Background

Civil law, or ‘hukum perdata’ relates to law regulating relations between people and institutions including contracts and marriages. Inherited from their colonial overseers, Indonesian Law has adapted Dutch law. Initially taken from the French code Napoléon, Dutch law is heavily rooted in European ideas of justice and equality before the law. This causes some tensions with the legal pluralism which sets the Indonesian legal system apart from its neighbors. During the colonial period, the Dutch (often to their benefit),  historically applied and subjected their multiethnic and multicultural colony  to varying codes on the basis of ethnicity. Indonesians, Europeans and other ethnic minorities therefore were subject to different laws. It was only under Japanese occupation during WWII that efforts were made to unify the system somewhat. However, due to Indonesia’s commitment to Pancasila, legal pluralism still prevails. Whilst the Civil Code is the main source of civil laws, Sharia and Adat Law co-exist and apply to Islamic and traditional legal matters.

Development since colonial era to 1998

Indonesian civil law originally derived from the originally Dutch Civil Code and the Dutch Commercial Code introduced during the colonial period. The Civil Code is divided into a series of four books:

1. Persons
2. Goods
3. Contracts and
4. Procedure

Overtime, the Dutch Civil Code, while never being fully or formally supplanted in Indonesia, has been subjected to major changes. Land reform emanating from the Agrarian law act in 1960 eliminated most of the personal land rights enumerated in Book Two. The concept of drafting a new civil code was introduced in 1962 with Chief Justice Wirjono arguing that much of the colonial civil code had already been abolished by new statutes on land and procedure. Finally in 1963, the Civil Code was declared defunct by Minister of Justice and the Chief Justice. However, in the years following the commencement of the New Order, focus shifted to law promoting foreign investment further weakening personal rights to land.

Developments since 1998

Post-reformasi legal legacy has been marked by significant constitutional and democratic consolidation. As a result of the necessity for Indonesia to meet its international obligations, there was a legal rush to conform to the standards of other democratic states. Between 1997-2017, 500 laws were enacted with 40 directly related to civil law. Still, unlike developments in Indonesian criminal law such as the introduction of a new Criminal Code (Criminal Code 2022), there has not been a comparable comprehensive review or successful attempt to standardize and update the Indonesian Civil Code.

It is worth noting that the Civil Code has since been replaced in the Netherlands, however Indonesia has not yet followed suit . In fact, the Civil Code that continues to apply today derives from informal Indonesian translation of the Dutch Civil Code. This is to the exception of areas of law for which the legislature has specifically carved out and introduced new legislation for such as:

• 1960 Agrarian Law – replacing the Code’s regulations on property
• 1974 Marriage Law – replacing many of the Code’s provisions on marriage
• Various legislation that have now replaced the majority of the Commercial Code (such as legislation on insolvency, bankruptcy, etc)

Hailed as a victory for decolonisation, revamped Indonesian codes can resolve technical regulations that conflict or no longer apply seamlessly to Indonesian law. However, it is clear that the Dutch and western influence can never be fully divorced from civil law entirely. Still, Indonesian Law champions the features that make it unique compared to many systems globally. Namely in reference to family matters, legal pluralism is still championed, with Book One still primarily applying to secular Indonesians and separate Islamic courts dealing with disputes between Muslim complainants.

Development of civil law in Australia

Compared with their neighbour, Australia has experienced a very linear progression in relation to civil law. Relatively stable and democratic governments with enfranchisement extending from 1901 has seen civil laws progressively extend across race and gender.

Rights to land have been extended since the 1992 Mabo v Queensland (No 2) decision, reversing the concept of ’terra nullius’, a British colonial concept that declared land that had been inhabited by Indigenous Australians as ‘uninhabited’. This was used as justification for claiming sovereignty over Australian land – despite many of it being inhabited by Indigenous Australians for thousands of years.

Mabo reinstated the idea of native title for Indigenous Australians and introduced a new area of land law titled ‘Native Title Law’. Though successful native title claims do not provide complete ownership, it does recognise that Indigenous Australians have rights to land, water and sea and potentially exclusive possession. These rights can co-exist with non-aboriginal rights. Similar steps are being taken under Indonesian law with the recognition of Adat law in local villages with traditional lands restored.

Differences in civil law procedure between Australia and Indonesia

As mentioned above, Indonesia’s legal system is heavily influenced by Dutch and French Civil Law System. This means that the main source of law is what is written and codified in statute and regulations and judges are expected to carry out the laws as written. Contrastingly, descendant from the British Common Law system, Australian case law (in which judges have the power to interpret the law) exists alongside statute.

The use of Precedent

A resulting key difference between Australia’s common law system and Indonesia’s civil law legal system is the role of precedent in decisions.  A key feature of Australia’s common law system, derived from British legal tradition, is the doctrine of ‘stare decisis’ (the doctrine of precedent). The Australian legal system operates on a hierarchy of courts – both at the state level and federal level. The doctrine of precedent therefore binds courts to decisions made by superior courts in the same hierarchy. Crucially, decisions made by courts on the same level, even if made in a different jurisdiction is also considered ‘highly persuasive’, and are generally followed (for example, a Victorian Supreme Court will likely seriously consider a decision made by the New South Wales Supreme Court). This doctrine of precedent is based on the idea that cases of a similar nature should be decided consistently and with respect to past judicial doctrine – thereby providing a sense of reliability and consistency for the community.

On the other hand, a key principle of Indonesia’s legal system is judicial independence based on the ‘principle of freedom’. Not only does this mean, in theory, the ability to make decisions without the influence of the Executive, but also without the influence of other judges. Thus, case law does not form a part of the law, and judges are not formally required to follow decisions of other judges – even those of higher courts. This has meant that in the past, decisions are not always formally recorded.

In practice, however, there has been an emerging trend of lower courts to follow Yurisprudensi (decisions of the Indonesian Supreme Court considered to be highly persuasive).  The Supreme Court may also, from time to time, issue a Surat Edaran (translation: ‘circular letter’). This letter usually includes a summary of the cases and judgments of a particular point of law and a suggested interpretation of the relevant statutes that should be followed. However the application differs from Judge to Judge.

Conclusion

Though both legal systems originate from colonial roots they have approached the development of their civil law systems with varying degrees of enthusiasm. However, while legal progress has taken a different form in each jurisdiction, both Australia and Indonesia have approached difficulties with adapting laws to apply to the population so as best to achieve principles of fairness and impartiality, without compromising cultural values core to their society.

Written by : Elizabeth Vu and Hannah Patience