Arizona Journal of International and Comparative Law

18 Ariz. J. Int'l & Comp. L. 103

Spring, 2001

Article

INDONESIA'S ODYSSEY:

A NATION'S LONG, PERILOUS JOURNEY

TO THE RULE OFLAW AND DEMOCRACY

Jared Levinson[FN1]

I. INTRODUCTION

Indonesia is a nation in search of a path to political, social, and economic stability. Abdurrahman Wahid, Indonesia's President, faces harsh criticism from many political factions in Indonesia. Wahid's promises to create a less corrupt, more competent government have failed to produce enough concrete results to satisfy the needs of many Indonesian people. A poll taken by Tempo news weekly found that sixty-five percent of those people polled want the legislature to hold a session to remove the President. [FN2]
Questions about the firing of two cabinet ministers led the Indonesian Parliament to summon Wahid before the legislature to explain his actions. In July, Wahid appeared before the Indonesian parliament to explain his conduct. Intense criticism from the Indonesian parliament compelled Wahid to turn over day to day management of the government to his vice-president, Megawati, and reorganize his cabinet.
As these leadership changes take place, Indonesia continues to suffer the horrific impact of the 1997 economic collapse that has left 35 million Indonesians *104 unemployed and one hundred million people living at or near poverty level. [FN3] The streets of Jakarta are filled with the plastic tents of people selling everything from home cooked food to suitcases, as Indonesians struggle to survive economically. Children approach cars at stoplights in Jakarta ringing small bells on little sticks and begging for money.
In other locales in Indonesia, such as Aceh and the Muluku Islands, separatist and religious violence tears at the nation's stability, leading to the deaths of thousands of people. Amidst these turbulent circumstances, Wahid, Megawati, and the Indonesian Parliament must develop a clear coherent set of policies to lead Indonesia to a place of stability and growth. It will be the purpose of this article to examine the political, economic, social, and legal situation in Indonesia and discuss solutions to Indonesia's problems.
The answer to Indonesia's crisis lies in firmly establishing the rule of law and democratic institutions. It should be noted that these reforms of the legal and political system cannot be accomplished merely through a purely "legal" analysis. Rather, much of the legal reform that is required deals with political, economic and social issues. [FN4] Thus, one must examine the law in the context of the political, economic, and social crisis plaguing the nation. As this Article will discuss, the long, autocratic rule of Suharto, the destruction of most government institutions, and the pervasive form of corruption that has afflicted Indonesia for over thirty years must be fully understood and accounted for in creating change. Establishing the rule of law in a nation where the rule of law has not existed for many years will be a highly complex process, not only encompassing the creation of new laws and legal institutions, but requiring basic reconstruction of the Indonesian state and the adoption of a new attitude of true respect for the importance of the rule of law and democracy for the first time in Indonesian history.

