Rule of Law and Human Rights Challenges in South East Asia: A Case Study of Legal Pluralism in Indonesia

Abstract

It has been over 70 years since Indonesia proclaimed her independence in August 1945. However, the 350 years of the Dutch colonialism is still impacting the lives of the Indonesian people. The difficulties faced by the Indonesian legal system as the government tries to accommodate adat (custom) and religious principles within the national law and the extent to which this legal mechanism affects the everyday life of the Indonesian people, from the legal perspective are the main issues this paper endeavors to deal with. Although a great majority of the Indonesian people rely on Islam and customs to go about their everyday problems, the 1945 Constitution (abbreviated as UUD’ 45) through its article 1 section 3 states that “Indonesia is a rule of law country”. However, room is also made through article 18b section 2 of the same constitution to grant certain recognition to religious law and customary law (referred to as adat law hereafter). In a nation where customs and religion are so preeminent, setting up an all-inclusive document meant to be the foundation of the state’s legal system at the dawn of independence was no easy task. Consequently, the 1945 Constitution of the then newly formed republic, through these two articles (article 1 sect. 3, and article 18b sect. 2) officially set the stage for a pluralistic legal system: one based on the Western legal tradition and the other driven by religious and adat principles -- the folk way. This study discusses the practice of legal pluralism and the rule of law in Indonesia, and thus involves socio-legal research drawing on empirical data. Survey research was conducted between September 2014 and February 2015 at Utrecht University, the Netherlands, as well as in 5 cities in Indonesia (Aceh, Bali, Batam, Medan, and Padang) to collect data. The research population consists of academics, adat community leaders, Parliament members, NGOs and students. The research reveals that legal pluralism is not helping strengthen the Indonesian legal system, and that the foreignness of the Western law along with the neglect of the Indonesian customary and Islamic laws, totalitarianism and military involvement in politics, corruption within the state apparatus and unsynchronized laws are some of the major threats to the rule of law and human rights (as specified in article 28 of the 1945 Constitution) in Indonesia.