By Shidarta
This article has been published in the digest of "Law, Society & Development" (LSD) Vol. II No. 2 April-July 2008, pp. 3-6.The digest is published as one of the activities in alliance building, a joint effort between the Law and Society Program-Faculty of Law Universitas Indonesia, Center for Women and Gender Studies Universitas Indonesia, HuMA, and Van Vollenhoven Institute, Faculty of Law Leiden University. The author has given the permission to Prof. Dr. Jan Michiel Otto of Leiden University to refer to this article in his writing entitled "Bringing A Sense of Unity to Legal Science in Indonesia: A Tribute to Prof. Arief Sidharta" (Bandung: Refika Aditama, 2008, pp. 3-6).
Introduction
There has been a classical debate on whether legal studies qualify as a science. Paul Scholten, for example, includes legal studies as part of science, while Langemeijer thinks otherwise[1]. Such a debate relfects the presence of various approaches in legal scholarship, done either by legal academics and practitioners outside the academy.
The following essay will briefly describe the position of legal science in the legal discipline. The presence of legal science is related to its workings, which in turn also affects the substance and methods used in legal studies in the university level.
Legal Pluralism: The Dilemma in the Indonesian Legal System
By Shidarta
This paper was presented by the author in the ASLI Conference at the National University of Singapore in May 2008. The author has given Dr. Sarah Waddell permission to provide this paper as the material on the subject of Indonesian law for her students at the University of New South Wales, Sydney.
Introduction
Although the term “legal pluralism” is widely used since the early 20th century, in many cases it is very possible to be differently interpreted and applied. They may acknowledge legal pluralism as plural nature of law, multilegalism, a variety of interacting and competing normative orders, or a co-existence of different legal system in the same situation within a society.
As a home of more than 220 million in population, Indonesia is indeed a land of pluralism par excellence. The pluralistic characteristics also occur in the domain of law. For centuries, western legal orders as well as Islamic teachings and adat laws[1] have influenced Indonesian legal system. They have been changing the system of law all the time so that nowadays it tends to be more and more pluralistic. The practices of local autonomy and the creeping introduction of sharia ordinances at local and district levels also contribute to this phenomenon.
On the other hand, since the day of independence, there has been a spirit to develop one-single national legal system for the whole country. Based on this spirit, legislation should be controlled by the central government and always considered the most important formal legal source. To maintain the spirit, Law No. 10 Year 2004 concerning the Law Making System of Legislation is stipulated. Accordingly, the lowest hierarchy of legislation as mentioned in Law No. 10 Year 2004 is the village regulation in which adat law or customary law can be its main substance.
This article is aimed to overview the condition of legal pluralism in Indonesia and its correlation to the idea in creating one-single national legal system as sparked during the Old Order and New Order eras. The problem seems to intrigue, especially in the midst of the changing Indonesia.
Legal Pluralism in Indonesia
“To speak of the Indonesian language is nonsense, but to speak of Indonesian law makes quite good sense,” said Cornelis van Vollenhoven in 1920.[2] He assumed that there were about 19 typical ethnic regions in this country[3] and that's why Indonesia would never have one single national language. But, thanks to the intervention of western legal tradition, he was very sure that this country could have someday its own one centralised legal system. Nowadays we see that Vollenhoven's prediction is totally in contradiction with the fact in which Indonesian language has already become one-single reputable national language, but such an achievement in legal syatem appears to be far away.
Since the day of Independence, Indonesia has been trying to develop its own legal system. With the spirit of anti-colonialization, at the beginning, Indonesian people were committed to demolish all legal traditions derived from the period of Dutch colonial administration and starting to develop a new tradition of law. This attempt can be deemed “unsuccessful” as more than 300 regulation produced during the Dutch colonial period still exist up to now.
The idea of building the one national legal system is very intriguing effort for a vast country like Indonesia. Any formal ruler who governs such a country needs a good instrument in a bid to unify the whole things into one single system. The best instrument is only the formalized-positive law functioning as the social order or social control.
It was Dutch-Indies government who brought for the first time the idea of a centralized national law in Indonesia. From the middle of 19th century up to the beginning of 20th century, the Dutch-Indies government decided to implement the Dutch's civil law in Indonesia. This law had been codified by using Napoleon Code as a model. Soon afterwards, strong criticism came to the government. Cornelis van Vollenhoven was one of the leading critics in term of this idea. His position could be articulated as “geen juristenrecht voor de inlanders”. It means that any law which was only understood by legal experts could not be applicable among indegenous people since they had already owned their traditional laws as used in their daily lives. Vollenhoven suggested legal experts at that time to learn these traditional laws very carefully and asked the government to allow these laws for being transformed into formal legislation.
