Legalinstitutions

4.1 Making state law and making laws to apply non-state law

State law-makers, state law and the hierarchy of sources

State law-making powers²⁷

The 1945 Constitution as amended as of 2002 (hereinafter the Constitution),²⁸ states that â€?the State of Indonesia is a State of Law', in Indonesian a â€?negara hukum^,, from the French Etat de droit^, and the Dutch/German ⁱRechtsstaatj the civil law's closest equivalent to the common law concept of rule of law.²⁹ The reform of state institutions and of the Constitution since 1998 has also insured that Indonesia is now a democracy.

Before looking at the institutions that the Constitution establishes, it is impor­tant to point out that the amended Constitution includes a full �Bill of Rights' which protects citizens from the state violating their human rights, and thereby limits the law-making powers of state institutions. Although some basic human rights were contained in the 1945 Constitution, the amended Constitution not only has an exhaustive list of such human rights but also insures the means by which they are protected (more on the Constitutional Court below).

The first or highest institution of the state is the People's Consultative Assem­bly (Majelis Permusyawaratan Rakyat, hereinafter MPR). The MPR is now made up of all the members of the other two chambers of Parliament, the DPR and the DPD (see below). Its role, however, is now very limited. It can amend the Constitution, inaugurate the President and Vice President and, contrary to what was the case in the past, can only impeach the President and Vice President in accordance with the Constitution and with the assent of the Constitutional Court.³² It has no role in the adoption of any law or statute.

The Regional Representatives Council (Dewan Perwakilan Daerah, here­inafter DPD) may propose Bills to the DPR and participate in the discussion of

27 I will here only describe the law-making institutions of the state as they stand after the amending of the Constitution. Some legal instruments adopted before 2002, such as the MPR decrees and the Five-Year Plan (Garis-Garis Besar), may still be in force even though they no longer fit the descriptions below.

28 For greater clarity, �1945 Constitution’ will refer to the unamended text and �Constitution’, to the amended text as it stands since 2002.

29 Constitution, art 1(3): Negara Indonesia adalah negara hukum^,.

30 Constitution, art 22E.

31 Constitution, art 6A.

32 Constitution, arts 2, 3, 7B and 37.

Bills relating to regional autonomy and the regions, but in fact it has no power to vote on Bills or block a Bill. It plays a consultative role in the legislative process but its consent is not required for any Bill to become a law.^[793]

The House OfRepresentatives (Dewan Perwakilan Rakyat, hereinafter DPR) is the assembly which adopts the statutes for the President’s approval. A Bill requires the joint approval of the DPR and the President.^[794] Both the President and members of the House are entitled to propose Bills. Legislative initiative is no longer the prerogative of the President or the executive.^[795] If the President enacts a government regulation in lieu of statutes (see below), then the DPR must approve it at its next session or it ceases to have the force of law.^[796]

The President also has some law-making powers. He can propose Bills to the DPR and approve the adopted Billsjointlywith the DPR and sign them into law.^[797] In cases of emergency, the President can proclaim a �Government Regulation in Lieu of Law’ (Peraturan Pemerintah Pengganti Undang-Undang or abbreviated as Perpu), which basically has the same status as a law but ceases to be in force if it is not ratified by the end of the next session of the DPR.^[798] The President may also issue government regulations as required to implement the laws.^[799]

Under the Constitution^[800] and the regional autonomy laws,^[801] the regional governments now exercise many more powers than before the Reform Era, resulting in a decentralisation of many rule-making powers.^[802] There are regional governments at the provincial level (33 provinces), each with a Governor and a regional assembly that adopts regulations.

There is no easy way to find out what regulations have been adopted by the hundreds of regional governments as these are not centrally published and are often not easily accessible even in the regions. This has brought great legal uncertainty to Indonesia. There are also often power struggles between regional governments and with the central government, and this is in part due to the fact that the division of powers is not always clear, and even when it is clear, it is often ignored. The Constitution grants residual powers to the regional govern­ments: the regions have all the powers of the state except those powers that have been assigned to the central government by law (by statute, known as undang- undang). Therefore, any power not assigned to the central government by statute belongs to the regional government. The regional autonomy laws now in force try to clarify the division of powers but there is still great legal uncertainty.⁴⁴

The confusing state of legislation in Indonesia and the hierarchy of sources of law

Given the extent of contradictions between the different levels of legislation, there have been many successive efforts in Indonesia to legislate a hierarchy of sources of law:.⁴5 The latest hierarchy was adopted in 2004. According to art 7(1) of Law No. 10 of2004 on the Making OfLegislative Instruments the hierarchy of sources of law is as follows:

1. the Constitution

2. law, or government regulation in lieu of law

3. government regulation

4. presidential regulation

5.

