Indonesia, Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

 

Indonesian legal system based on Roman-Dutch law, custom and Islamic law. Most of archipelago was under Dutch rule by start of 20th century.

Under Dutch Netherlands Indies population was divided into Europeans, Natives, and Foreign Orientals; established separate tribunals for Europeans and ‘Natives’. Indonesians subject to ‘adat law, with Netherlands East Indies divided into several jurisdictions based on cultural and linguistic criteria. Basic principle was dominance of the received civil law system, and application of ‘adat for ‘natives’ as far as it was not replaced by statute. First legislation relating to application of Islamic law was 1882 Royal Decree establishing a ‘Priest Court’ in Java and Madura, with jurisdiction over Muslim family and inheritance law where all parties were Muslim and awqaf. Independence declared two days after Japanese occupying forces withdrew in 1945. Only statutory reform of Muslim personal status law in that period was enactment of Muslim Marriage and Divorce Registration Law 1946 requiring registration. New Marriage Law applicable to all Indonesians eventually passed in 1974 amidst much controversy. Marriage Law is applied by regular court system for religious minorities and by shari’a courts for Muslim Indonesians. Compilations on Islamic law issued by Ministry of Religion and Supreme Court judges since mid-1980s to clarify points of Islamic law for application in shari’a courts.

School(s) of Fiqh

Shafi’i majority; Ahmadi minorities; recognised religious minorities: Roman Catholic, Protestant, Hindu, Buddhist; also followers of tribal religions (not afforded any official recognition)

Constitutional Status of Islam(ic Law)

Constitution promulgated in August 1945. Does not adopt any official religion, but Art. 29(1) provides that "the State is based upon the belief in the One, Supreme God"; Art. 29(2) guarantees freedom of religion.

Court System

Four branches of judiciary outlined in Basic Law on Judicial Power 1970: general, religious, military and administrative courts. General courts include District Courts of First Instance, High Courts of Appeal, and Supreme Court (Mahkamah Agung). Religious courts (Pengadilan Agama) established side by side with District Courts. Religious courts organised at two levels: first instance in each district and appellate courts in all provinces; have jurisdiction over civil cases between Muslim spouses on matters concerning marriage, divorce, reconciliation, and alimony. Appeals from religious appeals courts (Mahkamah Islam Tinggi) go to Supreme Court, although supervisory jurisdiction of regular states courts over religious courts ended with passing of Law on Religious Courts 1989. Religious courts have limited or special jurisdiction and secular courts have general jurisdiction; competence of religious courts is not exclusive, and parties can apply to District Courts for adjudication on basis of Dutch-derived civil law or local ‘adat.

Relevant Legislation

Basic Law on Judicial Power 1970 (no. 14/70)

Marriage Law 1974 (no. 1/74)

Marriage Law Implementing Regulation 1975 (no. 9/75)

Law on Religious Courts 1989

Notable Features

Marriage Age: minimum marriage age 19 for males and 16 for females; provision for marriage below minimum age, subject to judicial discretion and parental consent

Marriage Guardianship: free consent of marrying parties required for validity, unless religious law governing the parties directs otherwise; Marriage Law 1974 defines as legal a marriage "solemnised according to the laws of the respective religions and beliefs of each of the parties"; parties under 21 years need parental permission

Marriage Registration: obligatory; Marriage Registrar Office of Department of Religious Affairs is responsible for registration of Muslim marriages and Civil Marriage Registrar Office of Department of Internal Affairs for all other marriages

Polygamy: basis of marriage is considered monogamy, but Marriage Law does not prohibit polygamy for those religions that allow it (Islam, Hinduism, Buddhism); permitted with consent of existing wife or wives and judicial permission, by fulfilling conditions specified by law, i.e., proof of financial capacity, safeguards that husband will treat wives and children equally; and court inquiry into validity of reasons for wishing to contract polygamous marriage (e.g., existing wife’s physical disfigurement, infertility, incurable disease)

Obedience/Maintenance: law specifies that both spouses are equal and both are responsible for maintaining home and caring for children; obligation of permanent resident and domicile to be decided by both parties; husband as head of family required to protect wife and provide according to his means and wife’s duty is to manage household

Talaq: Marriage Law provides that divorce shall be carried out only before Court of Law, after Court has endeavoured to reconcile the parties; husband married under Islamic law may submit letter notifying religious court of his intention to divorce and giving his reasons; if husband’s reasons accord with any of six grounds for judicial divorce outlined in Marriage Law and determines that reconciliation is not possible, court will grant session in order to witness divorce

Judicial Divorce: either spouse may seek judicial divorce (preceded by reconciliation efforts by judge) on following grounds: other spouse’s adultery, alcoholism, addiction to narcotics, gambling or "any other vice that is difficult to cure"; abandonment for two years without valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady preventing performance of marital duties; sentencing to prison term of five years or more; and constant disputes without hope of resolution

Post-Divorce Maintenance/Financial Arrangements: property acquired during marriage considered joint property, and Marriage Law only directs that division is according to the laws applicable to the parties; court may order alimony for children or maintenance for former wife (time periods and levels not specified)

Child Custody and Guardianship: Marriage Law simply provides that in case of dispute over custody, Court shall render its judgement; father shall have responsibility for maintenance expenses, unless he is unable to bear such responsibility in which case Court may order mother to share expenses

Succession: governed by classical law influenced by directions contained in the Compilations of Islamic Law

Notable Cases

 

Law/Case Reporting System

System of case reporting is irregular.

