xi Preface - University of Amsterdam [PDF]

CONTENTS

Preface ......................................................................................................................................vii Abbreviations ............................................................................................................................ix Chapter 1: Introduction .............................................................................................................. 1 1 Academic Background......................................................................................................... 2 2 Theoretical Perspectives ...................................................................................................... 4 3 Course of the Research ........................................................................................................ 6 4 Methodology ........................................................................................................................ 8 5 Structure of the Book ......................................................................................................... 10 Chapter 2: The History of Judicial Review in Indonesia ........................................................ 11 1 Prelude: The Netherlands and the Netherlands Indies .................................................... 11 2 The Revolution (1945-1949)............................................................................................ 15 3 The Parliamentary Years And the Transition to Guided Democracy (1950-1959) ........ 18 4 Guided Democracy (1959-1965) ..................................................................................... 23 5 The New Order (1965-1982) ........................................................................................... 26 6 The 1982 Bill .................................................................................................................... 31 7 The 1986 Bill .................................................................................................................... 37 8 Conclusion ........................................................................................................................ 49 Chapter 3: Administrative Court Review: Basic Concepts and Their Interpretation 1 Jurisdiction ........................................................................................................................ 53 (a) Administrative Body or Official ........................................................................... 53 (b) Attribution, Delegation and Mandate ................................................................... 60 (c) Administrative Decision ....................................................................................... 62 (d) Excluded Administrative Decisions...................................................................... 69 (e) Constructive Administrative Decisions ................................................................ 78 (f) Decisions Taken in Administrative Appeal .......................................................... 80 (g) Concluding Remarks ............................................................................................. 82 2 Standing to Sue ................................................................................................................. 84 3 Term of Limitation............................................................................................................ 87 4 Grounds for Review (Article 53 paragraph 2) ................................................................. 92 (a) Contravention of Prevailing Laws and Regulations .............................................. 92 (b) Détournement de pouvoir....................................................................................... 95 (c) Arbitrariness ........................................................................................................... 96 (d) General Principles of Proper Administration ........................................................ 97 (e) Concluding Remarks ............................................................................................ 100 5 Conclusion ....................................................................................................................... 101 xi

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Chapter 4: Administrative Court Procedure .......................................................................... 103 1 Legal Representation ...................................................................................................... 103 2 Costs .............................................................................................................................. 104 3 The Claim ...................................................................................................................... 105 4 Relative Jurisdiction ...................................................................................................... 106 5 Registration of the Claim .............................................................................................. 107 6 Dismissal of the Claim .................................................................................................. 108 7 The Preparatory Investigation ....................................................................................... 109 8 Settlement ...................................................................................................................... 111 9 Intervention .................................................................................................................... 112 10 Suspension ..................................................................................................................... 113 11 Fast-track Procedure ...................................................................................................... 116 12 Number of Judges, Maintenance of Order, and Challenging a Judge .......................... 117 13 Default ........................................................................................................................... 118 14 Claim and Response ...................................................................................................... 119 15 Demurrers ...................................................................................................................... 120 16 Information .................................................................................................................... 121 17 Inquisitorial Aspects ...................................................................................................... 121 18 Evidence ........................................................................................................................ 123 (a) General.................................................................................................................. 123 (b) Written Evidence .................................................................................................. 124 (c) Witnesses .............................................................................................................. 125 (d) Experts .................................................................................................................. 126 (e) The Ad Hoc Judge ................................................................................................ 127 19 The Conclusion of the Examination and the Judgment ................................................ 127 20 Damages ........................................................................................................................ 130 21 Rehabilitation ................................................................................................................ 131 22 Formal Requirements of the Judgment ......................................................................... 132 23 Execution of Judgments ................................................................................................ 133 24 Legal Remedies .............................................................................................................. 135 (a) Appeal .................................................................................................................. 135 (b) Cassation .............................................................................................................. 137 (c) Revision ............................................................................................................... 138 25 Conclusion ...................................................................................................................... 139 Chapter 5: Civil Service Law in the Administrative Courts ................................................. 141 1 A Few General Remarks on the Civil Service, Disputes and Dispute Resolution ......... 141 2 Disciplinary Sanctions ..................................................................................................... 143 3 Sanctions because of Absence from the Office ............................................................... 147 4 Transfer ........................................................................................................................... 148 5 Admission, Promotion, Pensions and Salaries ................................................................ 150 6 Conclusion ....................................................................................................................... 151 Chapter 6: Land Law in the Administrative Courts .............................................................. 153 1 Land Appropriation.......................................................................................................... 155 (a) Land Clearance ..................................................................................................... 155

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(b) Location Permits (Izin Lokasi) ............................................................................. 158 2 Land Rights ...................................................................................................................... 161 3 Certificates ....................................................................................................................... 166 4 Conclusion ....................................................................................................................... 169 Chapter 7: Constitutional Law in the Administrative Courts ............................................... 171 1 Freedom of Religion ........................................................................................................ 171 (a) Religious Organisation ......................................................................................... 171 (b) Recognition of Religions and Marriage Registration ......................................... 174 2 Freedom of Opinion and Expression ............................................................................... 177 3 Freedom of Movement .................................................................................................... 182 4 Restrictions on the Performance of Civil Rights............................................................. 183 5 Access to Detainees ......................................................................................................... 184 6 Restrictions on Political Parties ....................................................................................... 185 7 Village Head Elections .................................................................................................... 187 8 Conclusion ....................................................................................................................... 189 Chapter 8: Administrative Court Organisation ..................................................................... 191 1 Indonesian Court Organisation and Management Under the New Order ...................... 191 2 Financial Resources: The Administrative Court Budget and its Allocation .................. 193 3 Human Resources ............................................................................................................ 197 (a) General Features of Recruitment for the Indonesian Judiciary ........................... 197 (b) Administrative Court Recruitment....................................................................... 199 (c) Types of Judges .................................................................................................... 203 (d) Training ................................................................................................................ 204 (e) General Features of Judicial Career Management ............................................... 204 (f) Career Management in the Administrative Courts............................................... 205 (g) The Career System as a Mechanism for Discipline ............................................ 209 4 Hierarchical Control......................................................................................................... 210 (a) Disciplinary Supervision against Corruption and Political Loyalty.................... 210 (b) Appeal and Cassation ........................................................................................... 214 (c) Circular Letters and Special Guidelines............................................................... 217 (d) Supervision of the Administration of Justice....................................................... 218 5 The First-Instance Court: Leadership, Internal Structure and Circumstances ............... 221 (a) Scale and Workload ............................................................................................. 221 (b) The Panels of Judges: Composition and Procedure ............................................ 222 (c) The Distribution of Cases and Fast-Track Procedure .......................................... 224 (d) Procedural Reforms, Upgrading Judicial Knowledge and Bolstering Court Spirit ........................................................................................................... 225 (e) Control of the Registry ......................................................................................... 226 6 Conclusion ....................................................................................................................... 227

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Chapter 9: Outside Influences on Administrative Court Performance ................................. 231 1 Authority Problems vis-à-vis the Executive: Intervention, Non-Execution, Refusals to Appear, and Evasion ..................................................................................... 231 2 Rezeki and its Effects ....................................................................................................... 236 (a) Widening Absolute and Relative Jurisdiction ..................................................... 240 (b) Prolonged Litigation............................................................................................. 240 (c) Influence on the Decision-Making Process ......................................................... 241 3 Advocates ......................................................................................................................... 242 4 Defendants’ Representatives ........................................................................................... 245 5 The Accommodation of Administrative Procedure ........................................................ 247 6 Administrative and General Courts: Allies or Rivals?.................................................... 248 7 P.O. Box 5000 and the National Human Rights Commission........................................ 251 8 Political Support for Administrative Court Authority .................................................... 253 9 Conclusion ....................................................................................................................... 254 Chapter 10: Conclusion ......................................................................................................... 263 1 Problems of Basic Concepts and Procedural Law ........................................................ 264 2 Problems Pertaining to Substantive Law ....................................................................... 268 3 Problems of an Institutional Nature ............................................................................... 269 4 Afterword ......................................................................................................................... 272 Bibliography .......................................................................................................................... 275 Table of Cases ........................................................................................................................ 287 Index....................................................................................................................................... 295 Appendix 1: Statistics on Transfer ........................................................................................ 297

