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A brief personal explanation might be in order to explain why I welcome, with the greatest of pleasure, the publication of Indonesia: Law and Society.[1] I have been involved in research on Indonesian legal history and the development of ‘national’ law in independent Indonesia for some thirty years and have taught, since 1974, a course on Indonesian law in the postgraduate program of the Faculty of Law at the University of Sydney. During that time I have experienced many difficulties in obtaining reliable information on legal developments in Indonesia, both for myself and for my students. This book will undoubtedly provide a major boost to Indonesian law scholarship and to the teaching of Indonesian law courses in Australian law schools.
The book’s editor, Dr Timothy Lindsey, explains that the idea for the book arose from a conference, ‘Indonesian Law: The First 50 Years’, which was convened by the Asian Law Centre at The University of Melbourne in 1995 and was the first Australian conference exclusively devoted to Indonesian law. Dr Lindsey points out that, during the course of the conference, it became obvious that
although many scholars were actively involved in researching Indonesian law and many had published widely on the specific subjects that interested them, the absence of a general text in English on Indonesian law was an obstacle to scholarship in this area.[2]
Indonesia: Law and Society ‘aims to fill that gap.’[3]
Some of the book’s chapters consist of revised versions of papers presented for the first time at the Asian Law Centre conference. Others are the product of scholars being invited to submit chapters in their area of expertise with the aim of providing an ‘analysis of a representative selection of current issues in Indonesian law’, some being reprints of ‘influential articles in an updated form’.[4] An attempt was made to update contributions to take into account developments flowing from the unexpected resignation of President Soeharto, a problem to which I will return.
The largest single group of contributions, 13 in all, comes from 11 academics in Australian universities. Seven of them teach in law schools. They include M B Hooker, whose scholarship in the field of Indonesian law has been long established, and younger academics with a more recent but growing reputation, such as Daniel Fitzpatrick, Christoph Antons and the editor himself. The others teach in schools concerned with Asian studies, history or commerce. It is pleasing to see that three chapters are written by students at Australian universities, two of them by a senior law student who has also studied law in Indonesia.[5] Australian lawyers have contributed another four chapters. Four chapters are written by academics in the United States, including a chapter by Daniel Lev, whose contributions to Indonesian legal scholarship have been outstanding. The Netherlands is represented by only one contribution, but it comes from Sebastiaan Pompe, who needs no introduction to those who have used his valuable bibliography on Indonesian law.[6] Contributions from Indonesians[7] are limited to chapters by well-known human rights lawyer Todung Mulya Lubis[8] and an anonymous ‘activist’.[9]
The book begins with an interesting foreword by Arief Budiman[10] and is followed by an editorial introduction to Indonesian law. The book itself consists of 27 chapters, representing 24 different authors, divided into seven parts. Part I, ‘Locating Indonesian Law’, contains an editorial introduction to the themes explored in the book and a chapter on the rule of law and economic development in Indonesia. The chapters in Part II, ‘Pluralism and Syncretism: Adat and Syariah’, are on the colonial legal status of the Chinese; land reform; land acquisition; and the state and syariah (‘the whole corpus of Islamic jurisprudence’). Part III, ‘Tradition and Modernity: Sexuality, Marriage and the Law’ deals with adat (‘traditional or customary law’) criminal liability for extra-marital sex; polygamy and mixed marriage; murder, gender and the media; and Islam and medical science.
Part IV, ‘Constitution and Ideology: Negara Hukum and the Politics of Government’, has five chapters on the law-based state and human rights; positivism and romanticism in Indonesian legal thought; a fictitious conversation contributed by an anonymous activist; regional government and central authority; and decentralisation versus administrative courts. Part V, ‘Law in Action: Judges, Lawyers and the State’, consists of chapters on professional lawyers and reform; implementing judicial decisions; the Law on Administrative Justice 1986 (Republic of Indonesia); and Indonesia’s press laws. Part VI, ‘Nationalism and Globalisation: Commercial Regulation’, contains chapters on the transformation of Indonesian commercial contracts and legal advisers; arbitration; intellectual property law reform; and Indonesian Islamic banking. Part VII, ‘Deconstructing the Rule of Law: Human Rights’ has chapters on Indonesia’s Code of Criminal Procedure; political trials; unionism and workers’ rights; and East Timor.
