Analysis of Indonesian Law - Coursework Example

Indonesian Law Student’s Name: Institutional Affiliation: Indonesian Law Abstract The Indonesian Law has its basis on three different types of laws that include the Roman-Dutch law, Islamic law and customary law. In the modern Indonesian legal system these laws co-exist and complement each other. It is important to note that Indonesia was a colony of the Dutch and attained independence in the year 1945. Therefore, Indonesia’s constitutional structure resembles the Dutch structure. The legal system has its basis on the basic customs and the religious groups in Indonesia. Before the invasion by the Dutch, Indonesia comprised of kingdoms that enforced the adat or customary law and the Islamic laws. These laws have since been incorporated into the legal system. This paper seeks to analyze these laws in detail. It will discuss the most important sub-sections of the law that include the business law, civil law, criminal law, procedural law and the international law. It will present their meanings, differences in the application and their implementation in Indonesia. International Law in Indonesian Law The Indonesian constitution has had several introductions and amendments since Indonesia gained independence in 1945. The most recent amendment happened on August 2002. However, this amendment did not consider the implementation of the international law fully. Indonesia still maintains an unclear position on how the international law should be implemented in the country. In order to understand the conflict, it is important to focus on the international law and its effects on sovereign countries. International law involves the laws that govern the relation between nations and states. It is concerned with relations among nations, and not among the private citizens in each nation. There are two branches of the international law, that is, 1. jus gentium meaning the law of the nations 2. jus inter gentes implying the pact between different nations. The international law derives its applicability from the treaties between different nations. A good example of the product of these treaties, is the United Nations organization. International laws have their basis on the acceptable rules of conduct called jus congens in legal terms. The Indonesian law has its basis on different laws intertwined together. It is a complex relation of different laws, working in unison. Introduction of the international law is, therefore, not easy. There are many effects in the introduction of international law in a sovereign nation, some of them not desirable. Due this Indonesia is still not agreeable to the implementation of these laws within its jurisdiction of power. It is crucial to note that Indonesia does not oppose to the international laws. However, it does not state its stand on the matter, and this presents some challenges in the implementation process, and functioning of the legal system. Challenges Implementation of the international laws has its basis on the formation of charters that recognize the international community as contributing to Indonesia’s development. One such charter is the ASEAN charter of 1967. However, the failure of Indonesia to acknowledge the international laws creates some bottlenecks in their implementation. Consider the case of the Sipadan and Ligitan dispute between Indonesia and their neighboring country Malaysia. Indonesia preferred to solve the case through other channels rather than the international channels provided. The pride of the Indonesian state as a sovereign state continues to present problems in the operation of the international law within its domestic laws. Another major problem presents itself in the implementation of the international human rights law. The law answers the question, who has the authority to use armed force? There have been incidences of human rights violations in Indonesia. This is due to failure of the state to implement the international human rights law. Since the Indonesian legal system does not hold a clear position on the implementation of international laws in general, the organizations required for the smooth running of the human rights laws are not fully operational. Lack of laws that allow these organizations to work freely hinders the implementation of the international human rights law. Each country has laws that ensure that they do not harbor fugitives. The international laws call for the formulation of extradition laws which enable other countries to retrieve fugitives who hide in other countries. However, Indonesia lacks proper laws for the extradition of the criminals. For example, the extradition treaty between Indonesia and the USA does not allow the arrest of drug smugglers and other terrorist groups. Lack of clear extradition laws presents a challenge in the implementation of international laws based on extradition. Indonesia is comprises of citizens of different religious affiliations. As one prominent scholar notes, the most difficult thing for a nation with many religious groups is to have a clear stand in matters pertaining the implementation of universal laws. Each group must be fully represented in the laws. Given that Indonesia has many religious groups, it cannot fully support the implementation of international laws since some may interfere with the groups. The legal system still needs to incorporate the international laws, but since there are other factors to consider they maintain an unclear position. Legal pluralism in Indonesia Legal System Civil law is the most common law in the world. Civic refers to a set of ideas concerning citizens, civil and political rights and their freedoms. Legal pluralism refers to the existence of multiple legal systems. Indonesian legal system consists of three kinds of legal systems, which have their own courts or interpretive systems: 1. National law – This has basis on the Dutch law codes with French roots. 