Book Review

Book Review INDONESIAN Indonesian Law, by Simon Butt and Tim Lindsey, Oxford University Press, 2018, lv+576 pages: ISBN 9780199677740. Hardcover £95.00. The difficulty of finding legal and political literature in English when trying to understand Indonesian law and politics, has led two Australian academics, Simon Butt and Tim Lindsey, to publish a book entitled “Indonesian Law” after 7–8 years of research. Their work is an overview of Indonesian , which includes, a vast array of commentaries and analysis from the technico-legal to the sociopolitical. Their book aims to explain how Indonesian law operates in practice. Studying a foreign legal jurisdiction has never been a comfortable journey. The main predicament is the language barrier. In terms of studying Indonesian laws, the hardship increases with the multiple legal traditions that are adopted in . In addition to the written positive law, which is largely influenced by the tradition inherited from colonialism, both Customary Law and Islamic Law play a crucial role in the shaping of the Indonesian legal system. Driven by a desire to understand the unknown, Butt and Lindsey have entered the jungle of the Indonesian legal system to better understand how it works so as to inform readers, especially those unfamiliar with the Indonesian legal landscape. This book not only gives a very broad and clear account of the historical development of both the Indonesian legal and judicial systems but it also provides a comprehensive picture of both the political and governmental systems in Indonesia from independence up to the present time. To achieve this, the authors supply readers with an account of the drafting of Indonesia’s first constitution, the 1945 Constitution, its repeal and replacement with the Indonesia’s shortest-lived constitution, the Constitution of the Federal Republic of Indonesia enacted in 1949, which, in turn, was repealed and replaced by the Interim Constitution in 1950, and the return to the 1945 Constitution of the Republic of Indonesia through a decree issued by President Soekarno on 5 July 1959. The book also provides readers with an understanding of Indonesian state institutions, their organisation, and constitutional authority. Embracing the title of “Indonesian Law”, the book reflects the authors’ ambitious project to capture every aspect of Indonesian laws and introduce them to an English-speaking audience particularly since there is only a small number of publications written in English that discuss Indonesian law. And in this small number, only a particular area of the law is often focused on. A book by Jimly Asshiddiqie,1 which focuses on Indonesian Constitutional Law, and another one by Peter Mahmud Marzuki,2 which discusses the history, sources and governmental organisation with some references to criminal and business law in Indonesia, are some of the more notorious examples. However, unlike these two authors, Butt and Lindsey seek to present the Indonesian legal system from a broader perspective. Given its wide range, this work can be referred to as a “compendium”. It is a complete yet concise collection of nearly every aspect of Indonesian law. The book is divided into five chapters, (1) The Legal System; (2) Land Law; (3) Criminal Law; (4) Commercial Law; and (5) Private Law. Each chapter is divided into 22 sections. The first chapter identifies government institutions and how they operate. The chapter also discusses the government policymaking process. In this chapter, the authors also provide readers with a sound description of how the legal profession is organised and a brief guide for foreign lawyers who want to practice the law in Indonesia. The second part of the book, which investigates land law, deals with three issues: traditional and Customary law, referred to as hukum adat, forestry management, and environmental law. In the third chapter, the authors provide an account of Criminal Law by drawing on both substantive and procedural criminal laws. They also emphasise human rights law and anti-corruption law, which is a critical issue

1 Jimly Asshiddiqie, The Constitutional Law of Indonesia: A Comprehensive Overview (Sweet and Maxwell Asia, 2009). 2 Peter Mahmud Marzuki, An Introduction to Indonesian Law (Setara Press, 2011).

