Understanding Indonesian law and society

Indonesia: Law and Society; Ed: Timothy Lindsey; The Federation Press, Sydney, 1999; Paperback 418 pages; A$45.00

MELBOURNE, Australia (JP): We live in an era where interconnectedness is increasingly significant, which necessitates viewing events or experiences in life in their proper context. Thus from time to time, we need to raise ourselves off the ground and reach sufficient height in order to gain a wider view of the land we call our country, metaphorically speaking, of course.

Hopefully, with a deeper understanding of the problems directly or indirectly affecting us, we will be in a better position to find appropriate solutions.

I dare say reading Indonesia: Law and Society is a fair equivalent to the above experience, in the empirical as well as historical sense.

The book contains wide-ranging and incisive writings, covering the grounds of Indonesian society from various angles: legal, sociological, cultural and political.

The fact that Arief Budiman, a well-known critic of the authorities, gave his imprimatur in the foreword, lends assurances to the would-be reader that the content of the book is insightful and not shying away from showing the cracks and fault lines of the landscape.

The book gives the reader an encompassing picture where the complex and colorful fabric of Indonesian life is highlighted. The already diverse indigenous cultures and traditions have to exist together with what started off as foreign elements, introduced either through commerce and other cultural avenues, or through colonizing powers. And over this busy traffic of power plays and negotiations, a distinct line of influence can be seen attempting to encircle this quasi-inchoate polyglot in order to fit it into an ideological net of nationality, however difficult this feat often appears.

The oldest law in operation in Indonesia is adat (traditional law). Each region has its own set of the laws as discrete kingdoms and sovereigns before Dutch colonization inadvertently unified them into the Dutch East Indies, to later become the present-day Indonesia.

The Dutch colonial administration placed an overlay of European law on the multitraditional society to use wherever necessary and convenient. The administration also arranged the Dutch East Indies population into three main classes of the Europeans upper crust, the "foreign orientals" middle layer, and at the bottom, the "natives". Intentionally or not, this division was to sow animosity among the natives toward the ethnic Chinese, who belonged to the foreign orientals class, for decades to come.

After independence in 1945, the new government of Indonesia tried to unify the nation politically, legally and culturally, by instilling anti-imperialist nationalistic ideals. A constitution was drafted based on and inspired by mainly the romantic and idealistic concept of the nation as an integral family.

This concept would work well if the idea of consensus, on which it is based in general, was allowed to fully develop and put into practice. Unfortunately, human nature has been allowed to contaminate this concept, and many of those in power have tended to put self-interest above public interest.

When Soeharto's New Order government came to power, it made a half-hearted attempt to replace Sukarno's Guided Democracy to negara hukum (the nearest equivalent to the concept of "rule of law").

However, it became clear eventually that the result was closer to "law of the rulers". As Mulya Lubis observes in chapter 11 titled The Rechsstaat and Human Rights: "However, the very notion of rechsstaat in Indonesia has been subverted by various political, economic, cultural and legal developments that gradually weakened its foundation."

One of the stumbling blocks to fair governance, it seems, is the persistent reluctance of the executive wing to share power with anyone else. There is no effective power to monitor the performance of the president and his ministers.

Judicial independence is continuously undermined because the judges are officially civil servants and owe their positions and promotions to the justice minister, who is appointed by the president.

One example, as detailed by Daniel Fitzpatrick in chapter 24 on Culture, Ideology and Human Rights, is in the use of police powers in criminal procedure. In 1981, a new code of criminal procedure, known by the acronym KUHAP, replaced the outdated colonial law known as HIR.

Theoretically, KUHAP establishes a number of fundamental rights for criminal defendants that were not provided for in the HIR, such as presumption of innocence, a right to legal assistance, a right to be free of duress during interrogation and trial, and a right to compensation for illegal arrest, detention and/or seizure of property.

However, since KUHAP gives police exclusive powers of investigation and interrogation, there is no supervision over the initial stages of police investigation and a suspect's detention. For instance, a warrant is required, unless the offender is "caught in the act", for the police to make an arrest. However, to be "caught in the act" is taken to mean that the person is caught while committing a criminal act, or "some time after". The latter phrase gives police considerable leeway in deciding whether to obtain a warrant.

KUHAP initially also raised some hope in its establishment of a pretrial procedure to determine whether the arrest and/or detention of a suspect is lawful. However in practice its effectiveness is doubtful. The court's jurisdiction is limited to the lawfulness of arrest or detention, and any complaints about mistreatment are to be filed with the police, the subject of the complaint itself.

Several chapters are also devoted to the role of Islamic influence in the country's social and legal development. For instance, MB Hooker in chapter 6 on The State and Syariah in Indonesia, 1945-1995 observes that Indonesian Muslims, like Muslims in many countries, in different times, regard the authority of Islam as an alternative to the authority of the state.

The book comes with a comprehensive glossary of terminology, acronyms and abbreviations used in all its 27 chapters, as well as a table of statutes and an extensive index. References and footnotes point in the right directions, readers who seek deeper knowledge into any specific field. Lindsey deserves congratulations for his efforts in gathering essays of such high quality into this volume.

-- Dewi Anggraeni