When I first opened Indonesia: Law and Society, I noted that its editor expresses its objectives in two different ways. In one place he sees the book as filling a gap in Indonesian law scholarship caused by the absence of a general text in English on Indonesian law, as being ‘a useful resource for both research and teaching’, and to be used ‘by lawyers as well as scholars working on Indonesia.’[11] Elsewhere, he says that the book attempts ‘to build a framework for understanding the role of the legal system in the imagining of the Indonesian state by reference to disciplines active in Indonesian studies, such as politics, anthropology, sociology and historiography’ with a focus on the concept of the negara hukum (‘nation of law’ or ‘law-based state’).[12]
My own impression is that the second statement better expresses the book’s objectives. It is not, and does not purport to be, a general introduction to Indonesian law, resembling, for example, a revised and expanded version of Sudargo Gautama’s An Introduction to Indonesian Law: Unity in Diversity.[13] Nor does it resemble one of the books on particular legal systems published for ‘foreign’ lawyers, which provide mainly descriptive accounts of a country’s legal system and its criminal, civil and commercial laws.[14]
At the very least, the book succeeds in making available a valuable collection of essays on Indonesian law. Importantly, they discuss not only the rules or ‘text’ but also the ‘context’ in which the rules are interpreted, applied and adjusted to social, political and economic needs and interests. The book uses ‘a combination of textual and contextual approaches to the study of Indonesian law’ and deals ‘with the practices of law to analyse the dynamics of Indonesian society’ under Soeharto, when ‘law was bent by the powerful state functionaries and high military officers working together with the powerful business people’ and ‘the political context of law was actually more important than any existing legal text.’[15] The book’s approach also enables readers to appreciate that the writing of the ‘text’ of Indonesian law has been, and still is, influenced by complex value systems deriving from ‘ancient local traditions and religions’ and that the ‘inherent conflict between state “texts” and “contexts” and alternatives deriving from popular traditions, often sources of resistance, must be a key theme in any reading of Indonesian law.’[16]
When to publish is a dilemma faced by any publisher in an area as dynamic as Indonesian constitutional and legal developments. It could be said that, with hindsight, the ideal time for publishing this book would have been either immediately after the 1995 conference, using the papers presented there, or after the 1999 elections, when a clearer picture may have emerged as to the future development of the Indonesian legal system. Despite its 1999 publication date, the book seems to have been completed around the middle of 1998, making it impossible for recent developments to be covered.
It is, for example, unfortunate that the book could not discuss either the November 1998 Extraordinary Session of the People’s Consultative Assembly (‘MPR’) which, in decreeing guidelines for political reform and the 1999 elections, demonstrated that it need not be a mere tool of the government and could fulfil its intended constitutional role, or the implementation of these guidelines by the House of Representatives (‘DPR’) in 1999. Readers will also not know that the much criticised ‘political laws’ of 1985, discussed in several chapters, have been repealed and replaced by new laws on membership of the MPR and the DPR, elections and political parties.
Proof of the success of political reform is the fact that 48 parties were approved to participate in the 1999 general election. The Armed Forces now have only 38 of the 500 members of the DPR and the MPR is likely to be more representative, its membership being reduced to 700, made up of the 500 DPR members, 135 regional representatives and 65 representatives of social and mass organisations. The prospect of much needed constitutional amendment has been opened up by the repeal of the 1985 law, which had effectively obstructed constitutional amendment by requiring approval at a referendum, although the Constitution merely requires a two-thirds majority of the MPR.
Little need be said as to the obvious value of Indonesia: Law and Society for Indonesian law scholars and scholars in related disciplines. In my capacity as a torts teacher, I would say that the book ‘speaks for itself’. It will provide a veritable storehouse of information and ideas for those working in this area. The contributions are well written and should keep readers fully interested, whether they are reading the book as a whole or dipping into it for their special areas of interest.
It is equally clear that teachers of Indonesian law courses and their students will benefit from Indonesia: Law and Society. Its value to students will vary according to their interests. My postgraduate classes seem to be made up of two groups of students. One group wants a general introduction to Indonesia’s legal system and is interested in its national law policy, its family law, land law, contract law and criminal law, as well as its constitutional and legal institutions. Their interest in commercial law is likely to be satisfied by an introduction to the accelerating pace of Indonesian commercial law reform to meet the needs of a deregulated economy and the demands of the globalised economy. The other group of students wants to learn about the details of Indonesia’s commercial laws on corporations, the capital market, investment, taxation, intellectual property, banking, commercial dispute resolution and many other areas. They do appreciate, however, that they also need to acquire a general understanding of Indonesia’s legal system.
The first group will welcome the publication of Indonesia: Law and Society, as it deals with many of their favourite topics and will assist in their research papers. They will still need additional materials, such as English language translations of Indonesian statutes and detailed descriptive articles on particular areas of the law.[17] The second group will get less value from this book as it does not purport to provide detailed information on their areas of interest. The teacher will have to provide relevant materials or identify sources from which the student can obtain them unless, perhaps, the editor is planning a companion volume, Indonesia: Law and Business. My own preference is to attempt to teach both groups in the one class, requiring all to acquire some understanding of both general and commercial law, but allowing students to undertake their major research project in their chosen area, whether it be on women and the law, law and land development in Jakarta, or recent developments in Indonesian capital markets law.
