INTRODUCTION TO INDONESIAN LAW CLASS

MIDTERM EXAM

Written by:

Name : Irene Bernandine Rumintjap

NIM : 017202305023 - Professional Class

2023
1. Clear explanation
a. Hierarchy of Legislation in Indonesia
- The concept of the hierarchy of legislation in Indonesia is fundamental to
the legal framework of the country. It is based on two crucial decrees, the
Decree of the Provisional People's Consultative Assembly (MPRS)
Number XX/MPRS/1966 and the Decree of the People's Consultative
Assembly (MPR) Number V/MPR/1973. This hierarchy is established to
ensure the proper execution of what is stipulated in the 1945 Constitution,
which serves as the supreme legal document in Indonesia.

At the top of the hierarchy is the 1945 Constitution, representing the

highest authority and the cornerstone of the Indonesia's legal system.
Beneath it, the People's Consultative Assembly Decree (MPR) holds a
significant position, further specifying constitutional matters. The
Law/Government Regulation in lieu of laws comes next, serving as the
primary legislative instrument for implementing policies and laws.

The Government Regulation follows, providing additional details and

regulations for a broad range of issues. The Presidential Decree, issued
by the head of state, holds an important place in this hierarchy as well. It
can be used to address specific matters and make executive decisions.
Lastly, there are other implementing regulations, including Ministerial
Instructions and various additional rules established by different
government bodies. This comprehensive hierarchy ensures the proper
organization of legal matters in Indonesia and reflects the country's
commitment to the rule of law. Understanding and adhering to this
hierarchy is essential for anyone dealing with the legal system in
Indonesia.
b. What is Jurisprudence?
- Jurisprudence is a body of law that evolves and takes shape through the
decisions made by judges in various court cases. These decisions
become established precedents, serving as guiding principles for future
cases that share similarities in legal issues and facts.

When a judge renders a decision in a particular case, they consider the

relevant laws, regulations, and constitutional provisions, but they also
draw upon previous court decisions that have addressed comparable legal
issues. These prior rulings provide a framework for interpreting and
applying the law to the current case.

In practice, when judges encounter a new case with resemblances to past

cases, they often look to the existing jurisprudence for guidance. They
consider how earlier judges reasoned and decided in similar situations,
aiming to ensure consistency and fairness in the application of the law.
This principle helps maintain legal stability and predictability within a legal
system.

c. 3 phase of Indonesian Law History

- Indonesian legal history can be divided into distinct phases, reflecting its
evolution and transformation over time. These phases offer valuable
insights into the development of the country's legal system and its societal
and political contexts. The three primary phases are as follows:
1. Pre-Colonial Phase - This phase refers to the period before the arrival
of European colonial arrives in Indonesia. Indonesia's diverse regions
were home to various indigenous societies and kingdoms, each with
its own customary laws and systems of governance. Legal principles
were often based on local customs, adat, and indigenous wisdom.
2. Colonial Phase - The colonial phase began with the arrival of foreign
colonizers, primarily the Dutch, who initiated the colonization of
Indonesia in the 17th century. Throughout the colonial period,
Indonesia's legal system underwent significant transformations. The
Dutch colonizers introduced Western legal systems, including Dutch
civil and criminal laws, which replaced many indigenous customary
laws. These changes had a profound impact on the relationship
between the indigenous population and the colonial government,
laying the foundation for the future development of law after
independence. Hereby, the periods that happened during Colonial
Phase:
§ Masa VOC (1602-1799)
§ Pemerintahan Hindia Belanda (1800-1942)
§ Periode Regering Besluiten (1814-1855).
§ Periode Regerings Reglement (1855-1926)
§ Masa Indische Staatsregeling (1926-1942)
§ Masa Pemerintahan Tentara Jepang
3. Independence Phase – This phase includes 2 periods, which were; old
order era, and new order era. Old order era, refers to the period of
governance that followed Indonesia's independence in 1945 and
continued until 1965. During this time, the country was led by its first
president, Sukarno. The old order was marked by a more centralized
and authoritarian government structure, with a focus on nationalism
and the rejection of foreign influence, particularly Dutch colonialism.
However, this period was also characterized by political turbulence and
economic challenges. New order era, began after the G.30.S/PKI coup
attempt. There was a change in government from President Sukarno
to President Suharto, up to the date of March 11, 1966, known as the
"Supersemar" decree. Government policies were formulated through
the Long-Term Development Plan I (RPJP I), which commenced in
 1969 and included a series of Five-Year Development Plans (Reprlita).
The focus of RPJP I was on economic development but was severely
affected by high inflation, reaching 600%. Therefore, for the sake of
economic stability and smoothness, political stability was deemed
necessary.

