Indonesia’s civil law is an opaque mess.
The Indonesian Criminal Code does not make clear what crimes are covered by it and the interpretation is left up to the courts.
And the law is riddled with inconsistencies.
As the country’s top prosecutor put it, “Indonesia’s civil code is very complex”.
But a new book by the Australian legal academic Pauline Croucher has laid bare some of Indonesia’s more basic legal rules.
The book, published on Thursday, argues that the country is in a difficult position to reform its criminal code.
“The problem is not only that the law may not be coherent, but also that the judicial interpretation of the law, and its application to criminal conduct, is extremely variable,” she writes.
She cites the case of the “Muhindo” case, in which a police officer charged with manslaughter in the deaths of a man and his wife was found guilty of manslaughter by a lower court.
But it was overturned by a Supreme Court decision.
And while the Supreme Court overturned the conviction in 2014, in 2017, it was upheld by a separate lower court ruling.
It means that the courts in the country, and indeed across the country in general, interpret the criminal code inconsistently.
Indonesians have been accused of many crimes, including the rape of children, and the misuse of children.
The court decision that overturned the manslaughter conviction, and in which the woman was convicted, also found that the police officer had acted lawfully.
But the new book argues that this case was a perfect illustration of how Indonesia’s criminal code is not coherent.
“This is the most egregious case in the series that I have researched,” Crouger says.
“In that case, a police constable was charged with killing two young children in a playground.
The Supreme Court ruled that the constable’s actions were lawful, but it found that he was not entitled to a trial on the grounds that the woman had been unlawfully restrained during the course of her arrest.”
The court ruling in the “Fahmida” case led to a retrial, and ultimately, to a new trial, but that one was dismissed because of insufficient evidence.
In that new trial in 2017 there was an appeal.
The woman appealed the decision.
But in that appeal, the woman’s lawyer argued that there was no case against the police constrictor, that there were two conflicting police officers, and that the prosecution had acted illegally in trying to secure a conviction.
The Supreme Court disagreed.
The court found that police officers who are acting lawfully are entitled to fair trials.
The new book’s authors argue that the court case is one example of how the Indonesian criminal code can be misused by judges.
“As we have seen in this case, the Supreme Courts of the country have overturned the convictions of police officers in cases where they have not been fully consistent with the law,” Cawthorn writes.
Croucher’s book, however, suggests that there are some things the Indonesian legal system can do to improve the way it interprets its criminal codes.
She suggests that, in particular, the country should revise its civil law to include a definition of “obscene” conduct that is more in line with the UK’s Sexual Offences Act.
“If it’s not clear which offences are offences, then it’s difficult to bring them to the attention of a judge,” she says.
But, she argues, the new civil law should also allow the police to take legal action against “any individual who engages in obscene conduct”.
Cawtham is concerned that the new criminal code may have the effect of increasing the power of police.
“The courts in Indonesia have not understood the importance of the concept of obscenity in the criminal law.
They have not considered that if they get a conviction of a crime, they can then say, ‘You know what?
You are now a criminal’,” she says, adding that she fears that this could have an impact on the judiciary.
The author of the new article argues that Indonesia needs to reform the criminal laws.
“We need to make sure that the criminal justice system is coherent and that it does not interfere with the independence of the judiciary,” she said.
“I think there is a danger that if we change the law we will not be able to reform our justice system.”