Constitutional Struggles and the Court in Indonesia’s Turn to Authoritarian Politics

I Introduction

The recent rise of authoritarianism poses a threat to constitutionalism in Indonesia. Such a growth in authoritarian government has conflicted with the development of rule of law in the country, especially in the two decades after the fall of former President Suharto in 1998. The end of Suharto’s administration was followed by constitutional amendments in 1999–2002 which entrenched democratic changes and respect for human rights in Indonesia’s constitution. Additionally, a number of state institutions have undergone fundamental changes such as judicial reform, the strengthening of the presidential system, the establishment of the Constitutional Court and its role in balancing power, as well as other ideal models of the state constitutional system that reflect the development of Indonesian democracy.

However, the situation has changed, especially during Joko Widodo’s administration. Under President Widodo’s administration, which began in 2014, social and political analysts have highlighted the country’s ‘defective democracy’, ¹ ‘democratic setbacks’, ² ‘democratic regression’, ³ ‘democratic backsliding-democratic recession’ ⁴ and ‘illiberal democracy’. ⁵ Some research has noted the return to authoritarian’s models, labelling Indonesia’s transformation an ‘authoritarian turn’ ⁶ and ‘neo-authoritarianism’. ⁷ Fealy has described Indonesia as constituting ‘repressive pluralism, dynasticism and the overbearing state’. ⁸ The situation in Indonesia is generally referred to as the strengthening of authoritarian politics.

In the context of the judiciary, the reality of the operation of law and the courts seems to return to that of Suharto’s authoritarian New Order, particularly in its use of the judiciary as a political regime tool. As argued by Moustofa, laws and the courts can be employed by authoritarian regimes to consolidate and contest democracy itself. ⁹ This phenomenon has been called the ‘judicialisation of authoritarian politics’. ¹⁰ The situation is often characterised by state-led attacks on freedom of expression, increased criminalisation and diminishing civil liberties. ¹¹ In addition, ever-expanding state surveillance, extra-judicial killings such as those which occurred in Papua, ¹² and alleged cases of human rights abuses by those linked to the state’s circle of power, are all manifestations of reduced accountability in Indonesian politics and governance.

Jakarta Legal Aid Institute (LBH Jakarta) launched its 2020 year-end report on legal and human rights issues amid the COVID-19 pandemic and concluded that Indonesian democracy had deteriorated. ¹³ According to the report, President Joko Widodo and Vice President Ma’ruf Amin had issued policies that contradicted their purported democratic principles, especially the protection of civic rights. ¹⁴ The most frequent problems in 2020 were civil and political rights violations, with 273 reported cases. ¹⁵ Violations included impingements on the rights to fair trials, expression, privacy and political participation. Additionally, there were 223 cases involving economic and socio-cultural violations related to education, the right to work, the right to a healthy environment and the provision of other public services. ¹⁶

Even a number of state institutions have been paralysed by the dominance of the oligarch power in the government, which controls formal political processes generated through general elections. Elections are a means of consolidating power, including through political agreements to gain seats and influence in President Widodo’s cabinet. A coalition of political parties Supports the Widodo-Ma’ruf administration, and this coalition is becoming broader. This is especially evident from the proximity of a number of political parties with contestants in the 2019 Presidential Election, especially Gerindra, the party led by Prabowo Subianto, who himself has become the Minister of Defence in Widodo’s Cabinet. This election, although seemingly reflecting the development of democracy, actually reflects undemocratic processes, or non-democratic pluralism. ¹⁷

All these events reflect the strengthening of authoritarian politics and the underpinning of a system of ‘transactional gains’ facilitated by the ‘cartelized political system’ that forms part of Indonesia’s electoral democracy. ¹⁸ As Ambardi has argued, there are five distinguishing features in cartelised party system: (1) the vanishing role of party ideology in determining party coalitional behaviour, (2) promiscuity in making coalition, (3) the absence of oppositional parties, (4) the minimal effect of the election results and (5) the strong tendency of the parties to act as a single group. ¹⁹ Hence, a system of ‘transactional gains’ becomes more embedded in the political system since this party system affected to more general political system, including adopting political cartel friendly policies. These events are not unlike Paul Brooker’s definition of dictatorship: the ‘theft of public office and powers’. ²⁰

Regarding 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. ²¹ Judicial power has become subordinate to executive power. The evolving symbiotic relationship between authoritarian politics and the judiciary contradicts Indonesia’s constitutional goal of a state based on the rule of law (known in Indonesia as negara hukum). ²² While Suharto’s authoritarian regime was defined by the accumulation of power in the hands of Suharto and his inner circle in Jakarta, under President Widodo’s administration the power of the oligarchic network extends to the more decentralised state bureaucracy and manifests in the vested interests of key capital owners. What most distinguishes President Widodo’s administration is that the role of the oligarchy is embedded in various state institutions and takes advantage of the formal legitimacy of democracy. Hence, President Widodo’s administration has politically involved more key elite actors, created multi-layered power relations and shared in numerous vested interests.

