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Legal Matters in Indonesia
"If people do not have access to the law, they cannot know their
rights.
If people do not know their rights, they cannot demand the enforcement
of their rights.
If people are not empowered to demand the enforcement of their rights,
they will be exploited and abused by those with access to power over the
law."
The rule of law in Indonesia is in the process of major reform. Corruption is certainly an important villain in the process of legal development. Another impediment to the development of the rule of law related to systemic barriers to access to regulatory promulgation's.
Regional government offices and courts outside of Jakarta normally experience significant inconvenience in attempting to access the tens of thousands of laws regulations, regulations and decisions in effect and governing our social interactions. It is no wonder that some judges and lawyers are prevented from engaging in pure application of legal analysis to factual situations due to the inability to find the law.
Most people don't realize the fact that the Indonesian government is an extremely adept instrument for the promulgation of laws and regulation. There is a tremendous amount of law on the books. Ana most of it is adequately written though sometimes requiring a bit of a torturous effort towards a reasonable interpretation. Nevertheless, the law is capable of serving its intended function if read and applied in good faith.
The Indonesian government has been making significant efforts to disseminate the law throughout the entire Indonesian archipelago. Given that the construction of law libraries throughout the entire Indonesian archipelago. Given that the construction of law libraries has probably been recognized to be beyond the budgetary needs of the Nation at this time, the government can be praised to some degree for the steps it has taken towards the development of web sited of various departments containing an ever growing quantity of download able laws and regulations.
Unfortunately Indonesia's low telephone density across the Nation and the number of those with access to telephone capable of carrying sufficient band width and clarity interconnect with the internet reduces the effectiveness of the government's internet law dissemination program even further. But that does not mean these government programs are misguided. In fact they are great steps for the Nation.
Although over the last few years the government has made great strides toward the provision of means to access the law, it is still necessary to visit relevant government departments and meet with government officials responsible in particular fields of interest to request assistance in obtaining relevant materials decrees and other promulgation's which govern legal relationships. Depending on the availability of officials, the accuracy and detail of answers provided is at times less than uniform and complete. Certainly more disturbing is the fact that access to governmental departments is still geographically limited to Jakarta, the Nations capital and the seat of government. This, for the more than two hundred million people living outside of the capital, reasonably efficient access tot he law is almost non-existent.
This is true not only for the ordinary citizen. It is also true for government officials including jurists and lawyers residing outside of Jakarta. In my visits to regional government offices and to regional courts, the lack of legal materials relevant to even the most directly related aspects of official duties is alarming.
To perform their duties, government officials are required to exercise discretion which may not comport to the true intentions of legislative promulgation's.
The exercise of discretion in the darkness created by the norm of near complete lack of access to existing black letter law has led to the feeling among the general population that fairness and morality are corrupted. The victims of these circumstances are average citizens who are left feeling powerless to defend themselves through demands for enforcement of laws to which they have no access and thus of which they may have no knowledge.
Economic and legal experts unanimously agree that the number one problem for Indonesian socio-economic development is the need to strengthen the rule of law. Many feel that cries for strengthening of the rule of law have become nothing more than cliché.
It is probably safe to say that almost every international development institution with a presence in Indonesia is involved in at least one program designed to promote the rule of law. But, what tangible tool is placed in the common person's hands to empower the exercise of the human rights expected from a just civil society?
Finding a Good Lawyer
We often receive request for referrals to lawyers. Check our Shops and Services for recommended Lawyers in Jakarta. We also suggest you use the tried and true methods of asking business colleagues who they would recommend. Also, consult with the expat business associations in Jakarta that you are a member of, to see what lawyers they recommend for various matters.
Online Resources on Indonesian Legal System:
Overview of the Indonesian Legal System
Questions and answers below date back to when we had a volunteer answering legal questions:
Dear Andrew, I am an Australian citizen and long-time Indonesian ITAS holder. Several years ago I purchased a house in Jakarta by appointing an Indonesian nominee to hold the Hak Milik land certificate in her name on my behalf. I have recently married a lovely Indonesian lady and would like her to inherit the house in the event of my death. My wife and I have a pre-nuptial agreement and I am aware that I could arrange for the direct transfer of the Hak Milik land certificate from my nominee's name to my wife's name. But I prefer not to do this as I wish to avoid paying taxes which may be due upon the transfer of the land certificate.