Ter Haar continued the stand point of his predecessor, Vollenhoven. With the assistance of his students at the Batavia High School of Law (Rechtshogeschool te Batavia), Ter Haar started to compile traditional laws scattering in many parts of Indonesia. Ter Haar selected these traditional laws and only labelled a few of them as “adat laws” (the term initially was given by a prominent anthropologist Snouck-Hurgronje). In Ter Haar's opinion, adat laws were identical with decisions made by informal leaders. Such decisions should be related to living tradition in a certain ethnic group.
Many parts of his compilation on adat laws had been published in newspapers, law journals, and sometimes also in books.[4] These publications were given a warm welcome by judges in colonial judiciary instititions. Before then, they did not have any written reference in order to settle legal disputes among indigenous people. Afterwards, many judges could adjust their decisions based on “adat laws” although some of them were not in line anymore with the statutory laws at that time.
So, there was a tendency during the Dutch colonial period to recognize adat law as one of living laws in Indonesia. At the same time, the colonial government also realized that besides adat law there were some other legal sources enforcable among Indonesian communities. Adat law itself sometimes emerged and mingled with the teachings of religon. As most of the population of this country were Moslems, directly or indirectly they also adopted Islamic law as their unseparable way of life. The same situation also happened in several regions with people related to other religions such as Hinduism in Bali or Christianism in Maluku or North Sulawesi. Although there are some polemics regarding the connection between adat law and religion law (especially Islamic law), undeniably in many cases both of them (adat and religion) could not easily be separated.
A hybrid law between adat and Islam is in reality in Aceh. The Dutch colonial government's policy put Islamic law into effect for Moslems in Aceh based on Snouck Hurgronje's anthropoligical research. He concluded that the Islamic law which was applied in Aceh was not pure anymore, but it had been incoporated into adat law. This conclusion was known as the theory of receptie. This theory put Islamic law as a subordinate compared to adat law.
The receptie theory was seriously chalenged by many Islamic law experts, but supprisingly not by experts from other religions. In the post-independence Indonesia, one of prominent figures in Islamic law, Hazairin, said that Snouck's theory was tendentious because its intent was to discontinue the use of the Islamic law which had been in customary use among residents. As an expert in Islamic studies, Snouck knew the true position of adat law in the context of Islamic law, but he intentionally coined a new understanding in order to divert attention away from the Islamic law which the majority of the residents adhered to. For this reason, Hazairin called the receptie theory the “devil theory”, because the devil is a crature whose nature is to use deception to send mankind astray.[5] Hazairin's opinion is also known as the receptio a contrario theory.
The receptie theory was introduced by Snouck Hurgronje as a refutation to the previous theory of C.F. Winter, Salomon Keyzer, and L.W.C. van den Berg, called the receptio in complexu theory. They were convinced that the living law applied by indigenous people was not developed from their adat law, but from the law of their religion. This theory did not apply only for Moslems but also for those who followed Hinduism and Christianity.[6]
The Dutch colonial government adopted the receptio in complexu theory as stated in the regulation entitled the Reglement op het Beleid der Regering van Nederland Indie (State Gazette Year 1854 No. 129 and S. 1855 No. 2). Based on this regulation, the colonial government only acknowledged two binding legal sources, namely religious law and western law. The position of the former was lower than the latter. Meanwhile, adat law itself was regarded as no existing law anymore since it had been adopted in religious law.
Although the receptio in complexu theory was critized by many parties, it could enforce in quite a long time before the Dutch colonial government set another regulation to subtitute the Reglement op het Beleid der Regering van Nederland Indie. The new regulation was called the Indische Staatsregeling (S. 1925 No. 447). This regulation divided the people who lived in this country into three groups. For each group, there was a different law applicable repectively. For westerners who lived in Indonesia during that time, Dutch law was a mandatory legal system to be applied. The strange part of it was the status for Japanese who stayed in Indonesia. Due to their economic prestige, Japanese were acknowledged having the same legal status as the westerners. Other than Japanese, all Asians and Africans were classified as foreign easterners to whom their own traditional laws applied. Finally, for native Indonesians, their respective adat laws used to enforce.
Native Indonesians or foregin easterners were allowed to comply with western law. It could happen when they thought their own laws were not suitable to be used in certain cases. The condition was different for western people if they wanted to use the laws for foregin easterns or native Indonesians. The government put western law in the highest place and the native Indonesian law in the lowest. It means, they might upgrade to the higher status of law, but not the other way.
