On 3 May 2013, Associate Professor Andrew Rosser, ARC Future Fellow at Indo-Pacific Governance Research Centre at University of Adelaide presented his work entitled “Legal mobilisation and access to justice in Indonesia: Insights from the Struggle Over International Standard Schools” at our GoLive Indonesia-Indonesian student association (PPIA) University of Adelaide branch academic discussion series. Prof Rosser’s presentation is based on his current ARC Future Fellowship project to understand conditions to allow citizens to mobilise effectively, covering education, health and water issues.
Following the fall of the New Order regime in late 1990s, Indonesia’s 1945 constitution was radically revised as part of a shift towards a more democratic and decentralised political system. Part of this ‘revision’ is the establishment of the Constitutional Court (CC). Established in 2003, the CC has the authority to determine the constitutionality of laws passed by parliament and their individual provisions. But it is not to rule on lower-level implementing regulations.
Is Indonesia undergoing a rights revolution? What is the role of an organisation to support individual justice seekers taking lessons from struggle over international standard schools in Indonesia?
The rights revolution
Epp (1998) defines ‘rights revolution’ : judicial attention to the new rights, judicial support for the new rights and implementation of the new rights. Indonesia does not seem to undergo a rights revolution because weaknesses in implementation.
Rights are not ‘self-acting’ but realised only through deliberate action on the part of justice-seekers to bring matters to court.
Prof Rosser offers a perspective of the so called ‘support structure for legal mobilisation’. There has to be an organisation to support individual justice seekers that has experience in using the court system. There needs to be finance for legal action from either public or private. Lawyers are willing to support justice seekers.
Such a support structure is important but it has some limitations stemming from potential contradictions between the political agenda and bases of the NGOs and those of the justice seekers they are trying to support.
Lessons from International Standard Schools (or SBI/RSBI)
Beginning around 2005, the Indonesian government began establishing SBI/RSBI in an attempt to enhance the quality of Indonesia’s school system, or at least as part of it. This policy has been widely criticised based on a number of grounds:
- that SBI/RSBI breach Constitutional requirements for free basic education because they charge fees;
- that these schools’ fees often disappear into the pockets of education bureaucrats and school officials rather than contribute to improvements in educational quality and facilities;
- SBI/RSBI are more generously funded than ‘regular’ public schools.
- that SBI/RSBI have generally failed to come good on their commitment to provide scholarships to students from poor backgrounds;
- that schools which segregate students into international and regular classes often use government support for and fees from regular students to subsidise the provision of international standard classes and associated new facilities; and
In early 2012, three parents launched and sustained a CC case to have an article in the 2003 Education Law providing for the establishment of SBI/RSBI annuld on the grounds that it breached various parts of the 1945 Constitution including that providing for free basic education.
Milang Tauhida, reported that her child was discriminated against at an RSBI in Jakarta when the school dividied classes in regular and RSBI streams. Two other parents include Andi Akbar Fitriyadi and Nadya Masykuria.
In January 2013, the CC found in their favour, striking out the relevant article in Law 20/2003. These three people, all apparently of modest means, were able to launch and sustain a CC case.
Is it simply a case of heroism?
Maybe yes. But we cannot rule out the role of Indonesia Corruption Watch (ICW) and the Institute for Policy Research and Advocacy (ELSAM) at the invitation of ICW to provide finance, legal expertise and know-how. The debate came up between problems with concept vs implementation.
Prof Rosser’s presentation was followed by Q&A sessions. Yahya Thamrin argued that SBI/RSBI have been banned not only because of anti-corruption and restricted access to quality education issues but also because they are against Bhineka Tunggal Ika (Unity in diversity). Yahya believed that this problem is created because public schools are entering the area in which private scools’ role are expected. Akbar from Law School viewed that CC decided to win parents based on two grounds: (i) the use of English (instead of Indonesian language); and (ii) the grounds mentioned by Yahya. But other article in Law allows the use of English causing some confusion.
Most attendees agree that it is unlikely that the Indonesian Government will completely remove SBI/RSBI types schools from the Indonesian education system. It is predicted that the government will change their names. In Padang – West Sumatera, for example, five ex international standard schools turn to “regional superior schools” (Sekolah unggulan daerah) (Source: Padang Ekspres). Unlike SBI/RSBI these schools do not charge tuition fees and unlike other public schools, they do not apply school zone in student enrollment. The question is whether such a concept would answer previous issues regarding inclusive education and challenges facing the implementation of the concept.
*This report is written by Risti Permani based on Prof Rosser’s presentation slides and topics being discussed at the Q&A session.