(2010) JLP 61: 1-30
This paper examines the contest between the clams to jurisdiction of shari’a courts and other tribunals in the framework of dynamic legal pluralism in Aceh, Indonesia. During Aceh’s sultanates, Islamic law and adat co-existed and at times were hardly distinguished. The Dutch colonial presence contributed to sharper demarcations between shari’a and adat, the Dutch policies tending to support adat institutions and adat leaders. In post-independence Indonesia the colonial legacy of legal pluralism continued with some modifications. While adat legal institutions (peradilan desa) were largely eliminated in the 1950s for the sake of Indonesian unity and judicial integrity, adat norms were retained and continued to be applied by the state civil courts (pengadilan negeri). Some particular areas of Islamic law were applied by an Indonesian system of state religious courts (pengadilan agama), and Indonesia developed a complex system of legal pluralism that allowed a variety of legal sub-systems to be operative in the realm of a single sovereign state power.
Partly in response to the frustration of Islamic interests, a rebellion arose in the 1950s aimed at Acehnese independence from Indonesia. In response, on the ground of ‘unity and the unitary nation’, the New Order regime (1968–1998) sought to reinforce legal centralism by issuing laws which effectively abolished the special status of Islamic religious courts in the province. Thereafter, in the post-New Order era the willingness of the central government to allow more legal pluralism in Aceh appeared to be an initial step towards the political peace process. The central government believed that greater local authority over religion, customs and education would overcome the problems resulting from violent conflict. Indonesian legal policy has dramatically shifted to include the principle of ‘legal distinction’, according to which particular groups of citizens have certain specific laws applicable exclusively to them. The tsunami that caused severe damage in December 2004 created a surge of momentum for the further implementation of the shari’a, including the actual authority of the shari’a court. It resulted in higher case-loads for courts, including the shari’a court, and it is possible that the international relief effort brought in international actors who have been influential in deepening the existing configuration of legal pluralism in Aceh.
All of these processes have involved contestation between the different laws and courts, played out in complex institutional settings. To explore these a detailed study is made of the written laws and the actual practice, and case-studies are examined. The course of dynamic legal pluralism has not yet ended, and in practice the different legal orders in Aceh continue their contests.