Indonesia Law Indonesia Law System-1System-1

IntroductionIntroduction

First, what is law?First, what is law?

• Collection of rules, principles, Collection of rules, principles, standards, concepts to regulate standards, concepts to regulate human behavior. human behavior.

• Some are general (Constitution); some Some are general (Constitution); some are specific (administrative rules)are specific (administrative rules)

• Some are concerned with rights and Some are concerned with rights and duties of persons and institutions in duties of persons and institutions in relation to each other. (Civil law)relation to each other. (Civil law)

• Some punish offences against the Some punish offences against the general public interest (Criminal law)general public interest (Criminal law)

Rule of LawRule of Law

• Ensured by the Basic Law, Indonesian Ensured by the Basic Law, Indonesian Constitution.Constitution.

Some basic principles:Some basic principles:• LegalityLegality: observance of law (opposite of : observance of law (opposite of

arbitrary power, legal standards of conduct) arbitrary power, legal standards of conduct) • EqualityEquality: everyone under the law: everyone under the law• TransparencyTransparency: everyone knows about it (laws : everyone knows about it (laws

clear, available, not retroactive)clear, available, not retroactive)• ImpartialityImpartiality: administered fairly w/o bias by : administered fairly w/o bias by

independent judgesindependent judges• Contrast rule Contrast rule ofof law v. rule law v. rule byby law (can laws law (can laws

be “unlawful”?)be “unlawful”?)

So, what does that mean?So, what does that mean?

Rule of Law: guiding principleRule of Law: guiding principle

What are components?What are components?• Common Law Common Law • Authority to enact own lawsAuthority to enact own laws• Compliance with international Compliance with international

treatiestreaties• Basic Law Basic Law

What is a Constitution?What is a Constitution?

• CONSTITUTES the basic CONSTITUTES the basic institutions of government, institutions of government, distributes governmental distributes governmental authority, defines the authority, defines the relationships between them and relationships between them and their relationship with citizens.their relationship with citizens.

• Some are Some are writtenwritten like US, like US, Indonesia, Australia and Hong Indonesia, Australia and Hong Kong. A few, U.K., have none.Kong. A few, U.K., have none.

What is Common Law?What is Common Law?

• Since 15Since 15thth century, reports of century, reports of judgments handed down by judges judgments handed down by judges established legal principles established legal principles regulating the relationship between regulating the relationship between state/citizen and citizen/citizen. state/citizen and citizen/citizen. Now, hundreds of thousands of Now, hundreds of thousands of reported cases. reported cases.

• Judge-interpreted lawJudge-interpreted law• Precedents (must follow previous Precedents (must follow previous

cases)cases)• Example : Before 1997, HK required Example : Before 1997, HK required

to follow British common lawto follow British common law

Freedom of ExpressionFreedom of Expression

• What is it?What is it?• Freedom of Expression?Freedom of Expression?• Freedom of Speech?Freedom of Speech?• Freedom of the Press?Freedom of the Press?• Freedom of Information?Freedom of Information?

Classical Arguments:Classical Arguments:• Promotes discovery of truthPromotes discovery of truth• Promotes political participation (by Promotes political participation (by

being better informed)being better informed)• Maintains social stability (information Maintains social stability (information

allows problems to be addressed allows problems to be addressed quickly)quickly)

• Provides safety valve (more Provides safety valve (more fulfillment)fulfillment)

• Provides crucial check on governmentProvides crucial check on government

Freedom not absoluteFreedom not absolute

Rights of community vs. rights of Rights of community vs. rights of press:press:

• Media outlets licensedMedia outlets licensed• Court reporting restrictionsCourt reporting restrictions• Government information protected Government information protected

(Official Secrets Ordinance)(Official Secrets Ordinance)

• Criminal investigations Criminal investigations (Prevention of (Prevention of Bribery Ordinance)Bribery Ordinance)

• Obscenity lawsObscenity laws

Unique of mediaUnique of media

• Media play unique roleMedia play unique role• Traditional watchdog role more Traditional watchdog role more

significant because of limited significant because of limited democracydemocracy

• History of partisanship in mediaHistory of partisanship in media• One of Asia’s freest media One of Asia’s freest media

environmentsenvironments• Large, rambunctious pressLarge, rambunctious press

Essential Need Essential Need

• Essential needs of nations Indonesia Essential needs of nations Indonesia : peace, justice and welfare : peace, justice and welfare (benefits) are presented by the (benefits) are presented by the system of rules that meet the three system of rules that meet the three conditions the existence of these conditions the existence of these laws becomes very urgent at this laws becomes very urgent at this moment, in the midst of a moment, in the midst of a transitional situation towards the transitional situation towards the new Indonesia.new Indonesia.