Those students who have no prior knowledge of Indonesian law will benefit from the editor’s introduction, which ‘aims to provide a broad overview of the development of the Indonesian legal system’.[18] It is a very readable and, within the obvious limitation of nine pages, an accurate review of legal developments in pre-colonial, colonial and independent Indonesia. I would have preferred to find a little more information provided on colonial legal history, because of its continuing importance, and also on the varying phases of Indonesia’s independent national law policy. This is particularly so, as the introduction provides only a modest list of references and has few citations to allow students to follow up the editor’s observations on legal developments spanning many centuries. The only chapter dealing exclusively with legal history is Charles Coppel’s discussion of the colonial legal status of Indonesian Chinese, a rather specialist topic.[19]
Dr Lindsey does explain that the issues addressed in the introduction in general terms are considered in detail elsewhere in the book[20] and he does provide, in the first chapter, an introduction to the themes explored in the book and direction to the chapters where specific issues are discussed in more detail.[21] However, I still believe that a reader with a limited knowledge of Indonesia might have found it easier to obtain basic information in one chapter rather than having to search for it in many. It seems to me, for example, that it would not be easy for a student to obtain conveniently a proper appreciation of the overall role of adat law in Indonesia or information on family law as a whole.
Readers with limited or no knowledge of the Indonesian language will benefit from the redefinition of Indonesian terms in each chapter and the glossary of non-English language terms. All readers will appreciate the book’s table of Indonesian statutes and its reasonably adequate index.
While practising lawyers with clients interested in Indonesia would benefit from reading about Indonesian laws in their political, social and economic context, the book will only be of limited value for professional purposes. They will find little detailed information on the laws relating to contract, property, corporations, the capital market, banking (other than Islamic banking), investment or bankruptcy. This comment is not meant to be critical of the book, as it does not purport to provide coverage of such laws. However, it does indicate that the editor’s claim that the book will fill the gap left by the absence of a ‘general’ text in English on Indonesian law is not to be taken too literally.
Commercial lawyers should be interested in the chapter on the rule of law and economic development by Gary Goodpaster.[22] He explains how Indonesia seems to have transformed itself ‘from a chaotic, colonial collectivity of dubious provenance into an economically successful, modernising state’ without relying on the rule of law in the Western sense or on ‘rule-based behaviour as a means of social ordering, direction and control.’[23] What had been normative in Indonesia was the ‘[r]ule of persons and authority, patronage and tight control of interest groups and potentially competing power centres’.[24] The conditions essential for the rule of law system of governance were lacking in Indonesia. However, Goodpaster argues that Indonesia’s financial crisis has proved that Indonesia now needs a rule of law system of governance in order to advance its society and economy, but he accepts that it will occur incrementally, over a long period, because Indonesia is not yet ready for a global change to a rule of law system. Change in the economic area will occur first in those areas of economic activity where it is in the interest of private parties to have and obey rules.
Veronica Taylor provides an account of how globalisation is transforming Indonesian commercial contracts law and the role of Indonesian lawyers in commercial law matters.[25] Problems experienced by foreign investors are said to stem from the role of the patrimonial state, the colonial contract legacy, the lack of legal infrastructure for dispute resolution and a perception that Indonesian judges handling international commercial transactions are inadequately trained, biased in favour of the Indonesian party, corrupt and inconsistent in their decision-making. Because contracts, seemingly ‘international’, are still, in fact, moulded to some degree by local characteristics and culture, the role of local lawyers has been expanded to include their acting as ‘cultural’ informants and advisers on local government and business practice.
Stephen Green reviews the advantages and disadvantages of attempting to enforce foreign judgments in Indonesia, of using the Indonesian courts, of international arbitration including the recognition and enforcement of foreign awards in Indonesia under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,[26] and of domestic arbitration using the Indonesian National Board of Arbitration.[27] Although there is already considerable published material on these topics in specialist journals, this chapter makes this area of the law available to a wider audience.
Christoph Antons contributes a very thorough and readable account of the intellectual property law reform which Indonesia, largely as a result of increasing international pressure, began in 1982.[28] Details are provided of the new laws on copyright, patents and trade marks and of the regulations implementing them. The chapter concludes with an analysis of the future of intellectual property law in Indonesia after the Agreement Establishing the World Trade Organisation.[29]
Brief reference might be made to some commercial law developments which could not be discussed in the book. Indonesia’s financial crisis has forced Indonesia to amend its old bankruptcy law. It was substantially revised in 1998 and is to be further amended before 2000. In addition, the government is to appoint expert lawyers to the Commercial Court, which supervises the bankruptcy law, to strengthen its independence and to address the perceived lack of expertise of its judges. Commercial lawyers would also be interested in the enactment in 1999 of anti-monopoly and consumer laws, as well as laws on the Central Bank and general banking.
I have outlined the structure and some of the content of Indonesia: Law and Society. I will devote the rest of this review to a brief discussion of the extent to which the various chapters cover key areas of Indonesian law.
Two excellent chapters introduce the reader to the serious legal, social and economic problems caused by the interaction of adat land law and the national Basic Agrarian Law 1960 (Republic of Indonesia) (‘BAL’). Rachel Haverfield’s account concentrates on the impact of the unified law on the traditional community’s right of disposition, but also provides information on adat land law, the BAL and the implementation of Indonesia’s land registration system.[30] She argues that the BAL and land title registration are failed attempts to unify land tenure, the former because it emphasises individual rights rather than the adat law on which it purports to be based, the latter because it ignores, in practice, adat land rights which it is supposed to protect. It is suggested that the historical, geographical and political context of land tenure is too complex to be unified.