2. Clear explanation
a. What is Constitutional Law?
- Constitutional law is a fundamental branch of legal doctrine that governs
the structure and organization of a specific nation's government. It is
primarily concerned with the examination and establishment of the
framework that defines how a country is organized, how its governmental
institutions are structured, and how power is distributed and exercised
among these institutions. In essence, constitutional law sets the
foundational rules and principles that guide the functioning of a state.

b. The Definition of Constitutional Law Based on 3 Experts

- Logemaan
"Law regarding the organization of the state or in other words, the law
concerning its organization."
- Scholten
"The law that regulates the organization of states."
- M. Kusnardi and Harmaily Ibrahim
"A set of legal regulations that govern the organization of the state, the
relationships between state institutions both vertically and horizontally, as
well as the position of citizens and their fundamental rights."
c. What is Object of Constitutional Law?
- Object of Constitutional Law is a state. The term 'state' in the context of
constitutional law refers to a particular state in its tangible and specific
form, tied to a particular period and geographical location. This concept
extends to encompass a range of elements within the state's governance
and functioning. The focus of constitutional law, particularly within the
Indonesian context, is to delve into the structure of the state, which
encompasses its various institutions, the intricate relationships between
these institutions, the distribution of powers among them, and the rights
and responsibilities of its citizens. When identifying constitutional issues
in the 1945 Indonesian Constitution, they can be categorized as follows;
The general structure of the state organization; State institutions; State
finances; Defense and state security; Education and culture; and, National
economy and social welfare.

d. State Institution in Indonesia

1. People's Consultative Assembly (MPR) - The MPR is the highest
legislative body, consisting of the Regional Representative Council
(DPD) and the People's Representative Council (DPR). Its primary
functions include amending the Constitution, electing the President
and Vice President, and discussing important national issues.
2. President, Vice President - The President is the head of state and
government in Indonesia. They are responsible for implementing
policies, managing the executive branch, and representing the
nation on both domestic and international levels.
3. People's Consultative Assembly (DPR) - The DPR is the lower
house of the Indonesian legislature. It is responsible for enacting
laws, passing the state budget, and supervising government
activities. Members of the DPR are elected by the people.
 4. Regional Representative Council (DPD) - The DPD represents the
regions of Indonesia and ensures that regional interests are
considered in the legislative process. It also provides input on
regional autonomy and related matters.
5. Supreme Audit Agency (BPK) - The BPK is responsible for auditing
the government's financial management and ensuring the proper
use of state funds. It plays a crucial role in maintaining financial
transparency and accountability.
6. Supreme Court (MA) - The MA serves as the highest court in
Indonesia. Its primary function is to adjudicate on various legal
matters, ensuring that justice is served. It also supervises lower
courts and addresses constitutional issues.
7. Constitutional Court - The Constitutional Court is responsible for
interpreting the Indonesian Constitution. It ensures that laws and
government actions are in line with constitutional principles. This
court plays a crucial role in safeguarding the country's democratic
values.
8. Judicial Commission - The Judicial Commission oversees the
behavior and ethics of judges in Indonesia. It promotes integrity,
accountability, and transparency within the judiciary, thereby
maintaining the public's trust in the legal system.

