Adrian Bedner

(Leiden University)

Engineering for the Negara Hukum (Rule of Law): The Indonesian Constitutional Amendments in
Practice

The fall from power of President Soeharto in 1998 marked the start of a new era in Indonesia’s
constitutional history. In four years time the constitutional order that had been in place since 1959 was
completely overhauled and replaced by a system supporting democracy and rule of law. That the
amendment process was marked by political struggles and surprising legal twists and turns does not
show much in the constitution that eventually came into place.
The present paper considers to what extent the constitutional promises of democracy and rule of law
have been realised during the past five years. It starts with a brief consideration of the main elements of
the rule of law, which it takes as the point of departure for an evaluation of the constitutional changes
and the political process that yielded them. It shows how the role of law was bolstered both ideologically
and institutionally, and how law should constrain the power of the state.
It then continues to evaluate to what extent this new constitutional order is actually effective, in
particular looking at court control of the government. It argues that the continuing institutional problems
in the court system, combined with general problems of legal development, greatly hinder the realisation
of the rule of law. Judicial independence and impartiality continue to be jeopardised by problems in
education, remuneration, personnel management, court structure, etc. and provide citizens with a patchy
system of protection at best.
Nonetheless, some positive changes are visible as well. These can in part be reduced to
constitutional amendments not directly related to the court system, but influencing the environment in
which they operate. They include the establishment of other watchdogs, the guarantee to freedom of
speech, and decentralisation. The paper ends with some speculation on the likelihood that these positive
changes may ultimately prevail.