017_The Lady and the Banyan Tree

Transcription

The Lady and the Banyan Tree: Civil-Law
Change in Indonesia
by
Daniel S. Lev
In 1960 the blindfolded lady with scales was replaced as Indonesia's
symbol of justice by a stylized banyan tree, inscribed with the Javanese
word Pengajoman-protection and succor.' It was generally agreed that the
new symbolism struck a true note, despite cynical comment in private on
the real deterioration of justice since the end of the revolution (1945-1950).
The satisfaction may have been mainly esthetic, but substituting the Asian
banyan tree for the European lady did reflect the concern of Indonesian
leaders to return to their own traditions. It also represented a quickening
of the process of transformation of the heritage of Dutch colonial law into
Indonesian law.
This was an awesome heritage, born of a plural legal order almost as
intricate as the colonial society which it served. Colonial public policy in
the Netherlands-Indies recognized the existence of distinct population
groups: Europeans, Indonesians, Chinese, and other 'foreign orientals',
mostly Arabs. There were two separate secular judicial structures, one for
Indonesians and one for Europeans. All population groups were subject to
the same criminal code, promulgated in 1914, but according to two different
procedural codes. In civil matters Indonesians followed the adat (customary) law, which itself varied from area to area of the great archipelago.
European civil law was provided in copies of the originally Napolenic Dutch
·American Journal of Comparative Law. 282 (1965-66). Reproduced with the
permission of the publishers. DANIEL S. Lev is Assistant Professor of Political
Science, University of California, Berkeley. Research for this article was done
during a brief trip to Indonesia in late 1964.
I. The late Minister of Justice Sahardjo was responsible for the change. See decision
of the Minister of Justice, Dec. 6, 1960, Tambahan Lembaran Negara (Collected
Statutes, Elucidatidhs) no. 2349. This awe-inspiring banyan tree, in whose entangled flYing roots great spirits nestle, has always been symbolically significant in Java.
It is said that in ancient times petitioners in the Central Javanese Kingdoms had
only to sit beneath the banyan tree before the kraton (palace) to force the Sultan
to take notice of their demands for Justice.
In the present case, the banyan tree is explicitly a paternalistic symbol, signifying a
world-view quite different from that which demands an objective and mechanical
weighing of disparate interests and points of view. The same ideological concern
prompted the Ministry of Justice to replace the term 'jail' with 'socializing institution' (Lembaga Bemacjarakatanj-e-es yet mainly of terminological significance.
The change of symbols is reminiscent of a story, with slightly different overtones,
about lit German town which ordered a new statute of the lady of justice during a
time of social distress. When it came. the townspeople opened the crate to find
that the lady's blindfold was gone and her eyes were open.
86
An Introduction to the Study of Comparative Law
,
civil and commercial codes. In the criminal law Chinese and Arabs w~re
considered to be assimilated to Indonesians, in the commercial law to
Europeans, and in the rest of the civil law partly to Europeans but with
important family laVII exceptions."
Interest in simplifying this labyrinth had grown stronger in the last
years of the colony, but it was during the Japanese occupation (I942-1945)
that major steps were taken towards unification of the legal system. At that
time the dual court structure was replaced by a single three instance hierarchy
(Islamic courts aside) which still obtains, and the various procedural codes
gave way to one instrument, the Revised Indonesian Regulation (H .I.R.)
for all population groups. But when sovereigny was transferred at the end
of 1949, the plural civil law based on racial criteria remained, and the
European civil code was the chief symbol of invidious distinction. Despite
continual demands thereafter for new 'national' law-the opposite of colonial
law-it was not until thirteen years later that anything was done about this.
A new civil code had not appeared, but in 1963, during a period of ideological favor, the old civil code was abolished by Supreme Court fiat.
This startling move raises many interesting questions. What, for
example, is to replace the code? What are the immediate consequences
for civil-law transactions? What are the sources of new civil law ? What
role can the courts play in filling the apparent gap? The present article
will deal with these problems insofar as they illustrate the difficulties of
legal change in a former colony. My discussion is developed around major
issues 'law myths', as they are called in the conclusion-that have been
carried over from the colony. Among these are: (1) legal pluralism versus
unification, (2) codified law versus judge-made law, and (3) the sancitity of
the customary (adat) law versus the need to introduce new legal concepts.
For a century these questions have been debated among Dutch jurists,
between them and Indonesians, and among Indonesian law leaders themselves. They were decided one way in the colony and are decided another
way now.
UNIFICATION AND THE FALL OF THE CIVIL CODE
Earlier in this century the best legal minds associated with the Indies
took part in the debate over unification. One point of view, held among
others by Nederburgh, favored a unified civil code for all population groups.
Nederburgh's reasons in sum were that Indonesians had already begun to
come into contact with modern commercial activities, and that the process
ought to be pushed along. Against this position, van Vollenhoven in Leiden
and ter Haar in the colony led the successful argument that the different
social and cultural norms of diverse groups demanded distinct law for each."
In the 1920's a unified civil code draft was rejected, and the colonial
government embarked on a programme of extensive research into the adat
law.
Unlike the French, who did not doubt the superiority of their civilization and law over that of their colonies, Dutch legal scholars took a more
relativistic position. In theory at least, they argued that all legal systems
were equal. Kollewijn defended this view most eloquently, and it was he
2.
On the prewar legal system soc the works cited in Lev, "The Supreme Court and
Adat Inheritance Law in Indonesia," 11 ACJL (1962/2) 205, and "~.I,e Politics of
Judicial Development in Indonesia;' VJI Comparative Studies in Society and
History (1965/2) 173.
The Lady and the Banyan Tree: Civil-Law Change in Indonesia
87
Who did "most to develop the wondrous system of colonial conflicts law.!
Predicated upon equal recognition of disparate legal systems within the same
territorial borders, Kollewijn's approach incorperated highly sophisticated
techniques for applying rules from one or other, or a combination of the
social-legal orders in force.
The major difficulty with the proposition of legal equality was that
it had little to do with social reality. There was no question in the Indies
but that the European colonial elite was superior in position, and that the
great majoritity of Indonesian 'natives' was social1y, economically, and
educationally inferior. And despite the claims of legal scholars, this was
reflected in the law. The written European codes represented this higher
~ondition, the adat law-an object of research for Dutch and later Indonesian
'Indologists'-the lower and undeveloped. In between were various social,
and legal, gradations. Thus the Chinese, economic middlemen of the
colony, were of higher status than Indonesians and their social sights were
aimed towards the position of the Dutch elite, Subject to the commercial
code since the nineteenth century, in 1919 the Chinese were brought almost
completely under the provisions of the civil code too, largely as a concession
to their social ambitions."
It is not surprising that the leaders of independent Indonesia inherited
a predilection for written codes, which symbolized both superior social
status and 'modernity.' In the colony Indonesian lawyers, however devoted to van Vol1enhoven and ter Harr, were nevertheless often closer to
the views of the less popular Nederburgh. Their interest in adat law was
3.
Vollenhoven argued against both unification and codification of Indonesian law.
He was not unalterably opposed to either. however. and ne himself essayed a draft,
Adat-wetboekje voor heel Indie (1925). But he insisted tnis must be a slow work.
following upon along and careful study of the adat law. For the history of Dutch
policy towards the adat law, see Suporno and Djokosoetono, Senjarah Politik
Hukum Adat, 2 vols. (1951).
4. See the collection of articles by Kollewijn, Intergentiel Recht (1955), for the Dutch
anti-acculturation view. The articles, "Jntergentiel Recht in Algerije," and "Conflicts of Western and Non-Western Law." present stimulating critiq ues of the French
assimilation policy.
5. The Japanese were accorded European law status in the Indies early in this century.
This and the new surge of Chinese nationalism encouraged Indonesian Chinese to
demand the same. The Chinese had been subject to the European law of property
and commerce in Java and Madura since 185S, on the Dutch view that the Chinese
(and other foreign orientals) had come to Indonesia primarily as trading groups.
In 1919 the Chinese were made generally subject to the civil code, including family
law, though certain special articles were created for both family law and the kongsi
business organizations. Thereafter, Chinese customary law was no longer needed.
