Legal System/History

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 sharia 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 sharia courts.

School(s) of Fiqh     

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

Constitutional Status of Islamic 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 wifes 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 wifes 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 husbands 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 spouses 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.

International Conventions (with Relevant Reservations)

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.)

 

http://www.law.emory.edu/ifl/legal/indonesia.htm

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