The Indonesian Legal System (ILS): A Comparative Perspective

9 March 2013
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The Indonesian Legal System (ILS): A Comparative Perspective
By Akhmad Safik
Whereas the legal families taxonomy departs from the Western perspective of major world legal system, Örücü’s family tree taxonomy provides a much detailed and comprehensive approach to explain a comparative perspective on ILS in which Romano-Dutch legal system, customary law and Islamic law system are intertwine in harmony. Furthermore, in most recent years, principles of US Common Law have been adopted in many laws pertaining with businesses and economic activities.
Prior to the Dutch colonization, vast majority of Indonesian natives had applied customary law. The law is mostly unwritten rules that are based upon the unique collectivism values of Indonesian native people. The role of customary law was deeply studied by legal scholars from the Dutch. Van Vollenhoven, who is considered the pioneer on customary law or “adatrecht” studies, divides the Indonesian archipelago up into nineteen geographical areas of jurisdiction. Another prominent legal scholar, Ter Haar, who authors “Adat Law in Indonesia”, describes that the law area is a cultural-geographic unit that have culturally homogenous societies, distinctive features of social organization that can be differentiated from other communities of all other areas.
Unfortunately, the existence of customary law as part of the world legal system is not included in the legal families of David and Brierley even though it has been living for centuries and adopted by vast majority of people in Asia and Africa. Perhaps what Harding says about the “legal families trap” that could be implied by the Eurocentric approach is a reasonable opinion; especially, when people discuss legal system in Southeast Asia. Another factor that could mislead legal system identification is the notion that David and Brierley emphasize that “law as rules” rather than “law as culture”. In more detailed explanation, Friedman also concludes that legal system consists of legal structure, legal substance and legal culture.
Because of the predominant position of Roman-Dutch law, Indonesia is often perceived as a Civil Law country. This statement is based upon the fact that Indonesia had been ruled by the Dutch since late 16th century until the middle of 20th century. After the Dutch established its political and economic power Indonesia (East Indies), they began applying the Roman-Dutch law under the Concordance principle. The law policy began to take shape in 1848, when the Dutch colonial government started to codify laws by enacting Civil Code (Burgerlijk Wetboek) and Commercial Code (Wetboek van Koopenhandel) for Europeans in Indonesia, which were basically a duplication of the same codes that had been enacted in the Netherland in 1838. The two codes were then followed by an enactment of the two Criminal Codes, which one was applicable to Europeans and the other was applicable to the Indonesian natives and those who were treated as the natives.
As a result, all persons who were living in Indonesia at that time classified by three different groups and were subject to different legal systems: First, Europeans, which include Dutchmen, all other persons whose origins are European, Japanese and other similar peoples. Second, Indonesian natives, that consist of indigenous people who live in Indonesia archipelago except those who were legally transferred to the other group. Third, all the persons not included in the European or native group. For instance: Chinese, Arab, Indian and Pakistan, etc. Consequently, “intergroup law” (“intergentiel recht”) was another law established to regulate a legal relationship between people from different groups.
The existing interaction of people from different group with different legal system indicates that the assumption offered by Örücü that many legal systems are mixing is definitely right. In the case of ILS, the Romanic-Dutch law, customary law, and Islamic law have been living side by side for centuries in Indonesia and it has created a unique type of legal system that cannot be put easily in the legal families of David and Brierley.
Meanwhile, the Indonesian Basic Agrarian law (BAL) was enacted in 1960, which is mainly intended to develop a unified land law system in Indonesia. Interestingly, it is theoretically based upon customary law. Despite that fact that the law replaced some provisions relating to land in the Indonesian Civil Code, it is still maintaining recognition of “western land”. Furthermore, Fitzpatrick elaborates that the types of land rights established by the BAL are originally Western in nature.
Islamic law has been adopted by Indonesian people and spread by the Islamic Sultanate that had ruled Indonesia for a long time before the arrival of the Dutch. Islamic law is the bedrock of some important laws such as Indonesian marriage law, Islamic banking law, Islamic court law, waqf, and zakat law. Due to the decentralization policy in Indonesia, the Special Region of Banda Aceh in northern part of Sumatra Island was granted a special authority to impose Syariah law.
The tree legal systems have been coexisting side by side over the centuries. In addition, many principles of US Common Law have also been adopted by ILS, especially, after the reform era, started in 1998. The consumer protection law, environmental law, antitrust law, company law, and investment law are among the laws that have adopted the principles. For instance, adoption of class action in Environmental law of 1997 and principles of per se illegal and rule of reason in Indonesian Competition law of 1999.
In turn, this analysis indicates that the mixed legal system is living and will be still growing in Indonesia. Consequently, instead of the legal families approach, Örücü’s legal family trees’ taxonomy is very persuasive to understand a dynamic and pluralistic legal system in Indonesia that could also lead to another new form of legal system in the future.