1040 (2019) 93 ALJ 1040 Book Review in Indonesia as the eradication of corruption remains one the Indonesian Government’s top priorities.3 In the chapter concerned with Commercial Law, readers are introduced to more details of how law regulates the business environment ranging from establishing a company, investment; employment, and taxation policy. By also including Media Law in this chapter, the authors show readers how the right to privacy and freedom of information are regulated and protected in Indonesia. The final part of the book is on private law with separate sections that discuss marriage, divorce, and inheritance. However, it is important to note that despite the authors’ effort to provide readers with an overall picture of the Indonesian law, they do not explain why the book is structured as it is, the reason for making such classifications, and their reason for excluding certain areas of Indonesian law such as, Maritime Law, Contract Law, Banking Law, Insurance Law, Intellectual Property Law, Litigation, and Arbitration or Alternative Dispute Resolution, given the fact that Indonesia applies a pluralistic legal system. In this regard, we contend that the authors, in some ways, are influenced by their common law background. This could be incomprehensible to Indonesian readers who are accustomed to civil law. In our opinion, the discussion on Customary Law seems problematic. It seems biased to discuss adat only within the chapter dealing with Agrarian Law. This seems to suggest that Adat Law only deals with land issues. However, Adat Law is not only concerned with the issues of land ownership, as suggested by the authors. The authors define Adat Law as comprising laws that are applied within a particular community. We think that this definition is very limited as Adat Law is a ritual process and moral teaching that must be adhered to and instilled in that community. As pointed out by the authors, three strands of law apply in Indonesia, that is, State Law, Adat Law, and Islamic Law. The Indonesian people are regulated by each of these laws. As a consequence, the practice of legal pluralism in Indonesia has become a necessity, not a choice. The scope of Adat Law goes beyond land issues to include marriage, inheritance, and to some extent, crime and punishment. In some regions, Adat Law and Islamic Law are even intertwined, such as the case of West Sumatera where there is a maxim that goes “adat bersendikan syara’, syara’ bersendikan kitabullah”. Literally translated, this means that adat is rooted in Islam, which, in turn, is rooted in Al-Qur’an. This shows that there is no jurisdictional boundary between Adat Law and Islamic Law. However, the major issue when it comes to dealing with the coexistence of these laws is the supremacy of law. How to find the balance between two competing legal systems remains a complex issue to both the government and judges throughout the country. On human rights, the authors endeavour to explain the government’s struggle to protect the basic rights of the citizens in accordance with international instruments as well as treaties and conventions ratified through legislation. However, one thing that is lacking in the discussion, in our view, is the role of the Indonesian Constitutional Court in safeguarding the fundamental rights of the Indonesian citizens. Given their importance, Adat Law and human rights law could be discussed in two separate chapters to avoid confusion and provide readers with a broader understanding of both issues. We also think that only discussing Islamic Law within the chapter on Private Law (Ch 5) might prevent readers from getting a thorough and comprehensible understanding of Indonesian law, which is the main purpose of the book. Additionally, according to the authors, the classification of Private Law includes Marriage Law, Divorce Law, and Inheritance Law. This could mislead readers as these issues are considered in the Indonesian legal system to fall within the ambit of Family Law. Instead, Private Law would be a good fit with Commercial Law (Ch 4). Finally, the issues presented in this chapter that is, marriage, divorce, and inheritance are only discussed superficially. We believe that the authors could have broken more ground had these issues been discussed thoroughly. The discussion then tends to converge with the application of Islamic Law. As stated earlier, it would be more appropriate had the authors given more space to Islamic Law in a separate chapter, at least then, they would have had the opportunity to explore more on the practice of Islamic Law in Indonesia which has a wider influence and not only to identify Islamic Law with marriage, divorce, and inheritance. As an illustration, note the discourse on jinayah (Islamic penal code) which is only enforced to a limited extent within the province, the northern region of

3 Saldi Isra et al, “Obstruction of Justice in the Efforts to Eradicate ” (2017) 51 International Journal of Law, Crime and Justice 74.

