The Source of Laws in Indonesia

The Source of Laws in Indonesia

The sources of Laws in Indonesia can be divided into two types, namely material and formal legal sources. Material legal sources are sources of laws that determine the content of a regulation (norms) which bound the people. Material sources of law originated from legal situation of the society, the economic and social situation, public opinion, tradition, religion, results of scientific research, morale, geographic development, international development and legal politics.

Formal legal sources are sources of laws which determine the forms and the cause of inception of certain regulation (legal norms). Regulations have two main function, namely as legalization and legislation. Referred to as legislation function is to enact phenomenon that present in the society, whereas referred to as legislation is a process to conduct legal reform.

The formal sources of laws can be described as the following

  1. Laws

  2. Customary or unwritten laws

  3. Jurisprudence

  4. Treaties

  5. Doctrine

Laws

From its forms, laws can be distinguished into

  1. Constitution

  2. The Order of People’s Consultative Assembly

  3. Laws

  4. Government Regulation in Lieu of Laws

  5. Government Regulation

  6. Presidential Regulation

  7. Regional Regulation on Provincial Level

  8. Regional Regulation on City/Regency Level

Customary/ Unwritten Law

Customary is the norms that adhered by the society without being stipulated by the government. For a customary to become applicable laws and acknowledged as sources as laws, following requirements needs to be met:

  • There is an action or certain action committed repeatedly in similar matter and followed by wider people;

  • There is a legal understanding from peoples/interest group, in the sense that there is an assurance that such norms developed by custom is of good value and relevant to be followed and have binding power.

Jurisprudence

Jurisprudence is decisions of judges that are followed and used as guidance as judges in deciding cases of similar issue.

Treaties

Treaty is agreement conducted by two (bilateral) or more countries (multilateral).

Legal Doctrine

This is opinion of respected expert and legal scholars. Judges often use legal doctrine in making its decisions which is then referred as jurisprudences.

Introduction

Introduction

Civil Code

Burgerlijk Wetboek Staatsblad No. 23/1847 dated 30 April 1847 effective January 1848. dan berlaku Januari 1948.

Four Books

  1. Book 1 on Person: Partially amanded by Act Number 1/1974 on marriage as far as related to Moslem

  2. Book 2 on Goods: No longer applicable in particular to Land and some part of Security Rights Regime (as far as hypothec and some part of security over movable property)

    Amended/regulated by Act No 5/1960 on Basic Agrarian Act and Act Number 4/1996 on Mortgage, and Act Number 42/1999 on Fidusia Security.

  3. Book 3 on Contract: Including wetboek van kophandel, Failissement Verordening, etc

    Amended by various legislation i.e. Company Law, Bankruptcy Law, etc

  4. Book 4 on Expiration and Substantiation

Criminal Code

Wetboek van Strafrecht voor Nederlandsch-Indie according to Staatsblad 1915: 732 deemed as in force by Act Number 1 Year 1946 Regulation on indonesian Criminal Law

Minor amendment, last amendment known:

– Government Regulation in Leiu of Act Number 16/1960 and 18/1960 regarding adjustment of Fine in the Criminal Code.

Separate Laws on:

  1. Corruption (Act Number 31/1999 as amended by Act Number 20/2001)

  2. Money Laundering (Act Number 8 /2001 on Money Laundering)

  3. Environment (Act Number 32/2009 on Environment,

  4. Fisheries (Act Number 31/2004 as amended by Act Number 45/2009 on Fisheries)

  5. Juvenile (Act Number 11 year 2012 on Juvenile Criminal Court System)

  6. Others

Procedural law

Civil Procedural Law still generally use the colonial regulations:

  1. Reglement Op De Rechtsvordering (Staatsblad Year 1847 No. 52 jo. Staatsblad Tahun 1849 No. 63), applicable for European Citizen)

  2. Het Herziene Indonesisch Reglemen (Staatsblad Tahun 1941 No. 44), applicable for Citizen in the Island of Java and Madura

  3. R.bG (Rechtsreglement Buitengewesten atau Reglemen for Outside Region) Applicable for Court Procedure outside the Island of Java and Madura

  4. Influence from various laws such as Law on Judiciaries, Law on Advocates, Law on Legal Aid, etc.

Criminal Procedural Law

Act Number 8/1981.