II. THE STRATEGIC IMPORTANCE OF INDONESIA

Indonesia is the fourth most populous nation in the world with a total population of 204 million people. [FN5] It is an archipelago comprising 13,667 islands *105 covering a land area of 1,919,317 square kilometers including 93,000 square kilometers of inland seas. [FN6] Approximately seventy percent of Indonesians live in rural areas. [FN7] Indonesia is comprised of four major ethnic groups, Javanese (forty-five percent), Sundanese (fourteen percent), Madurese (seven and one-half percent), Coastal Malays (seven and one-half percent), and other groups (twenty-six percent). [FN8] Muslims constitute eighty-seven percent of Indonesians, six percent are Protestant, three percent are Roman Catholic, two percent are Hindu, one percent are Buddhist, and one percent have other beliefs. [FN9]
Indonesia possesses critical strategic resources. Indonesia is a member of the Organization of Petroleum Exporting Countries (OPEC) and receives a significant flow of income from its oil production. Indonesia also produces a substantial amount of steel, aluminum, cement, forestry products and cigarettes. [FN10] In addition, it possesses significant reserves of coal, tin, nickel, copper, gold, and bauxite. [FN11] Agricultural production includes sugar, coffee, peanuts, soybeans, rubber, oil palm, and coconuts, [FN12] and employs fifty-five percent of the nation's workforce. [FN13] The strategic location of Indonesia, which lies between the Pacific and Indian Oceans, makes it an important nation for the U.S. military. The U.S. military has long maintained ties with the Indonesian military by supplying weapons and training. [FN14] The termination of the U.S. military presence in the Philippines in 1992 created concern for the U.S. as well as nations in Southeast Asia. [FN15] Following the U.S. departure from the Philippines in 1992, the U.S. entered into bilateral security arrangements with other Association of Southeast Asian Nations (ASEAN) including Indonesia, Singapore, and Malaysia. [FN16] According to a report by the Institute for National Strategic Studies and National Defense University, these bilateral security *106 arrangements allowed "access for U.S. naval ships and aircraft to commercial facilities in those countries. These arrangements hold the promise of greater sustainability of the U.S. regional presence at lower cost with ancillary security and economic benefit to ASEAN partners." [FN17] The collapse of Indonesia as a nation would seriously threaten these regional security arrangements. Indonesia provides a counter-balance to the other large nations in the region including China, Russia, Japan, and India. [FN18] Important strategic shipping lanes to the industrial states in northeast Asia would be threatened. [FN19]
Despite the existing value to other nations in keeping Indonesia a stable and unified country, some scholars have proposed that Indonesia should nonetheless be broken up, and that each region should be granted independence and allowed to set up its own government. [FN20] While it might be true that under Dutch colonial rule, the islands of the Indies were brought together under a single administration because it was simply more efficient, [FN21] these once disparate societies have since become interdependent and cannot risk the potentially devastating impact of division.
The break up of Indonesia would result in economic and political collapse that could also have serious economic ramifications for neighboring nations in Southeast Asia. [FN22] The resulting turmoil could cause a massive exodus of refugees from Indonesia to neighbor states, destabilizing the entire region. [FN23] Such chaos could tear apart the Association of Southeast Asian Nations and lead to more conflict in Southeast Asia. [FN24]
There is great concern that Indonesia could experience the same type of bloody break up that occurred in the former Yugoslavia. Malaysia's Defense Minister Najib Tun Razak commented, "[t]he biggest security threat facing the region (Southeast Asia) is the breaking up of Indonesia and we cannot allow that to happen." [FN25] This concern was echoed by Australian foreign minister, Alexander Downer, who stated, "We don't want to see the Balkanization of Indonesia ... It would create a very significant regional crisis. We in the outside world want to encourage dialogue and a peaceful resolution of differences. The violent option is *107 totally unacceptable. There is no need for bloodshed." [FN26] While it is clear that the break-up of Indonesia would be very dangerous for the region of Southeast Asia, the road to stability and democracy will involve the resolution of a complex set of legal, political, economic, and social problems.

