Courts and the Right to Education in Indonesia
9.4 Conclusion
More than 80 percent of the world’s constitutions recognize the right to educa- tion, and courts have become an increasingly important arena to hold governments accountable for education policies and practices. Indonesia has been no different in this respect experiencing a wave of R2E litigation since the country’s transition to a more democratic polity. We have advanced three main arguments in relation to this litigation. First, it has been part of broader struggles over education policy, inequality, and the capture of education institutions by political and bureaucratic forces, being oriented toward policy issues rather than individual concerns. Second, the extent to which it has served to promote fulfillment of the right to education in Indonesia has depended significantly on the nature of, and access to, the court system; the pres- ence of SSLMs; the attitudes, ideologies, and strategic choices of courts and judges;
and the extent to which litigation has been accompanied by political mobilization.
Third, this litigation has mainly served the interests of the poor and marginalized even though sections of the middle class have been centrally involved in many cases.
Gains have largely come through better access to education; issues of improving quality have been less prominent.
There are good reasons to believe that this record of impactful R2E litigation may not continue into the future. First, in recent years, the Constitutional Court has been rocked by a series of corruption scandals and has become more conservative in its outlook. It is consequently unlikely to continue to take a progressive stance on issues of social rights. Second, progressive NGOs may shift their priorities in the future, giving renewed attention to struggles over civil and political rights as the country goes through a period of democratic decline, the push for neoliberal reform of the country’s education sector abates, and questions of education quality come to the fore.
What, then, are the wider lessons of the Indonesian case with regards to the effectiveness of R2E litigation in promoting fulfillment of the right to education in developing country democracies? Litigation as a strategy for promoting the right to education has clear limitations given the constraints that litigants face in taking matters to court. Nevertheless, the Indonesian experience suggests that R2E litigation can play a positive role in promoting fulfillment of this right, particularly with regards to issues of access, so long as particular institutional and agential conditions prevail.
9 Courts and the Right to Education in Indonesia 165 In policy terms, the implication is that activists seeking to promote the right to education through the courts in developing country democracies need to be mindful of the potential for these conditions to influence outcomes and the prospects for them to change in determining when, where, and how to proceed with R2E litigation.
Acknowledgements This is an updated and revised version of sections of Andrew Rosser and Anuradha Joshi (2018) Using Courts to Realize Education Rights Reflections from India and Indonesia, World Bank Policy Research Working Paper 8448. https://openknowledge.worldbank.
org/handle/10986/29858. License: CC BY 3.0 IGO. We thank an anonymous reviewer for comments and suggestions.
References
Baxi, U. (1985). Taking suffering seriously: Social action litigation in the supreme court of India.
Third World Legal Studies, 4, 107–132.
Bergallo, P. (2011). Argentina: Courts and the right to health—Achieving fairness despite “rou- tinization” in individual coverage cases. In A. Yamin & S. Gloppen (Eds.), Litigating health rights: Can courts bring more justice to health? (pp. 43–75). Harvard University Press.
Bourchier, D. (1999). Magic memos, collusion and judges with attitude: Notes on the politics of law in contemporary Indonesia. In K. Jayasuriya (Ed.), Law, capitalism and power: The rule of law and legal institutions (pp. 233–252). Routledge.
Butt, S., & Parsons, N. (2014). Judicial review and the supreme court in Indonesia: A new space for law? Indonesia, 97, 55–85. https://doi.org/10.5728/indonesia.97.0055
Chang, M. C., Shaeffer, S., Al-Samarrai, S., Ragatz, A. B., de Ree, J., & Stevenson, R. (2014).
Teacher reform in Indonesia: The role of politics and evidence in policy making. World Bank.
Darmaningtyas, E., Subkhan, E., & and Panimbang, I. F. (2009). Tirani kapital dalam pendidikan:
Menolak UU BHP (Badan Hukum Pendidikan). Pustaka Yashiba and Damar Press.
Epp, C. (1998). The rights revolution: Lawyers, activists, and supreme courts in comparative perspective. University of Chicago Press.
Epp, C. (2010). Making rights real: Activists, bureaucrats, and the creation of the legalistic state.
University of Chicago Press.
Franken, J. (2010, June 28). Analysis: Indonesia’s 12-year compulsory education program. The Jakarta Post.
Gauri, V., & Brinks, D. M. (Eds.). (2008). Courting social justice: Judicial enforcement of social and economic rights in the developing world (pp. 303–304). Cambridge University Press.
Government of Indonesia. (2009). Minister of education regulation 78/2009 on the implementation of international standard schools in primary and secondary education. Government of Indonesia.
Hadiz, V. (2003). Reorganizing political power in Indonesia: A reconsideration of so-called “demo- cratic transitions.” Pacific Review, 16(4), 591–611. https://doi.org/10.1080/095127403200013 2272
Hunt, A. (1993). Assault on the airline industry: Private antitrust litigation and the problem of settlement. Journal of Air Law and Commerce, 59, 983.