2. Adat/ local law – Deals with matters concerning real estates and inheritance 3. Islamic law – Deals with traditional matters especially family concerns affecting Moslem majority. Civic pluralism focuses on ways of living together while avoiding theological differences. Its central concern is on the practices of pluralism in a society consisting of different communities identifying themselves in religious terms. Religious pluralism refers to the co-existence of different religious groups that tolerate one others’ beliefs. According to Lukito 1992, In the Indonesian context, pluralism implies that one has to believe that religion is true. This has led to increased social conflicts in Indonesia involving those who favor and those who are against pluralism. For instance, many Muslims believe that there is only one God, and, therefore, they consider pluralism as unacceptable. However, there are some who support pluralism and feel that it is compatible with the Islamic religion. Indonesia Promoting Pluralism Knowledge Program, a movement in Indonesia, focuses on pluralism related mainly to religious matters. It educates people on pluralism, and this has made the civil society and religious groups step up their response to the increased radical religious fundamentalists. The movement focuses on understanding debates around fundamentalisms and pluralism and eases the access of civil society organizations to that knowledge. This knowledge helps to develop new strategies to promote pluralism and peaceful co-existence between different groups in Indonesia. The movement also focuses on the role of state in policy-making related to religions and religious communities. Furthermore, the movement enters into law, law-enforcement and formation of social consensus. The minority and vulnerable groups receive special attentions for their weaknesses. These weaknesses include gender matters and indigenous religious communities (Lukito, 1997). Civic pluralism is important to the people of Indonesia. It assists to find applicable measurements of solving social diversity. This concept is explored by the academic partners and civil society organizations in Indonesia. It improves the strategies and activities to create a balance between diversity and unity in society. In order to achieve this, the societies nurture the cultural enrichment that grows from multiple beliefs and loyalties, and commitment to shared values, principles and beliefs. This helps to solve the problem of social conflict among the different social and religious groups. Pluralism has played a big role in valuing and appreciating the contributions made by different social and religious groups within the society. Legal pluralism helps to clarify that the state law is not the only effective legal order, especially for solving disputes. It draws attention as well as globalised means of developing, interpreting and implementing laws. Indonesians benefit from this, in that, they have the freedom to solve their disputes using other methods, which incorporate their religious and cultural diversity. Indonesian Administrative Courts Despite the presence of the Indonesian state’s authoritative nature, Indonesia introduced a system of administrative courts in 1991 to facilitate the founding of the rule of law. This had its basis on the Dutch law, the Islamic law and customary law. This is because Indonesian archipelago was under the rule of Dutch from 1602-1945. A decisive factor in the establishment of the court system was the program of legal co-operation with The Netherlands, and the fact that The Netherlands presented a system which was acceptable to the New Order. According to Bedner (2001), there were a number of reasons for the introduction of the administrative system. 1. Provide protection to the citizens against unlawful deeds by the government. The general courts had limited jurisdiction in administrative issues hence ineffective in exercising their powers. This idea was rooting in civil law history, that administrative courts were the most effective in dealing with matters against the government, and reached Indonesia through the ideas of colonial jurists. 2. Separate courts were very expensive and had organizational problems such as staffing and housing. 3. Specialized courts made it possible for the government to control their number. The administrative courts had a limited jurisdiction. They could only review decisions of an individual, concrete and final nature. The amendment of Article 47 of Law, No. 5 Year 1986 on State Administration Judicature by Law No. 9 Year 2004 gave the courts the following jurisdictions: 1. To examine, decide and resolve state administration disputes. 2. Examine, decide and resolve matters forwarded to them. This jurisdiction is called, the jurisdiction to adjudicate. 