Overview of Indonesian Law

 

History

An extremely vast archipelago of more than 13,667 islands, Indonesia is home for 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. It should be noted however, that the Dutch did not dominate the whole archipelago at the same time, but slowly. The longest presence of three and a half century was in Jawa Island. Aceh, on the other hand, is among the shortest. Resistance from local kingdoms and communities were the strongest factor. The British ruled for a short period from 1811-1816 but did not make significant changes to the existing legal system for this purpose.

Facing the diversities of Indonesians, the Dutch popularized the use of Malay language throughout Indonesia. This language later evolved into “Bahasa Indonesia”. Roman script was used as official writing system. 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
• In addition, 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 here.

 

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 arms 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:

• Law No. 14/1970 on Judicial Powers (Undang-undang Pokok Kehakiman).
• Marriage Law of 1974 (Undang-undang Perkawinan 1974) with its elaboration in Implementing Regulation No. 9/1975 on Marriage Law.
• Law No. 8 of 1981 on Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana). This law replaced the Herziene Inlandsch/Indonesisch Reglement (HIR) and Rechtsreglement Buitengewesten (Rbg) as far as criminal procedure is concerned.
• Law of Religious Court of 1989. Serving as non authoritative but important resource is Compilations of Islamic Law (Kompilasi Hukum Islam) authored by government officials in the Ministry of Religion and Supreme Court Judges in 1991 on family, inheritance, wakaf (religious foundation), and shadaqah (religious donation or tithe).
• Various legislations concerning commercial activities such as Banking Law of 1992 as amended in 1998, Company Law of 1995, and Capital Market Law of 1995 among others, supplements the Commercial Code of 1847 or Wetboek van Koophandel voor Indonesie S.1847-23.

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. Creation of National Commission on Human Rights (Komisi Nasional Hak Asasi Manusia) with Law No. 7/1993 did not solve the systemic and manpower problems in New Order government. When the opposing powers gained the momentum, President Soeharto resigned in May 1998, and a new era started.

 

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.

Notes, References and Resources

For reference and further research of the foregoing, please find the following links:

• Federal Research Division of the Library of Congress, “A Country Study: Indonesia” at http://lcweb2.loc.gov/frd/cs/idtoc.html
• Hikmahanto Juwana (Chief Editor), “Legal System in Indonesia (Legal System in ASEAN, 2005)” at http://www.aseanlawassociation.org/legal-indonesia.html
• Statistics Indonesia (Biro Pusat Statistik) at www.bps.go.id
• Timothy Lindsey (Editor), “Indonesia: Law and Society”. Review of the book in Melbourne University Law Review is available at http://www.austlii.edu.au/au/journals/MULR/1999/21.html
• Under Secretary for Public Diplomacy and Public Affairs, Bureau of East Asian and Pacific Affairs of the US Department of State “Background Note: Indonesia” at http://www.state.gov/r/pa/ei/bgn/2748.htm#history

 

 

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.

 

Executive

Central Government

In Indonesia, the power of the Executive Branch is vested in the Office of the President. The Office of the President is the central government. It has the power to manage national affairs and, under the Constitution, it is responsible for relations of Indonesia with other foreign nations.

The central government of Indonesia consists of the President, the Vice President, and the Cabinet members. Under the Constitution, the President is the head of state and head of government, as well as the Commander-in-Chief of the armed forces. As the head of state, the President represents the country at official ceremonial events. As the head of government, the President acts as the top administrative leader that manages the daily government activities.

The Constitution requires the President and the Vice President to be an Indonesian citizen since birth and to have never held other citizenship. The President and the Vice President are elected for five-year terms by direct vote of the people. Before 2004, the People’s Consultative Assembly chose the President and the Vice President. It should be noted that the First Amendment to the Constitution, ratified on November 19, 1999, limits the president and the vice president to two terms of office.

The Constitution describes the specific conditions under which the Vice President is empowered to take over the office of the President. The Vice President will replace the President in the event that the President dies, resigns, is impeached, or unable to perform the presidential duties. In the case where the Vice President becomes the President, the People’s Consultative Assembly shall convene a special session to elect a new Vice President from a list of two candidates proposed by the President. The rationale of this is because the Constitution does not allow the office of the Vice President to remain vacant for more than 60 days.

The Constitution also specifies the order of succession after the vice president. At present, should both the president and vice president vacate their offices; the Minister of Foreign Affairs, the Minister of Internal Affairs, and the Minister of Defense shall assume the Office of the President temporarily. Then, in the next thirty days, the Parliament shall choose the next President and Vice President from the two candidates nominated by the political parties whose candidates were the winner and the runner-up in the past presidential election.

The Constitution also provides for the President to be impeached and removed from the office if the President is viewed unfit to perform his duties and has committed crimes such as corruption or treason against the state. In addition, the Parliament can summon the Supreme Court to try the President and ask the Constitutional Court to look into the matter. In a case like this, the President would be given the chance to defend himself/herself before the People’s Consultative Assembly decides to impeach him/her or not.

 

Departments & Ministry

The Constitution of the Republic of Indonesia, as amended, stipulates that the President have the constitutional power to name and remove Ministers, Secretaries, Attorney General, and Commander of Police and Armed forces. The collection of those top high-ranking advisers to the President and Vice President shall be addressed collectively as the Cabinet.

