THE STRUCTURE OF GOVERNMENT

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), 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.

Source: U.S. Library of Congress