Johannes Nugroho: Indonesia's Legal Code Is So Outdated It's Just Criminal

Goldman Sachs has lost a court appeal in Indonesia over whether it should return shares in property developer Hanson International to tycoon Benny Tjokrosaputro in a legal tussle over ownership. (Antara Photo/Rosa Panggabean)

By : Johannes Nugroho | on 5:06 PM March 22, 2016
Category : Opinion, Columns

The 1945 Indonesian Constitution may have been amended four times since Reformasi in 1998, but the same can’t be said for the country’s legal and criminal codes. The core of our legal system hasn’t changed all that much from the Dutch colonial days more than 70 years ago. To complicate matters, the continued Roman Dutch civil law system in place is susceptible to re-interpretation, intervention and exception by tribal customary law and its religious counterpart.

It’s hardly surprising that the intermixture of all these strands often produces contrary as well as confusing legal verdicts. For the sake of legal clarity and rule of law, it’s high time that we attempted to work out a more user-friendly system that better reflects the post-colonial reality of Indonesia.

One of the most baffling aspects in the Indonesian legal code is the inheritance law. Broadly speaking, the current law recognizes three different categories of citizens for whom different sets of rules exist: Muslims are legally bound to follow Islamic inheritance precepts, non-Muslims follow a mixture of statutory and customary laws, and, almost farcically, “those equated as Europeans [Indonesians of European, Chinese, Indian and Arabic descent] will follow the rules of inheritance according to the civil code.”

Although the current presets were enacted into law by a 1957 Presidential Decree and 1962 legislation, the legal basis can be traced back to Dutch colonial period. The Dutch colonial administration’s policy was the official segregation of the then-Dutch East Indies subjects into three social strata: Europeans (including Eurasians), Orientals (Chinese, Indians and Arabs) and the indigenous inlander or bumiputera.

What is regrettable, such discriminative and outdated spirit was simply continued by the newly independent republic, making equal treatment before the law a difficult caveat. For instance, in order to determine an estate’s legal heirs, racial distinctions must be taken into account. For the “indigenous pribumi” a deed based on the consensus of the heirs, presumably based on either religious or customary laws, is deemed sufficiently legal even though it is not registered with the state, provided there are two witnesses to it and is also signed by the village head or district head.

By contrast, Indonesian nationals of Chinese or European descent must have their inheritance standing determined by a state-appointed notary who will petition the court to issue an inheritance deed after consulting with the State Testamentary Registry and the inheritance law as defined by civil law. For those of Indian or Arabic descent, the inheritance deed must be issued by a separate agency.

Such distinctions may have made sense in the colonial era, when, for instance, almost two-thirds of ethnic Chinese were both Dutch and Chinese subjects. The Dutch government saw Chinese born in the Indies as Dutch subjects though not necessarily citizens, based on the principle of jus soli, or their place of birth. The Chinese government, however, recognized the principle of jus sanguinis and claimed every child born of a Chinese father or mother as its national.

But to retain such distinction today is anachronistic, to say the least. The 2006 Law on Indonesian Citizenship clearly dispenses with the term “pribumi” by defining an Indonesian national as someone who is born of parents with Indonesian citizenship or at least one parent, and anyone whose citizenship status is unclear or stateless but was born in the country. So it is ironic that while our statutory law recognizes no racial distinction for all Indonesians, the antiquated colonial legal segregation has been allowed to survive in our legal code untouched.

It is also paradoxical that against the government’s avowed zeal for national unity and identity, such divisive precepts have been perpetuated at all. It is also only a matter of time before the current legal distinctions will become untenable as intermarriage between people from various ethnic groups becomes more common. At worst, it is also a transgression against basic human rights as it complicates matters for Indonesian citizens in interfaith marriages or those who convert to other religions.

The issue of equality before the law will become more important as Indonesia’s democracy matures, requiring drastic amendments to our legal code as a whole. It is naive to believe that it will be easy to reform our legal system overnight, but indeed it is a Herculean task that needs our immediate attention. Considering the very little reform that has occurred within the country’s legal system, such overhaul seems overdue. The late attorney and human rights activist Adnan Buyung Nasution certainly saw such reform as crucial to the future of the rule of law in Indonesia.

Though the need for legal reform to our outdated laws is certain, the challenges shouldn’t be overlooked. The three strands of law – civil, religious and customary – which make up Indonesia’s legal system today have been in operation together for as long as anyone can remember. So the mere thought of reform may send shockwaves across the country’s legal professions. Many will resist. Even so, it’s hard to imagine an outdated set of laws, in most cases abrogated long ago in the Netherlands, can still bare its teeth in a former colony.

Johannes Nugroho is a writer from Surabaya. He can be contacted at johannes@nonacris.com and on Twitter: 

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