Daniel Fitzpatrick reviews Indonesian land acquisition laws and explores the way in which they exemplify Indonesia’s syncretic approach to adat and unified national law, namely, that legal unification should be based on an adat law that does not hamper the development of a just and prosperous society.[31] The laws purport to be ‘modernist’ in so far as they are rule-based and universalist, but ‘Indonesian’ in that they purport to be based on adat law and principles. Fitzpatrick challenges the fundamental assumptions on which they are based. These are that: Indonesian law is best understood through a dualistic division of adat and formal law; unified law and uniform legal consequences may be created through universalist statutes; universalist statutes that syncretically incorporate adat principles into Western-style law best cater for legal unification in Indonesia’s diverse customary environment; and the relationship between formal state law and local practice is now so intertwined and characterised to such an extent by the hegemony of state law and practice that the traditional paradigm of dualism is no longer an accurate basis for analysis of Indonesian law. His views are persuasive and I hope we hear more from him on this topic.
I am surprised that a book on law and society in Indonesia does not contain a more unified account of family law, especially the laws relating to marriage and its consequences, and inheritance. Students tend to be very interested in the blend of laws making up Indonesian family law and in the Marriage Law 1974 (Republic of Indonesia) which nominally unified marriage law but, in practice, allowed the different laws to continue.[32] M B Hooker provides some information on Islamic family law in the chapter discussed below. That chapter seems to be the only one which refers to inheritance law, as the index contains no entry for the topic.
Fortunately, Simon Butt provides some background to the Marriage Law in an excellent chapter on the way in which Indonesian courts, particularly the Supreme Court, have reconciled the Marriage Law with the Islamic law on polygamy and on marriages between Muslims and non-Muslims.[33] He argues that while Muslims may have succeeded in forcing the government to accommodate their interests when the Marriage Law was enacted, recent developments suggest that the state has begun to monopolise Islamic law and the Islamic courts by subjugating them to state-based authority.
Another two chapters discuss what might be considered, in a broad sense, family law. Sebastiaan Pompe discusses an unusual situation which has allowed courts to impose adat law punishment for extra-marital sex even when no offence has been committed under the Criminal Code (Republic of Indonesia).[34] This is because the law provides that an act which is criminal according to both the Criminal Code and adat law must be punished according to the Criminal Code, but that an act which is criminal according to adat law, but not the Criminal Code, must generally be punished according to adat law. Perhaps this unusual situation will be addressed when Indonesia’s long awaited new criminal code is enacted. Saraswati Sunindyo reviews, from a gender perspective, the media’s treatment of three cases from the 1980s involving murder or attempted murder of a wife or mistress by men who were, or were rumoured to be, functionaries of a state commonly criticised for corruption and oppressiveness.[35] This chapter has already been published in a readily available book[36] and is so dated that it might well have been replaced by an article on family law of more general interest.
M B Hooker’s chapter on the ‘state and syariah’ reviews the ‘space’ given to Islamic law in Indonesia, the country with the world’s largest number of Muslims.[37] The jurisdiction of the religious (Islamic) courts, in theory and practice, is explained, as is the impact of the Law on Religious Justice 1989 (Republic of Indonesia) which integrated religious courts into the national court system and regulated their composition, powers, and procedure. Readers are introduced to the Compilation of Islamic Law 1991 (Republic of Indonesia) on marriage and divorce, inheritance and wakaf (‘religious foundation’). The Compilation does not yet have the force of a statute,[38] as it is intended only as a guide for courts which reach decisions based on Islamic law. So far, little seems to be known about how the laws are being applied in the religious courts and it is to be hoped that ongoing research will enable us to learn more about this. In a second chapter, Hooker discusses the way in which Islamic law in Indonesia is handling advances in modern medical science.[39] The problems chosen are organ transplants, family planning, artificial insemination, sterilisation, abortion and blood transfusion.
While general banking law is not discussed in the book, Abdullah Saeed provides an analysis of how Indonesia’s first major Islamic bank, Bank Muamalat Indonesia, has established Islamic banking ‘as a player in Indonesia’s commercial sector’.[40] He describes the rise of Muamalat and Islamic banking in the broader historical and legal context of Islamic thinking and modern theories of Islamic banking.
As Indonesian reformers and lawyers have placed great faith in judicial review of executive acts by the administrative courts, it is appropriate that two chapters are concerned with administrative law. Bernard Quinn provides an analysis of the role of the administrative court judges, the attitude of the executive towards the courts, the role of the media in raising expectations about the potential of the courts, the implications of administrative law for Indonesian public law theory and the factors which will determine whether administrative law realises its full potential.[41] The introduction of judicial review of bureaucratic decisions by a government which had ensured that it was free from effective constitutional checks on its power, by either the legislature or the judiciary, is aptly described as ‘an enigma’.[42]
While Quinn is generally positive in his review of the administrative courts, David Linnan’s thesis is that decentralisation and devolution of authority to the local level may hold greater promise, at least in the near to medium term, for increasing popular participation in Indonesian government than does judicial review.[43] This view is based not on the perceived inappropriateness of ‘Western-style’ laws or the inadequacies of the Indonesian legal system, but on a ‘sophisticated appreciation of legal limitations in employing judicial review to harness the executive anywhere.’[44] Linnan argues that review by the Indonesian administrative courts has experienced both a general problem and special problems involving Indonesia’s Dutch law legacy in the area of administrative law.