PREFACE More than two years following the demise of Soeharto, Indonesia is still grappling to find a way out of a profound economic, political and social crisis. How long this struggle will last and what the outcome will be is impossible to predict. However, one point of consensus seems to have emerged from the diversity of opinion concerning Indonesia’s plight: if the position and performance of the judiciary does not radically improve, the prospect of any lasting stability is slim. For this reason, the judiciary has now become the focus of much public debate, with many politicians, scholars and others proffering suggestions to solve the problems that have plagued the administration of justice for so long. This study hopes to contribute to this quest for a functional judiciary, particularly with regards to the administrative courts. Many Indonesians assumed the administrative courts, having become operational in 1991, would facilitate greater control over the New Order administration and provide citizens with a more effective means of protection against the state. I will show that this goal has not been achieved, although the courts’ record in this respect is not altogether negative. I will argue that the root of the problem lies partly in the limited jurisdictional mandate of the administrative courts and the general problems of administrative law in Indonesia. In addition, non-legal factors, such as judicial corruption and the general political environment under the New Order, have had detrimental effects on the quality of the justice administered. Finally, I will offer a number of suggestions to bolster what has been achieved and to redress what has not. This study evolved out of a PhD-proposal written by Jan Michiel Otto of the Van Vollenhoven Institute (VVI). Upon starting my research in 1992, I was optimistic that I would do the job in about five years. The fact that it took me three more years has had two main advantages: firstly, I have had considerably more time to think about my analysis and have been able to consider previously unexplored theoretical angles, and secondly, I have been able to cover a longer period, even if the emphasis is on the years between 1992 and 1995. After having defended the study as a PhD-thesis in April 2000, I have also been able to rework many comments into this new version. This is, of course, the appropriate time and place to thank a number of people, without whom this study would have suffered greatly. First of all, professors Jan Michiel Otto and Thijs Drupsteen who supervised the PhD-project. The stimulating discussions with the former and the ‘common sense’ approach of the latter have much shaped my academic mindset and the course of the research. Sebastiaan Pompe deserves special reference, for innumerable discussions on the Indonesian judiciary and for his own research on the Indonesian Supreme court, which has proved an invaluable reference. Many of my other colleagues at the VVI need to be mentioned here: Nicole Niessen (my former coIndonesia researcher at the VVI), Barbara Oomen, Harold Munneke, Ab Massier, David Nicholson, and Brian Tamanaha have all contributed valuable insights for this study, valuable materials (Albert Dekker, Cora de Waaij and Sylvia Holverda), or otherwise fruitful discussions and moral support (Laila al-Zwaini, Julia Arnscheidt, Leon Buskens, Carola Klamer and Nel de Jong). And then there have been others outside the VVI. Outside the VVI, Dan Lev was the xi

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first to introduce me to a ‘political science’ approach to courts and the law, during the first phase of this project. Later, Kyong Rijnders helped me find a way out of the sociolegal labyrinth, while Nick Huls reminded me not to lose sight of the ‘red thread’. Ben Tahyar helped ‘sharpen my pen’ and get the message across and was of great assistance in correcting my use of legal English. Finally, Sandra Jones has been a most efficient copy-editor and moreover very pleasant to work with, while Paul Janse did the great job of getting everything into the right template. Of course many others have helped getting this study finished. My parents and my family in law both in the Netherlands and Indonesia deserve special reference, as do my children who only knew that daddy was working on ‘his judges’ again and let him most of the time. This brings me to the Indonesian side of this enterprise. Without the help and often friendship of a number of Indonesian scholars and judges this whole endeavour would have been doomed to failure. Professors Hadjon, Syafrudin and Sutantio have been more than helpful and generous with their precious time. The same goes for Professor and now Supreme Justice Lotulung. While Administrative Court Judges Siahaan, Sukardi, Mangkoedilaga, Fachruddin, Nurdu’a, Wahyunaidi, Soedewo, Aryanto, Harmani, Sugiya, Soejoedono, Hamid, Anshari and many others have helped me to understand what administrative courts do and why they do it. There is no way that I can mention here all of those who have helped me along the way. But one person cannot be forgotten, since without her I would neither have commenced nor finished this book: my wife Karina to whom it is dedicated.

ABBREVIATIONS ABRI ACA ACF BAL BAPEK BLJP BPHN BUPLN CL DALDI DGI DIM DPR ET GR HIR ICEL IKADIN IKAHI IPTN JAI KASI KIPP KKN KORPRI KP3N LAC LAN LBH LPHN MAWI MPP MPRS

Angkatan Bersenjata Republik Indonesia [Armed Forces of the Indonesian Republic] Administrative Court of Appeal Administrative Court of First Instance Basic Agrarian Law [Law no. 5/1960] Badan Pertimbangan Kepegawaian [Tribunal for Civil Service Affairs] Basic Law on Judicial Principles [Law no. 14/1970] Badan Pembinaan Hukum Nasional [Agency for National Law Development] Badan Urusan Piutang dan Lelang Negara [Agency for the Management of State Loans and Auctions] Circular Letter Diagnostic Assessment of Legal Development in Indonesia Dewan Gereja-gereja di Indonesia [Indonesian Synod] Daftar Isi Masalah [Register of Grievances] Dewan Perwakilan Rakyat [Parliament] Eks Tahanan Politik [‘politically suspect’] Government Regulation Herzien Indonesisch Reglement [Civil Procedural Code] Indonesian Centre for Environmental Law Ikatan Advokat Indonesia [Indonesian Bar Association] Ikatan Hakim Indonesia [Indonesian Judges Association] Industri Pesawat Terbang Nusantara [National Aircraft Industry] Jemaat Ahmadiyah Indonesia [Indonesian Ahmadiyah Community] Kesatuan Aksi Sarjana Indonesia [Action Group of Indonesian Graduates] Komite Independen Pemantau Pemilu [Independent Committee for Election Monitoring] Kolusi, Korupsi dan Nepotisme [Collusion, Corruption and Nepotism] Korps Pegawai Republik Indonesia [Indonesian Civil Service Association] Kantor Pelayanan Pengurusan Piutang Negara [Service Offices for the Management of State Loans] Law on Administrative Courts [Law no. 5/1986] Lembaga Administratif Nasional [National Institute for Administration] Lembaga Bantuan Hukum [Legal Aid Bureau] Lembaga Pembinaan Hukum Nasional [Institute for the Development of National Law] Majelis Agung Waligereja Indonesia [Indonesian Supreme Vestry] Majelis Pertimbangan Pajak [Tax Tribunal] Majelis Permusyawaratan Rakyat Sementara [People’s Provisional

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Consultative Congress] Majelis Ulama Indonesia [Council of Indonesian Muslim Scholars] Non-Governmental Organisation Panitia Penyelesaian Perselisihan Perburuhan Daerah [District Tribunal for Labour Disputes] P4P Panitia Penyelesaian Perselisihan Perburuhan Pusat [Central Tribunal for Labour Disputes] PDI Partai Demokrasi Indonesia [Indonesian Democratic Party] PERSAHI Persatuan Sarjana Hukum Indonesia [Association of Indonesian Jurists] PHDP Parisada Hindu Dharma Pusat [Supreme Council of the Hindu/Bali Religion] PLN Perusahaan Listrik Negara [National Electricity Company] PN Pengadilan Negeri [district court] PPP Partai Persatuan Pembangunan [United Development Party] PPR Partai Proklamasi Republik [Proclamation of the Republic Party] PRD Partai Rakyat Demokratik [Democratic People’s Party] PUPN Panitia Urusan Piutang Negara [Committee for the Management of State Loans] REI Real Estate Indonesia [Organisation of Real Estate Developers Indonesia] S Staatsblad [place of publication for colonial regulations] SC Special Committee SCM Special Committee Meeting WALUBI Perwalian Umat Buddha Indonesia [Trusteeship of Indonesian Buddhists] WCM Working Committee Meeting MUI NGO P4D

CHAPTER 1 INTRODUCTION One of the most remarkable changes in Indonesia’s legal system in the past decade has been the establishment of administrative courts. Legal protection and the rule of law (which these courts are designed to serve) are concepts not commonly associated with the authoritarian New Order regime, and to many their introduction came as a surprise. From 1991 onwards they have passed hundreds of judgments in cases against the administration, and while most of these involved petty matters and have gone unnoticed, some of them – notably Tempo and IPTN (also known as Reforestation Fund) – have attracted international attention. In Indonesia itself, the administrative courts are perceived to have revolutionised the legal landscape. They have become a part of daily life, thanks to the intensive press coverage, and there is no reason to assume that this will change in the near future. Conversely, scholarly interest in the courts has been less than overwhelming. There have been a few publications in English, but most of these were fairly general in nature, providing only the outlines of the system1 or commenting on their establishment from a political science perspective. 2 Indonesian publications on the administrative courts outnumber the English, but the majority are mere formal legal elucidations of administrative procedure, which fail to deal with the manner in which justice is administered in practice. 3 Lotulung, P.L., ‘Judicial Review in Indonesia’ in Zhang, Y. (ed.) Comparative Studies on the Judicial Review System in East and Southeast Asia (The Hague, Kluwer International Law, 1997); Boestomi, T., ‘Historical Development of the Administrative Court in Indonesia’ in Creyke, R., J. Disney and J. McMillan (eds.) Aspects of Administrative Review in Australia and Indonesia (Canberra, Centre for International and Public Law Australian National University, 1996); Mangkoedilaga, B. ‘Indonesian State Administrative Courts: Existence, Challenges and Expectations’, (1996), 2 Indonesian Law and Administration Review, at 16–21. The most thorough legal analysis in English so far is Hadjon, P.M., ‘Government Liability in Indonesia’ in Zhang, Y. (ed.) Comparative Studies on Government Liability in East and Southeast Asia (The Hague, Kluwer International Law, 1999). 2 Quinn, B., ‘The Administrative Review Act of 1986: Implications for Legal and Bureaucratic Culture’. Unpublished Honours thesis (Australian National University, Canberra, 1994); Linnan, D., ‘Decentralisation versus Administrative Courts: Which Path Holds Greater Promise?’ in Lindsey, T. (ed.) Indonesia: Law and Society (Sydney, The Federation Press, 1999). Although Quinn deals mainly with the question of how the administrative courts should be understood in the Indonesian political context – in a highly illuminating way – he also accurately describes the legal framework for administrative court review and refers to a number of early cases. Otto and Bedner use ‘law-and-development’ perspectives to predict or assess the effectiveness of the administrative courts from a rule-of-law perspective; see Otto, J.M., Conflicts between Citizens and the State in Indonesia: the Development of Administrative Jurisdiction (Leiden, Van Vollenhoven Institute for Law and Administration in Non-Western Countries, Working Paper no. 1, 1992) and Bedner, A.W., ‘Administrative Jurisdiction in an Executive-Dominated State: the Case of Indonesia’, in Zhang, Y. (ed.), Comparative Studies on the Judicial Review System in East and Southeast Asia. (The Hague, Kluwer International Law, 1997). 3 For example, Tjakranegara, S., Hukum Acara Peradilan Tata Usaha Negara Di Indonesia (Jakarta, Sinar Grafika, 1994); Pudyatmoko, Y.S. and W.R. Tjandra, Peradilan Tata Usaha Negara Sebagai Salah Satu Fungsi Kontrol Pemerintah (Yogyakarta, Universitas Atma Jaya Yogyakarta, 1996). Exceptions are Indroharto, Usaha Memahami Undang-Undang Tentang Peradilan Usaha Negara. Buku I: Beberapa Pengertian Dasar Hukum Tata Usaha Negara (Jakarta, Pustaka Sinar Harapan, 1993) and Indroharto, Usaha Memahami Undang-Undang Tentang Peradilan Tata Usaha Negara. Buku II: Beracara di Pengadilan Tata Usaha Negara (Jakarta, Pustaka Sinar Harapan, 1993), which contain thorough discussions of the LAJ. In addition, Hamidi analyses the position of the 1