Kelompok Independen Untuk Advokasi Buku. (n.d.). Pers release pencabutan permendiknas no 2 tahun 2008 tentang buku.
Khan, I., & Petrasek, D. (2014, September 22). Beyond the courts—Protecting economic and social rights. https://www.opendemocracy.net/openglobalrights/irene-khan-david-petrasek/bey ond-courts-%e2%80%93-protecting-economic-and-social-rights. Accessed 14 Jan 2016.
166 A. Rosser and A. Joshi Leigh, B. (1998). Learning and knowing boundaries: Schooling in new order Indonesia. Sojourn,
14(1), 34–56.
McCann, M. (1994). Rights at work. University of Chicago Press.
McLeod, R. (2000). Soeharto’s Indonesia: A better class of corruption. Agenda, 7(2), 99–112.
Mietzner, M. (2009). Indonesia’s 2009 elections: Populism, dynasties and the consolidation of the party system. Lowy Institute.
Mietzner, M. (2010). Political conflict resolution and democratic consolidation in Indonesia: The role of the constitutional court. Journal of East Asian Studies, 10(3), 397–424. https://doi.org/
10.1017/S1598240800003672
Miguel-Stearns, T. (2015). Judicial power in Latin America: A short survey. Legal Information Management, 15(2), 100–107. https://doi.org/10.1017/S1472669615000274
MoEC. (2012, March 6). Pendidikan menengah universal 12 tahun [PowerPoint slides].
Nardi, D., Jr. (2018). Embedded judicial autonomy: How NGOs and public opinion influence Indonesia’s constitutional court (Unpublished doctoral dissertation). University of Michigan.
O’Connell, P. (2007). On reconciling irreconcilables: Neoliberal globalisation and human rights.
Human Rights Law Review, 7(3), 483–509. https://doi.org/10.1093/hrlr/ngm015
Right to Education Project. (n.d.). Defining the right to education. http://r2e.gn.apc.org/node/233.
Rosser, A. (2015a). Law and the realisation of human rights: Insights from indonesia’s education sector. Asian Studies Review, 39(2), 194–212. https://doi.org/10.1080/10357823.2015.1025462 Rosser, A. (2015b). Neo-liberalism and the politics of higher education policy in Indonesia.
Comparative Education, 52(2), 109–135. https://doi.org/10.1080/03050068.2015.1112566 Rosser, A. J., & Fahmi, M. (2016). The political economy of teacher management in decentralized
Indonesia (World Bank Policy Research Working Paper, 7913).
Rosser, A., & Curnow, J. (2014). Legal mobilisation and justice: Insights from the constitu- tional court case on international standard schools in Indonesia. The Asia Pacific Journal of Anthropology, 15(4), 302–318. https://doi.org/10.1080/14442213.2014.916341
Rosser, A., & Joshi, A. (2013). From user fees to fee free: The politics of realising universal free basic education in Indonesia. The Journal of Development Studies, 49(2), 175–189. https://doi.
org/10.1080/00220388.2012.671473
Santos, B. D. S., & Rodríguez-Garavito, C. A. (2005). Law and globalization from below: Towards a cosmopolitan legality. Cambridge University Press.
Susanti, B. (2008). The Implementation of the rights to health care and education in Indonesia. In V.
Gauri & D. Brinks (Eds.), Courting social justice: Judicial enforcement of social and economic rights in the developing world (pp. 224–267). Cambridge University Press.
Wilson, B. (2009). Institutional reform and rights revolutions in Latin America: The cases of Costa Rica and Columbia. Journal of Politics in Latin America, 1(2), 59–85. https://doi.org/10.1177/
1866802X0900100203
World Bank. (1998). Education in Indonesia: From crisis to recovery. World Bank.
Andrew Rosser is Professor of Southeast Asian Studies and Deputy Director of the Asia Institute at the University of Melbourne. His research examines issues to do with the political economy of development focusing on Indonesia. He has published widely on Indonesia’s education sector including articles in Comparative Education, Asian Studies Review, The Asia-Pacific Journal of Anthropology, and International Journal of Educational Development. He has acted as a consultant to the World Bank, DFID, the OECD, Oxfam, UNRISD, UNDP, and AusAID/DFAT among other organizations.
Anuradha Joshi is a Senior Research Fellow in the Governance Cluster at the Institute of Devel- opment Studies, University of Sussex. She holds a Ph.D. in Public Policy from the Massachusetts Institute of Technology. Her interests lie in understanding state-society relations, on collective action, accountability and service delivery. She has wide experience of consulting for bilateral and multilateral agencies in development, and managing large, multi-country research projects. Her
9 Courts and the Right to Education in Indonesia 167 research has been co-produced with local partners in Ghana, India, Indonesia, Myanmar, Nepal and Vietnam. She currently co-directs a five-year FCDO funded research programme focussed on social and political action for empowerment and accountability in fragile, conflict and violence affected settings (A4EA).