Although Linnan speaks favourably of decentralisation, Peter Holland identifies the difficulty of striking the appropriate balance between the central and regional governments.[45] He begins with a discussion of the constitutional basis for regional government and the political context in which regional government was developed under Soekarno. However, the chapter is mainly concerned with the system of regional government established by Soeharto in the 1970s which, not surprisingly, ensured central government dominance of regional and local government. Reference is also made to recent moves towards greater devolution of power, including the 1995 pilot program on regional autonomy and the 1997 reform of local taxation. In April 1999, and after Holland had written this chapter, Parliament passed a new law on local government and a law on intergovernmental fiscal relations. These laws are intended to create a more equitable distribution of income and power between the central government and provincial administrations.
Indonesia: Law and Society contains many references to Indonesia’s failure to observe the rule of law and to its poor human rights record. However, there have been some significant changes since those comments were made. One important example is that Indonesia is about to enact a law on human rights and to create a National Commission on Human Rights. The Law will incorporate the spirit and substance of various international conventions on human rights, deal with the duties and responsibilities of the government to promote the recognition and protection of human rights and will place the Commission on a proper statutory basis. Its decisions on human rights will be legally binding, subject only to appeal to the Supreme Court. Other positive steps include Indonesia’s ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[46] and the International Convention on the Elimination of All Forms of Racial Discrimination,[47] the planned ratification of other human rights conventions, and the separation, from 1 April 1999, of the National Police from the Armed Forces, even if, at first, the separation is largely symbolic.
It is pleasing to find that the book makes available to a wider audience Todung Mulya Lubis’ account of how the very notion of the law-based state in Indonesia has been subverted by various political, economic, cultural and legal developments, even though, as a political statement, virtually every government official in modern Indonesia has expressed a commitment to the concept.[48] He notes how, under Soeharto, the law-based state concept had to compete with other concepts such as the ‘integral state’, the ‘bureaucratic state’ and patrimonialism. He identifies the effect this has had on issues such as the independence of the judiciary, the separation of powers, judicial corruption and limited judicial review. Todung reminds future Indonesian governments that it is meaningless to have an elegant constitution filled with human rights provisions if the rights cannot be enjoyed because of the absence of institutions upholding the due process of law.
Daniel Fitzpatrick uses the failure of the Indonesian Criminal Procedure Code to protect adequately the rights of those charged with criminal offences as a vehicle for considering the relationship between law, culture, ideology and legal institutions in Indonesia.[49] He argues that cultural relativities in Indonesia have a far less important role in human rights violations than national institutions and ideology, and that laws, since they are of little effect in Indonesia, ‘cannot be used instrumentally to effect institutional change.’[50] Greater protection for human rights will be found not in questions of culture or application of Western-style law, but in the evolution of law and legal institutions ‘in substance and effectiveness from political, social and ideological change.’[51]
The chapter by Daniel Lev tells readers how Indonesian advocates, more consistently than any others, have played a principal role in the reform movement, in framing, and continuing to frame, the debate over political and legal change.[52] He describes the tension between reform lawyers and the state over rule of law issues and the response of ‘officialdom’ to the challenges of the advocacy. Because of their reform activities, private lawyers have been accused of having lost touch with Indonesian culture, of having become too ‘Westernised’. Lev accepts that, while there is some truth in this, it is distinctly Indonesian claims, not European influence, which support the ideas of the advocates and the legal aid movement. It is to be hoped that Lev or other researchers will be able to provide us with similar accounts of the roles of all Indonesian lawyers — judges, prosecutors, advocates, legal aid lawyers and academic lawyers — in post-Soeharto Indonesia.
Simon Butt’s chapter is more than an account of the technicalities of reviewing and enforcing Indonesian court decisions.[53] What it does is to identify a serious threat to judicial independence, resulting from the Supreme Court using a loophole in the law to thwart the implementation of court decisions, including its own, particularly those which are against government interests. The Chief Justice of the Supreme Court, relying on the supervisory power of the Court, has instructed the District Court to either delay the implementation of, or effectively invalidate, its own decisions. Such a practice establishes an impractical five-tier judicial system, with a trial in the District Court, an appeal to the High Court, cassation in the Supreme Court, Supreme Court review by a different panel and the Chief Justice’s final ‘veto’. It is easy to understand the major loss of faith in the judiciary when such a practice is coupled with judicial corruption, collusion and government interference.
However, very recent developments provide a glimmer of hope. Parliament, in April 1999, enacted a law which provides for the establishment, before June 1999, of a permanent commission to combat corruption in the public sector. It will have four sub-commissions, each responsible for either the executive, the legislature, the judiciary or state-run firms. Separate legislation, drafted by the government, was enacted in July 1999 to strengthen the existing anti-corruption law. That greater judicial independence may be achieved is indicated by two events in early 1999. In January, leading human rights lawyers established the Indonesian Institute for an Independent Judiciary to pressure the government and legislators to establish a concrete agenda for law reform, including the creation of an independent judiciary. In February, Supreme Court Justices presented DPR leaders with a draft law on judicial independence, which suggested possible statutory amendments to provide for greater separation of the judicial and executive powers.
