ISEAS - Rethinking about Law Reform & Its Enforcementstaff.ui.ac.id/system/files/users/oppusunggu.un/material/iseas... · • Adat Laws for Indigenous ... 2a Nias Gayo, Alas, Batak

Rethinking about Law Reform & Rethinking about Law Reform & Its Enforcement in IndonesiaIts Enforcement in Indonesia

A Presentation on ISEAS Workshop on A Presentation on ISEAS Workshop on 2121stst Century Indonesia Century Indonesia Challenges AheadChallenges AheadSingapore, 13Singapore, 13--14 November 200814 November 2008

Yu Un Yu Un OppusungguOppusungguFaculty of Law, Faculty of Law, UniversitasUniversitas IndonesiaIndonesia

Oppusunggu - ISEAS 13-14 November 2008

2

Indonesia in the late 90sIndonesia in the late 90s

The New Order at the height of its power Law was serving KKN (corruption, collusion &

nepotism); or Law was fragile to be manipulated for KKN-

driven objectives The Asian financial crisis hit hard on

Indonesia inter alia due to weak legal system and poor law enforcement.

The Reformasi Movement took place


3

The The ReformasiReformasi MovementMovement

Students-led movement to eradicate KKN. Call for total reform.

Law reform agenda Acknowledgment of human rights Establishment of supremacy of law & equality

before the law Amendments of the 1945 Constitution

Political reform Democratization


4

Year X of Year X of ReformasiReformasi Political Freedom

Tens of political party to compete in 2009 General Election; President & VP are chosen directly by the people Illiberal Democracy?

Law Reform Amendments of the 1945 Constitution (four times) Law enactments for supremacy of law and equality before the law Corruption eradication

Systematic corruption Open corruption

Legal disarray (kekacauan hukum)

The Economy No significant change


5

2121stst Century Challenges Century Challenges Raisons d'tre of Independence (Preamble of the

1945 Constitution) to protect the whole Indonesian Nation and the entire Indonesian

homeland; to advance general welfare; to stimulate the nation; and to participate in the implementation of would order founded on

freedom, abiding peace and social justice Globalization & Free Trade

Indonesia joined the WTO starting 1 Jan 1995 Law No. 7 1994 ratifying the Agreement Establishing WTO A new set of environment

The Challenges: to bring about the Indonesian Dreams in the Globalization Era.


6

Points of DeparturePoints of Departure

1. Pluralism of Indonesian people sine qua non

2. Historical factors path-dependence

3. Population distribution Cities Villages Industrial-based economy Agrarian-based &

Marine-based economies


7

Why These Points of Departure?Why These Points of Departure?

The perspective of a jurist condition and situation of the people are sine

qua non works on social and legal mechanisms to

ensure that from these sine qua non justice may prevail.

The task of a jurist is to make a system just, and not to change the system itself.


8

Pluralism of Indonesian People (1)Pluralism of Indonesian People (1)

Population Groupings of the Netherlands Indies

Europeans, Foreign Orientals & Indigenous Groups

Legal Pluralism Pluralism of Criminal Law ended in 1918. European Law for Europeans, Foreign Orientals

(with some reservations) & equalized Indigenous Adat Laws for Indigenous

Van Vollenhoven using language classification to identify specific features discovered 19 areas of adatlegal system.


9

The 19 Areas of The 19 Areas of AdatAdat Legal System (I)Legal System (I)

South Sumatera4Mentawai3aMinangkabau3Nias2a

Gayo, Alas, Batak

2Aceh1

Areas of AdatLegal System

No


10

The 19 Areas of The 19 Areas of AdatAdat Legal System (II)Legal System (II)

Bangka & Belitung

6Malay Area5Enggano4a


No


11

The 19 Areas of The 19 Areas of AdatAdat Legal System (III)Legal System (III)

Kalimantan7

Areas of Adat Legal System

No


12

The 19 Areas of The 19 Areas of AdatAdat Legal System (IV)Legal System (IV)

South Sulawesi(incl. Bugis)

11

Toraja Area10

Gorontalo9

Minahasa8


No


13

The 19 Areas of The 19 Areas of AdatAdat Legal System (V)Legal System (V)

Papua14

Ambon Moluccas13Ternate Archipels12


No


14

The 19 Areas of The 19 Areas of AdatAdat Legal System (VI)Legal System (VI)

Bali & Lombok16

Timor Achipels15

Areas of Adat Legal SystemNo


15

The 19 Areas of The 19 Areas of AdatAdat Legal System (VII)Legal System (VII)

West Java19

Solo & Yogyakarta

18

Central & East Java

17

Areas of Adat Legal System

No


16


The State Ideology: Pancasila

Believe in God the Almighty. A Just and Civilized Humanity Indonesian Unity. Democracy which is guided by

Inspirational Wisdom in Consultation/Representation.

Social Justice for all the People of Indonesia.