III. THE RULE OF A CLERIC: PRESIDENT ABDURRAHMAN WAHID AND THE VOLATILE

POLITICS OF INDONESIA

The events surrounding the 1999 election have shaped much of the political landscape of Indonesia. In August 1999 the first popular election in thirty-two years was held in Indonesia. [FN27] Megawati's Indonesian Democratic Party, (PDI) party, *108 which "espoused a broad nationalism appealing to secular-minded Muslims and non-Muslims ..." received a plurality of thirty-four percent of the popular vote. [FN28] Golkar, Suharto's old party, led by then President Habibe finished second with twenty-two percent, down from its normal sixty-five to seventy percent. [FN29] Wahid's National Awakening Party (PKB) finished third with thirteen percent of the popular vote. [FN30] The Development and Unity Party (PPP), a Muslim party received eleven percent. [FN31] The National Mandate Party, led by Amien Rais, a modern Muslim party, received seven percent. [FN32]
However, the actual election of the President is made in the People's Consultative Assembly (MPR). Wahid and Megawati have been close friends for many years. Wahid pledged his support to Megawati. [FN33] The night before the vote, Wahid made a deal with the Muslim parties who formed a coalition led by Amien Rais. [FN34] The Muslim parties, Golkar, and a majority of the military members united behind Wahid. [FN35] The Muslim parties were concerned about Megawati's commitment *109 to Islamic goals and were concerned about having a woman President. [FN36] Megawati was also hurt by her unwillingness to make deals with other parties. [FN37] As a result of this deal, Wahid was elected President of Indonesia by the parliament. Megawati was elected Vice-President.
As part of the coalition deal made by Wahid and his allies, Wahid's first cabinet was comprised of thirty-five ministers from five political parties. [FN38] The cabinet members often had different agendas and political ambitions based on party faction. As a result, the government was divided and unable to produce a clear, coherent set of policies. [FN39] In August 2000, Wahid reorganized his cabinet. He reduced the number of cabinet posts from thirty-five to twenty-six. [FN40] Wahid loyalists, formed to reduce the infighting that existed in the first cabinet dominate the new cabinet. [FN41] Wahid is a moderate Islamic leader, who has consistently preached religious tolerance between all groups. As one Catholic religious leader stated, "Wahid is the best we can have ... [h]e is very open, very democratic, [[and he has] very good principles on human rights." [FN42]
Wahid has demonstrated great dedication to democracy in some areas. The most notable change in Indonesia is the remarkable transition from government *110 control of the press and speech to a free press and wide-open discussion of any topic. Under Suharto's rule, newspapers were shut down and publishers imprisoned for criticizing the government. Today, newspapers publish stories that can only be described as being on the far reaches of tabloid journalism. All these activities take place without retribution by the government. Despite these attempts at reform, some noted Indonesian scholars, including economist Sjahir and Muslim scholar Nurchoslish Madjid have expressed their concern about Wahid's governance. [FN43] Sjahir has called for Wahid's resignation charging that Wahid has condoned corruption in office, [FN44] including reports of officials at the subcabinet level taking bribes. [FN45]
Moreover, Wahid himself has been implicated in two major scandals. One scandal involves the alleged theft by Wahid's masseur Suwando of four million U.S. dollars from Bulog, the government food distribution agency. [FN46] Bulog Deputy Chairman Sapuan is being tried in a Jakarta Court for his part in the Bulog scandal. Suwondo has denied that Wahid had any involvement in the Bulog scandal. [FN47] Suwondo claims that the money was a personal loan from Supuan. [FN48] The second scandal involves Wahid's receipt of two million U.S. dollars from the Sultan of Brunei. [FN49] Wahid claimed that the two million U.S. dollars was a gift and was given to NGOs for humanitarian purposes in Aceh. [FN50] The MPR voted in August to investigate both scandals. [FN51] Charges of nepotism have also been levied at Wahid. He appointed his brother as a special adviser to the Indonesian Bank Restructuring Agency (IBRA). After an outcry of nepotism, his brother resigned from his post at IBRA. [FN52]
*111 The recent interpellation session in the Parliament was another example of democracy in action. During Suharto's regime, the Parliament merely placed a rubber stamp on Suharto's initiatives. The fact that the President of Indonesia could now be summoned before the Parliament and answered the summons by making an appearance serves to redefine the role of the MPR. However, some question whether intervention by the MPR will be sufficient to remedy problems generated by Wahid's style of governance.
Wahid's background is as a highly respected Muslim cleric. At his Muslim institute, Wahid could speak as he chose, issuing orders to young followers at his discretion. [FN53] However, being President requires a different approach to leadership. Wahid has often times had difficulty adjusting to the confines of his presidential office. He often speaks off the cuff making inconsistent and sometimes controversial remarks. [FN54] While this style of leadership may have worked well for a cleric, it has not served well for the leader of a nation of 210 million very diverse people.
Wahid's leadership style is described as chaotic. He has been accused of being largely incompetent on economic issues, quite aloof and unpredictable, and to falling asleep in cabinet meetings and parliament sessions. His physical blindness has been cited as a problem, leaving him dependent on others to read documents for him. Wahid's dependence in these matters has led to charges that his family, friends and aides can exploit him. As one Indonesian military leader noted, "What we need is a leader, what we have is a cleric." [FN55]