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. The obvious consequence of this struggle is reflected in the difficulties of enforcing the rule of law, including human rights protections guaranteed in the 1945 Constitution of Indonesia. In this context, this article addresses issues on how the process of authoritarian political institutionalization through law and the courts has occurred in the two decades after Suharto’s reforms. In addition, it will reflect on how civil society and the democratic movement made it possible to struggle for constitutional rights in the context of Indonesia’s authoritarian politics.

II Cartels and Authoritarian Politics

More than two decades ago, Fareed Zakaria wrote about the rise of illiberal democracy. Since that time, the concept of illiberal democracies has gained prominence in countries ranging from modest offenders like Argentina to near tyrannies like Kazakhstan and Belarus. ²³ According to Zakaria, authoritarian power is born from the growing industry of illiberal democracy, which intensely and regularly oversteps the limits of government power, and deprives citizens of basic freedoms. Countries dealing with this include Hungary, Thailand and Indonesia, who face diminishing democratisation. Their elections that are free and fair, even democratic, provide opportunities for models of illiberal constitutionalism.

Notions of the ‘rule of law’ and ‘human rights' can exist parallel to the erosion of freedom, conflict and competition of ethnic identities, and war propaganda, and perhaps can even smooth the path of increasing capitalist power in a region. The production of laws and regulations legitimize the social-political repression of the citizens of their own nation. The process of creating legislation has increasingly neglected aspects of quality proceduralism, especially in its substance. Substantive control of legislation lies in the vortex of power interests merely avowedly working in the name of political representation of the citizenry. In truth, the political design of the formation of the law deliberately thickens the working fortress’s layer of power, which is limited to meeting the interests of the political economy.

In the Indonesian context, the cartelised political system is formed through the control of political parties and elections. ²⁴ The work of constitutional design is a shortcut to power in an authoritarian system. Two decades after Suharto, the general election system cannot be separated from the political context of the regime, which has been linked to oligarchic power. This creates the character of a cartel political system. Such cartel political systems shape the electoral state administration design, including the political power of democratic citizens. ²⁵ Decisions on election provisions by Indonesia’s Constitutional Court become important political ordinates in sustaining such cartel politics. It is not surprising that 20 years after the Suharto regime stepped down, the democratization of elections has consolidated the power of the oligarchy network and, unfortunately, failed to limit the power of authoritarian politics. In short, today’s election politics shows more about elections as a means of consolidating the power of Indonesia’s authoritarianism in a new form.

Fukuyama explains that a developing democratic process can deteriorate when it is under the influence of cartels and oligarchs. ²⁶ Democracy can become a mere formal procedure. Even though democratic elections were held as a form of leadership succession, elite groups still hijacked sovereignty. The government guarantees the freedom to choose, but the ‘locus’ of sovereignty is still monopolised by a certain elite group. At this point there is a weakening of the rule of law. Deterioration, in the sense of narrowing civil liberties, cannot be separated from the laws and politics of the state administration. When the design of law and constitutional politics creates systematic corruption through transactional politics, money politics and dynastic politics in an electoral democracy, it is not surprising that democratic claims also result in the exclusion of human rights that are increasingly ‘legal’, and the unfortunate legalisation of impunity. Therefore, the social inequality gap has been caused by a crisis of democratic leadership, weak law enforcement, and the potential deterioration of fundamental civil liberties.

Interpreting the negara hukum in his study on the rule of law in Indonesia, Bedner categorized three supporting elements of the rule of law: procedural elements, substantive elements and elements of monitoring mechanisms. ²⁷ Procedural elements include how government and state actions comply with the law (rule of law), fulfil formal legality (the law must be clear and definite in content, easily accessible and predictable, and applied to everyone) and involve consent, which determines or influences legal content and actions. Meanwhile, the substantive elements involve affirming the subordination of all laws and their interpretation to the fundamental principles of justice, the protection of human rights and individual freedoms, efforts to promote social human rights and the protection of group rights. The element of the monitoring mechanism is carried out by an independent judiciary, as well as other institutions that have the responsibility of safeguarding and protecting elements of the rule of law. How can this perspective be seen in constitutional practice? It is easy to see that recently, such elements are carried out with agendas that support the work and the interests of the oligarchic elite in a new form of authoritarianism (or neo-authoritarianism). How has this come to be?