After the Indonesian independence, there was a spirit to demolish this condition and wanted to uphold one single Indonesian national legal system. There were several occations that Islamic law was promoted as an alternative, but they were no to avail.
The recognition of the application of adat law was also growing in many parts of Indonesia, particulary in relation to communal rights in land occupation. Law on agrarian (Law No. 5 Year 1960) adopts the domain theory stating that the communal right was limited only to the land that was used effectively by the community, such as for dwelling place, paddy fields, grassland and place for collecting forest products. Lands' occupation for other than those proposes are considered the state lands.[7] Such a claim makes never-ending controversies over land management in this country ever since.
Either President Soekarno (Old Order Regime) or Soeharto (New Order Regime) ruled out the ideas to adopt Islamic laws and adat laws as such without formulating them in the form of national legislation through a lawmaking process. Especially during the era of Soeharto, all effort to develop national legal system should be placed in the context of national development in general. The doctrine of functioning law as a tool of social engineering was introduced and it seemed quite workable at first.
Islamic law, adat law, and western law can be viewed as elements in building national legal system. These elements are non-state laws and are only considered the possible and potential origins of the national law so that they have no priority to be developed by the state. Sunaryati Hartono, a former Chairwoman of the National Law Development Agency (BPHN) and a professor of law at Bandung based Padjadjaran University, confirmed this idea.[8]
No doubt, she believes that national law should be placed in the first rank.[9] There is a possibility that two or more legal systems coexist in the same area, but others (except the national law) should be put as subordinate legal systems. John Griffiths calls this situation as a weak legal pluralism.[10] Sunaryati says that the typical colonial legal system as stated in the Indische Staatsregeling has been demolished since Pancasila (five basic principles as national ideology) replaced it after Indonesia gained its independence. Afterwards, we just embrace the one-single national law. Other laws such as adat law, Islamic law, and western law can exist as far as they are adopted by the legislature into the national law.
Unfortunately, Sunaryati's optimism over the one-single national law is not really happening in our legal system nowadays. There is a belief that such a way of thinking is not relevant with the real conditions of Indonesian pluralistic societies.
A more relevant description comes from Bernard Arief Sidharta, a professor of Bandung-based Parahyangan University Faculty of Law. According to Arief, our national legal system is existed with continuous influences which come across from either internal or external area of the national law. He also illustrates the national legal system like Sunaryati does in which several layers are put in harmony. Arief assumes that there are constant outward and inward movements as the legal system changes all the time along with the changes of societies where the law takes place.[11]
The highest level of legal source is put in the deepest layer. It is the fundamental thought of law (rechtsidee) called Pancasila. The second highest layer is instituted by national legal principles. Positive legal norms stay in the third layer meanwhile the outer layer is placed by behaviors and/or legal practices. The last mentioned layer has a very close relationship with the fields of politics, economy, social, culture, and technology as the foundations and composition of all the living society.
Despite its civil law tradition, the Indonesian legal system is growing to adapt more and more to the common law tradition in its legal substance. For instance, "wali amanat" which is introduced nowadays in the area of corporate law is adopted from a similar institution (pranata), namely trusteeship, in common law tradition.
So, there are inward movements (centripetal forces) from other legal traditions bringing their legal institutions (pranata-pranata hukum) into Indonesian law. The adoption of common law institutions may occur when such intitutions do not exist in Indonesian law. On the other hand, the Indonesian legal system often has to develop a particular legal institution based on a similar one that has been existing in other countries. We call such a process as a legal adaptation.
The moving process, either outward (centrifugal) or inward (centripetal) is very common in legal development. As the sole country having a civil law tradition in the South-East region, Indonesia has to cooperate with its neighbors in terms of law and other matters. Some significant cooperations in law have already been made between Indonesia and Germany (especially in competition law), or Indonesia and the US (especially in intellectual property law), based on their respective interests and mutual benefits.
Peter de Cruz gives another example in which it engaged three legal systems of the United Kingdom, France, and Germany. He says as follows:[12]
"Of course, recent trends have indicated that the common law and civil law systems have been coming closer together in their use of cases and statutes. The United Kingdom Children Act 1989, which came into force in October, 1991, while incidentally consolidating and integrating certain existing case-derived rules and statutes, was enacted predominantly to effect 'the most comprehensive and far-reaching reform of English child care law ever introduced' into the United Kingdom in the 20th century. . . . On the other hand, civil law system, particularly France and Germany, have begun to rely more and more on cases where, for example, the enacted or codified law has been found deficient in any way."