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This study aims to provide what has been lacking so far: a comprehensive analysis of the origins, jurisdiction and performance of the administrative courts, from both a legal and a social scientific standpoint. The main objective of this analysis is to evaluate whether the administrative courts have offered effective legal protection to citizens from a rule-of-law perspective, what the powers of the courts are, and how they are used. Moreover, I shall explore a number of legal and institutional factors that have impacted on the administrative courts’ performance, relating them to a wider political context by examining the history of the courts’ genesis. I shall also address the question of whether the administrative court system has had any political effect upon the New Order. Finally, based on my analysis, I shall make a number of legal and institutional recommendations.

1 Academic Background In the course of the research, it became clear to me that this study is part of an international trend towards greater interest in courts in less developed countries, especially in Asia. This is reflected not only in the court projects funded by foreign donors,4 but also in the number of scholarly projects and conferences on the subject. 5 In Indonesia itself interest in the judicial system has also been on the rise for a long time; there have been new publications,6 the establishment of an NGO aimed at promoting an independent judiciary, 7 and a constant stream of newspaper articles. Among the recent works dealing specifically with the Indonesian judicial system, those of Daniel Lev and Sebastiaan Pompe are noteworthy for their lucid analysis of the political and legal aspects.8 Their examination of the manner in which the Indonesian judiciary has been manipulated and undermined, in order to serve the needs and interests of successive Indonesian governments since independence, has greatly influenced the principles of proper administration, while Setiadi reflects upon the origin of many important LAC provisions: see Hamidi, J., Penerapan Asas-Asas Umum Penyelenggaraan Pemerintahan Yang Layak (AAUPL) Di Lingkungan Peradilan Administrasi Indonesia: Upaya Menuju ‘Clean and Stable Government’ (Bandung, Citra Aditya Bakti, 1999) and Setiadi, W., Hukum Acara Pengadilan Tata Usaha Negara: Suatu Perbandingan (Jakarta, PT Raja Grafindo Persada, 1994). 4 See, for example (1999) 1 Law and Development Bulletin, which alone lists 16 projects related to judiciaries in Asia. 5 These include the PIOOM-studies on the judiciaries in the Philippines (Bakker, J.W., The Philippine Justice System [Leiden and Geneva, PIOOM/Centre for the Independence of Judges and Lawyers, 1997]) and Burkina Faso (Yonaba, S., Indépendance de la justice et droits de l’homme: le cas de Burkina Faso [Leiden and Geneva, PIOOM/Centre for the Independence of Judges and Lawyers, 1997]) and the final project report (Bakker, J., ‘Final Summary Report of the PIOOM Project’. Unpublished report [Leiden, PIOOM, 1997]), conferences on comparative studies of judicial review in Asia (Zhang, Y. [ed.] Comparative Studies on the Judicial Review System in East and Southeast Asia [The Hague, Kluwer International Law, 1997] and Zhang, Y. [ed.] Comparative Studies on Government Liability in East and Southeast Asia [The Hague, Kluwer International Law, 1999]), and many individual books and articles, including those of the London-Leiden Series of which this book is also a part. One of the first important works which attempts to provide an overview of judicial issues in several less developed countries is Tiruchelvam, R. and R. Coomaraswamy (eds.) The Role of the Judiciary in Plural Societies (London, Frances Pinter, 1987). 6 For example, Harahap, M.Y., Beberapa Tinjauan Mengenai Sistem Peradilan Dan Penyelesaian Sengketa (Bandung, Citra Aditya Bakti, 1997) and Harman, B., Konfigurasi Politik Dan Kekuasaan Kehakiman Di Indonesia (Jakarta, ELSAM, 1997). 7 The Lembaga Kajian dan Advokasi untuk Independensi Peradilan. 8 See the bibliography.

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social-scientific parts of this book. Two other studies that deserve to be mentioned are those by Von Benda-Beckmann9 and Colombijn, 10 which provide useful insights into the administration of justice by first-instance courts in the Indonesian Minangkabau province. However, they focus on the effect on the litigants, rather than on the internal workings of the courts. The same applies to the article by Burns, which deals with litigation initiated by rubber traders in North Sumatra.11 Another major reference source was the literature on judicial review in Western countries, in particular the comparative studies. As the Indonesian administrative courts are modelled on the Dutch system of judicial review, and have also been exposed to the influence of France and Australia, such information is particularly relevant. 12 Of special interest here are the conferences on judicial review and government liability in East and Southeast Asia, which not only mapped the judicial review systems in this region, but also compared them with the European systems that inspired them. 13 More general works on legal transplants have also broadened my insight into the Indonesian situation. 14 Finally, the comparative literature on European systems of judicial review has helped me to develop a more detached perspective on the Dutch system on which the Indonesian administrative courts were modelled. 15 However, my detailed ‘inside’ knowledge of that system has been equally indispensable now that so many Indonesian administrative law 9

Benda-Beckmann, C.E. von., The Broken Stairways to Consensus: Village Justice and State Courts in Minangkabau. (Dordrecht, Foris, 1984). 10 Colombijn, F., ‘Dynamics and Dynamite: Minangkabau Urban Landownership in the 1990s’, (1994), 148-IV Bijdragen tot de Taal-, Land- en Volkenkunde, 428–464. 11 Burns, J.J., ‘Civil Courts and the Development of Commercial Relations: the Case of North Sumatra’, (1980) 2 Law and Society Review, 150–161. For a useful overview of the literature on courts in Western countries in general, see Cotterrell, R., The Sociology of Law (London, Butterworths, 1992), at 205–244 and 339–344. I have found no studies pertaining to administrative courts of first instance. 12 Publications that compare the Indonesian system of administrative justice with the French or the Australian include Creyke, R., J. Disney and J. McMillan (eds.), Aspects of Administrative Review in Australia and Indonesia (Canberra, Centre for Interantional and Public Law, Faculty of Law, Australian National University, 1996) and Sayuti, D. [et al.], ‘Rumusan Kesimpulan Hasil Ceramah/Diskusi Tentang Perbandingan Peradilan Administrasi Perancis Dan Peradilan Tata Usaha Negara Indonesia’, (1997), 10 Gema Peratun, 91–98. 13 Zhang, Y. (ed.) Comparative Studies on the Judicial Review System in East and Southeast Asia (The Hague, Kluwer International Law, 1997) and Zhang, Y. (ed.) Comparative Studies on Government Liability in East and Southeast Asia (The Hague, Kluwer International Law, 1999). These and other publications on systems of administrative justice in Asia (such as Pei on China: see Pei, M.H., ‘Citizens versus Mandarins’, [Dec. 1997] China Quarterly) show that the problems in Indonesia are by no means unique. 14 Watson, A., Legal Transplants and Law Reform: An Approach to Comparative Law (Athens and London, The University of Georgia Press, 1993); Watson, A., ‘Aspects of Reception of Law’, (1996) 44 The American Journal of Comparative Law, at 335–351. Attempts to develop a comparative theory of courts include Shapiro, M., Courts. A Comparative and Political Analysis (Chicago, University of Chicago Press, 1981) and Schmidhauser, J.R., ‘Alternative Conceptual Frameworks in Comparative Cross-National Legal and Judicial Research’ in Schmidhauser, J.R. (ed.), Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis (London, Butterworths, 1987). 15 Koopmans, T., Vergelijkend Publiekrecht (Deventer, Kluwer, 1986) and Banda, P.H., Administratief procesrecht in vergelijkend perspectief: een rechstvergelijkende studie naar de invloed van de functie van het beroep op de rechter bij de regeling van het administratief procesrecht (Zwolle, Tjeenk Willink, 1989) The former analyses and compares the principle aspects of public law in France, Germany, England and the United States, while the latter looks at administrative procedure in France, Germany and the Netherlands.

