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For the Professors Hooker, Virginia, and Barry, who inspired this BFB
Acknowledgements
We wrote this book because it is what we both needed when we first started researching Indonesian law, but could not find. It is a compendium of laws with commentary that ranges from the technical-legal to the socio-political that is intended to explain how law operates in practice in Indonesia. We hope the book will be useful to scholars and practitioners, and that it will inspire more work on Indonesia’s complex legal system by future generations of lawyers.
Writing this book has taken many years, and we are grateful to the Indonesian lawyers and scholars who have generously allowed us to interrogate them, including Professor Jimly Asshiddiqie, Professor Todung Mulya Lubis, Professor Denny Indrayana, Professor Bagir Manan, Professor Jamhari Makruf, Dr Nadirsyah Hosen, and the late Professor Adnan Buyung Nasution.
We dedicate this book to Professors MB Hooker and Virginia Hooker, who have greatly guided our thinking on Indonesia and law, and have mentored both of us at various stages of our careers. They have always been tremendously encouraging and supportive of our work. Simon in particular owes a significant debt of gratitude to them: at the Australian National University, Virginia first taught him Indonesian language, and Barry supervised two medal-winning theses. Tim also wishes to acknowledge the contribution of Professor Charles Coppell to his understanding of Indonesia.
Special thanks must go to Tim Mann, Associate Director of the Centre for Indonesian Law, Islam and Society (CILIS) at the University of Melbourne and editor of the Indonesia at Melbourne blog. A talented researcher and writer, Tim played a central role in the research for this book, and it would not have been completed without him. Thorough and reliable, it has been a great pleasure to work with Tim. Any errors are undoubtedly ours!
Sarah Rennie, an Associate of CILIS and now a solicitor, also played a vital part in the research that led to this book, conducting extensive and original research across many different fields of Indonesian law. We are grateful to her for her commitment and enthusiasm. Other very capable researchers who contributed to this book include (in alphabetical order) Joey Bui, Hannah Ekers, Alexandra Haydock, Nicholas Mark, Prayekti Murharjanti, Helen Pausacker, Jessica Rae, Aditya Tumakaka, Dewi Widyastuti, and Alison Youssef.
Tim also thanks the CILIS staff—Kathryn Taylor, Ade Suharto, Helen Pausacker, Tessa Shaw, and Vicky Aikman—for providing a supportive institutional base for the research and drafting of this book. Simon likewise thanks the University of Sydney Law School and his colleagues at the Centre for Asian and Pacific Law for supporting this project, both financially and with their encouragement. Research for the book was funded in part by Tim’s Federation Fellowship (project no FF0668730) and in part by Simon’s Australian Research Council Post-Doctoral Fellowship (project no DP110104287) and Future Fellowship (project no FT150100294). We are both grateful to Oxford University Press for inviting us to write it. We are also indebted to Sri Astari Rasjid for her great generosity in allowing us to use her evocative painting, ‘A New Task for Saraswati’ on the cover.
Tim also thanks Allison Stekelenburg for her love and support, and Mimi, Sami, Nina, and, now, Gabriel, for their patience with Dad’s latest ‘chapter book’. Simon thanks Angela, Max, and Jessica for their love, forbearance, and sense of humour.
Finally, we have both written for many years on Indonesian law and politics, jointly and independently. We have drawn from some of these previous publications in different places in this book and acknowledge this in the footnotes. We have co-authored all chapters in this book, and our names appear as authors in alphabetical order.
Simon Butt and Tim Lindsey April 2018
II. LAND LAW
III. CRIMINAL LAW
IV. COMMERCIAL LAW
V. PRIVATE LAW
2.1Indonesia’shierarchyof laws
TABLES
Terminology and Citation
Because individual chapters in this book will likely be read separately from others, a translation of non-English terms used is provided in parentheses or a note the first time each term appears in a chapter. The term is also italicized on first use in that chapter. Most nonEnglish terms also appear in the glossary and list of abbreviations.
LEGAL CITATION
There is no standard citation system for Indonesian laws and judicial decisions, so we have developed our own conventions for this book.
Take, for example, Undang-undang Nomor 1 Tahun 1974 tentang Perkawinan. Many authors would translate this, correctly, as Law Number 1 of Year 1974 concerning Marriage, or would refer to it as Law 1/1974 on Marriage. We have simplified the titles of legal instruments by not translating nomor (number) and tahun (year). We thus refer to this statute as Law 1 of 1974 on Marriage.
For simplicity, ‘Law’ has been preferred to ‘Act’, or ‘Basic Law’, in translating the terms undang-undang and undang-undang pokok. Peraturan pengganti undang-undang is often translated as ‘Regulation in Lieu of Law’ but we prefer ‘Interim Emergency Law’, as this more accurately captures its purpose. We reserve ‘law’ (with a lower case ‘l’) for hukum, which means ‘law’ in a general sense.
We generally prefer ‘Decision’ over ‘Decree’ for Keputusan.
For convenience, the term ‘Article’ (pasal) is taken to cover sub-articles, paragraphs, etc. ‘Elucidation’ has been preferred to ‘explanatory memorandum’ for penjelasan.
Indonesian judicial decisions are usually referred to by case numbers and not by the names of the parties. We provide these case numbers in notes but for convenience have also developed short titles for many of the cases we discuss. Case numbers generally indicate the year in which the relevant case was lodged with the court, rather than the year in which the case was decided.
Laws passed in 2009 led Indonesian government departments to revert to the title ‘ministry’, so we generally use ‘ministry’ throughout the book.
TRANSLATION
Kabupaten is translated as ‘county’, the next administrative division below the provincial level. Largely rural, kabupaten are equivalent in status to cities. We have preferred ‘county’ as the nearest English-language equivalent rather than the more common translation of ‘regency’.
The modern Indonesian standard orthography as determined by the Indonesian Ministry of Education since 17 August 1972 is used for all Indonesian words except where ejaan lama (old spelling) is used in quotation.
In the case of names, the spelling used by the person named has been preferred where it is known, thus ‘Soeharto’ rather than ‘Suharto’. Although the first president’s name is
often spelled ‘Sukarno’ he signed his name as ‘Soekarno’, the version also preferred by his children, so we have used this spelling.
CURRENCY
As at September 2017, 1,000 Indonesian Rupiah were worth US$0.074.
INTERNET REFERENCES
All internet references were last accessed on 13 March 2018.
Table of Cases
CONSTITUTIONAL COURT (MAHKAMAH KONSTITUSI)
Decision 01–021–022/PUU-I/2003 (Electricity Law case)