Judicial Commission

Judicial Commission

In addition to the two courts, article 24 of Constitution also establish a third agency, named the Judicial Commission. The Commission shall have the following authorities: [1]

  1. to nominate the appointment of the Justices and Ad Hoc Justices of the Supreme Court to the Parliament for approval;

  2. to maintain and uphold the honour, dignity, as well as the conduct of judges;

  3. establish judge’s code of ethic and/or conduct jointly with the Supreme Court;

  4. to guard and enforce the implementation of judge’s code of ethic and/or conduct.

Judicial Commission sits in the capital city and consist of 7 commissioners.

Source :

[1] Article 13 Law Number 18 Year 2011 on Amendment of the Law Number 22 Year 2004 on Judicial Commission

Constitutional Court

Constitutional Court

Constitutional Court sits the capital city, and does not have any hierarchical relation with the Supreme Court. Constitutional Court have 9 Justices. According to Act Number 24 Year 2003, as amended by Act Number 8 Year 2011, Constitutional Court have the following authorities:

  1. constitutional review of a Law against the Constitution;

  2. dispute between state agencies having the authorities mandated from the Constitution;

  3. dissolution of political party

  4. dispute over the result of general election; or

  5. opinion of the parliament that president or vice president has committed violation in the form of treason, corruption, bribery, and other type of gross criminal act, or disgraceful act and/or no longer meet the requirement President and/or Vice President as mentioned in the Constitution.

Tax Court

Tax Court

Dasar Hukum

The tax court is established under the Act Number 14 Year 2002 on Tax Court.

Kewenangan

The Tax Court is the court with authority to hear and decide cases filed by Tax Payer that seek justice over tax disputes. Whereas, tax dispute is defined as disputes that arise in the field of taxation between taxpayer vis a vis the official in charge as results of appealable order or claim against the tax court in accordance to applicable regulation, including claim against tax collection conducted in accordance to forced warrant.[1]

Place of Seat

The Tax Court sits in Jakarta, and have sitting places in Yogyakarta and Surabaya.

 

Source :
[1] Article 1 par (5) Law Number 14 Year 2002 on Tax Court.

Industrial Relation Court

Industrial Relation Court

Legal Basis

Industrial Relation Court is Special Court in the level of first instance established under the jurisdiction of General Court with authority to examine, hear and decide upon the industrial relation dispute.

The Industrial Relation Court is established under the Act Number 2 Year 2004 on the Resolution of Industrial Relation Dispute.

Jurisdiction

The Industrial Relations Court has the task and competency to examine and decide:

  1. disputes on rights (of employee);

  2. disputes on interest

  3. disputes on termination of employment

  4. disputes among the labor unions within the same company

The industrial relation court hear cases in panel of three judges, consist of one career judge as chairman of the panel, and two ad hoc judges, one represents the labor union and the other one represents businesses association. (art 88)

Place of Seat

The Industrial Relation Court sits in the district court in each capital of provinces (art 59), and other district court as deemed necessary.

Anti Corruption Court

Anti Corruption Court

Legal Basis

The anti corruption court is established by Act Number 46 Year 2009 on Anti Corruption Court.

Competency

Anti Corruption Court have the authority to examine and decide upon the following types of criminal cases:

  1. Criminal Act of Corruption;

  2. Criminal Act of Money Laundering which originated from criminal act of corruption; and/or

  3. Criminal Act which specifically mentioned by other laws as criminal act of corruption.

Anti Corruption Court in the Central Jakarta have special authority to examine criminal act of corruption committed by Indonesian citizen overseas.

The court hears cases in panels of 3 or 5 judges, consist of combination of career and ad hoc judges. Ad Hoc Judges are recruited for five years.

Place of Seat

The Anti Corruption Court sits in District Court in every capital of provinces.

Human Rights Court

Human Rights Court

Legal Basis

The Human Rights Court is established under the Act Number 26 Year 2000 on Human Rights Court

The Act also recognize Ad Hoc Human Rights Court with special authority to hear gross violation of human right taking place prior to the enactment of the Act Number 26 Year 2000. Establishment of this Court must be conducted under the recommendation by the parliament in a very special instances and established according to the Presidential Decree. (art 43).