 

The Cabinet headed departments consist of the following members:

I. Coordinating Ministers

1. Coordinating Minister for Legal, Political and Security Affairs Jl Merdeka Barat No 15 Jakarta Pusat 10110 (021) 3849819 (021) 3441751 http://www.polkam.go.id
2. Coordinating Minister for the Economy Jl. Lapangan Banteng Timur No. 2 - 4 Jakarta Pusat 10710 Indonesia (021) 3521974 (021) 3521985 http://www.ekon.go.id
3. Coordinating Minister for People’s Welfare Jl. Medan Merdeka Barat No. 3 Jakarta 10110 (021) 384 9845 (021) 346 3055 http://www.menkokesra.go.id
4. State Secretary Jl. Veteran No 17 - 18 Jakarta 10110 (021)3845627 (021)34834759 http://www.setneg.go.id

II. Departmental Ministers

5. Minister of Foreign Affairs Jl. Taman Pejambon No. 6 Jakarta 10110 (021) 345 6014 (021) 385 5481 http://www.kemlu.go.id
6. Minister of Home Affairs Medan Merdeka Barat No. 7 Jakarta 10110 (021) 384 2222 (021) 384 2221 http://www.depdagri.go.id
7. Minister of Defense Jl. Medan Merdeka Barat No. 13 – 14 Jakarta 10110 (021) 344 4408 (021) 3440023 http://www.kemhan.go.id/
8. Minister of Law and Human Rights Jl. H.R. Rasuna Said Kav. 4 – 5 Jakarta 12950 (021) 525 3171 (021) 525 3095 http://www.kemenkumham.go.id/
9. Minister of Trade Jl. M.I. Ridwan Rais No. 5 Jakarta 10110 (021) 345 6318 (021) 384 6106 http://www.kemendag.go.id/
10. Minister of Industry Jl. Jend. Gatot Subroto Kav. 52 – 53 Jakarta 12930 (021) 525 4982 (021) 522 2876 http://www.kemenperin.go.id/
11. Minister of Energy and Natural Resources Jl. Medan Merdeka Selatan No. 18 Jakarta 10110 (021) 381 3232 (021) 384 7451 http://www.esdm.go.id
12. Minister of Finance Gedung Utama Jl. Lapangan Banteng Timur No. 2 – 4 Jakarta 10710 (021) 380 8388 (021) 350 0842 http://www.depkeu.go.id
13. Minister of Forestry Gedung Pusat Kehutanan Manggala Wanabakti Jl. Jend. Gatot Subroto Jakarta 10270 (021) 570 4501-4 (021) 570 0226 http://www.dephut.go.id
14. Minister of Agriculture Ged.A.Lt. II R. 219 Jl. Harsono RM No. 3 Ragunan Jakarta 12940 (021) 784 4086 (021) 780 4106 http://www.deptan.go.id
15. Minister of Health Jl. HR. Rasuna Said Blok X.5 Kav. 4-9, Kuningan, Jakarta Selatan (021) 5201587 (021) 5201590 http://www.depkes.go.id
16. Minister of Public Works Jl. Pattimura No. 20 Kebayoran Baru Jakarta 12110 (021)7392262 (021) 7247820 http://www1.pu.go.id/
17. Minister of Social Services Jl. Salemba Raya No. 28 Jakarta 10430 (021) 3103591 (021) 3103783 http://www.depsos.go.id
18. Minister of National Education Jalan Jenderal Sudirman Senayan, Jakarta 12041 (021)57950226 (021) 5736870 http://www.kemdiknas.go.id/kemdiknas/index.php
19. Minister of Religious Affairs Jl. Lapangan Banteng Barat No. 3-4 Jakarta 10710 Indonesia (021) 381 2306 (021) 381 2306 http://kemenag.go.id/
20. Minister of Maritime Affairs and Fisheries Jl. Medan Merdeka Timur No. 16 Jakarta 10710 (021) 350 0041 (021) 350 0049 http://www.kkp.go.id/
21. Minister of Transportation Jl. Medan Merdeka Barat No. 8 Jakarta Pusat (021) 3852649 (021) 3451657 http://www.dephub.go.id
22. Minister of Manpower and Transmigration Jl. Jend. Gatot Subroto Kav. 51 Jakarta 12950 (021) 525 5685 (021) 525 6559 http://www.depnakertrans.go.id/
23. Minister of Tourism and Creative Economy Jl. Medan Merdeka Barat No. 27, Jakarta 10110 (021) 3838565 (021) 344079 http://www.budpar.go.id
24. Minister of Information and Communication Jl. Medan Merdeka Barat No. 8 Jakarta 10110 (021) 345 6332 (021) 381 2850 http://www.kominfo.go.id

III. State Ministers

25. State Minister for Cooperatives and Small and Medium Enterprises Jl. H.R. Rasuna Said Kav. 3-5, Kuningan, Jakarta 12940 (021) 520-4375 (021) 522-0849 http://www.depkop.go.id
26. State Minister of Environment Jl. DI. Panjaitan, Kav. 24 Kebon Nanas, Jakarta 13410 (021) 858-0103 (021) 858-0101 http://www.menlh.go.id
27. State Minister for Research and Technology Gedung BPPT II, 2nd Floor, Jl. MH. Thamrin 8, Jakarta 10340 (021) 3169960 (021) 3911789 http://www.ristek.go.id
28. State Minister for Administrative Reforms Jl. Jend. Sudirman Kav. 69, Jakarta (021) 739-8381 (021) 739-8385 http://www.menpan.go.id
29. State Minister for Women’s Empowerment Jl. Medan Merdeka Barat No. 15 Jakarta 10110 (021) 380-539 (021) 381-0052 http://www.menegpp.go.id/
30. State Minister for Acceleration of Development in Underdeveloped Regions Jl. Medan Merdeka, Jakarta Pusat (021) 3441295 (021) 3450918 http://www.kemenegpdt.go.id/
31. State Minister for Youth and Sport Affairs Jl. Gerbang Pemuda No. 3 Senayan, Jakarta Pusat (021) 5728612 (021) 5738151 http://www.kemenpora.go.id/
32. State Minister for State Enterprises Jl. Dr. Wahidin Raya No. 2 Jakarta (021) 5772776 (021) 3841094 http://www.bumn.go.id
33. State Minister for National Development Planning and Chairperson of the National Development Planning Agency Jl. Taman Suropati No. 2, Jakarta 10310 (021) 31934811 (021) 334779 http://www.bappenas.go.id
34. State Minister for Public Housing Jl. Raden Patah I No. 1, Kebayoran Baru, Jakarta Selatan (021) 7397758 (021) 7397727 http://www.kemenpera.go.id