International Conventions (with Relevant Reservations)

CEDAW – signature 1980, ratification 1984 with declaration re: Art. 29(1)

CRC – signature & ratification – 1990 with reservation to Arts. 1, 14, 16, 17, 21, 22 and 29 having to be applied in conformity with the Indonesian constitution

Legal History:

The Indonesian legal system is based on Roman-Dutch law, modified by custom and Islamic law. Sources of law are Islamic law, statutory legislation, presidential instructions, and official compilations of Islamic law.

European explorers arrived in the region in the 16th century, and the Dutch East India Company was founded in 1602. The Dutch established a trading post on the north coast of Java, later named Jakarta. The Dutch gradually asserted political and military control beyond Java from the 18th century until most of archipelago was under Dutch rule by the start of the 20th century.

Under Dutch rule, the Netherlands Indies’ population was divided into Europeans, Natives, and Foreign Orientals. The Dutch established separate tribunals for Europeans and ‘Natives’. Indonesians were subject to ‘adat law, with the Netherlands East Indies divided into several jurisdictions based on cultural and linguistic criteria. Dutch scholars identified and classified 19 different systems of customary law in the region. In areas under direct rule, there were European courts, native courts, and general courts for all of the population. In areas under indirect rule, there were native courts applying ‘adat with very limited criminal jurisdiction and no jurisdiction over Europeans or foreigners. The basic principle was dominance of the received civil law system, and application of ‘adat for ‘natives’ as far as it was not replaced by statute. The first legislation relating to the application of Islamic law was an 1882 Royal Decree establishing a ‘Priest Court’ for Java and Madura, although the Decree acknowledged that most Indonesians were also subject to ‘adat law administered by native courts. The ‘Priest Court’ had jurisdiction over Muslim family and inheritance law where all parties were Muslim and awqaf, and had concurrent jurisdiction with the native courts of Java and Madura. The Priest Court was composed of a President selected from the native courts’ officers and three to eight qadis, all appointed by the Governor-General. Subsequent legislation by Dutch authorities was also of a largely of regulatory and administrative nature. Independence was declared two days after Japanese occupying forces withdrew in 1945. Calls for the reform of marriage laws led to various proposals from members of government, women’s groups and the National Institute for Law Reform from 1945 to 1973, but conflicting interests prevented any consensus being reached. The only statutory reform of Muslim personal status in that period was the enactment of the Muslim Marriage and Divorce Registration Law 1946 requiring registration. A new Marriage Law, the first that was applicable to all Indonesians, was eventually passed in 1974 amidst much controversy, particularly with regard to such issues as permission for divorce and polygamy. Some compromises made by the government included increasing the jurisdiction of shari’a courts and eliminating registration as a requirement for validity of marriage. The Marriage Law is applied by the regular court system for religious minorities and by shari’a courts for Muslim Indonesians.

Following the controversy over the Marriage Law, since the mid-1980s Compilations of Islamic Law in Indonesia (Kompilasi Hukum Islam di Indonesia) authored by officials from the Ministry of Religion and Supreme Court judges have been used to clarify points on personal law and inheritance for application by shari’a courts. They are based on arguments from various schools, comparisons of application of Islamic law in different countries, decisions from religious courts, etc. The Compilations are presented as Presidential Instructions (Inpres) which have lower status that statutes in the Indonesian legal system. A 1991 Compilation of Islamic Law directed the restriction of hiba (gifts) to a maximum of one-third of the donor’s estate. While this represents a reassertion of classical interpretations, the Compilations also draw from eclectic sources, and Supreme Court judgements on appeal from the religious appellate courts diverge from classical law in many matters.

 Schools of Fiqh: The majority of the population is Shafi’i Muslim. There are also Ahmadi minorities. The other recognised religious minorities are Roman Catholic, Protestant, Hindu and Buddhist. There are also significant minorities following tribal religions; they are not afforded any official recognition.

 Constitutional Status of Islam(ic Law): The Constitution was promulgated in August 1945. It does not adopt any official religion, but Article 29(1) provides that "the State is based upon the belief in the One, Supreme God", also embodied in the Pancasila. Article 29(2) guarantees freedom of religion.