3. To declare a state administrative decision null and void and award compensation and rehabilitation. According to Waluyo 1992, the Indonesian judicial system comprises of the Supreme Court of Indonesia (Mahkamah Agung), the Constitutional Court of Indonesia, other public courts, religious, military and administrative courts. The Supreme Court, located in Jakarta, is the highest court in Indonesia and the final court of appeal. It hears an appeal (kasasi) which is the last appeal from the lower courts and a chairman is the head. The Constitutional Court rules over constitutional disputes in Indonesia as well as matters involving elections and political parties. It’s headed by Mahfud MD. The public courts consist of the district courts in the first level and the high court at the appellate level. They try both criminal and civil cases involving Indonesian citizens. There are about twenty High Courts in Indonesia and these operate at the provincial level. These listen to appeals from the State Courts. There are about two hundred and fifty State Courts in Indonesia, having territorial jurisdiction each at city and regency level. Military courts deal with matters concerning the armed forces. In 1998, the Indonesian authorities established the Commercial Court to handle bankruptcy and insolvency issues. Appeals from these courts go directly to the Supreme Court. Development of the Indonesian Administrative Law Indonesia is a unitary democracy established with accordance to the constitution given at independence in 1945 (Undang Undang Dasar 1945). After the resignation of Soeharto in May 1988, some amendments occurred: 1992- Introduction of the Banking Law 1995- Introduction of the Company Law. - Formation of the Capital Market Law. 1998- The Indonesian authorities established the Commercial Court (Pengadilan Niaga), to handle cases concerning bankruptcy. - Amendment of the Banking Law 1999- Introduction of the Antimonopoly Law 1999. - The MPR issued the official hierarchy of legislation. 2001- Introduction of the Oil and Natural Gas Law. - Establishment of the Constitutional Court. Legality Principle in Adat The principle of legality is a human right and a fundamental defense in criminal law prosecution. It originates from a Latin phrase “nullum crimen sine lege, nulla poena sine lege,” which means that criminal penalties should be based only upon an anterior enactment of a ban with enough exactitude and clarity. According to Halevy (2010), legality principle has certain relevance in both administrative and criminal law. In administrative law, it is important to note that, in the want for state officials to be bonded by and apply the law rather than acting upon whim. In criminal law, it can be seen in the general inhibition on the imposition of criminal approvals for acts or omissions which were not criminal during the commission or omission. Legality is a principle of international human rights law featured in many codes of law such as the International Covenant on Civil and Political Rights. However, the infliction of fines for offences illegal under international law is disappears from its ambit. The principle legality can be affected in varying ways by distinct constitutional models. Many written constitutions do not allow the creation of retrospective (normally criminal) laws. Nonetheless, the principle has become part of customary international law. Those who have no provisions indicating the right of “no crime or punishment without law,” have codified the rights through statutes and treaties. The Indonesian adat laws consist of the customary and traditional laws. The principle is applicable in the Indonesian law together with other criminal laws. Below are some of the advantages of using the principle: The principle acts as a guarantee of human liberty. It protects individuals from state abuse and unfair interference, and ensures the transparency of the judicial system. The principle helps to constrain the government, judicial, and legislative systems from enacting on retroactive legislation, and ensure that all criminal behavior is criminalized, and all punishments established before the start of any criminal prosecution. It protects the principle of legal certainty and modern justifications in order to achieve justice and equal treatment. Helps to protect the integrity of the criminal justice process. It prevents factors such as political pressure or public opinion from influencing the sentence. It preserves judicial independence, safeguarding judges from pressures arising from non-legal influences by creating a statutory framework for penalties. The principle of legality in the Adat system advances consistency in sentencing hence upholding justice in the eyes of the public. It limits the use custom for the determination of a sentence. Here, it protects against abuse of power and guards against the influence of politically charged motives. It prevents the imposition of a heavier penalty than the one stipulated at the time the crime took place. However, the principle of legality as featured in legal pluralism in the Indonesian law system has some disadvantages, which denies it attention in the international criminal justice: “nullum crimen sine lege” addresses the punish ability of the conduct in question but fails to explain the legality of the actual punishment which is addressed by “nulla poena sine lege”. In some cases, the non-retroactivity aspect of the legality principle may delay imposition of accountability. This is because it has to adopt some definition before imposing accountability. The legality principle requires some judgments in application, rather than rules, which can be applied to prevent all possible retroactive application of new criminal law and new punishments. Indonesian Intellectual Property (IP) Law Property law in Indonesia has been neglected there before but the government ensured that the law has been put into practice. The attitude towards the law registered positive changes from the time the country gained independence in 1945 up to the late 1990s. The Indonesian Intellectual Property (IP) Law is imperative in the system because it ensures that there is fulfillment in the interest in protecting the rights of the intellectuals in Indonesia. The corresponding legislative and political activities also find the law suiting their needs. The Indonesian Intellectual Property (IP) Law is fat growing field of law in Indonesia because of the dire need of protection in the country. Because of the way people appreciate the law on intellectual property, the