IV. Non-ministerial Posts

35. Attorney General Jl. Sultan Hasanudin No. 1 Kebayoran Baru, Jakarta 12160 (021) 720-8577 (021) 725-1277 http://www.kejaksaan.go.id
36. Cabinet Secretary Jl. Veteran No. 18, Jakarta 10110 (021) 3810973 (021) 3848532 http://www.setkab.go.id
37. Commander of the Indonesian Armed Forces Mabes TNI Cilangkap, Jakarta Timur (021) 84591243 (021) 845-6805 http://www.tni.mil.id
38. Chief of the Indonesian National Police Jl. Trunojoyo No. 3 Kebayoran Baru, Jakarta Selatan (021) 7260306 (021)7207277 http://www.polri.go.id
39. President Delivery Unit for Development Monitoring and Oversight Jl. Veteran III No. 2, JakartaPusat (021) 3500234 (021)2314147 http://www.ukp.go.id/
40. Indonesia Investment Coordinating Board Jl. Jend Gatot Subroto No. 44, Jakarta (021) 52921334 (021)5264211 http://www.bkpm.go.id

 

Non Department Government Institutions

Beside the departments and ministries, there are several non-departmental government institutions (Lembaga Negara Non Department or LPND) which are established by and responsible to the President.

The LPNDs are coordinated through the ministries and departments. These institutions are established by virtue of various Presidential Decrees in the past; but since 2001, they have been renamed, reorganized, abolished or established by a single Presidential Regulation, which is amended from time to time solely for this purpose and lastly by the Presidential Regulation No. 11 of 2005 on Fifth Amendment on Presidential Decree No. 103 of 2001 on Stance, Undertaking, Function, Authority, Organizational Structure and Administration of Non Department Government Institutions (“PR 11 2005”).

 

Under PR 11 2005, there are 22 agencies which are coordinated through the ministries and departments. The following is a list of these agencies and their respective websites [[1]]:

• National Institute of Public Administration (Lembaga Administrasi Negara or LAN): http://www.lan.go.id/
• National Archive of Republic of Indonesia (Arsip Nasional Republik Indonesia or ANRI): http://www.anri.go.id/
• National Civil Service Agency (Badan Kepegawaian Negara or BKN): http://www.bkn.go.id
• National Library of Republic of Indonesia (Perpustakaan Nasional Republik Indonesia or PERPUSNAS): http://www.pnri.go.id
• National Planning and Development Agency (Badan Perencanaan Pembangunan Nasional or BAPPENAS): http://www.bappenas.go.id/
• Centre of Statistic Agency (Badan Pusat Statistik or BPS): http://www.bps.go.id/aboutus/. Please note that this Agency is later regulated in the Presidential Regulation No.86 of 2007 regarding the Centre of Statistic Agency,
• National Standardization Agency of Indonesia (Badan Standardisasi Nasional or BSN): http://www.bsn.or.id/index.php?&language=en<
• Nuclear Energy Supervisory Agency (Badan Pengawas Tenaga Nuklir or BAPETEN): http://www.bapeten.go.id/
• National Atomic Energy Agency (Badan Tenaga Nuklir Nasional or BATAN) http://www.batan.go.id/en2008/
• National Intelligence Agency (Badan Intelijen Negara or BIN)
• National Cryptogram Agency (Lembaga Sandi Negara or LEMSANEG) http://www.lemsaneg.go.id/
• National Coordination of Family Planning Agency (Badan Koordinasi Keluarga Berencana Nasional or BKKBN): http://www.bkkbn.go.id/
• National Agency of Space Flight (Lembaga Penerbangan Antariksa Nasional or LAPAN): http://www.lapan.go.id/
• National Coordinating Agency for Surveys and Mapping (Badan Koordinasi Survei dan Pemetaan Nasional or BAKOSURTANAL) http://www.bakosurtanal.go.id/
• Financial and Development Supervisory Agency (Badan Pengawasan Keuangan dan Pembangunan or BPKP): http://www.bpkp.go.id/
• Indonesian Science Agency (Lembaga Ilmu Pengetahuan Indonesia or LIPI): http://www.lipi.go.id/
• Technology Review and Application Agency (Badan Pengkajian dan Penerapan Teknologi or BPPT): http://www.bppt.go.id/
• Investment Coordinating Board (Badan Koordinasi Penanaman Modal or BKPM): http://www.bkpm.go.id/
• National Terrestrial Agency (Badan Pertanahan Nasional or BPN): http://www.bpn.go.id
• National Agency of Drug and Food Control (Badan Pengawas Obat dan Makanan or BPOM): http://www.pom.go.id/e_default.asp
• National Tenacity Institute (Lembaga Ketahanan Nasional or LEMHANNAS): http://www.lemhannas.go.idl
• Meteorology and Geophysics Agency (Badan Meteorologi dan Geofisika or BMG): http://www.bmg.go.id/

Independent Bodies

In addition to the LPNDs, other institutions are formed by Laws and Presidential Regulations as independent bodies. Sometimes, a law is promulgated to specifically establish the agency (e.g., the National Narcotic Agency was formed by virtue of Presidential Decree No. 116 of 1999 on National Narcotic Agency as amended by Presidential Decree No. 17 of 2002) and sometimes they are formed as part of Law to support the underlying policy (e.g., the Disaster Management Agency was established by virtue of Law No. 24 of 2007 on Disaster Management). On other occasions, these independent bodies are mandated by the Constitution as in the case of Judicial Committee and General Election Commission.

