I. Introduction
Indonesia has long been known as “zamrud khatulistiwa” which means a diamond among States located along equator line. However, its legal system, among many things, does not seem to shine as bright as its rich natural resources. The complete absence of rule of law, corruption, autocratic regime and the unenforceable constitution are those reasons to support this proposition. During the period of the former President Soeharto’s regime (1966 - 1998), freedom of expression literally did not exist. Newspaper and radio station are completely banned from communicating any matter related to government affairs. Adding to the already aggravated situation, the government was actively abusing the anti-subversive law, which was similar to Internal Security Act (ISA) in Malaysia and Singapore, by illegal arrest and detention of government related press activities and even to enforced disappearance.
Although Indonesia has a written constitution (UUD 45), which embodies basic human rights rules, share of power among legislative, executive and judiciary and mandate of President, it was unenforceable. First, the judiciary was so corrupt that it was considered Soeharto’s crony. Second, even if the judiciary functioned well, there was no constitutional basis or jurisdiction for the Supreme Court to review the UUD 45 if there was any petition.
The most historical overturn in the 63 years existence of Indonesia took place in 1998 when university students’ discontent reached the peak point after government suppression against their reformation activities. They rallied on the street and in front of most governmental offices, including the House of Representative’s hall and president’s palace, petitioning the resignation of Soeharto. The overwhelming discontent has compelled Soeharto to resign from presidency. This event ended the 32 years autocratic ruling of Soeharto and opened a new chapter of Indonesia’s odyssey. The most notable reformation after 1998 was in judiciary and the right to freedom of press. Although it is still considered as fragile and unstable democracy, but Indonesia has moved to the right path. The amendment of UUD 45 was done four times, which resulted in the reformation of states organ composition, including the birth of constitutional court in 2004.
In this paper, I will argue that justice and freedom of press are two most important factors in creating a strong root of rule of law and democracy in Indonesia. First, I will briefly demonstrate the historical background including autocratic ruling of Soeharto’s regime, press freedom and the unenforceable constitution. Second, I will briefly summarize the birth process of constitutional court. Third, I will demonstrate that reformation in justice and right to freedom of press is the most crucial factor in achieving the democracy desired. Lastly, I will review several constitutional cases before the constitutional court to demonstrate the level of protection to freedom of press granted under post amendment UUD 45.
II. Historical background
a. Soeharto’s corrupt regime
Soeharto was a military politician; hence his administration was carried out in the same fashion. After the declaration of independence in 1945, unity remained fragile. Civil wars broke out in many remote areas as a consequence of plurality of Indonesia. Indonesia is an archipelago comprising 13,667 islands 105 covering a land area of 1,919,317 square kilometers including 93,000 square kilometers of inland seas. It has more than 200 local tribes with different culture and religious beliefs. Since Indonesia was caught in the middle of civil wars in the early years of his presidency, Soeharto’s military style of administration seemed to be the preferred model of governance. He needed to take immediate step by efficient use of force to curb civil wars and rebellious activities in many remote areas. This style of governance was employed through 1980s, where the geo-political situation had dramatically changed. Citizens were generally better educated and aware of the importance of a stable country. Civil wars and rebellious activities had significantly abated. As the saying goes “power tends to corrupt, absolute power corrupts absolutely”, Soeharto absolute military power continued to mark his regime. To maintain power, he employed repressive methods to all parties who were against him. As a corollary, press activities were heavily controlled since it was viewed as a threat to his administration. He enacted the License to Publish (SIT) policy to control all press activities. All press products were required to obtain this permit before they were published. All press activities were considered illegal without this permit. He also enacted the anti-subversive law which enabled him to curb any press activity that criticized him.
The Soeharto regime was completely corrupt since he virtually controlled all the legal machinery. To fully appreciate Soeharto’s corrupt, morally bankrupt regime, one only has to visit the Soeharto museum at Tam Mini, a park in Jakarta, which features exhibits from all regions of Indonesia. The Soeharto museum is filled with many gifts given to Soeharto during his reign. It is filled with priceless jade carvings, works of expensive art from all over the world owned by Soeharto and a floor devoted to Soeharto and his late wife Madame Tien.
