Monday, July 15, 2013

Customary Law versus European Law in Indonesia (Pertarungan antara Leidenaars dan para Utrecht)

         (Dibuang sayang, tugas pada kelas Prof Kagami, resume buku The Leiden Legacy, Concepts of  Law in Indonesia, disertasi karya Peter Burns, seorang Australia yang kuliah di Leiden. Buku ini menceritakan tentang pertarungan antara Leidenaars dan para Utrecht di Indonesia. UU agraria 1960 misalnya yang oleh Burns dikategorikan sebagai simbol kemenangan Utrecht)      
Brief History of Indonesian Law.
In the last third of the sixteenth century, the northern Netherlanders waged war to free themselves form the empire of Catholic Spain. In 1579 the seven rebellious province constituted themselves a union at Utrecht. However it was not clear that this Union amounted to anything more then defence pact. After free from Spain, civil war occurred in Nederland, France then occupied Nederland (1795-1813).   
In the beginning of the seventeenth century, civil war continued and sovereignty remained contested and unclear in Nederland. (Later, in 1838, provinces at southern part of Nederland decided to separate themselves from northern Nederland and have declared to build a new country which now known as Belgium).
Even though civil war was occurring in Nederland, this did not inhibit Dutch enterprise. Dutch ships were exploring and exploiting the trade routes of the Spanish-Portuguese empires. The first fleet from Amsterdam had reached Banten (Western part of Java Island) in 1596. In 1602, VOC (Vereenigde Oost-Indische Compagnie/United East-Indies Company) was established to hold sole trading rights in Asia.
VOC succeeded to dominate and has monopolized trading in Indie. Since they monopolized trading in Indie, they have simplified that Indie belongs to the Dutch. Van Vollenhoven, a Leiden scholar and adat law proponent, reminded Netherlander that “when the first ship flying the tricolor at it mast dropped anchor in the archipelago, the land was not constitutionally ‘barren and empty’. It was brimful with institutions of government and authority: there was government by and over tribes, villages, federations, republics and principality.      
Since VOC dominated Indie’s trading, the history of Indonesian Law which influenced by Nederland had begun. The Netherlands attempted to have legal unification in Netherlands East Indie (NEI) [1]. The Hague commission had been established to recommend content for a draft bill to standardize private law trough the NEI.
As we now that after free from Spain, Nederland was also colonized by French. In 1810 Napoleon Codes was implemented in Nederland. Those Codes are Code Civil, Code Commerce, and Code Penal. When Napoleon’s power collapsed, The Nederland has started to draft their own codes which fit to Nederland people’s values. The Hague commission appointed Kemper to establish the task. By 1830, Kemper finished the draft and the draft (Burgerlijk Wet Boek/Civil Code, WetBoek van Koophandel/ Code of Commerce, Code of Civil Law Procedure, and Code of Criminal Procedure). These for codes was planed to prevail in February 1st 1831, but since there were protests from southern region of Nederland, the enactment was postponed. The southern provinces saw that the new codes was only expressing northern provinces values, the southern people felt that the previous code was better and suit with their values. In 1838 the southern region separated themselves and declared new country (Belgium). Kemper’s successor was Scholten van Oud-Harlem, and continued by H.L Wicher to polish the task.
With corcondantie principle the codes was also prevailed in Nederland’s colony. In 1915, Wetboek van Straftrecht/Criminal Code was enacted in Nederland-Indie and take in to force in 1918.  
Van Vollenhoven opposed the whole project of the Hague commission. He objected to the principle of standardization. His objection was based on the fact that Indie has their own law which was called Adat Law.
Another opponent to Nederland’s government came from J Van der Vine who wrote:
For one place which has millions people that not Christian and had their own customs an religions, while its people who are muslim had a huge loyalty to their religion, prevailing Nederland’s law would be an infringement/breach to rights and customs of non-European people and also would destroy their legal order and institution.
Van Vollehoven had categorized Adat Law in to 19 Circle Law (Rechtskringen): 1.Ajteh, 2.Gajo, Alas dan Batak, 3. Minangkabau, 4.South Sumatera, 5. East Sumatera, Malaya and West Borneo, 6. Bangka and Biliton, 7. Borneo (Except Malaya and West Kalimantan, 8. Minahasa, 9. Gorontalo, 10. South Celebes, 11. Tanah Toraja, 12. Ternate Archipelago, 13. Ambon, Netherlands-New Guinea, 15. Timor, 16. Bali and Lombok, 17. Central Java and East Java (Including Madura) 18. Jogjakarta and Surakarta, 19. West Java.[2]
To have better understanding on this matter, a short explanation on what adat law is, will be needed.      
 What is Adat?
The term adat was derived from an Arabic root, ‘ada/adah, which means ‘habit, wont, custom, usage, practice. The word ‘custom’ is commonly used for ‘adat’ translation.
The term adat-law (adatrecht) was used for the first time in 1893 by Snouck Hurgronje to describe Indonesian folk law: adat that has legal consequences.
Cassuto explained adat law as the law, that rooted in the old country law, has developed in the native community and is felt to be the law.
Van Vollenhoven describes adat law as a body of rules of behaviour for natives and foreign oriental (timur asing), which on the one hand are enforced by sanction (therefore “law”) and the other hand uncodified (therefore “adat”).
Seminar on Adat Law in Indonesia (1976) concludes adat law as native Indonesian Law which is not codified according to the provisions on legislation of the republic of Indonesia and which to some extent contains religious elements.      
Up to present, adat law (including adat criminal law) is in a certain sense ‘living law’--hukum hidup--law that is still used and developing and that judges can use as a reference in their judgments in certain case.   
Proponents of Adat Law
Proponents of adatrecht in the second half of nineteenth century who had inspired Cornelis Van Vollenoven:
G.A Wilken, the first adat-minded academic to teach in Nederland. The child of missionaries in Menado, trained at Delft for what proved to be an intellectually successful colonial service.
F.A. Liefrinck, an administrator who had lived and worked for ten years in all in Bali. Liefrinck was limited to particular fields determined in most part by his official duties: indigenous land rights, princely land tax, and indigenous village institutions. He provided evidence from that island’s history-and from his observations-to reinforce the view that the Indonesian jural community was indeed self-sufficient.
F.D.E van Ossenbruggen, an orientalist-anthropologist.
Christian Snouck Hurgronje, initially an expert of Islam, he was sent as adviser on native and religious affairs to assist the Dutch army of conquest in the northern most region of Sumatera. Snouck’s duty involved close observation of the ‘insurgents’ that is the Acehnese people, of their customs and conventions. At the end of his research he announced that, though they identified themselves as Muslims, the law obeyed in Aceh derived more from adat than from the sharia of Islam. To explain his meaning, Snouck Hurgronje coined the expression, adat recht. It was the first recorded usage. Snouck’s purpose was to separate simple custom from customs which carried legal consequences.

