HAN BING SIONG The Japanese Occupation of Indonesia and the Administration of Justice Today Myths and Realities

Having recently attempted (in Bijdragen tot de Taal-, Land- en Volkenkunde 152- 3, pp. 382-428) to eliminate a few existing fallacies about the conduct of the Japanese in Indonesia shortly af ter the Japanese surrender at the end of World War II, my attention was drawn by a contribution by S..Pompe on The effects of the Japanese administration on the judiciary in Indonesia' in issue .1524, dedicated entirely to Japan, Indonesia and the war; Myths and realities. As I myself was once engaged in the study and teaching of Indonesian criminal law, I found Pompe's views most intriguing. In his opinion, there was during the Japanese occupation 'a substantial erosion of judicial power [...] that was to condition it for years to come, its reverberations perhaps even being feit to the present day' (Pompe 1996b:575). This was a wholly new idea to me. Inspfar as Pompe suggests a causal connection, his statement that 'it serves the present-day Indonesian patrimonial state [like the Japanese administration before] to have a judiciary it can control' is very bold and provocative. In Pompe's view - perhaps influenced by Lev's summary (Lev 1965:174) - the legal situation in the Netherlands East Indies before the arrival of the Japanese was marked by 'the existence of two separate judicial hierarchies alongside each other in the colony, one administrating European law and the other Indonesian' (see also Pompe 1996a:131). Hereby 'foreign Orientals, meaning essentially Chinese, were in part subjected to European and in part to Indonesian law'. As far as I can remember the situation was a little different, however, and the Chinese were not at all subject to Indonesian law,1 while the criminal law administered by the two judicial hierarchies was European, irrespective of the ethnic affiliation of the persons concerned. The analysis below is a result of,my effort to refresh my memory on the subject of the Indonesian legal order, as-after more than thirty years this had almost completely faded.

Carpentier Alting is rather confusing on this point (1926:194-5), suggesring that in a few matters the Chinese'were governed by adat law by way of exception. See also Sudiman 1982:194, who states that the Chinese were subject to adat law, albeit in a form incorporated in the statute law enacted by the government, in the matters of adoption and kongsi, lf this is true, the adat law concerned would not have been Indonesian but Chinese (see also Lev 1976:142, who claims that the Chinese were almost completely removed from the civil jurisdiction of the courts for Indonesians, whereas they were in fact completely removed from it). The Ordonnanties published

It is definitely not a myth but a fact that the new Republic of Indonesia, thanks to legislation introduced by the Japanese military administration, did not, like the Netherlands Indies, have different courts for the different population groups in the sphere of government justice. 2The importance of this particular piece of Japanese legislation was made clear by Soepomo ([1943]: 23-5), one-time Gunseikanbu Shihbu-sanyo (adviser to the Japanese Military Administration's. Department of Justice), 3quoted. at length by Pompe (1996b:573). where he explains how discriminatory and humiliating the Netherlands Indies judicial system was. No other Indonesian author after Soepomo, as far as I have been able to discover, has criticized the Dutch system in such detail. The abolition of the Netherlands Indies dualistic judicial structure has been regarded as a revolutionary achievement, in fact, as a prelude to the Indonesian national legal system (Sudikno Mertokusumo 1983:32, 206). That is why it is most appropriate in a discussion.of the legacy of Japanese rule in Indonesia to draw attention to the Japanese military legislator's reform of the judicial organization. The fact that the Japanese laws governing the judicial organization are still in force in Indonesia today is remarkable indeed. Even the Indonesian names of the present Pengadilan Negeri and Pengadilan Tinggi appeared for the very first time in Japanese regulations, on 29 April and 26 September 1942 respect ively, so that they are just as much a. Japanese legacy. 4The present Indonsian court organization is still based upon Osamu Seirei No. 3 / Oendang-Oendang No. 34 of 26 September 1942 and Osamu Seirei No. 21 of 1 July 1943 (Kan P 1-4 2602, 2-22 2603), enacted by the Japanese high command in Java, and 'Tomi Seirei No. 40 of 1 December 1943 (see Piekaar 1949:263-6 and Mededelingen 1952b:5), introduced by the high command in Sumatra.