In economic activity, the Soehartos made a massive number of improper loans to finance their cronies. Siti, Soeharto’s daughter, was known as "Madame Ten Percent", reflecting her share of all public contracts. Soeharto and his family accumulated a financial empire estimated at more than $25 billion. The Soehartos held an interest in major corporations controlling virtually every facet of daily life in Indonesia. It was virtually impossible to conduct business in Indonesia without dealing with Suharto, his family, and their business cronies. The Indonesian economic system was a complex web of corrupt deals and political payoffs.
Most natural resources were located in less populated areas. Soeharto extracted these resources for use in the more heavily populated areas, particularly Java. In the process, the central government controlled local revenues and finances leaving little power for provincial and local governments. The Indonesian banking sector was poorly supervised by the central bank, Bank of Indonesia. These circumstances led to the collapse of the Indonesian banking sector resulting in economic chaos in Indonesia. The effects of the financial collapse have included massive poverty, a high rate of unemployment, and starvation for millions of Indonesians. Deadly riots and political protests were common. Soeharto also controlled the legal system, including all judicial appointments. One author even asserts that judges earned a living by selling justice to the highest bidder. The legal system was simply another arm of Suharto's corrupt machine.
b. Historical perspective of Press Freedom during Soeharto regime
The Basic Press Law of 1966 (1966 Press Law) emerged under Soeharto's "New Order" Government in the midst of the attempted takeover by the Indonesian Communist Party and the restructuring of government. The 1966 Press Law guaranteed that journalists would not be subjected to censorship under Article 4. In addition, the first clause under Article 5 granted freedom of the press as a basic human right. The guarantees provided in Articles 4 and 5 were significantly undermined by Article 11 of the 1966 Press Law, which restricted publications only to those not contrary to "Pancasila". The 1966 Press Law further limited press freedom by requiring that every publication acquire a License to Publish (SIT), pursuant to Article 20.
Despite the seemingly broad guarantees grounded in Articles 4 and 5, the government's reaction to the press over the next sixteen years demonstrated a retreat from law that proved detrimental to journalists. In particular, the government banned many publications during this period either by revocation of licenses or by mandate from the Operational Command for the Restoration of Security and Order (Operational Command). Bans on publications were especially prevalent during elections and student demonstrations. Government officials both instructed journalists as to which current events they could report on and attacked journalists personally via imprisonment, detention, and warnings.
Act No. 21 of 1982 (1982 Press Law) incorporated and enacted revisions and amendments to the 1966 Press Law. An additional clause to Article 13 in the 1982 Press Law requires that press publications obtain a Press Publication Business License (SIUPP) from the Minister of Information. The Minister of Information leads the Press Council, which oversees the development and control of the National Press, by ensuring that the press preserves the national interests of Indonesia. The SIUPP clause replaced the SIT clause in Article 20 in the 1966 Press Law; however, the consequences of publishing without a license under either clause remained the same because both resulted in criminal penalties. In addition to granting SIUPPs, the Minister of Information may also revoke licenses pursuant to Article 33 of the Minister of Information Regulation No. 1 of 1984 (1984 Ministerial Decree).
Of even greater concern in the 1982 Press Law was the government's revised Paragraph 2 under Article 6 of the 1966 Press Law that expanded Press Council membership to include government officials. In effect, this revised clause "concerning membership of the Press Council made the Government's position stronger]in controlling the Council, and thereby the Press." Despite the enactment of the 1982 Press Law, limitations on reporting current events remained strong as the government continued to utilize similar tactics exercised under the 1966 Press Law to curb press freedom.
c. The Unenforceable Constitution
It seems that everybody knows that law in Indonesia, if enforced at all, is not enforced consistently. When it comes to constitutional law, however, the situation seems even worse. The courts, prior to 2004, do not even have jurisdiction, not even in theory, to hear any constitutional claims. The problem was not that courts failed to enforce the Constitution because of inefficiency, incompetence or corruption. Rather, the problem was that no court had jurisdiction to enforce constitutional law. There was no constitutional court in Indonesia until 2004 and the general courts, including the Mahkamah Agung [MA] or Supreme Court, lack constitutional jurisdiction. One could therefore say that constitutional law was unenforceable in Indonesia before 2004.