Competency

As special court responsible to hear and decide on gross violation of human rights cases. (art 4)

The court also responsible to hear and decide on gross violation of human rights committed outside the Indonesian border by Indonesian citizen. (art 5)

Gross violation of human rights covers crime of genocide and crime against humanity (article 7 and article 8) as action committed with the intention to destroy or eliminate all or part of group of nation, race, ethnic group, religious group by way of:

  1. Massacre the member of the group

  2. Inflict heavy physical and mental suffering to the members of the group;

  3. Create certain life condition over the life of the group which will caused physical termination in whole or in part;

  4. Insist actions intended to prevent reproduction in certain group; or

  5. Forced removal of children in certain group to another group.

The Crime Against Humanity (article 9) is defined as widespread or systematic attack which known (to the perpetrator) that such attack intended directly to civilian, in form of;

  1. Murder

  2. Extermination

  3. Slavery

  4. Forced eviction or removal of citizen

  5. Deprivation of freedom or other physical freedom in arbitrary manner which violates principles of international laws

  6. Torture

  7. Rape, sexual slavery, forced prostitution, forced pregnancy

  8. Forced sterilization or other equal forms of sexual harassment

  9. Persecution to certain group or association which is based on the similarity of political views, race, nation, ethnicity, culture, religion, sex or other universally accepted reasons as prohibited act according to international law

  10. Forced disappearance or

  11. Crime of apartheid

Place of Seat

Human Rights court is a special court under the jurisdiction of general court. Human Rights Courts sits in:

  1. Central Jakarta with jurisdiction covers the Special Capital Region of Jakarta, Province of West Java, Banten, South Sumatera, Lampung, Bengkulu, West Kalimantan, and Central Kalimantan;

  2. Surabaya with jurisdiction covers the Province of East Java, Central Java, Special Region of Yogyakarta, Bali, South Kalimantan, East Kalimantan, West Nusa Tenggara, and East Nusa Tenggara;

  3. Makassar with jurisdiction covers the Province of South Sulawesi, South East Sulawesi, Central Sulawesi, North Sulawesi, Maluku, North Maluku, and Irian Jaya;

  4. Medan with jurisdiction covers the Province of North Sumatera, Special Region of Aceh, Riau, Jambi, and West Sumatera.

Fisheries Court

Fisheries Court

Legal Basis

The fisheries Court was established in accordance to Act Number 31 Year 20014 on Fisheries. The court is established under the court of first instance in General Court Jurisdiction. The court have authority over criminal act of fisheries as regulated under Act Number 31 Year 2004 on Fisheries.

Jurisdiction

The Fisheries Court have jurisdiction over crime that are stipulated in article 84 to 105 Act Number 31 Year 2004 on Fisheries.

The industrial relation court hear cases in panel of three judges, consist of one career judge as chairman of the panel, and two ad hoc judges, one represents the labor union and the other one represents businesses association.

The Place of Seat

Currently there are ten Fisheries Court in Indonesia. The first Fisheries Courts were established in 2004 in District Court of North Jakarta, District Court of Medan, District Court of Pontianak, District Court of BItung, District Court of Tual. Later in 2010, through Presidential Decree Number 15 Year 2010 following Fisheries Court were established in District Court of Tanjung Pinang, District Court of Ranai. In 2014 3 more Fisheries Court were established in District Court of Ambon, District Court of Sorong, and District Court of Merauke.

Commercial Court

Commercial Court

Legal Basis

The Commercial Court was established by Act Number 1 Year 1998 on Bankruptcy and Suspension of Payment. It is a specialized court established under the jurisdiction of general court with authority to hear and decide certain commercial cases. When it was established, it has sole authority to hear bankruptcy and suspension of payment cases. Later the authority is expanded to include dispute on Intellectual Property Cases. Recently commercial court’s authority has been expanded to include disputes in the process of liquidation of bank’s conducted by the Savings Guarantee Agency (Lembaga Penjamin Simpanan-LPS).

Jurisdiction

Currently the authority of commercial court covers the following cases:

  1. Bankruptcy and Suspension of Payment Cases and all matter related to it, including annulment of preferential transfer, review to the result of verification of claims.

  2. Intellectual property right which include Industrial Design, Integrated Circuit Design, Patent, Trade Mark and Copyright.

  3. Savings Guarantee Agency which include dispute which cover liquidation process and claim over annulment of all legal action committed by bank which caused reduction of assets or increase in bank’s obligation, committed within the past year prior to the revocation of the license.

Place of Seat

Commercial court is a specialized court of first instance under the jurisdiction of general court. The Commercial Courts sits in District Court of Central Jakarta, District Court of Medan, District Court of Semarang, District Court of Surabaya, and District Court of Makassar.