The excerpt shows that the close co-operation between common law system and civil law system, in particular, becomes more frequent in the future. Indonesian legal system cannot avoid from such a condition in terms of global relationships.
Law No. 10 Year 2004
The importance of legislation in the Indonesian national legal system is accentuated in Law No. 10 Year 2004 concerning the Lawmaking System of Legislation. It is one of organic legislation because it was stipulated due to the special command of the Constitution. The substances of this law substitute those in the People's Consultative Assembly (MPR) Decree No. II/MPR/2000. This decree contains the regulation of legal sources and the hierarchy of legislation in Indonesian law (Note: Nowadays, Law No. 10 Year 2004 has been replaced by Law No. 12 Year 2011).
Referring to the hierarchy of law, MPR decree takes a higher position rather than any statute. It means Law No. 10 Year 2004 actually cannot abolish the existence of MPR Decree No. II/MPR/2000. This is absolutely in line with the legal principle stating "lex superior derogat legi inferiori." But, the MPR itself had declared in the decree that the substance of this decree would be annulled if the statute on this matter has come into existence. Indeed, such a style of language is bizarre in legal drafting.
However, there are some clues on the importance of legal pluralism as regulated in Law No. 10 Year 2004. According to this statute, the ranks of legislation in Indonesian legal system is stated as follows:
1. the 1945 Constitution;
2. statute or government regulation in lieu of statute;
3. government regulation;
4. presidential regulation;
5. regional regulation.
Regional regulation can be emerged in three levels, province (provinsi), region/city (kabupaten/kota), and village (desa). Accordingly, there are three kinds of regulation: (1) provincial regulation, (2) regulation of the regent/mayor, and (3) village-governmental regulation. The existence of village-governmental regulation can be deemed as a breakthrough in Indonesian legal system in order to give more access for living law. The intention is very simple. By setting up village regulation, it assumes that lawmaking process will involve as many people as possible through the bottom-up approach. Unfortunately, Law No. 10 Year 2004 gives some ambiguities on this matter.
In the provinces of Aceh and Papua, the Provincial House of Representatives along with the governors may set up regulations based on the living laws practiced in their respective regions. The legislation in Aceh is called as Qanun. In Papua, they call it as Peraturan Daerah Khusus (Perdasus) or Peraturan Daerah Provinsi (Perdasi). These regulations can be described by other lower legislations, including by village regulations.
Article 7 of Law No. 10 Year 2004 underscores, “Village regulation or other possible names at the same level, is formulated by the board of village representatives or other possible names along with head of village or other possible names.” Based on this statement, head of village will play very significant role in determining the implementation of village regulation. In a particular community in where adat remains enforceable in people's daily activities, such a mechanism relying on the role of formal leader can be an obstacle.
Formal leaders always refer the authority to their superiors. If they make a regulation, they want to secure that its substance will conform to the higher legislations. By putting village regulation at the lowest rank in the hierarchy of legislations, the law makers intended to control the substance as well as the validation of this kind of legislation. If the substance of a village regulation is considered contradictory to provincial regulation or regulation of the regent, it can be annulled.
In practice, the function of heads of village can not be generalized as the same throughout the country. In West Sumatera, for instance, they acknowledge peraturan nagari, but it is not totally simillar with peraturan desa (village regulation) as mentioned in Law No. 10 Year 2004. Peraturan nagari is made from the spirit of adat law. Its substance may be not in agreement with the higher legislation, such as provincial regulation. The higher legislation may be set up based on general purposes, not only for the adat community.