Gary Bell argues that it is possible to have a stable society and the Rule of Law without a fully enforceable constitution. He cited France experience. In France once a law is adopted, its validity can never be contested no matter how clearly unconstitutional the law is. The courts of law have essentially no constitutional jurisdiction (except for the review of search and seizures in the criminal process) and cannot review the constitutionality of laws or of government actions. Since 1958, there is in France a Constitutional Council (Conseil constitutionnel) which may review bills before they become laws, but it may do so only at the request of politicians, not of ordinary citizens. Once a bill passes through Parliament, the Council has no jurisdiction. The Declaration of the Rights of Man and the Citizen which is indirectly included in the French Constitution through a mention in its preamble cannot be invoked by citizens whose individual rights are violated. Notwithstanding this, no one would dare say that France does not respect the Rule of Law or that France has no constitution or no constitutional law. Unenforceable constitutions can be significant political and legal symbols.
I agree that it is possible to have a stable society in countries like France without fully enforceable constitution. However, when it comes to Indonesia prior to 2004, it is a different case. Freedom of press and judicial system are the two important factors that draw that line. First, starting from 1966, French has not been ruled by any autocratic regime, while Indonesia was ruled by Soeharto autocratic. Second, Soeharto actively invoked the anti-subversive law, while there was no similar law passed in France. Third, Indonesia judicial system was so corrupt during Soeharto’s regime that it was considered another arm of Soeharto’s corrupt machine. Even to date, similar nature of legal system still exists, though arguably to a lesser extent. Jared Levinson asserted that “In this republic, corruption is the child of every regime”. The unreliable nature of the Indonesian legal system has been a major factor cited by business people for not wanting to invest in the nation. In June 2000, Wahid (Indonesia former president) met with US businesspersons who demanded that the legal system be reformed before they would invest in Indonesia. Court decisions are mainly a function of money and politics, just as they were under the Suharto regime. A well-connected, well-financed insider is likely to prevail even if the written law is to the contrary.
III. The two most important pillars of rule of law and democracy in Indonesia: Justice and Freedom of Press
a. Press Freedom for democracy
I find that the development of democracy is very closely related to freedom of press. Press is the fourth estate after executive, legislative and judiciary. It is power. If a nation is to enjoy the political and economic advantages enabled by the rule of law, powerful institutions must be open to scrutiny by the people. If technology and science are to advance, ideas must be openly shared. To create a democratic society is, among many things, by creating accountable government. Freedom of the press and independent news are therefore essential to this process. That is why Thomas Jefferson, the primary drafter of the American Declaration of Independence, insisted that the U.S. Constitution include the public's right to free speech, a free press, and public assembly. "Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter," he wrote in 1787. That is not to say that the newspapers were kind to him when he became president. He had his share of embarrassing exposés. But Jefferson remained steadfast in supporting even painful scrutiny by the media, because he recognized that without such accountability and unfettered flow of ideas, a nation's creative growth is stunted and its people are not free.
According to Ellen Hume, an independent media sector serves four vital roles in a democracy. First, it is a watchdog on the powerful, holding them accountable to the people. Second, it casts a spotlight on issues that need attention. Third, it educates the citizens so they can make political choices.