In Indonesia there is no formal distinction between a code (kitab) and a law, a statute or an Act (all are called undang-undang). Technically, codes in Indonesia are statutes and in fact codes are usually called â€?kitab undang-undang^, or literally a â€?code of legislation'. Some laws are called codes because they purport to regulate a whole field of law completely. There are, however, very few such codes. The Civil Code and the Commercial Code are in Dutch and were never amended except to abolish parts of them when new statutes were adopted in Indonesian. This is not without significance as the new statutes are often not as broad, systematic and all-encompassing as the Codes once were. The one exception is the new Code of Penal Procedure.⁴⁷

One of the major problems in Indonesia is that too often, the hierarchy of sources of law is simply disregarded. First, some legal rules of the same level contradict each other. For example, the Law on RegionalAutonomy⁴⁸ when first adopted directly contradicted many other laws which granted the same powers to a central ministry rather than to the regions (the law on mining, for exam­ple). These laws have not been formally repealed or amended so there is a

44 For an assessment of the initial regional autonomy laws that came into force in 2001, see G F Bell, �The New Indonesian Laws Relating to Regional Autonomy: Good Intentions, Confusing Laws', Asian Pacific Law and Policy Journal, vol. 2, no.1, 2001, p. 1; and G F Bell, �Indonesia: The New Regional Autonomy Laws, Two Years Later', SoutheastAsian Affairs, 2003, p. 117. For an assessment of the present laws, see L Schmit, �Decentralisation and Legal Reform in Indonesia: The Pendulum Effect', in T Lindsey (ed) (2008), op. cit., p. 146.

45 See, for example, Decree ofthe MPR NumberIII/MPR/2000 regarding Sources ofLaw and the Hierarchical Order ofLegislativeRules of 18 August 2000.

46 Known in Indonesian as Undang-UndangRepublikIndonesiaNomorWTahun 2004 TentangPembentukan Peraturan Perundang-Undangan, s 7(1).

47 Law No. 8 of 1981 on Criminal Procedure, known as the Penal Procedure Code, or in Indonesian: Kitab Undang-Undang Hukum Acara Pidana (KUHAP).

48 LawNo. 22 of1999onLocal Governance. contradiction between two laws at the same level. Normally, the rule is that the law adopted last should prevail over the older law as it is the most recent intent of the legislator. The problem in Indonesia is that it is rarely the case in practice and a power struggle often occurs between the different ministries and authorities.

Second, there are also conflicts between different levels of normative rules within the hierarchy. The rule to solve such conflicts should simply be that a normative rule of a higher level within the hierarchy should prevail over a rule at a lower level.^[804] For example, a government regulation that contradicts a law should be held to be invalid - since the law is at a higher level, it should prevail. Unfortunately, it is very often not the case. For example, the regional autonomy law and the Constitution itself clearly state that the central government only has the powers that are assigned to it by a law (undang-undang) - all other powers belong to the regions. Yet former President Megawati purported to grant powers to the central government on the land offices by a presidential decree rather than by law.^[805] Notwithstanding this irregularity, the central government in fact continued to exercise jurisdiction on the land office. There are many instances where it could be argued that laws are contradicted by implementing regulations.^[806]

Another problem is that laws in Indonesia often state very general principles that the laws themselves say will need to be defined in more detail by regulations. The problem is that very often, the law comes into force before the regulations are ready, thus leaving everyone in the dark about how to implement the law. For example, the BasicAgrarian Law^[807] left it to another law or regulation to regulate mortgages.

The non-respect of the hierarchy of sources of law shows a number of short­comings in the legislative process in Indonesia. The confusing state of the law makes the task of law reform more difficult. Very often, the failure to effectively reform the law comes from the fact that one cannot easily get an accurate version of the law in need of reform. There is no official consolidation of all laws and reg­ulations in force as amended. Therefore, one must often look into many different laws and regulations with their numerous amendments at different levels and in different ministries in order to get a full picture. Often, the legislature adopts a new law without having had the benefit of a full survey of all the laws and regulations which may be affected. There have been improvements, however, and recent laws and regulations have been published on the internet^[809] and in other privately owned databases,^[810] making them more readily available.

The Constitutional Court has now started to enforce the constitutional hier­archy of sources of law and those laws which are against the Constitution will now be declared invalid. Unfortunately, the Constitutional Court has no juris­diction to review the constitutionality of regulations and whether these were adopted ultra vires. The Administrative Court could also play a more limited role in declaring invalid government regulations. The role of these courts in enforcing the hierarchy of sources will be discussed below. However, their limited juris­diction would not allow them to completely clear up the confusion created by contradictory legal instruments.