The independent bodies are established as agencies, commissions, committees, state-owned legal entity (BHMN) or state-owned business enterprises (BUMN), depending on the type of work they are mandated to carry. Most of these bodies are responsible to the President and they often work closely with the respective executive branch, while others with the House of Representatives.

The following is the list of these independent bodies:

• General Election Commission (Komisi Pemilihan Umum or KPU): http://www.kpu.go.id
• Judicial Commission (Komisi Yudisial): http://www.komisiyudisial.go.id/
• National Law Committee (Komisi Hukum Nasional): http://www.komisihukum.go.id/
• Indonesian Ombudsman (Ombudsman Republik Indonesia): http://www.ombudsman.go.id
• Presidential Advisory Committee (Dewan Pertimbangan Presiden or DPP)
• National Committee of Human Rights (Komisi Nasional Hak Asasi Manusia or KomNasHAM): http://www.komnasham.go.id
• Sidoarjo Mudflow Management Agency (Badan Penanggulangan Lumpur Sidoarjo) http://www.bpls.go.id/
• National Commission on Violence Against Women (Komisi Nasional Perempuan or Komnasperempuan): http://www.komnasperempuan.or.id/
• Indonesian Child Protection Commission (Komisi Perlindungan Anak Indonesia): http://www.komnaspa.go.id/
• Corruption Eradication Committee (Komisi Pemberantasan Korupsi or KPK): http://www.kpk.go.id/modules/news/index.php?lang=english
• Indonesian Police Committee (Komisi Kepolisian Indonesia or KKI): http://www.komisikepolisianindonesia.com/
• Public Attorney Commission (Komisi Kejaksaan) htpp://www.komisi-kejaksaan.go.id/
• National Narcotic Board (Badan Narkotika Nasional or BNN): http://www.bnn.go.id/
• Supervisory Committee of Business Competition (Komisi Pengawas Persaingan Usaha or KPPU): http://www.kppu.go.id/baru/index.php
• Bank Indonesia or BI: www.bi.go.id/web/en
• Indonesian Financial Transaction Reports and Analysis Centre (Pusat Pelaporan dan Analisis Transaksi Keuangan or PPATK): http://www.ppatk.go.id/index_eng.php
• Indonesia Deposit Insurance Corporation (Lembaga Penjamin Simpanan or LPS): http://www.lps.go.id/v2/home.php
• Indonesian Export Financing Institution or Indonesian EximBank (Lembaga Pembiayaan Ekspor Indonesia or LPEI)
• Executive Agency for Upstream Oil and Gas Activity (Badan Pelaksana Kegiatan Usaha Hulu Minyak dan Gas Bumi or BPMIGAS): http://www.bpmigas.com/English/Default.asp
• Managing Agency for Downstream Oil and Gas Activity (Badan Pengatur Hilir Minyak dan Gas Bumi or BPH Migas) http://www.bphmigas.go.id/
• National Information and Communication Technology Council (Dewan Teknologi Informasi dan Komunikasi Nasional or DeTIKNas) http://www.detiknas.org/
• Indonesian Telecommunication Regulatory Body (Badan Regulasi Telekomunikasi Indonesia or BRTI): http://brti.or.id
• Indonesian Broadcasting Commission (Komisi Penyiaran Indonesia): http://www.kpi.go.id/
• National Film Review Agency (Badan Pertimbangan Perfilman Nasional or BP2N)
• Film Censor Agency (Lembaga Sensor Film): http://www.lsf.go.id/
• National Agency of Professional Certification (Badan Nasional Sertifikasi Profesi) http://www.bnsp.go.id/
• National Agency of Placement and Protection of Indonesian Workers (Badan Nasional Penempatan dan Perlindungan Tenaga Kerja Indonesia or BNP2TKI): http://www.bnp2tki.go.id/
• National Transportation Safety Committee (Komite Nasional Keselamatan Transportasi or KNKT): http://www.dephub.go.id/knkt/
• Disaster Management Agency (Badan Nasional Penanggulangan Bencana or BNPB): http://www.bakornaspb.go.id/website/

 

 

 

Regional Government

Provincial Government

District Government

 

 

Judiciary

One court of general jurisdiction and three courts of limited but special jurisdiction (religious, military, administrative court) are outlined in Law No. 4/2004 on Judicial Powers (Undang-undang Pokok Kehakiman tahun 2004). The Law on Judicial Powers also governs the Supreme Court and the Constitutional Court.

 

Hierarchy

General information such as name and address of the Supreme Court as well as Court of Appeals and Court of First Instance of general jurisdiction and special jurisdictions, are listed under “Direktori Pengadilan” window at the Supreme Court official website.

 

Supreme Court (Mahkamah Agung)

The Constitutional Court and the Supreme Court form the judicial branch of the government. The Supreme Court is the highest judicial institution and the final court of appeal in Indonesia with regard to criminal, civil, religious, military and state administrative courts and other special courts established by laws enacted by the People’s Representative Council (Dewan Perwakilan Rakyat). Elaborating the 1945 Constitution, the Law No. 14/1985 as amended by Law No. 5/2004 and Law No. 3 of 2009 state the powers and organization of the Supreme Court. While the Constitutional Court has the power to determine constitutionality of Law (Undang-Undang), the Supreme Court has power of judicial review over legislative products or legislation lower than the Law.

It has oversight over the court of appeals and courts of first instance. It can hear a cassation appeal (kasasi) which is a final appeal from these lower courts. It can also conduct a case review or reexamination of a case (Peninjauan Kembali) if certain requirements are satisfied. It has supreme jurisdiction covering general court and special courts.

Supreme Court judges are selected by the Judicial Committee, appointed by the People’s Representative Council (Dewan Perwakilan Rakyat), the legislature, and confirmed by the President. There are 60 supreme justices and one of them serves as chief justice.

