Indonesia

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ACTS OF INDONESIA

LEGAL TRAINING RESOURCE CENTER

Background

Indonesia is the largest archipelago in the world. It consists of five major islands and about 30 smaller groups. There are total number of 17,508 islands of which about 6000 are inhabited. Straddling equator, the archipelago is on a crossroads between two oceans, the Pacific and the Indian Ocean, and bridges two continents, Asia and Australia. The largest islands are Sumatra, Java, Kalimantan (Indonesian Borneo), Sulawesi, and the Indonesian part of New Guinea (known as Papua or Irian Jaya). Indonesia comprises 30 provinces, 2 special regions (Aceh and Yogyakarta), and 1 special capital city district (Jakarta Raya). Indonesia’s first free parliamentary election took place in 1999. The country is now the world’s third-largest democracy, and home to the world’s largest Muslim population. Indonesia’s major language groups are Bahasa Indonesia (official language), English, Dutch, Javanese as well as other local dialects. The main religious groupings in the country are Islam (the majority group at almost 86%), Christianity, Hinduism and Buddhism. Ethnically the country is highly diverse, with over 580 languages and dialects although only 13 of these have more than one million speakers. The present day culture of Indonesia is an outcome of the interplay of old-age- traditions from the time of early migrants and the Western thought brought by Portuguese traders and Dutch colonists. The country’s main industries are fishing, petroleum, timber, paper products, cotton cloth, tourism, mining of petroleum, natural gas, auxite, coal and tin. The capital city is Jakarta and the country’s currency is the Indonesian Rupiah.

Type of System

There are approximately 250 State Courts throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State Court are heard before the High Court (Pengadilan Tinggi), of which there are around 20 throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instances from the State Court, may be made to the Supreme Court located in Jakarta. The Supreme Court (Mahkamah Agung) is the final court of appeal, but only the Constitutional Court (Mahkamah Konstitusi) has the power of judicial review. Most disputes appear before the courts of general jurisdiction, with the court of first instance being the State Court (Pengadilan Negeri). Indonesia has a constitution and the Indonesian legal system is based on Roman-Dutch law, substantially modified by indigenous concepts and by new criminal procedures and election codes. Indonesia does not have a jury system and cases are not conducted before juries.

The Constitution

Form

The Constitution of the Republic of Indonesia (1945) is in written form and codified in a single document. It has been amended four times: in October 1999, August 2000, November 2001 and August 2002. Indonesia is a unitary state in the form of a republic, as stipulated in Article 1 of the 1945 Constitution.


General constitutional features and system of governance

Based on the 1945 Constitution, Indonesia has a presidential system of government where the executive branch is led by a president who serves as both head of state and head of government.

Indonesia has a bicameral legislature. There are two legislative bodies, each with different authorities:

The People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) (MPR). This is tasked to amend and enact the 1945 Constitution as well as inaugurate or dismiss the president and the vice president in accordance with the 1945 Constitution.

The People’s Representative Council (Dewan Perwakilan Rakyat) (DPR). This is assigned to issue laws and regulation, supervise the government, and to oversee and approve state budgeting.


Separation of powers

The 1945 Constitution provides for the separation of powers between three branches of government, namely the executive unit, the legislative unit and the judicial unit. The units have equal power and position in the government hierarchy for check and balance purposes. The checks and balances provided by the 1945 Constitution include:

• The executive unit, namely the president and vice president, can be dismissed by the legislative units for violation of the law or conduct of treason, corruption, bribery and so on (Article 7A, 1945 Constitution). The Constitutional Court must conduct and assess impeachment procedures (Article 7B, 1945 Constitution).

• The president has no authority to disband the legislative branch.

• The president must ask the legislative and judicial units for their advice or approval on certain matters:

o the president needs the approval of the People’s Representative Council (DPR) to declare war, enter into a peace treaty or other international agreement based on Article 11 of the 1945 Constitution; and

o the president must consider the advice of the Supreme Court when granting clemency and rehabilitation, and the advice of the DPR when granting amnesty and abolition (that is, that prosecution against a person is abolished or eliminated) (Article 14, 1945 Constitution).

• The DPR must discuss and require approval from the president when issuing or enacting a law (Article 20(2),1945 Constitution).