The state and adat law

As we have seen above, at its origins, adat lawisnotstatelaw-itisanindigenous, chthonic customary law.^[811] The Dutch saw adat law as a subservient law - it was allowed to survive when Dutch law said so, and Dutch law always prevailed over other laws when it so wished. The Dutch had reified adat into rules to be applied by their courts, thus changing its nature from an informal community law to a law formally applied by state courts and defined by state court precedents.^[812] The question was, would the Indonesian state recognise adat, and if so, what form of adat (the subservient Dutch version)?

After Independence, many different attitudes in legal policy towards adat law became almost irreconcilable. Anti-colonialism prevented the outright adoption of Western law; the popularity of the Leiden School among indigenous jurists meant that adat law, its diversity and Dutch-style legal pluralism had to be paid respect to;^[813] yet nationalism and the need to promote Indonesian unity and encourage �development and modernisation' were believed to demand some degree of national integration in law; and many urban Dutch-trained nationalist leaders looked down on adat law as less than modern and hindering develop­ment. Under the guise of ^lIndonesianising' the law, the legislator sometimes adopted laws that were national in nature and purported to codify adat law. Of course, adat laws were usually oral, plural and not legislated and therefore the very concept of national adat legislation seems to go against the very concept and definition of adat law. Adat �principles' were a Western abstraction developed by Dutch jurists belonging to the Leiden School, which was later adopted by roman­tic Indonesian jurists such as Soepomo who thought that national legislation should be based on such abstract principles.

The prime example of such national �adat-based' legislation is the Basic Agrar­ian Law^[814] (hereinafter BAL), which replaced the land law (law on immoveable property) of the Civil Code (European law) and purported to replace all the adat laws relating to land over all of Indonesia.^[815] BAL was state law purportedly inspired by adat law. It is, however, in fact Western-style law (requiring the reg­istration of land rights, for example) disguised in adat law terminology.^[816] The end result is rather disastrous as the traditional adat land rights were not in prac­tice displaced by the BAL and in fact very little land was ever registered under BAL. In many rural areas, the people simply ignored the posited national law and continued their life and land tenure according to their own adat traditions. By some estimates, less than 20 per cent of land rights have been registered and only 10 per cent in rural areas.^[817] Yet the BAL does not recognise unregistered traditional land rights. This creates a new kind of legal pluralism - state law that is generally ignored and traditional adat law no longer fully recognised by the state but which in reality is the law that people follow. The BAL is an outright failure to �modernise' and standardise all land law in Indonesia. Its failure is an example of the resilience of adat law in some parts of Indonesia.

In most other fields of laws where the Dutch applied adat law, however, particularly with respect to personal laws, the modern Indonesian state continues the legal pluralism recognised by the Dutch. Adat law continues, for example, to play a role in inheritance and family law, but the law applied is the adat law as the Dutch had documented it and applied it in their courts - the adatrecht.^[818]

The second amendment to the Constitution mentioned adat at art 18B(2) under the heading �Regional Governments' and therefore seems to link adat and regional autonomy. It states that �The State recognises and respects the adat law communities [kesatuan-kesatuan masyarakat hukum adat] along with their traditional rights [hak-hak tradisionalnya] as long as they remain in existence and as long as they do not conflict with societal development and the principle of the Unitary State of the Republic of Indonesia'.^[819] Potentially, a national law could be held unconstitutional for having violated the traditional rights of an adat law community. The potential of such a provision is probably not yet fully realised.

The state and Islamic law

Since the vast majority of Indonesians are Muslims, a recurring question has been whether the Indonesian state should be an Islamic state. The debate on this issue has crystallised into a debate for or against the introduction of the so- called Jakarta Charter (PiagamJakarta) into the Constitution. On three separate occasions, including one very recently, the Jakarta Charter was rejected and Indonesia remains to this day essentially a secular state.^[820]

The Jakarta Charter would have introduced in the original 1945 Constitution an additional seven Indonesian words: �dengan kewajiban menjalankan syariat Islam bagi pemeluknya^, - �with the obligations for adherents of Islam to imple- ment/follow Sharia.' It would arguably have made it a constitutional responsi­bility of the state to implement Sharia among Muslims. The introduction of the Jakarta Charter into the Constitution was first rejected in 1945 by the found­ing fathers of Indonesia in large part so that non-Muslims would feel comfort­able in joining the new Republic. It was rejected again during the deliberation of the Constituting Assembly (Konstituante) in 1959. It was rejected again as recently as in 2002 when the MPR refused to include it in the fourth amend­ment of the Constitution. Interestingly, in 2002 even the two largest Muslim organisations in Indonesia, Nahdhatul Ulama and Muhammadiyah, rejected its adoption.^[821]