Neo-authoritarianism is defined by He Li as an enlightened autocracy, where a strong leader adopts undemocratic measures to enforce economic development. Law and order is maintained according to the will of the ruler, which is a crucial condition for capital accumulation. ²⁸ During the two decades of reform agendas in Indonesia, the ‘undemocratic’ steps that were undertaken by the political cartel in the elections and the party system were known as the ‘cartelized party system’, ²⁹ and in Widodo’s era as a ‘cartel coalition’. ³⁰

The transition to an authoritarian government system is closely connected to how a country’s democracy has been weakened. According to Levitsky and Ziblat, ³¹ the four indicators of authoritarian behaviour include rejection or weak commitment to democratic rules of the game, denial of the legitimacy of political opponents, tolerance or advocacy of violence and willingness to limit civil liberties against opponents, including the media. In addition, when authoritarian leaders take power, democracies face a critical test: will the autocratic leader subvert democratic institutions or be constrained by them? Levitsky and Ziblat wrote that institutions alone are not enough to constrain elected autocrats. Constitutions must be defended by democratic norms, and when they are not, the constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Institutions become political weapons. This is how elected autocrats subvert democracy, and as Levitsky and Ziblat argued, such subversive behaviour includes packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or coercing them into silence), and rewriting the rules of politics to tilt the playing field against opponents. These practices are the tragic paradox of the electoral route to authoritarianism, where democracy’s assassins use the very institutions of democracy — gradually, subtly, and even legally — to kill it. ³² According to Juan Linz, authoritarian regimes are political systems with limited and irresponsible political pluralism, which imposes their vested interests. The model of leadership in an authoritarian system of government, led by dictators, is a government regime that represents the preferences of groups of people, or does not implement democracy, and grants privileges to select elites. ³³

In his article ‘Portents of Pluralism: How Hybrid Regimes Affect Democratic Transitions’, Jason Brownlee discusses ‘hybrid regimes’, namely, countries where there are acts of fraud in regular elections, and the state itself hinders the people’s attempts to get a fair and free democracy. ³⁴ These countries generally have many problems, such as governments that exert pressure on political opposition, a non-independent judiciary, rampant corruption, violations of freedom and pressure aimed at the press, and a weak rule of law. Brownlee also raises how larger defects in backward political cultures (such as low levels of political participation and problems in the functioning of government) tend to lead to authoritarian regimes. ³⁵ This is because such defects lead to weak electoral contestation, which independently enables authoritarian regimes to thrive. ³⁶

According to Goh, a characteristic of neo-authoritarianism or new authoritarianism is a liberalising capitalist economy. ³⁷ Furthermore, the state has broad ownership of the means of production and continues to participate in the capitalist economy through decentralised profit-oriented enterprises, civil society institutions and a largely state-controlled public sphere. The ruling elite maintains a network of technocratic experts, public businessmen and local capitalists and mobilises hegemonic ideologies of exceptionalism rooted in their group identities. ³⁸ In addition, Goh argues that while authoritarian capitalism directly contradicts democratic socialism, the latter can transition into the former. This can be executed by means of the renegotiation of the democratic component of the hegemonic ideology, accompanied by the repression of the socialist component. The renegotiation of the democratic component can occur as follows: first, democracy is only valued as a collective good that can progress capitalist development progress. Second, democracy is reduced to mere electoral formalism. ³⁹

In this context, authoritarianism shifts its control from the state’s new order’s centralised authoritarianism to ‘state-market decentralized authoritarianism’. ⁴⁰ Decentralised in this context means shifting to a form of government that serves the interests of the oligarchic network. This is often referred to as ‘networked authoritarianism’ in a single majority political power. How has the Indonesian state administration been influenced by the control of the oligarchy that has entered the formal political system? This is important to understanding the dynamics of state institutions which are strongly influenced by the formal political representation of the oligarchy. The Corruption Eradication Commission (‘KPK’) can be utilised as a case study which illustrates the process of weakening such administrative institutions.

