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Abstract
Analysis of the role of courts in shaping access to justice in Indonesia has emphasised the role of judges and the incentives created for them by courts' institutional design. Alternatively, it has focused on individual justice-seekers and their capacities to choose between alternative pathways through the legal repertoire. In this paper, we suggest that ‘support structures for legal mobilisation’ (SSLMs) have also played an important role in shaping access to justice by influencing both the potential for legal mobilisation and the type of justice sought. In making this argument, we focus on a recent Constitutional Court case on ‘international standard schools’. In this case, a group of parents were able to mobilise for legal action only because NGOs provided the required technical expertise and financial resources while the central involvement of an anti-corruption NGO in the SSLM shifted the focus from parents' concerns about discrimination to corruption.
Acknowledgements
We wish to thank Laurens Bakker, Jaap Timmer and two anonymous reviewers for their helpful comments on an earlier draft of this paper.
Funding
This work was supported by the Australian Research Council [FT110100078].
Notes
[1] See Rosser (forthcoming Citation2015) for further exploration of the role of SSLM in Indonesia's education sector.
[2] The government has indicated a desire to maintain the SBI/RSBI policy in a revised form. See Damarjati (Citation2013).
[3] During the New Order, only foreigners were permitted to attend international schools. While regulatory changes since the fall of the New Order mean that Indonesian nationals can now attend international schools up to a certain percentage, they have refused to open their doors widely and consequently still predominantly service the expatriate community (Sakhiyya Citation2011, 348).
[4] See Minister of Education Regulation 78/2009 on the Implementation of International Standard Schools in Primary and Secondary Education, Article 1(8).
[5] See Minister of Education Regulation 78/2009, especially Articles 4, 5, 6, 10, 16 and 20.
[6] The Indonesian is Rintisan Sekolah Bertaraf Internasional.
[7] These differences are specified in Government Regulation 48 on Education Funding, Article 9. Minister of Education Regulation 78/2009, Article 13 (3), reaffirms the permission granted to SBI to charge fees.
[8] Pribumi Indonesians are predominantly Moslem while Chinese Indonesians are predominantly Christian.
[9] This research has benefitted enormously from the help of individuals associated with Auditan/APPI, in particular Jumono and Handaru Widjatmiko.
[10] One of Auditan's 2007 Press Releases lists a number of NGOs as being within its ‘network’ including: Indonesian Corruption Watch (ICW); Voice of Concerned Mothers (SIP), the Indonesian Forum for Budget Transparency (FITRA); and the Indonesian Consumers Association (YLKI).
[11] Interview with Ade Irawan, former Manager of ICW's Public Services Monitoring Division and Secretary of the Education Coalition, Jakarta, October 2009.
[12] We have put the word ‘illegal’ in inverted commas here and elsewhere in recognition of the fact that while SBI/RSBI fees were ultimately deemed unconstitutional, they were permitted under various government regulations.
[13] Interviews with Isnetty Saibi, a former teacher at SDN RSBI Rawamangun 12 Pagi and Handaru Widjatmiko, Jakarta, October 2009.
[14] Interviews with Jumono and Ade Irawan, June and October 2009.
[15] As best we can tell, parents' groups and their NGO supporters never lodged a complaint with the Ombudsman. See Crouch (Citation2008) on the Ombudsman's powers.
[16] Originally formulated and introduced as Indonesian nationalist forces prepared for armed struggle against the Dutch in 1945, the 1945 Constitution was revised after the fall of the Suharto's New Order. The revised version is often referred to as the ‘amended’ 1945 Constitution. See Butt and Lindsey (Citation2012) on the Indonesian Constitution.
[17] Permission for SBI/RSBI to charge fees would appear, on the face of it, to breach the 1945 Constitution's requirement that government funds the cost of basic education.
[18] Interview with Zainal Abidin, ELSAM, Jakarta, January 2012.
[19] Interview, Jakarta, 1 March 2013.
[20] Interview, Jakarta, 7 March 2013.
[21] She claims to have successfully ‘defended’ her husband in this case (despite having no formal legal training) by reading up on Indonesian law and legal procedure.
[22] Interview, Jakarta, 1 March 2013.
[23] Andi Muttaqien, ELSAM, personal communication, July 2012.
[24] Indeed, Fitriyadi only became involved in the court case following an approach by Jumono, a parent-activist associated with ICW. Interview with Fitriyadi, Jakarta, 1 March 2013.
[25] Andi Muttaqien, ELSAM, personal communication, July 2012.
[26] For instance, activists from both organisations were involved in the successful challenge to Law 9/2009 on Education Legal Entities (Badan Hukum Pendidikan) in 2009.
[27] The modesty of Fitriyadi's and Tauhida's financial means also became apparent during interviews. Fitriyadi works as a food seller and lives in a small, crowded and simple house in a Tebet kampung. Tauhida has a more affluent background but appears to have become financially dependent on her parents since her husband lost his job in 2000.
[28] In this respect, it is worth noting that the Indonesian Poor People's League (SRMI), another Indonesian NGO that has been active in relation to education rights issues but with a more explicitly radical orientation, has not engaged at all with the issue of corruption at RSBI/SBI, presumably seeing this as a middle-class cause antithetical to the interests of the poor.
[29] Wicipto Setiadi, the head of the National Legal Development Agency (BPHN), has indicated that government legal aid funding can be used to support challenges to government policy through judicial reviews among other legal mechanisms. See Hukumonline.com (Citation2013).