How do we explain such successes and failures of transitional justice in Indonesia? How did the political transition influence the adoption and implementation of transitional justice measures, and what aspects of the transition facilitated or hindered transitional justice?
With the flourishing of the ‗third-wave‘ of democratisation since the 1980s, studies on transitions to democracy have acknowledged that nations undergoing transition faced dilemmas about whether to adopt a backward-looking focus on past injustice, by acknowledging the former authoritarian regime‘s role in past human rights abuses and trying to address these issues, or remain forward-looking and concentrate on rebuilding democratic institutions. Though most scholars of democratisation place emphasis on understanding the dynamics of the transitions themselves and the subsequent political consolidation, some also look at the problem of ―settling the past account‖, in O‘Donnell and Schmitter‘s words (1986: 30), or ―the torturer problem‖ as Huntington (1991: 209) puts it.
This torturer problem confronts democrats with a choice between burying the past in order to avoid political instability initiated by spoilers from the old regime, and the moral and ethical demands to confront the crimes of the repressive period. O‘Donnell and Schmitter acknowledge that how leaders respond will significantly
48
influence the emergence of the new political system. Failing to analyse the past, in their view, might prevent a society from reaching a consensus on what was wrong in its history and therefore might damage attempts to form new societal bonds:
It is difficult to imagine how a society can return to some degree of functioning which would provide social and ideological support for political democracy without somehow coming to terms with the most painful elements of its own past. By refusing to confront and to purge itself of its worst fears and resentments, such a society would be burying not just its past but the very ethical values it needs to make its future liveable (O‘Donnell and Schmitter, 1986:30).
In dealing with these past abuses, they argue, the ―worst of bad solutions would be to ignore the issue‖, and that the least worst strategy, based on ethical and political considerations, is to hold trials for the wrongdoers (O‘Donnell and Schmitter, 1995: 59).
Scholars often refer to two aspects of democratic transition that determine whether transitional justice measures are adopted and implementated. The first relates to the high degree of uncertainty in any political transition. Most of scholars emphasise the relative power of the actors who make the relevant policy choices, especially the political elite, both outgoing and in the new regime (Huntington, 1991: 208-280), the influence of the institutions complicit in past abuse (O‘Donnell & Schmitter, 1986, Rosenberg, 1995), institutions in the new democracy (Kritz 1995; McAdams, 1997; Teitel, 2000; Elster ,1998, 2004, 2006; Nalepa ,2008, 2010), and the role of non-elite and public attitudes (Zalaquette, 1995; Skaar, 1999; Finnemore & Sikkink, 1998; Aguilar et.al, 2011). Clearly a tremendous number of factors contribute to how a democratic transition proceeds, giving rise to equally high uncertainty regarding the possibilities of transitional justice.
A second factor that has great influence on the adoption of transitional justice measures is the nature of the transition. Barahona de Brito, Gonzalez Enriquez, and
49
Aguilar (2001: 11-12) argue that transitional justice choices are strongly related to the types of political transitions undertaken. The more a transition entails defeat or total break with the old authoritarian elite and those responsible for human rights violations, the more possible it is for an incoming elite to choose thoroughgoing transitional justice policies. Accordingly, they argue that variations in policies and outcomes of transitional justice depend on where a country is located on a democratic transition spectrum. At one end are transitions by rupture that occur after a foreign intervention, revolution or civil war that leads to the military defeat or sudden overthrow of dictatorial forces. In this type of transition, the old forces lose their capacity to manoeuvre. Their political, police, or military vehicles have been totally or almost completely destroyed. At the other end of the spectrum are negotiated, ‗pacted‘, reform-oriented types of transition. In this type of transition, outgoing regime authorities retain some power and influence, and thus the incoming elite hoping to form a new democratic regime have to negotiate change with the old guard. Prosecutions, in particular, ar emore difficult in this type of transition, while reconciliation policies are more likely.
There is an abundant literature in political science that tries to capture the types of democratic transitions. Huntington (1991), for example, in his widely referred to book on third wave democratisation categorises transitions into three types, based on his analysis of thirty-five third wave democratisations. These types are transformation, replacement, and transplacement (Huntington, 1991: 124-125). Transformation is a type of transition where elements of the authoritarian regime spearhead reforms that lead to a democratic system. Such a decision typically requires the government to be stronger than the opposition. As shown by Huntington‘s case studies, this type of transition mostly occurred in strong and well-established military regimes where the government controlled all means of coercion against the opposition. Transformations are gradual, top-down processes of regime change.
50
The replacement type of transition, in contrast, does not happen by the willingness and decision of the authoritarian government. In the lead up to such a change, most of the standpatters—or the hardliner elements that support the regime—deny any need for change, while reformers in the government are either weak or non-existent. Democratisation occurs as the result of a strengthened opposition that overthrows the regime. In most cases, after the opposition groups come to power, conflict is transformed into competition among members of the former opposition about the nature of the regime they should establish. This form of regime change is sudden and initiated from below.
The third transition type is transplacement. This is a combination of the previous two transitions where, in the lead up to regime change, there is a balance between standpatters and reformers within the authoritarian government that makes the government willing to negotiate on regime change with the opposition. The opposition is strong enough to prevail over anti-democratic radicals but not strong enough to overthrow the government by themselves. As a result, democratisation happens as a result of processes of negotiation and compromise.