To avoid the contradiction between state law and adat law, the adat community prefer not to formulate the regulation in the form of peraturan desa or even, peraturan nagari. They choose to express their intent by not creating any regulation that can be considered a state-law. Because, any state law should rely and depend on the formal goverment.[13]
As pointed out by Benda-Beckmann, all the problems as above-mentioned began when Law on Local Government of 1979 was implemented in West Sumatra. This law introduced the Javanese model of the village (desa) as the lowest local government unit as the standard throughout Indonesia. In this province, it was effectively applied in 1983. The desa were in the first instance based on the village wards (jorong), an adat subdivision of the nagari. In West Sumatra it meant that the nagari were split up into several desa, from previously 534 nagari became 3.516 desa. The reason for this adoption was the new law allocated a development grant to each village. As the nagari were substantially larger than villages elsewhere in Indonesia, West Sumatra would financially disadvantaged if it would simply convert one nagari into one desa. It soom became obvious that many desa were too small and had too few inhabitans to be feasible administrative units. In a later phase in 1988/89, therefore, the number of desa was reduced by joining adjacent desa to form a new one. Afterwards, there remained approximately 1.700 desa.[14]
Benda-Beckmann described that nowadays many local politicans and traditional village leaders claimed that local goverment should “return to nagari”. It was generally held that the desa system had not function well, that it had destroyed adat, the unity of the nagari population and eroded the authority of the elders over the young. This movement gained a success in 2000 when the province enacted a Provincial Regulation on Nagari Government. The regulation provides for an initial return to the nagari in their territorial boundaries before 1979. But, at the same time, there is opposition from desa heads who had also established an orgnization called Forum Komunikasi Kepala Desa. This organization originally vehemently opposed the return to the nagari.[15]
On the other hand, according to Law No. 32 Year 2004 on Local Autonomy, law enforcement of any regional regulation always involve the formal agencies such as police or administrative officials. Nonformal leaders in that society do not involve anymore to control the implementation of this regulation. That is why in many cases, village regulation as stipulated in Law No. 10 Year 2004 is not an appropriate way to enhance the development of adat law in Indonesia. The spirit of Law No. 10 Year 2004 is still the same with the era of centralized legislation as of Soekarno's or Soeharto's governance.
The current form of adat law can be labelled as customary law although not every customary laws is derived from adat. Customary law is originated from custom or regular behaviors. Not every custom is able to transform itself becoming a customary law.[16] On the other hand, in the Indonesian positive law, a customary law can not automatically become the legal source.
All of this remind us with Article 15 of the Algemene Bepalingen van Wetgeving voor Indonesië (the General Rules of Legislation for Indonesia), the regulation that has been promulgated since the Dutch colonial period. It articulates: "Behoudens de uitzonderingen omtrent de Indonesiërs en daarmee gelijkgestelde personen vastgesteld, geeft gewoonte geen regt, dan alleen wanneer de wet daarop verwijst," which means that apart from some exceptions for native Indonesians and others who are legally equal (with them), no custom can be applied as law for those people except the custom is already determined as law in certain legislation. This article ascertains that custom is a formal source of law but its status is lower than the legislation. Article 15 of AB signals Legal Positivism way of thinking. The same spirit also emanates from the 1945 Constitution 1945 as stated in Article 18-B.
From this point of view, Law No. 10 Year 2004 accentuates the condition that every law should be put first as the positive law. It means non-state laws can be raised to the status of state law only if they are accomodated into legislation. The non-states laws may come from any origins, such as adat law, Islamic law, western law inherited from the Dutch colonial period, or the last but not least: modern customs as practised by other nationals either those from civil law or common law countries.
Dilemma
Such an idea of centralization cannot be separated from the historical background of Indonesian law. As one of the ex-colonialized countries, Indonesia inherits mostly its legal tradition from the Dutch colonial administration. Dutch itself took it over from France.
The idea to unify national legal system in France began in the 19th century after Napoleon ordered a state committee to compose three legal codes. These codifications did not raise any significant difficulties among the people because what the substances of the Napoleon Codes had already existed in the France society. There was no gap between folklaw and state law. When the principle of ignoratio juris (everybody is deemed as if he knew about any law) was implemented regarding the three codes of law, almost no objection appeared at that time.
The problems appeared when this idea was tried to transplant into Austrian and German legal systems. The hardest reaction came from Friedrich Karl von Savigny of Germany. Through his pamphlef entitled “Of the Vocation of Our Age for Legislation and Jurisprudence", he critized the idea of Professor Thibaut to codify German civil law by imitating the Napoleon Codes. In 1814 Thibaut launched this idea in a bid to curb the problem of legal pluralism in Germany. In his opinion, the legal pluralism had dettered Germany to gain a big progress in modernization.
Georg Friedrich Puchta supported Savigny's stance on this matter. He was convinced that law is like another living organism. It is alive and grows like human languages. As mentioned by Savigny several times, that every law does not need to be created or engineered. The development of this system will be undeliberately coined with the spirit of the people. Every people have their own spirit (Volksgeist). So, to adopt another national legal system and transfer it directly to certain nation, it is absolutely careless.
In Austria, Eugen Ehrilch shared the same opinion. He saw that the Napoleon Codes or other codes alike would be problematic for the whole Austrian legal system if the codes were not adjustable with the living law. There have been cultural gaps between different systems of law. It is Robert Seidman later on, introduced the theory of the non-transferable law to emphasize his objection on that idea.
