Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in D... more Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in Developing Countrie
This chapter shows how the post-1998 constitutional amendments have failed to change the mode of ... more This chapter shows how the post-1998 constitutional amendments have failed to change the mode of operation of the police and public prosecutors. The values underlying the present criminal justice system still emphasize crime control and maintaining public order rather than due process. Suspects and defendants have few rights, the institutional mechanisms to uphold these rights are weak, and the police prefer to ignore them. Like many other countries, Indonesia increasingly relies on criminal law to regulate society, which leads to high rates of arrest, prosecution, conviction, and incarceration. How successful the system has been in this respect is demonstrated by the staggering rise of the number of prisoners and the overcrowding of prisons. On top of that, police and prosecutors have remained an instrument of the government to secure its political interests. As a result, Indonesia looks more like an authoritarian state than a state under the rule of law.
This chapter shows how the post-1998 constitutional amendments have failed to change the mode of ... more This chapter shows how the post-1998 constitutional amendments have failed to change the mode of operation of the police and public prosecutors. The values underlying the present criminal justice system still emphasize crime control and maintaining public order rather than due process. Suspects and defendants have few rights, the institutional mechanisms to uphold these rights are weak, and the police prefer to ignore them. Like many other countries, Indonesia increasingly relies on criminal law to regulate society, which leads to high rates of arrest, prosecution, conviction, and incarceration. How successful the system has been in this respect is demonstrated by the staggering rise of the number of prisoners and the overcrowding of prisons. On top of that, police and prosecutors have remained an instrument of the government to secure its political interests. As a result, Indonesia looks more like an authoritarian state than a state under the rule of law.
There are important legal dimensions to the relationship between water and heritage. This paper r... more There are important legal dimensions to the relationship between water and heritage. This paper reports on the challenges Indonesia is facing concerning water management. Age-old customary water governance systems exist in parts of the country and continue to influence local decisionmaking and water use practices. However, such heritage institutions can no longer safeguard local community water rights nor protect the environment. Since the 1990s, business power has been gradually overstepping customary socio-legal arrangements with negative effects on both the local population and water supply. Policy recommendations issued by the World Bank in 2004 supported opening paths to privatization. At present, national legislation and corporate interests have taken control of water management. Simultaneously, water heritage sites have been transformed into tourist attractions. Also, plantation companies promote land heritage issues when that serves their divide-and-rule strategies and turns...
At its heart this collection of essays concerns the current state of Indonesian environmental law... more At its heart this collection of essays concerns the current state of Indonesian environmental law, departing from the question of whether there is now a coherent and accessible framework for environmental management. The authors provide the reader with an overview of Indonesian environmental policymaking and the political context in which it has emerged. The essays analyse the general features and principles of the Environmental Management Act of 1997, the frameworks for enforcement and dispute resolution, and the relation with the vital areas of forestry law and spatial planning. Two more theoretical discussions that are highly topical in the Indonesian legal environmental discourse contextualise the subject: first, the use and role of the vital concepts of integration, harmonisation and co-ordination of environmental law and policy; and second, the relation between enforcement and voluntary compliance mechanisms. The authors also explore potential paths towards better environmenta...
Das indonesische Rechtssystem ist bekannt für seine ungemeine Komplexität. Wo sein Grundriss von ... more Das indonesische Rechtssystem ist bekannt für seine ungemeine Komplexität. Wo sein Grundriss von der niederländischen Kolonialmacht erstellt wurde und der indonesische Staat seit der Unabhängigkeit 1945, hunderte von neuen Gesetzen verabschiedet hat, gibt es auch jetzt noch Teile des indonesischen Rechtssystems, die aus präkolonialen Quellen stammen.
Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in D... more Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in Developing Countrie
The Journal of Legal Pluralism and Unofficial Law, 2015
This article looks at the work of Franz and Keebet von Benda-Beckmann on decentralisation and vil... more This article looks at the work of Franz and Keebet von Benda-Beckmann on decentralisation and village governance in Indonesia. 1 It discusses the main findings of their magnum opus 'Political and Legal Transformations of an Indonesian Polity: The Nagari from Colonisation to Decentralisation'. Compared to other regions, West Sumatra presents a unique case, as it translated the post-Suharto decentralisation into a return to a traditional customary (adat) government structure À the nagari. How can we explain such an unusual turn, which happened nowhere else in Indonesia? This question is relevant to current political debates in Indonesia following the enactment of the 2014 Village Law. That Law explicitly presents the option for a return to adat structures in other regions as well, while granting villages more autonomy. Our central question is whether the same factors that promoted the 'return to the nagari' are likely to facilitate a similar process elsewhere in Indonesia. What can practitioners, policy-makers and researchers engaged in the latest wave of village governance transformations in Indonesia learn from the experiences in West Sumatra?
During the first decades of the 20th century several scholars engaged in studies that would lay t... more During the first decades of the 20th century several scholars engaged in studies that would lay the foundations for legal pluralism. This article considers how the work of one of these founders, Cornelis van Vollenhoven, has influenced legal development in Indonesia. It outlines Van Vollenhoven’s arguments to defend the existence of non-state law and compares them with those of his contemporaries Eugen Ehrlich and Bronislaw Malinowski. All three authors developed their ideas to counter the hegemonic narrative of modern state law; Van Vollenhoven and Malinowski to denounce the subjection of ‘uncivilised peoples’ to this law, Ehrlich to reject legal formalism and the central role of jurists in producing it. The next part of the article discusses how after Independence Indonesia has pursued legal unification, with limited success and various results. The unification of land law has led to widespread dispossession of small peasants; in marriage law legal pluralism functions because local officials and courts mediate between state law and local normative systems; and in Aceh the officially recognised legal pluralism is deployed by local officials and the police to accommodate local ideas about justice. This seems to indicate that state recognition of legal pluralism still promotes social justice, just as Van Vollenhoven argued a century ago.
Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in D... more Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in Developing Countrie
This chapter shows how the post-1998 constitutional amendments have failed to change the mode of ... more This chapter shows how the post-1998 constitutional amendments have failed to change the mode of operation of the police and public prosecutors. The values underlying the present criminal justice system still emphasize crime control and maintaining public order rather than due process. Suspects and defendants have few rights, the institutional mechanisms to uphold these rights are weak, and the police prefer to ignore them. Like many other countries, Indonesia increasingly relies on criminal law to regulate society, which leads to high rates of arrest, prosecution, conviction, and incarceration. How successful the system has been in this respect is demonstrated by the staggering rise of the number of prisoners and the overcrowding of prisons. On top of that, police and prosecutors have remained an instrument of the government to secure its political interests. As a result, Indonesia looks more like an authoritarian state than a state under the rule of law.
This chapter shows how the post-1998 constitutional amendments have failed to change the mode of ... more This chapter shows how the post-1998 constitutional amendments have failed to change the mode of operation of the police and public prosecutors. The values underlying the present criminal justice system still emphasize crime control and maintaining public order rather than due process. Suspects and defendants have few rights, the institutional mechanisms to uphold these rights are weak, and the police prefer to ignore them. Like many other countries, Indonesia increasingly relies on criminal law to regulate society, which leads to high rates of arrest, prosecution, conviction, and incarceration. How successful the system has been in this respect is demonstrated by the staggering rise of the number of prisoners and the overcrowding of prisons. On top of that, police and prosecutors have remained an instrument of the government to secure its political interests. As a result, Indonesia looks more like an authoritarian state than a state under the rule of law.
There are important legal dimensions to the relationship between water and heritage. This paper r... more There are important legal dimensions to the relationship between water and heritage. This paper reports on the challenges Indonesia is facing concerning water management. Age-old customary water governance systems exist in parts of the country and continue to influence local decisionmaking and water use practices. However, such heritage institutions can no longer safeguard local community water rights nor protect the environment. Since the 1990s, business power has been gradually overstepping customary socio-legal arrangements with negative effects on both the local population and water supply. Policy recommendations issued by the World Bank in 2004 supported opening paths to privatization. At present, national legislation and corporate interests have taken control of water management. Simultaneously, water heritage sites have been transformed into tourist attractions. Also, plantation companies promote land heritage issues when that serves their divide-and-rule strategies and turns...
