Indonesian Law (9780191665578) by Lindsey, Tim -- Read -- Imperial Library of Trantor

Index

Cover Title Page Copyright Page Dedication Contents List of Figures and Tables Terminology and Citation Table of Cases Table of Legislation List of Abbreviations I. The Legal System

1. The Constitution and State Institutions

Introduction Indonesia’s Constitutions

The 1945 Constitution The Constitution of the Federal Republic of Indonesia (1949) and the Interim Constitution of 1950 The return to the 1945 Constitution The Four Amendments

The Constitution and Constitutional Institutions

Pancasila The Jakarta Charter State and sovereignty The MPR The DPR The DPD General elections The executive The judiciary Regional government Traditional communities and adat Law and security Human rights Finance

Extra-Constitutional State Agencies

The Executive State administration Law and security Human rights Finance The media

2. Indonesian Laws and Lawmaking

Introduction Structure of Indonesian Laws

Elucidations Elucidations in the courts

The Hierarchy of Laws

The Constitution Pancasila Decisions of the People’s Consultative Assembly Statutes and legislative processes The lawmaking process Critiques of the legislative process Interim emergency laws Regulations Government regulations Presidential regulations Regional regulations (Perda)

Operation of the Hierarchy

Commonly used legal instruments not included in the hierarchy itself Commonly used instruments not mentioned in Articles 7 and 8 Decisions versus regulations Case study: ministerial regulations Delegation of lawmaking power Resolving conflicts

3. Decentralization

Introduction Legal Framework for Regional Autonomy Relative Jurisdictions Government Review of Perda Judicial Review of Perda The Future

4. The Judicial System

Introduction Judicial Decision-Making

Applying yurisprudensi Doctrine Statutory interpretation Judicial career path

Post-Soeharto Judicial Reforms Overview of Jurisdiction and Appeals

First instance courts Provincial appeals courts The Supreme Court Enforcement of judicial decisions

5. The Constitutional Court

Introduction Jurisdiction Judicial Review

Usurping legislative power? Conditional constitutionality Limitations

A Model for Reform?

6. The Legal Profession

Introduction Structure of the Legal Profession Advocates

An advocates’ monopoly? Accredited legal aid lawyers Labour unions and business owner organizations Admission to practice Bar associations Rights and duties of advocates Code of Conduct Fees and pro bono work

Notaries

Appointment Rights and obligations Language of deeds Regulatory oversight Conveyancing fraud

Foreign Lawyers

Restrictions on practice Foreign lawyers in Indonesian law firms Permission to work as a foreign lawyer

II. Land Law

7. Traditional and Customary Law: Adat

Introduction

What is adat? Diversity Adat as ‘law’ Adat as process Who follows adat?

History of Adat

Land law and adat Adat in the courts Adat as pre-trial mediation Adat in criminal cases

Adat in the Post-Soeharto Era

Regional autonomy and adat The Constitutional Court and adat

False Hope? The Recognition Problem

8. Land Law and Forestry

Introduction Agrarian Law: Registrable Rights

Ownership rights (hak milik) Cultivation rights (hak guna usaha) Building rights (hak guna bangunan) Usage rights (hak pakai) Leasehold (hak sewa) Strata title Securities Land rights and foreigners Land registration State land acquisition

Customary Land Rights Forests

Case study: REDD+ Forestry governance and jurisdictional conflict Political will?

9. Environmental Law

Introduction Legal Framework

The EPML 2009 Environmental impact assessments and environmental permits Environmental standards Monitoring and auditing for compliance

Environmental Management: Authority, Conflict, and Fragmentation

Horizontal conflict Vertical conflict

Administrative and Criminal Enforcement

Environment-related litigation Citizen lawsuits

Case Study: Sidoarjo Mudflow

III. Criminal Law

10. Substantive Criminal Law

Introduction The Codes

Criminal Code (KUHP) ‘Special’ criminal laws Regional Criminal Laws Traditional customary criminal law

The Criminal Code

Book I: General Provisions Books II and III: Offences Reform of the Criminal Code Draft Bill for reform of KUHP

Aceh’s Islamic Criminal Code, the Qanun Jinayat

Offences Exclusions, defences, and aggravating factors Sentencing and punishment Critiques Compensation and rehabilitation Judicial challenge

11. Criminal Procedure: Pre-Trial

Introduction

Investigation Rights of the accused Challenges to arrest or detention Prosecution

12. Criminal Procedure: Trials and Appeals

Introduction Trial Procedure

Presumption of innocence Evidence and witnesses

Appeals

Appeals against acquittals Reconsideration Compensation and rehabilitation

Other Matters

Clemency Remissions Conditional release and leave Life imprisonment Extradition

KUHAP Reform Schapelle Corby Case Study

Denpasar District Court trial Appeal and cassation Reconsideration (Peninjauan Kembali) Clemency application Remissions and parole