Parts of Islamic law are nevertheless implemented by the state in Indonesia.^[822] It has been described as a �public religion in a secular state'^[823] in the sense that Islam is not a private religion in Indonesia but �a public and state institution­alised religion suspended in the framework of a secular nation state'.^[824] There is a Ministry of Religion in charge of Muslim affairs including the payment of the zakat (a religious tax or alms) and the organisation of the haj (the annual pilgrimage) for example. As we will see below, there are also Islamic Courts which administer the marriage and personal law of Muslims. There are in fact many laws implementing some aspects of Islamic law.^[825]

Even though Islamic law is not state law, interestingly the Indonesian state has nevertheless attempted to play an influential role in defining or at least influencing the very substance of Islamic law. The mostimportant example of this is the Compilation of Islamic Law (Kompilasi Humkum Islam) which was drafted by the Ministry of Religion in collaboration with the Supreme Court and issued in 1991 as a Presidential Instruction (InstruksiPresiden).^[826] It contains a summary of the rules on marriage, inheritance and wakaf (charitable foundations). It is not a statute and is described as a �guide for the judge'^[827] based on the following non­state sources oflaw: texts from the Shafi'i school oflaw (madh’hab),^[828] additional texts from other schools, jurisprudence from the courts (which is not a traditional source of Islamic law), fatawa of ulamas and the �situation of other countries'.^[829] Although the state did not adopt a binding statute that would purport to replace the true sources of Islamic law, it has nonetheless exercised great influence on the substance of the Islamic law applied by the courts as the Compilation of Islamic Law is usually followed to the letter by the courts.

It should be noted also that as a consequence of the peace agreement with the former rebels in the province of Aceh, the central government has allowed Islamic law to play a greater role in Aceh than in the rest of Indonesia.^[830] The dust has not yet settled on this political compromise and the way in which more Islamic law will be implemented in Aceh is only slowly taking shape.

4.2 Interpreting and applying the law: the judiciary

In 2001 Adriaan Bedner wrote:

More than two years following the demise of Soeharto, Indonesia is still grappling to find a way out of a profound economic, political and social crisis. How long this struggle will last and what the outcome will be is impossible to predict. However, one point of consensus seems to have emerged from the diversity of opinion concerning Indonesia's plight: if the position and performance of the judiciary does not radically improve, the prospect of any lasting stability is slim. For this reason, the judiciary has now become the focus of much public debate, with many politicians, scholars and others proffering suggestions to solve the problems that have plagued the administration of justice for so long.^[831]

The reputation of the courts (particularly the general courts) is not high, and there are concerns about corruption, a continuing lack of independence^[832] and a lack of professionalism. Some progress has been made to improve the position and performance of the judiciary since Bedner wrote the above passage, but much of the task of reform still lies ahead.

On paper, there has been much progress in ensuring the constitutional inde­pendence of the courts. The Indonesianjudiciary is one of the institutions of the state provided by section IX of the Constitution and its powers are now constitu­tionally protected. Article 24 of the Constitution states in part:

1. Thejudicial powers shall be independent with the authority to organize the judica­ture in order to uphold law and justice.

2. The judicial powers shall be carried out by a Supreme Court and by its subordinate judicial bodies dealing with general, religious, military and state administrative judicial fields, and by a Constitutional Court.

The Constitution now also provides for an independent Judicial Commission that plays a role in the administration of the courts independently from the Government.^[833]

Constitutional Court

Before recent amendments to the Constitution, no Indonesian court had a clear mandate to review the constitutionality of laws. At the time of Independence in 1945, clause II of the Transitional Provisions of the original 1945 Constitution provided that all colonial laws continued to be in force until amended unless they were inconsistent with the Constitution. In 1963 the Supreme Court issued a circular to all the courts declaring that some provisions of the Civil Code (a Dutch colonial law) could not continue to be applied presumably because the Code contradicted the Constitution (though this was not clearly stated).^[834] What the Supreme Court could not do, however, was declare unconstitutional a law adopted by independent Indonesia after 1945.

In 2001 the third amendment to the Constitution mandated the creation of a new Constitutional Court before 17 August 2003. Law No. 24 of 2003 on the Constitutional Court created the Court and the judges were appointed and sworn in just before the deadline established by the Constitution.