The Supreme Court has the following powers: (a) to hear and decide all final decisions made by appellate courts that have authority over criminal, civil, religious, military and state administrative laws; (b) to review the legality of regulations (but not laws enacted by the DPR); (c) to provide legal explanations, recommendations and advice to state and government institutions; and (d) to provide re-examinations (peninjauan kembali) of its final and binding decisions if certain requirements are satisfied.

 

Court of Appeals

High Court (Pengadilan Tinggi)

The appeal from the District Court is heard before the High Court. There is one in each province and special region.

Religious High Court (Mahkamah Islam Tinggi)

It hears appeals from Religious Court.

Administrative High Court (Pengadilan Tinggi Tata Usaha Negara)

Up to now, there are only four; one in Jakarta Special Region and the rest are in Eastern Jawa, Southern Sulawesi, and North Sumatra.

Military High Court (Pengadilan Militer Tinggi)

The only one Military High Court is in Jakarta.

 

Courts of First Instance

District Court (Pengadilan Negeri)

Article 25, Paragraph (2) of Law No. 48 of 2009 and Article 50 of Law No. 2 of 1986 Regarding General Jurisdiction (March 8, 1986), as amended by Law No. 8 of 2004 (March 29, 2004) provide that courts of general jurisdiction (peradilan umum) have the authority to examine, try and decide both criminal and civil law cases. The court of first instance for courts of general jurisdiction is known as the District Court (Pengadilan Negeri). There are approximately 250 District Courts established in each district and city throughout Indonesia. Please note that a District Court’s verdict will take effect and become enforceable as a final judgment in 14 days from the date of its decision if no appeal is submitted to the High Court. Within a District Court’s general jurisdiction, there can be specialist courts that hear cases based on the particularity of the area or issue of law, and a specialist court that hears cases based on the age of the actor in a criminal case. Those specialist courts are Commercial Court (Pengadilan Niaga), Labor Court (Pengadilan Hubungan Industrial), Human Rights Court (Pengadilan Hak Asasi Manusia), Court for Crime of Corruptions (Pengadilan Tindak Pidana Korupsi), and Children’s Court (Pengadilan Anak).

In addition, there are Religious Courts (Pengadilan Agama), Administrative Courts (Pengadilan Tata Usaha Negara), and Military Court of First Instance (Pengadilan Militer).

Each court exercises limited and special subject matter jurisdiction. Additionally, jurisdiction of Religious Court and Military Court is also based on certain personal attribute of the parties. With respect to Religious Court, it is the Islamic religion. With respect to Military Court, it is membership in the military.

Jurisdiction of a Religious Court is limited to family law (marriage, divorce, reconciliation, alimony), inheritance, wakaf (religious foundation), and shadaqah (religious donation or tithe). However, Religious Court has non-excusive jurisdiction. Parties can apply to District Courts for adjudication on the basis of national civil law or adat law. The Law No. 7/1989 as amended by Law No. 3/2006 on Religious Courts (Undang-undang Peradilan Agama) governs the jurisdiction, judges, and administration of Religious Court. Visit http://niriah.com/dl.php?uu=3-Th-2006.pdf and http://www.pdf-search-engine.com/undang-undang-nomor-7-tahun-1989-pdf.html to download the relevant laws.

Pursuant to Law No. 5/1986 as amended by Law No. 9/2004 on Administrative Court (Undang-undang Peradilan Tata Usaha Negara), the subject matter jurisdiction of an Administrative Court is concrete/actual, particular and final decision of administrative body of the executive branch. Within the jurisdiction of Administrative Court, there is specialist court to settle dispute over taxation. Said specialist court is Tax Court (Pengadilan Pajak). Visit http://hukum.unsrat.ac.id/uu/uu_9_04.htm

 

Types of Courts

Judicial authority is implemented by the Constitutional Court and the Supreme Court and courts under the Supreme Court’s authority.

Courts under the Supreme Court’s authority are the General Court (Pengadilan Umum), Industrial Relations Court (Pengadilan Hubungan Industrial), Court of Religion (Pengadilan Agama), Administrative Court (Pengadilan Tata Usaha Negara), Fishery Court (Pengadilan Perikanan), Military Court (Pengadilan Militer), and Taxation Court (Pengadilan Pajak).

General

Most disputes appear before the courts of general jurisdiction with the Supreme Court as the final court of appeal and the High Courts (Pengadilan Tinggi) deal with appeals from State Courts (Pengadilan Negeri).

There is state court of first instance in each district and municipalities that deals with civil and criminal cases involving Indonesian or foreign citizens.

Industrial Relations Dispute Court

Industrial Relations Dispute Court is established by virtue of Law No. 13 of 2003 on Employment and Law No. 2 of 2004 on Settlement of Industrial Relation Dispute. This court is the higher alternative in settling employment related disputes. The other alternatives are employment conciliation, arbitration and mediation. This court also acts as the registrant of the settlement reached using the other means (to give executory power).

Fishery

The Fishery Court is established by virtue of Law No. 31 Year 2004 on Fishery and further regulated by Supreme Court Regulation No. 01 Year 2007 on Fishery Court. The court has the authority to adjudicate fishery crimes, which include (i) exporting or importing fish without health certification, (ii) using illegal means of fishery such as explosives and chemicals, and (iii) using fishery tools not according to standards. It is established within the General Court. The first Fishery Courts to be established are within the General Court of North Jakarta, Medan, Pontianak, Bitung and Tual.

Religion

The Court of Religion is established by virtue of Law No. 7 Year 1989 on Court of Religion as amended by Law No. 3 Year 2006. The court has the authority to adjudicate matters between Islamic people in the field of (i) marriage, (ii) inheritance, wills, and grants, done in accordance with Islamic laws, (iii) wakaf (religious charitable trust) and shadaqah (alms), and (iv) Syariah Economy (economy based on the principles of Islamic laws). The judicial authority of the Court of Religion is carried out by the District Court of Religion located in municipalities and its appellate court, the High Court of Religion seated in capital of provinces. It is established outside of the General Court.

