INDONESIA

Prof. David K. Linnan

Indonesian law is best viewed as a large-scale social experiment opposing the idea of legal pluralism or co-existing multiple legal systems, alongside concerns about modernizing laws to bring the Dutch colonial legal legacy of an extremely diverse developing nation into the modern global economy.  There are at least three kinds of legal systems to contend with, often with their own courts or other interpretive systems:  secular or national law, adat or local ethnic group law still important under a variety of circumstances but particularly for matters concerning real estate and inheritance, and Islamic law of importance traditionally for family law matters affecting the Moslem majority.  All these legal systems reflect historical influences such as secular or national law's provenance in the law formerly applicable to European colonists, adat law as local law applicable to the varying ethnic groups of indigenous peoples (Indonesians), and Islamic law alongside adat for the Islamic indigenous majority.  However, for varying political reasons, these different legal systems have found new life in modern practice.  US law students should register an implicit comparison to the US as laboratory of federalism incorporating 51 distinct legal systems spread over a large geographic area with diverse populations.   However, Indonesian legal systems tend more to coexist in the same geographic area with significantly greater overlap than US legal systems enjoying neater hierarchies under the Supremacy and Full Faith & Credit Clauses of the US Constitution. 

Much of Indonesian secular or national law on the private law side is ultimately based on 19th century Dutch codes with French roots, and oddly enough the official law is often still a Dutch text (notwithstanding the fact that younger Indonesian lawyers and law students understand Dutch about as well as US law students understand Law French).  Law reform's task since the early 1950s has oscillated between Indonesianization, understood as the ideologically motivated task of replacing foreign colonial law with laws incorporating distinctively Indonesian values, and modernization, understood as the economically or socially motivated task of replacing outdated colonial law with concepts suited for an increasingly globalized world.  On the public law side, the issue is often the extent to which authoritarian colonial era laws vie with modern concepts such as human rights in criminal law, plus the Indonesians now have their own version of culture wars in which (typically Islamic) religious conservatives often oppose what they consider to be the decadent morals of secular law.  Adat law's importance was underplayed for many years, although those working in land title law could attest to its continuing application.  However, adat law elements are reemerging in the governance system of distinct ethnic groups on the local level due to post-1998 political decentralization.  Islamic law is now expanding beyond family law to distinct areas like a syariah financial system (syariah banking and financial products) plus certain localities as a result of the growing influence of Islam in society.  But before US students dismiss such on-going developments as atavism, please reflect on the analogy of abortion law controversies ever since Roe v. Wade and coming battles over gay marriage.   The laboratory of federalism concept does not necessarily mean that secular modernism prevails, but the natural counterweight is the extent to which secular or national law is an acceptable common denominator for diverse ethnic and religious populations in a large country. 

Indonesia had an economic development-oriented "soft" authoritarian government from 1966-1998.  Then the Asian Financial Crisis occurred and brought down long-serving President Soeharto, with the result that Indonesians experienced what they referred to as a multi-dimensional crisis (economic, governmental and social) including significant concerns whether the country had sufficient internal cohesion to hold together during the crisis and continuing divisive challenges such as the independence of East Timor, plus continuing low grade insurgencies in Aceh and Papua.  Thus Indonesian public law was reformed on an accelerated basis both in the name of democratization and as a political strategy to counteract centrifugal forces via decentralization.  Underlying political forces reemerging are divergent ones which drove the Indonesian independence struggle but were never fully reconciled thereafter:  secular nationalists, Islamic groups with widely differing agendas, and left-leaning groups (traditionally communists, but that grouping has been officially banned since 1966 so that its latest equivalents represent labor and peasantry along the lines of European social democracy).  These groups in turn have spawned at least three and arguably five larger plus a significant number of smaller political parties, so that since 1998 on a formal level Indonesian politics resembles Italian coalition governance post-WW II with rapidly changing constellations of parties as vehicles for leading politicians.  1998 lies only five years in the past, so from an Indonesian perspective all these very basic political and legal changes are on-going in real time. 

Given its Dutch colonial legal heritage Indonesia is sometimes still reckoned formally a Civil Law country, but in practice it is now better viewed as a mixed system.  In the modern setting, even among those favoring Civilian approaches, there has been a hidden migration from French to German models within the Civil Law world paralleling modern Dutch law itself (against a background whether legal modernization should follow Dutch law post-Independence versus other, typically Anglo-American models).  The traditional Civil Law code framework has largely been sidelined over the past 20 years as legal development has pursued improvement in particular of economic law on the private law side through ad hoc statutes.   Institutionally speaking, at least on the public law side, views of judicial powers, the role of the legislative versus executive branches in law making, and general views of the legal professions still draw heavily on Continental views.  Most recently, however, Indonesian public law has experienced the introduction of a relatively large number of independent regulatory or investigative commissions which are not typical under Continental public law.  There is also an overlay of post-1998 constitutional amendments seemingly modernizing public law at the highest levels, however, this is subject to three caveats. 