(2019) 93 ALJ 1040 1041 Book Review Indonesia. Moreover, the authors could have also included the use of Islamic Law as a reference for the comparative study of judicial institutions, the Constitutional Court and other courts under the . The book provides a great deal of information about government institutions, decentralisation policies, legislation, the study of state budgets and taxation law. Nonetheless, the analysis is rather scattered and unstructured. In addition to the omission of certain areas of law mentioned above, no single part of the book discusses Administrative Law despite the fact that the Administrative Court has been established under the Supreme Court to resolve state administrative disputes. Indonesia being a civil law country, Administrative Law plays a crucial role within the country’s legal system. The strength of the book lies in the cases presented, for example the famous case of Schapelle Corby, an Australian woman who was sentenced to 20 years by the Denpasar District Court on 27 May 2005 for the importation of 4.2 kg of cannabis into Bali. This case is a perfect illustration of Indonesian criminal procedure law. Another strength of the book lies in the vast literature referenced by the authors. This shows not only compliance with scientific writing standards but also and more importantly the authors’ effort to produce a reliable piece of work backed by valid and up-to-date sources. Researching on the development of law in Indonesia is not an easy venture as laws in Indonesia change every five years on average. Election Law may serve as a good illustration in this regard. In fact, since the fall the Soeharto Regime in 1998, this law has undergone several amendments of which the first one occurred in the 1999 general elections whereby Law No 3 of 1999 applied. The second amendment took place during the 2004 elections when Parliament enacted two separate laws: Law No 12 of 2003 for Parliamentary elections and Law No 23 of 2003 concerning Presidential elections. In the 2009 elections, the Election Law underwent the third change through Law No 10 of 2008 on Parliamentary elections and Law No 42 of 2008 on the Presidential election. A fourth amendment to the same law for the 2019 elections was initiated through the enactment of Law No 7 of 2017. It is also important to note that Election Law is not only influenced by legislation but also and more importantly by the rulings of the Indonesian Constitutional Court. Another unpredictable aspect of Indonesian law can be found in local Election Law. In 2014, the Constitutional Court ruled that its jurisdiction over these cases is unconstitutional.4 Therefore, the legislature would need to amend the statutory law governing jurisdiction over “result dispute cases” to give the Court decision full effect. The current local Election Law calls for the creation of a new special judicial body to handle “result dispute cases”.5 However, the law only requires that the national legislature create this special judicial body by 2024.6 This means that the Constitutional Court could continue to exercise jurisdiction over local election “result dispute cases” 10 years after the Court has deemed its authority unconstitutional.7 However, in 2015, the government issued a Governmental Regulation In-Lieu of Law (Peraturan Pemerintah Pengganti Undang-Undang) which was later passed into Law No 1 of 2015 stipulating that local election disputes would be handled by the Supreme Court. To further complicate matters, local elections are undergoing a massive reformation. Specifically, the national legislature has decided to synchronise the elections for heads of local government so that these elections all happen on the same day once every five years.8 Interestingly, this local election synchronisation will also be completed in 2024.9 This means that the Constitutional Court will maintain its jurisdiction over “result dispute cases” despite the enactment of Law No 1 of 2015 that gives the Supreme Court the authority to handle local election disputes.

4 Constitutional Court Decision No 97/puu-xi/2013, 60. 5 Law No 10 of 2016, Art 157. 6 Law No 10 of 2016, Art 157(2). 7 See Camden Kelliher et al, “The Unconstitutional Authority of Indonesia’s Constitutional Court: The Resolution of Pilkada Result Disputes” (2019) Election Law Journal: Rules, Politics, and Policy (forthcoming). 8 Law No 10 of 2016, Art 201. 9 Law No 10 of 2016, Art 201.

1042 (2019) 93 ALJ 1040 Book Review Abrupt changes in the laws and policies make it difficult for people to keep track of the development of the law in Indonesia, especially for foreign scholars trying to understand it. Some of these changes include fundamental concepts and processes that are not simple to digest and explain to lay people. The authors have opted to discuss the components of the Indonesian legal system, instead focusing on the changes in Indonesian law. We find this approach useful and effective as discoursing on the change in Indonesian law could be a very daunting and lengthy venture for foreign scholars. Another significant aspect of the book is that not only does it describe what constitutes Indonesian law, it also makes constructive criticisms on certain areas of the law, especially the review mechanism of local legislation (Peraturan Daerah) by the Supreme Court.10 The authors argue that the Court has resolved certain cases that fall within its judicial review jurisdiction unconvincingly and that its reasoning in judicial review cases is simplistic and superficial. We believe this criticism is justified as the Indonesian Constitutional Court is a very young institution in comparison with its counterparts, and more remains to be done for it to achieve the standard of its counterparts. Another strength of the book is the authors’ great understanding of the practice of Indonesian Civil Law, as discussed in Chs IV and V. They also demonstrate a perfect understanding of both the Indonesian Private and Public laws as well as Commercial Law. Apart from the above criticisms, this book makes a significant contribution to writings on Indonesian law. It is written and presented such in a way that it allows readers unfamiliar with the Indonesian legal system and lexicon to gain insight into the system. The book is very useful for both locals and foreigners as it targets not only students, academics and lawyers but also anyone interested in understanding the Indonesian legal system for business or any other purposes. Saldi Isra Constitutional Court Justice of the Republic of Indonesia; Constitutional Law Professor, Faculty of Law Andalas University, Indonesia Hilaire Tegnan Visiting Lecturer of Constitutional Law, Faculty of Law, Andalas University, Indonesia Bisariyadi Researcher, Constitutional Court of the Republic of Indonesia

10 Simon Butt and Tim Lindsey, Indonesian Law (OUP, 2018) 71.

(2019) 93 ALJ 1040 1043