The Province of Nanggroe Aceh Darussalam which implements Islamic Laws has a special court within the Court of Religion called Mahkamah Syariah holding broader judicial authority than common Court of Religion which includes those affairs under the authority of the General Court.

State Administrative

This court is established by virtue of Law No. 8 of 1986 on State Administrative Court, as amended by Law No. 5 of 2002. It is the forum to challenge public administrative decree, which is defined as a written decision issued by a body or official of public administration, which contains an act of public administration based on the prevailing laws and regulations, which is concrete (or certain), individual, and final, which brings legal implications to a person or a civil legal entity.

Military

The Military Court is established by virtue of Law No. 31 Year 1997 on Military Court. The court has the authority to adjudicate (i) crimes conducted by a soldier or other person or position considered as soldier under the law, or other person determined by the Commander of the Army and approved by Minister of Justice and Human Rights (“military crimes”), (ii) the Army’s administrative dispute, (iii), and civil lawsuit related to military crimes. The Military Court is established within the Army. It consists of Lower Military Court, High Military Court, Supreme Military Court, and Military Court in Battle. Authorities differ based on the ranks of the soldier and the matter being adjudicated, and also on appellate functions.

Tax

The Taxation Court is established by virtue of Law No. 14 Year 2002 on Taxation Court. The court has the authority to adjudicate taxation disputes between taxpayer and taxation authority, i.e., Directorate General of Taxation, Directorate General of Customs and Excise, Governors, Mayors, or other tax authorities. Matters subject to the taxation court’s jurisdiction include disputes arising from tax decisions and lawsuits over Tax Collection by Compelling Letter (Penagihan Pajak dengan Surat Paksa).

The Taxation Court is the only one Tax Court and it is seated in the Capital City of Jakarta. It is the first and last resort for taxation disputes.
Its website is: http://www.setpp.depkeu.go.id/Ind/Board/Profile.asp

Juvenile Courts (Pengadilan Anak)

Juvenile courts are established under Law No. 3 of 1997 Regarding the Juvenile Courts (January 3, 1997). Juvenile Courts are subject to the authority of the courts of general jurisdiction and they have the authority to prosecute children aged eight years to 18 that have never been married. All matters of the Juvenile Courts are to be heard in a closed court to ensure the confidentiality and the identity of the child. A closed court means that only the child’s parents, guardian, or appointed social workers may be present.

Human Rights Courts (Pengadilan Hak Asasi Manusia)

Human Rights Courts are established by Law No. 26 of 2000 Regarding the Human Rights Courts (November 23, 2000), based on Law No. 39 of 1999 Regarding Human Rights (September 23, 1999). These courts only have jurisdiction over grave violations of human rights, i.e., genocide and crimes against humanity.

Corruption Courts (Pengadilan Tindak Pidana Korupsi)

Corruption Courts are established by Law No. 46 of 2009 Regarding Criminal Corruption Courts (October 29, 2009) (“Law No. 46 of 2009”). Article 5 of Law No. 46 of 2009 states that the Corruption Courts are the only courts in Indonesia that have the authority to examine, try and decide criminal corruption cases. We note that cases which are tried before the Corruption Courts are limited to cases that are delegated from the Indonesian Commission of Corruption Eradication (Komisi Pemberantasan Korupsi or “KPK”). However, in some cases the District Courts may also try corruption cases if the corruption case dossier is submitted by the Attorney General’s office.

Commercial Courts (Pengadilan Niaga)

Commercial Courts were first established by virtue of Article 281, Paragraph (1) of Government Regulation in Lieu of Law No. 1 of 1998 Regarding the Amendment to Bankruptcy Law (April 22, 1998), as further stipulated in Law No. 4 of 1998 (September 9, 1998). Commercial Courts have the authority to examine and decide bankruptcy petitions and the postponement of debt payment obligations as well as other commercial dispute matters, as determined by law. To date, the only additional disputes handled by the Commercial Courts are intellectual property right disputes.

Constitutional Court

The Constitutional Court was first established on November 9, 2001 as a consequence of the third amendment to the Constitution of the Republic Indonesia. Unlike the Supreme Court, the Constitutional Court is not an appellate court. Its decision is final and binding and, therefore, cannot be challenged.

Article 24C of the Constitution states that the powers of the Constitutional Court are first, to review the law made against the Constitution; second, to resolve disputes between state institution; third, to resolve dissolution of political parties; fourth, to resolve disputes over election results; and fifth, to rule on president’s impeachment. In relation to the process of impeachment, the jurisdiction of the Court is only limited to the issue of law on whether the President and/or the Vice President are guilty in doing the acts prohibited by the Constitution. The decision on whether to remove the President and/or the Vice President is still under the authority of the People’s Consultative Assembly.

There are 9 (nine) Constitutional Court judges, in which 3 (three) are nominated by the Supreme Court; 3 (three) are nominated by the House of Representatives, and another 3 (three) are nominated by the President. All of the judges are appointed through a Presidential Decree and all will serve in one panel in each case before the Court. The term of office for judges is 5 (five) years and each one of them can be re elected for another 1 (one) term.

The presence of the Constitutional Court has greatly affected Indonesia in general. Previously, laws established by the legislative institution cannot be challenged. The establishment of the Constitutional Court has made it possible to annul the entire law or part of its substances if its making or substance is contradictory to the Constitution. This serves as a check and balance of a political organ such as the Legislative body.

 

Legislative- See ‘Separation of Powers’ above.

Central

     MPR

     DPR

     DPD

Regional

     Provincial House of Representatives

     City House of Representatives

 

 

Sources of Law

Written Laws

Generally, the enactment procedure and the hierarchy of written Laws are governed by Law No. 10 of 2004 on Enactment of Laws. The hierarchy and a brief explanation on each law are as follows (note that this list is not exhaustive, as there are other kinds of regulations not included by Law 10 of 2004 such as Minister Regulation).

