The drafting and enforcement of criminal law is the result of a complex interaction between the state, society and individuals. Criminal law is a way of articulating and applying normative ideas about what a community should be like (Case et al. 2017: 55–80). This means it often has profound political significance. It is therefore no surprise that as Indonesia has transitioned from a colonial regime to a dictatorship, then to a democracy (albeit an imperfect one), criminal justice, or, more often, criminal injustice, has played a prominent part in key political events.
That is true of the defence oration of Soekarno at his trial by the Dutch in 1930, a text that could never have prevented his conviction for subversion but which, as Indonesia Menggugat [Indonesia Accuses], became a foundational document for Indonesian nationalist resistance (Abdullah 2009: 43–5). It was true of the notorious Kopkamtib1 military tribunals that sent hundreds of thousands of suspected communists to death or lengthy imprisonment in the mid-sixties, as the armed forces purged the political left and toppled Soekarno from the Presidency he had held since 1945. It is true of the absence – even now – of trials of those who organised those tribunals, as well as the extra-judicial murders of thousands more leftists around the same time. It is true of the political theatre staged by the Legal Aid Institute (Lembaga Bantuan Hukum, LBH) under Soeharto’s New Order in the 1980s and 1990s, which turned the subversion trials of doomed dissidents into powerful critiques of the regime (Lev 1996). It is true of the nominal trials that eventually convicted only a handful of soldiers for the murders of students and dissidents in the months leading up to the collapse of the New Order in 1998, amid the chaos of the Asian Financial Crisis (Setiawan, Chapter 4, this volume; US Department of State 1999). It is true of the equally disappointing trials that eventually acquitted those prosecuted for human rights abuses in the violence that preceded East Timor’s secession from Indonesia.2 It is true of the trials of bankers implicated in the brazen theft of bail-out funds pumped into Indonesia after 1999 to salvage the country’s shattered financial sector – some of which were still on appeal ten years later. It is true of the 2017 blasphemy trial of Basuki Tjahaja Purnama (‘Ahok’), Jakarta’s ethnic Chinese Christian governor, as he campaigned to retain office, an event that polarised the nation and brought more than 700,000 anti-Ahok protesters on the streets of the capital (Butt 2017; Peterson, Chapter 15). These are just a few examples; there are many more.
Despite the key role crime and punishment have always played in politics in Indonesia – or perhaps because of it – few Indonesians have confidence in their nation’s criminal justice system. They have many reasons for this, but a key one is that too many defendants seem to be convicted in the face of inadequate evidence and blatant disregard for criminal procedural law and defendants’ rights. In fact, most Indonesians are familiar with a parade of notorious high-profile trials that have produced results that many observers (including overseas governments and investors, as well as Indonesians) consider blatantly unjust, or at best highly questionable. Well-known examples include the Manulife case, where a foreign insurance company executive was held in prison on dubious fraud charges as leverage in a wider shareholder battle for control of a lucrative business (Linnan 2008). Another was the notorious Jakarta International School scandal, where school staff, including a Canadian teacher, Neil Bantleman, were convicted of child abuse on the flimsiest of evidence, much of which seemed to be manufactured (Paddock 2019). Or the Jessica Wongso case, where a woman was convicted of murdering a friend in a Jakarta café by poisoning her coffee, when not only was there no real evidence ever presented to show she administered poison to her friend, but there was not even reliable evidence that her friend’s death was the result of poison in the first place (Budiari 2016; Heriyanto 2016). Yet another example was the Antasari Azhar case, where the former chair of the Corruption Eradication Commission (KPK, Komisi Pemberantasan Korupsi) was imprisoned for the murder of man in an alleged love triangle. He was convicted despite the weak evidence adduced, which seemed to give weight to Azhar’s claims that he was framed because of the KPK’s success in investigating corruption among law enforcement officials (Coren 2010).
There are also plenty of other, equally controversial cases where the opposite happens: defendants – usually wealthy and politically powerful – are acquitted despite seemingly convincing evidence of their guilt, with courts performing interpretative gymnastics or relying on technical sleight of hand to justify their ruling. One of the best known involved Setya Novanto, the Speaker of the national legislature, the DPR (Dewan Perwakilan Rakyat, People’s Representative Assembly) and former Golkar Party Chairman, who was able to persuade the courts to dramatically reinterpret criminal procedure law to halt a police investigation of him for corruption (Mann, Chapter 5, this volume).
However, the criminal cases that concern Indonesians are not just about the elite in the capital city either. The country has repeatedly been scandalised by the prosecution of villagers and the poorest of the poor for thefts of the most petty kind – Cacao seeds, a pair of plastic sandals, old plates, fallen branches in a forest – with convictions and hefty prison terms imposed in some cases (Assegaf, Chapter 9, this volume). Some of these cases involved villagers foraging on what were once their traditional lands (Mulyani, Chapter 14, this volume). Few doubt that many of the judges in these cases were simply following the wishes of powerful local business interests, such as plantation owners, logging and mining companies, and the like. These powerful groups, which routinely exploit poorly drafted and implemented state regulation of the resources and forests sectors, have been able to use criminal law as an effective tool in their efforts to divest local communities – often traditional groups – of land rights and access to resources they have enjoyed for generations. Cases like this reinforce popular perceptions that, as Indonesians often say, the ‘law is like a knife, tumpul ke atas, tajam ke bawah’: blunt upwards but sharp downwards.