Schiller (1955:315), most curiously, assumed that the Republic of Indonesia continued the pre-war system. He reported that the courts in practice were open to all population groups without realizing that this was a legacy of the Japanese. 3 Soepomo was a supreme court judge before being appointed adviser, together with Soekarno, R. Soewandi, Abdul Rasjid, Mochtar bin Praboe Mangkoe Negara and Muhamad Yamin, on 4 October 1943 (Kan P 2-28 1943). The information in Gunseikanbu (1986:159) about his appointment to the supreme court is from December 1942, so that if this is correct, he was - attached to it soon after its establishment in September 1942. .Pompe (1996a:133, 1996b:579) points out that of the Indonesians appointed as supreme court judge, only.Notosoebagio had been a professional judge in the colonial period. According to Gunseikanbu 1986 (to which Pompe also refers), however, Soepomo in 1928 became president extraordinary of the Landraad in Djokja and in 1933 president of the Landraad in Poerworedjo; see also Regeeringsalmanak 1929- 2:100, 1930-2:113, 1934-2:107, 1935-2:100, 1936-2:104, 19372:104, 1938-2:107. 4 See also. Kllewijn and Van Dijk 1950:26. According to Lev (1973:7) the TihHin was renamed Pengadilan Negeri during the revolution. Pompe (1996a:133) believes Oendang- Ondarig No. 19, 1948 (which, however, was never carried into effect), to be the first law in which these courts were actually named in Indonsian.

These regulations remained in force after the surrender of Japan by virtue of President Soekarno's

Dcree No. 2 of 10 October 1945, which upheld retroactively all regulations in force on 17 August 1945, the date of the proclamation of the Republic of Indonesia, to the extnt that they did not conflict with th Constitution and had not been replaced by new provisions (Koesnodiprodjo 1951a:34). According to international law, th legal order of an occupying power can only be binding for the length of the period of occupation and becomes irioperative on termination of the occupation unless expressly declared -valid. (Oppenheim 1952:437; Frangois 1954:766). The Republic of Indonesia chose the latter possibility. Certainly the Indonesians, for very obvious reasons, had no inclination to revert to the former Netherlands Indies legal order with regard to the judicial organization. How different was their approach to the Japanese crifninal law regulations a few months later. Meanwhile British, Australiari and Dutch armed forces had occupied several parts of Indonesia, implicitly regardingthe laws enacted by the Japanese as no longer valid. They could not ignore the system of administration of justice irrespective of thnic affiliation" which the Japanese had introduced in republican territory, however. The Dutch of course were unable to revert to the much-resented discriminatory pre-war colonial court system for political reasons. Besides, there was a shortage of qualified judges. Hence, like the Japanese, they opted for a unitary judiciary, adopting the new landrechter as unusjudex.6 As on the other hand the Republic of Indonesia only controlled Madura and large parts of Java and Sumatra, the areas in which the Osamu Seirei and Tomi Seirei governing the judicial organization were retained were Java, except for the BataviaBuitenzorg-Tjiandjoer-Bandoeng region and the Semarang and Soerabaia areas, Madura, and

The Japanese divided Indonesia into three separate administrative regions, also mentioned, though not specified, by Pompe (1996b:580). Java and Madura were goverried by the 16th Japanese Army, Sumatra by the 25th, and the other islands by the Japanese Navy. As the code name of the 16th Army was Osamu and that of the 25th Tomi (War History Series 1976:6; Zorab 1954:9), the laws promulgated by the commander-in-chief of the former were referred to as Osamu Seirei and those by the commander-in-chief of the latter Tomi Seirei. Because the territory of the Republic of Indonesia comprised areas in both Java and Madura and Sumatra, the laws governing the judicial organization in this territory were not only Osamu Seirei bt also Tomi Seirei, see Mededelingen 1952a:2, Logemann 1955:128. Lemaire 1955:257; Soebijono Tjitrowinoto 1953:139, Tresna 1957:87, and Pompe 1996a:132, 1996b:578, only mntin the Osamu Seirei, while in Sudikno Mertokusumo (1983:37, 118-9) there is little consistency. 6 The Netherlands Indies Government never expressed an opinion on the Japanese legal system (Mededelingen 1951a:9). In genera) it reverted to the legal order as it had been on 8 March 1942,.as did the Indonesian legislature with respect to criminal law. For the judiciary, however, a reform was introduced on 31 December 1945 (Javasche Courant 3, 194