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concepts are rooted in Dutch administrative law. In addition to these law and law-related sources, a number of more general works in the social sciences have influenced my analysis. These will be examined below.

2 Theoretical Perspectives The first perspective used is a legal one. It assumes that the principles underlying the law in Indonesia are basically the same as in other civil law traditions, a carry-over from the colonial period.16 However, one significant difference between Indonesia and most Western civil jurisdictions is the relative lack of information pertaining to case-law. Although this may not be immediately clear from my analysis, which uses a rather straightforward common legal internal point of view, most of the cases discussed have not been published. Some discussions are moreover based on newspaper reports. Strange as this may seem to many ‘Western’ legal scholars, it reflects a reality common to most countries around the globe. However, it is also important to keep in mind that the formation of law and legal discourse in such a system is very different from what one might expect to find on the basis of experiences in ‘developed’ countries. In particular, the fact that those inside the legal system of developing countries still hold on to the basic points of departure of legal doctrine – for instance that case-law is a source of law – sometimes yields serious tensions. 17 Using this internal perspective, I have analysed the Law on the Administrative Courts (LAC) and its implementing regulations, in order to assess their powers, competence and procedure. Furthermore, I have explored three fields of substantive law which are of particular importance in administrative court practice: civil service law, land law and constitutional law. After analysing a number of judgments in these fields, I assess the manner in which judges interpret substantive law. This has led to the conclusion that in all these fields there are serious problems pertaining to legal interpretation. The second perspective derives from both legal sociology and development administration. It examines administrative court performance on the basis of the various factors that influence judicial reasoning, behaviour and authority. An initial analytical distinction is made between factors deriving from inside and outside the court organisation. The ‘internal’ factors cover human and financial resources, leadership and control. They can be further subdivided into those related to the entire administrative court branch and those that apply specifically to courts of first instance. The factors related to the entire branch are the size and management of the administrative court budget; the nature and operation of the recruitment and career systems; the system of disciplinary supervision; and the forms of judicial control and supervision in the lower courts. Factors pertaining to the first-instance court are scale and workload; composition and working order of the panels of judges; distribution of cases; attempts to reform procedures and upgrade judicial knowledge; and finally supervision of and support from the registry. The external factors include, first of all, those associated with the litigants: intervention, non-execution, refusal to appear, and corruption. Second, there are outside Lev, D.S., ‘Colonial Law and the Genesis of the Indonesian State’, (1985) 40 Indonesia, 57-74; Gautama, S. and R. Hornick, An Introduction to Indonesian Law: Unity in Diversity (Bandung, Alumni, 1983). 17 This will be further elaborated in Chapter 8 section 4. 16

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factors concerned with the relationship of the administrative court to the civil courts, to political allies, to complaint bodies, and to other bodies which review government action. The model is inductive, based as it is on my analysis of fieldwork materials. However, it has been influenced by several models used for comparable purposes, notably the Institution Building Model as developed from Esman by Otto;18 the study on the Indonesian Supreme Court by Pompe;19 and James Q. Wilson’s classification of government agencies.20 While the perspective is basically functionalist, 21 it does devote attention to the views and opinions of those who are the object of the research, viz. the judges. In that respect it also builds on the more anthropologically oriented ecological development administration of Riggs, which looks at the internal motivation and discourse of actors.22 This approach is supported by the qualitative research method I have used, in addition to the analysis of legal materials. The third perspective I have employed might be termed ‘macro-functionalist’. It is customarily used in political science, legal sociology and history, and it will help us to understand why the courts were established in their present form, and to what extent they have supported the legitimacy of the New Order. The point of departure was that in principle the administration of justice serves the legitimation of the legal and social order in society, by maintaining the rule-of-law ideology. 23 This implies that the position of the 18

Otto, J.M., Conflicts between Citizens and the State in Indonesia: the Development of Administrative Jurisdiction (Leiden, Van Vollenhoven Institute for Law and Administration in Non-Western Counrties. Working Paper no. 1, 1992). Originally a public administration model for assessing the causes of the ineffectiveness of government agencies, the Institution Building Model has been adapted by Otto for court analysis. Although I have drawn on some of the Model’s variables in defining my own, the notion of ‘transactions’ which is central to the Model’s assessment of an institution’s effectiveness is very difficult to define in the case of courts. 19 Pompe, S, ‘The Indonesian Supreme Court’. As Pompe’s study looks at the apex of the judicial system while my focus has been on the base, the analytical framework could not be transmitted. However, many of the different aspects Pompe deals with are also discussed in this book. 20 Wilson, J.Q., Bureaucracy: What Government Agencies Do and Why They Do It (New York, Basic Books, 1989). The distinction Wilson makes between ‘operators’, ‘managers’ and ‘executives’ and the different constraints that operate on them have been especially helpful in shaping my thoughts about what moves the different actors in the administrative court hierarchy. 21 Functionalist in this context must not be confused with purpose; function refers to the ‘contribution to the maintenance of existing social or economic institutions’ (Cotterrell, R., The Sociology of Law [London, Butterworths, 1992], at 72), not to the purpose the legislator had in mind when a particular institution was created. The two may, of course, coincide. For the functionalist approach in public administration, see Parsons, W., Public Policy: An Introduction to the Theory and Practice of Policy Analysis (Cheltenham, Edward Elgar, 1997), esp. at 99. 22 A good example of a similar perspective in court studies is the interpretivist study into the Micronesian judicial system by Tamanaha (Tamanaha, B.Z., Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law [Leiden, Research School CNWS, Leiden University, 1993]). Studies that attempt to bridge the gap between the two perspectives include Pompe, ‘The Indonesian Supreme Court’; Otto, J.M., Aan de voet van de piramide: Overheidsinstellingen en plattelandsontwikkeling in Egypte: een onderzoek aan de basis (Leiden, DSWO Press, 1987); and Buskens, L., Islamitisch recht en familiebetrekkingen in Marokko (Amsterdam, Bulaaq, 1999). 23 In the words of Cotterrell: ‘a functional view of courts might stress their contribution as agencies of government and social control to the maintenance of currents of ideology which legal doctrine shapes, reflects and reinforces and which serve to legitimise government and contribute to social order’ (Cotterrell, The Sociology of Law, at 216, cf. Jacob, H. ‘Introduction’ in Jacob, H., E. Blankenburg, H.M. Kritzer [et al.],

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courts is closely related to the nature of the sources of state legitimation, which may be legal-rational, patrimonial (traditional), charismatic or ‘performance’. 24 In any given country the government will invariably pursue various objectives that are based on different sources of legitimation.25 This will almost inevitably result in tension – for instance, when the government pursues a strong policy of economic development without paying sufficient attention to issues of legality. 26 While much has been written about such tensions in the developed world, the problem is even more acute in less developed countries, where state legitimacy is based less on the rational-legal, rule-of-law ideology and more on patrimonial, charismatic or performance aspects. This means that the government will be inclined to ignore rule-of-law principles that thwart its actions. It will have little interest in sustaining the autonomy of the law in general, and will allocate few resources to institutions which support legal autonomy: the administration of justice, the legislative capacity and legal education.27 In the case of the courts, three conditions are of particular relevance. First, the courts must be independent of the government; second, the government must support the execution of court judgments; and third, the substantive law must conform to the notions of justice entertained by those groups that are politically significant. We will see that in the case of the Indonesian administrative courts, the first two conditions have been highly problematic.

3 Course of the Research Looking back, one will recall that during the late 1980s and the early 1990s there was considerable hope that the New Order would reform itself and that Soeharto would voluntarily make way for more democracy and the rule of law. 28 Optimistic signs were evident in the so-called keterbukaan (openness), the removal of certain oppressive regulations (such as those pertaining to land clearance), the increased attention to decentralisation, and the establishment of a number of state bodies where citizens could voice their grievances. Courts, Law, and Politics in Comparative Perspective [New Haven and London, Yale University Press, 1996], at 3). Legitimation in this definition is not static, but rather as Alagappa has described it: ‘Legitimation of power is an interactive and therefore dynamic process among the government, the elite groups, and the politically significant public: those in power seek to legitimate their control and exercise of that power; the subjects seek to define their subordination in acceptable terms’ (Alagappa, M., ‘Legitimacy: Explication and Elaboration’ in Alagappa, M. [ed.], Political Legitimacy in Southeast Asia: the Quest for Moral Authority [Stanford, Stanford University Press, 1995], at 13). 24 The traditional Weberian distinction, to which Habermas has added ‘performance’: the capability of the governing elite to manage successfully the economy and sustain economic growth (Cotterrell, The Sociology of Law, at 169–170; Alagappa, ‘Legitimacy: Explication and Elaboration’, at 21). 25 Cf. Otto’s model of development policy, where legal certainty is one of the goals (Otto, J.M., Lokaal bestuur in ontwikkelingslanden: een leidraad voor lagere overheden in de ontwikkelingssamenwerking [Bussum, Coutinho, 1999] at 18). 26 Cotterrell, The Sociology of Law, at 161–169. 27 Cf. ibid., at 16-17. Legal autonomy refers to the situation in which law can function as a self-referential system, in which influences from the outside are mitigated through the institutions which make, interpret and apply the law. 28 MacIntyre, A., Business and Politics in Indonesia (Sydney, Allen & Unwin, 1991), at 1–5. In 1978, eight years before the Law on Administrative Justice was adopted, Dan Lev still pointed out how unlikely it was that the New Order would ever establish administrative courts (Lev, D.S., ‘Judicial Authority and the Struggle for an Indonesian Rechtsstaat’, [1978], 13 Law & Society Review, 37 71, at 60 n. 15).