Initially, the KPK gave the public great hopes in the efforts to eradicate corruption in various elements of formal power in our state administration, including targeting the cabinet in executive power, powerful figures in the Constitutional Court and Supreme Court, as well as the parliamentary elite in legislative power. ⁴¹ However, this hope faded along with the weakening of the KPK through a revision of the rules in the 2019 KPK Law, ⁴² accompanied by a gradual paralysis in the progressive work of the KPK. The KPK is no longer an independent body since the revised laws have placed the KPK under executive power, and more administrative processes for the initial investigation mechanism, and changing of the staff’s status to civil servants, has affected the KPK’s performance. ⁴³ What remains today are only a few KPK employees who have the integrity and courage to dismantle the political intervention in eradicating corruption. ⁴⁴ Pressure and weakening continued to occur especially when the KPK employees were forced to become civil servants, who are administratively much easier to control due to the tiered bureaucratic system in government.

This illustrates how the political process of decentralisation, which is supposed to strengthen democratization in the regions, has been hijacked by oligarchic power in Indonesia. Due to strong networks in the regions, not only elections, but also regional government institutions are now controlled by autocratic models of governance. ⁴⁵ This situation has been worsening due to a lack of strong civic political participation, especially in exercising democratic rights to participate in policy making processes. Concurrent to this lack of participation, a system of corruption that plunders natural resources increasingly destroys the environment and ecological systems. ⁴⁶ Certainly, this makes far from the ideal standard of government — because autocracy works in the inverse of the ideal, undergoing civic political transformation which eliminates the essence of democracy.

This situation is not surprising. The autocracy model of governance has flourished during Suharto’s authoritarian regime. What we have seen and are witnessing today is more about legacies and local politics whose seeds have been incubated for a long time in Suharto’s authoritarian governance. Hadiz has expressed a similar sentiment, referring to Indonesia’s recent political experience as the ‘re-link[ing of] the experiences of post-authoritarianism with the localisation of power’. ⁴⁷

In this context, the oligarchy power has grown, and continues to grow, at the local level. As a result, it has also grasped authority over ‘decentralised’ power, which adopts oligarchy-friendly policies. This can be seen from the pattern of regulations passed by the Indonesian government, such as enacting permits and local regulations which allows for the excessive exploitation of mining and natural resources. This provides clearer evidence of the contested power of the local political economy, especially among political parties and their vested interests in business.

The recent social political developments have inevitably made enforcing constitutional rights through state institutions complex, since nearly all institutions have been hijacked by the authoritarian regime. Therefore, it is extremely difficult for citizens to undertake this path to claim their constitutional rights. In order to understand the nature and scale of the threats to constitutionalism, this article examines the role of judicial power as an important pillar of constitutional justice.

III The Victims and Judicialisation of Authoritarian Politics

‘How important documents are easily lost, do not know if after that the problem is resolved?

Suciwati, widow of the late Munir, a human rights activist, was disillusioned with the state’s treatment of her husband’s murder. ⁴⁹ Munir was 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 activities believe Munir was assassinated by politically influential actors. The report of the Independent Fact-finding Team has never been made public, and the Presidential Palace has denied ever possessing such a document, even though the Team had submitted documents directly to the President in 2005.

The document identifies a number of high-ranking State Intelligence Agency officials who are suspected of being involved in Munir’s assassination. ⁵⁰ In a letter from the Ministry of State Secretariat, it was claimed that the state secretariat does not own this information. ⁵¹ All this has been used by the state to resolve the Munir case once and for all, despite promises by President Widodo to protect human rights defenders.

Suciwati’s dissatisfaction is caused by the judiciary being used as a tool of systemic impunity. The trial of Munir’s murder was held in the Jakarta District Court. There have been indications that manipulated facts were given in order to stop further investigation. ⁵² The trial has sentenced those involved in the poisoning of Munir on the plane. However, the investigation never sought to unmask the mastermind actors behind the planning of the murder. President Widodo repeatedly promised to settle Munir’s case, but his promise was only nonsense and law enforcement did not seriously pursue legal justice, such as finding a motive or the real killer. ⁵³

Munir’s case is not an isolated example of systematic impunity. There have been numerous cases of past human rights abuses which have never been seriously resolved by the government. On the contrary, those suspected of crimes against humanity, or military generals involved in crimes, were instead given positions in President Widodo’s administration. The latest appointment was Major General of Untung Budiharto, who was appointed as Military Commander at Jakarta. He was suspected of involvement in kidnapping actors during the New Order regime. ⁵⁴

