Embedded Judicial Autonomy: How Ngos and Public Opinion Influence
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Embedded Judicial Autonomy: How NGOs and Public Opinion Influence Indonesia's Constitutional Court by Dominic J. Nardi, Jr. A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Political Science) in The University of Michigan 2018 Doctoral Committee: Professor Allen D. Hicken, Chair Associate Professor John D. Ciorciari Professor Thomas B. Ginsburg, University of Chicago Professor Walter R. Mebane, Jr. Dominic J. Nardi, Jr. [email protected] ORCID iD: 0000-0002-9414-2071 c Dominic J. Nardi, Jr. 2018 For the lawyers advocating on behalf of legal reform and social justice in Indonesia. ii ACKNOWLEDGEMENTS Despite the popular stereotype of the lonely scholar toiling away in the Ivory Tower, throughout my time at the University of Michigan I found that great scholarship requires the support of a community. I benefitted from the academic insights, financial assistance, and emotional support of numerous people around the world during the past seven years. First and foremost, I would like to thank the members of my dissertation committee, who have guided and put up with me for almost half a decade. It has been a honor for me to work with such an extraordinary group of scholars. When I first arrived at the University of Michigan, several students told me that I was fortunate to focus on Southeast Asia because I would have the opportunity to work with Allen Hicken. Allen has been incredibly supportive over the years, both as a dissertation chairman and as a mentor. He helped me navigate the sometimes intimidating world of academia and made me feel I wasn't alone in this endeavor. Given that we both went to law school before pursuing a Ph.D., I've always viewed John Ciorciari as a role model for making the transition from law to academia. John has a way of asking the right questions about my research to make sure I focused on the most important issues and never got lost in the methodological weeds. He has also reminded me that even though we can't necessarily measure legal doctrine, it still matters. In many ways, I have Tom Ginsburg to thank for inspiring me to pursue a Ph.D. in political science. I first read Tom's classic Judicial Review in New Democracies during my second year at law school. I was captivated by the way he used statistical models to study constitutional courts in Asia. I decided right then and there that I wanted to learn how to iii do what Tom did. Walter Mebane introduced me to natural language processing in his Multivariate Anal- ysis class in 2012. This proved an important intellectual breakthrough as I realized I could use the texts of judicial decisions as data. Walter's encouragement and feedback on my early attempts to use latent topic models led directly to this dissertation. In order to code information about litigants in constitutional cases, I needed research assistants. Professor Yance Arizona of President University in Cikarang, Indonesia, kindly asked if any of his students would be interested in working for my project. Muhammad Faiz Aziz, Muhammad Fadhly Dzil Ikram, Miranti (\Mira") Putri, and Herti Septhiany answered the call and made the task of coding over 500 cases much more manageable. Without their help, I would never have been able to compile such a thorough dataset. While it is always helpful to know the language of a country you are studying, it was particularly crucial for this dissertation project because so much of my work involves natu- ral language processing. As such, I am indebted to Professor Agustini of the University of Michigan and Professor Nona Kurniani of the Johns Hopkins School of Advanced Interna- tional Studies (SAIS), who taught me Indonesian and were patient as I struggled to learn the various verb conjugations. I also received assistance translating longer passages of text from the University of Michigan Language Resource Center's 2016 Translata-Thon. Over the course of several trips to Indonesia, I met dozens of lawyers, judges, activists, and professors who helped inform my understanding of the Indonesian Constitutional Court. I would like to thank each of them for taking the time to meet with me, especially Fritz Siregar, Yance Arizona, Tomi Suryo Utomo, Danang, Giri, Refly Harun, Kanti, Ridaya Laodengkowe, Maria Lousia, Erwin Oemar, and Wijayanto Samirin. My conversations with them led me to focus on the role of NGOs in constitutional litigation. I am also indebted to Judges Jimly Asshiddiqie, Maruarar Siahaan, and I Dewa Gede Palguna, as well as Hanindyo for helping me to access records in the Constitutional Court library. Over the years, I have presented chapters of this dissertation at various conferences and iv have received invaluable feedback. In particular, I would like to thank the participants of the Fall 2011 University of Michigan Comparative Politics Workshop, the 2011 Southeast Asia: Between the Lines