I: Orientations
About Me
I am Justin Apperson, a second year law student spending the summer in Indonesia. For the first part of my time here, I will be living in Padang and collaborating with Pusat Studi Konstitusi (PUSaKO), the Center for Constitutional Studies, at Andalas University. I will then travel to Jakarta for some hands-on learning with the Constitutional Court in the chambers of Deputy Chief Justice Saldi Isra before returning to Padang to finish my summer.
Before law school, I spent several years working with the National Center for State Courts, where I supported Access to Justice Initiatives. Mainly this was in the somewhat historically overlooked area of language access, helping to ensure that parties with limited English proficiency could meaningfully participate in proceedings and receive court services. But I was also involved with judicial ethics, public trust and engagement, and criminal justice reform.
The courts often have a reputation as robed magisterial creatures conjuring impenetrable doctrines and imagining labyrinthine procedures. I felt driven to help demystify these institutions. Law school seemed like a sound next step towards making myself useful in this way. My interests coming into law school included worker’s rights, immigration, and government administration. I have lately grown a fascination with the management of natural resources: the land, water, and skies that we share and have the duty to steward for future generations of people and wildlife.
A lot of countries have looked to America as a mature democracy. But America seems to be having something of a mid-life crisis. You can read a lot of jeremiads about how our institutions are being tested, failing to meet this century’s challenges, and I am not going to reproduce them here as any kind of oracle on America’s system of government. I would like to dedicate this summer instead to the space we have for re-invention and common problem solving, focusing on the goals of transparency and meaningful democratic involvement in government.
I feel very honored to be invited to collaborate with inspired constitutional scholars and researchers at PUSaKO. The team here has produced years of dedicated work following the issues of post-reformation constitutional development in Indonesia and producing thoughtful and informed research and recommendations. I look forward to sharing more about these characters.
Catching Up on Indonesia
I did not have to figure out the basic passages, myths, and debates about life in America before studying American constitutional law. The basic story is familiar to us of the republic that separated from the British Empire, established its dominion from Atlantic to Pacific, traversed a sectional crisis over the institution of slavery, rapidly industrialized, and eventually declared itself to the world as a capitalist superpower. The broad strokes: things that are important for seeing how constitutional controversies reach at some kind of self-definition for how Americans experience their government.
I did not know very much of Indonesia’s history before coming here, which is disorienting and has helped me appreciate
how important that kind context is for American constitutionalism. I was invited the other day to give a guest presentation on the American constitutional perspective for a class on Human Rights Law taught by Professor Charles Simabura, PUSaKO’s Director. I was explaining to his class the skeletal version of the line of cases incorporating parts of the Bill of Rights as “fundamental” rights under the Fourteenth Amendment and then how the Supreme Court has thought about the scope of unenumerated rights. To get at where the Fourteenth Amendment came from, the class had questions about racial and civic inequality from colonial times to the Civil War.
I thought about broadly summarizing Indonesian history here to help make sense of these posts. But I got lost thinking about what is most important to highlight, if I am even competent to deliver that kind of overview, and I am really learning as I go. So instead, I will share my historical learning with you as I go, offering short snippets of my observations, which I will seek to improve upon and piece together over time.
Pancasila Day
I arrived just before Pancasila Day, which is celebrated on June 1. After some 300 years of colonization by the Netherlands, the Empire of Japan defeated the allied defenders of the Dutch East Indies in only a matter of weeks at the beginning of 1942. Japan then occupied and administered Indonesia under martial law. As Japan was losing ground to the allies, the occupation government began promising autonomy with the goal of mobilizing the population for defense against allied powers, whose victory suggested the return of Dutch colonial rule. In March 1945, the general in command of the army occupying Java announced the formation of the Investigating Committee for Preparatory Work for Independence, Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan Indonesia (BPUPK), composed of Indonesian nationalist leaders of varying ideological stripes and supervised by Japanese officials. The group was given the immense task of drafting the constitution for a prospective Indonesian state.
