Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries

7. De Facto Judicial Independence in Party-Centered Systems: Post–Suharto Indonesia

227 chapter 7 De Facto Judicial Independence in Party-Centered Systems Post–Suharto Indonesia In sharp contrast to the high levels of de facto autonomy enjoyed by the judiciary in Brazil and India, the Indonesian judiciary has often been described as an institution that lacks de facto autonomy (see, for example, Lev 2004; Butt 2007). What accounts for such striking differences in judicial autonomy across these three countries that face similar development challenges ? The analysis in the previous chapter illustrated the argument we presented in hypothesis 2 that the candidate-centered nature of Brazil and India’s electoral systems was crucial in inducing incumbents in these two countries to increase the de facto independence of the judiciary in the context of short time horizons due to high hazard rates in office. In this chapter, we use the Indonesian case to illustrate the causal dynamics, which explain why incumbents in some countries make the opposite choice when they face short time horizons in office—to curb de facto judicial independence (DFJI). As argued in the corollary to hypothesis 2, if governments facing short time horizons are operating in electoral systems that create partycentered democracies, such as Indonesia, they have strong incentives to reduce rather than increase DFJI. Recall from the previous chapter that similar to incumbents in Brazil and India, the hazard rates Indonesian incumbents face are also high, which implies that the time horizons they face are also low. However, unlike Brazil and India, Indonesia employed a closed-list Proportional Representation (hereafter closed-list PR) electoral system for several years after the country made a transition to democracy in 1999. This gave party leaders ballot control over candidate nominations and pooled votes across all candidates in party lists. Consequently, in contrast to Brazil and India, the degree of po- 228 democracy, electoral systems, and judicial empowerment litical particularism in Indonesia was low and the country’s political landscape was dominated by strong, centralized political parties. This allows us to use Indonesia to illustrate the causal claim in chapter 2, which posits that policymakers in party-centered developing democracies have both the incentives and the political capacity to curb the de facto independence of the judiciary when their survival in office is threatened. Furthermore, from a substantive perspective, the Indonesia case allows us to demonstrate why time horizons created by levels of political competition alone are insufficient to explain variation in de facto judicial independence (DFJI) across countries. Collectively, the analyses of these three cases—Brazil and India representing candidate-centered electoral systems and Indonesia representing party-centered electoral systems—demonstrate that the incentives to increase or decrease DFJI created by political competition are conditioned by the nature of political competition political elites face as a result of the degree of particularism electoral rules create. The remainder of this chapter is organized into the following sections. We begin with a brief background of the choice of Indonesia’s electoral rule in the post–democratic transition period—especially 1999 to 2004—and show that it engendered low levels of particularism and (thus) gave rise to highly centralized political parties.1 This is followed by a description of the hazard rate of successive Indonesian governments after the country made the transition to democracy in 1999. In section three, we explore how the presence of strong and highly centralized political parties in Indonesia played a critical role in inducing leaders from the ruling party to capture the judiciary and how the Indonesian judiciary’s responded to the government ’s attempt to curb its independence. We then show in section four that leaders in Indonesia’s party-centered system curtailed the courts’ autonomy when their hazard rates in office became high. In section five, we examine some within-country legislative data that show how governments in Indonesia ’s party-centered democracy successfully passed legislative statutes and bills that essentially eroded the courts’ de facto autonomy. We end the chapter with a brief conclusion. Indonesia: Party-Centered Democracy and the Hazard Rate of Governments As we discussed in chapter 2, a rich literature on institutions suggests that the constituent elements of electoral rules—such as the formula for translat- DFJI in Party-Centered Systems 229 ing votes into seats, the way electoral districts are drawn, and the structure of the ballot—exert an independent influence on the degree to which a given electoral system is personalist in nature. The fact that electoral rules determine...