At its heart this collection of essays concerns the current state of Indonesian environmental law... more At its heart this collection of essays concerns the current state of Indonesian environmental law, departing from the question of whether there is now a coherent and accessible framework for environmental management. The authors provide the reader with an overview of Indonesian environmental policymaking and the political context in which it has emerged. The essays analyse the general features and principles of the Environmental Management Act of 1997, the frameworks for enforcement and dispute resolution, and the relation with the vital areas of forestry law and spatial planning. Two more theoretical discussions that are highly topical in the Indonesian legal environmental discourse contextualise the subject: first, the use and role of the vital concepts of integration, harmonisation and co-ordination of environmental law and policy; and second, the relation between enforcement and voluntary compliance mechanisms. The authors also explore potential paths towards better environmenta...
Das indonesische Rechtssystem ist bekannt für seine ungemeine Komplexität. Wo sein Grundriss von ... more Das indonesische Rechtssystem ist bekannt für seine ungemeine Komplexität. Wo sein Grundriss von der niederländischen Kolonialmacht erstellt wurde und der indonesische Staat seit der Unabhängigkeit 1945, hunderte von neuen Gesetzen verabschiedet hat, gibt es auch jetzt noch Teile des indonesischen Rechtssystems, die aus präkolonialen Quellen stammen.
Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in D... more Rule of Law and Development: Formation, Implementation and Improvement of Law and Governance in Developing Countrie
The Journal of Legal Pluralism and Unofficial Law, 2015
This article looks at the work of Franz and Keebet von Benda-Beckmann on decentralisation and vil... more This article looks at the work of Franz and Keebet von Benda-Beckmann on decentralisation and village governance in Indonesia. 1 It discusses the main findings of their magnum opus 'Political and Legal Transformations of an Indonesian Polity: The Nagari from Colonisation to Decentralisation'. Compared to other regions, West Sumatra presents a unique case, as it translated the post-Suharto decentralisation into a return to a traditional customary (adat) government structure À the nagari. How can we explain such an unusual turn, which happened nowhere else in Indonesia? This question is relevant to current political debates in Indonesia following the enactment of the 2014 Village Law. That Law explicitly presents the option for a return to adat structures in other regions as well, while granting villages more autonomy. Our central question is whether the same factors that promoted the 'return to the nagari' are likely to facilitate a similar process elsewhere in Indonesia. What can practitioners, policy-makers and researchers engaged in the latest wave of village governance transformations in Indonesia learn from the experiences in West Sumatra?
During the first decades of the 20th century several scholars engaged in studies that would lay t... more During the first decades of the 20th century several scholars engaged in studies that would lay the foundations for legal pluralism. This article considers how the work of one of these founders, Cornelis van Vollenhoven, has influenced legal development in Indonesia. It outlines Van Vollenhoven’s arguments to defend the existence of non-state law and compares them with those of his contemporaries Eugen Ehrlich and Bronislaw Malinowski. All three authors developed their ideas to counter the hegemonic narrative of modern state law; Van Vollenhoven and Malinowski to denounce the subjection of ‘uncivilised peoples’ to this law, Ehrlich to reject legal formalism and the central role of jurists in producing it. The next part of the article discusses how after Independence Indonesia has pursued legal unification, with limited success and various results. The unification of land law has led to widespread dispossession of small peasants; in marriage law legal pluralism functions because local officials and courts mediate between state law and local normative systems; and in Aceh the officially recognised legal pluralism is deployed by local officials and the police to accommodate local ideas about justice. This seems to indicate that state recognition of legal pluralism still promotes social justice, just as Van Vollenhoven argued a century ago.
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