandar of Banten) were convicted of corruption. A supportive public climate persists, with the print media in particular devoting considerable energy to exposing corruption scandals. However, the new investigatory bodies have only begun to scratch the surface, and their work is seriously hampered by lack of resources.⁴⁴

In the private sector, the KPPU (Commission for the Supervision of Business Competition) is empowered to monitor and prevent monopolistic practices and anticompetitive behavior, including bid rigging and other conflicts of interest; however, such conflicts are rife in practice. The organization is widely viewed as ineffective, and many of the cases it has brought to court have failed on appeal, with its investigators blaming judicial corruption.

While some corruption in higher education has been reported, graft appears not to be so pervasive as to seriously corrode academic standards in admissions and awarding of grades. A more problematic area is tax collection. Although a system of internal audits exists, tax collection is widely recognized to be deeply corrupt. Tax officials frequently extort money from businesses in exchange for reducing their tax bills, and millions avoid income tax altogether, with catastrophic effects on state revenues.⁴⁵

Victims of corruption can now pursue their rights through several anticorruption institutions, and the political context is broadly supportive. However, the legal environment is still insufficiently robust to allow anticorruption activists, investigators, and, especially, whistle-blowers to feel secure about reporting cases of bribery and corruption. The law that establishes the KPK requires the body to "provide protection" for witnesses and whistle-blowers. However, anticorruption campaigners argue that this and similar provisions in the criminal procedures code are inadequate, and a long-awaited bill on witness protection is yet to be passed into law.

One of the major challenges in effectively combating corruption is poor government transparency. While legal, regulatory, and judicial transparency has certainly improved since the Suharto era, citizens still face substantial difficulties in gaining access to information about decisions that affect them. Some parts of government at the national and local level have attempted to rectify this problem (for instance, the municipality of Gorontalo has introduced its own freedom of information regulations), but officials still routinely refuse to divulge even basic information by claiming that they are protecting state secrets. A long-awaited bill on freedom of information may rectify this problem, but although it has been in preparation since 2001, it has not yet become law.

The government has made some progress in providing public access to information about the financial assets of public officials. The KPK inherited responsibility for compiling reports on the wealth of state officials from an earlier body. After initially stating it would not provide public access, the KPK decided to continue publishing the reports, and they have been circulated in the media. Critics, however, suggest the KPK in this area lacks powers of compulsion, provides insufficient detail, does not distribute the reports sufficiently widely (for instance, via the internet), and does not investigate when officials on low salaries seem suspiciously wealthy.⁴⁶

The budget-making process has become much more open since the fall of Suharto. The legislature now reviews the process extensively, although legislators lack resources and expertise, and some at least use the review process for extortion. The government is far less adept at publishing detailed, timely, and accurate accounting of expenditures.

A major source of corruption is the awarding of government contracts. The World Bank has called the public procurement system "the principal source of leakage from the budget," citing the existence of "collusive rings" involving bidders and government officials.⁴⁷ In recent years, some marginal improvements have been made in tendering processes, which are generally somewhat more competitive than in the past. Overall, however, the problem is severe in the central government and even more so in the regions, where local government officials, legislators, and private contractors routinely subvert open bidding processes and apportion government contracts on the basis of corrupt payments.

The government does generally enable the fair and legal administration and distribution of foreign assistance. However, bureaucratic impediments can be substantial, notably the requirement that donors must find partner government agencies. In some places, such as Papua, the extent of intervention by local government and security officials can be so great that some donors choose not to become involved (after the December 2004 tsunami, by contrast, conditions for donors became very open in Aceh). Most donors also recognize that significant leakages occur from programs that are channeled through the state bureaucracy.

Recommendations

• The long-delayed bills on witness protection and freedom of information should be passed into law swiftly. A proposed new state secret law should not be so restrictive as to prevent public scrutiny of government expenditure, policies, and performance.
• The government should increase the resources available to anticorruption and probity agencies.
• Reform to the public procurement system to increase transparency and reduce opportunities for collusion is needed.
• A thorough process of civil service reform is required, beginning with review and restructuring of mechanisms for civil service remuneration, recruitment, and promotion in order to reduce incentives for corruption, as well as provision of adequate funding for core government services.

Author

Edward Aspinall is a Fellow in the Department of Political and Social Change, Research School of Pacific and Asian Studies, Australian National University. He is the author of Opposing Suharto: Compromise, Resistance and Regime Change in Indonesia (Stanford University Press, 2005).