But the Chinese did not uniformally obey the new prestigeful rules of the civil codemonogamy, for example. On this see the learned and informative speech by Ko
Tjay Singh, "Kodifikasi dan Unifikasi Hukum Perdata dan Dagang" (Codification
and.Unification of the Civil and Commercial law. 1958). Other "foreign orientals,"
notably the Arabs were brought under the non-family law provisions of the civil
code in 1925; their family law, Islamic law for Arabs, was considered customary.
Christian Indonesians also enjoyed somewhat higher social staus than Moslem
Indonesians and were provided with their own civil registry. Most Moslem Indonesians had no civil registry, their family law matters being handled by local
Islamic officials. See generally Carpentier Alting Grondslagender Rechtsbedeeling
in Nederlandsch-Indie (1926) and Suporno, Sistim Hukum di Indonesia (1957).
At present, in a total population of about 100 million, there are approximately
three million Chinese in Indonesia, of whom many are Christians. Christian
Indonesians are found in small concentrations on all the major islands. The
majorit~Moslems, of whom a large proportion from Central and East Java are
only nominally Moslem, make up about 90% of the population.
88
not nearly so great as that of their Dutch Professors. But their ',iew of-tne
adat was ambivalent: on the one hand adat law connoted something primitive; and although it also applied to the Indonesian elite, yet the latter
usually perceived the adat as being peculiarly of the rakjat, the great mass
of people of the villages and urban kampongs who were to be guided and
protected but not particularly heeded. On the other hand, adat law was
distinctly Indonesian, which for nationalists was of great importance.
In contrast with the colonial emphasis on order, stability, and varietyfelt by Indonesians to be based on a divide and rule policy-the central
political theme of independence understandably became integration of the
diverse groups and islands of the archipelago into one united state. After
1950 the legal system came under attack not only as colonial, but also as
divisive and discriminatory. The main result at first was clear change in
Indonesian public policy. From the time of the revolution. new legislation
made no distinction between population groups, and officially, though certainly not socially the only differentiation admitted was that between
citizens and non-citizens". Moreover, although the constitution of 1950
like those of 1945 and 1949, provided for the continuation in force of all
existing laws, it also urged the government to codify the law, and it strongly
implied that the new codes should be unified."
No striking progress was made during the early years of independence,
however, in either codification or unification. The civil and commercial codes
in particular continued to be enforced even though they served the legal
interests chiefly of the Chinese and other minority groups. Thus Book I of
the civil code, on marriage and divorce, and part of Book II on inheritance,
applied mainly to European and Chinese family law matters, for which
special intsitutions were also maintained: i.e, the civil registry (burgerlijken
stand, jatatan sipil] for Europeans, Chinese. and Indonesians assimilated to
European law, and the office in charge of orphans' estates (weeskamer, bola;
6.
7.
This in itself caused considerable difficulty, for many Chinese held Chinese citizenship Following a tense conflict over the matter between Indonesia and the People's
Republic of China in 1959, the two states worked out the implementation of a prior
agreement on overseas Chinese citizens in Indonesia. See David Mozingo, "The
Sino-Indonesian Dual Nationality Treaty," 1/10 Asian Survey (1961) 25. Legislation discriminating against the Chinese was of course a practical exception to the
nondistinction policy.
This has been disputed, however. Sec Supomo, "The Future of Adat Law in the
Reconstruction of Indonesia", in Thayer, cd., Southeast Asia in the Coming World
(1953) 217; Soewandi, Sekitar Kodifikasi Hukum Nasional di Indonesia (1955);
Utrecht, Pengantar dalam Hukum Indonesia (5th ed. 1959) 218-219; and Ko Tjay
Sing, Kodifikasi, 15-17. The argument over whether the 1950constitution intended
unification as well as codification turned on interpretations of arts. 25 (2) and 102.
Soewandi, 12, suggested that the use of the term 'population groups' (golongall
rakjal) in art. 25 was a slip of the pen caused by the nearness in time of the drafters
to the colonial period and the idea of 'bevolkingsgroepep'. Ko Tjay Sing, in a
precise analysis, argued that if the drafters had not intended unification. I,hey would
have said so in art. 102, applying to the judiciary, but they did not. My own
view is that unification was intended, but even so the idea that different groups
should have different law remained with most lawyers. Ko Tjay Sing, though in
general agreement with unification, noted that this would take a very long time in
those areas of family and land law where social differences give rise to varying concepts of legal relationships. For this reason he proposed unification in commercial
law first, as had others, but on the convincing analysis that legal traffic between
different groups was heaviest in commerce and least in family law. Supreme Court
president. Wirjono Prodjodikoro, said in 1958 that codification did not necessarily
mean unification, though his views appear to have changed somewhat since.
Sekitar Kodifikasi Hukum Perdjandja'n di Indonesia (On the Codification of
Contracts Law in Indonesia) supplement to 7-8 Madjallah Hukum (1958) 2.
89
harta peninggalan], Book III established European-type land rights, the
most important of which was that of eigendom, an individual property right
much stronger than adat land rights. The remaisder of the civil code and
the commercial code applied largely to Europeans, most of whom left
when Dutch enterprises were taken over by the government in 1957, and to
the Chinese as commercial classes. The major qualification of this was
that Indonesians involved in commerce were considered to have voluntarily
submitted to .the apposite European law ofcontracts, agency, and negotiable
instruments." Otherwise, for the most part, the civil law of Indonesians
was adat law, and this it remained in the independent state.
Quite apart from the constitutional maintenance of existing legislation,
, most Indonesian judges, advocates, and other servants of the law were inclined to operate the legal system as they knew it, even when it began to
break down. The admitted mutability of the unwritten adat law permitted
the Supreme Court freedom to move deliberately towards unification of the
diverse adat rules of family law, but this had to do with unity within only
a single legal system." To unify all the legal systems was another problem,
one in which the colonial concept of different law for different peoples had
great influence. Not only was the civil code maintained, but the courts
continued to polish colonial conflicts rules. An example of this, given here
to illustrate the uses and pitfalls of conflicts law for legal development, is
a decision of the first instance court of Djakarta in 1956. This court ruled
that a purchase contract between two Indonesians from different adat law
areas was subject to the civil code, because (I) the purchase involved two
trucks to be used for public transport, thus for all population groups, and
(2) the contract was made in Djakarta, where the civil code was assumed
normally to apply to such transactions in modern commerce. to It was also
assumed by the court that trucks are unknown to the adat law. Although
such decisions might advantageously extend the application of the civil
code, the danger was very great of bewildering variety-by city, area, and
the subject matter of commercial contracts.'! This could hardly promote
legal unity.
Outside of the courts, colonial law was under constant ideological
attack, but this produced no consensus on new Indonesian law. And there
was considerable dissent on the need for unification, primarily among the
Chinese. The latter would have preferred to maintain the colonial legal
system intact. For as the Indonesian elite had succeeded to the political
Colonial legislation provided for special Indonesian firms (Indonesische Maatschappij op Aandeelen. IMA) which were simple and inexpensive to establish. It
is significant that after independence most Indonesian enterpreneurs preferred to
set up the more complicated corporations of the civil and commercial codes. These
offered not only commercial benefits but also the prestige of modern world enter
wise. See Ko Tjay Sing, Kodiftkasi , 21. On the IMA see also Adil, Pernbaharuan
Hukum Perdata Ki ta (The Renovation of Our Civil Law, 1955,) 116ff.
9. Lev, "The Supreme Court and Adat Inheritance Law in Indonesia," cited supra
note 2.
10. Hukum (Law Journal, 1957/1-2) 137, also in Gouw Giok Siong, Himpunan Keputusan-Keputusan Hukum Antar-golongan (Cases in Conflicts Law, 1959) 114.
II. See Ko Tjay Sing, Kodifikasi, 19-20, for an interesting comment on this case and
on the usefulness of conflicts law in general in Indonesia. He pointed out that:
.....since the decision of the court was based on two factors, that is, the object of
the contract and the place where it was made-s-In a big city-l ask myself what law
musttbe considered to apply if that truck sale took place between a Balinese and
a West Sumatran in Wonosobo, a city which is not cosmopolitan and where the
sale of a truck between two Indonesians is perhaps not the exception."