•serenity, justice and serenity, justice and welfarewelfare

•ketenteraman, keadilan ketenteraman, keadilan serta kesejahteraanserta kesejahteraan

Law SourcesLaw Sources

•Legal Resources Indonesia is Legal Resources Indonesia is anything that has a anything that has a normative nature which can normative nature which can be used as a foothold for and be used as a foothold for and or where to obtain or where to obtain information about the legal information about the legal system in force in Indonesia.system in force in Indonesia.

Main SourcesMain Sources

• Indonesian Law Resources are: Indonesian Law Resources are: Pancasila, the Constitution of 1945, Pancasila, the Constitution of 1945, the act, the Treaty / Treaty, Doctrine the act, the Treaty / Treaty, Doctrine / opinion of jurists./ opinion of jurists.

Hukum IndonesiaHukum Indonesia

• Hukum kepidanaan, hukum keperdataan, Hukum kepidanaan, hukum keperdataan, hukum kenegaraan, hukum internasional, hukum kenegaraan, hukum internasional, hukum agraria, hukum dll.hukum agraria, hukum dll.

• Legal penal law, civil law, state law, Legal penal law, civil law, state law, international law, agrarian law, law international law, agrarian law, law etc.etc.

Law MakerLaw Maker

• Assembly is authorized to determine Assembly is authorized to determine and alter the Constitution (according and alter the Constitution (according to Article 3, paragraph 1945 {1}to Article 3, paragraph 1945 {1}

Law MakerLaw Maker

• Parliament with the President have Parliament with the President have the authority propose draft laws, the authority propose draft laws, discuss it for approval together discuss it for approval together between the parliament and between the parliament and President, and subsequently ratified President, and subsequently ratified by the President into Law (article 5 by the President into Law (article 5 paragraph {1} in conjunction with paragraph {1} in conjunction with Article 20 paragraph {1} {second} Article 20 paragraph {1} {second} {3} {4} 1945){3} {4} 1945)

Law MakerLaw Maker

• The President is authorized to The President is authorized to determine the Government Regulation determine the Government Regulation in Lieu of Law (Perpu), Government in Lieu of Law (Perpu), Government Regulation (PP), and Regulation of the Regulation (PP), and Regulation of the President (Presidential) as provided President (Presidential) as provided for in Article 22 paragraph (1) in for in Article 22 paragraph (1) in conjunction with Article 4 paragraph conjunction with Article 4 paragraph (1) and Article 5 of the 1945 (1) and Article 5 of the 1945 ConstitutionConstitution

Law MakerLaw Maker

• DPRD, PEMPROV, PEMKOT, DPRD, PEMPROV, PEMKOT, PEMKAB PEMKAB PERDA PERDA

Customary law / Islamic Customary law / Islamic lawlaw

• Indonesian is a country with a Indonesian is a country with a majority Muslim population but majority Muslim population but Indonesia is not an Islamic State. Indonesia is not an Islamic State. Although Islamic law does not Although Islamic law does not become the joint and the legal basis become the joint and the legal basis to order the life of society as a whole to order the life of society as a whole but in particular legal question use but in particular legal question use of Islamic law, which among other of Islamic law, which among other things: marriage and inheritance;things: marriage and inheritance;

Customary law / Islamic Customary law / Islamic lawlaw

• Article 18B paragraph (1) of the Article 18B paragraph (1) of the 1945 Constitution explicitly states 1945 Constitution explicitly states that "the state recognizes and that "the state recognizes and respects the community units and respects the community units and their customary law along traditional their customary law along traditional rights are still alive and in rights are still alive and in accordance with the development of accordance with the development of society and the principle of the society and the principle of the Unitary Republic of IndonesiaUnitary Republic of Indonesia

• Thank YouThank You