The problems facing Indonesia now is likely more similiar to Germany and Austria rather than France in the 19th century.[17] But, the mainstream of legal thinking in Indonesia corresponds to Puchta's point of view.
Nowadays, it is very obvious to see the gradual shift from legal centralism flourished during the Soeharto's regime to legal pluralism in many parts of this country. On the other hand, for the sake of the unitary of Indonesia, the national law still maintains the leading position among non-state laws. This perspective refers to the concept of relative legal pluralism (following Vanderlinden) or weak legal pluralism (J. Griffith). This is not a novel condition as the Dutch colonial goverment had accomodated such an idea since a long time. This tendency can be observed as well from the Law No. 10 Year 2004. From this perspective, the so called “national law” is merely any law that had been produced through national legislation policies. Regardless of their origin, if they are formulated in the form of national legislation through a designated lawmaking process, the result will be the national law. What they consider national law should be put in the highest position among any other legal systems existing in the society. Finally, only state law is considered official and it always reflects a modern law vis a vis non-state law, including adat law, customary law, folk law, people's law, tribal law, and any other given labels.
We can get the perspective by putting Islamic law as an example of non-state law. There has been two tendencies in use among legal experts in analyzing the relationship between national law and Islamic law. The first tendency is that Islamic law has to be applied to Moslem citizens. The second one is that the substance of Islamic law has to be incorporated in Indonesian legislation without being labeled as Islamic, so that it becomes binding on all citizens regardless of religion. According to Hazairin, this second tendency in the development of Islamic law in Indonesia began during the onset of the proclamation of national independence to last to this day.[18] Law No. 1 Year 1974 on Marriage, is a good illustration of this tendency.
However, the current condition after the collaps of the New Order regime possibly has changed this tendency. In many regions, there is a trend to uphold the first approach as mentioned by Hazairin. It started from Aceh. For those who are resided in Aceh province and commited a particular minor crime in that area, the enfocement of the Criminal Code can be neglected because jinayah (Islamic criminal law) gets the priority to be implemented.
According to Article 129 of Law No. 11 Year 2006 on the Governance of Aceh, in case two or more people do together a certain jinayah, and if there is a person among them who is not a Moslem, he/she can voluntarily choose to be treated with jinayah law or not. If not, of course the national criminal law as mainly stated in the Criminal Code should be implemented. But, if the crime is only regulated in jinayah law (there is no such a crime stipulated in the Criminal Code or any other national legislation), the person who committed the crime should follow the jinayah law, regardless of his/her religion. For any Aceh resident who committed jinayah outside the province of Aceh, will be treated in accordance with the Criminal Code.
In other provinces, there also similar attempts to legislate in the form of a provincial regulation or regulation of the regent/mayor on certain “social illnesses”, such as prostitution and gambling. They always say that the idea of forming such legislations come from the aspiration of local communities based on religious teachings or certain-typical adat law. But, the interpretation of “based on adat” or “based on religion” is dubious sometimes. It quite often, the regulation that has been promulgated by a local government should be withdrawn due to many criticisms coming from formal leaders or politicians in the higher levels.
So, there is a big dillema in developing the Indonesian national law if the concept of law is still rely on the idea to create one single-national legal system, meanwhile, as the implementation of a broader local autonomy moves on in Indonesia, there have been a lot of pressures to accomodate religious teaching as well as adat law into regional or national legislations. Unfortunately, this trend will lead the legal system to become more traditional rather than modern. It occurs because not many aspects in adat or religious teaching in Indonesia has been deeply elaborated and adapted in order to serve the modern needs of society.[19]
Such an idea of centralization cannot be separated from the historical background of Indonesian law. As one of the ex-colonialized countries, Indonesia inherits mostly its legal tradition from the Dutch colonial administration. Dutch itself took it over from France.
The idea to unify national legal system in France began in the 19th century after Napoleon ordered a state committee to compose three legal codes. These codifications did not raise any significant difficulties among the people because what the substances of the Napoleon Codes had already existed in the France society. There was no gap between folklaw and state law. When the principle of ignoratio juris (everybody is deemed as if he knew about any law) was implemented regarding the three codes of law, almost no objection appeared at that time.