So my question is as follows: Can I accomplish my goal by executing a will in Indonesia which states that my wife inherits my house upon my death, even though the Hak Milik land certificate is held in the name of my nominee?
Sincerely,
In love and Land-locked
Dear In love and Land-locked,
A nominee structure for a holding of Hak Milik would likely be interpreted as an agreement engineered for an unlawful purpose and thus be unenforceable. Thus, a bequest of the property to your wife would be difficult to enforce against your nominee. Notwithstanding, there are structures which could provide you with an easily inheritable, devisable and transferable interest in the land. As a foreigner, you could take title to the property in the form of Hak Pakai, which incidence of title could either be granted by the current holder of Hak Milik, or, and preferably, you could obtain transformation of the underlying Hak Milik title into State Land and then take Hak Pakai from the State. That is a much better solution because, provided the land is not likely to be condemned for a public purpose such as a road or park, the State has no reason to deny your renewal upon the end of the right's 20 year term. And, the right can then be transformed back to Hak Milik if you want to sell to an Indonesian citizen later. As another alternative, sometimes we recommend that the relationship between a third party landowner and someone in your situation would be to enter into a long term lease, a loan agreement and a mortgage instrument to take security over the land. This would also permit transfer by inheritance or devise to your wife. But a word of caution: the tax office will not accept an interest free loan which means that you need to make sure you actually pay taxes annually on interest accruing to your benefit. Unfortunately, there is no free lunch and you will incur costs if you wish to create a safe and enforceable structure. As a start, note that my book, Sriro's Desk Reference of Indonesian Law covers these issues in detail.
Good luck,
Andrew
Dear Andrew, Out of fear getting court up in a legal battle of defeat with my company when and ones the day come, I then like to know where I stand as a semi expat in Indonesia. I’m employed on a local contract which has been renewed several times dating back to 1992. Question is if my company (multinational and foreign owned) is obliged to honor me local law severance pays etc if they decide to terminate my contract? There are no specific clause of determination benefits in my contract, and they have recently disappointed me concerning pension benefits which the contract also lack any specifics of
Worried Torben
Dear Worried-lah,
Indonesian labor law seems to be intentionally designed to create ambiguity and uncertainty for expatriate workers. Technically, an expat can only be engaged on a fixed term basis, and fixed term contracts can only be renewed once with a maximum combined term of 3 years.
However, if a fixed term contract doesn't meet certain threshold legal requirements, such as being drafted in Indonesian and signed by an Indonesian and not by a foreigner as personnel manager, then Indonesian labor law states that the fixed term employee shall be deemed a permanent employee. Thus, if you have been working for more than 3 years and/or any of the other requirements mentioned are not satisfied, there is a reasonable argument that you are a permanent employee and should be entitled to all of the separation payments a permanent Indonesian employee should get: severance, work appreciation and compensation for rights payments. Of course, even if you are a fixed term employee, you are still entitled to money for compensation of rights such as unused vacation pay, among others.
Indonesia is also committed to the International Labor Organization conventions which require non-discriminatory treatment for all labor, no matter what their nationalities may be. And, the Indonesian Constitution of 1945 clearly provides that "all persons" have the right to fair and equal treatment under the law and fair and decent treatment in the work environment; as opposed to other constitutional provisions which specifically reserve certain rights only to "Indonesian citizens", such as the right to obtain the same governmental opportunities. Employment separation payments would not be "governmental opportunities" but rather private rights of action against an employer as defined by law.
Notwithstanding the foregoing, it is a tough legal battle to take on an employer under the Indonesian labor law and industrial relations dispute resolution system. Be aware of that and make sure you have an exit strategy well in advance that makes good sense. And, don't worry-lah! Just understand clearly that the current legal regime is not intended to protect expats. Once realize that, you can make appropriate plans.
With best wishes,
Andrew
Dear Andrew, I am a European Union citizen living in Bali who has just broken up with his Balinese girlfriend. When she informed me 4 weeks ago that we were expecting a child, I was asked her to marry me; which at the time I was very happy to do. Now she has rejected my proposal and is going to have our child anyway. What are my visitation & participation rights under Indonesian law? I want to be involved with my child as much as possible even if later on my ex-fiancée does not want me there. Is there a set amount by law that I need to provide to maintain & educate my child? Whose nationality will the child be entitled to? Your help would be most appreciated.