3. Clear explanation
a. The Definition of State Administrative Law.
- A series of legal principles, rules of law, and legal institutions related to
four aspects:
1. Executive Authority: This aspect deals with the legal principles and
rules governing the executive branch of government, which includes
the President, Vice President, and other key executive officials. It
 outlines the scope of their powers, responsibilities, and limitations in
executing government policies and actions.
2. Governance Functions: This dimension covers the legal framework
concerning the functions and responsibilities of government
administration. It includes the rules and regulations that guide public
administration and the delivery of government services. These legal
principles are essential for ensuring the effective and accountable
functioning of government institutions.
3. Government Bodies, Institutions, and Administrative Structures: This
aspect involves the legal foundations for the establishment and
operation of various government bodies, agencies, and administrative
positions at both the central and regional levels. It outlines their roles,
functions, and authority within the broader governance structure.
4. Government-Citizen Relations: The fourth aspect pertains to the legal
principles and regulations governing the interactions and relationships
between the government and its citizens. This includes fundamental
rights, responsibilities, and obligations of citizens, as well as
mechanisms for citizens to engage with government processes, voice
concerns, and seek remedies when their rights are infringed upon.

b. The Definition of State Administrative Law Based on 3 Experts.

- J. Oppenheim & C. Van Vollehhoven.
Administrative Law is the complete set of provisions regarding the
exercise of authority by state instruments, both high and low.
- E. Utrech.
Administrative Law examines special legal relationships established to
enable government officials to perform specific tasks.
- Baliante.
Administrative law consists of legal rules that regulate the functions of
government (bestuursfuncti), which are tasks of the authorities that do not
include legislation or the judiciary.

c. How to Achieve Government Authority?

- The acquisition of governmental authority by state administrative officials
can be carried out through three methods, namely:
• Attribution, which is the granting of new governmental authority by
legislative products (legislation) to fully exercise governance.
• Delegation, which is the transfer of existing authority derived from
attribution to state administrative officials but not in its entirety.
Delegation is always preceded by the attribution of authority.
Therefore, invalid delegation (legal defect) can be used as a reason
for judges to revoke the delegation decision. Delegation is a partial
transfer, meaning it does not include the authority to make policies
for rules application.
• Mandate, which involves the assignment of tasks by the grantor of
the mandate (e.g., a minister) to the mandator (mandatary, e.g., a
director-general) to act on behalf of the grantor in making
administrative decisions.
These three methods define how governmental authority is granted to
administrative officials, with each method having specific implications and
limitations. They ensure that administrative actions are carried out within
the legal framework and according to specific roles and responsibilities.
 d. Principles of Good Government.
- I’m taking the principles from G.A. van Poelye (1953), which explained by
Crince de Roy.
1. Principle of legal certainty
2. Principle of proportionality
3. Principle of equality
4. Principle of carefulness
5. Principle of motivation
6. Principle of non-misuse of competence
7. Principle of fair play
8. Principle of reasonable or prohibition of arbitrariness
9. Principle of meeting raised expectation
10. Principle of undoing the consciousness of annulled decision
11. Principle of protection of life
These principles collectively contribute to a legal framework that
promotes justice, transparency, and the protection of individual and
societal interests, making them indispensable in the realm of legal
governance.