 Court System: There are four judicial branches outlined in the Basic Law on Judicial Power 1970: general, religious, military and administrative courts. General courts include District Courts of First Instance, High Courts of Appeal, and the Supreme Court (Mahkamah Agung). Religious courts (Pengadilan Agama) are established side by side with District Courts. Religious courts are organised at two levels: courts of first instance in each district and appellate courts in all provinces (approximately 300 and 25, respectively; figures as of mid-1990s) and have jurisdiction over civil cases between Muslim spouses on matters concerning marriage, divorce, reconciliation, and alimony. Appeals from the religious appeals court (Mahkamah Islam Tinggi) go to Supreme Court, although the supervisory jurisdiction of regular courts over religious courts ended with the passing of the Law on Religious Courts 1989. Religious courts have limited or special jurisdiction and secular courts have general jurisdiction. The competence of religious courts is not exclusive, and parties can apply to District Courts for adjudication on the basis of Dutch-derived civil law or local ‘adat.  

 Notable Features: The minimum marriage age is 19 for males and 16 for females, with provision for marriage below the minimum age, subject to judicial discretion and parental consent. The free consent of marrying parties is a requirement for validity of marriage, unless the religious law governing the parties directs otherwise. The Marriage Law 1974 defines as legal a marriage "solemnised according to the laws of the respective religions and beliefs of each of the parties". Parties under 21 years require parental permission to marry; this refers to the consent of both parents, the surviving parent, or the guardian. Marriage registration is obligatory; the Marriage Registrar Office of the Department of Religious Affairs is responsible for the registration of Muslim marriages and the Civil Marriage Registrar Office of the Department of Internal Affairs for all other marriages. The basis of marriage is considered monogamy, but the Marriage Law does not prohibit polygamy for those religions that allow it (Islam, Hinduism, Buddhism). Polygamy is permissible with the consent of the existing wife or wives and with judicial permission, by fulfilling conditions specified by law, i.e., proof of financial capacity, safeguards that husband will treat wives and children equally; and a court inquiry into the validity of the reasons for wishing to contract a polygamous marriage (e.g., the existing wife’s physical disfigurement, infertility, incurable disease). The law specifies that both spouses are equal and both are responsible for maintaining the home and caring for children. The permanent resident and domicile is to be decided by both parties. The husband as the head of the family is required to protect the wife and provide for her according to his means and the wife’s duty is to manage the household.

The Marriage Law provides that divorce shall be carried out only before a Court of Law, after the Court has endeavoured to reconcile the parties. A husband married under Islamic law may submit a letter notifying the religious court of his intention to divorce and giving his reasons. If the husband’s reasons accord with any of the six grounds for judicial divorce outlined in the Marriage Law and the court determines that reconciliation is not possible, the court will grant a session in order to witness the divorce. Either spouse may seek a judicial divorce (preceded by reconciliation efforts by the judge) on the following grounds: the other spouse’s adultery; alcoholism, addiction to narcotics, gambling or "any other vice that is difficult to cure"; abandonment for two years without valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady preventing performance of marital duties; constant disputes without hope of resolution; and sentencing to a prison term of five years or more. Property acquired during marriage is considered joint property, although the Marriage Law only directs that division is according to the law applicable to the parties. The court may order alimony for children or maintenance for the former wife. In terms of custody, the Marriage Law simply provides that in case of dispute over custody, the Court shall render its judgement; the father shall have responsibility for maintenance expenses, unless he is unable to bear such responsibility in which case the Court may order the mother to share such expenses.

Succession is governed by classical law. Some commentators have also noted that the Indonesian Supreme Court has often sought to equalise the rights of male and female inheritors.

Notable Cases:

 Law/Case Reporting System: There is no regular system of case reporting in Indonesia.  

 International Conventions (with Relevant Reservations): Indonesia signed the CEDAW in 1980 and ratified it in 1984 with a declaration regarding Article 29(1).

Indonesia signed and ratified the CRC in 1990, submitting a general reservation to the effect that Articles 1, 14, 16, 17, 21, 22 and 29 are to be applied in conformity with the Constitution of Indonesia. (The articles indicated relate to majority, children’s freedom of religion and conscience, right to privacy, and right to access to information, adoption, and the direction of children’s education.)

 Background and Sources: Bowen, "‘You May Not Give It Away’: How Social Norms Shape Islamic Law in Contemporary Indonesian Jurisprudence," Islamic Law and Society, v. 5, no. 3 (Oct. 1998): 382-408; Hooker, A Concise Legal History of South-East Asia, Oxford, 1978; Hooker, Islamic Law in South-East Asia, Singapore, 1984; Indonesia, 2nd & 3rd Period Report to CEDAW, 12 February 1997; Katz & Katz, "The New Indonesian Marriage Law: A Mirror of Indonesia’s Political, Cultural and Legal Systems," American Journal of Comparative Law, vol. 23 (1975): 653-681; Katz & Katz, "Legislating Social Change in a Developing Country: The New Indonesian Marriage Law Revisited," American Journal of Comparative Law, vol. 26 (1978): 309-320; Mahmood, ‘Indonesia,’ in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Pompe, "Islamic Law in Indonesia," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 180-200; Redden, ‘Indonesia’ in Modern Legal Systems Cyclopedia, vol. 2, Buffalo, N.Y., 1990; Supriadi, "Indonesian Marriage Law," in The International Survey of Family Law, ed. Bainham, 1995: 279-285.