About the Course
In addition to studying Indonesian and Malaysian law, we will examine the important cultural, economic and religious settings in which the law operates. To this end, we will not confine ourselves to the classroom. Field trips will include visits to sites of legal and/or cultural significance, including courts, prisons and religious sites.
Malaysia has a culturally heterogeneous population of approximately 28.3 million, comprising 65.1 per cent Malay (Muslim), 26 per cent Chinese, 7.7 per cent Indian and 1.2 per cent others. Since Independence from the British in 1957, the challenge has always been to tap this rich cultural mix for the economic and social betterment of the country whilst at the same time keeping a lid on inter-ethnic tensions. The Malaysian Constitution, based on the model proposed by the colonial Reid Commission, forged a ‘social contract’ on Independence in which Chinese and Indian immigrants would be given citizenship and the rights to practice their cultural traditions in return for recognising the ‘special privileges’ of the Malays, which included the right to govern. The so-called ‘social contract’ has come under strain on a number of occasions, specifically in 1969 when ethnic riots threatened to de-stabilise the country. Since then, the Malaysian government, while generally pursuing a liberal economic agenda, has sought to control the direction of the economy and protect the social, political, religious and economic fabric of the country through affirmative action policies, rules on foreign investment, tight security laws and promotion of the rights of the religious majority, along with certain protections of religious freedoms for other ethnic minorities. During the tenure of former Prime Minister Dr Mahathir Mohamed, Malaysia gained a reputation for being dynamic and one of the ‘tigers of Asia’. He also demonstrated that his country could achieve economic development whilst also being ‘Islamic’. This reputation, however, was purchased at a ‘social cost’ with western governments, including Australia’s, criticising the Mahathir government for its alleged violation of human rights and lip service given to multiculturalism and legal pluralism.
With its population of almost 250 million, Indonesia is the world’s fourth most populous nation. It has a stable and consistently-growing economy that has, thus far, largely withstood recent global economic downturns. It has achieved many remarkable political and legal reforms since 1998, when former President Soeharto resigned after 32 years of authoritarian rule. The 1945 Constitution, once executive-heavy and unenforceable against the state, has been significantly amended. It now contains a world-standard Bill of Rights. A Constitutional Court (Mahkamah Konstitusi) has been established to ensure that the national legislature upholds those rights. The central government’s monopoly on power has been diluted by decentralising many of its functions to democratically-elected provincial and local parliaments and officials. The nation is now perhaps Southeast Asia’s most fully-functioning and vibrant democracy. The judiciary under the Supreme Court (Mahkamah Agung), once subservient to the whims of the state, is now formally independent.
These reforms are far from complete, however. For example, one legacy of Soeharto’s reign has proved difficult to dislodge: pervasive corruption, which distorts many aspects of Indonesia’s legal system, from lawmaking through to judicial decision-making. Many of the reforms have also spawned new issues and unintended problems, which we discuss in this course.
During the week in Indonesia, students will learn the fundamentals of the Indonesian legal system. Instruction will be geared towards not only those who want to practice commercial law in Indonesia, but also those who are interested in other areas, including law reform, human rights, constitutional law, environmental law and criminal law.
We will focus on the place of Islamic law within the Indonesian legal system and discuss the right to religious freedom. Indonesia has more Muslims than any other country in the world and has, for many decades, been renowned for its inclusivity and tolerance of difference. However in recent years, religious intolerance has increased with persecution of the Ahmadiyah sect and various Christian groups. We will also discuss customary law (adat), which is still adhered to in Indonesia’s many vast rural areas, often in disregard of the otherwise applicable state law.