13. Human Rights Law

Introduction International Law Instruments on Human Rights Ratified by Indonesia

Universal Declaration of Human Rights Convention on the Elimination of All Forms of Discrimination Against Women Convention on the Rights of the Child Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Convention on the Rights of Persons with Disabilities Convention on the Elimination of All Forms of Racial Discrimination

Domestic Human Rights Law 1945 Constitution

Human Rights Law Human Rights Court Law The Child Protection Law Truth and Reconciliation Commission Law Domestic Violence Law Discrimination Law Disability Law

National Human Rights Commissions

National Commission on Human Rights Indonesian Child Protection Commission National Commission on Violence Against Women

Human Rights Enforcement: Case Studies

East Timor (now Timor Leste) Tanjung Priok Trisakti, Semanggi I, and Semanggi II

14. Corruption Law

Introduction

Background

Post-Soeharto Reforms

Anti-Corruption Law The KPK and its jurisdiction The anti-corruption court Performance of the KPK and Tipikor Court The two-track system and 2009 ACC Law Pushback

Case Study: The Judicial Mafia

Modus Scope of the problem

The Future of Anti-Corruption Reform in Indonesia

IV. Commercial Law

15. The Civil Code, Civil Liability, and Contract Law

Introduction The Civil Code The Commercial Code Civil Liability

Interpretation of Article 1365 Remedies for wrongful act

Vicarious Liability Agency Contracts

Elements of a contract Specific types of contracts E-commerce contracts Construction contracts

16. Company Law

Introduction Companies and Other Business Entities Partnerships

Establishment of partnerships

Cooperatives Companies

Limited liability Incorporation Articles of association Shares and capital Capital reduction Annual general meetings Publicly listed companies

Corporate Governance

Voluntary Code of Good Corporate Governance Shareholder approval for certain material transactions Conflicts of interest and related-party transactions Audit committees Other efforts to strengthen corporate governance Ongoing problems of corporate governance

Shari’a Companies Corporate Crime Mergers and Acquisitions

Mergers Acquisitions Regulations of mergers and acquisitions

State-Owned Enterprises

Public (state-owned) companies: Perusahaan Umum/Perum State share companies: Perusahaan Perseroan/Persero

17. Labour Law

Introduction General Conditions of Employment

Working hours Minimum wages and overtime Annual bonuses Leave Social security Anti-discrimination and equal opportunity Trade unions and collective bargaining Industrial action and the right to strike Collective bargaining agreements Special categories of workers Flexible employment arrangements Termination Labour inspections Labour dispute resolution

18. Foreign Investment

Introduction The Foreign Investment Law

Requirements and obligations Inducements and facilities Restrictions

The Constitutional Court Case Study: Mining Sector Investment

Divestment Onshore processing Analysis

Arbitration

Challenging arbitral awards Judicial enforcement of arbitral awards Bilateral investment treaties and investor–state arbitration

The Indonesian Investment Guarantee Fund

19. Financial Laws: Tax, Insolvency, and Banking

Introduction Taxation Law

Corporate taxation Regional taxation Tax compliance Tax offences

Bankruptcy, Insolvency, and Liquidation Law

Applications for bankruptcy Bankruptcy proceedings Consequences of bankruptcy Liquidation

Banking

Bank Indonesia Financial Services Authority (Otoritas Jasa Keuangan) The Indonesian Bank Restructuring Agency Indonesian Deposit Insurance Corporation Commercial banks Corporate governance Consumer protections Anti-money laundering measures

Rural Banks

Legal form and ownership Lending restrictions

Islamic Banking

Activities and defining features Islamic finance instruments Investment in Islamic banks Dispute resolution

20. Competition Law

Introduction

Anti-competitive agreements Anti-competitive activities Dominant position Mergers and acquisitions Exceptions to the Competition Law

Donggi-Senoro Case The Competition Commission

Tasks and authority Case data Remedies and sanctions KPPU structure and staff appointment KPPU regulations Overlap with the Corruption Eradication Commission The Commission and the government

21. Media Law

Introduction Legislative Framework of Media Regulation Legal Obligations of Media

Print media Broadcast media

Oversight of the Media

Print: The Indonesian Press Council Broadcasting oversight

Media Ownership Laws

Print Broadcast Convergence

Freedom of the Press

Freedom to establish media enterprises Professional associations Professional ethics Protection of journalists Press freedom and the Law on the Management of Social Conflict Challenges to press freedom

Restrictions on Media Content

Print Broadcast Censorship

Right to Privacy Defamation

Criminal defamation Defamation at civil law

Freedom of Information

Freedom of information and state secrecy laws

V. Private Law

22. Marriage, Divorce, and Inheritance

Introduction Marriage Law

Age of marriage Foreign marriage Civil servants Muslim marriage Non-Muslim marriage Interfaith marriage

Divorce Law

Muslim divorce Non-Muslim divorce

Inheritance Law

Muslim inheritance Non-Muslim inheritance Adat and inheritance

Glossary Bibliography Index

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