On the other side, in cases of gross human rights violations, the Attorney General dares to state that cases investigated by National Commission on Human Rights, such as the cases of Semanggi I and II, have been declared not to constitute gross human rights violations. ⁵⁵ President Widodo did not rebuke the Attorney General for this statement, or take enforcement of the law more seriously, resulting in further systematic impunity. On 4 November 2020, a judge of the Jakarta Administrative Court granted the victim’s family’s lawsuit against Attorney General Burhanuddin’s statement. However, the administrative High Court granted the appeal, and overturned the Jakarta Administrative Court’s previous decision. ⁵⁶

A similar pattern is obvious in the case of a physical attack of an investigator of the KPK. Novel Baswedan was the victim of an acid attack. He was targeted for his role in unravelling many mega-corruption and political scandals which involved many authorities, including high-ranking police officers. ⁵⁷ The judicial process has generated public distrust against the state and judiciary. The public prosecutor charged the defendants with assault and demanded only a 1-year prison sentence. ⁵⁸ A number of irregularities were also openly exposed in the legal process, and the mastermind behind the attack was not revealed by the prosecutor. ⁵⁹

A criminal law scholar, Affandi, argues that the prosecutors had refused to bring certain witnesses to the stand as they were not included in the case files. ⁶⁰ Therefore, this case is crucial in demonstrating the influence and impact of Indonesia’s political oligarchy on the rule of law.

The case of Budi Pego (Heri Budiawan) in Banyuwangi similarly demonstrates this point. ⁶¹ Budi Pego, an environmental activist, has been targeted for his criticism against gold mining activities. The mining itself involved businessmen in Jakarta who had strong relationships with key political actors. Budi Pego was charged for violations against Article 107a of the Criminal Code for promoting communist ideology. ⁶² This case shows two fundamental problems. First, there has been a baseless criminal charge (related to communist ideology) and targeting of Budi Pego’s environmental protection campaign. Second, the court failed to protect the constitutional basis of equality before the law and protect the defenders of environmental rights. ⁶³ Budi Pego’s trial and subsequent conviction illustrates how 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. ⁶⁴

There is a dark history of anti-communist violence in Banyuwangi, with communist stigma leading to a massive massacre in the district. ⁶⁵ During the trial, judges faced immense pressures from anti-communist mobs protesting outside the court. ⁶⁶ The court showed unjust legal reasoning, with a lack of evidence of Budi Pego’s alleged communist activities and spreading of propaganda. Budi was sentenced to 4 years in prison by the Supreme Court.

Environmental cases, especially those regarding excessive exploitation of natural resources, are cases filled with violence and impunity. According to data provided by the Institute of Policy Research and Advocacy (‘ELSAM’), a leading human rights policy advocacy group in Jakarta, from November 2017 to December 2018 at least 188 individuals and 586 human rights groups, especially environmental activist groups, were victimised. ⁶⁷ Human rights defenders have been targeted with physical attacks and human rights violations, including threats, arrests, shootings and murders. Ironically, most of these violations have been committed by state actors. ⁶⁸ The basic problem is that there is no state protection for environmental rights defenders, including an absence of law enforcement (impunity). This has led to more systematic human rights violations as well as a diminishment of public voices and opinions.

A key example of this is the death of Golfrid Siregar from the Indonesian Forum for Environment (‘WALHI’) in Medan, North Sumatra, in 2019. ⁶⁹ There has been no serious investigation into his death and involvement in environmental advocacy. Hence, there has been lack of accountability from state authorities. Before his death, he had filed a lawsuit against the construction of Batang Toru Hydroelectric Power Plant (‘PLTA’) in South Tapanuli Regency, North Sumatra. This case demonstrates the impunity existent in Indonesia, which has emerged due to the strengthening of autocratic power at local levels. The political and economic oligarchs continue to exploit natural resources without considering the environment impacts.

What lessons can be learnt from these cases? These cases demonstrate the state’s failure in resolving legal cases and its impact on human rights abuses. The case dealing with the murders of human rights defenders, including Munir and Golfrid, the criminalization against Budi Pego who was alleged to have promoted stigma communism, and the acid attack against Anti-Graft Commission investigator Novel Baswedan shows that the judiciary has been influenced by political power.

The judicialisation of authoritarian politics has two aspects. First, courts can be used to target and illegalise the conduct of social activists or human rights defenders. This is usually coined as criminalization. Second, the court can be used for designing more legitimate impunity through the rulings of the judge. Both are heavily influenced by those who have dominant power. Unfortunately, this could lead to more systematic impunity since such judicialisation of politics has become increasingly institutionalised. Hence, legal and judiciary systems only work to strengthen the chain of impunity and encourage repressive action to silence criticism.

