Origins of the Indonesian Advocacy, Daniel S. Lev
In his groundbreaking study of lawyers in Indonesia, Daniel S. Lev provides a historical account of the origins of the Indonesian advocacy. The Dutch
229 colonial rule looms large in shaping the history of the Indonesian bar.
This case suggests that privileged family and social backgrounds are great assets for indigenous lawyers to thrive in the shadow of colonialism. The struggles of the first generations of ethnic Javanese and Chinese lawyers to gain their places in the Indonesian legal profession also echo the experiences of indigenous lawyers in many other Asian cases.In the Netherlands Indies, until the mid-r920s, all advocates and notaries were Dutch. Neither native Indonesians nor ethnic Chinese had yet joined these professions. The small size and influence of the Indonesian advocacy just after independence was due at least in part to its late beginning. This was not true of all colonies. In most English colonies and the American-controlled Philippines, indigenous lawyers were numerous. It is tempting to attribute the differences simply to divergent Anglo-American and Continental legal traditions: English and American colonial officials would see many private lawyers as a basically good thing, while the French, Dutch, and Belgians would not. In reality, however, colonial officials nearly everywhere were reluctant to encourage indigenous private lawyers, and this was equally true on the colonial right and left. Hard-liners regarded native lawyers as a likely source of corruption, litigiousness, misuse of the law, and general trouble-making. Europeans with more sympathy for the societies they dominated perceived private lawyers as a symptom of the breakdown of traditional social intimacy in favor of a less kindly impersonal rule of law, which must spread social and cultural disruption. Each view had its own peculiar validity, though probably for reasons different from those usually argued.
In any event, indigenous private lawyers did emerge earlier and in greater numbers in some colonies than in others, depending on a combination of colonial administrative ideology and economic policy. The English and the Americans tended to view the rule of law as an essential ingredient of colonial policy and part of their mission. Encouraging native lawyers therefore had some logic to it, despite European misgivings. But, at the same time, the English and the Americans were also more inclined to encourage local political participation and some entrepreneurial development, from which local private lawyers would tend to sprout if allowed to do so. In French and Dutch colonies, however, ideological conceptions of the imperial mission were quite different, and so were economic policies. A more pervasive administrative conception of colonial governance emphasized the role of European executive will, not law per se. Combined with a rather exclusive European (and minority middle-man) monopoly over commerce, this neither encouraged nor left much room for indigenous private lawyers. [...]The colonial administration never encouraged Indonesians to take up private legal practice. Fundamental assumptions of colonial pluralism in the Netherlands Indies excluded such a notion from the imagination. The highest levels of commerce were in European hands, and businessmen would naturally rely upon Dutch advocates and notaries. Nor would Chinese entrepreneurs choose an Indonesian over a Dutch lawyer. Social status considerations alone would have made this unlikely, and besides, as the legal system was dominated by Dutch officials, it obviously made sense to use Dutch counsel. (There were no ethnic Chinese private lawyers either until after Indonesians had begun practice in the mid-1920s.) Moreover, the common myths of colonial paternalism no doubt made the idea of Indonesian advocates, if anyone thought of it, seem outlandish. European administrators usually assumed that the colonial bureaucracy was sufficient for the “simple” legal problems of village life.
This same view that native legal problems were uncomplicated, along with other considerations, undoubtedly helped to inspire the simpler procedural requirements of the H.I.R., by which it was assumed that Indonesian litigants did not require assistance by counsel. I do not mean to argue that the simpler procedures were without virtue, but that the policy grew out of a colonial world-view that had other institutional consequences. One of them was that Indonesian advocates seemed out of the question.Indonesian society was not much more receptive than the Dutch to the possibility of Indonesian advocates. Or at least Javanese society was not, and at first it was only Javanese who took up legal studies. When legal training was finally made available to Indonesians, it was confined to Javanese priyayi. Since legal training was seen as preparatory to government service, only the sons of high priyayi - often from bupati families - were encouraged to study law; the traditional elite was to be modernized, not expanded. Once the opportunity for legal education became available, however, some lower priyayi families also took advantage of it. But among both higher and lower strata of this Javanese elite, social status was attached to bureaucratic position. Private occupations of nearly any kind, and certainly occupations related to commerce, were regarded unfavorably as low status and unworthy. Few sons of the priyayi were likely, therefore, to receive much family encouragement to become private lawyers.