There have been similar promising signs as regards freedom of the press and freedom of expression which may require revision of some sections of Indonesia: Law and Society. Under the new law on freedom of expression, political demonstrations now require only three days’ notice to police rather than a permit. Such initiatives would have assisted the enactment, in July 1999, of a law enabling the Supreme Court to take over the organisational, financial and administrative affairs of the judiciary from the Ministry of Justice, a positive development for the growth of greater judicial independence in Indonesia.
As regards freedom of the press, Julian Millie, when writing his chapter on the effective banning of Tempo magazine after the Minister for Information withdrew its publishing licence, was not to know that the decree authorising the Minister’s action would be repealed and a simplified licensing procedure introduced.[54] These changes have led to a dramatic increase in press freedom, with licences increasing in the 10 months to April 1999 from 289 to 900.[55]
Recent developments have also affected Spencer Zifcak’s chapter describing the ‘political trials’ of the actress-playwright Ratna Sarumpaet, politician Sri Bintang Pamungkas and labour activist Muchtar Pakpahan.[56] Zifcak also provides an analysis of the Law on Political Activity 1969 (Republic of Indonesia), the ‘hate sowing’ articles of the Criminal Code (Republic of Indonesia), and the Anti-Subversion Law 1969 (Republic of Indonesia), which were frequently used by the Soeharto Government to prosecute political foes. Zifcak’s account of the trials speaks very clearly of a partial and corrupt judiciary, of procedural bias in trial procedure, of the ready judicial acceptance of the legality of prosecution procedures and of the continuing detention of the accused even when the initial case against them appears to have broken down.
Since the chapter was written, Parliament has, in 1999, repealed the Anti-Subversion Law and added six articles to the Criminal Code on acts endangering the state ideology, spreading Marxism-Leninism, sabotaging key installations and interfering with the distribution of necessities. Maximum punishment is now 20 years imprisonment, not death, and detention before charges is limited to the sixty days prescribed in the Criminal Procedure Code (Republic of Indonesia), instead of the one year, renewable, under the Anti-Subversion Law. The government’s intention to enact a law on the safety and security of the state is still a matter of concern, although the government claims the law will be limited to states of emergency and martial law. It should also be noted that, as at March 1999, Indonesia had released 212 out of 240 political prisoners.[57]
Ian Fehring’s chapter on labour law is another chapter to be affected by recent developments.[58] He outlines the history and structure of Indonesian trade unions under Soeharto, the government influence on the union movement, the heavy involvement of the armed forces in labour matters, the failure of the government-sponsored union to attract the support of workers, the emergence of ‘illegal’ unions, the prosecution and gaoling of labour rights activist Muchtar Pakpahan and the suspected armed forces involvement in the killing of Marsinah, a young female labour activist. Since the chapter was written, the position of workers’ rights seems to have improved. Indonesia has ratified the International Labour Organisation Freedom of Association and the Protection of the Right to Organise Convention 1948 (No 87)[59] and is in the process of ratifying other conventions. Previously unrecognised and also new independent trade unions have been allowed and the controversial Manpower Law 1997 (Republic of Indonesia) has been deferred to allow for public consultation and revision.
Since Indonesia’s human rights practices in East Timor have been the subject of intense international criticism, a chapter on East Timor was to be expected. However, Gerry Simpson’s chapter deals only with the 1995 decision of the International Court of Justice in the Case Concerning East Timor (Portugal v Australia).[60] In that case the International Court of Justice rejected jurisdiction to hear Portugal’s claim that Australia was in breach of its obligations to both Portugal and the East Timorese by entering into a treaty with Indonesia to exploit hydrocarbon resources in the Timor Gap.[61] Why jurisdiction was rejected on the basis of the doctrine of an indispensable third party, Indonesia, is clearly explained, but I doubt if it will be of general interest to those reading this book. The nature of problems being experienced in East Timor in 1999 perhaps confirms that a more general account of the East Timor problem would have been desirable.