The U.S. experience in press freedom has, in one sense, been experienced by Indonesia after UU No.40/1999 was passed. This was shown by the rampant growth of press companies in Indonesia which is estimated to be more than 8,000 by now. This number is significantly high compared to the number of press companies during Soeharto regime which is estimated less than 15. Moreover, government has less control now evident by no-permit requirement of press activities. In Indonesia, press acted as a powerful watchdog during 2004 presidential election process. Press clearly described the necessary backgrounds, policy making orientation and leadership quality of all presidential candidates. This provides citizens with better information to choose which leader suits them the most. Press has essentially provided better political education for people during the 2004 election. Press function to cast spotlight on issues that need attention was demonstrated very well on the issue of Chinese minority discrimination in Indonesia. Before 1998, practice of Chinese culture, including language, cultural performance and the use of Chinese name were highly discouraged if not prohibited. During the 1998 financial crisis and reformation era, a shameful incident occurred where Chinese properties were looted and a lot rape cases to Chinese were reported. It is not that this discrimination did not happen in the past, but there is no means of dispatching such information nationally. After 1998, a lot of attention was brought to Chinese minority rights, therefore, effectively putting pressure on government to do something about it. During the President Abdurrahman Wahid administration, all discriminations, including prohibition to practice language were abandoned. All regulations which constitute this type of discrimination were revoked. Press ability to dispatch information about Chinese discrimination brought about sentiment among many people who think it is not right to do so, and therefore creating general consensus on what government should do.
In many examples, press has also put a great deal of pressure to public institutions, such as State Financial Auditor (BPK), Corruption Eradication Commission (KPK) and Supreme Court, which was untouchable by press in Soeharto regime. Sharp criticisms and expression of discontent are common in newspaper and television news editorial. The success of the 2004 first direct presidential election, which marked the democracy celebration in Indonesia, was also contribution of press. Although corruption still exists, but prosecution has been aggressively undertaken in recent years. People are generally aware of figures who are involved in corruption and hence creating bigger pressure for prosecution. In fact, harsh comments, such as alleging president of incompetency and violating constitution are made publicly available in newspaper with clear identity of the commentator.
b. Why press freedom and not economics first?
Some middle-low class income citizen argued that it much better to have no press freedom than to suffer from abject poverty. Some argued that reformation costs so expensively. It is a generally accepted fact that poverty and unemployment increased after 1998. One would argue that it was because the financial crisis took place. However, general argument to the contrary would be that democratization costs a lot. First, reformation requires reshuffling of many civil servants including the top officials. Since Indonesia recognizes life time pension, all downsized civil servants will be fed by the government for life time. Second, amendment of the constitution took most of the attention after 1998. It meant neglecting several ongoing financial projects and setting aside huge amount of national budget for all the People’s Consultative Assembly (MPR) meetings. MPR consisted of approximately 700 members all of whom are paid for regular meetings. Given the above explanation, it will be rationale to prioritize economics first post 1998. However, I will argue that press freedom is paramount to economics first argument.
Indonesia has impressive record on its natural resources, having oil and gas as the biggest export products. Moreover, its agricultural products are also abundant. The old saying goes “You can throw any remaining seeds you eat anywhere else in Indonesia and it will grow”. However, welfare of the citizen is not well reflected, not before 1998 or post 1998. The core of the problem is the complex web of corruption and inefficient bureaucracy. Imagine that gas natural resources are extracted from Papua. The result would have been going through several stages of administrative process before it reached the central government and reformulated in national budget. Given the fact that Indonesia has 13,000 islands, it is tremendously difficult to micro manage every sector. All these supposedly rich natural resources evaporated along the way to the central government.
Unlike its small manageable neighbor Singapore, Indonesia could not utilize economics first policy. First, the Singapore was not abundant in natural resources; therefore it was plausible in 1965 that the government decided to strengthen its economic policy. On the contrary, during the declaration of independence, Sukarno was very well aware that Indonesia was rich in natural resources, which made it the prime target of colonization. Second, all these resources were wasted because of corrupt individuals and ineffective bureaucracy; therefore, it is reasonable if all efforts are put in strengthening the rule of law and liberating press. If we draw a comparison to China, then will this argument crumble since China is big in size and rich in natural resources? China in its economic policy also resembles Singapore. China, as a socialist country, puts public welfare as its number one priority, therefore putting economics first for the many rather than press freedom for the few. What distinguishes Indonesia and China in this respect is the culture of ‘hard work’. It is well known that China used to and still has the cheapest and most effective labors. Given the large population in China, the number of manpower is also large. China’s capability to build its economics fast and resiliently gave it the advantage of being socialist and tyrannical. It abandoned environmental concern because it is expensive to preserve the environment. It abandoned human rights concern, good governance and so forth to focus all government policy to economics development. After this strong foundation of economics has been built, it started to use this financial power to fix what has been sacrificed for economics. For example, in 2006-2007, China spent almost 20% of its national budget to deal with sanitary and environmental issues, including major reconstruction on its sewer system, which was the major factor of SARS (avian flu) epidemic. After 1990, China started to liberate itself by exposing itself to international community. Press has increasingly been active. Humanitarian law became a serious concern. Environmental protection became an important agenda in government (ratification of Kyoto Protocol). In a short and simplified way of saying it, the choice is economics first or democracy first? If economics come first, then all other factors have to be removed from the picture, including democracy, environmental concern and human rights. In Indonesia context, it was unlikely to build the nation based on economics first policy because it lacks the advantage of hardworking culture and effective bureaucracy. China quickly achieved of economics power immediately after 1990 to prepare itself for globalization. This economics power was used to fix its environmental condition, human rights protection structure and compliance with international community value.
