INDONESIAN LEGAL SYSTEM (Student Exchange Paper)

INTRODUCTION

Legal system is an operating set of legal institutions, procedures, and rules, that have three elements such as legal structure, legal substance, and legal culture.

Legal system that applicable in many countries in the world have their own characteristics with many differences between a country and the other based on the history of the state. Intrinsically, law expert of global business form Indiana University, Eric L. Richard said that there are six major legal systems in the world. There are Civil law, Common law, Islamic law, Socialist law, sub-Saharan Africa, and Far east.

Indonesian legal system is complex, because it is confluence of four distinct legal system. Prior of the first appearance of Dutch traders and colonists in the late 16^th century and early 17^th century, indigenous kingdoms prevailed and applied a system of adat (customary) law and Islamic law. Dutch presence and subsequent colonization during next 350 years until the end of Second World War left a legacy of Dutch colonial law. A number of such colonial legislation continue to apply today. Subsequently, after Indonesian declared independence on August 17, 1945, the Indonesian authorities began creating a national legal system based on precept of law and justice.

CONTENTS

A.    Legal History of Indonesia

Indonesia is the one country that colonized by Dutch. It was so sadden, because Indonesia was colonized for 350 years.

Under Dutch rule, the Netherlands Indies population was divided into Europeans, Natives, and Foreign Orientals. The Dutch established separate tribunals for Europeans and Natives. Indonesians were subject to adat (customary) law, with the Netherlands East Indies divided into several jurisdictions based on cultural and linguistic criteria. Dutch scholars identified and classified 19 different systems of customary law in the region. In areas under direct rule, there were European courts, native courts, and general courts for all of the population. In areas under indirect rule, there were native courts applying adat law with very limited criminal jurisdiction and no jurisdiction over Europeans or foreigners.

The basic principle was dominance of the received civil law system, and application of adat for natives as far as it was not replaced by statute. The first legislation relating to the application of Islamic law was an 1882 Royal Decree establishing a Priest Court for Java and Madura, although the Decree acknowledged that most Indonesians were also subject to adat law administered by native courts. The Priest Court had jurisdiction over Muslim family and inheritance law where all parties were Muslim and had concurrent jurisdiction with the native courts of Java and Madura.

The Republic of Indonesia declared independence on August 17, 1945, when its independence was proclaimed just days after the Japanese surrender to the Allies. Pancasila became the ideological and philosophical basis of the Republic, and on August 18, 1945 the Constitution was adopted as the basic law of the country.  Following the provisions of the Constitution, the country is headed by a President who is also the Chief Executive. He is assisted by a Vice-President and a cabinet of ministers. The sovereignty of the people rests with the People's Consultative Assembly (MPR). Hence, the President is accountable to the MPR. The legislative power is vested in the House of Representatives (DPR). Other institutions of the state are the Supreme Court, the Supreme Advisory Council and the Supreme Audit Board. Soekarno became the first President and Chief Executive, and Mohammad Hatta, the first Vice-President of the Republic. On September 5, 1945 the first cabinet was formed.

B.     Indonesian Legal System

The Indonesian legal system is based on Dutch law, modified by custom and Islamic law. Sources of law are Islamic law, statutory legislation, presidential instructions, and official compilations of Islamic law.

Based on Dutch law because of for 350 years Indonesia was colonized by the Dutch. So, as the colonized country, Indonesia must obeys the Dutch legal system that categorize in to civilian legal system, where the most jurisdictions the civil law is codified in the form of a civil code, but in some, like Scotland it remains un-codified. Most codes follow the tradition of Code Napoleon in some fashion.

Civil law is made by the legislature. It is developed through legislative process and called legislation. Legislation is also known statutory law, from the word ‘statute’ meaning ‘act’. It is actually developed by the jurists through juristic thinking. Its different with in common law countries. The law is developed through the intellectual exercise of the judges.