conference, and the 2012 and 2017 Midwest Political Science Association annual meetings. I received funding to travel to these conferences from the University of Michigan Department of Political Science, as well as from the Rackham Graduate School and International Institute. Several of my professors, including Jenna Bednar, Kenneth McElwain, Brian Min, and Mariah Zeisberg, provided feedback on papers I submitted for classes that later informed my dissertation. I also had informative conversations with Simon Butt, Nick Cheesman, Melissa Crouch, Marcus Mietzner, and Dan Slater about my research. This dissertation would not have been possible without the generous financial support of donors interested in advancing political science and the study of Indonesia. I first went to Indonesia in 2007 for a summer internship with support from the Georgetown University Law Center. I received tuition assistance from the Freeman Foundation to attend SAIS, where I first studied Indonesian politics. When I began my Ph.D. program in 2010, Rackham Graduate School and the International Institute provided me with a Rackham International Research Award in order to work at The Asia Foundation's office in Jakarta. This trip proved instrumental in allowing me to explore potential dissertation topics. The U.S.-Indonesia Society's 2013 Sumitro Fellowship allowed me to complete fieldwork in Jakarta. Upon my return, the UM Department of Political Science generously provided me with a Clark & Robin Chandler Graduate Award, a One-Term Dissertation Fellowship, and multiple tuition-only fellowships so I could focus on writing my dissertation. I also received FLAS Fellowships in 2011 and 2016 from the Department of Education to take Indonesian-language classes. Finally, I need to thank my parents, Dominic and Frances Nardi. They did more for me than I could possibly know. It is only because of their persistence and love that I had the opportunity to attend college and travel to Southeast Asia. While I take responsibility for all shortcomings of this dissertation, I could not have accomplished this on my own. It takes a campus to write a dissertation. v TABLE OF CONTENTS DEDICATION :::::::::::::::::::::::::::::::::::::: ii ACKNOWLEDGEMENTS :::::::::::::::::::::::::::::: iii LIST OF FIGURES ::::::::::::::::::::::::::::::::::: ix LIST OF TABLES :::::::::::::::::::::::::::::::::::: xi LIST OF APPENDICES :::::::::::::::::::::::::::::::: xii LIST OF ABBREVIATIONS ::::::::::::::::::::::::::::: xiii ABSTRACT ::::::::::::::::::::::::::::::::::::::: xv CHAPTER I. Introduction ..................................1 1.1 The Puzzle: Embedded Autonomy . .2 1.2 A Single-Country Approach: Indonesia . .5 1.3 Empirical Methods & Findings . .9 II. Background ................................... 12 2.1 The Indonesian Judicial System . 12 2.1.1 Revolution & Guided Democracy (1945-1965) . 13 2.1.2 The New Order (1965-1998) . 15 2.1.3 Reformasi (1998-2002) . 18 2.2 The Constitutional Court (Mahkamah Konstitusi).......... 21 2.2.1 Why a Constitutional Court? . 21 2.2.2 Institution & Powers . 24 2.3 Embedded & Autonomous . 31 2.3.1 Defying Political Elites . 31 2.3.2 Alternative Explanations . 37 2.3.3 Courting Interest Groups . 41 vi 2.4 Concluding Remarks . 45 III. Theory ...................................... 47 3.1 Legal-Political Models . 47 3.1.1 Formalist Model . 48 3.1.2 Attitudinal Model . 50 3.1.3 Historical-Institutionalist Model . 51 3.1.4 Strategic-Institutionalist Model . 52 3.2 Embedded Judicial Autonomy . 54 3.2.1 Typology . 54 3.2.2 Game Theoretic Model . 57 3.2.3 Nongovernmental Organizations . 67 3.2.4 Centralization of Review . 68 3.2.5 New Courts . 69 3.3 Concluding Remarks . 71 IV. Agenda Setting ................................. 72 4.1 Theory . 73 4.1.1 Literature Review . 74 4.1.2 Hypotheses . 78 4.2 Methodology & Data . 80 4.2.1 Data & Measurement . 81 4.2.2 Processing the Petitions . 83 4.2.3 Structural Topic Model . 86 4.2.4 Selecting the Number of Topics . 93 4.3 Results . 95 4.3.1 Topics . 95 4.3.2 Type of Petitioner . 106 4.3.3 Type of NGO . 109 4.4 Case Narratives . 112 4.5 Discussion . 118 4.6 Concluding Remarks . 121 V. Judicial Voting ................................. 124 5.1 Theory . 125 5.1.1 Literature Review . 125 5.1.2 Hypotheses . 132 5.2 Methodology & Data . 135 5.2.1 Petitioners . 136 5.2.2 Other Variables . 141 5.3 Results . 143 5.3.1 Petitioners . 143 vii 5.3.2 Other Variables . 149 5.4 Case Narratives . 152 5.5 Discussion . 156 5.5.1 Presidential Statements & Public Opinion . 159 5.6 Concluding Remarks . 162 VI. Credible Information ............................. 165 6.1 Theory . 166 6.1.1 Literature Review . 166 6.1.2 Hypotheses . 171 6.2 Methodology & Data . 172 6.2.1 Data & Measurement: WCopyfind . 173 6.2.2 Empirical Strategy: Fractional Logit . 175 6.3 Results . 179 6.3.1 Petitioners . 180 6.3.2 Related Party Briefs . 186 6.3.3 Other Variables . 188 6.4 Case Narrative . 190 6.5 Discussion . 196 6.6 Concluding Remarks .