o te la fan?
Asia Briefing N°13830 Aug 2012
Local institutions in Indonesia, empowered by decentralisation, are defying the country’s highest courts with impunity, undermining judicial authority and allowing local conflicts to fester. District councils, mayors and regional election commissions have learned that there is little cost to ignoring court rulings on electoral or religious disputes, pandering instead to local constituencies and pressure groups. Decisive leadership from the president could make a difference; instead, slow and ineffective responses from Jakarta brew more insubordination. If the regions become overconfident in their new powers and the central state continues to respond weakly, this lack of commitment to rule of law could encourage more conflict as the national political temperature rises ahead of the 2014 presidential election.
The problem of local officials defying the courts is a direct result of two steps taken by Indonesia in its post-1998 drive toward democratisation. One was its “big bang” decentralisation in 1999 that devolved political and fiscal power down to sub-provincial units: districts (kabupaten) and cities/municipalities (kota). The second was the introduction in 2005 of direct elections for local executives, including district heads (bupati) and mayors (walikota). Both were essential for the consolidation of Indonesian democracy, but the combination has made for a very powerful stratum of local authorities which feel neither beholden to the central government nor always compelled to comply with rulings from the nation’s top two courts.
The Supreme Court (Mahkamah Agung) is the court of final appeal for most civil and criminal cases; it also hears appeals on cases decided by the state administrative courts (Pengadilan Tata Usaha Negara), which rule on complaints against decisions taken by state officials or institutions. The Constitutional Court (Mahkamah Konstitusi) since 2008 has become the sole arbiter of election results that are disputed at the local level. The Supreme Court and the Constitutional Court are equals; decisions of both are final and binding. But a clear policy is missing on how those rulings should be enforced or an obvious penalty for failing to comply.
Three cases illustrate the point. In West Kotawaringin district, Central Kalimantan province, the Constitutional Court in July 2010 disqualified the winner of the district’s local election on vote-buying allegations and ruled that the defeated incumbent should get a second term. It may have been a questionable decision, but for the sake of reinforcing judicial authority, it should have been enforced. The local district council, however, saw the ruling as an intrusion by Jakarta in a local race and refused to accept it. More than two years later, the bupati who was awarded the victory by the court still cannot govern because of local resistance. In Bogor city and Bekasi district in West Java province, local officials have refused to allow the construction of churches despite court rulings that there were no grounds for sealing off the disputed building sites.
In all three cases, as tensions left unresolved by the rulings threatened to – and occasionally did – erupt into violence, the best the central government could do was to send an official to try and negotiate a compromise between contending parties and even then, Jakarta only reacted when the dispute made national headlines.
But if courts are to have any authority at all, the president, as chief executive, needs to do more than urge compromise. He has other tools at his disposal: issuing presidential decrees; withholding funds from local authorities; direct personal lobbying and making strategic use of the media. Allowing local officials to defy the courts is not just hurting the prospects of local conflict resolution. It sends the message that the power of the majority can take precedence over institutions of justice in a way that emboldens mobs, threatens minorities that feel they cannot depend on the state for protection, and ultimately undermines Indonesia’s democracy.
Jakarta/Brussels, 30 August 2012