The problems appeared when this idea was tried to transplant into Austrian and German legal systems. The hardest reaction came from Friedrich Karl von Savigny of Germany. Through his pamphlef entitled “Of the Vocation of Our Age for Legislation and Jurisprudence", he critized the idea of Professor Thibaut to codify German civil law by imitating the Napoleon Codes. In 1814 Thibaut launched this idea in a bid to curb the problem of legal pluralism in Germany. In his opinion, the legal pluralism had dettered Germany to gain a big progress in modernization.
Georg Friedrich Puchta supported Savigny's stance on this matter. He was convinced that law is like another living organism. It is alive and grows like human languages. As mentioned by Savigny several times, that every law does not need to be created or engineered. The development of this system will be undeliberately coined with the spirit of the people. Every people have their own spirit (Volksgeist). So, to adopt another national legal system and transfer it directly to certain nation, it is absolutely careless.
In Austria, Eugen Ehrilch shared the same opinion. He saw that the Napoleon Codes or other codes alike would be problematic for the whole Austrian legal system if the codes were not adjustable with the living law. There have been cultural gaps between different systems of law. It is Robert Seidman later on, introduced the theory of the non-transferable law to emphasize his objection on that idea.
The problems facing Indonesia now is likely more similiar to Germany and Austria rather than France in the 19th century.[17] But, the mainstream of legal thinking in Indonesia corresponds to Puchta's point of view.
Nowadays, it is very obvious to see the gradual shift from legal centralism flourished during the Soeharto's regime to legal pluralism in many parts of this country. On the other hand, for the sake of the unitary of Indonesia, the national law still maintains the leading position among non-state laws. This perspective refers to the concept of relative legal pluralism (following Vanderlinden) or weak legal pluralism (J. Griffith). This is not a novel condition as the Dutch colonial goverment had accomodated such an idea since a long time. This tendency can be observed as well from the Law No. 10 Year 2004. From this perspective, the so called “national law” is merely any law that had been produced through national legislation policies. Regardless of their origin, if they are formulated in the form of national legislation through a designated lawmaking process, the result will be the national law. What they consider national law should be put in the highest position among any other legal systems existing in the society. Finally, only state law is considered official and it always reflects a modern law vis a vis non-state law, including adat law, customary law, folk law, people's law, tribal law, and any other given labels.
We can get the perspective by putting Islamic law as an example of non-state law. There has been two tendencies in use among legal experts in analyzing the relationship between national law and Islamic law. The first tendency is that Islamic law has to be applied to Moslem citizens. The second one is that the substance of Islamic law has to be incorporated in Indonesian legislation without being labeled as Islamic, so that it becomes binding on all citizens regardless of religion. According to Hazairin, this second tendency in the development of Islamic law in Indonesia began during the onset of the proclamation of national independence to last to this day.[18] Law No. 1 Year 1974 on Marriage, is a good illustration of this tendency.
However, the current condition after the collaps of the New Order regime possibly has changed this tendency. In many regions, there is a trend to uphold the first approach as mentioned by Hazairin. It started from Aceh. For those who are resided in Aceh province and commited a particular minor crime in that area, the enfocement of the Criminal Code can be neglected because jinayah (Islamic criminal law) gets the priority to be implemented.
According to Article 129 of Law No. 11 Year 2006 on the Governance of Aceh, in case two or more people do together a certain jinayah, and if there is a person among them who is not a Moslem, he/she can voluntarily choose to be treated with jinayah law or not. If not, of course the national criminal law as mainly stated in the Criminal Code should be implemented. But, if the crime is only regulated in jinayah law (there is no such a crime stipulated in the Criminal Code or any other national legislation), the person who committed the crime should follow the jinayah law, regardless of his/her religion. For any Aceh resident who committed jinayah outside the province of Aceh, will be treated in accordance with the Criminal Code.
In other provinces, there also similar attempts to legislate in the form of a provincial regulation or regulation of the regent/mayor on certain “social illnesses”, such as prostitution and gambling. They always say that the idea of forming such legislations come from the aspiration of local communities based on religious teachings or certain-typical adat law. But, the interpretation of “based on adat” or “based on religion” is dubious sometimes. It quite often, the regulation that has been promulgated by a local government should be withdrawn due to many criticisms coming from formal leaders or politicians in the higher levels.
So, there is a big dillema in developing the Indonesian national law if the concept of law is still rely on the idea to create one single-national legal system, meanwhile, as the implementation of a broader local autonomy moves on in Indonesia, there have been a lot of pressures to accomodate religious teaching as well as adat law into regional or national legislations. Unfortunately, this trend will lead the legal system to become more traditional rather than modern. It occurs because not many aspects in adat or religious teaching in Indonesia has been deeply elaborated and adapted in order to serve the modern needs of society.[19]
Conclusion
As mentioned before, many legal experts still believe that Indonesia needs to establish the more modern kind of legal system by adopting universal values into its national legal system. Regardless of its origins, if they are formulated in the form of national legislation through a lawmaking process in the parliament, then the legislation will be part of Indonesian national law.
