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Overview

Introduction to Law in Indonesia

Indonesia’s legal system is very complex. Indonesian law is comprised of adat (traditional) laws, parts of Islamic law (hukum Islam), Dutch legislation and regulations passed when the Dutch colonized Indonesia, and thousands of post-independence statutes (undang-undang), regulations (peraturan) and lower-level decisions (keputusan). Because Indonesian law comes from so many sources, it is difficult to identify the law applicable to a particular situation with any certainty. For example, a statute may be implemented by a government regulation, which may in turn be implemented by a Ministerial Decision (Keputusan Menteri), which may in turn be implemented by a Departmental Memorandum (surat edaran). All of these “laws” must be identified to determine what the law is.

Indonesia’s law system also based on international treaties. International law — and international agreements on intellectual property in particular — is crucial to an understanding of intellectual property. Much of intellectual property law is contained in international agreements which have been signed and then ratified by many countries around the world (including Indonesia). This means that these international agreements have, or will, become part of the national laws of countries who have ratified these international agreements.

What is the law in Indonesia and who makes it?

There are other sources of law in Indonesia, besides laws made by the MPR and the DPR. The President has a power to make laws and so do Ministers and other government officials. In fact, there are so many different types of laws in Indonesia, it can be confusing.

This issue is important to our studies in intellectual property. Although the basic principles of PR may be set out in legislation (undang-undang), many of the more specific provisions are contained in government regulations, presidential decisions and lower level laws. It is important that you know, as far as it is possible, which law to use if two or more laws are inconsistent.

In 1966, the MPR passed a Decree, which explained which bodies can make laws in Indonesia and what types of laws they can make. The Decree also explained the authority of those laws in relation to other laws. So, for example, if two laws were inconsistent with one another, the Decree sets out which one would stand and which one would be invalid to the extent of the inconsistency. The law highest on the list would be valid, and those below it would be invalid.

1. The 1945 Constitution (Undang-undang Dasar 1945). This is said to be the basis and source of all statutes and lower regulation laws. It can be implemented by a decree of the MPR (Ketetapan MPR), by statute from the DPR (Undang-undang), or Presidential Decision (Keputusan Presiden).

2. Decrees of the MPR (Ketetapan MPR). The MPR determines the Broad Outlines of State Policy (GBHN) and may also issue decrees or decisions (Ketetapan) to implement the GBHN. Together, the GBHN and the Ketetapan are like instructions for the legislature (the DPR) and executive (the President and cabinet). Provisions concerning the DPR are implemented by statute. Those for the Executive are to be implemented by Presidential or Ministerial Decree or other subordinate Regulations.

3. Statutes (Undang-undang). These are enacted by the DPR and ratified by the President to implement the 1945 Constitution or a Decree of the MPR. Of the same rank as statutes are “interim statutes” (PERPU). These can be passed by the President in an emergency and must be withdrawn unless approved by the House of Representatives at its next session.

4. Government regulations (Peraturan Pemerintah). These contain general provisions and are promulgated by the President for the purpose of implementing a statute.

5. Presidential Decisions (Keputusan Presiden). This form of law contains specific provisions and is promulgated by the President to implement either the Constitution, a decision of the MPR in the Executive sphere, or a Government Regulation.

6. Other implementing regulations. These must implement, and be grounded in, a higher order of regulation. They are normally promulgated by a Minister (Ministerial Regulations (Peraturan Menteri), Ministerial Instructions (lnstruksi Menteri) or Ministerial Decisions (Keputusan Menten)).There are other types of laws which were not mentioned in the Decree, so their status is unclear. For example:

•  circular letters (surat edaran), issued by Heads of Directorates within a Ministry. These provide the official interpretation of key provisions in regulations;

•  Presidential Instructions (Instruksi Presiden); and

•  Regional Regulations (Peraturan Daerah).

Indonesia’s judicial system

In any legal system, some form of adjudication is required. Statutes are very important but we also need to courts to tell us what legislation means. For example, the lndonesian copyright law says that it is illegal to copy a substantial part of someone else’s work. But what is a substantial part? Is it one work, one sentence, a paragraph, a page, a chapter, two chapters, or the whole book? The legislation itself does not say this clearly, so we need the courts to help us determine what a “substantial part” is in any particular case.

The Mahkamah Agung can also make law if the government or parliament has not passed a law on a particular issue.

There are four branches of the judicature in Indonesia.

1. General Courts (Pengadilan Umum). These comprise 295 District Courts (Pengadllan Negeri) and 26 Provincial Courts (Pengadilan Tinggi). The Pengadilan Negeri try all criminal and civil cases. A party dissatisfied with the decision can appeal to the Pengadilan 77nggi in a civil case if the dispute exceeds a specified (small) amount and in criminal cases where the sentence is more than three months.

2. Military Courts (Pengadilan Militer). These comprise 23 Military Courts (Pengadi/an Mi/iter) and two Military High Courts (Pengadilan 7inggi Militer). These courts try criminal cases where the accused is a member of the armed forces.