Indonesia has adopted the continental or Kelsenian model of Constitutional Court.^[835] Under this model, constitutional adjudication is conducted by a spe­cialised court and not by every judge of every court at every level of jurisdiction as is the case in the American model. A final decision is therefore reached more quickly and decisively by a court specialising in constitutional law. That kind of constitutional court is separate from the other courts of a country and is not in the same hierarchy as these other courts. In Indonesia, the Constitutional Court is made up of nine judges, three named by the President, three by the House of People's Representatives (the DPR) and three by the Supreme Court.^[836]

The Constitutional Court has jurisdiction as a court of both first and last instance (the parties go directly to the Court, from which there is no appeal): (1) to review the constitutionality of Acts of Parliament or statutes (undang-undang) that have been adopted;^[837] (2) to resolve jurisdictional disputes arising between state institutions whose powers are granted by the Constitution; (3) to dissolve political parties; and (4) to decide any dispute arising from the elections. In addition, (5) it must decide on the validity of any impeachment of the President by the House of People's Representatives (the DPR).^[838]

It should be noted, however, that the power of the Constitutional Court to review the constitutionality of legal instruments is very limited. It can only review the constitutionality of statutes (undang-undang) and it cannot therefore review the constitutionality of government regulations, presidential regulations or regional regulations.^[839] For example, some regional regulations which impose Islamic dress codes in state schools arguably go against the freedom of reli­gion provided by the Constitution, yet the Constitutional Court lacks jurisdiction. In another limitation, the Law on the Constitutional Court purports to limit the jurisdiction of the Constitutional Court to statutes adopted after the First Amend­ment to the Constitution, that is, to statutes adopted after 19 October 1999,^[840] even though the Constitution grants jurisdiction to the Supreme Court to review all statutes without such limitation. In addition, the Court does not have juris­diction to review the constitutionality of administrative actions by state agencies or officials. For example, if a police officer discriminates based on religion and systematically only arrests those of a certain religion for traffic violations, the Court has no jurisdiction to declare his or her actions unconstitutional since the text of a statute on traffic violations is not itself unconstitutional. There may be recourse, however, in the Administrative Courts against the officer or the police generally (see below).

Nonetheless, the Constitutional Court has played a very active and important role since its creation. Some of its decisions have been very controversial, but no one could accuse the Court of not taking its role seriously or of being compliant to the Government. Many important human rights decisions have been rendered by the Court and the Court has played a very important role in ensuring the fairness of the last two legislative and Presidential elections (in 2004 and 2009), thereby strengthening democracy in Indonesia. The Court has quickly earned the reputation of being competent, efficient and not corrupt.^[841] It therefore stands out as a model for other Indonesian courts.

Ordinary courts

It is sad to report that there is widespread agreement in Indonesia that the court system and judiciary are in dire need of reform. Even though there are many good and honest judges throughout the country, the reputation of the courts is one where corruption is too common,^[842] where competence and fairness are not always as high as they should be. Some even talk of the Supreme Court as a case of institutional collapse.^[843] Not all the judges are to blame nor should the blame be entirely on the judges. After Independence and before 1998, the judiciary was not entirely independent. For example, art 19 of Law No. 19 of 1964 on Judicial Power was used to grant the President power to intervene in the decision process of the courts. One should not be surprised that the judiciary comes out weakened from long non-democratic regimes which had little time or patience for the rule of law. It is normal that reform of the judiciary is now required in this new democratic era.

The diagnosis is easy but the cure is not. There are about 7000 judges with a staff of 27 000 throughout Indonesia.^[844] One of the main difficulties is the lack of resources to provide decent salaries, working conditions and the infrastructure required to efficiently deliver justice. Some structural reforms have, however, been introduced recently through constitutional amendments and through leg­islation, both of which will go a long way towards improving the situation.

The new art 24 of the Constitution protects the independence of the judiciary. This independence was upheld by the Constitutional Court in a case between some Supreme Court Judges and the Judicial Commission.^[845] The Constitution also creates a Judicial Commission to propose candidates as Justices of the Supreme Court, thus depoliticising to some extent the appointment process.^[846] In addition, the law has now implemented the so-called one-roof system. In the past, the Ministry of Justice effectively administered the General Courts and their budget (and the Ministry of Defence the Military Courts, and the Ministry of Religion the Islamic Religious Courts), thus raising serious concerns about the independence of the judiciary. Since 2004 all responsibilities including budget and personnel for the administration of the judiciary are under the supervision of the Supreme Court (the �one roof), thus ensuring the independence of the judiciary.^[847] In addition, many non-career judges have been appointed to the Supreme Court. Because public trust in the judiciary is very low, it is believed that the appointment of judges who are not from the judiciary may improve the administration of the courts and their reputation.

Supreme Court

Article 24A of the Constitution puts the Supreme Court (Mahkamah Agung)atthe apex of the judicial system (other than the Constitutional Court).^[848] It is located in Jakarta a few hundred metres from the Presidential Palace, the apex of the executive. The Court at present is made up of some 50 judges^[849] who only sit in Jakarta. The Supreme Court acts as the final court of appeal for all disputes litigated in lower courts.^[850] More specifically it can hear appeals from the general Court of Appeal (or High Courts) (that is, civil, commercial and criminal matters), the Administrative Appeal Courts, the Military Appeal Courts and the Religious (or Islamic) Appeal Courts.