Sumatra, except for the Mdan and the extensive Palembang areaand Padang (see Groen 1991: Maps 1-3): The Dutch, at the,start of their two military campaigns in 1947 and 1948, left the .Indonesian courts intact in the newly occupied areas, although they appointed special judges to deal with certain criminal cases the trial of which iri their opinion could not be entrusted to the judges of the Republic in view of possible nationalistic bias.
7

Most interestingly, the Dutch also granted the

Pengadilan Negeri and Pengadilan Kepolisian jurisdiction on the basis.of the rules of the Republic of Indonesia in the areas they had occupied before their first military campaign, except for Batavia, Soerabaia and the Semarang and Medan areas (De Jongh 1951:63; Mededelingen 1951b:47; Schiller. 1955:424), apparently not realizing that these rules were in fact Japanese rules. When on December 1949 the Dutch recognized- Indonesian sovereignty and the Republic of the United States of Indonesia was established, the geographical scope of the Japanese regulations remained virtually unchanged
8

by virtue of the transitional provisions of the Treaty of Recognition of

Sovereignty and the Constitution. Soon afterwards in 1950 the Republic of Indonesia recovered many areas as a prelude t the formation of the unitary state. With regard to these areas Peraturan Pemerintah Pengganti Undang-undang 1950 No. 1 (Koesnodiprodjo [1951e]:165-6) stipulated that all the regulations and laws of the Republic of Indonesia were to apply, and so the relevant Osamu Seirei became the basis of the court system in Java and Madura with the exception of Jakarta. Raya,9 and the Tomi Seirei that of the courts in Sumatrawith the exception of the Medan area, 10and 'Kalimantan with the exception of West Kalimantan. 11In 1951, soon after the unitary Republic of
7

Voorlopig Rechtsreglement of 19 July. 1947 and Voorlopige Regeling Rechtswezen of 19 December 1948 (Javasche Courant 64, 1947, 105, 1948). Pompe (1996a:28) reports that in this period there was practically a runfor the demarcation lines as the judiciary switched sides from the Republic to the Dutch virtually en bloc. As the Dutch steadilyextended the areas under their control, the great majority of Indonesian judges did not need to run away, however; they automatically came to be in Dutch-occupied territory by just remaining at their posts. Although they remained judges of the Republic, the Dutch took over the financial responsibility for them. As the Indonesian government was isolated, it was simply unable to pay the judges' salaries. 8 The Negara Pasundan in West Java for a short period had its own judicial organization (Schiller 1955:320; Tresna 1957:84). 9 According to article 50 of the Constitution of the Republic of the United States of Indonesia, Jakarta Raya; although forming part of a recovered area, was subject to the Federal Government, so that the laws of the Republic of Indonesia did not apply there. 10 Although the Negara Sumatra Timur was not recovered by the Republic of Indonesia, the laws of the Republic with regard to the judicial organization, including those inherited from the Japanese, were already in force in the greater part of this trritory when the Dutch launched their first military action, and were kept in force by them (see footnote.7). 11 The trritory of West Kalimantan was not recovered by the Republic of Indonesia. The extension of the applicability of the laws of the Republic of Indonesia to areas outside Java, Madra and Sumatra gives ris to the question as to which of these became the basis for the organization of the courts in these areas: the Osamu Seirei,

