«I. Introduction: Two views of Legal Pluralism The phrase “legal pluralism” refers to the recognition by the nation-state of the existence of ...»
Legal Pluralism in Indonesia:
Anachronism or An Idea whose Time Has Come?
©2001 Charleston C. K. Wang
I. Introduction: Two views of Legal Pluralism
The phrase “legal pluralism” refers to the recognition by the nation-state of the existence
of multiple sources of law within its own jurisdiction. In addition to official legislation,
secondary sources exist and are accepted as valid. These sources can be, inter alias,
religious law, customary law, or international treaties. The notion of legal pluralism assumes a more or less ideological dimension, by which the government authority seeks to accentuate its pluralistic orientation, yet does not call into question its own monopoly to administer the laws.
In addition to the foregoing legalistic definition, there is a socio-legal view of legal pluralism which argues that legislation has not and cannot have the authority that the government presumes it to have. Instead, pre-existing or longtime social institutions possess their own normative and regulatory spheres of influence and are capable of enforcing their will on their members separately from the government authority.
Pluralism results from the parallel existence of a variety of social norms that are produced by different and autonomous sources of authority within the boundaries of the nationstate.
I. The Sources of Pluralism in Indonesia Which of the above paradigms hold true for contemporary Indonesia? The answer is that while both have validity, the socio-legal state of affairs overshadows the ideological-legal one. Indonesia’s legal pluralism is driven by autonomous vehicles which travel parallel or even divergent roads. Indonesia, with five big islands and about 30 smaller island groups is the largest archipelago in the world.1 As a result of this geographic dispersion, Indonesia has about 500 tribes and with a corresponding 500 dialects.2 As a result of her It with the total number of islands reported at 17,508. This data is reported Indonesian Naval HydroOceanographic Office and published at http://www.aseansec.org/member_countries.html In addition to Bahasa Indonesia which is based on Malay, some of the other distinctly different local languages of Indonesia are: Acehnese, Batak, Sundanese, Javanese, Sasak, Dayak, Minahasa, Toraja, Buginese, Halmahera, Ambonese, Ceramese, and several Irianese languages. These languages are also spoken in different dialects.
geographic location at the crossroads of travel and commerce between the Indian and Pacific Oceans, East and West, the archipelago has imbibed from all of the major cultures and religions of the world.
In a nutshell, the sources of legal pluralism in Indonesia are The historical accretion of different religions in the archipelago. In chronological order, these are animism since prehistorictimes, Hinduism-Buddhism before the 14th century, Islam afterwards, and Christianity as the latest arrival.
The deep-rooted existence of indigenous jurisprudence, adat, especially in the rural areas (desa/kampung). Adat is mostly in the unwritten tradition and varies from locality and locality and from island to island.
The overlay of the Syariah, the theocratic Islamic law code and hadith, the Islamic legal traditions.
The imposition of Dutch legislation and colonial apartheid legal practices that are based on race and national origin. During the last one hundred years of Dutch rule, some effort at legal reform based on the “debt of honor” approach was attempted.
One result was the enlargement of diversity between the cities, the coastal communities, and the insular countryside.
A short period of colonial legal reform by the British (1811-1816) during the Napoleonic wars (1795-1816).
A short period of reform by the Japanese who occupied Indonesia (1941-1945) during World War II.
Independence of Indonesia from Dutch rule.
Three distinct ideological periods after independence can be identified: (1) the period of parliamentary democracy (1950-1959), (2) the Guided Democracy of President Sukarno (1959-1965 - reversion to the 1945 “revolutionary” Constitution), (3) the New Order of Presidents Suharto and Bacharrudin Jusuf Habibie (1965-2000). The current presidency of President Megawati Sukarnoputri (and the short caretaker period of President Abdurrahman Wahid) is so short that it is still unclear which direction policies are heading.
