Picture of Indonesian Legal System

A. The History
Before the arrival of the dutch into Indonesia. Indonesia has a law which applied by islamic empires and flourished in Nusantara on the first half of twelfth century called of islamic Law. This fact was witnessed and written by Muslim scholar cum travel Ibnu Batutah in 1345. From that time on, islamic norms and laws emerged and were being implemented in the islamic kingdoms in Sumatera, Java, Banjar, Mataram, as well as Banten.1 When the Dutch arrived into Indonesia for commercial and trading, the Dutch showed litlle interest in interfering with traditional laws (Islamic Law). They were more interested in protecting their commercial trading interest. This condition related to the theory which pronounced by the prominent Dutch Legal Scholar C.H Van Den Berg. This theory believes that the law applicable to Indonesian people at the time was reffered to the religion they embraced and that is wouldnt threatened their commercial trading. This theory called of Receptio in Complexu. And then, after many years the Dutch colonize in Indonesia. The Dutch saw the influence of islamic laws in Indonesia being slowly diminished and eliminated. This was deemed important strategy for the Dutch to strengthen their power in the country, i.e. by first weakening main pillars of society.2 Because the dutch found that the strength of islamic society supported by aqidah and islamic law (shariah) as social system which protect and strengthen the society. So the Dutch purposed made a new legal policy to weaken the islamic society. It was so obvious, they promulgated the theory of Receptie that limited the reception and application of islamic law in Indonesia. This theory constructed that the islamic law was applicable in Indonesia in so far, it has been adopted as a customary law. And then the Dutch made a legal policy that islamic law has been put in the prison. The people allowed to use islamic law in a personal matter such as, marriage, inheritance, divorce, etc. And others used Dutch Legal System or Civil Law. After indepence of Indonesia. The condition of the state is not stabil. And Soekarno as a first presiden in Indonesia more focus on political issue, since political were not stabil yet. Political turmoil as the impact of rivalry between the parties and political crises as military intervend to put down regional rebellions, meant that there was little opportunity for law reform. And to avoid the vacuum of law in Indonesia, Indonesia still use Dutch Legal System untill there is a new legal (changing) and basis of that in the constitution stated in article 2 transitional provision of 1945 constitution, all institutions or the previous legal applicable before there is a new one. So the Dutch Legal System is still exist in Indonesia. At the Soehartos regime or recognized of the new order regime. Indonesia still use Dutch Legal System and there is no law reform overall. In that era, Soeharto put
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Iwan Satriawan, Media Hukum vol.14 No 2 Desember, The Integration Of Islamic Law Into Indonesian Legal System : The Issue And Developments 2 Ibid

economic growth and political stability as key words to run the country and legal reform as a part of program to support the goal of the regime. From this fact we know that why Dutch Legal System still exist although Indonesia has independent, and today several Dutch Legal System still used in Indonesia. But, it would be wrong to assume that Indonesia has simply adopted the Dutch Legal System.

B. The Sources of Indonesian Legal System

Indonesia Legal System (ILS) is one of follower the Continental European System it because Indonesia has colonized by the Dutch around 350 years. Indonesia Legal System called as Civil Law and Codified Law. It means the regulation should be codified in Book of Law with emphasizing on principle of legality. In Indonesia Legal System (ILS) law is more considered as parliament-made law and jurisprudence is only as source of law and accordingly it is not binding. The law that emerged after the independence of Indonesia is made up of several legal system interwoven with each other and operating simultantly. Indonesia Legal System is made up of : 1. Dutch Legislation 2. Islamic Law
3. Customary Law (adat law)3

Indonesian Legal System has a sources of law. According to Decision the Peoples Consultative Assembly No 111/MPR/2000. Source of law is a source which used to made a legislation. Source of law according to the scholar: 1. 2. Materill source of law (Prof. Pangaribuan Simanjuntak) Everything that makes a regulations which force to the society and allowed to be punished. Formiil source of law (Hartono Hadi Suprapto) The place where can be found the regulation and the legal decision.

Formiil source of law consist of: a. ratified by Act : The regulation which made by parliament and president.