government launched a lot of reforms in Indonesia (GlobalTrade.net, 2010). In 1987, the government introduced copyright act which was followed by a patent in 1991. A new trademark act followed the two in 1993 which was ushered in to replace the Trademark Act of 1961. As a result of many developments, there were many ministerial decrees, governmental regulations, and other decrees in the line of administration which supported the Indonesian Intellectual Property (IP) Law implementation. The government made bilateral agreements which protected the copyrights with a number of western countries such as the United States, Australia, the United Kingdom and the European Union countries. The development helped in the ratification of the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement which was a part of establishing the World Trade Organization in 1994 by the Indonesian government (GlobalTrade.net, 2010). Mel finds it difficult to compete with Gibson who uses his sign because despite the amendments of the Indonesian Intellectual Property Law, it is still difficult to enforce the laws. The intellectual property laws do not compatible with Adat which is a system of Indonesia customary norms. The Adat does not recognize the ownership of intellectual works hence making it difficult for Mel to claim that he owns the sign that Gibson uses. The sign that Mel and Gibson uses is an intellectual work. The sign should be used by both companies because deciding on who to be left with the sign is a hard task for there is no provision s in the law where superiority in the case of intellectual ownership reins. The laws are inappropriate to the point of technological and economic expansion in Indonesia. In the previous patent, copyright and trademark acts, I would judge that Gibson leaves the sign to Mel for the latter is the one who came up with his product first. Mel is supposed to patent his products and us the sign as a copyrighted thing for identification and distinctiveness (GlobalTrade.net, 2010) Arbitration and Alternative Dispute Resolution If I have a dispute with my Indonesian business partner, I would go for alternative dispute resolution rather than litigation because in the case of business, the intellectual property law, the Adat customary law is more pointed in the overall law hence making it almost the supreme law in the country. The decisions of the country’s disputes lean on to the side of the customary law than the legal one. Litigation would only make me spend my resources in sustenance of a case against my partner but in the end his side would win. Alternative dispute resolution adds in the assorted approaches which are far from litigation (Sutadi, 1999). According to the Indonesian constitution, the use of arbitration is a way of resolving issue away from the court which is provided in the constitution. This is a good way of approaching a case because the court system is not raw for it employs a lot of procedural activities which do not address the pertinent issues concerning the two parties involved. They do not get to the personal points of matter which can be provided for by the alternative dispute resolution. By using alternative dispute solving procedures, the good faith application is involved where the parties settle their case according to how they agree. There is need to have a written agreement after deciding on the case which should be done in writing to ensure that the process is closely monitored (Gillespie, 2007). Despite the fact that Indonesia still uses the legal system of justice, it is appropriate to use the ADR because it helps to supplement the struggling process of creating a truly Indonesian legal system. The challenge is because of replacing the legal system used in the colonial time with an indigenous system that is national wide. Before such a system is fully put in place, it is appropriate to ensure that one makes peace with the partners hence the application of the alternative dispute resolution (Gillespie, 2007). The system of alternative dispute resolution is widely used in transformation of governmental ideologies because there have been examples of ministerial decrees that the president offers. For example, ex Presidents was able to control the judicially effectively by using the procedure in dispute resolution. By ensuring that I settle my conflict in an amicable means, I welcome continuity of business with my partner without causing our business to fail. The law has a provision that people can decide what they want and sign an agreement of understanding to the mediator who monitors their actions closely without being biased with any of the partner. References Bedner, A. (2001). Administrative courts in Indonesia: a socio-legal study. Leiden, The Netherlands :Martinus Nijhoff. Gillespie, P. (2007). Arbitration, Alternative Dispute Resolution and The Importance of Stakeholder Engagement in Indonesia. ASIAN INTERNATIONAL ARBITRATION JOURNAL, VOLUME 3, NUMBER 2, PAGES 187213. GlobalTrade.net. (2010). Protecting Your Intellectual Property in Indonesia. Retrieved on 5th February, 2012 from http://www.globaltrade.net/f/business/text/Indonesia/Legal-and-Compliance-Corporate-Law-Protecting-Your-Intellectual-Property-in-Indonesia.html Hallevy, G. (2010) A Modern Treatise on the Principle of Legality in Criminal Law .Heidelberg: Springer-Heidelberg. Kelsen, Hans. (1952) Principles of international law New York: Rinehart. Lukito, R. (1997). Islamic Law and Adat Encounter: the Experience of Indonesia. Retrieved on 5th February, 2012 from http://www.collectionscanada.gc.ca/obj/s4/f2/dsk2/ftp03/MQ37218.pdf Sutadi, M. (1999). The Implementation of ADR in Indonesia. Retrieved on 5th February, 2012 from http://www.aseanlawassociation.org/9GAdocs/w4_Indonesia.pdf Read More