The first is that modern Continental public law  institutions like a Constitutional Court have been introduced (perhaps closest to German models, but it is arguable whether the direct inspiration may have been other Asian states like Korea drawing on Continental models).  The second is that it would be misleading to put too much emphasis on Continental models, to the extent circa 20 years ago administrative courts on the Continental model were introduced, but are largely considered ineffective (so just because the institutions may resemble Continental public law institutions to the outsider does not mean that the legal system works like it would in Berlin or Amsterdam).  The third is Indonesian law reformers place heavy emphasis on legal enforcement (penegakan hukum), perhaps best understood as a belief that, if the rule of law is weak, enacting new laws is much easier than changing people's behavior in the private law area,  or effectively restraining the state in the public law area.  The question is not what the law says, but rather to what extent it actually regulates private and public relations in a modern developing non-Western nation on Southeast Asia's cultural borderline between East Asia (China & Japan) and Central or South Asia (stretching from India to the Middle East).  In the name of good governance, many current reform efforts in the legal system focus predominantly on the judiciary, administrative levels of government, and corruption. 

Indonesian law comes up in two places in this course, first under Islamic law as covered by Prof. Mark Cammack, and second under Indonesian law as covered by Prof. David Linnan largely in terms of national law.  Prof. Cammack looks at how the state may reach into familial affairs under syariah law in his separate unit, while Prof. Linnan treats the accelerated modernization of economic law in particular under IMF conditionality in the wake of the Asian Financial Crisis of 1997.  There "socialistic" Indonesian views of the economy at the constitutional  law level were arguably incompatible with the Washington Consensus.  Such questions about differing views of the state, economy and law lie at the core of our course. 

 

SELECT WEBSITES 

About Indonesian Society 

ANU WWW Virtual Library Indonesia

CIA Factbook Indonesia 

Jakarta Post 

Antara News Agency 

KITLV Daily Report Indonesia 

About Indonesian Legal System 

AusAID Working Paper for Indonesia-Australia Legal Development Facility (2003) (pages of 74 - 128 of 226 pages) 

UniMelb  ALC Indonesia:  Recent Work and Legislation 

Hukumonline 

Law & Finance Institutional Partnership 

From  Indonesian Government 

Department of Foreign Affairs (DEPLU) 

People's Consultative Assembly (MPR) 

House of Representatives (DPR) 

Indonesian Attorney General's Office (Kejaksaan Agung) 

Indonesian National Police (POLRI) 

National Human Rights Commission (Komnas HAM) 

National Commission on Violence Against Women (Komnas Perempuan) 

From NGOs Reporting About Indonesia 

International Crisis Group 

Asia Foundation

WALHI

United States-Indonesia Society

 

SELECT BIBLIOGRAPHY 

Books 

Sudargo Gautama & Robert N. Hornick, An Introduction to Indonesian Law:  Unity in Diversity, Alumni, Bandung 1974 

M.B. Hooker, Legal Pluralism:  An Introduction to Colonial and Neo-Colonial Laws, Oxford, Clarendon Press 1975  

M.B. Hooker, Adat Law in Modern Indonesia, Kuala Lumpur, Oxford University Press 1978. 

Daniel Lev, Islamic Courts in Indonesia:  A Study in the Political Bases of Legal Institutions, Berkley, University of California 1972 

Tim Lindsey (ed), Indonesia:  Bankruptcy, Law Reform

and the Commercial Court, Federation Press, Sydney 2000 

Tim Lindsey (ed), Indonesia:  Law and Society, Federation Press, Sydney 1999 

Adnan Buyung Nasution, The Aspiration for Constitutional Government in Indonesia:  A socio-Legal Study of the Indonesian Konstituante 1956-1959, Sinar Harapan, Jakarta, 1992 

Articles

M. Cammack, Islam, Nationalism and the State in Suharto's Indonesia, 17 Wisconsin Journal of International Law 27 (1999) 

M. Cammack, L. Young & T. Heaton, Legislating Social Change in an Islamic Society:  Indonesia's Marriage Law, 44 American Journal of Comparative Law 45 (1996) 

Cheryl Gray, Legal Process and Economic Development:  A Case Study of Indonesia, 19 World Development 763 (1991) 

June & Ronald Katz, The New Indonesian Marriage Law:  A Mirror of Indonesia's Political, Cultural and Legal Systems, 24 American Journal of Comparative Law 653 (1975) 

Daniel Lev, The Lady and the Banyan Tree:  Civil Law Change in Indonesia, 14 American Journal of Comparative Law 282 (1965) 

David Linnan, Indonesian Law Reform, or Once More Unto the Breach:  A Brief Institutional History, 1 Australian Journal of Asian Law 1 (1999)

 

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