Private law indonesia
Law of indonesia is based on a civil law system,
intermixed with customary law and the Roman Ducth law. Before the Ducth
colonization in the sixteenth century, indigenous kingdoms ruled the
archipelago independently with their own costom laws, known as adat. Foreign
influences from india, china and arabian have not only affected the culture,
but also weighed in the customary adat laws. Aceh in Sumatra, for instances,
observes their own sharia law, while Toraja ethnic group in Sulawesi are still
following their animistic customary law.
Ducth presence and subsequent occupation of
Indonesia for 350 years has left a legacy of ducth colonial law, largely in the
indonesia civil code. Following the independence in 1945, Indonesia began to from
its own modern Indonesia law, not developing from scratch but with some
modifications of the precepts of
existing laws. As a result, these three components (adat, Ducth-Roman law and
modern indonesia law) still co-exist in the current Indonesia laws.
Legal System
Indonesia legislation come in different forms. The
following official hierarchy of Indonesia legislation (from top to bottom) is
enumerated under Law No. 10 Year 2004 on the Formulation of Laws and
Regulations:
1. 1945
Constitution (Undang-Undang Dasar 1945 or UUD 1945)
2. Law (Undang-Undang or UU) and Government
Regulation in Lieu of Law (Peraturan Pemerintah Pengganti Undang-Undang or
Perpu)
3. Government
Regulation (Peraturan Pemerintah or PP)
4. Presidential
Regulation ( Peraturan Presiden or Perpres)
5. Regional
Regulation ( Peraturan Daerah or Perda)
In practice, there are also Presidential Instruction
(Instruksi Presiden or Inpres), Ministerial Decree (Keputusan Menteri or
Kepmen) and Circulation Letters (Surat Edaran), which sometimes conflicts with each
other.
Once legislative products are promulgated, the state
Gazette of the Republic of indonesia (Lembaran Negara Republik Indonesia) is
issued from the state Secretariat. Sometimes Elucidation (Penjelasan)
accompanied some legislations in a supplement of the State Gazette. The
Government of Indonesia also produces State Reports (Berita Negara) to publish
government and public notices.
1945 Constitution
The 1945 Constitution is the highest legal authority
in Indonesia, of which executive, legislative and judicial branches of
government must defer to it. The constitution was written in July and August
1945, when indonesia was emerging from Japanese control at the end of World War
II. It was abrogated by the Federal Constitution of 1949 and the Provisional
Constitution of 1950, but restored after the President Sukarno decree on July
5, 1959. During the 32 years of Suharto administration, the constitution had
never been amended. Suharto refused to countenance any changes to the
constitution and the people’s Consulative Assembly passed a law in 1985
requiring national referendum for the constitution amendments.
After the Suharto fall in 1998, the people
Consulative Assembly amended the constitution four times in 1999, 2000, 2001
and 2002. Important amendments include the directpresidential election by the
people (third amendment), and the presidential office term from unlimited to
only two (first amendment), the regulation of which had made the possibility
for Suharto administration held in office for more than five terms. After the
last amendment, the people’s Representative Council gained more power to
control the executive branch, the Regional Representatives Council was
established, regional government was recognized in a section and an expanded section
about civil rights among other changes.currently, the constitution consists of
16 sections and 36 articles.
Undang-Undang
Undang-Undang or simply meaning that laws can only
be established by the people’s Representative Council or DPR. The executive
branch (the president) can propose a bill (Indonesian: Rancangan Undang-Undang
or RUU) to DPR. During the process of establishing a bill into a law, DPR will
create a small task group to discuss the bill with the corresponding
ministries. When a joined agreement has been reached, then the President shall
endorse a bill into law. However, even if the president refuses to endorse a
bill that has reached joined agreement, the bill is automatically in thirty
days enacted as law and be promulgated as such. When an agreement cannot be
reached to enact a bil into law, the bill cannot again during the current term
of the legislative members.