Consequently, two kinds of change had to take place in the colony in order for Indonesian private lawyers to appear. One was institutional and obvious: legal education had to be made available to Indonesians. The other was cultural and attitudinal: a few Indonesians with legal training had to become comfortable with the possibility of private practice. [...]
The extent to which law was an aristocratic preserve is indicated by the rank titles of names on the list.
Of the 175 Javanese lawyers, 30 used the low title of mas and 135 had royal ranks of raden, raden mas, or higher. Aristocratic titles among lawyers from Sumatra and other islands were no less common. The colonial government, after all, had originally intended to provide legal education only to the upper-most part of the Javanese (and later Indonesian) elite. Its purpose was not to encourage social mobility, which would have threatened the old aristocracy, and cost more, but to equip this elite with the modern means by which to maintain its place in the civil service. For an aristocracy interested in maintaining its political and bureaucratic status, law became an obvious place to go. [...]Still, any young Javanese willing to become an advocate then had to be unusual. The difficulties were for the most part professional and social, rather than financial. None of the new advocates was hopelessly poor. Most came from reasonably well-off and well-connected priyayi families. But professionally a new Indonesian advocate had to take his chances in a field dominated by Dutch lawyers linked comfortably with Dutch commerce in a system of legal institutions fully controlled by Dutch officials. The derision of Dutch advocates alone might have put off a less determined candidate. Often he had to be committed enough to put up also with his family's opposition, more or less outspoken, to working outside the bureaucracy. Despite the nationalist movement, it was still government, not private practice or commerce, where the old elite found social status and security. [...]
Ethnic Chinese advocates also began to appear by the late 1920s. Nearly all were from peranakan families, born in Indonesia rather than China. Educational facilities for Indonesian Chinese had improved greatly since the nineteenth century, and many young Chinese men and women now attended Dutch-language schools. As ethnic Chinese commerce developed, moreover, the traditional middleman role produced a dynamic and growing middle class, socially and culturally much closer to the Dutch than to Indonesians.
Nevertheless, ethnic Chinese came late to the private legal profession. Unlike Javanese priyayi, they received no government encouragement to go into law, and the near monopoly of non-Dutch government service by ethnic Indonesians gave young ethnic Chinese little reason to study law in the first place. But for the same reason, when ethnic Chinese students did take an interest in law, the advocacy was an obvious goal. While a few did eventually take positions in the colonial courts and central administration, most found as advocates that they had a natural economic base in Chinese commerce, which provided them with business contacts, support, and a reasonably permanent clientele.For both ethnic Indonesian and ethnic Chinese advocates, starting practice was hard. While occasionally they got useful advice from a sympathetic Dutch advocate, by and large they were shunned. Many Dutch advocates evidently perceived them as a competitive threat. It was nearly impossible for the newcomers to find places in established Dutch law firms. [...] It meant that new advocates, unless they could join an Indonesian firm, had to start from scratch without experience or clients. There were also slights. Most Indonesian (and ethnic Chinese) advocates who began practice in the colony can recount instances of real or imagined discrimination. Where there were local advocates' associations, they could not join or found it difficult to do so. Some were burdened with an extraordinary number of pro-deo (pro-bono) indigent cases, often, they suspected, because Dutch advocates refused to take them and advised the local raad van justitie to appoint Indonesian advocates. In the memories of older Indonesian advocates today personal humiliations experienced while getting started are mixed with a more precisely nationalistic animus against colonial treatment of Indonesians.
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