Law as Enforced

Law as enforced is not always law as written...


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.

For a sad example of this principle, see the case of Hotasi Nababan.

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.


A complication for expatriates experiencing Indonesian law is that government announcements of law are not always enabled in practice.

An academic article by Dr. Simon Butt of the Sydney Law School, University of Sydney examines THE POSITION OF INTERNATIONAL LAW WITHIN THE INDONESIAN LEGAL SYSTEM (The complete paper is available HERE).


Indonesia’s role in international and regional affairs has increased markedly since the fall of Soeharto in 1998. It has, for example, signed many international treaties. However, Indonesian law is silent on the position of international law, whether treaty or custom, in Indonesia’s legal system. This has led to a significant unresolved legal debate about whether Indonesia follows monism or dualism.

This Article argues that, while Indonesia appears to be dualist in practice, there is some evidence of monism, particularly in the decisions of Indonesia’s Constitutional and Supreme Courts. Regardless, the uncertainty has allowed the Indonesian government to, on the one hand, leave the international community to believe that ratified treaties have automatic application, but on the other hand, to refuse to grant any rights to citizens that those international treaties seek to provide, claiming that treaties have no domestic application until incorporated by an Indonesian legal instrument.


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.