4. Explain What is Judicial Power and Explain The History Based on Time.
- According to Article 1 Paragraph 3 of the 1945 Constitution of the Republic
of Indonesia, "The State of Indonesia is a State of Law." Known as
"Rechtstaat," it limits authority by law and is not based solely on power
("machtsstaat"). One characteristic of a rule of law state is "Independent
Judicial Power." Independent judicial power is a power that is not allowed
or prohibited by any party. The autonomy or independence possessed by
the Judiciary to examine and adjudicate a case. Based on Article 24 of the
1945 Constitution, Paragraph 1&2: (1) The judicial power is carried out by
a Supreme Court and other institutions according to the Law. (2) The
composition and authority of the judicial institutions are regulated by the
 Law. According to Article 25 of the 1945 Constitution: The qualifications
for becoming and being dismissed as a judge are determined by the Law.
- There are 5 periods of Judicial History:
1. The 1945 Constitution Era (1945-1949) - During the period of the 1945
Constitution, which lasted from 1945 to 1949, the legal framework for
judicial authority was clearly defined in the Constitution itself. This era
marked the early years of Indonesia's independence, and the 1945
Constitution was the fundamental law that shaped the governance of
the new nation. Article 24, Paragraph 1 of this Constitution established
the framework for judicial power. It laid the foundation for the
establishment of the Supreme Court and other judicial institutions, with
their composition and authority being regulated by laws enacted by the
newly formed government. This period set the stage for the
development of Indonesia's legal system and the principles governing
the judiciary.
2. The RIS Constitution Era (1949-1950) - The era of the RIS Constitution
from 1949 to 1950 marked a transitional phase in Indonesia's
constitutional history. Unlike the 1945 Constitution, which provided
explicit provisions on judicial authority, the 1950 RIS Constitution did
not offer a detailed framework for the judiciary. This constitutional
period saw various changes and political developments, including
shifts in the governance structure. As a result, the role and powers of
the judiciary were not as explicitly defined as they were under the 1945
Constitution. This era witnessed discussions and debates on the
constitution and the form of government, and it paved the way for the
subsequent changes in Indonesia's constitutional order.
3. The Era of the 1950 Provisional Constitution (1950-1959) - Similar to
the RIS Constitution, the 1950 Provisional Constitution did not explicitly
include a section on judicial authority. However, there were several
 articles that implicitly regulated this matter, including Article 145 of the
1950 Provisional Constitution, which stated:
Paragraph 1: Any interference by any state organ that is not a judicial
organ is prohibited, except as permitted by the law.
Paragraph 2: This principle only applies to State Court (Pengadilan
Swapraja) and traditional courts as long as it has been regulated how
to request consideration from judges appointed by law.
4. The 1945 Constitution Era, Post-Presidential Decree (1959-2002) -
This era is divided into two periods: the Old Order and the New Order.
The Old Order Period, this period is known for Guided Democracy,
initiated by the presidential decree issued on July 5, 1959, and lasting
until March 11, 1966, which included a declaration for the
reinstatement of the 1945 Constitution. At the beginning of the New
Order period, the Indonesian government revoked Law No. 19/1964
and Law No.13/1965, as they were considered not to reflect Article 24
of the 1945 Constitution concerning an independent judiciary.
5. Amendment Period of the 1945 Constitution (2002-Present) –
Following the end of the New Order period marked by the humanitarian
tragedy from May 12 to 15, 1998, and the resignation of the second
President Soeharto, amendments to the 1945 Constitution were
carried out four times by the People’s Consultative Assembly (MPR).

5. Give 1 Example of Customary Law That Applies in Indonesia and What

Do You Think About Customary Law in Indonesia Has A Strategic Role.
- Hari Nyepi is a religious holiday in the Balinese Hindu calendar, celebrated
with great sanctity. It is one of the important examples of customary law
still prevalent in Indonesia, especially in Bali. In Balinese customary law,
Hari Nyepi is a day when all activities on the island come to a halt,
including transportation, work, and entertainment. The community is
expected to observe fasting, engage in meditation, and reflect.
In my view, customary law in Indonesia plays a strategically significant role.
It not only reflects the cultural diversity of the country but also creates a strong
social and moral foundation. Customary law allows communities to uphold
traditional values, respect cultural differences, and maintain harmonious
relationships between individuals and their communities.

Furthermore, customary law can serve as a tool to protect the rights and
interests of indigenous communities, such as land and natural resource rights.
It is important to promote the fair and equitable application of customary law
across various regions of Indonesia. This will help preserve cultural diversity
and promote social well-being throughout the country. Therefore, customary
law in Indonesia plays a crucial role in maintaining harmony and justice in a
multicultural and multi-ethnic society.