During the first plenary session of the BPUPK, which convened in the former Volksraad assembly in Jakarta on May 28, 1945, Indonesian nationalist leaders debated state ideology, focusing on the role of Islamic religion, individual rights and state corporatism, unitary government and federalism, social justice, and the meaning of democracy. At the end of the session on June 1, Sukarno delivered a speech outlining Pancasila, borrowing a Sanskrit term to identify his five proposed principles of state philosophy. The five principles are: (1) Belief in the one and only God; (2) just and civilized humanity; (3) the unity of Indonesia; (4) democracy guided by the inner wisdom in the unanimity arising out of deliberations among representatives; and (5) social justice for the whole of the people of Indonesia. The principles today are reflected in the national emblem of Indonesia, the Garuda Pancasila, as a coat of arms with symbols representing each of the five principles emblazoned over the chest of the Vedic deity Garuda. During an informal recess committee, Pancasila was incorporated into the draft Preamble to the Constitution.
The Second Session convened from July 10 to July 17. A sub-committee drafted the articles of the Constitution, dominated largely by the personalities of Supomo and Sukarno, giving life to the vision of Pancasila. Supomo was a lawyer educated at the University of Leiden in the Netherlands, where he learned the customary law of adat communities from Cornelis van Vollenhoven, a fierce proponent of customary rights in the Dutch East Indies. Many continental legal scholars were interested in adat law as a fruitful example of organicist legal thinking, making comparisons to volksrecht and English common law. Supomo’s thinking evolved into a philosophy of a strong unitary state, with the President acting as a paternal figure mediating between divided interests as corporate appendages, in a way that resembles Italian fascism.
Sukarno founded a pro-independence party while a student activist at the Bandung Institute of Technology in West Java where he was learning architecture. Sukarno advocated national unity and self-sufficiency and was influenced by Marxist thought, becoming a popular figure during his first imprisonment by Dutch colonial authorities in 1930. He emerged from solitary confinement a more powerful organizer and was exiled without trial by the Governor-General of the Dutch East Indies from Java to Flores in 1934. He remained there until he was released by the Japanese occupation in 1942.
Both leaders were in their own way skeptical of individual rights, finding them hard to separate from the liberal ideology that buttressed capitalism, which in turn promoted the exploitation and imperial domination of Indonesia. Figures that promoted incorporating limiting principles of government, namely Mohammad Yamin, who helped greatly in drafting the Preamble, were sidelined in the later drafting of articles. In only a few days that July, a handful of influential revolutionary leaders drafted the basis for the Indonesian Constitution that governs today. The document left many questions unanswered, prominent among them how leaders were to be selected for the People’s Consultative Assembly (MPR), which was responsible for electing the President. The Constitution did not create a system of judicial review to help answer them.
On August 15, 1945, the Emperor of Japan surrendered to the allies. This created a confusing power vacuum in Indonesia, and the Indonesian nationalists took swift advantage by declaring independence only two days later on August 17, 1945. Sukarno was named President, and the new Republic of Indonesia prepared for war with the returning Dutch, leaving the new government to establish itself under the Constitution drafted that summer while in a dire ongoing emergency.
More About Human Rights
The framers of the Indonesian Constitution discussed whether to enumerate human rights in the Constitution. The liberal-minded Mohammad Yamin, while not a member of the drafting committee, suggested incorporating these limitations to government power in his comments on the published draft. He was rebuffed by his colleagues. The People’s Consultative Assembly (MPR) revisited this issue in the Era Reformasi, ultimately adopting language derived from the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). I am still learning what effect this has in Indonesia and what the Constitutional Court has made of these rights.
It is interesting to contemplate a world where language from the international human rights movement fits into an amended US Constitution. The US did ratify the ICCPR, the effect of which on domestic law is limited by the lack of executing legislation by Congress. Whether judges should import ideas from the ICCPR into constitutional language like “cruel and unusual punishment” or the liberty interest of the due process clause is part of an ongoing battle over modes of interpretation. To an originalist, the ICCPR must be irrelevant in shading our constitutional rights since nobody in the Early Republic could have anticipated this twentieth century global collaboration.
If popular constitutionalism resists originalism, but embraces this articulation of rights, and the Supreme Court is therefore drifting from popular constitutionalism, then maybe a good move would be to incorporate international human rights covenants into the Constitution. Even for provisions mostly duplicated by the Bill of Rights, an originalist would presumably be forced to interpret them as a product of the twenty-first century. Is that a useful kind of corrective vision? Can it salvage some lost confidence in judicial review? Is it hopeless to talk about amending the Constitution in any meaningful way?