Leiden versus Utrecht
Even though Utrecht scholars opposite with the Leidenaars, there was—even in Utrecht—an appreciation of Nederland’s scholastic achievement. Is.H.Cassuto for instance, he agreed with the Leiden opposition to legal unification. He said that one law for all who live in the Indies was an impossibility. Despite this concession, the staff of the Utrecht adat law faculty maintained their distinctively critical position.  
Cassuto claimed that he found a contradiction on Vollenhoven writing. According to Leiden scholars, it was a convention common to adat that no interpersonal transaction would hold force without the transfer of some material consideration. Word of mouth or gentleman’s agreement did not suffice to seal a contract. In Javanese adat, panjer is necessary to bind the parties. Van Vollenhoven had explained that the panjer was not an advance payment: in no way did it reduce the purchase price. Van Vollenhoven had presented this convention as an essential element in Javanese adat. Yet Cassuto observed that he had also written in dealings with one’s fellow villagers, everything is arranged on the basis of mutual understanding and good faith.
The contradiction is not absolute, Van Vollenhoven explanation made it clear that it was in dealings with outsiders that the Javanese had recourse to the panjer.
Is habit self-justifying?
Responding to such question, The Utrecht theorist would have been inclined to answer that question in very simple short and in the negative: ‘No, not in default of validating legislation’
Against this, the Leiden theorist would have tended to say that valid law lies in the consciousness of the community. They would have not denied that the legislature exercised a valid function: its role was to confirm the jural expectation of the people. Nevertheless, custom in its own right had the force of law.
For Andre de la Porte—another Leiden lecturer—there was no doubt: law was a reflection of popular values. The proper task of the lawmaker was to meet the just demands of the people.
Contrary with Porte, J.P.B. de Josselin de Jong referred to customary law as ‘a confusing fiction’. Custom is not law. Furthermore de Jong found a confirmation for his analysis in the early writing of Van Vollenhoven “Where there is no authority ready and able to enforce obedience to rules, there is no law” (Van Vollenhoven). In later years, however, he and his companions would resist any initiative that could transmute custom in to regulation.    
Indonesia at present
Since Soekarno-Hatta (The 1st Indonesian President and Vice-President) declared Indonesian independence’s day in August 17th 1945. Indonesia adapted Nederland’s Codes (WvSNI, BW, WvK) based on constitution of Indonesia article II (the Transitory Provisions) which  stipulated that all laws and legislation existing under the Dutch colonial administration automatically became the laws and legislation of the Republic of Indonesia, until repealed, revoked or amended or found to be contradictory to the Constitution.