8,
90
position of the Dutch, so had the Chinese, in many ways, succeeded to
their economic and social position, and the law was at once the outstanding symbol and an important guarantee of that position. The economic
strength of the Chinese hardly depended upon the law, but they regarded
every serious attempt to reform and unify the legal system as a potential
economic threat. Unification, moreover, would place them on an equal
footing with Indonesians, possibly even subjecting them to certain principles of adat law, of which most Chinese were contemptuous. In discussing legal reforms, therefore, Chinese lawyers normally argued for an upward
levelling of the legal system towards the civil code rather than a downward
levelling, as some Indonesians demanded, towards adat law. Professor
Gouw Giok Siong, one of Djakarta's most sophisticated advocates and a
wellknown conflicts scholar, proposed in 1955 that the best candidates for
unification were contracts and commercial law, but that such unification
must accord with "concepts that are common to the world of international
trade."12 Here the law would be levelled upwards away from adat; and
barring discrimination, the Chinese would have little to fear from commercial competition. Indonesian lawyers agreed that the best prospect for
early unification was in contracts and commercial law, but they frequently
alluded to giving Indonesians legal protection from and advantages over
Chinese cleverness and expertise. This was also and especially true of proposal for reform of land rights.
In the fields of property and family relationships, most Chinese more
or less bluntly disagreed with the unification views of such prominent
Indonesian legal scholars as the late Professor Suporno.P The possibility
of a new unified land law threatened the valuable eigendom rights of the
civil code. Professor Gouw argued the necessity of certain strong property
rights for purposes of industrial activity." This was true, but it naturally
evaded the point of Indonesian objections to any rights enjoyed primarily
by the Chinese. It also ignored the Indonesian elite's general ideological
and traditional disdain of the kind of private enterprise, by any group at
all, assumed by eigendom rights. If anything, Chinese resistance to unified
family law was even stronger. Monogamous according to the civil code,
though less so in fact, the Chinese strenously opposed any hint of a unified
code that might be based on ad at law, which in large part followed the
12. Gouw Giok Siong, Pembaharuan Hukum di Indonesia (1955) 29-31. See also
Kollewijn's comment on the need to unify commercial law after the revolution and
to train more Indonesians in this field, "Enige Opmerkingen over de Gelding van
het Indonesische Wetboek van koophandel na de Souvereiniteitsoverdracht,' in
Intergentiel Recht, 230.
13. Gouw, for evample, admitted that racial discrimination was behind much of Dutch
legal policy, but he denied that this was completely so in the case of civil law. He
relied partly on the arguments of Vollenhoven and other Dutch scholars. Thus
against Supomo's view (1947) that land law should be uniaed, Gouw offered the
argument of Chabot that the elements of social change necessary for creation of a
unified land were not yet present. "Chabot does not want to regard only the
wishes of nationalleadecs; it is more important to heed social facts," Pernbaharuan,
31-48.
14. In this connection Gouw mentioned the 'verureemdingsverbod' of 1875, which
forbade alienation of Indonesian-owned land to non-Indonesians. This caused
difficulty after the revolution. for European law-based enterprises could not acquire
land covered by Indonesian adat law. This problem was solved-for the State
Industrial Bank, for example-by creating an extraordinary corporation (emergency
law no. 21/1952) which could hold either European or adat land rights.
Pembaharuan, 34. Gouw also called for abolition of the vervreemdJngsverbod
because it was based on racial discriminatioD,47. This has come about, formally,
at least, under the Agrarian Act of 1960.
91
~Iamic
rules of permissible polygamy and easy divorce. Unification of
family law posed the gravest challenge to Chinese social status and group
cohesion. But it was generally agreed by Indonesian and Chinese alike that
here different groups did indeed require different law.
Chinese fears to the contrary notwithstanding the commitment of
Indonesians to codification and unification followed from two ideological
arguments; that the existing civil law was based on a racial discrimination
humiliating to Indonesians, and that unified law was essential to national
integration. During this present phase of legal change, the former proposition has assumed precedence, for the anti-colonial momentum of ideological
activity has not been matched except in the case of land law, by new ideas
about the content of a modern Indonesian legal system.
From 1950 through 1958 Indonesia's numerous cabinets had achieved
little in the way of substantive legal reform, and the pressures of political
conflict hardly allowed Parliament time to take up the matter seriously.
Thereafter the situation changed, however, following a series of major
breaks in the political continuity of post-revolutionary Indonesia. Under
the combined pressure of the army, President Soekarno, and the threat of
civil war, in 1957 Parliamentary government gave way to a more explicitly
authoritarian form of government-guided democracy -led by Soekarno.
In the same year Dutch-owned enterprises were taken over; in 1958 they
were nationalized forming the basis of huge state firms. In July 1959 the
parliamentary constitution of 1950 was replaced by the strong executive
constitution of 1945, and at the same time, under Soekarno's leadership, a
period of intense ideological activity began which has continued ever since.
Older notions of law began to crumble as political control weakened and as
ideological emphases were concentrated on national self-identity, national
unity, and the continuing revolution. The rule of law (negara hukum) lost
force as a symbol, giving way to the 'law of revolution' thumum revolusi'[.
National ideological tenets were vague, however, and served mainly to
justify the rule of an older generation elite and its allies. When the few
guidelines to domestic policy were taken up, frequently under pressure
from the powerful mass-based Communist party, the threat they posed to
the class in power meant that an effort must be made to vitiate them. Consequently, new substantive law tended to become more hortatory and
symbolic, as traditional law often is, but it lacked the force of either true
consensus or determined administration."
Nevertheless, there did appear new legislation that began to shatter
the older colonial legal system and its traditions. The most important
attack on racial distinctions in the law came with the new Agrarian Act and
land reform of 1960.18 This interesting statute eliminated most of Book II
IS.
For a discussion of ideology as a source of law, see Lepaulle, "Reflections on the
Sources of Law," "In Newman, ed., Essays in jurisprudence in Honour of Roscoe
Pound (1962) 87.
16. Undang-Undang tentang Peraturan Dasar Pokok-Pokok Agraria (Law on Basic
Agrarian Provisions) no. 5/1960, Lembaran Negara no. 104/1960. This and
related legislation now fill two volumes compiled by Soedargo, PerundangUndangan Agaria Indonesia (1962). See also Selo Soernardjan, "Land Reform in
Indonesia," 1/2 Asian Survey (1962) 23. The law provided for conversion of
European land rights into the new rights. The Agrarian Act and the accompanying land reform are a good example of legislation which defines a soc",-I battle
without settling it. It is in this sense like civil rights legislation in America; it
represents only a beginning. The prime mover behind implementation of the land
reform is;,theCommunist party, a major force for social change in Indonesia. The
other parties, representing traditionally inclined Javanese Islamic and aristocratic
land-owning groups, fiercely oppose the land reform while paying it lip service.
92
of the civil code and its extraordinary European land rights. In tleir place
were created new land rights applicable to all population groups. These
new rights, however, wer~ largely patterned on those in the civil code but
were less strong and also subject to restrictions imposed by 'social function'
(Art. 6). The drafters of the Agrarian Act asserted that it was based on
adat law, but actually it took a major step towards obliteration of adat
property rights, in part by declaring all land subject to the demands of
national interest and the goal of national unity.!? The Act ignored specific
adat rights, and although it permitted some administrative discretion in
accordance with local adat law, its clear intention was to create a common
land law for the entire country.
From the point of view of legal change, the Agrarian Act served to
break through the still persuasive notion, left over from the colonial period,
that each population group required distinct law. Conversely, it strengthened
the belief that unified law was possible in other fields. One of the compelling motives behind the Agrarian Act was to eliminate the privilege
created by colonial law for Europeans and Chinese. The burden of the law
was shifted to favor the Indonesian majority.
Similarly. moving the focus of new unified law towards Indonesians
was also a concern of the Eight Year Plan published in 1960. 18 In addition
to calling early codification of commercial law, the Plan encouraged efforts
to achieve greater legal homogeneity and proposed the elimination, inter
alia, of (1) plural law (population) groups. (2) plural rechtssferen, i.e., distinct law areas, (3) dual nationality, and (4) 'dualism' in land rights. The
Plan stressed the need to eradicate colonial laws and to develop national
laws, so that "national culture would not be imposed upon by foreign
culture." It also proposed that the civil registry and the weeskamer (guarantor of orphans' estates) should be extended to all Indonesians, not only
the Chinese and other civil code groups. It
There was hardly time for these proposals to be acted upon before
the new 'revolutionary' approach took hold among national law leaders.