Indonesia replaced the Republic of the United States of Indonesia, Undang-undang Darurat 1951 No. 1 (Lembaran Negara 1951 No. 9) was promulgated/ unifying the organization, the authority and the procedure of the dvil courts. 12This law extended the scope of the laws of the former Republic of Indonesia, including the Japanese Tomi Seirei (see footnote 11), to the remaining territories, excepting Jakarta Raya13 and West Irian, which latter was still ruled by The Netherlands. The picture became complete at last in 1963, when the Dutch returned West Irian to the Republic of Indonesia, with Jakarta Raya forming the only exception. Indonesia and The Netherlands agreed that in West Irian from 1 May 1963 all the laws and regulations of Indonesia were to frm the basis of the legal order; these included, again by virtue of Undang-undang Darurat 1951 No. 1, the Tomi Seirei introduced by the Japanese military administration during. World War II. The above outline clearly illustrates that the abolition of judicial dualism is a tangible and lasting part of the Japanese legacy in Indonesia. Soepomo pointed out that, thanks to the Japanese, all sections of the Indonesian population became subject to the jurisdiction of one and the same court. Most other authors 14on the legal situation during the Japanese occupation put forward the view that the Japanese were exempt from the jurisdiction of the new, unified judiciary. I take it that the view of the majority has its origins in Oerip Kartodirdjo's interpretation of the military laws promulgated by the Japanese in Java on 2
which applied in Java and Madura, or the Tomi Seirei, applicable in Sumatra? Sudikno Mertokusumo (1983:118-9), without giving this problem a moments thought, simply mentions Osamu Seirei No. 34 of 1942. However, as Tomi Seirei No. 40 of 1943 reverts to the law that was formerly in force - which in Sumatra was th Rechtsreglement Buitengewesten - and as this Rechtsreglement was in force in other areas outside Java and Madura as well, in my view the Tomi Seirei was the most appropriate regulation for these other areas (for a slightly different argument; see Mededelingen 1951b:52). 12 The aim of this law was restricted to the unification of the organization, th authority and the procedure of the civil courts and did not extend to unification of the substantive law, as is suggested by Termorshuizen-Arts (1994:339). Pompe (1994:111) aso suggests that the colonial pluriformity was abandned after Indonesian independence, but the source he refers to describes a situation of continued legal pluriformity, with adat law existing side by side with two crimirial codes. " 13 Undang-undang Darurat 1951 No. 1 contains no provision with regard to the judicial organization of the courts in Jakarta. In Mededelingen 1951b:51 the view is expressed that this was simply an omission; it is consequently assumed that the organization of the courts in Jakarta is based on the laws of the Republic of Indonesia. Lemaire (1955:257-8) and Tresna (1957:87), on the other hand, argue that precisely because of the omission of a provision of this kind, Netherlands Indies military regulation No. 11 of 31 December 1945 on this subject remained in force. See also Soebijono Tjitrowinoto 1953:139; Utrecht 1959:531; and Sudikno Mertokusumo 1983:91. 14 Oerip Kartodirdjo 1947:16; Piekaar 1949:269;" Kollewijn and Van Dijk 1950:23; De.Jongh 1951:56; Aziz 1955:163; Tresna 1957:80; Utrecht 1959:531; Lev 1965:175,1973:7; De Jong 1985a:311; and Pompe 1996a:132, 1996b:574, 580. Presumably Bhtlingk (1953:53) subscribes to the same view, as despite his scathing criticism of Scheers; Den Hartog and Wismar Sidabutar (1952), he does not attack this publication (which, surprisingly, still seems to be considered reliable in several English-language.publications) on this point.

March 1942; for the violation of which all Japanese were liable to punishment. As on that same date a military court, or Gunritsu Kaigi, for trying military law offences was instituted, Oerip Kartodirdjo (1947:15) concluded that this court was the sole judicial authority to which all Japanese were subject. The military court was not the only court under the Japanese administration/ however, and its .jurisdiction was restricted to military law offences. On the Japanese in Java the laws of Japan were binding, having precedenceover military laws, 15so that the military court had judicial authority over Japanese subjects only in cases in which no Japanese laws were applicable. On the other hand, the military court had to try all military law offences, irrespective of the nationality of the persons committing them. Besides the. military court there was the Gump Kaigi, or military tribunal for Japanese service personnel. Furthermore, there remained the Netherlands Indies courts, which the Japanese had'recognized through Oendang-Oendang. No. 1 of'7 March 1942 (see footnote 15), stipulating that all existing government institutions and. their powers and all the laws and regulations of the Netherlands Indies should temporarily remain effective provided they were not in conflict with Japanese* regulations. In practice these courts had become defunct, however, as will be explained below. On 29 April 1942 the Japanese reactivated the so-called Indonesian side of the Netherlands Indies Government court system in Java, together with'the Landgerecht (the only Netherlands Indies court with authority over all sections of the population), bymeans of Oendang-Oendang No. 14 (Kan P Nomor istimewa 1943), which mentioned the various courts by their respect

15

Article 1, Osamu Gunrei No. 1, Tentang Hoekoeman Menoeroet Hoelcoem Balatentara, 2 March 1942. Other military laws were: Oendang-Oendang Nomor Istimewa and Osamu Gunrei No. 2 Tentang Gunritsu Kaigi (Mahkamah Balatentara), both also of 2 March 1942, and endang-Oendang No. 1 of 7 March 1942 and No. 2 of 8 March 1942 (all in Kan P Nomor istimewa of March 1943).