Courts and the Right to Education in Indonesia
9.3 Education Rights Litigation in Indonesia .1 Structural Factors
9.3.3 Litigation
This policy-oriented R2E litigation included cases related to:
1. The national exam. After the fall of the New Order, the government introduced a new national exam administered at the end of primary, junior secondary, and senior secondary school in an effort to raise the quality of Indonesian education.
In contrast to the preceding system, where final results were partly determined by school grades and partly by national exam results, students’ final results under the new system—and hence their ability to continue with their education—became dependent entirely on national exam scores. The logic was to give students a greater incentive to do well in the exam by transforming it into a “high-stakes”
test. Before long, human rights and education activists in Jakarta began receiving complaints from parents whose children had been unable to continue their educa- tion after failing the exam. This was despite widespread cheating on the exam.
9 Courts and the Right to Education in Indonesia 161 In 2004, two Jakarta-based NGOs, the Jakarta Legal Aid Foundation and the Education Coalition, tried unsuccessfully to have the regulations providing for the national exam overturned through a judicial review case at the Supreme Court.
But in 2006 they returned to the courts as public attention toward the issue grew in the wake of increased media reporting. This time they lodged a citizen lawsuit at the Central Jakarta District Court, a form of litigation likely to attract media and public attention. Their submission called on the government to change various aspects of the exam and issue a public apology for failing to protect the right to education (Rosser, 2015a).
2. The size of the education budget. Following the amendment of the Constitution, the central government slowly moved toward fulfilling the requirement to allo- cate at least 20 percent of its budget to education. Between 2005 and 2008 a collection of parents, teachers, and students—including, in several cases, figures from the PGRI—sought to force the central government to move more quickly by challenging various laws that permitted the government to spend less than 20 percent. These included Law 20/2003 on a National Education System and a succession of budget laws. In making a case for annulment of these laws, these actors invoked the constitutional right to education as well as provisions specifically establishing the minimum spending requirements (Susanti, 2008).
3. The legal status of educational institutions. In 2009 the Indonesian government enacted legislation that changed the legal status of educational institutions to
“education legal entity” (BHP), something roughly equivalent to a state-owned enterprise. Before that, public schools and universities had been units within the government bureaucracy. Parent, NGO, and university student activists strongly opposed this change in legal status, arguing that it amounted to the commer- cialization or privatization of public education. They said that it would lead to abrogation of the state’s responsibility for funding education and consequently higher school and university fees (Darmaningtyas et al., 2009). The law was also opposed by owners of private foundations for separate reasons. Following enact- ment of the law, all these groups challenged the law in the Constitutional Court.
In their submission to the court, the activists argued that the change in the legal status breached citizens’ constitutional rights to education and free basic educa- tion. After they prevailed in this case, the government responded by enacting a new law on higher education that, in effect, limited the proposed change in legal status to the country’s top-ranked public universities. A subsequent Consti- tutional Court challenge to this law brought by university student activists was unsuccessful (Rosser, 2015a, 2015b).
4. International standard schools. In 2009 the Indonesian government enacted new regulations providing for “international standard” schools (SBI/RSBI), defined as schools with “certain quality superiorities that originate from OECD member countries or other developed countries” (Government of Indonesia, 2009, Article 1(8)). In contrast to “regular” schools, SBI/RSBI were permitted to use interna- tional curriculums, install high-quality facilities for information and communi- cation technology, employ foreign teachers, and use English in the classroom,
162 A. Rosser and A. Joshi among other means of enhancing quality. To support them in reaching inter- national standards, the government allowed them to charge fees and furnished them with generous routine and additional funding. Such schools were meant to be academically selective and reserve 20 percent of places for students from poor backgrounds. But they generally failed to meet this target. The main bene- ficiaries (and supporters) of this policy were middle-class parents, for whom SBI/RSBI promised a better-quality education for their children, and elements within the education bureaucracy, for whom SBI/RSBI opened up an array of new rent-seeking opportunities. The main opponents of the policy were parents of children excluded from SBI/RSBI for financial reasons, parents who could afford SBI/RSBI but were concerned about corrupt school management undermining educational quality, and teachers at SBI/RSBI who sympathized with either or both of these groups of parents. In 2011 three parents—all from the first group above—supported by activists from Indonesia Corruption Watch and Elsam, both Jakarta-based NGOs, lodged a judicial review request at the Constitutional Court challenging Article 50 (3) of Law 20/2003 on a National Education System, the article that provided the legal foundation for the establishment of SBI/RSBI. In their submission to the court, they argued, among other things, that SBI/RSBI policy amounted to an abrogation of state responsibility to provide free basic education because it allowed such schools to charge fees (Rosser & Curnow, 2014).
5. Textbooks. The cost of purchasing textbooks has long been a significant financial burden for poor parents in Indonesia. This problem has been worsened by the fact that teachers have supplemented their incomes by selling textbooks to students for inflated prices. In 2008 the central government issued a new regulation on textbooks that, in the eyes of its critics, did little to resolve these problems and, in fact, made them worse by proposing that society (such as parents and students) share responsibility for ensuring that children had access to these books. In 2008 a group of NGO activists challenged this regulation by lodging a judicial review request at the Supreme Court. Among their reasons for challenging the regulation were that it breached the principle of free basic education (Kelompok Independen Untuk Advokasi Buku, n.d.).
6. Compulsory Senior Secondary Education. In 1984, the central government made the first six years of school compulsory and in 1994 it extended this to nine years.
In 2010–2011, it then announced a policy of universal senior secondary educa- tion covering the remaining three years of school. It stipulated that this was not an extension of compulsory education or free education, both of which only applied to the first nine years of school (Franken, 2010; MoEC, 2012). It appears that the government backed away from such a change because of concerns among technocrats at the Ministry of Finance and Bappenas about the additional cost of free education at the senior secondary level.3 In 2014, individuals and educa- tion organizations represented by lawyers from the Indonesian Human Rights Committee for Social Justice, an NGO, lodged a judicial review request at the
3 Interview with Satrio Soemantri Brojonegoro, Jakarta, November 2012.
9 Courts and the Right to Education in Indonesia 163 Constitutional Court seeking an interpretation of Law 20/2003 on a National Education System that would effectively extend the government’s compulsory and free education programs to the senior secondary level.4 In so doing, they argued that the limitation of these programs to the basic education level infringed on the right to education. The court found against the petitioners, ruling that their petition lacked a legal basis. A similar case in 2018 lodged by two housewives suffered a similar fate.5