President Soekarno had grown impatient with the conservative tendencies of
law and lawyers, and at a Law Association conference in late 1961 he
admonished his audience with a quote from Liebknecht: "One cannot
make a revolution with lawyers. "20 The barb struck home, for by this time
the law elite had begun to dedi ne along with the law itself, and many lawyers were concerned to find a place in the ideological sun. Not long afterwards Wirjono Prodjodikoro, president of the Supreme Court and a cabinet
minister, stated that Soekarno's reference would be apt only if there were
According to article 3, ..... the hak ulajat (basic village adat 'right of disposition'
over land which its members have cultivated or claimed for reserve) and similar
rights of adat law communities, so far as they still exist i:l fact, must be exercised
in such a way as to accord with national and State interests, based on national
unity and so as not to contradict laws and other regulations which are of higher
order." The elucidation of this article notes, however, that for the first time tho
hak ulajat is formally recognized,lSoedarga, 24.
18. The Eight Year Over-all Development Plan, little of which has actually been executed, was drafted by the National Planning Council in 1959-60, and was thereafter
discussed, amended, and passed by the Provisional People's Consultative Assembly
(MPRS), the highest constitutional body under the 1945 Constitution.
19. Pp, 58G-S83, 915-910,4722-4724 of the MPRS edition of the plan.
20. Address to the opening session of the Persahi (Law Association) Congress in
Jogjakarta, Nov. 26, 1961, in Hukum dan Masjarakat (Journal of La-n and Society.
Nomor Kongress 1. 1961) 2.
17.
93
nOf\ such .,thing as 'revolutionary law." There followed a noticeable acceleration ofideological activity by law leaders, among them Wirjono and
Minister of Justice Sahardjo. This appeared in the form of fierce but
publicly muted debates on such basic principles' of ~he criminal law as nulla
poena sine lege, in which some government officials took the position that
the concept was outmoded and inconsistent with nadonal ideology." In
this case, however, those who demanded more and not fewer guarantees in
the criminal law won out, partly as the result of a reaction against the
blatant maladministration of justice under a recently deposed Chief-Prosecutor, Mr. Gunawan.
The major sally of the revolutionary approach to civil law came in
May 1962. By this time the Institute of National Legal Development had
'begun tentative discussions about drafting a new civil code, but no real
progress had been made." To speed the process of civil-law change,
Minister of Justice Sahardjo made the remarkable proposal to the Institute
that the civil and commercial codes should be directly abolished. He gained
quick approval from Wirjono and a few other members of the official law
establishment, but within the Institute and among judges and advocates
generally there was notable hostility to Sahardjo's project. For not only
would this put a further strain on the national sense of legal properiety, it
would also enormously increase legal uncertainty. Judges protested that
they would have nothing to guide them in their handling of civil law cases.
But the proposal, at least as Wirjono explained it, was less radical
than it seemed at first blush. Wirjono's reasoning was that most of the civil
code had already been eliminated by new statutes on land and procedure.
All that remained were Book I on personal law and Book IlIon contracts.
To replace the latter, Wirjono had drafted a new truncated code, which
will be discussed later in this article. The net effect of Sahardjo's idea,
then would be to open Book I of the civil code to re-examination in the
21.
"Djalan Pikiran tentang Hukum dalam suatu Revolusi" (Thoughts on Law in a
Revolution) in III/I Varia Peradilan (Judicial Miscellany, 1963) 26.
22. See Imam Bardjo, "Departernent Kehakimam, Sumbangan Pikiran Kepada Konperensi," (Department of justice, Some Thoughts for the Conference) in 1/3
Madjalah Universitas Diponegoro (1963) at 85. The nulla poena issue was an
important one at the national law seminar held in Jogjakarta in early 1963. Some
of those who suggested that the principle was out of date took the position that
a kind of unwritten adat crime existed, in the case of acts against the state, which
required no prior statutory provision. The idea that every crime must be based on
a prior law was said to be a product of 'liberal' thinking, but this point was
countered by the defenders of the principle with the tactical argument that even
the Soviet Union had seen fit to incorporate the rule in its law. The present
Minister of Justice, Mr. Astrawinata, has been able to work out a compromise
between the demands of ideology and the interests of accused persons that, in the
law at least, has resulted in some improvement of criminal procedure.
23. The Institute of' National Legal Development (Lembaga Pembinaan Hukum
NasionaI. LPHN) was first established in 1958 and, after a period of no activity,
reconstituted in ]961. It has met once a month or once in two months since. Its
members, numbering about twenty, were drawn from older law-traine civil servants,
advocates, judges, and scholars. Susanto Tirtoprodjo, Wirjono Prodjodikoro's
brother, was chairman until he fell ill in 1964. The Minister of Justice, Wirjono,
and others frequently attended sessions of the LPHN as advisors. The LPHN has
not accomplished a great deal, though it has produced various draft laws, partly
because it is outside the center of political power. It has suffered, moreover, from
the tendency of some of its members to continue such old, but stiIl alive, debates
such as that over conflict between adat law and Islamic law. For a comment on
the work of the Institute see Susanto Tirtoprodjo, "Lembaga Pembinaan Hukum
dan ~asjarkat (Nomor Kongres 1) 221.
94
An Introduction to the Study of Comparative L a w
light of modern developments in Chinese family law. Furthermore, the
old civil code would not actually be abolished, but rather would be declared
That is to
valid only as a book describing the law of a particular
say, on the same reasoning used with respect to adat law,the civil code
rules would be regarded as the customary law of those to whom the code
had formerly applied. According to Sahardjo and Wirjono, this would
permit the courts freedom to bring the old code rules into line with the
conditions of independent Indonesia. At the same time, Sahardjo broadened the dimensions of legal change by insisting that the adat law proper
must also be adjusted to national ideology-the Pantjasilu, socialist society,
and a just and prosperous order.26
In their arguments on the civil code, both Wirjono and Sahardjo
placed their main emphasis on the point that the code was conceived within
a discriminatory colonial policy.26 On September 5 , 1963, Wirjono issued
a Supreme Court circular which declared the civil code no longer i n force;
his accompanying statement expressed the ideological tenor of the move.27
Wirjono went on to list specific articles of the civil code which henceforth would be considered invalid. These are mentioned here to indicate
the range and type of his objections to the old code.2a
(1) arts. 108 and 110 on the competence of a wife to undertake legal
acts and to go before a court without the permission or assistance
24.
25.
26.
27.
28.
Wirjono, “Keadaan Transisi dari Hukum Perdata Barat” (The Transition from
Western Civil Law), a speech to the second Indonesian Council of Sciences Congress in 1963, 11/11-12 Varia Peradilan (1963) at 5. Wirjono did not agree with
Sahardjo that the commercial code should go the way of the civil code. It should
be pointed out that although Wirjono thought primarily in terms of declaring book
I of the civil code invalid, book 111 also followed so long as his draft on contracts
was not accepted-as it has not yet been. See also Sahardjo’s speech to the National
Law Seminar in February 1963, III/2 Varia Peradilan (1963) 4.
Ibicl. The Pantjasial is the five point ideological statement by Soekarno in 1945.
Belief in the One God, Nationalism Internationalism, Social Justice, and Government of the People.
Sahardjo also argued that this discrimination was in conflict with the 1945 constitution, and therefore that the civil code was automatically invalid. “...citizens of
the Republic of Indonesia under the Constitution of 1945 are not divided into
Europeans, Foreign Orientals, and Natives”. Ibid., 8.
“From the beginning it has been felt strange that in Indonesia, even though now
independent, many laws still apply which in character and object ...cannot be freed
from the thinking of the colonialists ...who sought mainly to satisfy Dutch interests
. ..In view of the fact that the Dutch colonialists drafted the civil code wholly in
imitation of the Dutch civil code and, moreover that it was applied only to Dutchmen (and those assimilated to them) in Indonesia, therefore the question arose
whether in independent Indonesia...it [was proper to regard the civil code as formally valid. ...Thus the idea occurred to consider the civil code not as law, but
rather only as a document describing a part of the unwritten law...(On the basis
of this view) the authorities, particularly judges, are freer to disregard various
articles that are no longer in harmony with this period of Indonesian independence”.