Introduction

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It was at this time that the idea for the present research took shape, during a period of intensive legal collaboration between Indonesia and the Netherlands. The Dutch influence on the form and content of the administrative court system has been considerable, and a research project could easily be devoted to an evaluation of that influence and the feasibility of ‘transplanted public law’. In addition, such a study would fit in with ongoing research at the Van Vollenhoven Institute dealing with the Indonesian Supreme Court29 and judicial review in the Netherlands Antilles, 30 while an exploratory article on the subject was already available. 31 When I started my research in 1992, my state of mind reflected the ‘Indonesian spring’ and I assumed that the administrative courts were indeed a sign of the New Order’s preparedness to support the rule of law. However, when I became better acquainted with the political history of the Indonesian Law on Administrative Courts32 (no. 5/1986, henceforth the LAC), I started to wonder how much use the courts actually were to citizens who sought protection from unlawful acts by the government. My reservations were rather unexpectedly triggered by an examination of the 1929 debates on the introduction of administrative courts in the Netherlands Indies. 33 The liberal Professor Logemann had strongly opposed the establishment of administrative courts in the colony, for reasons that are also applicable to New Order Indonesia: the absence of democratic control, the problems presented by the centralised administration of justice in the vast archipelago, and the lack of sufficient human resources. Another surprising historical finding was that – at least until the 1970s – government tort actions had been a fairly effective means of judicial review of administrative action, and that therefore the reform of the administrative courts was not as radical as one might assume. Moreover, a closer examination of the LAC revealed that the courts’ jurisdiction, the grounds for review, and the available remedies are quite limited. At the same time, reports started to appear in Indonesian newspapers about officials who refused to obey court orders, a shortage of judges, the problems related to the construction and maintenance of courthouses, and even corruption. Apparently all was not well from a rule-of-law perspective. And finally there were other doubts, which originated not in Indonesia but in the Netherlands, and had to do with the fact that the Indonesian administrative courts’ procedure was modelled after the Dutch AROB review procedure, introduced in 1976. Hailed at the time by many Dutch legal scholars as a major realisation of the rule of law, the AROB system did not entirely live up to its promise 34 and in 1994 it was replaced by a more extensive system of judicial review. Thus by the time I set off to do field research in Indonesia in June 1994, my initial Pompe, ‘The Indonesian Supreme Court’. Munneke, H.F., Ambtsuitoefening en onafhankelijke controle in de Nederlandse Antillen en Aruba: juridische en beheersmatige controle als waarborg voor deugdelijk bestuur (Nijmegen, Ars Aequi Libri, 1994). 31 Otto, Conflicts between Citizens and the State in Indonesia. 32 In fact the law is called Law on Judicial Review (Undang-Undang Peradilan Tata Usaha Negara). However, since this law does not cover all fields of judicial review, I prefer the term used in the text. 33 See Chapter 2 section 1. 34 See in particular Schueler, B., Vernietigen en opnieuw voorzien: over het vernietigen van besluiten en beslechten van geschillen (Zwolle, Tjeenk Willink, 1994). 29 30

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assumption that the administrative courts represented a substantial contribution to the rule of law was at least shaken. Nonetheless, I was still fairly optimistic, and was inclined to consider less favourable findings as evidence of certain ‘obstacles’ along the evolutionary path leading to effective judicial review. I was courteously received in the administrative courts of Bandung, Semarang and Jakarta, which I had chosen as research sites, but I became increasingly uneasy about what was happening there. First, an examination of judgments contained in the court archives showed that judicial reasoning was not consistent, to put it mildly. Major LAC concepts were explained quite differently even within the same court, and judges were often so anxious to extend their jurisdiction that borders between civil and administrative jurisdiction were infringed. Suspension orders were issued without any reasons given, and remedies put forward which had no legal basis in the LAC. Legal certainty – even in its broadest sense – proved to be an ideal that was still far away. Spending several weeks at each court, I became friendly with a number of judges, and from both semi-structured interviews and more informal conversation I received information that further undermined my rule-of-law assumption. Financial ‘transactions’ between plaintiffs and defendants on the one hand and judges on the other were common, ranging from gifts after the pronouncement of a judgment to outright bribery. Several judges mentioned that they did not trust their colleagues, and their reasons for switching to the administrative courts were more mundane than I had hitherto assumed. Complaints about transfers were common, and the fear of ending up in some backwater was omnipresent. Other recurring topics were the lack of respect for judges and the fact that more specialised training courses were needed. Such complaints were confirmed by other people who had first-hand knowledge of the administrative courts: plaintiffs, defendants, advocates, legal scholars and Supreme Court judges. Gradually I began to perceive certain patterns in this information, and to relate these patterns to particular types of irregularities I had found in judgments. For instance, the urge to extend one’s jurisdiction was apparently based mainly on financial considerations, but was reinforced by the conviction of most judges that as former civil court judges, they were perfectly capable of dealing with civil law issues. Another example pertains to the granting of a temporary suspension, a measure that was not applied for legal reasons, but on humanitarian grounds, or in exchange for a bribe. When I returned to Leiden at the end of 1994, my remaining task was to systematise these findings and to place them within a wider political context. This task became easier after I had spoken to some of the key individuals involved in the drafting of the LAC, and acquired copies of the minutes of the parliamentary discussions centring on the LAC. I then selected three important fields of judicial review – land law, civil service law, and constitutional law – and carefully re-examined the cases encountered during my fieldwork. Although my main sources of information predate 1995, I have continued to collect newspaper articles and other material pertaining to the courts, including the administrative court magazine Gema Peratun. Moreover, I have remained in touch with a number of informants, who have kept me abreast of more recent developments. Finally, a trip to Indonesia in 1999 allowed me to check my conclusions and update some of my findings, in particular with regard to the transfer of judges and the caseload.

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4 Methodology It will be clear that the different perspectives from which I have studied the administrative courts require different research methods. As noted above, the first problem for a legal scholar who embarks on a conventional positivist legal analysis of Indonesian law is the fact that so few judgments are published. Fortunately, in the case of the administrative courts, the situation was relatively favourable; nonetheless, I had to gather my material from various sources. My legal analysis is further based on the cases I have collected over the years. The core consists of 155 cases which I examined in administrative court archives: 43 from Jakarta, 70 from Semarang and 42 from Bandung, some of them including appellate or cassation judgments. Most of the judgments referred to in this study can be found in those archives. In addition, I made use of some 37 published cases: 15 appeared in the administrative judges’ magazine Gema Peratun, while 15 were published by the Ministry of Justice, 35 and another seven by the Supreme Court.36 And finally, I obtained information on cases via observation, press reports and interviews. I also received several xeroxed judgments from plaintiffs. 37 The first chapter, which deals with the history of judicial review in Indonesia, is based on the minutes of meetings and other grey literature, various articles and books which influenced the process in some way, and books and articles dealing with the political situation in general. Other information was added from semi-structured interviews with four people who participated in the drafting process of the LAC. Interviews and press reports also constitute the basis of the social-scientific Chapters 7 and 8. Most of the interviews were conducted during my stay in Indonesia from June 1994 until January 1995, but some are of later date (as recent as August 1999). Most were semi-structured, based on questions I had prepared beforehand; some were quite formal, others more like friendly conversations. The sensitive nature of the topics discussed – certainly at that time – prevented the use of a tape recorder. However, I took elaborate notes, which I worked out within the hour, together with any details of the conversation I could remember. For this reason I am sufficiently confident to use quotes, which convey what was said more accurately than a more distant account. However, it must be kept in mind that they are all double translations, as I conducted practically all the interviews in Indonesian and recorded them in Dutch, or a mixture of Dutch and Indonesian. Wherever possible, I have cross-checked information, as is evident from the footnotes. In order to protect the interviewees, their identity is not revealed when sensitive matters are concerned; most of them still serve on the administrative courts and their careers could be affected. Altogether I interviewed three administrative court judges in Jakarta, seven in 35

Direktorat, Himpunan Putusan-Putusan Pengadilan Tata Usaha Negara dan Pengadilan Tinggi Tata Usaha Negara: Perkara Tata Usaha Negara dan Acara Tata Usaha Negara. (Jakarta: Direktorat Jenderal Badan Peradilan Umum dan Peradilan Tata Usaha Negara Departemen Kehakiman RI, 1994). 36 Mahkamah Agung, Himpunan Putusan Sengketa Tata Usaha Negara. (Jakarta, Mahkamah Agung, 1993) and Mahkamah Agung, Himpunan Putusan Mahkamah Agung-RI Tentang Kewenangan Mengadili (Jakarta, Mahkamah Agung dengan The Asia Foundation, 1995). 37 They can be examined at the Van Vollenhoven Institute.