While Huntington‘s categories are useful for my research, Indonesia‘s transition does not match exactly any of these types; instead, it is a mixture of replacement and transplacement. This mixed transition relates to the nature of Soeharto‘s regime that, as proposed by Aspinall (2005), combined sultanistic with strongly authoritarian features. Such a combination resulted in democratic transition that occurred though considerable street disorder with a ―dramatic breakthrough‖ and the sudden resignation of Soeharto in May 1998, and at the same time showed ―a high degree of continuity between the new democratic politics and those of the authoritarian past‖ (Aspinall, 2005: 269). The economic crisis during the last year of the New Order regime instigated mass protest and social unrest. Both the standpatters and weak reformers in the government lost their
51
ability to manoeuvre. Violence was used to repress opposition groups, especially with the enforced disappearance of a number of anti-Soeharto activists (Collins, 2007).
Meanwhile, opposition groups strengthened in 1998 and mobilised popular protests demanding Soeharto step down and the government to undertake reforms. In May 1998, government leaders, most notably Soeharto himself, invited elements from the opposition to negotiate the direction of regime change. Most of these opposition leaders refused to deal with him, however, and his regime collapsed. After Soeharto stepped down on 21 May 1998, a series of compromises took place through several stages. The first stage involved recruitment of a new elite who were critical of the New Order into old political institutions. The Golkar (Golongan Karya, Party of the Functional Groups), the political party of the New Order regime, for example, made a drastic and sudden change in its membership in MPR (and DPR) to satisfy public demands for total reform (reformasi total). The second stage was the establishment of new political institutions, including various new political parties before the first post- Soeharto election in 1999. The third stage took place after the 1999 election, when most of the key political forces and leaders who were involved in the 1998 reform movement participated in the new power structure, including by taking senior governmental posts. At the same time, however, old forces – such as those representing the Golkar and the military - were never entirely excluded from the power structures of the new ―Reformasi Order‖. The new regime was fundamentally a product of political compromise.
I will explore in more detail the nature of the post-1998 reforms in the next chapter. At this point, suffice it to say that the mixed nature of the transition affected the transitional justice measures adopted in the period of democratisation. The elements of regime change that resembled replacement pushed successive governments to adopt transitional justice in order for them to gain legitimacy and create distance between
52
themselves and the New Order regime. However, the transplacement features, involving accommodation of elements of the New Order in formal politics, led to the failure of transitional justice outcomes at the implementation level. When the political elite started to consolidate and gain legitimacy through elections, transitional justice passed from the political agenda, and past injustices were regarded as being irrelevant. The era of progress in transitional justice was over.
Huntington‘s typology stresses the roles of ‗government‘ and ‗opposition‘ in each type of transition, which are central to my own analysis. In a replacement setting, the outgoing government is replaced by the opposition. In a transformation, the government is still dominated by the incumbent elite albeit with some structural changes. In a transplacement setting, the new government consists of elements of the old regime and its opposition. In the case of Indonesia‘s transition, where both replacement and transplacement elements took place together, it is important to look more closely at the opposition because, firstly, that opposition was not monolithic and secondly, and most importantly, it was the opposition that generated the transitional justice agenda. However, since the opposition was not monolithic, there was never a consensus on transitional justice among the opposition groups.
For the purpose of this research, I expand on Huntington‘s analysis by using Aspinall‘s (2005) explanation of opposition in Indonesia. In his book, Aspinall outlines the types of opposition that operated during Soeharto‘s last years of government. He categorises them into mobilisational opposition, semi-opposition, alegal opposition, and proto-opposition. The mobilisational opposition were groups that explicitly expressed demands to replace the regime with another system (Aspinall, 2005: 6). In doing so, these groups – such as students – tried to organise and mobilise a mass support base. The semi-opposition were those who participated in formal structures of the regime and were associated with ―work-from-within‖ strategies of political reform. This group was
53
more likely to engage in ―compromise, partial and often unclear goals, and the utilization of regime language and ideological formulas to argue for political change‖ (Aspinall, 2005: 6-7). This group involved supporters of the legal political parties, such as the PDI (Partai Demokrasi Indonesia, Indonesia Democracy Party) and the mass organisations, such as major Islamic organisations like Nahdlatul Ulama (NU) and Muhammadiyah, which continued to command the loyalties of millions of Indonesians throughout the New Order period. The third group, the alegal opposition, was more fundamentally critical than the semi-opposition. It was characterised by dissidence: early participants or supporters of the regime, who later made moral appeals or calls for the regime to initiate reform, without wanting society to take action or organise their supporters behind a reform platform. Lastly, the proto-opposition was civil society organisations. These groups had limited and partial aims but were independent from the state structures. Even though they pursued limited aims, civil society organisations were a refuge for oppositional impulses during repressive conditions, and thus could harbour individuals who wished to transform the authoritarian regime.
Transitional justice was, above all, an agenda promoted by proto-opposition, notably by non-governmental organistions (NGOs) and other civil society groups, but it was also adopted by semi-opposition actors such as those associated with political parties. When the semi-opposition eventually managed to get into the new state structures after the 1999 election, they supported transitional justice measures. Transitional justice became a central part of the new post-Soeharto political order, agreed to by everyone, including elements from the outgoing regime.
Later in the consolidation period, the dividing line between the forces of the old regime and new democrats began to break down. Successive governments accommodated and absorbed all major political forces, producing remarkable stability
54
in the Indonesian transition (Aspinall, 2010; Slater, 2004, 2006). Such stability was also successful in drawing in potential spoilers, as Aspinall mentions:
Spoilers have been accommodated and absorbed into the system rather than excluded from it, producing a trade-off between democratic success and democratic quality (Aspinall, 2010: 21).
Facing massive pressure for political change after the fall of Soeharto, both the new and old elites had to fulfil the demands for state accountability to gain public legitimacy and international support. They needed to break from the New Order. Transitional justice became a useful tool for convincing both the national and international public that change was real. Reconsolidation of the elites, however, meant that transitional justice was no longer needed.