Indonesian Legal System Overview

Why is there corruption?


Given the history and background of Indonesian law, it should not be surprising if there is a crises of corruption. It would be a miracle if there were no problem.

Through centuries of colonization by the Dutch, most Indonesians were excluded from meaningful participation or education in law, while a select elite of native rulers were co-opted to support the Dutch government through special privilege.

Independence found the new nation without enough well-educated legal scholars to rebuild a new system.

As democracy degenerated into dictatorship, the existing legal systems were subverted, again to the advantage of the elite.

With a return to democracy and reformasi, the existing elite and existing institutions were left in place nearly intact; only the formal laws defining them changed.


How Corrupt?

That Indonesia consistently ranks among the world’s most corrupt nations in surveys is no secret. The 2012 report from Transparency International ranked Indonesia at 118 out of 174 countries, down from 100 in 2011. On a scale of 0 to 10 for clean governance, Indonesia scored only 3.

Excerpts from a report by Transparency International titled Causes of Corruption in Indonesia point out that:

Causes of Corruption in Indonesia


Sectors/institutions most affected by corruption

The police sector is assessed by both citizens and business as one of the most corrupt sectors in the country. According to the Global Corruption Barometer (2010, 2011), 52% of Indonesians perceive the police as extremely corrupt, and 11% of those who have had contact with the police in 2009 have reported paying bribes. The number is significantly higher in considering businesses’ actual experiences with police corruption. According to the Indonesia Corruption Perception and Bribery Index, 48% of the respondents who have had contact with the police in 2007 had to pay bribes (Transparency International Indonesia, 2008).

The judiciary is also regarded as one of the most corrupt sectors and it is still perceived as highly influenced by government officials and local elites (Bertelsmann Transformation Index, 2012). Similarly to the police, 52% of Indonesians surveyed in the Global Corruption Barometer perceive the judiciary as corrupt. Actual experience of corruption accounts for 14% of those who have had contact with the institution in the year preceding the survey.

The fact that the police and the judiciary are perceived as one of the most corrupt institutions offers great challenges to control of corruption as they are instrumental to ensure enforcement of the law and the existence of rule of law in the country.

Parliament and political parties are also perceived as highly corrupt. According to the latest Global Corruption Barometer, 52% of Indonesians surveyed considered both Parliament and political parties as extremely corrupt (Transparency International, 2011). The culture of the secrecy within the national Parliament (i.e. close- door meetings) also offers opportunities for corruption, and limits the ability of the press and public to monitor its proceedings (Freedom House, 2010).

Other sectors perceived as corrupt by both citizens and businesses include land management, licenses, infrastructure and public utilities, as well as extractive industries and natural resources.

Suharto’s highly concentrated and particularistic regime has left weak institutions and clientelist social structures throughout the country (Barter, no year). For instance, the UNODC considers that one of the reasons for the moderate pace of reform on corruption issues is the deeply entrenched institutional culture of patronage. Acts of bribery and corruption, for example, are frequently not seen by Indonesian authorities as corrupt practices (UNODC, website).

The Bertelsmann Stiftung also considers that anti- corruption, bureaucracy, and market liberalization reforms are being conducted at a slow pace because they pose severe threats to the oligarchic structures of old elites within the economic sector, and these old elites still play a significant role on national and local politics (Bertelsmann Stiftung, 2012).

In Indonesia, the decentralisation process, which started being implemented in 2001, aimed among other things to end corruption, collusion and nepotism (KKN: korupsi, kolusi dan nepotism) by empowering local governments across the country. However, decentralisation reforms have not brought about the expected results. While the first objective was quickly achieved – villages and cities now enjoy greater responsibilities – transparency, accountability, and strong institutions are still lacking, imposing several challenges to the success of the decentralisation process and hampering the fight against corruption.

Decentralisation has introduced new actors and changed the modus operandi of corruption at the local level, increasing the opportunities/incentives for officials to behave corruptly. Local governments now enjoy wide discretionary powers and control over the application of more than 50% of the government budget (Bertelsmann Stiftung, 2012), including over resources from mineral and timber, without having proper internal and/or external accountability mechanisms in place. These resources are transferred to local governments under a revenue sharing scheme, and they represent up to 80% of the total revenue collected by these jurisdictions.


Lack of independence

The judiciary is perceived as one of the most corrupt institutions in Indonesia (Transparency International, 2011), and according to the 2008 Public Sector Integrity Survey conducted by the Indonesian Corruption Eradication Commission, the Supreme Court’s integrity value has ranked among the lowest among other public services in Indonesia (Fawzia, 2011).

The judicial system in Indonesia has a history of manipulation and control by the Executive. During Suharto’s regime, appointments to the Supreme Court were manipulated by the Executive that also had control over the appointment and future career of lower court judges. Within this framework promotions and transfers were based on whether judges have served the interest of the regime rather than on qualifications and other professional criteria (Fawzia, 2011).

After the regime change in 1998 the judiciary was established as a distinct power. Since then, numerous efforts have been undertaken to reform the legal and judicial system in the country, including ensuring organisational, administrative, and financial autonomy to the Supreme Court. Nevertheless, in spite of the Constitutional Court recent rulings against the government, overall, the judiciary still needs to prove its autonomy and independence (Bertelsmann Stiftung, 2012).

Most of the personnel working at the judiciary remain the same of the old autocratic regime and they may be influenced by local elites, business interests, military and politicians outside of the legal system (Freedom House, 2010). Bribes are often paid to influence prosecutions, convictions, and sentencing in civil and criminal cases. Several judges, especially at the sub- national level, have failed to sanction power abuse and patronage (Bertelsmann Stiftung, 2012). The problem is perpetuated by low salaries and lack of qualification of the judiciary personnel (Freedom House, 2010).

According to experts, the judiciary’s independence is also hampered by the persisting intervention from actors from outside the legal system (e.g. powerful businesses, politicians, etc) who attempt to influence decisions or force the dismissal of cases.

Considering the judicial system as a whole, challenges to fight corruption are also faced by prosecutors who are usually confronted by suspects who have both political power and influence at the local level. Prosecutors are thus often offered bribes or pressured/threatened to delay or simply close cases. In addition, bureaucratic and complicated procedures may also act as impediments for further prosecutions. For instance, the process of preparing the evidence involves numerous players and requires a good understanding of financial procedures and budgetary drafting in different districts (Rinaldi, 2007).

Preliminary analyses show that reforms in the country were not accompanied by a change in power structure (previous oligarchic network have survived the regime change and captured local governments), in culture (most public officials remain influenced by Suharto’s clientelistic system), and neither by the promotion of accountability of local and national governments.

The original article can be accessed HERE.