III/5 Varia Peradilan ( I 963) 108. The commercial code was not mentioned in
the circular. There had been some discussion whether the civil code should bc
rescinded by a law or by a Supreme Court order. The latter alternative was probably used, for the sake of flexibility but it raises questions about the powers of the
Supreme Court.
Ibid. 108-109. This was something of a compromise; opponents of the move had
proposed that, instead of declaring the civil code invalid, the Supreme Court ought
to indicate those articles which it considered no longer applicable. For longer
comments on each of these articles, see Wirjono. “Keadaan Transisi”, 11/1-2 Varia
Peradilan (1963) 7 and 14; and III/1 Varia Peradilan (1963) 25-26.
95
of her husband. Thus in this respect there is no longer any
difference between al1 Indonesian citizens.-f
(2) art. 284 (3) concerning the legitimation of a child born out of
wedlock to an Indonesian woman. Thus "Iegitimation (by a
European father) no longer results in breaking the legal connection between mother and child. so that here too there is no longer
any difference among all Indonesian citizens. (Professor Kol1ewijn; as Wirjono himself pointed out, took the same position
before the war that this rule was humiliating to Indonesians.)
(3) art. 1682, which required that a testamentary gift must be accompanied by a notarial act.
(4) art. 1579, which provides that a renter cannot terminate a rent
agreement on grounds that he intends himself to use the thing
rented, unless it is specifically allowed in the original terms of the
agreement.
(5) art. 1238, which provides that execution of a contract can be
requested of a court only if this is preceded by a written demand
for fulfilment to the defendant ...
(6) art. 1460... which provides that the buyer of a good assumes the
risk even though it has not yet been transferred. With the abolition of this article, each situation must now be examined to
determine whether the risk for destruction of a good under contract for sale but not yet transferred should be divided between
buyer and seller, and if so, in what proportions.
(7) art. 1603 X(l-2), which discriminates between Europeans and nonEuropeans in connection with labor contracts.
Items (2) and (7) above had been dead letters since the revolution. For
the rest, the main point of interest is that the list is so short; and a large
number of lawyers would not concur in Wirjono's invalidation of even some
of these articles of the old code. For although judges and advocates might
quickly agree that the civil code was objectionable because of its colonial
origins, they had always found it difficult to indicate precisely what they
would change in it. The reason clearly is that they were used to the
principles of this code, whi~h they. studied in the law faculty. and no other
principles had become readilly available.
In theory, then the civil code became only a book setting forth the
customary rules of another group, primarily the Chinese.s" But in practice
the situation was not greatly transformed. Having little else to go on,
most judges continued to apply the code articles-except for those in
Wirjono's list, possibly -as they had been accustomed to doing. Other
colonial statutes rescinded as early as the Japanese occupation had also
continued. to influence the courts. Some judges, for example, frequently
referred to the old code of European civil procedure iburgerlijke reclusvordering) for useful techniques unavailable in the H. I. R. procedural
29.
There is an interesting parallel on this point with the position of Baperki, an
organization which represents eirlzens of Chinese descent. In the running debate
between Chinese who believe it is necessary to assimilate 10 Indonesian society and
those who oppose assimilation, including Baperk i, the latter has argued that the
Indonesian Chinese should be considered another national ethnic group. like the
Javanese Sundanese, Minangkabaus, Bataks, Minahasans, Balinese, and so on.
See Som'ci'!;, Peranakan Chinese Politics in Indonesia (1964). The difference of
course is that the Chinese possess no particular territorial base as do the Indonesian
ethnic groups.
96
statute. And the problems presented by the revocation of the civil code
were far greater. Overworked and underpaid, judges did not have the
time or the energy to fi"nd new rules, and they received little guidance from
the Supreme Court:' The old civil code therefore remained a well-thumbed
item in court libraries.
What purpose was served, then, other than that of ideological bandwagoning on the part of the Jaw elite, by declaring the civil code invalid?
Although it probably will not profoundly affect commercial law and contracts, it may, for one thing, unshackle a few extraordinary judges who
would not otherwise have considered challenging the family law rules of
the old civil code system. Late in 1964 there was a much discussed but
then as yet undecided case in the Djakarta appellate court, in which a
young and respected judge had determined to examine for himself whether
the civil-law rules of adoption for Chinese were still relevant. This has
aroused anxiety among some Chinese, who fear the uncertainty this might
introduce into their family relations. For example, eldest sons might now
demand sole inheritance rights under Chinese customary primogeniture
rules, on the argument that these were never really superseded by the civil
code bilateral order. Chinese family law, moreover might well be subjected to the same ideological tendencies in Supreme Court jurisprudence as
have affected ad at family law rules. This could of course work towards
unification of personal law across racial lines. But for the time being it
seems likely that in most cases the civil code rules will continue to influence judicial opinion, in the same way that decades-old adat law research
continues to determine lower court decisions.
The fears of the Chinese that they will lose their superior legal status
and that they may face a period of great legal insecurity are being realized
in other ways in the drive towards unification. The dynamic Mr. Astrawinata, Sahardjo's successor as Minister of Justice, has opened an attack
on civil law institutions felt to reflect the special status of the Chinese and
other minority groups. In October 1964 he proposed that the weeskamer
be abolished. Ministry of Justice officials prevailed upon him to restrict
this move at first, as a pilot project, to the eastern islands of Indonesia.
In the meantime the functions of that institution with respect to Chinese
inheritance affairs will be transferred to the courts of first instance in the
eastern region. It is not clear how much hardship this will cause, for
Chinese family ties are still close enough to afford protection and security.
But much also depends upon whether a new weeskamer will be created
for the entire population; and the same applies to the civil registry, though
this institution has not yet been seriously attacked. The cost of such
projects, however, may be prohibitive for the immediate future. In any
event, the extraordinary legal position of the Chinese has been greatly
weakened.
The formal casting off of the civil code, like the eviction of the lady
with scales, has symbolized a break with the legal past. Colonial concepts
of law have not yet disappeared; judges are still inclined to believe that
different groups should have different law, and they still feel obliged to
worry about the differences. But the framework of these concepts has
begun to fall apart. Unification has made noticeable headway in every
field but family law. And in considering the social bases of law, no other
matter presents such difficult problems of legal unity as family relations,
for this necessarily depends on the prevailing types of kinship system.
Here unification cannot be accomplished by law but must follow from
97
soeial change in the direction of greater homogeneity. This has in fact
begun at the upper levels of Indonesian society. But the intensity of
inter-ethnic familial traffic (as Ko Tjay Sing has put it), though on the
increase, is not yet so great as to demand the immediate attention of
codifiers. For the time being moreover, it is to everyone's interest to let
these matters stand as they are, for family law reform involves serious
challenges to powerful Islamic sensitivities. One marriage bill, proposed
in 1956 by a non-Islamic political party, fell because of this, Nevertheless,
the principle of unification and the concern for national integration have
gained so much ground that discussions of family law in the Institute of
National Legal Development have touched on the possibility of encouraging, through the law, a more uniformly bilateral family structure. The
Supreme Court will undoubtedly continue to move in this direction.
As a result of these recent developments in the civil law, Indonesian
conflicts law has begun to lose significance. The old conflicts rules may
continue to be applied in some disputes between litigants from different
adat law areas or between Chinese and Indonesians. But Supreme Court
jurisprudence has already begun to blur the distinctions, and the generai
trend towards legal unification may eventually wipe them out. The
decline of the impressive structure of colonial conflicts theory was presaged
by the overwhelming concern with national unity in post-revolutionary
Indonesia. For once the divisive population policy of the colony came
under attack, nothing could save the legal edifice built upon it. In a unfied
legal system, to the extent that this comes about, there will be no need for
conflicts laws. And in a melancholy comment on this, Professor Gouw
has noted that Nederburgh's views on unification appear to be winning out
after all those of Vollenhoven."
CODIFICATION AND THE ROLE OF THE COURTS
Indonesia's present state of political and economic flux poses the
problem whether there should be a new civil code at all, and if so whether
it ought to be broad and general or detailed. This also raises the question
of the part to be played by the courts in civil-law development.