As a still more ambitious goal, some of the students and other researchers I have spoken to expressed surprise that the United States never ratified ICESCR, much less incorporated provisions into the Constitution. The Reagan administration believed that declaring such things as a “right to an adequate standard of living” basically mischaracterized the role of government and allowed Cold War adversaries to deflect violations of civil and political rights. For the last several decades, US spokespersons have put these rights in quotation marks: there is no right against dying of hunger or preventable illness in America. Is there anything to suggest that the US government has any obligation to shield people from extreme poverty? Would adopting this commitment have any legal effect when the government is contemplating cutting deeply into public benefits? Would it affect something like using the debt ceiling to secure major changes to Medicaid and SNAP?
The Carter Administration, which signed ICESCR, seemed to think the treaty did not create any binding obligation, treating it as basically an aspirational declaration of goals. Although free-market-oriented commentators since then, successfully fighting against ratification, have apparently been frightened by the possibility ICESCR language could be used to convert public benefits into stickier entitlements. I personally do not see any problem with that, although I can imagine justiciability issues that would tend to assuage their anxieties. It seems kind of basic to the way a universal welfare state functions that “benefits” like healthcare and social security are non-discretionary entitlements.
Padang and Andalas University
Padang is a city in West Sumatra of a million some people lying on the Indian Ocean opposite the
Mentawai Islands. The dinner table language of most people in West Sumatra is Minang, a language which has some different vocabulary from the national standard language bahasa Indonesia. Some of the touchstones of Minangkabau culture include Rumah Gadang architecture, with buffalo-horn-like spires, a matrilineal system of traditional kinship, and spicy Padang cuisine like Rendang, braised beef slow-cooked in coconut milk and seasoned with a special spice blend.
People I meet here think highly of Andalas University, especially the law faculty, and within the law faculty PUSaKO is greatly treasured. Andalas University was founded in 1955, bringing together separate colleges founded in the years following independence. While the Dutch, towards the end of their colonial rule, established some polytechnical schools and colleges, before independence an aspiring Indonesian lawyer or civil servant would generally travel to be educated in the Netherlands, and the opportunities for Indonesian lawyers in the caste-based colonial system were pretty limited. The law faculty at Andalas and other universities has played a vital role in filling the ranks of Indonesian civil servants, advocates, and legal scholars.
I've enjoyed getting to know the students here, answering their questions about law school in America, and felt inspired by their curiosity. My first weekend here I was invited to attend a gala dinner with the university of the Asian Law Students Association, which provides students opportunities for networking, engaging in competition teams, and exploring their interests with their peers. They took to calling me "Bung Justin," which I think means something like "Bro Justin" or "Dude Justin".
The students, and often the faculty, are surprised at how a person becomes a lawyer in the United States. In Indonesia, students will enter the Law Faculty seeking a bachelors of law, an LL.B, and after graduating many students will enter the civil service or begin a post-graduate practicum to get an advocacy license. Students seeking to expand their opportunities, or enter legal academia, will often get a master's degree, an LL.M, and may seek out foreign universities. Australia, the United States, and the Netherlands appear to be popular destinations for an LL.M. When I tell people that I am pursuing a juris doctor but have a bachelor's degree in History and Spanish, and not in law, people usually give me a puzzled look.
Students also sometimes ask me what I am writing my thesis about. I tell them that I don't have to write a thesis to graduate. I have the impression that legal education in America is more practice driven. We highlight summer internships, externship credit, legal research and writing and lawyering skills curricula, advanced writing credits, participating on journals, and so on. I suppose that law firms like to that law school graduates are prepared to be practitioners, whereas many students here do not even intend to become advocates.
On the other hand, a lot of students here seem pretty familiar with legal philosphy and scholarship in ways that a lot of American law students maybe are not. I was talking to a PUSaKO reseracher who was trying to learn vocabulary to study for the TOEFL exam by reading The Concept of Law by HLA Hart. He wanted to talk about Oliver Wendell Holmes' The Common Law. Nobody has ever asked me to read these books. They are footnotes to me in law review articles and cases. My understanding of these things feels pretty superficial.
I've been rambling some. I guess I have felt excited at my new surroundings and find myself constantly reaching at comparisions. Next week I will focus on some things more related to the research I have been starting: climate change in Indonesia, management of natural resources, corruption and administrative reforms, and the bleak legacy of the Dutch colonial system.