• The DPR holds the budgeting authority and represents the people in supervising the executive power by exercising the right to conduct interpellation, that is, questioning the executive on an aspect of government policy (Article 20A, 1945 Constitution).

• The Supreme Court is authorised to conduct judicial review of regulations or decisions made by the executive if they are against the law (Undang-Undang) (Article 24(A), 1945 Constitution).

The Constitutional Court has the authority to constitutionally review a law that may be contrary to the 1945 Constitution, settle disputes among government institutions, dissolve political parties and settle election disputes (Article 24C, 1945 Constitution).


Sources of Defendants' Rights

The Constitution The Constitution was approved on August 1945, subsequently abrogated in the ‘50s and restored in July 1959. The Constitution was last amended in 2002. The document grants certain rights related to judicial proceedings, such as the independence of the judiciary, equality before the law, the prohibition of ex post facto laws the right to life and to be free from certain punishments. Although articles 28I and 28G Constitution grant the right to remain free from torture or inhuman and degrading treatment and state that this is a “fundamental human rights that shall not be curtailed under any circumstance” the death penalty is still administered in Indonesia.


The Indonesian Law of Criminal Procedure The Law of Criminal Procedure was adopted in 1981, and it provides different rights to defendants in criminal proceedings.


Defendants' Rights

Pre-Trial

A warrant is requested in case of arrest, except in cases of flagrante delicto. An arrest can be made only when a person is strongly presumed to have committed an offense based on sufficient preliminary evidence. The arrest cannot last more than 24 hours. At the time of arrest the arrestee has a right to notice of the charges. This right also applies during court procedures.

During detention, a suspect or an accused has the right to contact his legal counsel, send and receive from him documents (Articles 57,62 Law of Criminal Procedure). He has also the right to be visited by a doctor, his family, and relatives.

During examinations, the accused has the right to have a counsel and be free from any pressure whatsoever.

Pre trial detention requires a warrant or an order from the investigator, prosecutor, or judge. The warrant can be executed when a person is strongly presumed to have committed an offense, when there is sufficient evidence and there is concern that this person will escape, damage, or destroy physical evidence and/or repeat the offense. The offenses that can justify such detention must be punishable with 5 years or more of imprisonment. The detention warrant is valid for 120 days at the most, depending on who ordered it first. The suspect, his family, or legal counsel may file objections to the detention with the investigator conducting the examination.

Trial

At the trial-phase, a notification to attend the hearing shall be made with a written summon which has to be received from the accused at least 3 days before the commencement of the trial. The prosecutor has to read his bill of indictment aloud, and the judge must ascertain that the accused has thoroughly understood.

The rights to be assisted by a defense counsel and to file motions and raise objections, are granted in Articles 198 and 156 of the Law of Criminal Procedure. The testimony of the accused is considered a legal mean of proof, and leading questions cannot be used during his examination (Articles 148 and 166 Law of Criminal Procedure).

A judge must not impose a penalty upon a person except when, with at least two legal means of proof, he has come to the conviction that an offense has truly occurred and that it is the accused who is guilty of committing it.


Post-Conviction

The accused, his counsel, and the public prosecutor have the right to appeal against a judgment of a court of first instance, except against a judgment of acquittal or a dismissal of all charges which relates to a matter of the inappropriate application of law, and a judgment under express procedures (Articles 67 and 233 Law of Criminal Procedure).

The accused or the public prosecutor may also lodge a petition for cassation to the Supreme Court with regard to a judgment in a criminal case, rendered at last resort.

Moreover, the Law of Criminal Procedure provides the possibility for a convicted person or his heirs to submit a request to the supreme court to reconsider a final judgment (except for an acquittal or dismissal of charges), on the following grounds: new circumstances which give rise to a strong presumption that if they would have been know at trial, the outcome would have been an acquittal/dismissal; the matter or the circumstances founding the judgment are evidently mutually contraddictory; or clear mistake of the judge or manifest error.



See Criminal Justice Systems Around the World and Legal Aid in ASEAN countries

QUICK FACTS

  • 2009 Prison Population: 140.740 with 61 detainees for 100,000 people, based on an estimated national population of 230 million. 41.5% of the prison population is composed of pre-trial detainees or remand prisoners.
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