IV Struggling for Constitutional Rights

In the last two decades, Indonesia’s constitutional reforms have been adopted for the purposes of asserting fundamental rights. The changes include the renewal of state institutions and the establishment of new, more democratic state institutions which have less illegalised authority than Suharto’s authoritarian era. ⁷⁰ Such reform also aims to improve the judicial system. The most important feature for reforming the judiciary is the establishment of the Constitutional Court as an independent pillar which should be separated from executive power, and its mechanism for appointing judges.

Through its blueprint for strategic action plan, the Supreme Court has been reformed. There is no longer the dual power in judicial management (well known as ‘two rooftops’ justices) as a form of detachment from executive power. ⁷¹ The process of recruiting judges is supervised and assisted by a new institution, namely, the Judicial Commission of Indonesia. Likewise, the filling of Parliamentary members is conducted through an electoral process, and there is no longer appointment by the President. Parliament members should be elected. The President’s term of office is also limited. There is no longer an unlimited term, but a maximum of two terms of office.

The new state institutions, particularly those related to the efforts for the basic rights of citizens, include the National Commission on Violence against Women (Komnas Perempuan), the Ombudsman of the Republic of Indonesia (‘ORI’), the Public Information Commission (‘KIP’), the Witness and Victim Protection Agency (‘LPSK’), the Judicial Commission (‘KY’) and the Corruption Eradication Commission (‘KPK’). Meanwhile, there are a number of new courts, including the Constitutional Court and ‘special courts’ within the Supreme Court, such as human rights courts and industrial relations courts. All institutional developments in the constitutional law system are part of reform agendas.

Having these new establishments of state institutions, including courts, allows citizens to protect their constitutional rights by seeking to claim and access their rights. In short, the presence of new institutions is the public’s hope to encourage mechanisms in promoting access to justice through formal justice mechanisms.

However, reform agendas have been challenged by various institutions, actors and other parties. Questions of independence, budget reform, political appointments and structural power relations have presented challenges and influenced the capacity for citizens to protect and enforce their constitutional rights. The reforms are not a simple answer to these challenges since the rule of law can be easily influenced by dominant power relations, especially by the interests of oligarch power.

One of the leading pro bono lawyer and legal aid movements in Indonesia, the Indonesian Legal Aid Foundation (‘LBH’), has utilised new advocacy strategies in order to promote more organised and effective struggle. These new advocacy strategies combine legal advocacy and social-political awareness, in order to empower civil society groups to promote their rights and its struggle organisation independently. These advocacy strategies seek alternative models which challenge institutional orderings by examining a number of constitutional human rights violation cases. Lawyers at LBH are aware that oppressive policies have been used through formal democratic instruments, including the law and its official institutions, to deprive people of their rights. Policies, legislation, law enforcement and even the ‘rule of law’ have been appropriated by discriminatory, exploitative and corrupted legal politics. In comparison to Suharto’s authoritarian regime, current legal and human rights cases reflect a new method of attack by producing laws, policies and administrative decisions which curtail access to justice and infringe human rights. This could be described as ‘legalised violation of human rights’ through formal democracy instruments, similar to the term ‘illiberal legalism’, coined by Mudhoffir and A’yun. ⁷²

This ‘legalised violation of human rights’ has led civil society groups, including the LBH, to stand up and assert its position against any misuse of power. During the new order, there has been shifting patterns and strategies of legal aid; from the orientation of legal aid to the poor, to a shift towards the structural legal aid movement. ⁷³ As noted by Lev, LBH has been supported by the Indonesian Advocates Association (‘PERADIN’), a lawyer association chaired by outspoken lawyer Adnan Buyung Nasution. ⁷⁴ Nasution has brought a ‘structural legal aid’ strategy to defend victims of rights infringements, which has become a bulwark of rule of law advocacy. ⁷⁵ LBH also promotes structural legal aid as part of their litigation challenging Indonesia’s autocratic rulers. ⁷⁶

Such litigation remains necessary given the vast majority of state institutions did not function effectively to promote the rule of law and democracy. Currently, the situation with regard to state institutions’ promotion of the rule of law and democracy has changed significantly, particularly the involvement civil society organization activists entering political parties and the Presidential palace. Many human rights activists, prominent leading intellectuals, and even those who are previously considered victims, are now involved in official governance. Initially, LBH used political engagement strategies, especially with the government. However, the continuation of structural impoverishment as a result of the government’s adoption of neo-liberal policies has generated a number of issues. For instance, widespread union busting, outsourcing, and cheap wage politics are common themes in labour relations. ⁷⁷ This situation has been worsened by the enactment of the Omnibus Law on Job Creation, Law Number 11 of 2020, which allows capital accumulation for prioritising investment. The law creates vulnerable protection for labour, small farmers, and indigenous peoples on the ground, and even making easier policies for accommodating capital owner interests without considering environmental sustainable protection.

