JPIL Vol 6 Issue 1 2015 - Article 3

INDONESIAN NATIONALISM AND THE CIVIL CONSTITUTION: THE THEORETICAL UNDERPINNING OF THE STATE IS BASED ON SECULARISM AND CUSTOMARY LAW
 
Zia Akhtar
 
Abstract
Indonesia has been undergoing a period of legal reform after the original framework under the constitution in 1945 enacted the five tenets called Pancasila. These inaugurated a secular framework which separated the role of the religious and political sovereign and the country adopted the Dutch - Roman code and fused it with the domestic order.  In the legal system the place of Islam was accorded within a reception theory that absorbed the customary law of adatrecht into the traditional laws of marriage, inheritance and guardianship. This is a concept that served the country during the period of 1949-1969 after which there was a gradual indigenization of the tenets of Pancasila under the New Order. It served to create a philosophical school of jurisprudence that formulated adat within the domestic framework while at the same time acknowledging the secular framework in its ideology. However, the country has now adopted capitalism and the free market reforms that present a challenge to the principles that were set out at the foundation of the state. The question is if the Indonesian concept can sustain the five tenets of Pancasila in a different social environment. This paper argues that by establishing a causal link to the original ideals the state could still be a leader in underwriting the concept of a civil society that merges its customary laws of adat with secularism and Islam.
 

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