There are two views of the connection between the courts and the work
of codification. One is that all new laws must be brief and open-ended,
permitting the courts to fill in the gaps as the situation develops. An extreme
version of this view is held by Professor Djojodiguno of Gadjah Maha
University, an adat law scholar who has argued, on analogy with commonlaw systems, that the written law ought to be done away with in favor of
judicially developed customary law. Minister Sahardjo also believed that
the time had come, "during this present period of beginning and transition",
to forget about codes." Among judges, Wirjono Prodjodikoro and a few
others have moved towards the view that the courts should handle more of
the challenge of legal change. partly in order to assert the role of judges in
the independent state. A majority of judges still remain bound by the
concept of codes, however, and it was Wirjono who made the first attempt
to draft a new statute on contracts.
30.
Gouw Giok Siong, Hukum Antragolongan (Conflicts Law. 2nd. ed. 1960) 184.
"Compared with those of van Vollenhoven, it can be said that the views of Nederburgh have now become more actueal. What is odd about this is that Nederburgh
was really a colonialist, while van Vollenhoven's sympathetic regard for the people
and soeft:ty of Indonesia is well known.
31. Sahardjo speech to the National Law Seminar, 111/2 Varia Pcradilan (1963) 10.
98
The second view holds that not only must all law be written, but also
that new codes and statutes should be as complete as possible. In part this
view derives from conventional civil-law thinking. Its proponents point out
that ifforced to wait for jurisprudence. Indonesia will be in the same position
as the England of four or five centuries ago; why not draft codes from the
start that incorporate all the refinements of moderen civil law? This implies
considerable legal borrowing from abroad. however. and neglects the
nationalistic impulse to create law that is specifically Indonesian. Those
who favor complete codes also claim that general and undetailed codes will
result in legal uncertainty; for there would be no uniformity of court decisions. A less explicit consideration in this argument is that. although
jurisprudence might be an important source of legal development. Indonesian
courts are inadequate to the job. Men with experience in the courts lack
confidence in many judges. And procedural deficiencies being what they
are, they fear that more confusion would result from dependence upon the
judiciary than if there were precise codes.
The idea that the courts should contribute to legal growth is not a
new one in Indonesia. Unlike the case in most civil law countries. adat
law theory in Indonesia allowed the judge a major role both in discovering
adat rules and in recognizing legal change. Notwithstanding this, only a
few judges have been creative in the post-revolutionary period even with
respect to adat law. This is in part the result of a lapse of confidence, for
not many present-day judges had served on pre-war courts, and younger
judges, appointed soon after graduation, often lack both knowledge and
experience. When judges were encouraged to be creative-to embrace the
hukum revolusi-s-tne structure of evidence threatend to crumble. The
Supreme Court had perceived changes in the adat law "on the knowledge
of the court;" this formula began to be used by so many lower courts that
Wirjono had to warn judges to support "their own knowledge" with more
substantial evidence."
The fact is that since independence most judges have tended to refer
to whatever law is in the books, and the continental view of judicial function has given them support. This has exacerbated the gap between law
inherited from the colony and the rapidly changing conditions of independent Indonesia. But judges themselves are still influenced by civilian theory,
and they are skeptical that the courts can at present perform a moce
dynamic role, so that many of them have also taken a position favouring
codes in greater detail. Soemarno Wirjanto. formerly a first instance judge,
has recently written of the difficulties faced by judges in times of revolutionary change and has argued that it is no longer possible to maintain the
unwritten Law. For as every judge would seek his own path. the result
would be choas." The hand of cassation, according to Soemarno, is not
long enough to guide towards legal unity, and the Supreme Court is in any
case too far from society to determine what are the new unwritten' rules of
32.
33.
Circular of May 31, 1963. no. 1/1963, in III{6 Varia Peradilan (1964) 140.
Soemarno P. Wirjanto. "Revolusi Sebagai Sumber Pembinaan Hukum Nasional
(Revolution as a Source of National Legal D~velopment) in 111/6 Varia Peradilan
(1964) 128. Before his retirement to become an advocate. Socmamo was well
known for his precisely reasoned decisions and judicial technique. Indeed he was
one of the few judges actually to read innovations into the law. Late in the revolution. for example, he ruled that the civil code right of eisendom-s-in this case
o~er housing which was very scarce-'!'':!st be qualified by notion of '~cial function:
FIrst instance court of Magelang, decision of Dec. II, 1950, in Madjallah Hukum
(1951/1) 65; also mentioned in his article at 130-131.
99
•
modern Indonesia." Contrary to the notion that the civil code should be
abolished, therefore, Soemarno proposed that all of the old codes must be
left in force until new ones were drafted.
In considering what role the judiciary may play i.9 civil-law development, two other points deserve attention. One is that political conditions
are too uncertain for the government to permit courts the freedom-and
the control over policy, however limited-necessary for a truly creative
role. The attempt to define an ideologically aceeptable position for the
courts has been perplexing. Judges have been encouraged to review colonial legistation, but not that of the independent state. Thus, according to
Minister Sahardjo : "It is true that the judge may not review legislationthat legislation originates from our own law makers. If it does not come
from our own law-makers, then the judge must review it. "35 I n connection with this general problem of the place of the judiciary, one might ask
whether the continental code system is not well suited to the authoritarian
political structure likely to obtain in Indonesia for some time to come.
For neither civilian concepts of the judicial role nor traditional Indonesian
ideas about government recognize the courts as a major source of law.
A second point concerns the attitudes of judges towards commercial
law. There are few judges with wide interest and knowledge in this field,
though none had prewar experience on the raden van justitie which dealt
mainly with the European codes. But most older judges originated in an
aristocracy that denigrated trade, at least among men, so that they have little
sympathy for it. This distaste has only recently begun to disappear among
young members of the prijaji (Javanese aristocracy) class. Similarly, in the
case of younger judges even from a broader social group, lack of commercial
experience or sensitivity is often combined with a hostility to commerce
deriving partly from the very fact that they have chosen to join the government bureaucracy. The continued domination of private trade by the
Chinese stiffens these attitudes. The end result appears less in the form of
active antagonism than lack of interest in commercial cases.
These factors, together with procedural inadequacies, slowness, and
uncertainty of execution of judicial decisions, help to explain why both
government and private enterprises have tended increasingly to stay away
from the courts. Instead they much prefer private settlement of disputes.
Or, when it is both necessary and possible, there is also a growing tendency to shun civil actions in favor of criminal prosecutions. Debtors
notoriously prefer normal civil suits. which take very long, for they are
left in control of their funds, while deferred payment is practically reduced
by inflation. Therefore, a claimant or his advocate may persuade a friend
in the police or public prosecution to take the debtor into custody, usually
on charges of fraud. Faced with possible imprisonment, the debtor will
~
34. Ibid., 138. The hand of cassation is, moreover shortened by the lack of jurisprudential journals-there is now only one-and the general poorness of communications between the capital and provinces. There are judges in the outer islands who
are not completely familiar with decisions of the Supreme Court rendered two or
three years ago.
35. Speech to the National Law ~eminar, 9. Wirjono added to judicial confusion when
he proposed, in 1961, that acts in conflict with 'social justice and humanitarianism'
should be considered violations of the unwritten law, even when no prior statute
on the matter existed. He then said: "In facing acts of official bodies which seem
rather ~xtraordinary and unusual, don't jump to the conclusion that those acts are
not vai'fd because they are in conflict with the law". Hukum dan Masjarakat (Nornor
Kongres I. 1961) at 44.
100
pay, if he can.3S This situation has led some advocates to comment that
the law seems to be moving backwards towards a 'primitive' condition in
which civil and criminal actions are not distinguished. In any event, the
point is that the courts fire not being taken seriously as an instrument of
control in commercia! conflict. For this reason as well as those mentioned
above, the present role of the courts cannot be a creative one."
This suggests, however, that the future usefulness of the courts for
civil-law development may depend less on substantive than on adjective
law. For only improved procedure and judicial administration will attract
both private and commercial disputes to the courts-whether the present
courts of general jurisdiction or, possibly, new administrative tribunals.
In this way the judiciary might begin to construct a bridge between the law
on the books and the real law of actual practice which has been growing
since the revolution.