Finding English translations of primary law sources for Indonesia is challenging. For example, academic law libraries in Australia and the U.S. Library of Congress appear to be the only sources for the most current Code of Criminal Procedure for Indonesia. Access to English versions of the other major codifications is also haphazard. But Foreign Law Guide (Reynolds & Flores) highly recommends the chapters on Indonesian law authored by Mr. Andrew I. Sriro for the Martindale-Hubbell Law Digests as an “amazing point of entry in English to nearly all current Indonesian legislation”.

Selected Indonesian laws can be found in English translation from Internet sources such as the Asian Law Centre at the University of Melbourne http://alc.law.unimelb.edu.au/go/research-programs/indonesia/commentary-and-legislation/index.cfm and World Legal Information Institute http://www.worldlii.org/id/. But, again, the availability of complete, accurate, and updated English versions of the laws is rather haphazard.

On a more positive note, secondary source materials in English, such as law journal articles and books on various aspects of Indonesia’s legal system, are significantly more plentiful than primary law sources. This is probably due to the current high-level of interest in Indonesia on the part of foreign scholars and practitioners.

Constitution

The Constitution is known as the Undang-Undang Dasar 1945 or UUD 1945, as it was enacted upon declaration of independence in 1945. It was replaced by (i) the 1950 Federal Constitution (Indonesia once as a parliamentary form as in united states in 1949-1950) and then by (ii) the Temporary Constitution of 1950, waiting for the 1955 elected Constituent Committee to draft a new one, albeit the Committee failed to do so. On July 5th 1959, by virtue of the historical Presidential Decree, the UUD 1945 was enacted again. It remained unchanged during the New Order and has been made “sacred” during that period. Since the Reform Era, the UUD 1945 has been amended for 4 times on 1999, 2000, 2001 and 2002, adding matters regarding human rights, the parliamentary system and the creation of several new institutions.

English translations of the Constitution of the Republic of Indonesia are available from various sources, including both subscription databases and free online sources. One such free online source is the Indonesian Embassy in Kiev, Ukraine:
http://indonesianembassy.kiev.ua/about/files/fourth_const.pdf

Acts / Government Regulation in Lieu of Act

The Law (Undang-Undang) is drafted by the DPR with the President’s consent. In the event of emergency, the President can enact immediately a Government Regulation in Lieu of Law Peraturan Pemerintah Pengganti Undang-Undang or Perpu), which shall be subject to an immediate review by the DPR. Both are also subject to constitutional review through the Constitutional Court review process.

Government Regulation

Government Regulation (Peraturan Pemerintah or PP) is enacted by the President to implement Laws.

Presidential Decree

Presidential Regulation (Peraturan Presiden of Perpres) is enacted by the President within his authority. It used be referred to as Presidential Decree (Keputusan Presiden or Keppres). Now, Presidential Decree is referred to as presidential administrative act as opposed to Presidential Regulation that has regulatory and public policy effect.

Regional Regulation

The Regional Regulation (Peraturan Daerah or Perda) is drafted by the DPRD with the head of the regional’s consent.

 

Unwritten Laws

The term “unwritten laws” here refers to laws not promulgated by a state authority. Article I Paragraph 2 of TAP MPR No. III/MPR/2000 on Sources of Law and Hierarchy of Laws and Regulations stipulates that sources of law consist of written laws and unwritten laws.

Custom

Customs (kebiasaan) or convention which can be classified as a source of law is customary law which is differentiated from ordinary customs. Customary laws (hereinafter “custom”) encompass rules that even though not enacted by the state or its subordinate authority are applicable as law. There are two requirements for custom to have the binding power of law:

a) There has to be similar conduct in a similar condition to which society has always abided to.

b) There has to be Opinio juris sive necessitatis over such conduct, meaning a belief in the society that such conduct is binding as law (“legal belief”). Legal belief can come from the substance and/or the form of the custom.

According to Article 15 of Algemene Bepalingen Van Wetgeving voor Indonesie (AB) which is General Regulation for Indonesia inherited from the Dutch and still prevails by virtue of Article I of Transitional Rule of the 1945 Constitution, customs has a legal force if a law refers to such customs to be applied. A good example is Article 1339 of the Indonesian Civil Code (Kitab Undang – Undang Hukum Perdata) which states that agreements are binding not only for matters stipulated therein, but also for any matters which pursuant to the nature of the agreements is subject to customs.

Adat Law

Adat Law (hukum adat or adat recht) is a set of local and traditional laws and dispute resolution systems in many parts of Indonesia. Hence, there is no united Adat Law for the whole Indonesian people. A Dutch legal scholar, Van Vollenhoven classified Adat Law into 23 subdivisions based on a combination of region and ethnicity. Its sources are unwritten laws evolving from and maintained by legal awareness of the people.

Adat law is in principle also part of custom, but it is distinguished due to its close attachment to ethnicities. Due to its evolutionary nature, Adat Law has the ability to adapt to changes within society. For example, subsequent to its adoption as religious belief, Islam has been part of the Adat law for certain ethnicities such as Minangkabau and Aceh.

Adat Law is important in several areas of law such as family law, inheritance law, and agrarian law.

Syariah Law Principles

Syariah law is not conventionally regarded as part of sources of Indonesian law. Nevertheless, recent political developments especially after the reform era have contributed in introducing syariah law to a broader scope within the Indonesian legal system.

Originally, syariah law can be found to be the commanding principles in marriage and inheritance law for Muslims and is applied by the Court of Religion. The primary source used is the Islamic Law Compilation (Kompilasi Hukum Islam): http://hukum.unsrat.ac.id/ma/kompilasi.pdf

The promulgation of Law No. 3 Year 2006 on Court of Religion broadens the scope of judicial authority of Courts of Religion to include disputes pertaining to syariah economy. Syariah economy itself has been noted and can be found in many parts of banking regulations, notably Law No. 7 Year 1992 on Banking as amended by Law No. 10 Year 1998 which clearly distinguishes conventional banking and syariah banking.