I found particularly interesting David Bourchier’s explanation of how Soeharto’s Indonesia could officially uphold the concept of a law-based state, while rejecting doctrines such as the separation of powers because they were not in accordance with Indonesia’s cultural emphasis on harmony and consensus.[62] He finds the explanation in Indonesia’s inheritance from the Dutch of the divergent traditions of legal philosophy which, for simplicity, he calls ‘positivism’ and ‘romanticism’.[63] This chapter is really the only place in the book where one can read about the influence of the historical school of thought on Van Vollenhoven and the adat law school, their struggle for adat law against the attempts of positivists to replace legal pluralism with a unified legal system and the differing views held by Indonesian nationalists on the role of adat law in independent Indonesia.[64] In terms of Bourchier’s conceptual framework, Soeharto combined the positivist and romantic traditions by exploiting the absolutist potential of positivism and by using the romantic tradition to assume all the prerogatives of a traditional leader minus the accountability, courtesy of the Armed Forces. Bourchier concludes that governments, not ordinary people, have more to gain from appeals to romanticism and that reformers in post-Soeharto Indonesia ‘would be well served by resisting the allure of romanticism and insisting on clear rules that apply to all.’[65]
I trust that I have made it clear how valuable Indonesia: Law and Society is to Indonesian law scholarship and teaching. Developments since its publication may have taken a little gloss off its worth, but this is not the fault of the editor or his contributors. My major criticism has been foreshadowed by Arief Budiman in his foreword. It is that the book covers so much that the readers may feel that the ‘diversity of information’ has made them aware of ‘the richness of the problems discussed’ but has not offered ‘a unified comprehensive conclusion.’[66] This is because it is an edited book with ‘a broad range of contributions’ from a ‘diverse range of authors with many different interests.’[67] Arief Budiman does not see the lack of a unified conclusion as any ‘shortcoming of the book’, but as a result of the ‘complexity of the problem’ and a reflection of the current circumstances of Indonesia itself where ‘problems are easily identified but solutions seem more elusive.’[68] There is much truth in this comment, but I am not convinced that a more unified work on Indonesian law cannot be written and, hopefully, it will be, not too far in the future. The editor states that the contributions are unified around the theme of the law-based state, but I am not persuaded that the attempt has been completely successful or that a theme was really necessary. In any event, even if one sees the book primarily as a collection of essays, their publication must be accepted as a significant achievement. I could not agree more fully with Arief Budiman when he says that the book, being published at ‘a time of dramatic and unpredictable change in Indonesia’, will be able to play a part in identifying ‘the agenda for legal change’, in creating ‘a better understanding of the Indonesian legal system and encouraging its reform.’[69]
JOHN BALL[*]
[1] Timothy Lindsey (ed), Indonesia: Law and Society (1999).
[2] Ibid x.
[3] Ibid.
[4] Ibid.
[5] Simon Butt studied law at both the Australian National University (‘ANU’) and at Gadjah Mada University, Yogyakarta. He was awarded the ANU University Medal for Asian Studies for his Honours thesis on the Indonesian Supreme Court.
[6] Sebastiaan Pompe, Indonesian Law 1949–1989: A Bibliography of Foreign-Language Materials with Brief Commentaries on the Law (1992).
[7] Not counting the foreword written by Arief Budiman and the chapter by Saraswati Sunindyo, who teaches in the United States.
[8] He is best known to English language lawyers for his book, In Search of Human Rights: Legal–Political Dilemmas of Indonesia’s New Order, 1966–1990 (1993).
[9] Sugeng Permana, ‘Not Your Local Member’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 197.
[10] Foundation Professor of Indonesian Studies at The University of Melbourne and well-known reform activist in Indonesia who edited and contributed to Arief Budiman (ed), State and Civil Society in Indonesia (1990).
[11] Lindsey (ed), above n 1, x.
[12] Timothy Lindsey, ‘From Rule of Law to Law of the Rulers — to Reformation?’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 11, 13. The precise meaning of negara hukum, which is used in the Constitution of the Republic of Indonesia (‘Constitution’) in contrast to a state based on power, has been much debated by Indonesian legal and political thinkers, but it is frequently used as an equivalent of the Western notion of the ‘rule of law’.
[13] Sudargo Gautama, An Introduction to Indonesian Law: Unity in Diversity (1974).
[14] An appropriate example for a discussion of Indonesian law would be J M J Chorus et al (eds), Introduction to Dutch Law (3rd ed, 1999).
[15] Arief Budiman, ‘Foreword’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) v.
[16] Ibid.
[17] I have tried to provide these materials for my students, my last initiative being John Ball, Indonesian Law at the Crossroads: Commentary and Materials (1996).
[18] Timothy Lindsey, ‘Introduction: An Overview of Indonesian Law’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 1.
[19] Charles Coppel, ‘The Indonesian Chinese as “Foreign Orientals” in the Netherlands Indies’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 33.
[20] Lindsey, ‘Introduction: An Overview of Indonesian Law’, above n 18.
[21] Lindsey, ‘From Rule of Law to Law of the Rulers — to Reformation?’, above n 12.
[22] Gary Goodpaster, ‘The Rule of Law, Economic Development and Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 21.
[23] Ibid 22.
[24] Ibid 23.
[25] Veronica Taylor, ‘The Transformation of Indonesian Commercial Contracts and Legal Advisers’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 279.
[26] Opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959).
[27] Stephen Green, ‘Arbitration: A Viable Alternative for Resolving Commercial Disputes in Indonesia?’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 291.
[28] Christoph Antons, ‘Intellectual Property Law Reform in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 304.
[29] Opened for signature 15 April 1994, 1867 UNTS 3, 33 ILM 1125 (entered into force 1 January 1995).
[30] Rachel Haverfield, ‘Hak Ulayat and the State: Land Reform in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 42.
[31] Daniel Fitzpatrick, ‘Beyond Dualism: Land Acquisition and Law in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 74.