Notes

1 The author would like to thank Ross McLeod and Marcus Mietzner for their helpful comments on an earlier draft, and Bima Arya Sugiarto for research assistance.

2 See Edward Aspinall, The Helsinki Agreement: A More Promising Basis for Peace in Aceh? (Washington, D.C.: East-West Center, 2005).

3 Ramlan Surbakti, "Peserta Pemilu 2004" Kompas (Jakarta), 18 February 2003.

4 For an elaboration of this theme concerning national politics prior to direct presidential elections, see Dan Slater, "Indonesia's Accountability Trap: Party Cartels and Presidential Power after Democratic Transition," Indonesia 78 (2004): 61-92.

5 Vedi R. Hadiz, "Power and politics in North Sumatra: the uncompleted reformasi," in Edward Aspinall and Greg Fealy, eds, Local Power and Politics in Indonesia: Decentralisation and Democratisation (Singapore: Institute of Southeast Asian Studies, 2003), 119-31.

6 Marcus Mietzner, "Local Democracy," Inside Indonesia 17 (January-March 2006): 17-18.

7 See comments by Hidayat Komaruddin, head of the official body providing oversight of the election (Panwaslu), in Tempo, 18 July 2004, 54.

8 Selina Wrighter, "Questions of judgement: the new Constitutional Court combines law and politics," Inside Indonesia 81 (January-March 2005).

9 Ross H. McLeod, "The Struggle to Regain Effective Government under Democracy in Indonesia," Bulletin of Indonesian Economic Studies 41, 3 (2005): 367-86

10 Humphrey R. Djemat, "Sorotan Hukum: Bayang-bayang KKN pada Seleksi CPNS," Sinar Harapan, 25 November 2004.

11 Muzzling the Messengers: Attacks and Restrictions on the Media (New York: Human Rights Watch [HRW], 2003).

12 See, for example, "Broadcast rules feared to turn back the clock," Jakarta Post, 3 December 2005; Arie Rukmantara, "Controversial broadcasting regulations to be revised," Jakarta Post, 25 February 2006.

13 In one case, a journalist who was covering corruption in a local election in Nias, North Sumatra, was reportedly abducted by thugs and disappeared: "Police told to act on missing journo," Jakarta Post, 17 October 2005.

14 Worldwide Press Freedom Index, 2005 (Paris: Reporters sans frontieres [RSF], 2005), http://www.rsf.org/rubrique.php3?id_rubrique=554.

15 Aceh: So Far, So Good (Brussels: International Crisis Group [ICG], 2005).

16 Papua: The Dangers of Shutting Down Dialogue (ICG, 2006), 8.

17 On human rights violations in land expropriation, see Tutup Buku dengan "Transitional Justice"? Menutup Lembaran Hak Asasi Manusia 1999-2004 dan Membuka Lembaran Baru 2005, (Jakarta: Lembaga Studi dan Advokasi Masyarakat [ELSAM], 2005), 41-52.

18 Praktik Brutalitas Polisi di Masa Transisi Indonesia: Sebuah analisis kebijakan di Indonesia] (Jakarta: Tim Imparsial, 2005).

19 See Hasanudin Abdurakhman, "Penjara, Wajah Reformasi Kita," Kompas, 25 February 2006.

20 For example, after a violent protest in Abepura, Papua, in March 2006, in which attacks by demonstrators resulted in the deaths of five members of the security forces, commanders took weapons from some members of the police mobile brigade (brimob) and moved quickly to replace them with another unit in order to prevent reprisal attacks against local people (nevertheless, violent reprisals did in fact take place).

21 Indonesia: Rethinking Internal Security Strategy (ICG Asia, 2004), 7.

22 See the ministry's website: http://www.menegpp.go.id.

23 In fact, the restrictions in the draft bill would not only limit women. For example, one passage proposed banning "kissing on the lips" in public.

24 "Perda Kota Tangerang Tak Sesuai KUHP," Kompas, 3 March 2006.

25 "At a glance: Indonesia" (New York: UNICEF, 2005), http://www.unicef.org/infobycountry/indonesia_23650.html.

26 "Indonesia" (Washington, D.C.: Human Trafficking.org, 2006), http://www.humantrafficking.org/countries/eap/indonesia/index.html.

27 "Kegelisahan Para Pendatang di Bali," Kompas, 7 January 2003.

28 Papua: The Dangers of Shutting Down Dialogue (ICG, 2006), 8.

29 Legal ambiguity surrounds the status of Confucianism. Practitioners of this faith complain about extensive discrimination. However, recent presidents have successively assured them that their faith is recognized: Tony Hotland, "Don't target Chinese, SBY tells officials," Jakarta Post, 5 February 2006.

