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Being one of the largest emerging and
developing markets in Asia, Indonesia is indeed a key influence in the
Asian economy.
As an Indonesian lawyer, I feel proud but at the same time worried about
how Indonesia will evolve.
Indonesia’s legal system and infrastructure are outdated and may be
ill-suited to keep up with the growth of its economy. While it is
believed that Indonesia is becoming one of Asia’s most powerful
economies, the country’s legal industry however, is not as powerful as
some people may think. At the present moment Indonesia has many
challenges to overcome to become an Asian legal superpower.
Indonesia’s biggest challenge is its obsolete and complicated legal
system as well as weak legal infrastructure. Since independence in 1945,
there has been a general trend toward replacing outdated Dutch laws with
those enacted by the legislative body.
Yet, many Dutch laws remain in place. As a matter of fact, most court
actions taken in Indonesia are still initiated by reference to a
provision in the Civil Code, which is a replica of the 1838 Dutch Civil
Code.
In addition to the civil law system, other legal systems, such as
customary law and Islamic law, are still applied across Indonesia in a
non-western context, and they serve as an influential force in various
aspects such as family and inheritance. Besides, Indonesia has been
enacting many statute laws that are heavily influenced by the common law.
Despite Indonesia’s huge gross domestic product (GDP) and economic growth
of around 6 percent per year in the past few years, in my view, Indonesia
should still be regarded as a “third world” country in terms of the
development of its legal profession, its legal educational and
professional training system, as well as its judicial performance.
Generally, the legal profession in Indonesia remains underdeveloped. The
number of lawyers in Indonesia, a country with a population of more than
240 million, is very low.
The members of the Indonesian Advocates
Association (PERADI) throughout Indonesia are “only” about 22,000. In
Indonesia one lawyer serves about 11,000 people, while in the US the
ratio of lawyers to the population stands at one lawyer for 265
Americans.
Pursuant to the Indonesian Advocates Law, these two roles are fused under
one title: “advocate”. Therefore, from the perspective of the Advocates
Law, when someone has attained the status of an advocate, he or she is
deemed competent to perform in both representing clients in the court
proceedings and giving specialist legal advice to clients on various
matters affecting their legal rights, including transactional work.
While specialization is becoming more and more important to the workings
of the lawyers, it seems that many Indonesian lawyers are still
attempting to be generalists.
Most Indonesian law firms are family owned and, thus, fall behind in
terms of the management and professional approach compared to modern law
firms in developed countries.
Nonetheless, generally speaking Indonesian lawyers have a comparative
strength. Foreign lawyers are not usually able to prevail over their
domestic counterparts’ work endurance, creativity and interpersonal
relationships. Indonesian lawyers generally have the power to withstand
all work related stress, be it physical, emotional or mental. They
usually find it very easy to adapt to any changes.
While Indonesia has many talented individuals who could be developed to
compete with foreign lawyers, there are too many out-of-date and
unnecessary restrictions that Indonesian lawyers are subjected to, which
restrict their ability to compete with foreign lawyers. For instance,
Indonesian lawyers are discouraged from entering into a multi
interdisciplinary partnership or having an outside investor.
Furthermore, Indonesian lawyers are precluded from advertising and
marketing their services.
In Indonesia, only lawyers may have an ownership interest in a law firm
and a legal service provider cannot be incorporated as a company. Only a
“natural person” or “civil partnership” can provide legal services.
On the other hand, in some countries (like Australia and Hong Kong) law
firms are permitted to raise capital through initial public offerings on
the stock market, like most corporations.
That’s why allowing the entry of foreign lawyers into Indonesia without
first putting native lawyers on an equal footing would be considered
unjust and put them at a competitive disadvantage.
While the country’s law schools have prepared young generations to become
future lawyers, many are unprepared to practice as an advocate due to
lack of practical training.
Furthermore, the process to become an advocate in Indonesia is arduous.
For instance, the Advocates Law does not allow them to start their
professional legal practice until they have reached 25 years old and been
granted an advocate certificate, which quite often takes months.
As lawyers have the power to influence the country’s economic growth,
Indonesian legal professional training system needs improvement to ensure
that Indonesian lawyers have the strength of character and competency to
meet both increased expectations and complexity of modern legal work. It
is better to allow young lawyers to practice as early as possible.
Last but not least, the Indonesian court system does not provide
effective and efficient recourses to resolve commercial disputes. The
Civil Procedure Law needs updating as it was not designed to adequately
address commercial or international disputes.
The national court system is understandably regarded with trepidation by
foreign investors. Their most frequent complaints are that judges are
generally unfamiliar with sophisticated commercial transactions; and that
some judges are susceptible to bribery, political influence and the
pressure of public opinion.
As these factors are undoubtedly issues, the quality of the judiciary
must be improved through skill development and intellectual capacity
building.
The best way for us to deal with the challenges is to recognize our
limitations as well as our potential and stop blaming external circumstances.
Through legal reform efforts, Indonesia will be able to lead future
development in Asia. ●
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