Another example of syariah law application is the unique status of the Province of Nanggroe Aceh Darussalam. Under Law No. 11 Year 2006 on Aceh Government, it is the only Province in which governance is founded, among others, by Islamic principles.

The law also required that syariah law be implemented in Aceh which encompasses matters of family law, civil law, criminal law, court, education, etc, which will be further regulated under Qanun Aceh. This law in turn provided for Aceh to have a distinctive legal system within the national legal system.

Doctrine

Doctrine is opinion of law from jurists or legal scholars. Doctrine is applied to interpret a general conception of law within other legal sources or to provide explanation on ambiguity of laws. Doctrine in and of itself does not have a binding power. It will have a binding power when it is used as consideration in a court decision. It is quite common for litigation cases to supplant their arguments with doctrine and submitting books of legal scholar pointing to a certain doctrine as evidence in court.

For research purposes, doctrine can be found in books, papers, or other media for jurist opinions. Example of notable doctrine is the opinion of J. Satrio, in which books, papers, and lectures have been a common reference for practitioners in the field of civil law, and Yahya Harahap, in which writings have been sought as source of clarifications for both criminal and civil procedural law.

However, it should be noted that most of the scholarship of J. Satrio and Y. Harahap has been published either in Dutch or Indonesian, and thus its accessibility to researchers without the requisite reading ability in such languages will be limited.

Jurisprudence

Court decisions commonly referred to as jurisprudence, or case law, or judge made law do not have a binding power other than for the persons or parties being subjected to the decision. This is because Indonesia as a civil law country (which ascribed to European continental legal system), following the Dutch, does not adopt stare decisis principle.

Nevertheless, there are two streams of opinion regarding the same decisions made three times by the Supreme Court or the Constitutional Court. Some jurist classified this as a permanent precedence under the doctrine of faste jurisprudence which serves a somewhat binding power. Other jurists on the other hand, still treat such precedence like any other precedence, i.e., as not having any binding power. They merely have a persuasive force of precedence.

Here is a link to jurisprudences from the Supreme Court and Constitutional Court: http://www.mahkamahagung.go.id/index.asp?LT=06&tf=0&idsec=20

http://www.mahkamahkonstitusi.go.id/index.php?page=sidang.PutusanPerkara&id=1&aw=1&ak=11&kat=1

English translations of decisions of the Constitutional Court are available on the Court’s website http://www.mahkamahkonstitusi.go.id/index.php?page=website_eng.Home . These include some high-profile decisions since 2003, such as death penalty cases involving terrorism and cross-border drug trafficking. From the English-language version of the home page of the Court’s website, click on the “Advocation” tab, then the “Decision” tab. The downloadable full text English translations of the Court’s opinions are in reverse chronological order.

 

 

Legal Profession

Since the enactment of Law No. of 2003 on Advocate (“Advocate Law”), the existing 8 bar organizations were forced to be merged. The single bar association is named Perhimpunan Advokat Indonesia or PERADI (Indonesian Advocate Association) (www.peradi.or.id). There have been law suits and litigation challenging the legitimacy of Peradi, one of them is a challenge from the Congress of Indonesian Advocate (Kongres Advokat Indonesia or KAI).

Under the Advocate Law, the following are the requirements [[2]] to be admitted as an advocate:

1. Indonesian National;
2. reside in Indonesia;
3. not having the status of civil servant or public officer;
4. at least 25 years of age;
5. graduated with a bachelor of law degree (qualified degree);
6. having passed the bar exam;
7. two years of internship in law office;
8. never convicted of crime with 5 years or more penalty;
9. good behavior, honest, responsible, and having intact integrity.

 

In addition to the above, PERADI also broadens the internship requirement such as having involved or report on at least 2 civil cases and 1 criminal case.

Foreign lawyers are not allowed to practice Indonesian law. They may work in an Indonesian law firm to provide advice on foreign law only. However, this rule is not strictly upheld. Many foreign lawyers are working in Indonesia and many are representing international firms. They must also comply with several requirements set by the Ministry of Justice, lastly by Minister of Law and Human Rights Decree No M.11-HT.04.02 of 2004 on Requirements and Procedure in Employing Foreign Advocate and Duty to Provide Free Legal Services for Education Purposes and Legal Research.

The issuance o f Rule No. 1/2010 on The Guidelines to Provide Free Legal Aid dated 8 July 2010 by the Indonesian Advocate Association (“PERADI”) as a mandate of Law No. 18/2003 on Advocates dated 5 April 2003 (“Law 18/2003”) and Government Regulation No. 83/2008 on Requirements and Procedures for Provision of Free Legal Aid dated 31 December 2008 (“GR 83/2008”), delegates the obligation to advocates to provide free of charge (pro bono) legal assistance to incapable justice seekers.

To facilitate the provision of pro bono legal assistance more effectively and efficiently, PERADI as the advocacy organization has formed a department called Legal Aid Centre (“PBH PERADI”) in the organization to equip its mission to help those who seek for legal assistance. PBH PERADI could appoint an Advocate to provide pro bono legal assistance to incapable justice seekers, this applies equally to any application or request directly from incapable justice seekers. Besides as an obligation, providing pro bono legal assistance could also be implemented at the initiative of an advocate itself as a form of devotion to the community.

PERADI Rule No. 1/2010 stipulates that advocate are suggested to provide pro bono legal assistance at least 50 hours of work every year. This provision will be used as one of the requirements to obtain or to renew the Advocate Identity Card (“KTPA”) and if advocates could not met this requirement, then the KTPA issuance will be deferred until this requirement is fulfilled.

The original article can be accessed HERE.