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Reform of Indonesian Law in the Post-Soeharto Era (1998-1999)

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Reform of Indonesian Law in the Post-Soeharto Era (1998-1999) University of Wollongong Research Online University of Wollongong Thesis Collection 1954-2016 University of Wollongong Thesis Collections 2004 Reform of Indonesian law in the post-Soeharto era (1998-1999) Nadirsyah Hosen University of Wollongong, [email protected] Follow this and additional works at: https://ro.uow.edu.au/theses University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong. Recommended Citation Hosen, N, Reform of Indonesian law in the post-Soeharto era (1998-1999), PhD thesis, Faculty of Law, University of Wollongong, 2004. http://ro.uow.edu.au/theses/245 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] REFORM OF INDONESIAN LAW IN THE POST-SOEHARTO ERA (1998-1999) A thesis submitted in fulfillment of the requirements for the award of the degree DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG by NADIRSYAH HOSEN S.Ag (IAIN), GradDipIslamicStud, MA (Hons) (UNE), LLM (NTU) FACULTY OF LAW 2003 Certification I, Nadirsyah Hosen, declare that this thesis, submitted in fulfillment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Nadirsyah Hosen 18 November 2003 ii Abstract The thesis focuses on law reform in Indonesia during 1998-1999 when BJ Habibie took over the presidency from Soeharto who was forced to step down by the students’ movement. I examine seven laws signed by Habibie: three political laws, human rights and press laws, and two anti-corruption laws. The thesis takes the position that since good governance and the rule of law had been absent during the thirty-two years of Soeharto presidency, law reform in the post Soeharto era should fulfill the characteristics of good governance and promote the rule of law. Therefore, the main question addressed here is: did the seven laws produced under Habibie government achieve the standard of the promotion of good governance and the rule of law? In order to answer the question, I evaluate those laws at three levels: drafting process, content, and implementation. The thesis also considers demands for reform, Habibie’s motivation/interest, political tension and compromise, along with national and international pressures, as additional explanations. Having examined all research questions, data and evidence, the thesis argues that Indonesian law reform in Habibie’s term fell a long way short of the maximum standard for promoting good governance and the rule of law. iii Acknowledgement This work is reflection of many years of study and research and I have to acknowledge that it could not have been written without help and support from others. I would like to begin by recognising the courage of the Indonesian university students who took to the streets across the country in 1998, to bring about an end to President Soeharto’s authoritarian New Order. Without their efforts, the transition to democracy would not have taken place when it did, and I would have written a very different thesis. Although this work reflects my own academic work and ideas, and is my sole responsibility, I would like to thank the following people for their help, advice, encouragement, and most of all, their friendship. I owe a great debt of gratitude to Associate Professor Robin Handley, former Dean of the Faculty of Law and former academic supervisor. When he resigned from his position, I realised that I lost one of the best teachers I have ever met. His insightful suggestions and encouragement will always be appreciated. It is not possible to convey here the depth of the dept gratitude I owe to Associate Professor Luke McNamara, who has been the main supervisor, replacing Dean Handley. He has sacrificed his time to make my thesis more readable and my arguments intelligible. Without his continuous guidance and invaluable help, the completion of this work would have been impossible. I learnt much from him not only in the academic field, but also personally. He has been iv much more than a thesis adviser. He has also been a mentor, intellectual sparring partner, and friend. My wholehearted thanks are due to Dr. Kathryn Robinson of the Australian National University. Her position is unique. She is not only my co- supervisor from another university, but she is also an anthropologist. Her expertise as an Indonesianist has helped me to analyse data from different perspectives. If one can sense a multidisciplinary approach in the thesis, she was one of the reasons. She has offered many insightful comments and frequent words of encouragement over the years. In preparation of this thesis I have been very ably helped in different ways by many persons. Professor John Goldring, Judge of the District Court of New South Wales, has suggested that I not neglect the process of law reform. His suggestion has changed the research plan and the structure of the thesis, and I am very grateful. As a result, not only does the thesis examine the product and the implementation of law reform, but it also evaluates the process behind the scenes. I want to thank Dr. Rick Mohr, as Postgraduate Coordinator, for his help and encouragement. I am also indebted to Mr. Ian Usman Lewis, of the ADF School of Languages, who lent a helping hand in editing and proofreading. He was always ready to help me. I have learned a great deal from my fellow students, of whom there are too many to name individually. However, I must mention Arifin Rudiyanto, Agus Setiawan, Imam Wahyudi, and their families, who gave their help, in personal matters, to my family, during our stay in Australia. Without their help, living and v studying in Wollongong would not have been an easy experience. I would also like to express my gratitude to my Indonesian sources. They provided invaluable assistance and friendship. Information which I gathered from them is essential and critical to the thesis. I also wish to express my appreciation for the support awarded me by University of Wollongong. From International Postgraduate Research Scholarship (IPRS) to University Postgraduate Award (UPA), the University has been unfailingly generous. My own family deserves more than can possibly be mentioned here. I owe everything to R. Ina Inayah, my wife, who lived with me through often difficult circumstances. She believed in me when no one else, not even I, thought I could do it. My two daughters, Hamamatul Haramain (5 years) and Nurul Haramain (3 years) become a comfort to my eyes (qurrah a’yun). I do hope that one day they will understand why their father had to sit in front of the computer all day long and could not play with them. In addition, the supports from my brothers and sisters have given me the strength to make it thus far. Finally, I wish to express my sincerest gratitude to my late father, Prof. KH. Ibrahim Hosen, and my mother, Hj. Zatiah Kadir. I was in doubt about studying abroad whilst my parents were ill, but they encouraged me to go ahead. When my father passed away in November 2001, I lost my first law teacher. He provided the daily example of being an exceptional and extraordinary person, which inspired me to push on in pursuit of my own extraordinary ambitions. Every word typed in this thesis was inspired by his love and affection. If it was allowed, I would put his name, along with my name, on the cover of the thesis. It vi is my intention to dedicate this work to him. It is my hope that he would be proud of his youngest son’s work. vii Table of Contents Certification ii Abstract iii Acknowledgement iv Part I: Foundation Chapter 1: Introduction Significance of the Study 4 Research Questions 11 Methodology 18 Thesis Statement 19 Structure of the Analysis 20 Chapter 2: Explaining Law Reform Law and Social Change 23 Law Reform 26 Rule of Law 29 Good Governance 40 Criticisms of the Use of Good Governance and the Rule of Law in Transition Societies 48 Indonesia: Governance and Rule of Law 65 Chapter 3: Indonesia: From Crisis to Law Reform Indonesia at the Edge 76 The Fall of Soeharto and Demands for Reform 88 Habibie’s Law Reform: Vision, Achievements and Criticisms 95 Concluding Remarks 111 Part II: Case Studies Chapter 4: Political Laws Introduction 113 I. Political Laws, Good Governance and the Rule of Law 116 II. Political Laws in the Soeharto Era 127 III.
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