The laws as enforced could be called Applied Law. In the real world, laws
don’t depend on statutes but on how they are enforced by police, prosecutors, and
especially by the courts. Law as applied is whatever the police, the prosecutor,
or the judge says it is.
The following articles in the Applied Law chapter discuss several reasons
why laws are enforced differently than written:
Intentional misinterpretation...
Indonesia inherited and then further developed Dutch law, adat or customary
law, and post-Independence law without the benefit of law-makers or law institutions
well-trained in law. The actual meaning of many regulations is doubtful
partly because the statutes are poorly written or intentionally vague. But there
is also a long tradition of the law institutions deliberately misinterpreting law.
Throughout the Suharto era, law was often subverted by those in power. In response
to popular criticism, the rubber-stamp legislature frequently passed regulations
with great fanfare to calm public demands, and then the legal institutions promptly
ignored the new laws. The purpose of many governmental decrees was never actually
to implement laws, but only to put them on the books and create the appearance of
change. The tradition of ignoring written law while cooperating with the back-channel
directives of powerful sponsors has a long history.
Despite a new and vigorous democracy in Indonesia, legal institutions have not really
changed that much.
Legal disorder...
Indonesia was called “a vast and extensive jungle of law” before the end of the
Suharto regime, but the situation has since become worse.
With the advent of democracy in 1999, many powers previously held by the central
government in Jakarta devolved to the provinces and smaller
administrative units which were empowered to enact their own laws. They have done
this with great enthusiasm. There is little effective regulation of these laws by
the central government, and the legal chaos in regional governments is becoming
rapidly worse.
Even for major corporations headquartered in Jakarta, local laws sometimes cause
headaches for operations in other provinces. But Indonesians and expatriates living
in the provinces can be even more severely impacted by arbitrary, sometimes even
apparently unconstitutional, regional laws affecting marriage, children, civil rights,
and property ownership. The fact that a regional law is unconstitutional does not
mean that appeal to the Mahkamah Agung—the Supreme Court—in Jakarta, will overturn
it.
Weak precedent...
Expatriates often make the mistake of assuming that past court rulings are good
indications of future court rulings on the same issues. Not necessarily true.
One reason for this is the inheritance of the Civil Law tradition from
the Dutch. Under Civil Law, and even more so for Indonesia, the concept of
judicial precedent is weak, so a decision in Surabaya is no guarantee that an identical
case in Denpasar will end the same way. Even the same judge may deliver two entirely
different decisions under identical circumstances.
When expatriates or Indonesians debate the meaning of laws on marriage or property
ownership, they often look for examples to prove their point. The first problem,
of course, is that the law is sufficiently unclear that there should be any need
for debate.
But then the fact that one foreigner “owns” property, while another has been blocked
has nothing to do with underlying laws, but with the application of laws. Comparing
cases is probably more useful than reading the entrails of chickens, but using precedent
as a basis for statements about the application of law is poor support.