As a result, the whole national legal system may develop divergently in focus. If the substances of the legislation have much to do with adat and religious teaching, they will be formulated in the form of local or regional legislations. But, if the contents are neutral, they will be accomodated in the national level of legislations, such as statutes, government regulations in lieu of statute, government regulations, and/or presidential regulation.
The co-existence of legal systems among adat law, religious law, western law, and national law represents a weak legal pluralism in national level and a strong legal pluralism in particular provinces or regions.
Bibliography
Burns, Peter J. The Leiden Legacy: Concepts of Law in Indonesia. Jakarta: Pradnya Paramita, 1999.
Ka'bah, Rifyal. “The Dynamic of Islamic Law in Indonesia.” An essay of Current Issues in Indonesian Law: In honor of Emeritus Professor Daniel S. Lev. Seattle: University of Washington School of Law, 2007), p.159-179
Supomo, R. & R. Djokosutono. Sedjarah Politik Hukum Adat: Masa 1848-1928 (The History of Adat Law Politics). Djakarta: Djambatan, 1954.
Ilmiyah, Nurul. “Customary Law in Indonesia: Continuity and Change.” An essay of Current Issues in Indonesian Law: In honor of Emeritus Professor Daniel S. Lev. Seattle: University of Washington School of Law, 2007, p.181-213.
Shidarta. The Indonesian Formal Legal Sources. Jakarta: UPT Penerbitan Universitas Tarumanagara, 2007.
Shidarta. Karakteristik Penalaran Hukum dalam Konteks Keindonesiaan (The Characteristics of Legal Reasoning in the Indonesian Context). Bandung: Utama, 2006.
Hartono, C.F.G. Sunaryati. Politik Hukum Menuju Satu Sistem Hukum Nasional (Politics of Law towards One-Single National Legal System). Bandung: Alumni, 1991.
Griffiths, John. "What is Legal Pluralism." Journal of Legal Pluralism and Unofficial Law, No. 24/1986.
Sidharta, Bernard Arief. Refleksi tentang Struktur Ilmu Hukum: Sebuah Peneltian tentang Fundasi Kefilsafatan dan Sifat Keilmuan Ilmu Hukum sebagai Landasan Pengembangan Ilmu Hukum Nasional Indonesia (Reflections of the Structure of Legal Science: A Research on the Philosophical fondation and Scientific Charcteristics of Legal Science As the Bases in Developing the Science of the Indonesian National Law). Bandung: Mandar Maju, 2000.
Cruz, Peter de. Comparative Law in A Changing World. London: Cavendish Publishing, 1995.
Lubis, Rifai. “Pluralisme Hukum dalam Pengalaman: Menggugat Kepastian dan Keadilan Sentralisme Hukum” (Legal Pluralism in Experience: to Challenge the Certainty and Fairness of Legal Centralism). Paper, presented in Seminar at Al Azhar University, Jakarta, 21 November 2006.
Benda-Beckmann, Franz v. & Keebet von Benda-Beckmann. Recreating the Nagari: Decentralisation in West Sumatra. Halle/Salle: Max Planck Institute for Social Anthropology, 2001.
Merry, Sally Engle. “Legal Pluralism.” Law and Society Review, Vol. 28/1963.
Mertokusumo, Soedikno. Mengenal Hukum (To Get In Touch with Law). Yogyakarta: Liberty, 1991.
Moore, Sally Falk. Law as Process: An Anthropological Approach. London: Routledge & Keagan Paul, 1983.
Wignjosoebroto, Soetandyo. “Masalah Pluralisme dalam Pemikiran dan Kebijakan Perkembangan Hukum Nasional” (The Pluralism Problems in the thoughts and Policies of the National Law Development). Paper, presented in Seminar at Al Azhar University, Jakarta, 21 November 2006.
Wignjosoebroto, Soetandyo. Dari Hukum Kolonial ke Hukum Nasional: Dinamika Sosial-Politik dalam Perkembangan Hukum di Indonesia (From Colonial Law to National Law: The Dynamic of Socio-Politics in the Legal Development in Indonesia). Jakarta: Rajagrafindo Persada, 1994.
Subscribe to:
Posts (Atom)