International Journal of Indonesian Studies Volume 1, Issue 3 | Page 111

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES
SPRING 2016
colonial laws to the Indonesian legal system. The initial transplantation project was done by
literally translating both the Dutch Civil Code (BW/KUHP) and the Criminal Code
(WvS/KUHPid) into the Indonesian legal system (Koesno, 1994, 110). These Dutch legacies
are still maintained today, and are dogmatic in nature.24 Because the positive laws were a
literal translation from Dutch, the Dutch legal language was mandatory at the time. The
judges had to know the meaning of the legal wording in both Dutch and Indonesian.
Meanwhile, they were obligated to apply positive laws to concrete conditions and were
trained to be technical jurists, which was typically for a civil law jurist.
However, the codification policy had its drawbacks. With respect to the legal
language, even though the judges had a good understanding of Dutch, they lacked
contextual insights into the legal text. For example, the law of adultery in the Criminal Code
was from a European context whose propositions were totally different from living adat law
and Islamic values. In the Criminal Code, the definition of adultery was narrow because an
act could only be considered adultery if one of the perpetrators was married. On the other
hand, living adat law and Islamic values shared the same position with regards to adultery,
in that either perpetrator, married or single, was subject to punishment. In the Civil Code,
the notion of private goods was divided into both static goods (onroerend) and moving
goods (roerand). In contrast, this dichotomy was not accepted in living adat law. With
regards to agrarian law, living adat law was radically different to modern law. The
ownership of land and properties on the land are separated. For instance, the indigenous
peoples own the land, but it can still be borrowed or used by others. However, there are no
rights for the disposal of communal land, so the land can be transferred or used as debt
collateral. In modern law, the ownership of land is holistic, and owning the land also means
owning the properties and resources extracted from the land. The land also has both the
right to use and the right to disposal (Koesno, 1991, 123).25
To overcome the problem of legal language, the government stipulated Urgent Law
No 1 of 1951 concerning Judiciary. Even though this Law abolished indigenous TDR within
Indonesian archipelago, it had the positive effect, that although the government formally
abolished the living law institutions, their essences were transmitted into the judge’s legal
reasoning.26 Koesno (1995) encouraged judges to trace the internal morality of the law into
legal reasoning processes.
The essence of judicial independence does not just rely on a constitutional provision
for a formally separate and independent judicial branch of government, but also stresses
the freedom of the judge to elaborate law and use judicial discretion. This is necessarily
saying that a judge is more important than a legislator, thus the judge should be
intellectually independent and free from dogmatic legislative pressure.

24

The legislation of the Dutch legacies was manifested in Transition Article II of Constitution (Before
Amendments) and Government Regulation No 28 of 1945. These Laws were legally accepted, as long as did not
contradict to the spirit of the Independence Declaration and Constitution. The spirit of the colonization must
be replaced by the spirit of the law; this policy is called judicial tolerance.
25
The separation land ownership principle is recognized by the Agrarian Law No. 5 of 1960.
26
Urgent Law No 1 of 1951 concerning Unification of Judiciary, Article 5 (3) b.

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