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Bandung, and four in Semarang – most of them several times, and some on as many as ten occasions. Since I spent several weeks at each court, I was also able to speak to other court personnel, including clerks. I interviewed three of them, but most of the information from this group of respondents came from informal talks during the breaks I took while examining court files. Other important interviewees were three Supreme Court judges and two judges on the Supreme Court staff. I also interviewed three plaintiffs, five advocates and six government representatives. Some of them were people I happened to meet at the administrative courts; they usually accepted my invitation to have coffee at a nearby warung. I was introduced to others through friends and acquaintances. These interviews were quite important, since they enabled me to check the information I had gathered and to put forward an alternative – outsider’s – view of the courts. And finally, I attended some 20 sessions at the administrative courts in Bandung and Semarang, and held a survey among members of the Bandung Bar Association (IKADIN). A final source which should be mentioned here consists of case statistics and figures on the transfer of judges. The case statistics were obtained at the Supreme Court and the courts of first instance, but the information on transfers had to be compiled from various sources: the judges’ magazine Varia Peradilan; a handbook for administrative judges dating from 1994, and a ‘Who’s Who’ of Indonesian judges dating from 1999. The results have been checked against information from press reports and interviews. Although not 100 per cent reliable, they do represent a fairly accurate overview of judicial transfers, one that supports the written and oral information on this subject. They have been included as an appendix. All translations are my own. A last remark concerns the use of the words ‘general courts’, ‘civil courts’ and ‘criminal courts’. Following the Anglo-American tradition I often use the latter two terms. However, it is important to realise that the same judges administer civil and criminal justice, sitting on courts that in Indonesia are referred to as general courts.

5 Structure of the Book The chapter that follows describes how the seeds were sown for the judicial review by administrative courts, as far back as the colonial period, and how the subject has continued to emerge in discussions about relations between citizens and the state after independence. It seeks to explain how judicial review by specialised courts finally became part of the New Order’s legislative agenda, in an attempt to increase the legitimacy of the regime, and how the struggle between those favouring genuine control and their opponents led to the compromise Law on Administrative Courts of 1986. I have situated this analysis against the background of the long-existing practice of government tort, which shows that in some cases the administrative courts represented a setback rather than an advance in providing protection to citizens. The course which the administration of justice in administrative court cases has since taken is described in Chapters 3 to 7. Here you will find a detailed analysis of the powers of the administrative courts, and the often unexpected ways in which these have been interpreted by judges. Starting with the major LAC concepts, this section goes on to examine procedural law, and finally focuses on three major fields: civil service law, land law and constitutional law.

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In the final chapters I attempt to explain the bias and flaws in judicial reasoning, as recorded in the previous chapters, using the social-scientific perspective. Issues that may interfere with a neutral and professional handling of cases are discussed, such as education and both internal and external influences. In the Conclusion the main questions outlined above are answered. Furthermore, the findings in the previous chapters are summarised and provide the basis for a number of recommendations for change.

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CHAPTER 10 CONCLUSION The Indonesian administrative court record from 1991 up to the present indicates that effective legal protection for citizens against the administration is still far from being guaranteed. The courts are often difficult to access, they hold jurisdiction over a limited range of administrative acts, and – even more important – they fail to provide predictable judgments that are both supported by consistent legal reasoning and respected by the administration. On the other hand, neither can these courts be seen as a complete failure. Their mere existence has focused attention on the need for a form of government based on the rule of law. They have sparked a great deal of debate on rule-of-law issues, and have pointed out to many officials where their legal obligations lie. The introduction of the administrative courts has been accompanied by an increased emphasis on legal issues related to the training of officials. Furthermore, the courts’ fear that the inflow of cases would cease if the rulings always tended to go in the administration’s favour has made them more averse to capture by the administration. In fact, their experience in dealing with cases levelled against the administration has promoted a more consistent, detached and professional approach to such defendants than is often seen in the civil courts. In the light of the recent transition to a democratic government committed to the rule of law, these findings offer some hope that the administrative courts will ultimately have a lasting and positive influence, even though at present their performance still leaves much to be desired. Looking at the political effect which the administrative courts have had on the New Order, one must conclude that in the end they have helped to undermine the legitimacy of the regime. While – ironically – the courts were established to strengthen that legitimacy, in answer to the call for more transparency and control over the government, they have in fact exposed the authoritarian nature of the regime. There has been a continuous stream of negative publicity pertaining to the disregard of court orders, and a torrent of newspaper reports about certain individual cases, such as Tempo and Bank Jakarta. However, this has been a gradual process. There has never been any doubt that the task of the administrative courts is a difficult one, but when they became operative in 1991 the atmosphere of keterbukaan (openness) and the New Order’s growing susceptibility to societal influence seemed to suggest that the LAC compromise was workable. 1 Comments in the press were favourable, and the courts seemed to enjoy considerable leeway. All this changed with the deteriorating political climate, the turning point probably being the government’s crackdown on Tempo and the PDI. The achievement of effective administrative court review requires formidable legal and institutional changes. The central problem is the New Order’s legacy of patrimonial administration, characterised by secrecy, collusion, corruption and a highly personalised 1

Indeed, the first two studies evaluating the performance of the administrative courts both defend this assumption; see Quinn, B., ‘The Administrative Review Act of 1986: Implications for Legal and Bureaucratic Culture’. Unpublished Honours thesis (Canberra, Australian National University, 1994) and Bedner, A.W., ‘Administrative Jurisdiction in an Executive-Dominated State: the Case of Indonesia’, in Zhang, Y. (ed.), Comparative Studies on the Judicial Review System in East and Southeast Asia (The Hague, Kluwer Law International, 1997).

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perception of the nature of government.2 These are in themselves major obstacles to judicial control; moreover, they have contributed to the lack of a coherent system of administrative legal regulation. Under the New Order the law was largely purposive and repressive in nature, an instrument for economic development and control. 3 Moreover, its autonomy was undermined by the absence of a legal elite or profession, which often shapes the existing body of law in a coherent way during the processes of drafting, interpreting and applying the law. The flow of information on the law was restricted, and this in turn had a negative impact on the development of a legal elite. If the administrative courts are to provide effective protection for citizens against the administration, then the legal and administrative culture must change. While this is hard to achieve by mere planning, the process can be stimulated by concrete measures of a legal or an institutional nature, addressing specific flaws in current administrative court practice. In the following section I shall attempt to make a contribution to the correction of such flaws, by summarising the problems recorded in the previous chapters and suggesting possible remedies.

1 Problems of Basic Concepts and Procedural Law The first set of problems is rooted in the LAC, the Law on Administrative Courts of 1986. For a start, the absolute jurisdiction of the administrative courts is at present quite narrow, confined to individual decisions by the administration, although judicial interpretation has in some cases broadened its scope. For certain acts there is no protection at all; in some cases citizens do not know which court to address; and in other cases suits must be filed at both the administrative and the civil courts.4 It would require a number of legislative measures to remedy these flaws. First, the jurisdiction of the administrative courts should be extended to include general regulations. This is less revolutionary than it may seem, since the courts are already assumed to have the power to order a defendant to rescind a decision based on a 2

This means that government decisions are not seen as attached to a particular position, but to a particular person. It is likely that taking defeat personally is a factor that has promoted the execution problems discussed above. Hence many officials consider an administrative court order as a personal insult, which made Ismail Saleh repeat over and over again that a judgment defeats not the official, but his decision (see for instance Kompas 19-11-1991 or Suara Pembaruan 10-4-1991). 3 A thorough analysis of this problem has been provided by Niessen, N., Municipal Government in Indonesia: Policy, Law, and Practice of Decentralization and Urban Spatial Planning (Leiden, Research School CNWS, Leiden University, 1999), esp. at 326–331. An earlier, less detailed, study is by Gray, C.W., ‘Indonesian Public Administration: Policy Reform and the Legal Process’. Unpublished Ph.D. dissertation (Cambridge, MA, Harvard University, 1989). It is interesting to note that similar problems plague the modern welfare state’s attempt to solve particular problems with new forms of administrative regulation that conflict with such elements of the rule-of-law ideology as the principle of equality and legal guarantees. Some well-known examples can be found in the following critiques: Kamenka, E. and A.E-S. Tay, ‘Beyond Bourgeois Individualism’ in Kamenka, E. and R.S. Neale (eds.), Feudalism, Capitalism and Beyond (London, Edward Arnold, 1975); Nonet, P. and P. Selznick, Law and Society in Transition: Toward Responsive Law (New York, Harper & Row, 1978); and Teubner, G., Law as an Autopoietic System, trans. A. Bankowska and R. Adler (Cambridge, MA, and Oxford, UK, Blackwell Publishers, 1993). Cf. Cotterrell, R., The Sociology of Law (London, Butterworths, 1992), at 161 ff. 4 Chapter 3 section 1 and Chapter 6.