3. Religious Courts (Pengadilan Agama). This judicial branch comprises 305 Religious Courts

(Pengadilan Agama) and 21 Religious High Courts (Pengadilan Tinggi Agama). These hear cases in which both parties are Muslims and the dispute concerns defined areas of the law, such as marriage, inheritance and trusts.

4. Administrative Courts (Pengadilan Tata Usaha Negara). These are made up of 15 Administrative Courts (Pengadilan Tate Usaha Negara) and four Higher Administrative Courts (Pengadilan Tinggi Tata Usaha Negara). These courts, newly-established, hear disputes between Indonesian citizens and the Government over alleged infringements of the law or misuse of power by a State organ.

Appeals from all these courts can be heard on cassation (kasasi) by the Mahkamah Agung, the highest court in Indonesia. The Mahkamah Agung is also authorized to review its own decisions in the sphere of civil law.

Generally speaking the vast majority of Intellectual Property Right (IPR) disputes used to be heard in either the administrative courts or the general courts, The administrative courts used to decide whether the IPR office, a government body, should have registered a particular trademark or patent, or not. General courts used to decide the majority of other cases, including those concerning civil and criminal infringement of PR rights. However, recent changes in the HAKI legislation have given the new Indonesian commercial courts (which form part of the general courts) almost exclusive jurisdiction to hear HAKI cases.

Judicial decisions as a source of law

In this course we will be using many cases to illustrate how Indonesia’s IPR laws will probably work in practice. Most of these are from Australia and other jurisdictions as Indonesian decisions are hard to find. Therefore, a little needs to be said about judicial decisions as a source of law.

Countries like Australia and England follow the common law system. Under that system, judges follow previous decisions by other (usually higher) courts so that the law can operate consistently and predictably. This is called the system of ‘precedent’ or ‘stare decisis’. Judges will usually look at other decisions in cases with similar facts to the one they are deciding, and may use the principles other judges have used in the past in the case they are deciding. Judges may also follow previous decisions on how to apply legislation. However, judges can also refuse to follow a precedent for a number of reasons, for example, if an unjust decision would result or if the precedent is too old and so on.

lf there is no legislation and no prior judicial decision that can be applied to the case the judge is hearing senior judges sometimes make new law. Some judges are more enthusiastic than others about doing this. So, judicial decisions are important sources of law in common law systems. Judges decide how legislation is to be applied and can make new law.

The Indonesian legal system is based on the civil law system (sistem hukum Kontinental) inherited from the Dutch. In civil law systems, there is generally no formal system of precedent. Legislation (or codes) are supposed to be comprehensive, and it is thought that there is no real need for a system of precedent, since judges are only supposed to apply the law as set down in the codes. This is seen as desirable from a democratic perspective: parliaments are generally democratically elected by the people, and judges are not (although they are usually appointed by the elected government). So it is, therefore, thought that parliament should decide what the law is, not judges.

But, despite the absence of a formal system of precedent in civil law systems, the practical reality is that judges do take heed of prior decisions (particularly those of the highest court in the land), especially where a settled line of cases has developed. This is desirable because it promotes consistency and predictability—for example, it helps lawyers to advise their clients how a court is likely to decide their dispute. The Indonesian Government itself, in a report by the Institute for National Legal Development (BPHN), has called for an increase in legal certainty through the development of jurisprudence (yurisprudensi) prudensi) , that is, the written decisions of the Mahkamah Agung. In fact, the report revealed that judges and lawyers already use prior decisions of the Mahkamah Agung as a guide in making decisions or advising clients. Furthermore, in a circular letter, the Mahkamah Agung advised that published yurisprudensi should be followed by Indonesian courts.

Additionally, the Mahkamah Agung has ruled that it has the power to make law when there is a legal vacuum (kekosongan hukum) on a point of law.

So, in reality, the Common Law and Indonesian systems are not that different. Under both systems, judges are free to adopt previous decisions, but do not have to if there are reasons why they should not be followed, and judges can make law if there is a legal vacuum on a point of law.

International law

First, we should think a little about terminology. Conventions (Konvensi), Protocols (Protokol), Treaties (Treati) and Agreements (Persetujuan) are all essentially the same thing: they are all agreements between different countries. They can be bilateral (that is an agreement between two countries) or multilateral (an agreement between a number of countries).

Treaties can be binding (mengikat) or non-binding. Countries may voluntarily sign the treaty or refuse to sign the treaty. If the treaty is binding, then the countries which sign are bound by that treaty, that is, they must ratify it within a certain time. This means that signatory countries must pass new law or change existing laws in their own country to bring their laws into line with the treaty.

We will consider the important international treaties that deal with intellectual property later in the course, but for now we should just consider why international intellectual property treaties are important for Indonesia and why it is useful to study them.

First, the majority of principles contained in Indonesia’s IPR laws are derived from international PR agreements.

Second, countries which have ratified international PR agreements will make it easier for themselves to conduct international trade with other countries. There is a tendency for developed countries to require developing countries to have sufficiently strong PR laws in place before they will trade with them.

References :

Short course in Intellectual Property Right (Elementary) - Asian Law Group Pty Ltd. - Ausaid.

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