30 Theresia Sufa, "Thousands besiege Ahmadiyah complex," Jakarta Post, 16 July 2005.

31 Country Governance Assessment Report: Republic of Indonesia (Manila: Asian Development Bank, 2004), 112.

32 One judge in a high-profile case involving an Australian citizen accused of drug trafficking in Bali in 2005 told an Australian newspaper that in eight years of sitting on the bench he had never acquitted a defendant in 500 drug cases: "Corby judge never acquitted drug case," TVNZ.co.nz, 25 May 2005, http://tvnz.co.nz/view/news_world_story_skin/567953?format=html.

33 See the series of reports of monitoring of court cases by the Masyarakat Pemantau Peradilan Indonesia (Indonesian Judicial Monitoring Community) at http://www.pemantauperadilan.com/pantau.php.

34 Village Justice in Indonesia: Case studies on access to justice, village democracy and governance (World Bank, 2004), 2.

35 "A new concept of community policing," The Jakarta Post, 18 March 2006.

36 Indonesia Corruption Watch has reported that negligible sums are provided to police officers to cover expenses when investigating cases (Rp. 7.500 for minor cases and Rp. 250.000 for major cases), thus "legitimizing accepting money from outside": Laporan Akhir Tahun 2004 Indonesia Corruption Watch: Hukum dan Peradilan di Indonesia: Masih Berpihak Kepada Koruptor (Jakarta: Indonesia Corruption Watch, 2004), 3.

37 Marcus Mietzner, The Politics of Military Reform in Indonesia: Elite Conflict, Nationalism and Institutional Resistance (Washington, D.C.: East-West Center, forthcoming).

38 Corruption Perceptions Index, 2005 (Berlin: Transparency International, 2005).

39 "Indonesia Masih Negara Terkorup di Asia," Kompas, 3 March 2004.

40 According to the World Bank, problems in the civil service include a "highly opaque and non-transparent system of compensation" for public servants in which "only a small proportion of an official's income comes from his salary" and the consistent underfunding of state budgets, with the result that "government agencies are implicitly expected to find other means of meeting their needs, thus blurring the line between public and private expenditures and encouraging rent-seeking behavior": Combating Corruption in Indonesia: Enhancing Accountability for Development (Washington, D.C.: World Bank, East Asia Poverty Reduction and Economic Management Unit, 2003), vii, 19; see also Ross H. McLeod, "The Struggle to Regain Effective Government under Democracy in Indonesia," Bulletin of Indonesian Economic Studies 41, 3 (2005): 367-86.

41 This phenomenon has become a particular cause of public concern during the government of Susilo Bambang Yudhoyono, as 13 members of the cabinet have backgrounds in business, and their business interests have appeared to benefit from their owners' holding public office. For example, the Bakrie Brothers company, part-owned by the then coordinating minister for economic affairs, Aburizal Bakrie, recorded an extraordinary increase in profits during the government's first year, with 55 percent of its income coming from the government-dependent infrastructure sector: Metta Dharmasaputra and Efri Ritonga, "Berbagai Usaha dengan Kuasa," Tempo, 28 November-4 December 2005.

42 Combating Corruption in Indonesia (World Bank), 19.

43 In his first year in office, President Yudhoyono approved the investigation and/or detention of 67 senior officials on corruption charges: "Presiden Setujui 3 Pejabat ditahan," Kompas, 29 December 2005.

44 In early 2005 it was reported that underfunding meant that members of the Ombudsman's Commission had not been paid their salaries for four months: "Komisi Ombudsman Berutang Rp 400 Juta," Kompas, 9 April 2004. The KPK itself had only about 150 staff members in late 2005. See also Stephen Sherlock, "Combating Corruption in Indonesia? The Ombudsman and the Assets Auditing Commission," Bulletin of Indonesian Economic Studies 38, 3 (2002): 367-383.

45 See "Graft methods uncovered" and other articles in Jakarta Post, 19 January 2006.

46 See, for example, "Ada Usaha Memandulkan Upaya Pemberantasan Korupsi," Kompas, 25 August 2004; "Asal-usul Kekayaan Menteri Perlu Diusut," Kompas, 27 November 2004; "KPK Akan Umumkan Kekayaan Pejabat di Tiap Instansi," Koran Tempo, 22 January 2005.

47 Combating Corruption in Indonesia (World Bank), 31, 32.