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regulation that violates the law.5 Jurisdiction over regulations at the provincial and regency levels could be given to the courts of first instance (of which there is now one per province), while the regulations of the central government can best be submitted to the Jakarta ACA.6 This may serve to relieve the Supreme Court, while giving the said court of appeal an opportunity to develop special expertise. Such a division of jurisdiction would, moreover, be in line with the decentralisation trend laid down by Law no. 22/1999 and set forth by the Wahid–Megawati government. The judicial review of formal state legislation is another matter; if adopted, it should be entrusted to the Supreme Court, for reasons of legal certainty. 7 A second measure is the extension of jurisdiction to all decisions based on public law. The current system refers only to those based on administrative law, even if in practice the courts have not been overly strict in this respect.8 Moreover, we have seen that the jurisdiction of the administrative courts has become seriously entangled with that of the civil courts, especially in cases concerning damage compensation and land law, and that this has created a confusing labyrinth for plaintiffs. 9 Thus a clear division of tasks between administrative and civil courts is highly desirable. One solution would be to grant the administrative courts full jurisdiction over all tort cases against the government, including those based on real actions. In addition, they should be granted full powers of damage compensation, and the illegal government regulation on rehabilitation should be revoked, in order to restore the power of the administrative court to decide these cases in accordance with the LAC. 10 At the same time, jurisdiction over cases pertaining to land conflicts – including those involving the National Land Agency – should be returned to the civil courts, preferably to a specialised chamber. This will provide clarity to those seeking justice, and will remove the need to file two suits for one case. 11 For the same reason, the matter of jurisdiction over auctions by the State Auction Office should be regulated by law, as the current circular letter has proved insufficient to prevent the entanglement of jurisdictions. 12 We have also seen that the courts are difficult to access for many potential plaintiffs. There is only one court per province, while the rules of relative jurisdiction favour defendants.13 In order to improve access, relative jurisdiction could therefore be assessed from the domicile of the plaintiff. This would also solve the problem of uncertainty over which court to address, if it is unclear which body holds the legal power to issue the litigated decision. 14 If the same measure were applied to claims against decisions taken at administrative appeal, the caseload would be shared more evenly between the Jakarta

5

Chapter 3 section 4(a). If jurisdiction is simply extended, the Jakarta administrative court would hold jurisdiction over them. This seems undesirable, in view of the burden of responsibility and the amount of time involved in ensuring that legal certainty is attained. 7 For an argument in favour, see Pompe, S., ‘The Indonesian Supreme Court: Fifty Years of Judicial Development’. Unpublished Ph.D. dissertation (Leiden, Leiden University, 1996), at 403. 8 Chapter 3 section 1(c) and Chapter 7. 9 Chapter 4 section 20 (damage compensation), and Chapter 3 section 1(d) and Chapter 6 section 2 (land rights). 10 Chapter 4 section 21. 11 Chapter 6 sections 2 and 3. 12 Chapter 3 section 1(d). 13 Chapter 4 section 4. 14 Mainly because the issue of delegation is unclear, see Chapter 3 section 1(b). 6

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ACA and the other administrative courts of appeal than is currently the case. 15 However, better access to courts cannot be achieved solely by such relatively simple legislative measures. The enormous areas encompassed by the jurisdiction of a single administrative court may be seen as a major step backwards with regard to legal protection for citizens, in comparison with the government tort system that existed before 1991, for the simple reason that the number of civil courts exceeds that of administrative courts by a factor of 14.16 One possible solution is a system similar to that of circuit courts, though it would be less expensive. Under such a system, a claim for an administrative court could be registered at the civil court in districts where there is no administrative court. The district court would send this claim to the administrative court in the appropriate province for verification. The case would then be heard by administrative judges in the courthouse of the district court where the claim was filed. The limited workload in most administrative courts would allow judges to conduct such a procedure at a district court, provided the number of sessions was restricted .17 Moreover, the pronouncement of the judgment could take place at the administrative court itself. If, after a time, it becomes clear that the administrative court in a given province lacks the time and resources to deal with all the cases within its jurisdiction, then a new court can be established. In this way, the system would also contribute to the efficient planning of new courts.18 In broaching this proposal, I have already started to address the next set of problems, those concerned with administrative court procedure. In practice, one of the major flaws of administrative court procedure is its inefficiency, reflected in a large number of sessions which provide judges with little or no new information. At the root of this problem is the uncertainty of parties concerning their legal position, which leads them to submit all the information they consider likely to support their case, even if it is only remotely relevant.19 This could be prevented by making it mandatory for judges to pass an intermediate judgment (as suggested by Indroharto), containing a summary of the undecided questions, together with guidelines for giving evidence. In order to prevent misuse by parties, the decision should not be open to separate appeal. Parties will know what is expected of them, and will be less likely to flood the court with unnecessary information. Another part of administrative court procedure that does not work very well is the fasttrack procedure. At present, this device is next to useless in cases where the judgment in first instance is appealed, because the subsequent procedure, notably cassation, takes so long.20 Therefore, an equivalent of the fast-track procedure should be introduced for appeal and cassation, if only in the form of special terms of limitation. To prevent misuse, the court of appeal or the Supreme Court should first check to see whether it is important for a case to be settled speedily. Another cause of lengthy procedures is the backlog of cases at the Supreme Court. 21 Although it does not handle as many administrative court cases, their number will 15

Chapter 3 section 1(f). Obviously, the need for such a measure will be much reduced if decentralisation is truly achieved. 16 Chapter 2 section 7. 17 Chapter 8 section 5(a), and Chapter 3 section 17. 18 Chapter 8 sections 2 and 3. 19 Chapter 4 section 18. 20 Chapter 4 section 11. 21 Chapter 4 section 24(b).

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inevitably grow if the Court continues to be overburdened by civil and criminal cases. The only solution is to address the problem in its entirety, and to limit the opportunities for cassation, for instance, by restricting appeals for cassation to cases pertaining to general regulations, issues involving constitutional law, and cases whose object exceeds a certain financial value. As argued in Chapter 3, the legal problems in the administrative courts are not limited to jurisdiction and procedure. Some basic concepts of administrative court review are interpreted quite diversely, which undermines legal certainty. A good example is term of limitation, which has been interpreted by judges in such ways that decisions issued up to more than 30 years ago are included in the scope of their jurisdiction. Examples are the admission of claims against resubmitted demolition or eviction orders, and ‘chains’ of administrative decisions where only the last one falls within the term of limitation. 22 Such interpretations could easily be prevented by a stricter formulation of Article 55 of the LAC. Another equivocal concept involves the principles of proper administration. Ironically, the reluctance of the government to add them to the grounds for review in the LAC has not precluded their application, but has rather created confusion about what they are. As a result, judges interpret and apply them in very different ways. 23 To promote a better understanding of these principles, as well as a uniform application on the part of officials and legal representatives, it would be advisable to codify them, or at least to have them restated by the Supreme Court. Admittedly, the formulation of remedies can be confusing, and even judges seem to pay no attention at all. Indeed, while the LAC only gives the courts the power to order rescission, judges often declare that the litigated decision is void, and even order a new decision to be given, in accordance with the guidelines provided in the judgment. 24 In my opinion, this practice should be legalised. Granting the administrative courts full powers to quash decisions will remove uncertainty in the case of later claims for damages on the basis of the litigated decision. Moreover, it is an important psychological reinforcement of the administrative courts’ stature. The provision of guidelines goes further, but this, too, should be supported for reasons of efficiency. However, such guidelines must be strictly limited to issues of legality, so as to prevent the court from interfering with the discretionary power of the administration. The remedial power of the courts also extends to the execution of judgments and suspension orders; this is a part of administrative court practice that has proved particularly problematic. 25 Although this problem cannot be solved by legal reform alone, some of these measures may contribute to a solution. One possibility would be the introduction of a daily fine for non-execution. Although the collection of such a fine is no sinecure, the current lack of sanctions for unruly officials has a particularly negative psychological impact.26 22

Chapter 3 section 3. Chapter 3 section 4. 24 Chapter 4 section 19. 25 Chapter 4 sections 10 and 23, Chapter 9 section 1. 26 This possibility exists in many countries, such as France and China. The Chinese administrative court can even order the bank to transfer the amount of the fine or damages to be paid; this purportedly gives the courts effective leverage over the administration (Ying, S., ‘Administrative Litigation System in China’, in Zhang, Y. [ed.], Comparative Studies on the Judicial Review System in East and Southeast Asia [The Hague, Kluwer International Law, 1997], at 57). 23

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An additional option would be to make it compulsory for defendants who have lost their case to report to the first-instance court on how and when they complied with the judgment. One advantage of such a procedure would be that it provides the courts with information on the extent of the problem. In addition to the daily fine, non-compliance could also be punished by publication,27 and perhaps something similar to a contempt-ofcourt procedure.

2 Problems Pertaining to Substantive Law Judges in developing countries are regularly confronted with the divide between legal and social norms, 28 and the Indonesian administrative courts are no exception. This problem has presented itself in cases pertaining to marriage and land registration, and even though principles of proper administration may be helpful in arriving at an equitable solution, accusations of formalism – or its opposite – are easily found. The political nature of the problem makes it extremely difficult to solve, since to some extent it requires the state to relinquish its pursuit of unification and modernisation. Likewise, the nature of Indonesian legislation is often very general, making it difficult to review individual decisions. 29 This is particularly true of laws enacted by Parliament. Both problems require a change in legislatory practice. The current move toward decentralisation and democratisation may have a positive influence on this process. Other basic problems concerning substantive law can be addressed more easily. One of these concerns access to legislation.30 At present citizens, advocates and even judges are entirely dependent on the goodwill of officials when it comes to obtaining access to rules and regulations, most of which are not available in public libraries. Even though officials may be willing to provide such regulations, equality of arms would be served by a Public Information Act guaranteeing access to official documents. Furthermore, a highly practical measure would be to provide access to regulations via the Internet. 31 The specific areas of substantive law discussed in Chapters 5 to 7 also present specific problems. In the case of land law, these are concerned mainly with the illegality of 27

The effectiveness of publication as a sanction in Indonesia has been shown in the case of polluting firms in the so-called Proper programme, run by the government environmental agency Bapedal (see Makarim, N., ‘Information Sharing as an Environmental Policy Tool: the Indonesian Experience’ in Gerardu, J. and C. Wasserman [eds.], Fifth International Conference on Environmental Compliance and Enforcement [The Hague, VROM, 1998]). 28 The pursuit of legal unification and modernisation cannot but yield problems of legitimacy, a warning that has been issued by many authors in the case of the administration of justice in civil and criminal law (see e.g. Von Benda-Beckmann, C.E., The Broken Stairways to Consensus: Village Justice and State Courts in Minanagkabau [Dordrecht, Foris, 1984]; Lev, D.S., ‘Colonial Law and the Genesis of the Indonesian State’, [Oct. 1985] 40 Indonesia; Pompe, ‘The Indonesian Supreme Court’). This is due to the position of the judge, who operates as the most important state agent in the front line between state and society. For more general discussions of this problem, see Tamanaha, B.Z., Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (Leiden, Research School CNWS, Leiden University, 1993) and Allott 1981. 29 See in particular Chapters 5 and 7. The need for more sharply defined laws enacted by Parliament is of particular importance for judicial review of general regulations. Cf. Niessen, Municipal Government in Indonesia, at 327–329. 30 Chapter 4 section 16. 31 Some government bodies have already started to do this. See, for example, the website of the Environmental Control Agency (Bapedal) at http://www.bapedal.go.id.

