Academic journal article Washington International Law Journal

The Training, Appointment, and Supervision of Islamic Lawyers in Indonesia

Academic journal article Washington International Law Journal

The Training, Appointment, and Supervision of Islamic Lawyers in Indonesia

Article excerpt

I. The Evolution of Islamic Lawyering

The history of Islamic lawyering in Indonesia is inseparable from the history of Indonesian lawyering in general. The Islamic legal tradition is primarily concerned with substantive aspects of the law, and the legal practice and the role of lawyers is not the subject of extensive treatment in classical sources.1 As a result, the birth of Islamic lawyering in Indonesia was largely incidental to the development of lawyering in other parts of the legal system.

The development of a system of advocacy in Indonesia resulted primarily from encounters between state institutions and judicial traditions existing in society. In this regard, the experience of the Islamic courts differs little from the experience of the secular courts; in both systems, the appeal of ideas and institutions that originated in the West proved irresistible. As a result, the Western tradition of lawyering has largely shaped the practice of law in Indonesia. Furthermore, because both systems are based on the same model, lawyering in the Islamic courts and the secular courts is very similar.2

The Dutch brought modem lawyering to Indonesia, but the Western tradition of lawyering did not become established in the Islamic courts until many years after the end of colonial mle. The Dutch policy of legal pluralism resulted in the creation of a dual judicial system-one for those designated as Dutch or European and another for those designated as indigenous (inlander). Cases involving European parties were processed before the raad van justifie, while cases involving indigenous parties were heard by the laandrad.3 The raad van justifie used the procedural law contained in Reglement op de Strafvordering ("SV")4 for criminal matters and Reglement op de Rechtsvordering ("RV")5 for civil matters. The laandrad, however, applied the Herzein Indonesisch Reglement ("HIR"), a law of procedure specifically for Indonesians. In contrast to the SV and the RV, the HIR did not recognize the use of lawyers. The premise underlying this arrangement was that the culture of modern lawyering was not suited to indigenous judicial institutions, which emphasized discretionary decision- making rather than procedural regularity and the implementation of uniform rules of general application.

The logic of a modem court system that governed the raad van justifie gave birth to a modern lawyering system for cases involving the colony's European inhabitants. Notably, however, the landraad system also produced a practice of lawyering despite the fact that the use of lawyers was not officially sanctioned in the landraad. In the landraad, the figure who performed functions similar to those of lawyers in the raad van justifie was called the pokrol bambú. While the lawyer in the Dutch courts, typically a Dutchman, had a formal degree in law, the pokrol bambú was from the indigenous population and did not have a formal legal education. The Dutch government took note of this practice and responded with Staatsblad No. 496 of 1927,6 which was specifically intended to differentiate the pokrol bambú from formal lawyers who were subject to a separate regulation, the Reglement op de Rechterlijke Organisatie.7

The pokrol bambú also practiced in the Islamic courts, and the lawyering practice that developed in the landraaden thus became established in the Islamic courts as well. However, while the use of non-professional advocates was not limited to the Islamic courts, practice in the Islamic courts began to diverge from practice in the civil courts after Indonesian independence.8 In the civil courts, the use of formally trained lawyers began to increase around the 1960s. In the Islamic courts, however, the use of pokrol bambú remained common until about the 1970s.9 Although pokrol bambú appeared in only a small percentage of cases in the Islamic courts, there was a persistent need for their services because of the specialized character of the law applied by the courts. …

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