In the past, the Religious Courts were notunder thejurisdiction of the Supreme Court so cases from the Religious Appeal Courts could not be appealed to the

Supreme Court. In 1977 the Supreme Court issued a regulation^[851] asserting its jurisdiction which was immediately opposed by Islamicjudges and the Ministry of Religion. In 1979 the Supreme Court decided two cases on appeal from the Religious Courts and appointed six Justices to sit on a special panel hearing cases from the Religious Courts. The Ministry of Religion then changed its view and instructed the Islamic Courts to allow appeals to the Supreme Court. Since then, constitutional amendments and statutes have assumed this position^[852] and ultimately the full responsibility for the administration and budget of the Islamic Courts was transferred from the Ministry of Religion to the Supreme Court in 2004.^[853] Unlike Malaysia, there is no parallel court hierarchy for civil and Islamic law cases in Indonesia as the same Supreme Court hears final appeals from both the civil and the Religious Courts and can therefore avoid many conflicts that could arise and have arisen in other countries.

The Supreme Court's main role is to hear cases in cassation (kasasi). It should be pointed out that the Court, most of the time, disposes of the case and usu­ally does not need to send it back to the Court of Appeal for a final decision. This is different from what would be the case in France where the concept of cassation originated. The original Frenchword cassation (translated as kasasi in Indonesian) means �quashing' or �breaking', and the �Cour de Cassation’ in France has the power to quash or break the decision of a lower court, but for histori­cal reasons, does not have the power to dispose of the case and must therefore remand the case to a lower Court of Appeal for final disposition. Therefore, some civil law jurists may wonder whether the Indonesian Supreme Court follows the original French model of cassation. It does not. Following the Dutch practice, the Supreme Court need not remand the case to a lower court if it has all the informa­tion and evidence it needs to dispose of the case. The Indonesian Supreme Court may even decide issues of fact in cassation, whereas the Dutch Supreme Court (Hoge Raad) may only do so in limited circumstances, and the Cour de Cassation in France still may not do so.^[854]

The grounds for appeal are: the court below (1) did not have jurisdiction or exceeded itsjurisdiction; (2) wrongly applied or broke the law; or (3) negligently fulfilled conditions required by laws or regulations, thus opening the decision of the court to the threat of nullity.^[855] Examination of the appeal is usually based only on the written submissions of the parties - there is no oral hearing and the lawyers do not have the opportunity to argue their case in a courtroom before the judges (though in exceptional cases the court may order a hearing).^[856] Each case is heard by a minimum of three judges and in principle, the decision must be rendered in open court, although in practice this is not so - the decision is rendered in writing.^[857]

One of the main challenges for the Supreme Court is its backlog of cases. To its credit, the Supreme Court has recognised the problem^[858] and is addressing it. In 2004 the backlog of cases reached 20 000 and it could take many years before a decision was rendered. The Court has greatly improved the situation, so much so that on 14 March 2008 the backlog of cases was reduced to 10 827. In 2007 the Court received 9516 new cases and rendered 10 714 decisions,^[859] which means it has reached the point where it can cope with the number of cases it receives annually. If it is successful in reducing the backlog, it should now be able to significantly reduce the delay between the submission of a case and its disposition by the court.

It should be pointed out that since Indonesia is a civil law jurisdiction, it is often repeated that jurisprudence or case law even from the Supreme Court is not technically binding. It must, however, be said that this formalistic posi­tion is no longer a good reflection of the status of jurisprudence in most civil law jurisdictions today. It is now widely accepted that jurisprudence, especially �firm jurisprudence' (or �jurisprudence constante’ in French), by which the courts repeatedly decide or interpret a law in a similar way, effectively makes for bind­ing precedent, if not technically binding authority, at least persuasively bind­ing authority. Lawyers and lower court judges in France and the Netherlands disregard seminal jurisprudence of the highest court at their own peril. In prin­ciple, the same should be true in Indonesia; however, the jurisprudence of the Supreme Court unfortunately has not had a similarly significant influence on the interpretation of the law in Indonesia. This may be due in part to the fact that jurisprudence in Indonesia has not always been consistent, has been influenced by politics in the past and has not been systematically published and commented upon to the same extent as in France and the Netherlands. The Supreme Court has nonetheless in some, though limited, areas exercised an influence on the development of the law.^[860]

Courts of Appeal (or High Courts)

The Courts of Appeal stand between the trial courts and the Supreme Court. They are often referred to in English as High Courts, a literal translation of their Indonesian name (Pengadilan Tinggi). Here they will be referred to as Courts of Appeal to avoid possible confusion.