Sincerely, “Anxious for my child’s future”
Dear Anxious,
The Indonesian Civil Code provides that the father of a child borne out
of wedlock is not entitled to parental rights unless the mother agrees
to an acknowledgement of paternity. However, recently enacted Law No.
23 of 2003 concerning Child Protection conflicts with, and supercedes,
the foregoing Civil Code provision by guaranteeing that every child has
the right to know his/her parents to be raised by them. A child also has
the absolute right to support from his/her parents. Law No. 23 of 2004
concerning the Prevention of Domestic Violence protects the psychological
well being of children and, in my view, the prevention by the mother of
the development of a proper relationship with the father would constitute
psychological abuse which should be deemed prohibited under Law No. 23.
Law No. 23 provides a parent with the right to bring an action to obtain
a protective order to rectify these situations on an ex parte basis (meaning
that only you would appear, and without the necessity of notice to the
mother). However, there are practical difficulties to enforcement of these
orders.
Whether married or not, your child will have dual citizenship rights under
the new Law No. 12 of 2006 concerning Citizenship, though as a practical
matter, it would be necessary to obtain the mother's acknowledgment of
your paternity prior to your embassy agreeing to issue a passport. If
you have any reason to believe that the mother may deny your paternity,
I would suggest that you begin to accumulate evidence in your favor, such
as through voice recordings of her admitting to your paternity or perhaps
a DNA test if you could arrange for a sample from the child. I would caution
you not to tip your hand in the event you have any indication or feeling
that the mother may deny your paternity. The likely result will be that
you will have no access to evidence thereafter. If she then refuses to
acknowledge your paternity before a notary or the Indonesian District
Court (depending on your embassy's requirements), you would then be wise
to consider the appointment of legal counsel in Bali to bring a lawsuit
for purposes of obtaining a judicial decree confirming your paternity.
With best wishes, Andrew
Dear Andrew, I am a British
lady married to a Chinese Indonesian. I recently have been having problems
with my marriage and am currently considering a divorce. We were married
here in Jakarta and have a son together. Could you please advise me as
to where I would stand with regards to financial support from him and
the law with regards to my son. My husband is quite wealthy and I am worried
that he will be able to bypass the correct legal systems in place here.
Thank you, Love Lost
Dear Love Lost,
In an Indonesia civil law marriage (a non-Moslem marriage) which was not
preceded by a prenuptial agreement, all property and income acquired during
marriage is considered community property and each spouse has a right
to half of it. All property acquired before marriage and all property
acquired during marriage by gift or inheritance is separate property and
neither spouse would not have a right to a share in such property of the
other spouse. Thus, in order to ensure that you obtain your rights, you
must be able to prove through documentation the existence of marital property.
I would suggest that you begin collecting that information. Unfortunately,
as you rightly point out, justice is often, though not always, bought
and sold. Your best defense is nevertheless evidence. Collect as much
as you can. Regarding support, the District Court may obligate an ex-husband
to pay alimony according to his capabilities and, in addition to any alimony
obligations, a father is obligated to provide for all of his children's
living costs and education even following divorce. Divorce is a terrible
disruption to the well being of a child. I do hope you and your husband
are able to reconcile your differences.
With best wishes, Andrew
Dear Andrew, I've lost someone important to me. I can't really say why this person
is important to me in public, but i really need your help in finding him.
Can you please give me some suggestions on how i might find him. Thank
you very much for any thoughts you may have on this matter.
Dear Searching for Someone, Attempting
to locate a missing person can be a very emotional undertaking, especially
when the person is perhaps a past lover, a child, a runaway, a close friend
or relative. Other kinds of missing persons may include beneficiaries
of estates, witnesses to a criminal or civil event or a school friend.
There are may ways to find a missing person. Certainly, there are a few
basic factors which would assist in the determination of the most appropriate
methodology for your search. For instance, and foremost, would relate
to the last known whereabouts of the person. Do you at least know the
probable country of the person's current residence? Is the person a child,
an adult, male, female, have you ever met the person? How long has the
person been missing? There are so many basic questions to ask and answer.
Every piece of information about your missing person may be crucial in
location efforts.
There are then several actions you can take to conduct your search. You
could hire a private investigator, file missing persons reports, check
the internet, telephone directories, alumni associations, professional
organizations, etc. There are also numerous foundations and charitable
organizations which offer helpful assistance, support and programs designed
to help with all aspects of the loss of a person and efforts to find that
person.