One does not need to look far for explanations for disturbing acquittals and convictions of the kinds just described. Indeed, it is widely accepted in Indonesia that the criminal justice system in Indonesia is permeated by corruption, from top to bottom, and therefore routinely abused by the wealthy and influential. Responsibility for this is usually said to rest with the infamous ‘judicial mafia’ (mafia peradilan), a term popularly used In Indonesia to refer to all corrupt law enforcers. Successive presidents and chief justices have repeatedly publicly bewailed the judicial mafia and vowed to eradicate it (Butt and Lindsey 2011; Goodpaster 2002). They have little to show for their efforts beyond the occasional scalp of a token police officer, prosecutor or judge, usually taken by the now-beleaguered and politically constrained KPK (Satuan Tugas 2010), although the 2013 imprisoning for life of Akil Mochtar, the Chief Justice of the Constitutional Court, for taking bribes in electoral disputes was undoubtedly a significant achievement in itself.
One of the consequences of the persistent corruption of criminal law enforcement (and sometimes a cause of it) in Indonesia is continuing low levels of competence among many police, prosecutors and judges. This contributes to the common pattern of closing ranks when the conduct of a particular case comes under fire, no matter how egregious. Often this is also done to protect the corrupt system but there are times when even honest law enforcers do the same thing. It is a brave – and rare – Indonesian judge who is prepared to incur the enmity of local police and prosecutors or his or her peers on the bench, let alone the Supreme Court, which has control over judicial career paths. The Supreme Court will reverse lower courts in the most controversial cases, and sometimes even overturn itself, but this is often when the criticism is too intense, and it cannot resist the institutional urge to realign itself with public opinion. Or it might simply be because the bench has been bribed.
The road to dysfunction
The dysfunction of Indonesia’s criminal justice is no recent aberration. In fact, it is the result of long trajectory that Lev (1996, 1999) traces to the collapse of parliamentary democracy in that late 1950s, but which has antecedents in the ideological debates of nationalist leaders in the years leading to the declaration of independence in 1945. The debates then about the form the new republic would take included contests between advocates of a liberal democratic republic, supporters of a socialist system, those who called for an Islamic state, and proponents of authoritarianism or, in Indonesian political thought, ‘Integralism’ (Bourchier 1998; Lubis 1993). Eventually, a democratic model was agreed upon but the task of drafting the constitution was given to the foremost proponent of Integralism, Professor Soepomo. Integralism takes what history has proven to be the naïve view that state and society are identical and unified and therefore there is no need for rights or checks and balances, as the state, embodied in a charismatic ruler, will always have the interests of the people at heart. Predictably, the document Soepomo produced established a very powerful presidency and gave limited authority to the other organs of state. It also conferred no rights on citizens, leaving them instead to be dealt with by the legislature, at its discretion. This set a model for criminal justice that empowered the state, saw the courts essentially as an arm of the executive, and paid little attention to rights.
This model has proved persistent and influential in Indonesian legal culture ever since. That is so even though Indonesia soon adopted liberal democratic constitutions, first on a federal model in 1949 and then as a unitary state in 1950. In fact, the next seven years was a unique period of relative integrity for the criminal justice system, with a high sense of professionalism among lawyers and judges, reflecting the lengthy charter of rights, separation of powers and judicial independence guaranteed in these two constitutions (Lev 1996). This system began to unravel in 1957, when President Soekarno declared a form of emergency rule, suspending most state institutions. It finally came to an end two years later, when he unilaterally (and unconstitutionally) abolished the liberal democratic constitution and reintroduced the Integralist constitution of 1945, allowing him to rule directly (Butt and Lindsey 2018: 7–8). The promulgation of what he called ‘Revolutionary Law’ (Hukum Revolusi) and the power he asserted to intervene in the legal process and overrule court decisions as he saw fit soon led to a rapid deterioration of professionalism across the legal sector, and the politicising of the criminal process. The result was, as Lev (1999) says, harsh laws, unfair trials, incompetent prosecutions, judicial errors, and disproportionate sentences.
When Soeharto toppled Soekarno, taking power in 1966, his promises to restore legality and the rule of law (negara hukum) were welcomed but quickly proved illusory. Instead, Soeharto continued the arbitrary rule of his predecessor, and in some respects even extended it, facilitated by a military bureaucracy that quickly took control of government (Lubis 1993). Despite swinging Indonesia from the political left to the right, Soeharto’s New Order retained the Integralist model developed under Soekarno, with all the problems for criminal justice just described but now complicated by a new problem, as corruption became commonplace (Pompe 2005). This certainly took the form of political influence – so-called ‘telephone justice’, where law enforcers waited for a call from the presidential palace relaying instructions before making decisions (Zifcak 1999) – but an elaborate system of institutionalised state-sanctioned bribery also emerged. It famously stretched from police stations, to prosecutors’ offices, to the steps of the courts (where ‘casebrokers’ waited, clipboards in hands, to collect and distribute bribes), to judges’ chambers, to the palace, which was believed to receive a cut of most illegal payments made to state officials. In time, this vast and highly organised system of corruption became the only effective way for defendants to deal with criminal charges, and it was effective against almost anything but direct intervention by the First Family (Lindsey 1999; Pemberton 1999; Southwood and Flanagan 1983).
Soeharto fell in 1998 amid riots triggered by kristal (krisis total, total crisis), the political and economic chaos delivered by Indonesia’s catastrophic financial collapse after the rupiah was floated in 1997. The 1945 Constitution was soon comprehensively revised to deliver another swing of the political pendulum, this time back towards liberal democracy. The amended 1945 Constitution that was finalised in 2002 after four years of heated legislative debate would have been almost unrecognisable to Professor Soepomo. It had been expanded from 71 to 199 articles,3 so that 89 per cent were new or amended (Horowitz 2013). It was now was far more similar to the liberal democratic constitution of 1950 than the sparse ‘lightning constitution’ he had written. It contained, among other things, a lengthy charter of rights, separation of powers, a Constitutional Court (for the first time), guarantees of free and fair elections, and provisions that forced the military out of politics and back into the barracks. Judicial independence was also guaranteed. As a result, t...