LBH advocacy has sought to adapt their strategies in order to connect their struggle to the context of dominant political economy development. ‘Structural legal aid’ as a key strategy for claiming rights has been practiced for decades, but it still struggles to address the pattern of oligarchic power which remains dominant. Therefore, LBH lawyers believe that struggles for claiming constitutional rights may be strengthened by allying with social and community organisations at a grassroots level. Legal aid has been found to be more effective when delivered through strategic collaborative networks with various levels of non-governmental organizations and civil society organisations. This struggle involves critical awareness of legal rights, and organising groups in the community, thereby strengthening resilience in social movements. LBH lawyers have been organising communities by bringing legal cases, including in the Constitutional Court, challenging laws which infringe constitutional rights. ⁷⁸

Besides that, LBH’s legal empowerment is not only centred around non-governmental organisations and civil society, but also involves strengthening LBH’s presence at campuses and law schools. Universities in Indonesia provide legal aid to the public. ⁷⁹ Therefore, since the enactment of Law on Legal Aid 2011, a more planned work system and performance evaluation, including strategic plans in supporting its advocacy works, are an important strategy for LBH. The issue of access to justice is not merely a matter of ‘formal access’ to justice, but also a more substantive ability to make claims to rights. Hence, these ‘formal and substantial’ justice are necessary also to strengthen legal education as part of building awareness. This learning is not merely on a ‘juridical-normative’ method but also combining social analysis for a comprehensive understanding of rights struggles. At this point, legal education can be considered part of transforming ideas of public awareness in order to support the strengthening of constitutional rights.

Interestingly, the legal aid movement has been widely accepted as encompassing not only pro bono strategies but also a social political education movement through legal aid which employs critical legal education. One of the largest Islamic organisations, Muhammadiyah, has a special task force for legal aid, namely, the law and human rights program, which calls it a ‘constitutional jihad’ (jihad konstitusi). ‘Constitutional jihad’ is a law reform movement conducted through formal channels, namely, by submitting material tests to the Constitutional Court against laws considered contrary to the 1945 Constitution. ⁸⁰ For Muhammadiyah, ‘constitutional jihad’ is critical to realizing the ideals for national legal and social reform.

Nevertheless, constitutional struggle is not merely about capacity to access justice through the courts, including the Constitutional Court. It is also about the struggle for claiming rights through political institutions, such as the House of Representative (DPR), or Presidential Staff Office (KSP), which continues to be challenging but presents a further avenue through which to access justice.

‘Progressive roles’, beyond ordinary strategy in carrying out legal aid, are hoped and expected to encourage the resolution of legal cases consistently with the constitutional rights that should be granted to citizens. In fact, the struggle for rights through the judicial review mechanism demonstrate three features of constitutional struggle.

First, case-by-case resolution depends on particular strategic alliances, organisations and social relationships, so it cannot be expected that specific legal cases are able to dismantle systematic oppression. Second, the legal solution or court rules are nothing more than a damping step, or placation. Actors representing the Presidential Palace represent mouthpieces of power rather than defending the interests of citizens. Third, if the struggle for constitutional rights clashes with the oligarch power, then it will hit a thick wall that is difficult to tear down.

LBH recognises that efforts to resolve issues through case-by-case resolutions can be complicated, and that success and power is not guaranteed. As a strategy, the choice to litigate cases can form part of an effort to benefit the public, counteracting political and legal mechanisms while strengthening strategic alliances to redefine the constitutional rights struggle. At the same time, seeking case-by-case resolution corrects the role of a more realistic state dealing with the politics of authoritarian power, including the paralysis of judicial power. Having this strategy, the process of constitutional struggle and efforts to use the judiciary is needed as a critical educational medium to see the reality of legal politics.

Hendrianto’s concept of the ‘judicial hero’ is more relevant to contextualising the early years of the Constitutional Court’s establishment. ⁸¹ However, Hendrianto’s analysis does not assist in assessing the politics of judicial power. Hence, arguing about judicial behaviour and power in the early establishment of the constitutional court refers to more systemic of legal politics and structural problems, not merely individual leadership.