Van Vollenhoven and his students (Ter Haar, Soepomo) had great effort to recognize adat law as Indonesian indigenous law. Their effort has a great influence in their time up to present. For example we can find several law in Indonesia which recognize adat law as a living law in Indonesia:
·         Undang-Undang Darurat Nomor 1 Tahun 1951 Tentang Tindakan-Tindakan Sementara Untuk Menyelenggarakan Kesatuan Susunan Kekuasaan dan Acara Pengadilan-Pengadilan Sipil.
·         Undang-Undang Nomor 19 Tahun 1964 Tentang Ketentuan-Ketentuan Pokok Kekuasaan Kehakiman.  
Pasal 10: Pengadilan tidak boleh menolak untuk memeriksa dan memutus sesuatu perkara yang diajukan, dengan dalih, bahwa hukum tidak atau kurang jelas, melainkan wajib dengan bertanggung jawab kepada Negara dan Revolusi memberikan putusan.
Pasal 20(1): Hakim sebagai alat Revolusi wajib menggali, mengikuti dan memahami nilai-nilai hukum yang hidup dengan mengintegrasikan dari dalam masyarakat guna benar-benar mewujudkan fungsi hukum sebagai pengayoman.
·         Undang-Undang Nomor 14 Tahun 1970 Tentang Ketentuan-Ketentuan Pokok Kekuasaan Kehakiman Jo Undang-Undang Nomor 35 Tahun 1999 Tentang Perubahan Atas Undang-Undang Nomor 14 Tahun 1970 Tentang Ketentuan-Ketentuan Pokok Kekuasaan Kehakiman:
Pasal 27(1): Hakim sebagai penegak hukum dan keadilan wajib menggali, mengikuti dan memahami nilai-nilai hukum yang hidup dalam masyarakat.
·         Undang-Undang Nomor 4 Tahun 2004 Tentang Kekuasaan Kehakiman.
Pasal 25 (1):
“Segala putusan pengadilan selain harus memuat alasan dan dasar putusan tersebut, memuat pula pasal tertentu dari peraturan perundang-undangan yang bersangkutan atau sumber hukum tak tertulis yang dijadikan dasar untuk mengadili.
Pasal 28 (1): Hakim wajib menggali, mengikuti, dan memahami nilai-nilai hukum dan rasa keadilan yang hidup dalam masyarakat.
·         Undang-Undang Nomor 48 Tahun 2009 Tentang Kekuasaan Kehakiman

Pasal 5:
            (1) Hakim dan hakim konstitusi wajib menggali, mengikuti, dan memahami nilai-nilai hukum dan rasa keadilan yang hidup dalam masyarakat.

Adat law nowadays still prevails though in practices it just a ‘secondary law’.


[1] Translated from Netherlands Oost Indie ( a name for Indonesia), however the word Oost disappeared from the official title of the Southeast Asian colony during nineteenth century so generally the Dutch spoke only Netherlandsch-Indie (Netherlands-Indies)   
[2] Roelov H. Haveman. The Legality of Adat Criminal law in Modern Indonesia. Tata Nusa. Jakarta. 2002.p.26  

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