17


Dualism of Legal System European Legal System and Adat Legal System

Adat Law being incompatible with the international trade By practice, the European Law used for international

trade. Toward A National Legal System

Unification v. Harmonization of Laws Identification of Legal Issues

Neutral Legal Issues Unification of Law Sensitive Legal Issues Harmonization of Law


18

Previous Law Previous Law Reforms/DevelopmentsReforms/Developments The Old Order

The Basic Agrarian Law (Law No. 5 1960) Ended pluralism of agrarian law Adat agrarian concepts as the basis

Sahardjos Proposal BW (the Civil Code) as law books, not as code of law

The New Order Survey of Indonesian Economic Law

As a consequence of Foreign Investment Law (Law No. 1 1967) Survey on Business Law, Mining Law, Labor Law and Social

Legislation, Taxation, and Agrarian Law. ELIPS Project

Economic Law and Improved Procurement System Project e.g Limited Liability Company Law (Law No. 1 1995)


19

Diagnostic Assessment of Legal Diagnostic Assessment of Legal Development in IndonesiaDevelopment in Indonesia From 1996-1997 funded by the World Bank & Bappenas. Prof. Mochtar Kusumaatmadja described Indonesian law

as desperate but not hopeless. Recommendations:

short-term policy reform (1-2 years) the Government to make a political statement on law reform

long-term policy reform (5-10 years) refining law enforcement, systematizing publication of court

decisions, and renewing and harmonizing the legislations to support economic growth

short-term technical reform 1-2 years) firmer monitoring for violations by judges, public prosecutors,

lawyers, and public notaries, and improving law graduates knowledge on GATT rules.

long-term technical reform (5-10 years) empowering law documents centers and law libraries, and

standardizing and modernizing courts library.


20

Law Reform after Law Reform after ReformasiReformasi (1)(1)

Checks & Balances Amendments of the 1945 Constitution

From Executive-heavy to Legislative-heavy

Establishments of Monitoring Body The Constitutional Court (Mahkamah Konstitusi) for

alignments of laws with the Constitution. The Judicial Commission (Komisi Yudisial) Justices of the

Supreme Court (Mahkamah Agung) and to ensure the uprightness of judges honor.

The Prosecutor Commission (Komisi Kejaksaan) the works and conduct of public prosecutors.


21


Investors-friendly through legal certainty? Article 22 of Investment Law (Law No. 25 2007) on

land title facility to investors

70 yearsLimited by necessityRight to Use(Hak Pakai)

80 years30 years + 20 yearsRight to Build(HGB)

95 years25 years + 35 yearsRight to Venture (HGU)

Investment LawBasic Agrarian LawLand Title

Nullified by the Constitutional Court.


22


Unification of sensitive legal issues The Pornography Law

A controversial Bill due to flexible definition of pornography & endorsement of public participation to fight pornography.

8 of 10 Fractions of the Parliament approved. PDIP & PDS Fractions walked out plus 2 Balinese members of Golkar Party Fraction.

Potential open conflicts in the future.


23

Lesson Learned from the Lesson Learned from the Pornography LawPornography Law Sensitive legal issues

Pluralism of Indonesian people

Unification instead of harmonization of law Political compromise in anticipation of the

2009 General Election Will be brought before the Constitutional

Court for nullification Diminishing of Welfare State?


24

Law Enactments Law Enactments a bya by--product product of law reform (1)of law reform (1) Professor Padmo Wahjono: Indonesian

legislation could be classified into: Primacy Legislation, specifically mentioned in

the Constitution Law (undang-undang), Perpu & Government

Regulation

Secondary Legislation Presidential Decree, Ministerial Decree, etc.


25

Law Enactments Law Enactments a bya by--product product of law reform (2)of law reform (2) The New Order

Primary Legislation of the New Order are rather simple.

Specifics by Secondary Legislation Deviation from Primary Legislation led to KKN Legal uncertainty; absence of supremacy of law &

equality before the law

The Reformasi Legal certainty, supremacy of law & equality

before the law through undang-undang


26

Historical FactorHistorical Factor

Pluralisms of People & Law Use of European Law based on practical needs Civil Law Tradition instead of Common Law

Tradition Emphasis on codifying law Dismantle through various laws

Cancellation of Civil Code for Indigenous of the Netherlands Indies impedes global competitiveness


27

Pluralism of Law in IndonesiaPluralism of Law in Indonesia

National LawWestern Law

Adat Law (under Islamic influence)

National Law

Western Law

Adat Law

Islamic Law

Pre-Reformasi Post-Reformasi


28

Population Distribution as a Factor Majority of Indonesians live in Villages

Law reform to improve the majority

Absolute natural advantages Agrarian not industrial country

Law reform to improve agro-industry

Maritime country Law reform to improve marine-industry

Current trend Cities based improvement Manufacturing industry emphasis


29

Rethinking about Law Reform Rethinking about Law Reform The Road AheadThe Road Ahead Improve law enforcers welfare Mechanism for public scrutiny

Diagnostics recommendation to be followed up Harmonization for sensitive legal issues,

unification for neutral legal issues Minimizing illiberal democracy Return to Pancasila Democracy

Make use of Globalization instead of integrating to it Law reform to lessen economic dependence


30

Rethinking about Law Reform Rethinking about Law Reform What What LawLaw Reform?Reform? Emphasis Law Reform on facilitating

Indonesias absolute advantages Develop legal institutions to improve agro-

industry, marine-industry Population distribution as consideration

Improve rural economy Develop their supporting legal science

Legal science on improving agro-industry, marine-industry


31

THANK YOU!

Documents

ISEAS - Rethinking about Law Reform & Its Enforcementstaff.ui.ac.id/system/files/users/oppusunggu.un/material/iseas... · • Adat Laws for Indigenous ... 2a Nias Gayo, Alas, Batak