In 2020, the revision of the Constitutional Court was enacted — the enaction of its legislation was the quickest in Indonesia’s legislative history. The process occurred in less than a week, without public consultation, and without reference to academic manuscripts (a formal requirement of enacting legislation). ⁸² The revised law reflects ‘mystifying transactional politics’, as it limits the ability of Judges to criticise legislation. In the current political context, this amendment appears targeted to limit judicial criticism of the revised Law on KPK (anti-graft commission), and Law Number 19 of 2019 and Omnibus Law on Job Creation, Law Number 11 of 2020.

The Constitutional Court has ruled on both laws. Judicial review on the revised Law on KPK was rejected, ⁸³ while judicial review on Omnibus Law on Job Creation was partially granted by the Constitutional Court. ⁸⁴ The Constitutional Court invalidated the law, citing law-making concerns, which resulted in another 11 proposed lawsuits being rejected by the Court. However, the Court’s reasoning was vague, potentially accommodating oligarch pressures, and the decision remains controversial.

As Ginsburg and Moustafa argue, judicial politics in authoritarian states is often far more complex than is commonly assumed. ⁸⁵ 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 allow for challenges of a state’s policies, ⁸⁶ sometimes referred to as judicial activism. ⁸⁷ In today’s Indonesian political context, the judiciary’s relationship with the oligarchy is increasingly being brought to light.

Therefore, the Constitutional Court has demonstrated the business and political interests which lie behind legal cases. The Budi Pego case, ⁸⁸ the police corruption scandals that foreshadowed the Novel Baswedan case, ⁸⁹ the involvement of intelligence generals in the Munir case ⁹⁰ and the giant infrastructure behind the legal cases brought by Golfrid, ⁹¹ are all closely connected to the current oligarchy power network.

At the same time, these cases illustrate several features of Indonesia’s judicial system. First, the cases demonstrate that the judiciary has become a blatant legitimation tool for the regime. The judicial processes reflect and accommodate political interests. However, they also provide important symbolic resources for a broader public propaganda concerning the formalities of law enforcement.

Second, the cases demonstrate that the judiciary serves to institutionalise 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. Hence, authoritarian politics is rendered legitimate by the embedding of a formal constitutional system.

Third, these examples illustrate that the judiciary is complicit — directly or indirectly — in strengthening impunity. State actors who violate the law, including cases of state-sponsored violence, have not been held legally accountable. The consequence of this judicial complicity is a vicious cycle of violence and human rights abuses, which the state may eventually not be able to control.

Fourth, constitutional struggle in Indonesia’s current judicial system has become more complex and complicated since the rule of law ideas (Negara Hukum) have been easily subverted for securing oligarch vested interest. State institutions, including state auxiliary bodies, are heavily controlled by dominant elites in the executive power, which strengthen an oligarchy-locked constitutional system. Whilst the government uses democratic and constitutional instruments to strengthen its own political and economic interests, it will become increasingly difficult for the public to use the judicial system to secure rights and ensure that the Government follows the law.

V Reorienting Struggle, Conclusion

State patronage is crucial in the workings of Indonesia’s political cartel — influential businessmen, state bureaucrats, military personnel and police officers form part of a larger network of power, and they are represented in key state institutions to provide political support and security to Indonesia’s executive government. 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.

By assessing legal cases in the past few years — the Munir case, the Golfrid case, the Novel Baswedan case and the Budi Pego case — as well as Constitutional Court rulings on the revised KPK law and omnibus law on Job Creation, I 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 a 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, but legal processes have also become a vehicle for stigmatization and state persecution on the basis of political ideology.

In conclusion, it is worth recalling Daniel S Lev’s assessment of the problems of legal and political culture in the Indonesian judiciary, including observing the judiciary’s relation to government institutional politics and its political change. ⁹² A discussion of the judicialisation of authoritarian politics in this article aims to provide more contextual analysis of legal development, especially in the contemporary court system. In this context, the concept of constitutional struggles provides a complete perspective on judicial problems. These problems are not only those that have occurred continuously in Indonesia’s judicial system — internal incompetence, extensive corruption (including bribery), and misconceptions about judicial independence vis-à-vis the role of case law in ensuring consistent legal interpretation and application ⁹³ — but also the micropolitics of the court and its relationship to the political context in Indonesia’s authoritarian politics.

Thus, in the future, this article will help victims of human rights violations and their families to be more aware and critical of the political cartel’s conduct, as well as the risks and consequences of seeking to uphold human rights and the rule of law. Utilising the judiciary in the future and examining the constitutional system as a medium for public legal awareness is expected to encourage strategies of social and political change that are more democratic and have a transformative impact on the legal and political culture of Indonesia.