Indonesian Constitutional Politics 2003–2013 Fritz Edward Siregar A thesis submitted for the degree of Doctor of Juridical Science Faculty of Law March 2016 ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. 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Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……………………………………………........................... Acknowledgements It is true what people say: the doctoral process is not just about producing a thesis. In fact, a student who just goes through the process, and hands in his or her thesis, is not a true doctoral student. The doctoral process is a process of making. This is not only hard work, but also requires perseverance, and the ability to think strategically. It is not just a process of producing a finite number of words, but also a process of choice: which subject to choose among the many that could be discussed? In this process of choosing, one decides what needs to be included and what needs to be discarded. This thesis aims to explain the story of the Indonesian Constitutional Court over its first decade. I had the luxury of being part of the Court’s early generation: I witnessed the Court’s rise. I find it difficult to know which part of the story I should tell and which I should not tell. The arrest of Chief Justice Akil Mochtar in October 2013 resulted in the Court reaching the lowest point of its institutional life. That is another story that needs telling and its effects on the Court observed. The Court opened its door to be interviewed and scrutinised by me. I say thank you to Chief Justice Jimly, Chief Justice Mahfud MD, Chief Justice Hamdan Zoelva and Chief Justice Arief Hidayat, who all openly welcomed this research. With their blessing, I was able to move around the Court freely. I am indebted to the Courts’ officers who assisted me with my data collection and were willing to share their stories. Unfortunately, most of them are active officers and I could not name them in this thesis. The stories they told could jeopardise their careers. For that reason, I have not been able to reveal their names. I thank my supervisors, Prof. Theunis Roux and Prof. Simon Butt. With their kind- hearted support, I have completed this thesis. Many moments occurred during which I could not move forward; however, they kept me going with their spirit. Each complements the other. With his deep expertise in methodology and the South African Constitutional Court, Theunis encouraged me to understand the Indonesian Court more broadly. Theunis also empowered me to view the Court from a comparative perspective. Simon, often used to batiks in the office more than I am, and taught me how to read Court decisions from a wider angle. I have not met an Indonesian able to cite the iii Constitutional Court more than he can. I could never have finished this journey without their supervision. I would also not have finished this journey without the assistance of Dr Jenny Jarret. She is a guardian angel. The doctoral process is a lonely one, and it is lonelier when you are the one experiencing it. Jenny always came and checked whether we were okay. Her generous support and willingness to help is something that I cannot forget. In my difficult time following the departure of my daughter, Dr Jenny provided special assistance. My review panel consisted of great academics in their field. I am so fortunate to have had Prof. Rosalind Dixon, Prof. Andrew Lynch and Dr Paul Kildea in my review panel. Witnessing arguments between my supervisors and the review panel showed me that the panel really worked to help me to finalise the thesis. The panel’s support for my extension request helped in gaining an extension approval from the Australian government. Life at university might be boring without the support of colleagues there to cheer one up. I am lucky to have become ‘social director’ for three years. We shared bread and drinks together, along with laughter. I thank my PhD colleagues. I appreciate the love and support that you gave me. I am thankful to Bhatara Ibnu Reza, Peter Blanchard, Pervaiz Khan, Ngoc Thuan Hoang, Holly Blackmore, Aline Jaeckel, Gabriela Cuadrado, Chenxi Wang, Huiqin Jiang and Nahed Odeh. In my unfortunate situation, you were there for me. I thank the Australian government for believing in me. As a recipient of an Australia Leadership Award, I had the opportunity to accomplish a doctoral degree and live in Australia for four-and-a-half years. This scholarship not only supported our life, but also provided generous conference travel funds that empowered me to travel around the world sharing my research findings. It exposed me to scholars around the world. During the interviews and while collecting data, I conducted two fieldwork trips to Indonesia. I gratefully acknowledge the support of the Law Society of NSW’s Legal Scholarship Support Scheme/Public Purpose funding for those trips. I also gratefully acknowledge iv the support of Sir Anthony Mason’s PhD Award in Public Law for partly funding this research. This thesis was accomplished with the support of many friends in Indonesia and Australia. You supported me financially, were accessible and willing to lend a shoulder to lean on when we needed it. The Jakarta Praise Community Church, Date Pejompongan, Connect Group Zetland and the Sumeringah are only a few of the people and groups that helped me. Unfortunately, I cannot list all your names one-by-one, due to limited space, but you know who you are. I thank you. Last, but not least, I thank my family who have always been there for us. Papa Mama in Medan, our family in Indonesia, you have been there for me. My lovely wife, Diana Virna Simanjuntak, my son, Denzel Frederick Siregar, and my daughter, Gracee Alana Siregar, you are all part of this journey. You came with me to Australia and we finish this journey together. We spent a great time in Australia and by the grace of God, I believe He will take care our life back home in Indonesia. This thesis process created a better version of me, and I am grateful that I have achieved Fritz 2.0. v Abstract In 2011, the Indonesian Parliament enacted Law 8 of 2011 amending Law 24 of 2003 on the Indonesian Constitutional Court. The amendment was intended to limit the Court’s jurisdiction after a period of sustained activism. The Court responded by declaring substantial parts of the amending law constitutionally invalid. This dissertation examines the timing and nature of this unsuccessful ‘attack’ on the Court’s authority and the reasons behind the apparent ease with which the Court was able to thwart it. Two broad sets of theorisations of judicial power are tested: those that focus on external factors or background political conditions, and those that focus on internal factors or the issue of judicial agency. The dissertation’s central finding is that no single theorization adequately accounts for the events of 2011. Rather, a combination of theoretical perspectives is required. From 2003-2008, the Court’s first Chief Justice, Jimly Asshiddiqie, exploited the window of opportunity provided by the groundswell of popular support for constitutionalism in Indonesia to build the Court’s public reputation. His successor, Mahfud MD, was appointed to the Court on promises of returning it to its original jurisdiction. Instead, Mahfud MD pushed the Court in an even more activist direction, dispensing with Asshiddiqie’s careful, scholarly style and introducing a ‘substantive justice’ approach that further exacerbated the Court’s relationship with the political branches. That change explains the timing of the 2011 attack. The Court’s capacity to resist the attack, in turn, was a function of the fragmentation of Indonesian party politics.