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expropriation procedures and conflicting rules about illegal occupancy. 32 Both sets of rules should be reconsidered, and in fact some revisions have already been made. 33 Another major source of problems is the absence of an adequate system of registration. However, this is such a complex matter, given the differences between modern and traditional titles to land, that uniform solutions will be extremely difficult to implement. 34 Civil service law is the most outstanding example of a framework of ‘vague norms and obligations’. Two particularly conspicuous shortcomings are the absence of rules specifying which disciplinary sanction can be imposed for a particular offence, and the lack of standards for transfer. 35 Both problems could be solved by simply enacting more specific rules or standards, while the restoration of the conduite as the touchstone for the performance of civil servants could prevent the use of transfer as a disciplinary sanction in disguise. Constitutional law also suffers from conflicting rules. A notable case in point concerns the regulations on marriage, which violate the constitutionally guaranteed freedom of religion36 and should obviously be reconsidered in this light. Political organisation was particularly strict under the New Order, and offered the administrative courts very little opportunity for review. While this is no longer the case,37 religious organisation has not yet been adapted and suffers from the same limitations as under the New Order. In a more general sense, judicial review would benefit most from the introduction into the Constitution of a declaration of human rights.

3 Problems of an Institutional Nature The problems of the administrative courts are not concerned solely with law and lawmaking; many are of an institutional nature. As such, they can be categorised as (a) problems of judicial independence from the executive, (b) problems concerning professionalism and (c) problems of judicial authority in society. With regard to the first category, it has been shown that Indonesian administrative court judges have not been entirely successful in maintaining their independence from the executive. Even though the fear of losing cases has led to a certain aversion to capture (if the defendant wins all the time, no one will want to start litigation), the courts have undeniably been under constant pressure and in certain cases have given way. Both direct executive intervention in specific procedures and manipulation of the career system have been part of administrative court practice. 38 In the hands of the New Order government, the manipulation of the career system, in particular, has been highly effective in ensuring judicial obedience. In fact it was employed with little resistance after the government gained complete control over the Supreme Court leadership during the 1970s. 39 32

See Chapter 6. For example, by Presidential Decree no. 55/1993. For potential solutions I refer to Fitzpatrick, D., ‘Disputes and Pluralism in Modern Indonesian Land Law’, (1977), 1 The Yale Journal of International Law, at 171–212. 35 Chapter 5. 36 Chapter 7 section 1(b). 37 For an overview, see Pompe, S., ‘The Structure of Democracy: Outline of the New Political Legislation in Indonesia’, (1999), 1 Indonesian Law and Administration Review, 6–18. 38 Chapter 9 section 1. 39 Chapter 2 section 5. 33 34

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Moreover, the absence of clear standards for achievement and the inequality of positions that were officially deemed equal ensured full discretionary power over this process. Transfers have been used to punish judges and the system has become a source of corruption in itself. 40 The second category of problems, which pertain to the lack of professionalism among judges, are closely interwoven with the general problems of law in Indonesia: legal education is inadequate, there are no good libraries, judgments are not published, etc. In short, the conditions necessary to sustain an autonomous legal system are lacking. The government’s reluctance to spend money in order to attract the most capable candidates to the judiciary has aggravated the situation, while funds for judicial training are in equally short supply. In addition, the quality of new administrative court judges declined during the period 1991–1998, because the administrative courts could not yet enlist new candidates from the universities, and few general court judges were willing to switch. As a result, the ranks were filled with registrars, for lack of better qualified candidates. 41 Finally, judges in Indonesia command little authority in society. While this is partly a result of the government’s visible lack of respect for judicial independence, there are other reasons as well. The most fundamental of these is the loss of status judges have incurred because they are underpaid.42 The rapid transformation of patterns of expectations and values in Indonesian society in general has exacerbated this situation, as status is now more closely related to money than was previously the case. 43 This loss of social status has affected the authority which judges command, setting off a negative spiral of recruitment problems and increased susceptibility to corruption. The incidence of corruption has been particularly damaging, because it undermines the notion of impartiality which is so crucial to the rule-of-law ideology. If payment is made to a judge by one of the parties to a conflict, this destroys the core system within which the judge operates. Where officials are assumed to be impartial, a judge should by definition be the very personification of impartiality: judicial review is a safety-net for citizens in cases where officials have failed to observe that same impartiality. 44 These problems are so difficult to solve because they are rooted in social patterns that have developed over many years. However, certain measures are indispensable, if one is to at least create conditions that will help the administrative courts to perform their tasks in accordance with the demands set by the rule of law. First and foremost, the salaries of judges must be drastically increased. In 1994 the average salary of a judge in a first-instance court was not even five times the salary of the average worker in Indonesia. 45 This is very low in comparison with salaries in other less40

Chapter 8 section 3(f). Chapter 8 section 3(b). In some countries judges have alternative sources of authority. In some former English colonies, for example, judges draw respect from the charismatic and ritual elements associated with the common law (see generally, Cotterrell, The Sociology of Law, at 229–230, more specifically Bakker, J.W., ‘Final Summary Report of the PIOOM Project’. Unpublished report (Leiden, PIOOM, 1997) on Sri Lanka and India). Indonesian judges have at their disposal neither common law charisma, nor traditional authority in the local society, as did judges from the adat courts during the colonial period. 43 Chapter 9 section 2. 44 There is an additional difference between officials who ask extra payments for standardised procedures and officials who do so in a situation of competition between two or more parties for a favour or a right. 45 The judicial salary was set at Rp. 680,000 a year (see Chapter 8 section 3[b]) while according to the World Development Report of 1995 the average income in Indonesia per capita was USD 880 (World Bank, World Development Report: Workers in an Integrating World (Oxford, Oxford University Press, 1995). 41 42

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developed countries, which range from 10 times to even 33 times the average income. 46 In this light, salary increases of 100 to 200 per cent would not be inappropriate. This would have a positive effect on both authority and recruitment. If recruitment for the administrative courts continues to be a problem, one solution might be to award administrative judges higher salaries than their colleagues in the civil and criminal courts. Although a rise in salaries will not be sufficient to remove corruption, it does represent an important precondition. 47 In addition, the salary differences between first-instance courts, courts of appeal and the Supreme Court should be reduced. This will increase the independence of judges in the lower courts, who currently have a strong financial incentive to try to make it all the way up the ladder. 48 A crucial issue related to career management is the establishment of clear criteria for promotion. This can be achieved by reinforcing the role of the conduite and reintroducing the so-called ‘examination’ system that was used in the general courts up until the 1970s.49 These two steps will ensure that judges are not dependent solely on their court chairman, who fills out their conduite. Second, a court hierarchy must be assessed on the basis of such factors as caseload, attractiveness of the location, and the availability of perquisites. By such means it will be clear whether a transfer means a promotion or not.50 Official policy rules on transfer must be introduced, and divergent decisions justified. In addition, a separate agency should be established to hear complaints against transfer decisions. Another change in the current career system would be to open it up to outsiders. This could be achieved in two ways. First, the system of ‘ad hoc’ judges – which already has a legal basis in the LAC – could be implemented. If it is extended to cases that do not require special expertise, it could serve as an outside check on judicial decision-making. The number of ‘ad hoc’ judges per court could be related to the number of cases per regular judge, and they could be added at random to councils of judges. In order to prevent collusion, the pool of ‘ad hoc’ judges should not include advocates or officials who are still active, but only those who have retired or legal scholars. Second, jurists with relevant professional experience should qualify for higher positions in the court hierarchy. Vacancies should be advertised so that such outsiders can apply. To ensure that they get a fair chance, it is advisable to establish a special council to deal with such applications; this council should include members from all legal professions. 51 To improve the knowledge and skills of administrative judges, new recruits should be offered a special training course given by academics, judges, officials and advocates. The introduction of a course on comparative administrative justice would be helpful in

46

Dakolias offers the following figures: Brazil 33 times the average salary, Chile 10 times, Ecuador 18 times, Panama 10 times, Peru 14 times and Singapore 18 times. Singapore is obviously no longer a developing country, but was one until recently. See Dakolias, M., ‘Court Performance around the World: a Comparative Perspective’, (1999), Yale Human Rights and Development Law Journal 2. See