Law of Indonesia


Law of Indonesia is based on a civil law system, intermixed with local customary law and Dutch law. Before European presence and colonization began in the sixteenth century, indigenous kingdoms ruled the archipelago independently with their own custom laws, known as adat. Foreign influences from India, China and the Middle East have not only affected culture, but also the customary adat laws. The people of Aceh in Sumatra, for instance, observe their own sharia law, while ethnic groups like the Toraja in Sulawesi still follow their animistic customary law.
Dutch presence and subsequent colonization of Indonesia for over three centuries has left a legacy of Dutch colonial law, largely in the Indonesian civil code and criminal code. Following independence in 1945, Indonesia began to form its own modern Indonesian law, modifying existing precepts. Dutch legal decisions maintain some authority in Indonesia through application of the concordance principle. The three components of adat, or customary law; Dutch law; and modern Indonesian law co-exist in the current law of Indonesia.

Hierarchy of legislations

Indonesian legislation comes in different forms. The following official hierarchy of Indonesian legislations is enumerated in Article 7 of Law No. 12/2011:
  1. The 1945 Constitution ;
  2. Resolutions of the People's Consultative Assembly ;
  3. Acts and Government Regulations in-lieu-of Acts ;
  4. Government regulations ;
  5. Presidential regulations ;
  6. Provincial regulations ; and
  7. City regulations and Regency regulations.
In practice, there are also presidential decrees, presidential instructions, ministerial regulations , ministerial decrees, all of which are legally binding and sometimes in conflict with each other.
Once a legislation is promulgated, a State Gazette of the Republic of Indonesia is issued by State Secretariat. Sometimes elucidation of the legislation or attached documents like charts accompany the main legislation in a State Gazette Supplement. The Government also produces State Reports to publish government and public notices as well as other ministerial regulations and decrees.

The 1945 Constitution

The 1945 Constitution is the highest legal instrument in Indonesia, to which the executive, legislative and judicial branches of government must defer. The constitution was written in July and August 1945, when Indonesia was emerging from Japanese occupation toward the end of World War II. It was replaced by the 1949 Federal Constitution and the 1950 Provisional Constitution, but was restored after President Sukarno decreed its reintroduction as the Constitution of Indonesia on 5 July 1959. However, constitutional deviations grew rapidly during Sukarno Administration.
The 32 years of Suharto Administration ended any practice of constitutional deviations exercised under Sukarno. However, the constitution would never been amended either. In contrast to Sukarno's volatile administration, Suharto refused to countenance any changes to the constitution and the People's Consultative Assembly passed a resolution in 1985 requiring a national referendum for any constitutional amendments.
After the Suharto's fall in 1998, the MPR amended the constitution four times between 1999 and 2002. Important amendments include a direct presidential election by the people, as well as limiting presidential term of office to only two-term five years each; The previous clauses in the Constitution of which had made it possible for Suharto's administration to stay in power for more than five terms. After the final amendment in 2002, the People's Representative Council gained more power of oversight over the executive branch, the Regional Representatives Council was established, regional government and regional autonomy was recognized, and an expanded section about civil and human rights among other changes.
As of the fourth amendment in 2002, the constitution consists of 26 chapters and 37 articles.

Resolutions of the People's Consultative Assembly

Resolution of the People's Consultative Assembly or Tap MPR in short is issued by the People's Consultative Assembly, with legal binding power directly below the Constitution. Under the original, unamended 1945 Constitution, MPR is the highest state institution in Indonesia, with the sole power to exercise popular sovereignty, amend the Constitution, vote and elect the president, and enact a Broad Guidelines of State Policy. Thus, Tap MPR is used to guide national and government policy, and its use was promoted during Suharto administration.
After the fall of Suharto from power, MPR amended the constitution, and ceased to issue any further Resolutions. In a final Tap MPR enacted in 2003, MPR confirmed the binding power of some Resolutions and declared the rest as completely or partially devoid of legal powers. Previously in 2000, MPR included the Resolutions in the official hierarchy of Indonesian legislations, but removed it in a 2004 Legislation Act. Finally in 2011 an amended Legislation Act was enacted, reintroducing the Tap MPR into the official hierarchy of Indonesian legislations, but not confirming MPR power to issue further resolutions.

