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

AuthorNardi, Dominic J., Jr.

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). The fourth package dealt with the composition of the MPR, presidential elections and socioeconomic rights. Overall, the amendments reduced the power of the president, decentralized authority to the provinces and strengthened civil rights.

Reformasi essentially transformed Indonesia from a single-party dictatorship into a multiparty, presidential democracy. In 2004, the country successfully held its first direct presidential election, and has since held hundreds of elections at the national and local levels. In 2014, Joko Widodo (known as "Jokowi"), governor of Jakarta affiliated with PDI-P, beat back a populist challenge by former general Prabowo Subianto. Indonesia regularly ranks as the most democratic country in Southeast Asia, and also boasts a vibrant media and civil society. (5)

However, Indonesia's democratic transformation remains incomplete. Reformasi was a highly managed transition to democracy, not a revolution. As Donald Horowitz argues, Indonesia's democratization succeeded in large part because reforms proceeded on the basis of consensus, ensuring that political elites were brought into the process. (6) Not surprisingly, elites still dominate the system. Corruption, collusion and nepotism are endemic at the highest levels of government. Conservative elites have attempted to undermine the independence of the KPK. Meanwhile, the prevalence of oversized coalitions in the national legislature, the Dewan Perwakilan Rakyat (DPR), makes it difficult for voters to hold parties accountable at the ballot box. In sharing power, party leaders have left little political space for parties that might champion reform. (7) Despite the presence of democratic institutions, politics remains very much an elite game.

The unresponsive nature of Indonesia's elected institutions has prompted concern about the ability of citizens and civil society actors to influence policy, especially for progressive and reformist groups, which have traditionally distrusted the state. After the 1965 crackdown on the Indonesian Communist Party, which resulted in the deaths of hundreds of thousands, pro-poor activists who opposed Suharto's New Order regime, especially those formerly affiliated with the PKI, preferred to stay out of party politics and pursue their policy agendas outside the legislature. (8) Even after Reformasi, many NGOs have refused to align with any of the major political parties. Although progressive NGOs tend to have a strong commitment to democratic ideals, they also view the current system as hopelessly corrupt and captured by elite interests. (9)

This does not mean Indonesian civil society has abstained from political activity. Rather, NGOs have tended to operate outside the elected branches of government. Although progressive and reformist NGOs lack direct influence in the legislature, they have been effective at generating awareness for their causes and preventing elites from enacting policies detrimental to their goals. The media greatly amplifies activists' political power by giving them a platform to voice their grievances. Newspaper articles about politics often feature expert commentary from NGO staff.

In addition, NGOs have tended to focus their efforts to influence government behaviour on the Reformasi "good governance" institutions, including the KPK, the Judicial Commission and the Constitutional Court. In many ways, this is a better fit for progressive and reformist NGOs. Adriaan Bedner argues that these types of NGOs are more comfortable framing their arguments in terms of legal rights than as political trade-offs, a mode of policy debate better suited to a court of law or independent commission than a legislature. (10) These institutions are also accessible to non-elite actors. The Reformasi constitutional amendments dramatically expanded the scope of topics covered by the 1945 Constitution, meaning that access to the Court lets NGOs challenge the government on a wide range of policy issues. The KPK and the National Human Rights Commission regularly consult and coordinate with reformist activists. In short, these institutions allow NGOs to circumvent elites in the elected branches.

None of this activity guarantees that NGOs will be able to advance their policy agenda. Marcus Mietzner calls Indonesian civil society "democracy's most important defender", but also suggests its greatest successes have come from preventing the rollback of democratic reforms rather than pushing new reforms. (11) The Constitutional Court changes this dynamic. As noted above, the Court provides a forum outside the elected branches of government for NGOs to have a substantive impact on policy and political debates. Because the Court is the final arbiter of constitutional interpretation, if NGOs persuade the justices, they can actually override the policy preferences of the legislative and executive branches. The rest of this article explores how Indonesian NGOs attempt--often successfully--to influence policy through the Constitutional Court.

The Constitutional Court

In November 2001, as part of the constitutional reform process, the MPR amended the 1945 Constitution to establish a new Constitutional Court (Mahkamah Konstitusi or MK). According to Article 24 of the Constitution, the Court is independent of the other branches of government and has full control over its budget. It has nine justices, three each appointed by the president, the DPR and the Supreme Court (Mahkamah Agung). Justices serve for five-year terms with the possibility of one reappointment. The justices also elect a chief and deputy chief for 30-month terms. The Court opened its doors for business on 13 August 2003.

According to Article 24C of the Constitution, the Constitutional Court has jurisdiction over the following types of cases:

  1. Constitutional review of statutes, or pengujian undang-undang (PUU);

  2. Disputes over the authority of state institutions, or sengketa kewenangan Lembaga...

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