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Indonesian Overview
    
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Overview of Indonesian Law

An extremely vast archipelago of more than 13,000 islands, Indonesia is home to at least 300 ethnic and sub-ethnic groups. Over 668 languages and dialects are native to Indonesia. For centuries before its exposure to Western civilization, each group had developed its own customary law, officially called adat law (hukum adat), and almost all were influenced by Hinduism, Buddhism, and Islam. Not to a lesser degree, Islamic law is also a parallel independent legal system.

Dutch Era

In 1512 the Portuguese established its trade connection in Indonesia. They introduced Roman Catholicism, left few vocabularies that remain in the national language "Bahasa Indonesia" and local dialects spoken in the chain of Spice Islands of Maluku, and these particularly had political and cultural significance in East Timor or Timor Leste, which was part of Indonesia from 1976 to 1999.

Yet it is the Dutch who established the Roman-Dutch civil law legal system to facilitate its trade and political-economic interest. This era of 350 years comprises of a period of exclusive trade by a company with a maritime power- the Dutch East India Company or Vereenigde Oost-Indische Compagnie (VOC) starting in 1596, and a period of official colonization by the Dutch starting in early 1800. In the latter period Indonesia was referred to as the Netherlands East Indies. The British ruled for a short period from 1811-1816 but did not make significant changes to the existing legal system for this purpose.

The Dutch did not deal with or govern the Indonesians directly, but through the aristocrats and the oriental settlers. Accordingly, population was divided into three classes: the Europeans to whom codified civil law was applicable, the foreign Orientals to whom part of civil law system controlled, and the indigenous to which Adat law and Islamic law rules applied. The segregation was in the area of commerce, land, family, inheritance, and most of private or civil laws. Quite differently, the criminal legal system was once dualistic, for Indonesians and Europeans, but in 1918 it was unified.

Administration of justice was extended to the Islamic indigenous Indonesians at a minimum degree relative to the rest of the populations. The first legislation relating to application of Islamic law was the 1882 Royal Decree establishing Priest Court in the islands of Jawa and Madura with jurisdiction over family and inheritance law. The following list of major legislations set the social and legal policy in the Netherlands East Indies:

  • Civil Code or Burgerlijk Wetboek voor Indonesie S. 1847-23 (Kitab Undang-undang Hukum Perdata).
  • Commercial Code of 1847 or Wetboek van Koophandel voor Indonesie S.1847-23 (Kitab Undang- undang Hukum Dagang).
  • The rules of civil and criminal procedure: the Herziene Inlandsch/Indonesisch Reglement or HIR (S.1848-16, as amended afterwards) was applicable to indigenous Indonesians in Jawa and Madura, and Rechtsreglement Buitengewesten or Rbg (S.1927-227) for those indigenous in other Indonesian territories. Separate set of rules, the Reglement op de Burgerlijke Rechtsvordering or RBRv (S.1847-52, S.1849, 63, as amended afterwards) was applicable to European population.
  • Criminal Code or Wetboek van Strafrecht voor Indonesie S. 1915-732 (Kitab Undang-undang Hukum Pidana).
Note: the codified laws are heavily, if not translated, influenced or derived from the French codified laws as a result of French occupancy of the Netherlands during the Napoleonic Wars.

These legislations are available at http://legislasi.mahkamahagung.go.id.

Japanese Era

Propelled by acquisitive motive for war supplies the Japanese entered Indonesia relatively easy due to their ability to fit in with the political trend of the time. Introducing themselves as "the leader, protector, light of Asia" and "older brother", the Japanese's true legacy was the creation of opportunities for indigenous Indonesians to participate in politics, administration, and the military. This period of exploitation (1942-1945) under Japanese martial law caused serious hardship but also set the positive political circumstances leading to the declaration of independence on August 17, 1945.

Independence Era

Modern and Independent Indonesia was established pursuant to the 1945 Constitution (Undang Undang Dasar 1945). Transitional Provision Article I and II of the 1945 Constitution states that all legislations and institutions from the colonial period remain valid and in place until they are revoked and replaced. On that ground, not surprisingly, most colonial legislations are still valid with revocations of particular articles or body of law even until now. As in any other country, political trend shapes the development and characters of Indonesian legal system. The independence era can be classified as: Early independence era, Guided Democracy (Demokrasi Terpimpin), New Order (Orde Baru) and Reformation Era (Reformasi). Early independence era was characterized with arm conflicts against the former colonial ruler and struggles to overcome separatist movements. In fact, the 1945 Constitution was replaced by the 1949 Constitution of Federations (or United States) of Indonesia from 1949 to 1950 and by the 1950 Provisional Constitution from 1950 to 1959. Not until the Guided Democracy era was the development of a national legal system taken seriously.

During President Soekarno's administration as the Supreme Leader of Revolution (Pemimpin Besar Revolusi), the Basic Agrarian Law of 1960 (Undang-undang Pokok Agraria) was enacted. It unifies dualistic substantive adat and codified civil law concerning land law into one system. It revokes the relevant part of Civil Code or Burgerlijk Wetboek voor Indonesie S. 1847-23 (Kitab Undang-undang Hukum Perdata) as far as land is concerned, and is still in effect to present.