Iwan Satriawan, an overview of Indonesian Legal System, presented at AIKOL International Islamic University Malaysia, December 2007.

b. Common : Everything done by people and become habit, then the society confirm the habit that something binding. c. Jurisprudence : Judge decision, so judge made law.

d. Doctrine : According to Siti Soetami doctrine is an opinion of legal shcolar which can be source of law when the opinion used by judge to considered the decision. e. multilateral) f. Treaty Agreement : Agreement two or more country (bilateral: The agreement between the people.

C. Type of Legislation
In Indonesia the hierarchy of legislation has changed for twice. And today according to the Act number 10 year 2004 article 7(1). The Indonesian Legislation consists of: The Constitution Indonesia is unitary republic established pursuant to the constitution declared at independence, commonly called the 1945 Constitution. During the 32-year period President Suharto was in power, the 1945 Constitution was never amended. Shortly after Suhartos resignation in May 1998, the 1945 Constitution was amended four times: in 1999, 2000, 2001, and 2002. Proposals for future amendments are currently being discussed by the newly formed Constitutional Commission.4 Act Government Regulation Precedential Decree Regional Regulation

Because this is the hierarchy of legislation, so that the consequences are:

1. The highest regulation as a basic to made the lower regulation. 2. The lower regulation cant be against with the highest regulation.

3. If there against, the highest regulation should have to take.

Benny Tabalujan, 2005. The Indonesian Legal System; an overview. www.indobizlaw.com

The government promulgated the legislation published in the State Gazette of the Republic of Indonesia. Certain types of legislation such as Laws and Government Regulation accompanied by an official explanatory memorandum called the Elucidation. The Elucidation is published in Supplement to the State Gazette and is generally authoritative for purposes to interpretation. In addition to the State Gazette, there is sister publication called the State Report which contains government and public notices.5

D.Indonesian Court System

The Indonesian judicial system comprises several types of courts under the oversight of the Supreme Court (Mahkamah Agung). Following the Civil Law tradition, Indonesian courts do not apply the principle of precedent/jurisprudence which is so familiar in Common Law jurisdiction. Most disputes before the courts of general jurisdiction, wtih the court of first instance being the State Court (Pengadilan Negeri). There are about 250 State Courts throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instance from the State Court, may be made to the Supreme Court located in Jakarta. The Supreme Court can hear the a cassation appeal (kasasi) which is final appeal from lower courts. It can also conduct a case review (peninjauan kembali) if, for example, new evidence is found justifies a re-hearing.6 In 1998, the Indonesian authorities established the Commercial Court (Pengadilan Niaga). Initially, the Comercial Court tasked to handle bankruptcy and insolvency appilcations. Its Jurisdiction can be extended to other comercial matters. Appeals from the Comercial Court direct to the Supreme Court. There is also Administrative Court (Pengadilan Tata Usaha Negara) which hears administrative law cases file against the government. In 2001 constitutional amandements, provision was made for the creation of the Constitutional Court (Mahkamah Konstitusi). Among others matters, the Constitutional Court has the jurisdiction to hear involving the constitutionality of particular legislation, result of a general election, as well as actions to dismiss a president from office.

E. Islamic Law in Indonesia

The Islamic position in Indonesia Legal System is not applied in overall matter. Although the Islamic values put in the article 29 of the 1945 Constitution and based on the sociologically aspect the Muslim society as the majority in Indonesia, Islamic law cant be applied in Indonesia. Many obstacles to put Islamic Law as the Constitution of Indonesia such as: Indonesia is not Islamic State There are minority in Indonesia (non-Muslim) Lack of shariah understanding as the result of secular education

5 6

www.indobizlaw,com Indonesian Legal System an overview, by Dr Benny S Tabalujan. Fachri Bey, IALS Conference.

And aimed for the Islamic Law can be the constitutional in Indonesia, the Islamic Law should to dominate in three aspects of main pillars in the nation, there are: 1. Education 2. Parliament 3. Court The important one is education, because by integrating the Islamic principle into education aspect there is no more secular and capitalist professional which can be corrupt the state. And then by enactment of laws or its subsidiary legislation on specific matter of Islamic law such as family law, wakaf, inheritance, pilgrimage, zakat, including the law of banking law that adopts and recognizes the principles of shariah. The latest one is the implementation shariah in Aceh. Slowly the Islamic Law can be applicable in Indonesia for overall.

Picture of Indonesian Legal System

By Ikhwanul Muslim IPOLS FH UMY