LEGAL HISTORY

The Indonesian legal system is based on Roman-Dutch law, modified by custom and islamic
law. Sources of law are islamic law, statutory legislation, presidential instructions, and official
complilations of islamic law.

European explorers arrived in the region in the 16 century, and the Dutch East India Company
was founded in 1602. The Dutch established a trading post on the north coast of Java, later
named Jakarta. The dutch gradually asserted political and military control beyond Java from the
18th century until most of archipelago was under Dutch rule by start of the 20th century.

Indonesians were subject to adat law, with Netherlands East Indies divided into several
jurisdictions based on cultural and linguistic criteria. Dutch scholars identified and classified 19
different systems of customary law in the region, In areas under direct rule, there were European
courts, native courts, and general courts for all of the population.

The basic principle was dominance of the received civil law system, and application of 'adat for
'natives' as far as it was not replaced by statute. The first legislation relating to application of
Islamic law was an 1882 Royal Decree establishing a 'Priest Court' for Java and Madura,
although the Decree acknowledged the most Indonesians were also subject to 'adat law
administered by native courts.

Independence was declared two days after Japanese occupying forces withdrew in 1945. Call for
the reform of marriage laws led to various proposals from member of government, women's
groups and the National Institute for Law Reform from 1945 to 1973, but conflicting interests
prevented any consensus being reached.

The only statutory reform of Muslim personal status in the period was the enactment of The
Muslim Marriage and Divorce Registration Law 1946 requiring registration. A new Marriage
Law, the first that was applicable to all Indonesians, was eventually passed in 1974 amidst much
controversy, particularly with regard to such issues as permission for divorce and polygamy.

Following the controversy over the Marriage Law, since the mid-1980s Compilations of Islamic
Law in Indonesia (Kompilasi Hukum Islam di Indonesia) authored by officials from the Ministry
of Religion and Supreme Court judges have been used to clarify points on personal law and
inheritance for application by shari'a courts.

The Compilations are presented as Presidential Instructions (Inpres) which have lower status
that statutes in the Indonesian legal system. A 1991 Compilation of Islamic Law directed the
restriction of hiba (gifts) to a maximum of one-third of the donor's estate.

Court System : There are four judicial branches outlined in the Basic Law on Judicial Power
1970 : general, religious, military and administrative courts. General courts include District
Courts of First Instance, High Courts of Appeal, and the Supreme Court (Mahkamah Agung).
Religious Courts are organised at two levels : courts of first instance in each district and
appellate courts in all provinces and have jurisdiction over civil cases between Muslim spouses
on matters concerning marriage, divorce, reconciliation, and alimony.
Notable Features: The minimum marriage age is 19 for males and 16 for females, with
provision for marriage below the minimum age, subject to judicial discretion and parental
consent. The Marriage Law 1974 defines as legal a marriage "solemnised according to the laws
of the respective religions and beliefs of each of the parties". Parties under 21 years require
parental permission to marry; this refers to the consent of the both parents, the surviving parent,
or guardian. The Marriage Registrar Officers of the Department of Religious Affairs is
responsible for registration of Muslim marriages and the Civil Marriage Registrar Office of the
Department of Internal Affairs for all othe marriages. The basis of marriage is considered
monogamy, but the Marriage Law does not prohibit polygamy for those religions that allow it
(Islam, Hinduism, Buddhism).

The Marriage Law provides that divorce shall be carried out only before a Court of Law, after
the Court has endeavoured to reconcile the parties. A husband married under Islamic law may
submit a letter notifying the religious court of his intention to divorce and giving his reasons.

The court may order alimony for children or maintenance for the former wife. In terms of
custody, the Marriage Law simply provides that in case of dispute over custody, the Court shall
render its judgement; the father shall have responsibility for maintenance expanses, unless he is
unable to bear such responsibility in which case the Court may order the mother to share such
expenses.

Succession is governed by classical law. Some commentators have also noted that the
Indonesian Supreme Court has often sought to equalise the rights of male and female inheritors.