Post World War II competition between leading ideologies affected Indonesia due to the perceived spread of communism which was considered a threat to Indonesia due to Indonesia's official ideology namely the five principles (Pancasila), but more specifically the first principle "Believe in one and only God". In this historical context, the beginning of New Order era was drawn. Since the second Indonesian President Soeharto took office, several legislations were enacted with the view of further developing the national legal system.

However, New Order era had its downsides. With the view to stabilize ideological and political unrests and unruly competitions, a set of legislations and institutions, including the infamous Anti Subversion Law of 1969, was put in place. Additionally, the judiciary was consistently marginalized and stripped of its power as an equal branch of the government. Administration of justice was conducted by the executive branch: the Department of Justice covered general courts of first instance and appeals, the Department of Religious Affairs covered religious courts, and the Department of Defense covered the military courts.

Violation of human rights was one of several issues that drew worldwide criticism. The Judiciary lost its respect in the eyes of the public. Corruption, collusion, and nepotism were fairly associated with the executive, judiciary, and legislative branch of the government.

Reform Era

Since the resignation of former President Soeharto until now, the 1945 constitution has been amended 4 times, in October 1999, August 2000, November 2001, and August 2002. Among other things, these amendments deal with far reaching issues such as limitation of power and term of office of the President; decentralization of central government's authority to provincial and regional governments; and creation of additional state bodies such as House of Regional Representative (Dewan Perwakilan Daerah), Constitutional Court (Mahkamah Konstitusi), and Judicial Commission (Komisi Yudisial). Anti Subversion Law of 1969 was repealed in 1999. Law No. 39/1999 was enacted, giving the preexisting National Commission of Human Rights an independent status, equal to other state bodies.

Most importantly, pursuant to Law No. 4/2004 on Judicial Powers that repealed Law No. 14/1974 as amended by Law No 35/1999, the Supreme Court assumes all organizational, administrative, and financial responsibility for the lower courts from the Department of Justice and Human Rights, Department of Religious Affairs, and Department of Defense. One roof system of administration of justice under the Supreme Court was finally created. Accordingly amendments to preexisting legislations are consistently made to fit in the new political framework and administration of justice.

Separation of Powers

Indonesia adopts democracy which means that sovereignty is vested in the people and implemented pursuant to a rule of law. The basic rule of law is represented in the Indonesian constitution, i.e., the Principle Laws of 1945 ("1945 Constitution"). It divides the power horizontally by making a separation of powers into equal functions of state institutions which control each other based on checks and balances system. These functions, although not strictly so, are generally ascribed to executive, legislative, and judicative power which suggested the adoption by Indonesia of trias politica.

The executive power is held by the President and Vice President which are elected directly by the people in a general election every five years. The President is both the head of state and the head of government. The President may appoint ministers heading departments or ministries as his aides in the government.

The legislative power is held by the House of Representative (Dewan Perwakilan Rakyat - "DPR") and the Senate (Dewan Perwakilan Daerah - "DPD") who are chosen through general elections every five years which also hold equal position towards other state institutions. DPR's power extends beyond the narrow interpretation of legislating or lawmaking. It also holds the budgeting authority and the more important function of representing the people in supervising the executive power. This is exemplified by the right to conduct interpellation, i.e., questioning the executive on an aspect of government policy and the requirement that the President should obtain its approval in entering into international treaties that substantially affects the people's livelihood and to declare war. To supplement DPR's supervisory role, an independent audit agency called the Financial Audit Agency (Badan Pemeriksa Keuangan - "BPK") with an authority clearly represented by its name, is formed.

DPD, Indonesia's version of the senate, acting independently, is weaker than its parliamentary counterpart with authorities confined to preparing bills and making recommendations (without voting or legislative power to enact them) related to issues of regional autonomy, relationship and economic balances between central and regional power, formation, expansion, and merger of regions, management of natural and other economic resources. Its supervisory function is limited to handing the result of the supervision to DPR.

On several authorities, the DPR and DPD congregate as People's Consultative Assembly (Majelis Permusyawaratan Rakyat - "MPR") which consists of the members of DPR and DPD. Among the functions of these authorities is the amending of the 1945 Constitution, appointing President and/or Vice President in the case of vacancy in the position, inaugurating the President and/or Vice President, and to impeach the President and/or Vice President in accordance with the 1945 Constitution. With the existence of MPR as a separate entity, jurist ascribed Indonesia's legislative power to "tricameralism" (as opposed to "bicameralism").

The judicative power developed as one system which culminated at the Supreme Court and the Constitutional Court, both independent of each other. The Constitutional Court's authority in conducting judicial reviews over laws and in adjudicating whether the President and/or Vice President has violated the law, by conducting treason, corruption, bribery, etc., which is required before DPR can propose impeachment of the President, demonstrates its checks and balances function.

Separation of powers, checks and balances among the powers, as well as protection of human rights indicates Indonesia's adoption of the modern conception of constitutionalism.

A good source of research on separation of powers of modern Indonesia are Konstitusi dan Konstitusionalisme (Constitution and Constitutionalism) (2004) and Konsolidasi Naskah UUD 1945 Setelah Perubahan Keempat (Consolidation of the 1945 Constitution after the Fourth Amendment) (2002), both books written by Jimly Asshiddique, former Chief Justice of the Indonesian Constitutional Court, and Panduan Pemasyarakatan Undang-undang Dasar Negara Republik Indonesia Tahun 1945 (1945 Constitution Socialization Guidelines) (2008), issued by MPR, all written in Bahasa.