Thread by @wjhurst

#Indonesia’s new criminal code is absolutely illiberal, but it is not anti-legal. It serves the interests of some #elites, but not others.

So, how do we best parse its impact on #law, #politics, or #society?

A short 🧵based on ideas from:
cambridge.org/core/books/rul…

1/13

Fundamentally, it pushes Indonesia’s criminal law system toward what I call a mobilizational legal regime, and away from being more of a ’rule by law’ order.

This is due to a reason many might find counter-intuitive: it’s actually empowering previously excluded groups.

2/13

In a mobilizational legal regime, the set of politically empowered actors (what I call the ‘polity’) is open and contested. In some other arrangements - including rule by law - it is closed and fixed.
The constellation of politics shapes how law is made and deployed.

3/13

Besides who has power, we also have to look at how law is wielded in society. In mobilizational legal regimes, law is frequently reduced to being a tool of political contestation, as duelling groups or contenders use it to strike blows against each other.

4/13

In what I call ‘neotraditional’ legal regimes, entrenched elites and stable hierarchies also use law actively to maintain their positions - intervening frequently into adjudication of cases to ensure favourable outcomes.

5/13

Importantly, in rule by law regimes, elites (be they autocrats, oligarchs, or landed gentry) in stable hierarchies tie their hands and allow the law to take its course, refraining from any such intervention.

6/13

Since its transition to #democracy after #reformasi, #Indonesia has had a form of rule by law in its criminal system, alongside a neotraditional regime in the civil law sphere.

7/13

Entrenched elites mostly stayed out of the criminal process, while they tended to intervene heavily to protect and defend their interests in adjudication over civil dispute resolution.

The new code signals what might be an important shift.

8/13

Over the past 10 years or so, #Indonesian #politics has been convulsed by the rise of #populist movements and parties. These have explicitly sought to bring new players into the polity - from pro-poor groups and workers’ trade unions to conservative Islamic associations.

9/13

At the same time, politicisation of discourse and conduct related to criminal enforcement of lifestyle-related statutes or regulations, is enabling more actors potentially to seize upon #law as a cudgel with which to attack their opponents.

10/13

The new code thus has a very specific implication: it’s pushing a rule by law regime closer toward becoming a mobilizational one, because it’s breaking down the power of established elites, empowering new players, and potentially encouraging intervention into adjudication.

11/13

Calling it repressive or reactionary perhaps misses the key point: it is making #Indonesia criminal #law system less predictable and formally rational, while also opening the door to a much more brutal kind of political contestation using law than we’ve seen in decades.

12/13

We need to recognise the code for what it really is - harbinger of a potential shift away from one legal regime toward another that could have substantial wide-ranging political and social implications that would then feed back into legal institutions and processes.

13/13
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