It is important to understand that there are four different types of Courts of Appeal, each having concurrent jurisdiction over the same territory in matters assigned to them. For example, someone will appeal a civil or criminal case heard by a District Court to the general Court of Appeal sitting in the provincial capital, a Muslim divorce case from a Religious Court will be appealed to the Religious Court of Appeal,^[861] an administrative case from the Administrative Court to the Administrative Court of Appeal^[862] and a military case from a Military Court to the Military Court of Appeal.^[863] These are the four Courts of Appeal one will usually find in each provincial capital throughout Indonesia. All their decisions can be appealed to the Supreme Court. These four Courts of Appeals correspond to the four main types of trial courts.

Thefour main types of trial courts

The District Courts (Pengadilan Negeri) are by far the busiest of all the courts. They are the general courts, effectively having jurisdiction on matters that do not fall within the jurisdiction of the Military, Religious or Administrative Courts. They are the general courts for all civil, commercial^[864] and criminal matters, as well as family and inheritance matters that are not governed by Islamic law. There is normally a District court in every district (that is, in every kabupaten in rural areas and in every kota in urban areas) and appeals from it are heard at the General Court of Appeal in the provincial capital.

Most cases are heard by a panel of three judges. The civil procedure follows the civil law tradition and is, to a large extent, an inquisitorial system where the judges play an important role in questioning witnesses and where written proce­dure is quite important. The criminal procedure was reformed with the adoption of the Code of Criminal Procedure.^[865] The police or in some cases the Attorney­General conducts the investigation (there are no longer judges of instruction) and the Public Prosecution Office under the Attorney-General prosecutes. The procedure is, however, still close to what it is in civil law jurisdiction and there­fore the judges play an active role in the interrogation of the accused and the witnesses.

After the District Courts, the trial courts that hear the most cases are the Religious Courts which, notwithstanding their name, only hear cases where Islamic law applies - they do not hear cases under other religious laws. These Courts and their predecessors have a long history in Indonesia^[866] and have only recently been completely integrated into the national court system under the supervision of the Supreme Court.^{[867] [868] The Religious Courts are now regulated by the Religious Judicature Law.113 Because of the passing of the 1974 Marriage Law[869] the number of cases heard by the Courts has increased radically. The Marriage Law requires the intervention of the Religious Courts in every divorce. No longer can men divorce their wives simply by saying italak, three times as they must obtain court confirmation of any divorce. The Law also grants clearer recourses for women who want to seek a divorce, so much so that today most Muslim divorces in Indonesia are pronounced at the request of women. In 1974, before theMarriageLaw came into force, the Religious Courts heard 23 758 cases. In 1976, after the coming into force of the law, it heard 133 419 cases.[870] The cases have increased since then of course. In 2004 there were 2741 Islamicjudges in Indonesia, including 461 women (17%).[871] The Religious Courts normally sit in each district.}

In addition to Muslim marriage and divorce (and more recently incidental matters such as custody of children, marriage property and alimony), the Courts have jurisdiction over inheritance matters and Islamic charitable foundations (waqf) and Islamic tax (zakat), although for inheritance the parties have a choice of law and could therefore decide not to follow Islamic law and go to the District Court.

In 2006 the jurisdiction of the Religious Courts was extended to the �Sharia Economy' (Ekonomi Syari’ah), thus allowing the Religious Courts to decide cases in the now expanding fields of Islamic banking, financing and insurance.^[872]

The other two ordinary trial courts which hear far fewer cases are the Admin­istrative Courts and the Military Courts.

The Administrative Courts (Pengadilan Tata Usaha Negara) hear cases against state officials or state institutions. They are a recent institution, hav­ing been created by a 1986 statute^[873] and having become operative only in 1990-91.^[874]9 Even before the post-1998 Reform Era, the Administrative Courts had taken some very courageous decisions, for example declaring illegal the revocation of the publication permit of the most popular magazine in Indone­sia in the famous Tempo case (a decision which was reversed by the Supreme Court in 1996).^[875] The Court may review cases on many grounds, including a contravention of prevailing laws and regulation, which could bring to account state institutions and officers the actions of which violate the law or the Con­stitution. Under some circumstances, the Administrative Court could review the legality and therefore even the constitutionality of regulations below the level of statute (undang-undang),^[876] the constitutionality of statutes being within the jurisdiction of the Constitutional Court.

The Military Courts have a complex structure as military courts everywhere usually do with jurisdiction dependant on rank, seriousness of the offence and whether it is a time of peace or of war. The Courts have been of late subject to greater public scrutiny as the military is going through a transition from being almost above the law in the past to being subjected to the law. In particular there has been public pressure to reduce the jurisdiction of Military Courts so that soldiers may be tried in general courts under the general law for common crimes.

Specialised courts

Indonesia has also created numerous other specialised courts including a Tax Court, an Industrial Relations Court and a Human Rights Court. Allof these courts cannot be reviewed here but two of recent creation will be briefly considered.

