Academic journal article Contemporary Southeast Asia

Can NGOs Change the Constitution? Civil Society and the Indonesian Constitutional Court

Academic journal article Contemporary Southeast Asia

Can NGOs Change the Constitution? Civil Society and the Indonesian Constitutional Court

Article excerpt

During the past few years, scholars and commentators have increasingly expressed doubts about Indonesia's democratic project. Despite some progress, the executive and legislative branches are still dominated by the country's traditional political elite, which often blocks or undermines reforms and good governance institutions. There has also been a growing strain of illiberalism, particularly as radical Islamic groups attempt to impose their interpretation of religion on the state. These developments have bred cynicism about the ability of ordinary citizens and civil society to meaningfully participate in politics. However, many observers tend to overlook the Constitutional Court, one of the few state institutions that provide non-elite actors and progressive non-government organizations (NGOs) a meaningful voice in policy debates. During its 15 years of existence, the Court's decisions have lifted the ban on the Indonesian Communist Party (PKI), mandated an open party-list election system and invalidated efforts to privatize the electricity and water sectors. (1) Recently, it required the government to formally recognize indigenous faiths on identity cards, directly pushing back against religious extremism. (2)

This article attempts to show that, far from being anecdotal outliers, those decisions are typical of how Indonesian NGOs can influence policy through the Constitutional Court. (3) The first part of this article provides a short background on Indonesian civil society and the Court. Next, it presents a set of empirical tests of NGO influence on the Court using data derived from 524 cases decided between 13 August 2003 and 2 October 2013. The first test focuses on how NGOs set the Court's agenda by submitting petitions. The results indicate that NGOs are responsible for bringing the majority of socioeconomic and rights claims, resulting in some of the Court's most controversial and far-reaching decisions. The second test focuses on how NGO petitions influence the justices' written decisions by shaping their understanding of the legal and policy issues at stake. Indeed, the results suggest that the justices are significantly more likely to quote petitions submitted by NGOs. Finally, the last section of this article discusses the implications of my findings for Indonesian politics, as well as the benefits and potential risks of permitting NGOs so much influence over constitutional interpretation.

Reformasi and Civil Society

When protests forced Indonesia's long-time dictator President Suharto to resign in May 1998, the country began a process of political reform (known as Reformasi) that led to a vibrant, albeit imperfect, democracy. Suharto's successor, B.J. Habibie, agreed to new elections and extensive political reforms. After the June 1999 legislative elections, no party held a majority in the Majelis Permusyawaratan Rakyat (MPR), the constituent assembly drafting constitutional amendments. The largest party, the Indonesian Democratic Party of Struggle, or Partai Demokrasi Indonesia Perjuangan (PDI-P), won around a third of the seats, while Habibie's party, Golkar, won around a quarter. Eventually, the legislature chose Abdurrahman Wahid ("Gus Dur") from the National Awakening Party, or Partai Kebangkitan Bangsa (PKB)--which won just 11 per cent of the seats--to serve as president, while PDI-P leader Megawati Sukarnoputri was selected as Vice-President.

As part of the reforms, the legislature passed four constitutional amendment packages that essentially rewrote the 1945 Constitution. (4) The first transferred power from the executive to the legislature and limited the president to two five-year terms (Suharto had served for over three decades). The second amendments package inserted a bill of human rights and decentralized administrative power to the provinces. The third focused on institutional reforms and created several new "good governance" institutions, including the Corruption Eradication Commission, or Komisi Pemberantasan Korupsi (KPK). …

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