Sony R Simanjuntak SH (LLB; Unpar) LLM (Monash) PhD (Melbourne)
1. Indonesia in General
Indonesia is a unitary state in the form of a republic. It views herself as a ‘state based on laws’ (negara hukum or rechtsstaat) with the Constitution 1945 as its fundamental law. Articles in the Constitution were based on Pancasila (five principles) which is the philosophy of the state:
1. A belief in an almighty God;
2. A just and civilised humanity;
3. The unity of Indonesia;
4. A democratic process guided by inspirational wisdom in consultation and representation; and
5. Social justice for all Indonesians.
The governmental system is quite different from systems adopted in other parts of the world. It is unusual, because it does not follow the separation of powers of Montesquieu’s theory. Instead it recognises a quite different division of power called ‘distribution of power’, by which the people confer their powers upon a consultative assembly which, in turn, distributes the powers to several high state organs.
The People’s Consultative Assembly (Majelis Permusyawaratan Rakyat; MPR) is the highest state organ in Indonesia. It derives all of its powers from the people (the doctrine of sovereignity of the people) and it has a strong relationship with the Presidency because it delegates most of its powers to the President.
The President (Presiden) is the holder of highest executive office and responsible to the MPR but must exercise that power in line with the Constitution and the Five Year Broad Outlines of State Policy (Garis-garis Besar Haluan Negara; GBHN). In exercising the executive power, the President is assisted by a Vice President (Wakil Presiden).
The President is also assited by ministers (portfolio and non-portfolio). The ministers are appointed and dismissed by the President, and are responsible to the President. They are called the central government. The capital city, Jakarta, is the seat of central government.
In the regions, the President is assisted by heads of regional governments. There are two level of regional governments. The first level of regional government is represented by the provinces, the second by the municipalities and regencies.
The central government has delegated most of its functions to the first and second level regional governments. There are three types of delegation:
A duty is called a ‘decentralisation duty’ of the regional government if the duty is delegated on the basis of the principle of decentralisation. In this instance, the regional government does the planning, performs the function, and bears the cost (in other words, it is totally responsible for the execution of the relevant duties).
A duty is called a ‘deconcentrated duty’ if the central government still has the responsibility for it, but the operational work is carried out by the central government’s apparatus coordinated by the head of the relevant region.
A duty is called an ‘assisted duty’ if the central government still has the responsibility for the duty, but the operational work is carried out by the apparatus of the regional government at the cost of the central government.
All together there are six high state organs. The other four are:
The Peoples’ Representatives Council (Dewan Perwakilan Rakyat; DPR) has formal responsibility for passing central government’s legislation. All the members of DPR are also members of MPR. The President does not have the power to abolish the DPR.
The Supreme Advisory Council (Dewan Pertimbangan Agung; DPA) has the duties of providing answers to any presidential queries and providing advice to the government. None of members of the DPA are appointed by the MPR.
The State Audit Board (Badan Pengawas Keuangan; BPK) controls the operation of the state budget and reports on it to the DPR. Again, none of the members of the BPK are appointed by the MPR.
The Supreme Court (Mahkamah Agung; MA) together with other judicial bodies have a function of judiciary. The Constitution provides for an independent judiciary which is headed by the Supreme Court.
2. Legal System
The Supreme Court (MA) is the repository of judicial power, together with various other courts. Indonesia has adopted a multi-judicial system which consists of four type of courts: general, military, Islamic, and administrative. Each judicial branch comprises a lower court (possessing original jurisdiction) and a high court (possessing appellate jurisdiction). The MA is the highest court which possesses a ‘cassation’ or second appelate jurisdiction on a point of law. The lower court or District Court (Pengadilan Negeri; PN) is situated in every second level regional government area (municipality or regency). The High Court (Pengadilan Tinggi; PT) is situated in every first level regional government area (province). The High Court of a province is an appellate court for every decision of each District Court in the province. All second appeals or cassations from every province in Indonesia are brought to the Supreme Court in Jakarta.
1. General Courts
The general courts (Peradilan Umum) have jurisdiction over general cases both civil and criminal.
2. Military Courts
The military courts (Peradilan Militer) have jurisdiction over criminal cases involving the military, or civilian cases where the crime is classified as a miliatry crime (such as coup d’etat and sabotage).
3. Islamic Courts
The Islamic courts (Peradilan Agama) only have jurisdiction over the Moslem population, and can only try cases in relation to marriage, divorce, and inheritance.
4. Administrative Courts
The administrative courts (Peradilan Tata Usaha Negara; PTUN) have jurisdiction over administrative cases, such as cases between private individuals or companies and a government official, as a result of an administrative decision.
In addition to the ordinary law courts, there are other judicial and quasi-judicial bodies with specialised jurisdiction such as the Labour Court (Panitia Penyelesaian Perselisihan Perburuhan) and the Taxation Appeal Tribunal (Majelis Pertimbangan Pajak).
As to the organisation of laws, basically there are six main areas of law in Indonesia: civil law, criminal law, adat laws, Islamic law, administrative law, and constitutional law.
As to the stratum of the Indonesian legal sources, the MPR stipulates the hierarchy as follows:
– the Constitution (Undang-Undang Dasar; UUD)
– MPR Resolutions (Ketetapan MPR; TAP MPR)
– Acts (Undang-Undang; UU)
– Government Regulations in lieu of Acts (Peraturan Pemerintah Pengganti Undang-Undang; Perpu)
– Government Regulations (Peraturan Pemerintah; PP)
– Presidential Decrees (Keputusan Presiden; Keppres)
– Regional Regulations (Peraturan Daerah; Perda)
Lower legal soure cannot contravene a higher one. An UU, for instance, cannot contradict the UUD or any TAP MPR. Thus, the UUD and TAPs MPR are the determinative norms of the state. Apart from that, a legal source can only be amended or revoked by the same level of regulation or a higher one.
PPs, Keppreses, and Perdas are subsidiary legislation. These regulations cannot contradict the principal legislation.
Thus, to fully understand which laws apply in respect of any particular issue and what they stipulate, one must go to all of those legal sources, including principal legislation and subsidiary legislation.