Commercial Court

The Commercial Court was created as a separate section of the District Court, under pressure from the International Monetary Fund (IMF) as part of a reform of bankruptcy law. It was a condition for the financial assistance provided by the IMF after the Asian financial crisis. The IMF wanted a reform of the bankruptcy law that would make it easier to declare companies bankrupt when they were no longer servicing their debts, thus putting pressure on them to restructure their debt. To achieve that goal, the bankruptcy law created the new Commer­cial Court (Pengadilan Niaga), the judges of which received specialised train­ing on bankruptcy law in the hope they would act more professionally and free of influences and corruption.^[877] The jurisdiction of the Court has since been extended to a few but not all commercial matters, including some intel­lectual property matters.^[878] A Bill on the Commercial Court has been intro­duced in Parliament which, if adopted, would clarify the status of the Court. At present, appeals from the Commercial Court go directly to the Supreme Court without passing by the General Court of Appeal. Interestingly, the decisions of the Court are published and available to the public and include dissent­ing opinions, which is not the general practice apart from the Constitutional Court.

Anti-Corruption Court and Commission

There is probably no problem more pervasive in Indonesia than corruption. In the Reformasi era, many promises were made that corruption would be prose­cuted. Law No. 30 of2002 on the Corruption Eradication Commission created the Commission (known as the �KPK’, for �Komisi Pemberantasan Korupsi^,) and the Anti-Corruption Court.^[879] The KPK started operation in 2003. It is responsible for:

• coordinating with other agencies responsible for corruption eradication

• supervising these agencies

• investigating acts of corruption and prosecuting them

• conducting corruption prevention activities

• monitoring the state administration.^[880]

When it comes to prosecuting, the KPK’s jurisdiction is limited to acts of corrup­tion which:

• implicate law enforcement officers and government officials, or

• cause significant public concern in which the losses to the state are above Rp 1000 000 000.^[881]

Other cases are to be investigated and prosecuted by the police and the public prosecutors in the general courts. The KPK was granted very wide powers of investigation, including the power to wire-tap communications, to forbid sus­pects from travelling abroad and to seek financial and tax information.^[882]

The Law also created the Anti-Corruption Court, which was a special division of the District Court in Jakarta but with jurisdiction over all Indonesia. Cases were to be heard by five judges, a majority of whom would be non-career ad hoc judges, who presumably would be more independent and less corruptible. There was also an Anti-Corruption Court of Appeal with a majority of ad hoc judges on each panel, and even the panels of the Supreme Court hearing cases in cassation would have to have a majority of ad hoc judges. Clearly, the legislature did not trust career judges, who were often themselves not free of corruption.

This seemed to work and many cases were prosecuted. It appeared that the fight against corruption was gaining momentum in Indonesia. Then in 2006 the Constitutional Court held that the part of the Law establishing the Anti­Corruption Court was unconstitutional, finding an inequality in the fact that one could be prosecuted in either that Court or the regular courts according to different rules for the same crime. However, in fact the judgment mainly relied on a technicality about how the Anti-Corruption Court was created. It, however, granted the legislature a period of three years to adopt a new law with the unconstitutional law continuing to apply in the meantime.^[883]

At the time of writing, the KPK was in pretty bad shape. Its former president had been sentenced to 18 years in jail for ordering the murder of a rival in a love triangle, though he protests that he was framed (which, to observers of Indonesia, is not entirely impossible).^[884] His appeals have been rejected.^[885] Two other members of the Commission had been arrested by the Chief Inspector of Police apparently for abusing their powers by wire-tapping the telephone of the Chief Inspector of Police, but they have since been released after public outrage at the fact that the evidence against them seemed to have been weak, if not fabricated.^[886] Most anti-corruption NGOs and many observers believe that the �powers that be' are getting back at the KPK for being so efficient in prosecuting corruption cases and for threatening them.^[887] One cannot, however, discard the possibility that the vast powers of the KPK may have been tempting and may have led to corruption in some instances, as occurred with the academics and activists appointed to the Elections Commission for the 2004 national elections who let themselves be tempted by corruption.^[888] In the meantime, Parliament has adopted a new law that severely limits the investigating powers of the KPK and lets the majority of judges of a panel of the new Anti-Corruption Courts be career judges.^[889] Thejury is therefore still out as to whether the fight against corruption in Indonesia will continue as efficiently as it had started a few years ago.

Recourse to arbitration

Because of the difficulties encountered in the judicial process in Indonesia, for­eign investors often try to avoid the courts by choosing to arbitrate their dispute in or outside Indonesia. Unfortunately, arbitration in Indonesia is not the most favoured option for fear that the courts could interfere in the process and because the Indonesian law on arbitration is perceived as falling short of international standards by foreign investors.^[890]

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