Historical context
followed, the Shafi'i school oflaw (or madh’hab), one of the four main schools of Sunni Islam, was followed.[781]
When the Dutch arrived in Indonesia, legal pluralism and legal syncretism were in place.[782] The Dutch, like all colonial powers, were interested mainly in the economic exploitation of Indonesia.
Soon, however, it was realised that legal pluralism was a good tool for exploiting Indonesia.[783] At first, the Netherlands granted a monopoly and full jurisdiction over territories that include present- day Indonesia to the Vereenigde Oostindische Compagnie (VOC), incorporated in 1602 (literally the �United East Indies Company', which incidentally was the first company to ever issue shares). The VOC was interested in trade; so as long as local laws did not interfere with trade they were left alone. In fact, this helped the exploitation of local resources and labour. Like other colonisers who brought their own laws, the Dutch too applied Dutch law to themselves particularly in trade but also in family and other matters. At first, the Dutch were mainly in Batavia (now Jakarta) and as they had little control over the entire territory, they readily recognised that most disputes among native Indonesians should be solved under their own law.At the end of the 18th century, the state took over from the VOC and in 1818, a native court (the Landraad) was created. The state occasionally made separate, often Western-inspired, laws for the natives such as separate rules of criminal procedure that offered less protection than the Western rules applied to the Europeans. This led to a dual system of courts which can be likened to a form of judicial apartheid.
The Dutch felt they needed to use legally significant categories that could lead to clear rules of conflicts. From the original, simple â€?us and them' approach, the categories became increasingly complex to the point that people were classified as Europeans, Foreign Orientals (mainly Chinese), Foreign Orientals who were deemed Europeans (including theJapanese because Japan had adopted WesternÂstyle codes), Muslim Natives, and Non-Muslim and Non-Christian Natives or Natives who had converted to Christianity (to whom in some respects European law applied).[784] Companies as juridical persons were also classified as European, being the offspring of the Dutch Commercial Code.
Commerce increasingly was governed by European law, even when it was carried out by Foreign Orientals (Chinese). Even land did not escape this kind of classification. Land was either European or Native. Natives as well as Native land were governed by plural and very diverse adat laws as well as, sometimes, Islamic law. Complex abstract and Western conflicts of law rules were developed to deal with this increasingly complex pluralism.11There was debate over whether Dutch law should be made the only law applicable to all people and land in Indonesia. Cornelis van Vollenhoven, a professor of adat law at Leiden University in the Netherlands, defended adat law.12 His defence of adat law led to the adoption of what came to be known as the Ethical Policy. The Dutch Parliament rejected the imposition of Dutch law on all Indonesians and decided to let adat law govern the lives of native Indonesians.13 Itwas a victory for legal pluralism which continued unperturbed, until the Japanese invaded Indonesia. Because little legal influence from the Japanese occupation is left in Indonesian law, this short history will go directly to post-Independence law.
Independence was declared on 17 August 1945 and the 1945 BasicLaw (or Constitution)14 was proclaimed the next day on 18 August 1945. Only in 1949 did the Dutch recognise Indonesia’s independence, thus putting an end to the armed conflict. Recognition was on the condition that there be a new Constitution: the Constitution ofthe Republic ofthe United States of Indonesia.15 This was briefly in force from December 1949 to August 1950. Nationalists perceived federalism as an imposition by the Dutch for the purpose of dividing Indonesia. Through proper amendment of the federal Constitution, in August 1950 a new Provisional Constitution16 came into force and created Indonesia as a unitary as opposed to a federal state. That Provisional Constitution provided for a Konstituante (from the French word iconstituante, for an elected �constituting assembly’) tasked with the drafting of a new Constitution.
This was a period of democracy with free and fair elections but no clear agreement on the text of the new Constitution. After Sukarno concluded that the Konstituante would not provide Indonesia with a satisfactory Constitution, on 5 July 1959 he decreed (unconstitutionally) that the 1945 Constitution would once again be Indonesia’s Constitution and it remained unchanged, with no amendment whatsoever for 40 years until 19 October 1999.During his â€?Guided Democracy’ (1959-66), Sukarno became increasingly undemocratic, declaring himself â€?President for life’ in 1963. Significant pieces of legislation were adopted during that time (for example, the BasicAgrarianLaw) but the economy was not improving following left-leaning policies of expropriÂation of foreign enterprises and of nationalisation. At a time when communism was perceived as a real threat, the West, mainly the United States of America, became concerned about his left-leaning leadership. In circumstances which are still very controversial to this day, following the murders of high-ranking
11 For more details, see Sudargo Gautama, op. cit., pp. 1-26.
12 Van Vollenhoven came to be known as the founder of the Leiden School. Today, the Faculty of Law at Leiden has the Van Vollenhoven Institute for Law, Governance and Development, which continues to study adat law.
13 See D S Lev, �Colonial Law and the Genesis of the Indonesian State’ (2000), op. cit., p. 21.
14 UndangUndangDasar1945.
15 Konstitusi Republik Indonesia Serikat.
16 Undang-UndangDasarSementara.
army officers in September 1965, General Suharto caused President Sukarno to issue the so-called Supersemar[785] on 11 March 1966 by which Sukarno effectively granted all of his power to Suharto. The next day, the Communist Party, accused of attempting a coup, was abolished. Probably more than half a million people were killed during 1965-66 through pogroms and purges staged in complete lawlessness and unaccountability. There is not much law to talk about during that period. This is how Suharto's �New Order'[786] started: an era of dictatorship under Suharto who officially became President in 1967.
Though a dictatorship, the New Order was concerned with economic and human development and laws were changed to allow a freer flow of foreign investment.[787] During that period, Indonesia developed economically. After a 32-year reign, in 1999 Suharto fell a victim to the Asian financial crisis (thus proving the danger of relying solely on economic development for one's legitÂimacy). It was the start of the present Reformasi (Reform) era, an era of rapid democratisation. The constitutional and other reforms of this new era will be described below as this is the law as it now stands.
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