The existence of the peculiarly Indonesian style of legal pluralism has and continues to contribute to the dissipation of national cohesiveness, promote inefficient governance, and deepen the chronic economic stagnation, or even worse. The matter is of such
urgency that President Megawati Sukarnoputri issued this dire warning:
If religious and communal conflict does not stop and violence continues, we will split into lots of small races, into lots of small countries all of which will be weak in the face of outside forces … We will become the Balkans of the East.3 Remarks at an October 29, 2001 ceremony commemorating the birth of Indonesia's nationalist youth (permuda) movement in 1928. This also coincides with the 100 days of the Megawati administration.
See, http://dailynews.yahoo.com/h/ap/20011029/wl/indonesia_100_days_2.html and http://sg.news.yahoo.com/reuters/asia-68756.html.
These revealing remarks support the view that the situation is the result of divergent forces imposed from the bottom up and is not pluralism by national design from the top down.
The one question that challenges practical Indonesian politicians and legal commentators (both Indonesian or others) is: “What is the Indonesian national identity?” The succinct and most enduring answer is Pancasila, a doctrine laid down by President
Sukarno in a speech on June 1,1945. Pancasila contains five principles4, specifically:
Kebangsaan (nationalism) Kemanusiaan (international humanism) Kerakyatan (representative government or democracy) Keadilan Sosial (social justice), and Ketuhanan (belief in one God).
Beyond the mere definition of Pancasila, there looms the more critical question of how Pancasila is to be made real in Indonesia. As matter stands now, the answer is that Pancasila is to be implemented by the president5 and the president’s delegates, with the strong backing of the Angkatan Bersenjata Republik Indonesia (ABRI)6 and the pro forma blessing of the Majelis Permusyaratan Rakyat (MPR)7. By Law No. 8 of 1985 on Social Organizations, Pancasila must be adopted by all organizations as their azas tunggal, or sole foundation; by this statute, all other competing concepts were elbowed out of organized life in Indonesia.
These five principles are incorporated into the Opening to the 1945 Constitution and the Preamble to the (Provisional) Constitution of 1950.
Chapter III Article 4 (1) of the 1945 Constitution provides: The President of the Republic of Indonesia shall hold the power of government in accordance with the Constitution.
Now known as Tentara Nasional Indonesia, (TNI) the former ABRI, the Armed Forces of the Republic of Indonesia has settled comfortably into dwi fungsi, that is “dual function” the doctrine that the armed forces serve dual roles – a socio-political role in addition to a military role. Because of dwi fungsi, it is routine to rotate senior military officers into senior government functions through an Indonesian revolving door. In fact, it almost seems that successful military service is a sine quo non to high political office in keeping with the revolutionary culture through the end of the New Order. See, Peter Holland, Regional Government and Central Authority, in Indonesia: Law and Society, (T. Lindsey, Ed.) The Federation Press, 1999, pp212-213. The need for tertib dan damai and stabilisi have bolstered TNI/ABRI’s standing among Indonesians. In July 1999, President Wahid signed a decree removing the national police force of 175,000 members from the armed forces and from the supervision of the Minister of Defense and providing for civilian oversight.
Chapter III Article 3 shall determine the Constitution and the guidelines of the policy of the State.
With respect to legislation, the Constitution calls for a joint effort between the President and the Dewan Perwakilan Rakyat (DPR)8, but in actual practice, legislative power also has been tilted towards the executive.9 Further, the President holds the sole power to promulgate government regulations to implement statutes.
In constitutional concept and in actual practice, the power to govern is concentrated in the person of the executive, especially as was the case of first two presidents. Indonesia, despite its ancient deep-rooted legal pluralism was to, nilly-willy become an integrated modern state.10 This was the obvious political answer to the malaise flowing from colonial practices and millennia of religious syncretism. Hence, the national motto of the United State was "Bhinneka Tunggal Ika."11 Such was the original vision of President Sukarno for an Indonesian integralist national identity, a vision continued by Suharto, and one that Megawati has little flexibility or apparent inclination to change.
Contemporary Indonesia, like many states that has power concentrated in one branch of
government, suffers from a number of drawbacks such as:
A top heavy executive government and bloated bureaucracy.
An underdeveloped private sector.
