THE PROBLEMS IN INDONESIAN LEGISLATION
By SHIDARTA (October 2016)
Since the collapse of the New Order Regime in Indonesia, parliament has been primarily a deliberative body. Parliament is comprised of two divisions, i.e. the House of Representatives (DPR) and the Regional Representatives Council (DPD). As a nation that regards itself as a member of the civil law system, in practice, legislation is a very productive source of law. Legislation is the principal expression of policy in legal form.
In terms of the Indonesian legal system and its relationship with the legislation, we should put the reference to Law No. 12 of 2011 concerning Legislation Forming as the substitution of Law No. 10 of 2004 on the same title. Article 7 of Law No. 12 of 2011 underlines seven kinds of legislation in hierarchic categories. The seven levels of legislation are stated as follows:
- The 1945 Constitution;
- Decree of the People’s Consultative Assembly;
- Statutory Law or Government Regulation in Lieu of Statute;
- Government Regulation;
- Presidential Regulation;
- Provincial Regulation; and
- Regional/Mayoral Regulation.
The power of every kind of legislation is in line with its respective position in the hierarchic system. The higher the position of the legislation, the more powerful it has. The Constitution takes the highest rank in the hierarchy. It is simply a set of written rules containing many basic principles for running the country. It also contains articles on the protection of human rights. Many articles in the constitution need further regulation called legislation or statutory law.
In the area of local governance, there is some other legislation, i.e. provincial regulation and regional/mayoral regulation. In addition to their legislative powers, both the governor (head of province) and the provincial house of representatives share the power to issue provincial regulations. The same condition applies to regional/mayoral regulations in which regents/mayors and regional/mayoral houses of representatives also have the power to produce similar legislation.
The living laws, especially experienced in rural areas, are also accommodated in the Indonesian formal legal sources. Although Law No. 12 of 2011 does not mention explicitly the existence of “peraturan desa” (village regulation), this statutory law still admits this kind of regulation as a part of the legislation. In order to become “peraturan desa,” such a law should be put in written format. A village is the lowest unit of Indonesian governance. In villages, where customary law still exists, the heads of the village may produce the “peraturan desa” after consulting with the local customary law communities. A local customary law community comprises several prominent indigenous peoples in the rural area. If they are involved in determining the village regulation, they are convinced that such a regulation will guarantee the interests of indigenous peoples living in the area.
Indonesian laws use various terms to refer to indigenous peoples, such as masyarakat suku terasing (alien tribal communities), masyarakat tertinggal (neglected communities), masyarakat terpencil (remote communities), masyarakat hukum adat (customary law communities) and, more simply, masyarakat adat (cultural communities). Indeed, the term “indigenous” was introduced by Dutch colonialists to disintegrate the unity of Indonesia as a nation (Abbas, 2013: 6).
In the provinces of Aceh and Papua, the Provincial House of Representatives along with the governors may set up regulations based on the living laws practiced in their respective regions. The legislation in Aceh is called Qanun. In Papua, they call it Peraturan Daerah Khusus (Perdasus) or Peraturan Daerah Provinsi (Perdasi). These regulations can be described by other lower legislation, including village regulations.
According to the scenario of Law No. 12 of 2011, heads of villages will play a very significant role in determining the making and implementation of village regulations since they are all government officials. In a particular community, where adat remains enforceable in people’s daily activities, such a mechanism relying on the role of a formal leader can be an obstacle.
Formal leaders always refer authority to their superiors. If they make a regulation, they want to be sure that its substance will conform to the higher legislation. By putting village regulation at the lowest rank in the hierarchy of legislation, the lawmakers intended to control the substance as well as the validation of this kind of legislation. If the substance of a village regulation is considered contradictory to provincial regulation or regulation of the regent, it can be annulled.
In practice, the functions of heads of villages can not be generalized as the same throughout the country. In West Sumatera, for instance, they acknowledge peraturan nagari, but it is not totally similar to peraturan desa (village regulation). Peraturan nagari is made up of the spirit of adat law as well as Islamic law. Its content may be in conflict with higher legislation, such as provincial regulations. The higher legislation may be set up based on general purposes, not only for the adat community.
To avoid the contradiction between state law and adat law, the adat community prefers not to formulate the regulations in the form of peraturan desa or even, peraturan nagari. They choose to express their intent by not creating any regulation that can be considered a state law. Because, any state law should depend on the formal government (Lubis, 2006).
As pointed out by Franz and Keebet von Benda-Beckmann (2001: 10), all the above-mentioned problems began when the Law on Local Government of 1979 was implemented in West Sumatra. This law introduced the Javanese model of the village (desa) at the lowest local government unit as the standard throughout Indonesia. In this province, it was effectively applied in 1983. The desa was, in the first instance, based on the village wards (jorong), an adat subdivision of the nagari. In West Sumatra, it meant that the nagari was split up into several desa, from which previously 534 nagari became 3.516 desa. The reason for this adoption was the new law allocated a development grant to each village. As the nagari were substantially larger than villages elsewhere in Indonesia, West Sumatra would be financially disadvantaged if it simply converted one nagari into one desa. It soon became obvious that many desa were too small and had too few inhabitants to be feasible administrative units. In a later phase in 1988/89, therefore, the number of desa was reduced by joining adjacent desa to form a new one. Afterward, there remained approximately 1.700 desa.
Franz and Keebet von Benda-Beckmann (2001: 15) described how nowadays, many local politicians and traditional village leaders claim that local government should “return to nagari”. It was generally held that the desa system had not functioned well, that it had destroyed adat, the unity of the nagari population, and eroded the authority of the elders over the young. This movement gained success in 2000 when the province enacted a Provincial Regulation on Nagari Government. The regulation provides for an initial return to the nagari within their territorial boundaries before 1979. But, at the same time, there is opposition from desa heads who have also established an organization called Forum Komunikasi Kepala Desa. This organization originally vehemently opposed the return to the nagari.
On the other hand, according to Law No. 32 of 2004 on Local Autonomy, law enforcement of any regional regulation always involves formal agencies such as police or administrative officials. Nonformal leaders in that society are not involved anymore in controlling the implementation of this regulation. That is why in many cases, village regulation as stipulated in Law No. 12 of 2011 is not an appropriate way to enhance the development of adat law in Indonesia.
From this point of view, Law No. 12 of 2011 accentuates the condition that every law should be put first as positive law. It means non-state laws can be raised to the status of state law only if they are accommodated into legislation. The non-state laws may come from any origin, such as adat law, Islamic law, western law inherited from the Dutch colonial period, or last but not least: modern customs as practiced by other nationals, either those from civil law or common law countries. (***)
