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Indonesia The Judiciary
The Indonesian legal system is extraordinarily complex,
the
independent state having inherited three sources of law:
customary or adat law, traditionally the basis for
resolving interpersonal disputes in the traditional
village
environment; Islamic law
(sharia, or, in Indonesian,
syariah--see Glossary),
often applied to disputes
between
Muslims; and Dutch colonial law. Adat courts were
abolished in 1951, although customary means of dispute
resolution
were still used in villages in 1992. The return to the
1945
constitution in 1959 meant that Dutch laws remained in
force
except as subsequently altered or found to be inconsistent
with
the constitution. An improved criminal code enacted in
1981
expanded the legal rights of criminal defendants. The
government
in 1992 was still reviewing its legacy of Dutch civil and
commercial laws in an effort to codify them in Indonesian
terms.
The types of national law recognized in MPR(S) Decree XX,
(July
5, 1966), include, in addition to the constitution, MPR
decrees,
statutes passed by the DPR and ratified by the president,
government regulations promulgated by the president to
implement
a statute, presidential decisions to implement the
constitution
or government regulations, and other implementing
regulations
such as ministerial regulations and instructions.
Obviously, the
executive enjoys enormous discretion in determining what
is law.
With respect to the administration of justice, Article
24 of
the constitution states that judicial power shall be
vested in a
Supreme Court and subordinate courts established by law,
and that
the organization and competence of courts shall be
established by
law. In Sukarno's Guided Democracy, the justice system
became a
tool of the revolution, and any pretense of an independent
judiciary was abandoned. One of the goals of the New Order
was to
restore the rule of law. A major step in that direction
was the
enactment of the Basic Law on the Judiciary Number 14 of
1970,
which defined an independent status for the Supreme Court
and
emphasized noninterference in judicial matters by persons
outside
the judiciary. Theoretically, the Supreme Court stands
coequal
with the executive and legislative branches. The
president, vice
president, and justices of the Supreme Court are nominated
by the
DPR and appointed by the president. The Supreme Court has
exclusive jurisdiction in disputes between courts of the
different court systems and between courts located in
different
regions. It can annul decisions of high courts on points
of law,
not fact. On request it can give advisory opinions to the
government and guidance to lower courts. It is not part of
a
system of checks and balances, however, since it does not
have
the power of judicial review of the constitutionality of
laws
passed by the DPR. Its jurisdiction is limited to whether
or not
implementing administrative regulations conforms to the
laws as
passed. Moreover, the Supreme Court has no control over
the
integrity of the lower courts, which are under the
supervision of
the Department of Justice.
Below the Supreme Court four different court systems
can be
distinguished. First, there are courts of general civil
and
criminal jurisdiction. District courts are the courts of
first
instance. The high courts are appellate courts. The
administration of these courts is under the minister of
justice,
who controls judicial appointments, promotion, transfer,
and pay.
Despite protestations of independence, the lower courts
had, as
of the early 1990s, shown themselves reluctant to
challenge the
government, particularly in cases with political
overtones. In
the view of some observers, these courts routinely allowed
egregious breaches of fundamental civil rights. There were
also
regular allegations of corruption in the lower court
system in
both civil and criminal cases.
Second, there are religious courts, under the
Department of
Religious Affairs, which exist to resolve specific kinds
of
disputes between Muslims in matters of marriage, divorce,
inheritance, and gifts. These courts base their decision
on
Islamic law. To be legally enforceable, however, the
religious
court's decisions must be approved by a corresponding
secular
district court. The Directorate of Religious Justice
within the
Department of Religious Affairs has ultimate appellate
jurisdiction. One of the persistent tensions between Islam
and
the state arises from Muslim efforts to expand the
jurisdiction
and autonomy of the sharia courts.
Third, in 1992 there was a Taxation Review Board that
adjudicated taxation disputes. Other administrative courts
had
been eliminated as part of government's effort to simplify
and
standardize the court system.
Fourth, there are the military courts, which have
jurisdiction over members of ABRI or persons declared to
be of a
similar status. After the 1965 coup attempt, special
military
courts were given authority to try military personnel and
civilians alleged to be involved in the abortive coup.
Hundreds
of sentences ranging from twenty years' imprisonment to
death
were meted out by the special military courts, with
executions
continuing more than two decades after the event.
Data as of November 1992
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