Law of Indonesia is based on a civil law system,
intermixed with customary law and the Roman Dutch law.
Before the Dutch colonization in the sixteenth century, indigenous kingdoms
ruled the archipelago independently with their own custom laws, known as adat. Foreign
influences from India, China and Arabia have not only affected the culture, but
also weighed in the customary adat laws. Aceh in Sumatra, for
instances, observes their own sharia law, while Toraja ethnic group in Sulawesi are still following their animistic customary law.
Dutch
presence and subsequent occupation of Indonesia for 350 years has left a legacy
of Dutch colonial law, largely in the Indonesia civil code.
Following the independence in 1945, Indonesia began to form its own modern
Indonesia law, not developing from scratch but with some modifications of the
precepts of existing laws. As a result, these three components (adat,
Dutch-Roman law, Islamic Law and modern Indonesia law) still co-exist in the
current Indonesia laws.
After
its independency, Indonesia claimed their country as a democratic country with
27 provinces based on its constitution which we called as Pancasila and
Undang-undang Dasar 1945 (nowadays the provinces have increased to become 36
provinces).
Being the state of
law, Indonesia had adopted the Civil Law (Code Law) derived from the Dutch law
as the result of the colonialism. This law which originated from the Roman
Empire has the function to establish a body of legal rules which judicial
decisions (case law) are not a source of law, as contrasted with the Common law
or the United States law.
Although Indonesia
has become a greatest Moslems population among the world, still Indonesia has
not claimed itself as the Islamic country, such as Malaysia or the Middle East
countries, but still, most of the Islamic values have many important roles in
determining the laws and regulations in Indonesia.
The Civil Law,
adopted from the Dutch Law, recognized and formed the certain important basic
laws and the systematic codes in Indonesia, which we called as Kitab
Undang-undang Hukum Perdata (Burgerlijk Wetboek) or the Civil Code, the laws
concerning with civil rights and remedies, Kitab Undang-undang Pidana, the
Criminal Code and Kitab Undang-undang Hukum Acara Pidana, the Criminal
Procedures Code, the laws concerning with the criminal acts and criminal
procedures brought to the court.
There was also Kitab
Undang-undang Hukum Dagang (Wetboek van Koophandel) or the Commercial Code, the
law concerning the commercial contracts and regulating the eligible legal
bodies to carry out their business in Indonesia. This law now has replaced by
the new Law since the enactment of the new Company Law Number 1 in the year of
1995, concerning the Limited Liability Company together with its
implementations. Following to this Limited Liability Company Law, in the year
of 1999, the Government also issued the New Bankruptcy Law which some of the
clauses adopted from the Chapter Eleven from the United States law. Some
thoughts say that the Limited Liability Company Law and the Bankruptcy Law have
become a breakthrough for the development of the legal system in Indonesia in
the era of nineteenth century. Not mentioning other laws that derived from the
Code Law, we also have the Land Law that adopted and derived from many Hukum
Adat values as the implementation of Indonesian cultures and hence to
accommodate the different cultures and characteristics of many provinces in
Indonesia. This Land Law, concerning the title or ownership of the land and the
land acquisition procedures, has also been renewed and revised by the
Government in year 1960.
>>>>>>>>
The
question remains as to what the future holds. In addition to death,
tide, and taxes, one of the most certain developments will be increasing
foreign elements in Indonesian law along the EU/globalization. So much seems
obvious. Yet before turning to a ‘the East is East and the West is west and if
the twain shall meet’, it behoves us to at least consider the possibilities of
a resurgence of Indonesian-centric law.
Comments