Endemic entrenchment of nepotism during the last thirty years.
Uneven distribution of wealth in the population.
Dysfunctional reliance on personal relationships and personalities for conducting business.
A government that lacks transparency in all its branches.
Economic inefficiency, by-passing of market competition, and poor use of capital as a result of corruption in government.
Over dependence on the military for political stability and suppression of dissent Acquiescence to the military as power broker of last resort.
Political centralization in Java and domination of the Javanese cultural tradition.
Chapter III Article 5 (1) provides that “[t]the President shall hold the power to make statutes in agreement with the Dewan Perwakilan Rakyat.” Chapter VII Article 20 (1) provides that “[e]very statute shall require the agreement of the Dewan Perwakilan Rakyat,” but Article 21 (2) also provides that [s]hould those drafts, although agreeed to by the Dewan Perwakilan Rakyat, not be ratified by the President, those drafts may not be submitted again during the same session of the Dewan Perwakilan Rakyat.
Control of the DPR by the President is achieved by packing the DPR with members of the Golongan Karya (GOLKAR – the party comprised of government bureaucrats and officials) and ABRI.
For a discussion of the role of Pancasila in the integrated state, see, Siafriddin Prawiranegara, Pancasila as the Sole Foundation, Indonesia 38 (October 1984) pp 74-83.
Literally this translate to “Many remains One” or “Unity From Diversity.” This curiously resembles the “E Pluribus Umum” of the United States of America. Here is where the similarities end – the Indonesian Constitution vests almost plenary powers in the Executive, the President.
Resort to violence from those who disagree with government policies, including sectarian violence.
Abuse of human and civil rights.
Excessive reliance on a strong charismatic leader, a paternalistic figure suitable for the kekeluargaan or the family like nature of the Indonesian nation-state..
A subservient legislature that rubber stamps the law-making proposals of the president.
A labyrinthine but dysfunctional judiciary including the Mahkamah Agung that is not independent of the executive.
Neglect in the development of procedural and substantive law, including commercial law and contracts.
The substitution of culture, especially political culture and revolutionary culture12 for the rule of law.
Loss of international confidence and international investment.
Many observers have remarked that in Indonesia, “politics is everything,” and business is transacted according to which politician one knows. Perhaps this derives from the IndoJavanese aristocratic tradition that emphasizes well cast roles such as the priyayi13 and pamong praja14. Power stratification is also the result of the easy inheritance of Dutch colonial methods of government. The absence of a meaningful legislature and effective judiciary simply reinforces this cultural caste tendency.
However, Indonesia is also a land of paradox – alongside the strenuous effort to create an integralist state is found the dragging inertia of time honored diversity and separatism.
Like the ancient Tao saying, the more one pushes, just as hard is the natural push in opposition. The thirty-two year rule by President Suharto has brought much economic progress, especially to the big cities and the island of Java, but all the progress came to a shattering halt in 1998. That year Indonesia endured a 7% negative growth, interest rates climbed to 75% and the rupiah suffered a threefold loss in exchange value with the U. S dollar.15 Jakarta and other cities across the archipelago were engulfed in looting, racial violence,16 and sectarian disturbance. The violent upheavals coupled with the lingering Asian economic crisis of 1997, and international rebuke over East Timor brought about the downfall of Suharto. The situation remains precarious and uncertain as Indonesia saw the rapid succession of three presidents in as many years.
President Megawati, having come to power in the last three months along with her party the Indonesia Democratic Party of Struggle (IDPS), has reiterated a grim and gloomy warning in her state-of-the-nation speech to the MPR. She informed the country's highest Hukum revolusi. A famous quote of President Sukarno is “You cannot make a revolution with lawyers.” Attributed to Sukarno from a speech at a national conference of Indonesian lawyers in 1961 and published in “Hukum & Masjarakat,” Jakarta, Djambatan, 1962.
Members of the Javanese upper class who trace their roots to the ancient aristocracy.
Javanese courtiers who now strive to hold on to their bureaucratic positions in modern Indonesia.