Understanding Indonesian law and society

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