Acts and government regulations in-lieu-of acts

Acts or laws can only be enacted by the DPR with the president's assent. The president, DPR, and DPD can propose a bill of law to be deliberated by the DPR. During the process of drafting and deliberating a bill, DPR forms a small task group to discuss the proposed legislation with the relevant government institutions and various stakeholders. When agreement has been reached and the DPR has approved the bill, the president signs the bill and it is enshrined into law as an act. However, if the president refuses to sign the bill approved by DPR, the bill will automatically be enacted within thirty days and is promulgated. When agreement cannot be reached within DPR to enact a bill into law, the bill may not be proposed again during the current DPR session.
The president are also authorized to promulgate a Government Regulations in-lieu-of Acts by the Constitution. There are several reason why the president might issue a Perppu:
  • An emergency situation has arisen, in which an act is required, but deliberation process in the DPR may take too long;
  • A legal vacuum has happened or legal loopholes has been discovered due to lack of sufficient Acts regarding the subject;
  • Certain matters is not sufficiently covered under existing Acts.
However, after promulgation by the president, Perppu must be submitted to DPR for approval during the immediate DPR session. If approved, Perppu will be enacted into an act. If not approved, said Perppu will be devoid of any legal power, and the president must submit a bill to repeal the Perppu. But during the time period between promulgation by the president and approval by DPR, Perppu is still a legally binding legislation with the same power as a proper Act.

Government regulations

Government regulations are issued by the president in the name of the Government to execute an act into proper government policies and regulations.

Presidential regulations

Presidential regulations are issued by the president to execute an act and its government regulation into sets of a more flexible and matter-specific policies and regulations, usually to be further executed by relevant institutions, ministries, and agency.

Provincial, city, and regency ordinances

Under current Indonesian administrative subdivisions, Indonesia is divided into 38 provinces headed by a governor. Each provinces is then subdivided into the urban cities headed by a mayor, and the rural regencies headed by a regent. Each of the provinces, cities, and regencies also have their own legislatures, called the Regional People's Representative Council. There are further administrative subdivisions below the cities and regencies, but they do not issue legislations. Several regions may use different nomenclatures for their subdivisions, but are principally still the same.
Ordinances or regional regulations are sets of legislations issued by the regional government applicable under their respective jurisdictions: provincial ordinances issued by the Provincial DPRD, city ordinances issued by the city DPRD, and regency ordinances issued by the regency DPRD. The provincial ordinances is higher in rank than the city and regency ordinances, though sometimes legislations passed on the national level allowed them to be directly executed with city and regency ordinances, bypassing the issuance of provincial ordinances.
The ordinances regulated specific matters pertaining regional autonomy, facilitation of local situations, and executions of legislations of higher level than the ordinances. The governors, mayors, and regents may issue their own regulations, decrees, and instructions to further execute and specified matters of the ordinances into applicable policies.
Similarly with the case in national-level Acts lawmaking procedures, the DPRDs and the regional heads of government can propose bills of law to be deliberated in the DPRD. If an agreement has been reached, the regional heads of government will sign the bill into an ordinance, then the bill will automatically enacted into an ordinance within thirty days.

Written laws

As Indonesia is considered to prescribe to civil law system, the legal system is heavily reliant on statutory laws. Generally, all legislations explicitly mentioned in the official hierarchy of Indonesian laws is legally binding and applicable as a source of law. Other legally binding legislations not included in the official hierarchy may be mentioned in the attached elucidation of the 2011 Lawmaking Act. Treaties ratified into an act also serve as a source of law.
Under Article 2 of the transitory provisions in the Constitution, all legislations and institutions made under Dutch colonial law will remain in place and in force, until new legislations and institutions are made to replace them. Legislations such as the Algemene Bepalingen are still in force, and institutions such as the civil registry still operates to this day.