journal of East Asian Studies 10 (2010). 397-424 Political Conflict Resolution and Democratic Consolidation in Indonesia: The Role of the Constitutional Court Marcus Mietzner This article argues that Indonesia's Constitutional Court has played a signifi- cant role in that country's transformation from a violence-prone polity into Southeast Asia's most stable democracy. The Court has advanced institutional conflict resolution mechanisms and expanded democratic rights—two achieve- ments identified by Linz and Stepan as major indicators of a consolidating de- mocracy. Building on models developed by Ginsburg and Horowitz, my analy- sis also illustrates why the Court has been able to defend its autonomy and become an agent of democratization. While sharing Ginsburg's emphasis on high levels of power diffusion as a key reason for the Court's success, this ar- ticle moves beyond such an approach. Most importantly, it suggests that the judges' "judicial activism"—as expressed in a number of controversial but popular decision—increased Indonesian society's support for the Court to such an extent that is has now become largely invulnerable to attempts of external intervention. KEYWORDS: Indonesia, democratic consolidation, conflict resolution, constitu- tional court or much of the past decade, comparative scholars of democrati- F zation observed with some astonishment how post-Suharto In- donesia moved from a fragile and conflict-ridden transition into an early, but much more stable, phase of democratic consolidation. Dis- proving some gloomy predictions made for Indonesia at the time of Suharto's fall, the country has established a functioning electoral de- mocracy, stabilized its economy, ended a series of communal conflicts. 397 398 Political Conflict Resolution in Indonesia and even settled the decades-old separatist conflict in Aceh through po- litical negotiations. This development has been all the more surprising since it took place against the backdrop of a global democratic reces- sion (Diamond 2010), with the Southeast Asian region experiencing re- versals of democracy in the Philippines and Thailand. As of 2010, In- donesia is the only country in the Association of Southeast Asian Nations (ASEAN) considered an electoral democracy and the only state in the region classified as "free" (Freedom House 2010). Both long-time Indonesia watchers and theorists of democracy have struggled to understand the reasons for the democratic progress of a country whose only experience with democracy prior to 1998 had been a short period of parliamentarism in the 1950s. In trying to explain Indonesia's success, authors have offered a wide variety of possible factors, ranging from the deescalation of religious and ethnic differences (Aspinall 2010), sound economic management (Hill and Manning 2009), and the modernization of the electoral landscape (Mujani and Liddle 2010), to the gradual marginalization of the military (Mietzner 2009). While all of these analyses are important contributions to the de- bate, one significant part of the puzzle has often been overlooked: the role of Indonesia's Constitutional Court.' This omission occurred de- spite obvious indications that the Court at least assisted in Indonesia's political stabilization, particularly in the areas of conflict resolution and the expansion of democratic rights. Most important, since the establish- ment of the Court as a judicial and political arbitrator in 2003, there has been no more large-scale violent conflict between Indonesia's major so- ciopolitical forces, and the country's score in political rights and civil liberties increased significantly in all relevant democracy indexes (Free- dom House 2010). That constitutional courts can play a positive role in the stabiliza- tion of transitional democracies is not a new theoretical insight, and it is certainly not limited to Indonesia. According to Donald L. Horowitz (2006, 128), constitutional courts have the potential to support "the transition to and consolidation of a stable democratic regime." How- ever, not all constitutional courts have advanced democracy. In 2005, more than 75 percent of all states had mechanisms for judicial review (i.e., a process for evaluating the constitutionality of legislation), exer- cised either through ordinary courts or separate constitutional courts. Among these states, there were "a good many countries with undemo- cratic regimes" (Horowitz 2006, 125), suggesting that there is no strin- gent causal link between the creation of a constitutional court and suc- cessful democratization. Marcus Mietzner 399 Accordingly, in recent years the scholarship on constitutional courts has focused on the factors that led some courts to become agents of democratization, while others failed or turned into instruments of au- tocratic regimes. Tom Ginsburg (2003), for example, bas emphasized that a court's ability to defend democratic rights in the face of vested political interests is to a large extent determined by its institutional de- sign (for instance, the level of general access to the court and the ap- pointment mechanism for the judges). Others, like Ruti Teitel (2007), have explained the divergent performance of courts by the different law traditions they use, and still others—such as Ran Hirschl (2004)—have identified elite attitudes as the most crucial determinant. This article analyzes the ways in which Indonesia's Constitutional Court has contributed to political conflict resolution and democratic consolidation. It argues that the institutional factors highlighted by Ginsburg are partly responsible for the Court's success, and it also shares Ginsburg's view that the diffusion of political power in particu- lar societies can increase the likelihood of elite support for constitutional courts and their rulings. But in one important aspect, the article goes be- yond Ginsburg and the mainstream literature on constitutional courts and it challenges some accounts of the Indonesian Court so far. Horowitz (2006, 132), for example, has warned that "involvement in major politi- cal controversies" can severely damage the court's credibility and in- tegrity. In Horowitz's opinion (2006, 131), courts should not try to "in- trude into politics," with the Hungarian Court providing a classic example for harmful politicization (Scheppele 1999). In the same vein, Simon Butt (2006) has criticized the Indonesian Court for its "activism," suggesting that it frequently oversteps the boundaries of its mandate in order to pursue its own agenda. In this article, however, I argue that it is precisely the corrective (and very aggressive) intervention in highly con- tentious political issues that has consolidated the moral stature of the Court in Indonesian society. These interventions have bolstered the Court's popularity, which in turn has offered its judges additional protec- tion from elite attempts to influence their decisions. I develop my arguments in six analytical steps. The discussion be- gins with an overview of the turbulent early phase of Indonesia's transi- tion, in which an unclear institutional framework triggered political con- flict and eventually led to the creation of a constitutional court in 2003. Second, the article illustrates the institutional design of the Court, con- firming Ginsburg's stress on judicial powers but also underlining the significance of administrative autonomy. The third section of the dis- cussion examines in detail selected verdicts in the field of political (and. 400 Political Conflict Resolution in Indonesia in particular, electoral) conflict resolution, demonstrating how the Court mitigated intra-elite tensions. Fourth, the article highlights the Court's contribution to the expansion of democratic rights, looking at important rulings that advanced civil liberties and granted Indonesian voters a greater say in elections. The fifth section offers explanations for the abil- ity of the Court to withstand external pressure and impose its verdicts against disgruntlement within the elite. With Ginsburg, the discussion points to the importance of political "diffusion" in establishing the judges' power, but it also introduces additional explanatory proposi- tions: the support and "coercion" exercised by civil society, the personal courage of judges, and the increasing popularity of the Court as the re- sult of high-profile interventions in political affairs. Finally, the article concludes by crediting the Court for its role in Indonesia's democratic consolidation but also warn that the Court's success has papered over the crisis of the country's other political and judicial institutions. Political Conflicts Before 2003: Mass Mobilization and Military intervention Most scholars agree that the introduction of constitutional courts (or other mechanisms of judicial review) generally occurs during political transitions or periods of major political and economic change (Gins- burg 2003; Hirschl 2004; Horowitz 2006; Hilbink 2006). In Ginsburg's view—which is shared by Horowitz—heightened political uncertainty tends to convince worried political elites that an independent court overseeing the constitutionality of laws and policies could offer them "protection against a day when their adversaries may act against them" (Horowitz 2006, 126). This model of constitutional courts as an "in- surance policy" against political upheaval and authoritarian majority rule is also applicable to the case of Indonesia, where the idea of creat- ing a constitutional court was bom out of a period marked by regula-