THE SOURCES OF NEW CIVIL LAW
In contrast with France, which within a few years of the revolution
was prepared to codify the new principles of law in a gigantic revision of
the legal system, Indonesia has been able to lay down new law only on an
ad hoc basis. This in itself has produced a significant change in Indonesia's
code structure. Of the original civil code, property and procedure provisions
have already given way to unified statutes. Family law aside, the major
civil-law vestige of the colonial heritage now consists of the commercial
code, the bankruptcy law, and the contracts provisions (book III) of the
formally defunct civil code. Whether or not Indonesia ultimately retains
the code approach, it is unlikely that all these areas of law will soon be
incorporated into a new single code of the continental type.
Wirjono Prodjodikoro has limited his concern for a new civil code to
a Draft Law 011 Contracts, to which some attention will be paid in the remaining discussion.P First published in 1961, the proposed draft is general
and short, consisting of sixteen parts divided into a total of 93 articles.
Wirjono has said that the brevity of his draft reflects the plain and modest
character of the Indonesian people, and he has argued that any new code
should contain a minimum of complexities and formalities difficult for
common people to understand. Little is said in Wirjono's proposal about
"associations generally and trade organizations particularily, because
national legislation with respect to these has already begun to develop along
36.
In January 1964 Wirjono issued a Supreme Court circular no. 2/1964, abolishing
imprisonment for debt in articles 209-224 of the procedural code. IIJ/6 Voria
Peradilan (1964) 139. This did not affect the practice described above in debt
cases of prosecuting on charges of fraud.
37. Cf. Brederncicr, "Law as an Integrative Mechanism", in Even, Law and Sociology
(1962) 72. Bredemeier notes, in a discussion of law and social pattern maintenance,
that the courts can serve the function of conflict resolution only if people are
motivated to come to the law for protection of their interests. They must feel that
the law will give them justice. "It is thus in the offer of justice that the legal system
makes its major output, in exchange for the input of motivations to accept the
courts as a problem-solving structure". 82.
38. Rantjangan Undang-Undang Hukurn Perdjandjian, in Hukum dan Masjarakat
(Nornor Kongres I. 1961) IDS. Wirjono agrees with the trend in Europe that commercial and civil codes should be combined. But this draft deals mainly in principles. The draft became the basis of discussions of the civil code in thl Institute of
National Legal Development. where it came under considerable attack.
101
it§ own path.'?"
At least three explicit sources of law are evident in Wirjono's approach
to contracts. The first is adat law. A second is tite national or local sense
of justice. And the third is the 'internationality' of some legal rules. To
a greater or lesser extent. each of these consistently appears not only in
Wirjono's writings but also in general discussions among both lawyers and
laymen.
Everywhere In his draft Wirjono attempted to find some basis in adat
law, even where he admittedly took over a concept from the old civil code.t"
It has been mentioned that many Indonesian leaders regard the adat as an
unadulterated expression of the Indonesian character. The major excep'tions are the Chinese and those devoted Moslems who view adat law as
being antagonistic to Islamic law. Under the continuing influence of van
Vollenhoven and ter Harr, the adat law is honored even, and increasingly,
in the breach. It has in fact been greatly eroded in both legislation and
jurisprudence. And there are leaders who will say that the adat should be
maintained only where it does not obstruct national development; for it
also represents the 'feudal' side of the anti-colonialism-anti-feudalism
banner. But judges particularly have become accustomed to claiming a
myriad of virtues in the name of adat law. It is often the case that ajudge
will interpret a rule according to his own judgment, or according to various
pressures, and then simply assert this interpretation to be the adat.!'
There have been two distinct types of approach to adat as a source of
law. The late Supreme Court judge, Malikoel Adil, took the view that the
civil law needs of modern Indonesian society could be served by borrowing
from the European civil codes, so long as this did not violate particular
adat (or Indonesian) sensitivities. Adil thus used ad at law as a test for the
quite flexible sense of tnjustice.t» For example, he noted that although adat
law might not recognize a statute of limitations, yet the latter was necessary
and useful and would not excite popular indignation.P In contrast with
this view, the other approach regards adat as a positive-and the mainsource of law. It does not object to borrowing rules from the European
codes, but rationalizes this by a theory of reception as one source of adat
law: that is, a rule may be taken over which has been in force long enough
to have been accepted by the people as ad at law.
Wirjono has long accepted this second view, and he, therefore, argued
that a new statute on contracts should not incorporate concepts unknown
39.
Ibid., 138. Wirjono also excluded labor law from his draft, for in this field considerable unified legislation had appeared since the revolution. In comparison with
Wirjono's brief draft, book III of the original civil code had 631 articles.
40. Ibid., 108. In his introduction to the draft, Wirjono commented that" ... my choice
(between adat law"and the civil code as a source) is the Adat Law. This is only
proper, for in principle it is the Adat law which must become the basis of any law
applicable to all the people". He then noted that this was tho principle embraced
in the Agrarian Act, but, as has been mentioned, this was in word alone. Similarly,
there is much in Wirjono's draft that is said to be based on adat law, but in fact
is extracted from civil code ideas. Indeed, the very framework of the draft is to
some extent patterned on the ~ivil code. When Wirjono explicitly uses a civil code
rule-e-e.e. art. 1331 whieh reduces the contractual responsibility of minors and
mental incompetents-he maintains either that adat law contains the same principle
or that the principle is not forbidden by adat law.
41. Soemarno Wirjanto, cited supra, note 33, at 138.
42. Adil, Pllnbaharuan Hukum Perdata Kita, passim.
43. Ibid., 43.
102
to adat law. Among these, for example, Wirjono supposed that the ada!
law does not recognize consensual contracts, only real contracts, so that a
right over a good may. be created only upon actual transfer. He also
assumed that adat does not distinguish between movable and immovable
property, but only between land and property which is not land. Furthermore, according to Wirjono, there is no adat law distinction between rights
in rem and in personam-against which it has been objected that this lack
would wreck havoc with concepts of industrial property rights.':' On all of
these points some. adat law scholars have taken issue with Wirjono, and
those less interested in adat have protested that his approach must impose
serious restrictions on legal development.
Although this view of ad at as the basis of new law does contain
escape hatches, it is in fact very confining. Adat law principles are explicit only in a few fields, mainly of the order of family law, land, and
harvest transactions. There are many predominantly urban modes of
legal activity in which the adat has never applied, because they were begun
by the Dutch and pre-empted by Dutch law; indeed, most national leaders still conceive adat law as being most appropriate to village life. It is
indicative that discussions of civil-commercial law problems which start
with an adat law approach frequently rely on examples of minor private
transactions involving houses, yards, crops, and land, not of the more
complicated questions of commercial venture.
Reference to adat as a positive source is partly motivated by ideological considerations, the very term 'adat' serving to legitimize new law.
This is a necessary function, but inherent in it is the danger that the primary goal of new law may shift from the rationalization of economic
structure and practice and become, rather, the justification of the law
itself. Discussions of adat also tend to slip back into the context of
colonial history. They recall the struggle to gain formal acceptance of the
adat law, and they excite the opposition of Islam, against whose expansion
adat historically served as a symbol. I'his permits the colonial legal experience to establish the horizons of present day discussions, as a few
lawyers have objected. There is an inclination to think in terms of adat
law or the civil code, but not in terms of a useful mixture of the two or a
purposeful excursion into the Swiss or other modern codes.
The colonial experience is to some extent also the origin of the 'senseof-justice' approach to law, which Wirjono often refers to in his draft on
contracts. This is the notion that the law-maker must somehow discover
the sense of justice of the whole people before framing a rule. It is possible
that this idea might develop in the direction of a concept of equity, but
otherwise it is either misleading or frustrating. For the Dutch, true outsiders, the problem of satisfying indigenous feelings a'bout justice was a
great one, when they were actually concerned. A huge gap also exists
between the way of life and outlook of the Indonesian elite and the majority
of people. But in the independent state, national leaders will in any case
create new law without closely heading the popular sense of justice, unless
this is articulated politically in the form of powerful demands or protests.
Nevertheless, Indonesian law leaders do feel this problem, which derives
44.
Wirjono, Rantjangan, 108-113. Wirjono also argued that adat law does not recognize the distinction made in the civil code between verbindtenissen-s-e: general concept
of obligations arising out of statutes or contracts-and overeenkomst, specific contractual agreement.
103
n~t only from the sharp separation of elite and non-elite common to the
new states, but also from the colonial legal tradition.