c. Judicial reform
A democratic nation will not function well if it is still governed by a cluster of corrupt individuals. Judicial reform is essential in achieving the true value of the rule of law. Constitution can only be protected by people with integrity. Although the picture of Indonesia judicial system is still tainted but significant improvement is noticeable. The rule of law can only be achieved if Indonesia continues its effort in judicial reform. As has been established in the previous section of this paper that judiciary in Indonesia is governed by a long tradition of corrupt judges.
The judiciary reform should focus on selection and individual welfare system not structural reformation. I assert that the current system in place is sufficient. The problem with the judiciary is only on its individuals. Best graduate law students from best law schools in Indonesia do not prefer judiciary career. This is a paradox to legal career in many countries including U.S. where judges are commonly appointed among successful and respectful lawyers or legal academicians. Incentives on judiciary careers should be strengthened, in the sense of welfare and prestige, so that young talented legal minds can find judiciary career worthy. Furthermore, there is an urgent need of major review on current judges as to their quality and competence. There should be a tighter and more sophisticated fit and proper test for judges and judiciary related career such as court clerks. At this point, Singapore’s approach to judiciary system is worth a lesson. The Chief of Supreme Court judge received approximately S$ 1 million annually on contractual basis. This amount is bigger than the accumulated amount of three chief Supreme Court justices of Canada, Australian and U.S. I am not suggesting that Indonesia chief justice should be paid that amount. I am suggesting that the current amount of salary does not create incentive basis for judiciary career. Magistrate Court Judges are treated as civil servants with average salary of Rp. 1 million to Rp. 2 million per month (which is equal to S$300-400). Under Law No.19/2008, the chief justice of Supreme Court in Indonesia receives approximately Rp.55 million a month (which is equal to S$ 7,000-8000), while an established lawyer in Indonesia can earn 10 to 20 times bigger than that amount per month. Moreover, the judiciary career in Indonesia is not viewed as a prestigious one. People generally avoid dealing with judges or courts. This is a negative factor to encouraging best law students to enroll as a judge.
IV. Conclusion
Indonesia historical background indicates the importance of press freedom and judiciary reform. Tyrannical and autocratic rulings of Suharto have created a long tradition of ‘political apathy’. Citizen need to be educated of their political rights. Government military system needs press to serve as a watchdog. Furthermore, the expansive geographical condition of Indonesia disabled fast and effective communication in the past. This serves as a detriment to democracy, as many people are simply not aware of what is happening within the central government, including the new law that is passed and court rulings. When press was liberated in 1999, significant improvement was noticeable. This improvement includes transparent court reports, spotlight on sensitive issues such as Chinese minority rights and pressure on legislative to pass laws that serve the needs of the many.
Judiciary reform is also necessary. This reform should focus on judiciary career welfare and selection system. Judges should be selected from the most capable individuals. This system will eventually create a strong incentive basis and therefore improves the overall image of judiciary career. Best graduate law students can then be encouraged to take part in judiciary career. The combination of these improvements will strengthen the rule of law and democracy in Indonesia
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