IV. "THE FIRST THING IS THE RULE OF LAW"

When asked what needed to be done to cure the many ills plaguing Indonesia, one Indonesian military officer replied, "The first thing is the rule of law." [FN56] At the heart of Indonesia's problems lies the thirty-two year absence of competent, honest legal institutions. The system of "crony capitalism" run by Suharto and his cronies lies at the root of the Indonesian economic crisis. Suharto controlled Indonesia with the economic support of a small group of wealthy Ethnic Chinese businessmen. This system was enforced by the Indonesian military that imprisoned or eliminated Suharto's political opposition. One Indonesian citizen stated that it was nice to be able to discuss her country in private without facing the *112 fear of death. [FN57]
A. Suharto's Legacy
Suharto controlled the legal machinery and the destiny of a nation. The Suharto regime was completely corrupt. To fully appreciate Suharto's corrupt, morally bankrupt regime, one only has to visit the Suharto museum at Tam Mini, a park in Jakarta, which features exhibits from all regions of Indonesia. The Suharto museum is filled with many gifts given to Suharto during his reign. It is filled with priceless jade carvings, works of expensive art from all over the world owned by Suharto, and a floor devoted to Suharto and his late wife Madame Tien. The museum, built by Suharto's cronies, demonstrates his arrogance. Not only was Suharto thoroughly corrupt, but he flaunted his corruption for all to see. His museum is a monument to the excesses of political dictators everywhere.
The economic activity of Suharto, has late wife Siti, his children, and Indonesian bankers who made a massive number of improper loans financed his cronies. Siti was known as "Madame Ten Percent", reflecting her share of all public contracts. [FN58] Suharto and his family accumulated a financial empire estimated at more than $25 billion. [FN59] The Suhartos held an interest in major corporations controlling virtually every facet of daily life in Indonesia. [FN60] It was virtually impossible to conduct business in Indonesia without dealing with Suharto, his family, and their business cronies. The Indonesian economic system was a complex web of corrupt deals and political payoffs. [FN61]
Suharto centralized all power in Jakarta with himself as the supreme leader. *113 A U.S. Library of Congress study described the Indonesian political system stating: [FN62] "Since independence the nation has been centrally governed from Jakarta. In a system in which the lines of authority, budget, and personnel appointment run outward and downward, regional and local governments enjoy little autonomy. Their role is largely administrative: implementing policies, rules and regulations. Regional officialdom is an extension of the Jakarta bureaucracy. In the early 1990s, there was neither real power sharing or upward political communication through representative feedback." [FN63]
Most natural resources were located in less populated areas. Suharto extracted these resources for use in the more heavily populated areas, particularly Java. In the process, the central government controlled local revenues and finances leaving little power for provincial and local governments. [FN64] The Indonesian banking sector was poorly supervised by the central bank, Bank of Indonesia. These circumstances led to the collapse of the Indonesian banking sector resulting in economic chaos in Indonesia. The effects of the financial collapse have included massive poverty, a high rate of unemployment, and starvation for millions of Indonesians. Deadly riots and political protests are now common. These events caused the downfall of Suharto, but at the price of further political, economic, and social upheaval. Suharto also controlled the legal system, including all judicial appointments. Judges earned a living by selling justice to the highest bidder. [FN65] The legal system was simply another arm of Suharto's corrupt machine. It is out of this environment that a new legal system must be constructed in Indonesia.