Besides civilian legal system, there are adat (customary) law and Islamic law. Adat (customary law) is an ancient unwritten laws for a particular place and no rules has ever been enacted by the legislative authority. In Indonesia there is one more legal system, its Islamic legal system. Islamic legal system is Islamic law (Sharia), is derived from the Koran and used in some Middle Eastern nations; such as in the Iran and Saudi Arabia. The Arabic word sharia refers to the law and the way of life prescribed by Allah SWT for his servants.

From the explanation above, we know that in Indonesia there are three sources of law that is Dutch law, customary law, and Islamic law. Based on those laws, Indonesia make the regulations.

C.    Legislation

Based on Indonesian Regulation No. 10 Tahun 2004 about Pembentukan Peraturan perundang – undangan, the hierarchy of Indonesian legislation are :

1. 1945 Constitution
2.  Laws /Government Regulation Substituting Law
3. Government Regulation
4. President Regulation
5. Regional Regulation

Once promulgated, legislation is published in the State Gazette of Republic of Indonesia. Certain types of legislation such as Laws and Government Regulation are accompanied by an official explanatory memorandum called the Elucidation. The Elucidation is published in the supplement to the State Gazette and is generally authoritative for purpose of interpretation. In addition of State Gazette, there is a publication called State Report which contains government and public notice.

D.    Courts

The Indonesian judicial system comprises several types of court under the oversight of supreme court. Following the civil law tradition is Netherlands, Indonesian court do not apply the common law principle of precedent.

There are seven court in Indonesia. That is :

1.      State Court

2.      High Court

3.      Supreme court

4.      Commercial Court

5.      Administrative Court

6.      Constitutional Court

7.      Military Court

E.     Government

From the geographical perspective, the nation is divided into 33 provinces including the 5 special provinces or region of Yogyakrta, Nanggroe Aceh Darussalam, West Papua, Papua, and The Capital District of Jakarta. Each province is administered by the provincial government with its own popularly-elected representative assembly called The Regional House of People’s Representative. The provincial government is headed by a Governor who is also elected by the provincial population.

As a result of the regional autonomy legislation enacted in 2000 and implemented gradually from 2001, greater autonomy and powers have been devolved to the regional authorities. Overall, the administrative structure is as follows :

Territory                                                  Head

Nation                                                      President

Province                                                  Governor

District/Municipality                           Regent/Major

Sub-District                                             Sub-District Head

Ward                                                        Ward Chief

Village                                                     Village Chief

From the operational perspective, the country is administered chiefly through government departments. A department is equivalent to a ministry. The typical departmental structure from an operational basis is as follows :

Unit                                                          Head

Department                                             Minister

Secretariat                                                Secretary General

Inspectorate                                            Inspector General

Directorate                                              Director General

Division                                                   Head of Division

Center                                                      Head of Center

Bureau                                                     Head of Bureau

Apart from minister who oversee individual departments, there are a number of senior minister, called Coordinator Minister, who each oversee a number of related portfolios. In addition, there are official holding ministerial rank, including the Attorney-General, the Secretary of State, and the Commander of the Indonesian Armed Forces.

CONCLUSION

v  Applied Dutch law in Indonesia is because of Indonesia is one of colonized country by Dutch.

v  After Independence proclaimed, Soekarno and Hatta choosed by the people to be President and Vice president of Republic of Indonesia.

v  Indonesia have no Regulation yet. So, Soekarno decided to use Dutch law wit additional law as follow Islamic law and customary law to made a Constitution of 1945 as basic of all regulation in Indonesia.

v  Pancasila become the ideology of this country.

v  Indonesia legal system still use Dutch law, but in the reality people in village use to apply their own customary law, such as Dayak in Borneo, Asmat in Papua, or Aceh that apply Islamic law.

v  Indonesia apply codified law, but the judge can’t reject a case with reason that there is no regulation for the case. The judge have authority to find law.

v  The Head of state, Provinces, District, or member of House of People’s Representative and Regional House of People’s Representative elected by direct election.

v  To help President to manage the country, he have the people called Cabinet that consist of the ministers who head the department.

Intrinsically, the regulation that consist in Indonesia is regeneration from the old legal system before, and the next regulation will not apart from the legal system nowadays.