Oleh: Rudy | November 14, 2008

Legal Pluralism Vs Unification

The legal system in Indonesia has been marked by the long struggle to construct a system based on the pattern of the family or community as set forth by the Constitution. Indonesia inherited a complex legal system whose main component parts were western law, adat law, and Islamic law.  This complex legal system basically features the special characteristic of Indonesia community and made the birth of unification supporters and legal pluralism  supporters.

Amidst the desire to construct a strong unitary state, Seoepomo who was the great supporter of legal pluralism, however, was able to provide the basic provision in Indonesia 1945 Constitution to protect legal pluralism .  It may be said that Indonesia 1945 Constitution greatly accommodated the law from the top and law from below but did not give the way to negotiate between the two. However, attachment to the traditional communal life conflicts with modernization and industrialization. Since that time, the legal pluralism versus unification became great national issue.

Since 1959, pressure for the establishment of a system of national law has increased followed by the desire to unify national legal system. Indonesian jurist trained in Netherlands were not only greatly influenced by western law but also lost sight of their own indigenous legal institution and the reality of the society . The result was scholars and jurists with the strong desire on creating modern and unified legal system.  In addition, Utrecht  has pointed out that the desire for codification and unification cannot be separated from the idea of eenheidsgedachte of the unified state proclaimed in 1945.

The period of Old Order and New Order showed the efforts for unification in every aspect of Indonesian life including the unification of law system. The unification was greatly seen during New Order period with two goals they value highly, national unity and economic development .  That model of how development goals should be attained greatly influenced government policies and institutions.  It also profoundly affected national legal system and the way of government official, lawyers, and legal scholar thought about law and development.  Meanwhile in the regions located very far from Jakarta, adat law mostly guides people daily life . This never-ending contest between legal pluralism and unification is not only happen in Indonesia but also happen across the world in Asia , Africa , and Latin America .

Asian Crisis 1997 witnessed the fall of New Order and the beginning of democratization in Indonesia followed by the historic amendment of Indonesia 1945 Constitution along with the decentralization idea across the country. The decentralization idea gives some room for the implementation of local law as witnessed by the rebirth of many adat institutions and its law from Sumatera to Papua .  Even though many scholars are pessimistic on the importance of adat law or customary law in diverse and indigenous country , the great disaster of Tsunami that stroke Aceh in 2004 shows us that when the formal law cannot administer the law problem after Tsunami, Aceh adat law become an effective solution for many land and inheritance problem.  For some reason, the adat justice system is more comprehensible and accessible than the formal justice system .  This condition also happens in Africa where the customary laws are so flexible in responding to the circumstances of the particular case .  These laws may differ from Western laws in failing to provide definitive answers to certain issues. But Western laws fail to provide definitive answers to other issues that customary laws regulate more fully.

This little blessing of Tsunami and the experience of Africa Nation shall remind us to rethink when pursuing modern legal system without considering the local genuine of one country especially in the country where the diversity of customary law is evident . For Indonesia, this heterogeneity needs to serve as a starting point for any legal pluralism assessment and the search for institutional law building. Localities that have in the past chaffed under central arrangements that have led to stay silent to implement their unique legal system would now be in position to forge ahead through improved space to implement their local law while pursuing the genuine Indonesia legal system .

At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Over one hundred countries and several supra-national entities across the globe establish constitutional supremacy in one form or another . The rise of constitutionalism is followed by the gradual emergence of new constitutional court, that in many of these countries have been responsible for translating these constitutional provisions into practical guidelines to be used in daily public life. Many of these courts have become significant, even powerful-actors .  Despite the growing number of academic works on the relationship among constitution, minority rights, and judicial review , it might be argued that a little attention paid to the relation between constitutional court and the protection of customary law especially in culturally divided societies .


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