Writing to me is a good start. Next, perhaps you should begin to acquaint
yourself with some of the more detailed options available. The internet
is an excellent source of information. Please search "missing person"
in your favorite browser and I am sure you will come up with some useful
leads.
With best wishes, Andrew
Dear Andrew, I am an Indonesian woman, currently living in the United States under a “Green Card”. I was previously married to an American man under Islamic law in Indonesia. My husband and I moved to the US after our marriage ceremony in Indonesia and we married again in the US under US law. Let’s just say my marriage and husband didn’t really satisfy me and for a number of reasons, we validly divorced in the US. There is another American man who seems quite interested in me and perhaps he will ask me to marry him soon. I’ve already picked out the ring! But, I’m worried because I wonder if I should take any legal steps in Indonesia to finalize my previous divorce under Indonesian law. I don’t want to be accused of polyandry later.
Sincerely, Ball & Chain
Dear Ball & Chain, I’m so sorry to hear about your divorce. But it’s good to know that you are ready to give it another try. You are right, a US divorce court decision may not be deemed legally valid for purposes of Indonesian law. You should appoint an Indonesian lawyer to submit a petition to the Indonesian Religious Court seeking their approval of your divorce.
Your ex-USA-current-Indonesia husband need not appear in the court proceedings and, if you appoint an Indonesian lawyer, you can probably conduct the entire process while you remain in the USA. Your ex-USA-current-Indonesia husband will receive notice of the Religious Court hearings through diplomatic channels, which could take a few months.
The existing US divorce court decision should be legalized by the Indonesian Embassy or Consulate nearest you in the US and sent to your Indonesian lawyer who will then obtain a certified translation into the Indonesian language. You should call the nearest Indonesian Consular Office/Embassy and they will tell you exactly how to obtain legalization. The legalized decision and translation would then be submitted as evidence in support of your divorce petition to the Indonesian Religious Court. Following the Indonesian Religious Court’s decision, which we expect would be in your favor unless your ex-USA-current-Indonesia husband objects to the divorce. Once you obtain the decision from the Indonesian Religious Court, you may legally change your name from “Ball & Chain” to “Free and Easy”. Here’s to your active love life! Cheers and best of luck in your new romance.
Sincerely, Andrew
Dear Andrew,
I am an American citizen with a beautiful Balinese wife and we have just had our first daughter – who by the way looks nothing like me! I’m currently involved in the process of moving my family to the US and in that regard, we are trying to obtain US citizenship for my daughter. As part of the process, the US Embassy wants me to establish paternity and they say they will accept statements from my wife and I with my daughter present if we all appear at the US Embassy. But, frankly, I really want to be sure myself. Could I get a DNA test done in Jakarta?
Sincerely, Definitely DNA
Dear Definitely DNA, I can certainly understand your desire to definitively prove your blood connection to your daughter in support of US immigration applications. And, there is really no better way of doing so than DNA testing. While the US State Department deems paternity to be sufficiently established by appearance of both parents and the child at the US Embassy in Jakarta in conjunction with proof that you and your wife were in the same geographic area during the probable time of conception, one never knows.
The US State Department would require a DNA test if an alleged father denies paternity. Blood tests for DNA testing can be done either in the US or in Indonesia. Be careful to ensure that communications are directly between the US Embassy and the testing laboratory with the test results delivered directly from the lab to the US Embassy.
There are a number of labs who will conduct the test. Perhaps one of the following two labs would be convenient for you:
| Mahakam Laboratory Jalan Mahakam II/2 Kebayoran Baru, South Jakarta Tel. (62-21) 723 3210 Contact: Ms. Fatma |
or |
Johar Laboratory Jalan Raya Johar 1A Menteng, Central Jakarta Tel. (62-21) 24370 Contact: Ms. Is. |
The laboratory will require that both you and your wife and child to come to the lab at the same time for testing. You and your wife will be required to: (i) complete a DNA testing application form; (ii) provide copies of passports and/or identity cards along with a showing of originals for verification; and (iii) provide one 3cmX4cm passport photograph of you, your wife and child.
Neither you, your wife parents or child should have undergone a blood transfusion within six months prior to the test, suffer from leukemia, and/or have received a spinal cord implant. Costs for a DNA test range from between USD850 to USD1,000 and results are generally available after about two weeks.
Good luck, Andrew.