Unlike adat law or the sense of justice, the ~oncept of 'internationality' is a more straight forward source of law. This ~s a rubric that can be
used with as much facility as natural law to justify imports of foreign law.
In Indonesia it has thus far rationalized the retention of most of the colonial
criminal code and the commercial code. Wirjono has said, for example.
that the commercial code is international. not national, in character and
that Indonesia must conform to international standards of trade and commerce.t! The criterion of internationality is free of ideological overtones
and nuances of the colonial relationship; and at the same time it makes
available-as Schlesinger has pointed out-the whole fund of modern worldwide legal development. 48
Finally, something must be said of a source of law that is seldom
mentioned in Indonesia: the living law of actual practice. Without attempting an essay on this point. one may suggest the existence of two only slightly
related systems of law. a formal one and a real one. The latter operates
within the economy through an intricate network of personal and family
relationships, bribes. pay-offs. and innumerable ad hoc deals. Although
these are hopelessly condemnable from a formal point of view, they keep
the system moving at an inefficient but fair pace. Corruption here serves
a positive function, and to a limited degree it is even advantageously institutionalized, as when the size of bribes is more or less fixed for similar
operations.
The future shape of the Indonesian economy is not yet clear. Since
1957 the dominant trend has been towards an as yet malfunctioning state
capitalism or socialism, but private enterprise may gain ground as the
government finds it more difficult to manage the economy and as younger
members of the elite become interested in the private sector. Whatever
may eventually happen, at present neither state nor private business pay
a great deal of attention to the statutes. Their economic survival is better
guaranteed by interlocking ties of family and mutual interest than by a
formal legal system that is unenforceable.
For the time being, the law-maker cannot hope to make legal sense
out of this situation. It is difficult to build codes around the existing state
45.
Ibid.,138. t· ••. these rules or... the commercial code are, in my opinion, international
in character and therefore would best be taken over in toto in our future national
law". Wirjono has felt, however. that the colonial bankruptcy law should be
declared invalid along with the civil code. But in this he deferred to the opinion
of his colleague on the Supreme Court, Prof. Sukardono, who believed that it
should be maintained in force. See Sukardono's discussion, "Apakah Peraturan
Pailisemen Mai Ferlu 1" (Is the Bankruptcy Law Still Necessary 'l) in Hukum dan
Mr.sjarakat (Nornor Kongres 1 1961) SI. Sukardono not only accepted the law
but sought to improve it within its own terms partly on the basis of recent developments in bankruptcy law in Europe and even in neighboring countries in Southeast
Asia.
46. Schlesinger, "The General Principles of Contract Law", in World Peace Through
Law-The Athens World Conference (1964) 779. "Many legal systems expressly
refer to the general principles' of law as a p:imary or subsidiary source of Jaw. A
statutory (of non-statutory) reference of this kind can be of particular significance
in a new country faced with the task of creating its own system of law. The judges
and legislators of such a country sometimes are disinclined to follow the model of
a sing.J~ older nation; but they will always try to inform themselves of the multinational common core of civilized law-provided materials for the study of this
common core are available". 782.
104
industries and trading companies, because their practices are unclear, inconsistent, and often underhanded. Nor does government policy give adequate
guidance. To base new.law on the private economy is out of the question,
both for ideological reasons and because the practices of private firms are
not admissible either. Consequently, it is unlikely that an effective new
civil code will appear for years to come. New statutes now appear in
massive confusion, and the most that can be done is codification in the
American sense. Meanwhile the legislators, if they are eventually to succeed. will be compelled continually to examine policy and administrative
adjustments in the field of commerce and, as well, the interplay of the state
and private economies as they make their own informal arrangements.
CONCLUSION
The present period of legal development in Indonesia is roughly
similar to that of the droit intermediaire of the French revolution; it is
primarily concerned with transforming major principles of public law and
political institution. 17 But unlike the French revolution, the effective
principles of the Indonesian revolution are, on balance, still negative, and
the social class in control is neither new nor radically inspired. Recent
ideological ferment has been mainly directed towards extirpation of the
influences of the colonial past. It expresses anger at the humiliation fo
colonial domination, and at the same time demands true independence,
self respect, dignity and a role in the world.:" These emotions also influence
the law. There are contradictory urges to create a legal system that is
unquestionably Indonesian on the one hand, yet 'modern' and internationally acceptable on the other. The legal profession is divided between
those who lean towards an ideological approach, the hukum revolusi, and
those who try to maintain the older symbols of their vocation. But both
groups remain partially immersed in the world of colonial law in which they
were brought up and in which, to some extent, law students continue to be
trained.
The course of legal development since the revolution, however, has
began to break down the law myths of the colony in favor of the new
47.
48.
See Deak and Rheinstein, "The Development of French and German Law", quoted
in Schlesinger, Comparative Law (2nd. ed. 1959) 169-170. Comparisons like this
one, between the two revolutions, can be very useful. once the basic social differences are defined, in developing hypotheses about revolution and legal change. In
this case, an essential difference is that the French revolution was creative and
radical, .moving away from tradition under the drive not only of a new intellectualism but also of a relatively new and powerful middle class. Indonesia, on the other
hand, is falling back, in this generation, on a set of traditional social and political
arrangements behind the leadership of an older elite which came to political maturity under the colonial regime. While Indonesian ideology appears radical, the
acute social establishment is decidedly conservative, though it is now under pressure
both from the Communist party and from younger people with postrevolutionary
educations and fewer ties to the past. To return to the opening comment in this
article. the banyan tree is at once a symbolic rejection of Dutch principles of justice
and an appeal to a much older pre-Dutch tradition. Yet it also represents elements
of 19th-20th Century socialist ideology.
On the post-colonial outlook, see Harris, Independence and After 1962; Shils, "The
Fortunes of Constitutional Government in the Political Development of the New
States", in Hallowell, ed., Development: for What'? (1964). On Indonesia after
the revolution, see Kahin, "Indonesia", in Kahin, ed., Major Governments of Asia
(2nd. ed. 1963); Feith, The Decline of Constitutional Democracy in Indonesia
(1962) and "Indonesia's Political Symbols and Their Wielders". in'XVI/I World
Politics (1963) 79.
The Land and the Banyan Tree: Civil-Law Change in Indonesia
105
myths of the independent state. 'Myth' is used here in the sense of symbols
oflegitimacy which, for all the loose thinking and hypocrisy they often
conceal, are nevertheless major bonds of social, political economic, and
therefore legal life.4Il In the law these beliefs determine whether there
shall be code or common law systems, strong or weak courts, many procedural guarantees or few, strong property rights or none. Deriving from
cultural and historical traditions, they are learned in the home and in the
schools and, yarticularly for our purposes, in the law schools.
The rea transformation of the legal systems of former colonies
depends largely on the formation of new ideals which will impel the law
in fundamentally different directions from those of the colony. In one
sense, this change begins the moment sovereignty is transferred, for the
new political elite is not completely new. Its members use the language
of the colonial elite, they have adopted many of its social attitudes, and,
above all, they have been educated in the ideas of the colonial mothercountry. On the surface, independence movements in Asia and Africa
have been articulated in the same terms of liberty, equality, and self-determination found in European ideologicallexions. Similarly, colonial legal
systems continue to operate (also, usually, on the surface) through the
transfers of sovereignty and on into independence. And the ideas behind
these legal systems are maintained tenaciously until they are displaced by
new motions. In Indonesia the outstanding change thus far has been that
from legal diversity to legal unity. Others are rapidly evolving.
The problem of legal reform in Indonesia and other new states, is
not one simply of creating new laws applicable to private and public interactions whose characteristics are well known. The effort is vastly complicated by countless uncertainties in the actual civil relations of a changing society, by the compulsion to accommodate ideological factors, and
by the need to make adjustments for the inadequacies of a judicial establishment which inevitably declines under the pressume of political insecurity. And finally there must be a break through from the inherited legal
predilections of the colony towards those of the independent state.
49.
See Arnold, the Symbols of Government (1935) for an examination of the significance 'tIf American political and social symbol. Also Pekelis, "Legal Techniques
and Political Ideologies", 41 Mich. Law Review (1942-43) 665.

017_The Lady and the Banyan Tree

Transcription

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