[32] Popular with students are articles by June Katz and Ronald Katz and Mark Cammack, such as Mark Cammack, ‘Islamic Law in Indonesia’s New Order’ (1989) 38 International and Comparative Law Quarterly 53; Mark Cammack, Lawrence Young and Tim Heaton, ‘Legislating Social Change in an Islamic Society — Indonesia’s Marriage Law’ (1996) 44 American Journal of Comparative Law 45; June Katz and Ronald Katz, ‘Legislating Social Change in a Developing Country: The New Indonesian Marriage Law Revisited’ (1978) 26 American Journal of Comparative Law 309; June Katz and Ronald Katz, ‘The New Indonesian Marriage Law: A Mirror of Indonesia’s Political, Cultural and Legal Systems’ (1975) 23 American Journal of Comparative Law 653. Further references can be found in John Ball, Bibliography of Material on Indonesian Law in the English Language (5th ed, 1996).
[33] Simon Butt, ‘Polygamy and Mixed Marriage in Indonesia: The Application of the Marriage Law in the Courts’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 122.
[34] Sebastiaan Pompe, ‘Between Crime and Custom: Extra-Marital Sex in Modern Indonesian Law’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 111.
[35] Saraswati Sunindyo, ‘Murder, Gender and the Media: Sexualising Politics and Violence’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 145.
[36] Saraswati Sunindyo, ‘Murder, Gender and the Media: Sexualising Politics and Violence’ in Laurie Sears (ed), Fantasizing the Feminine in Indonesia (1996) 120.
[37] M B Hooker, ‘The State and Syariah in Indonesia 1945–1995’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 97.
[38] It was introduced by way of Presidential Instruction directing the Minister to implement the instruction, such instruction being implemented by a Ministerial decision.
[39] M B Hooker, ‘Islam and Medical Science: Evidence from Indonesian Fatawa: 1960–1995’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 158.
[40] Abdullah Saeed, ‘Indonesian Islamic Banking in Historical and Legal Context’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 323.
[41] Bernard Quinn, ‘Indonesia: Patrimonial or Legal State? The Law on Administrative Justice of 1986 in Socio-Political Context’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 258.
[42] Ibid.
[43] David Linnan, ‘Decentralisation versus Administrative Courts: Which Path Holds Greater Promise?’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 221.
[44] Ibid 221.
[45] Peter Holland, ‘Regional Government and Central Authority in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 200.
[46] Opened for signature 10 December 1984, 1465 UNTS 85, 23 ILM 1027 (entered into force 26 June 1987).
[47] Opened for signature 7 March 1966, 660 UNTS 195, 5 ILM 352 (entered into force 4 January 1969).
[48] Todung Mulya Lubis, ‘The Rechtsstaat and Human Rights’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 171.
[49] Daniel Fitzpatrick, ‘Culture, Ideology and Human Rights: The Case of Indonesia’s Code of Criminal Procedure’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 339.
[50] Ibid 353.
[51] Ibid.
[52] Daniel Lev, ‘Between State and Society: Professional Lawyers and Reform in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 227.
[53] Simon Butt, ‘The Eksekusi of the Negara Hukum: Implementing Judicial Decisions in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 247.
[54] Julian Millie, ‘The Tempo Case: Indonesia’s Press Laws, the Pengadilan Tata Usaha Negara and the Negara Hukum’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 269.
[55] ‘Minister Yunus Will Not Stop Issuance of Press Licences’, The Jakarta Post (Jakarta, Republic of Indonesia), 26 April 1999, 2.
[56] Spencer Zifcak, ‘“But a Shadow of Justice”: Political Trials in Indonesia’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 355.
[57] ‘Government Releases PKI Prisoners’, The Jakarta Post (Jakarta, Republic of Indonesia), 25 March 1999, 2.
[58] Ian Fehring, ‘Unionism and Workers’ Rights in Indonesia — The Future’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 367.
[59] Opened for signature 17 June 1948, 68 UNTS 17 (entered into force 4 July 1950).
[60] (Judgment) [1995] ICJ Rep 90.
[61] Gerry Simpson, ‘Overlapping Sovereigns: Some Reflections on the Case Concerning East Timor’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 381.
[62] David Bourchier, ‘Positivism and Romanticism in Indonesian Legal Thought’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 186.
[63] Ibid.
[64] Bourchier quotes Sutan Takdir Alisjahbana, who was critical of Indonesians who regarded customary law as ‘the legal system most truly in harmony with the Indonesian ideal of justice’. Attempts to build a nationalist legal order based on a romanticised vision of village life, he said, ‘had brought the development of Indonesian law and Indonesian legal thinking to a hopelessly confused and tangled impasse’: ibid 186.
[65] Ibid 195.
[66] Budiman, ‘Foreword’, above n 15, v.
[67] Ibid vi.
[68] Ibid.
[69] Ibid.
[*] BA (Syd), LLB (Syd), PhD (Syd), Dip Law (Oxon), Dip Comp Leg Stud (Camb); Senior Lecturer in Law, University of Sydney.
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