Concluding remark

This research tried to answer the following questions: to what extent are women's rights taken into account in the various legal debates in inheritance court trials? To what extent are judges concerned about women's access to justice in inheritance cases? Is the women's contribution to the family and to the local society counted in deciding the proportion of women in the inheritance share? As I demonstrated, generally speaking, there has been progress in court decisions, including those of the Supreme Court.

The Supreme Court has played an important role in promoting women's inheritance rights. The progressive considerations of the Supreme Court judges are beyond what has been traditionally regulated in Islamic inheritance law as well as adat. Promoting access to justice for women may mean that an adat norm is put aside in inheritance law or that the same is done with a religious norm in Islamic law. A rigid interpretation of adat as well as Islamic inheritance law, which is not in favour of women, is no longer the norm for judges.

To understand the gradual changing of development in promoting women's right to inheritance, the whole setting of politics behind the court trial and the history of Indonesian judiciary system should be understood. This study points out that inheritance disputes can be a window through which to view the history of the Indonesian law by providing legal data on how others have negotiated the conflicting and different inheritance laws and court jurisdictions. Inheritance cases can also highlight the contestation and negotiation between the state legal institutions and the existing forums outside the court, which exist in the community.

The progress of the Supreme Court's decisions in inheritance is the result of a long historical debate in the Supreme Court, which began in its early days. The debate was an attempt by the judges to accommodate the development of adat law in the first place. These efforts to provide justice for women through the decisions of the Supreme Court were legitimised by the consideration that women participated in the country's independence movement, an idea pioneered in particular by Chief Justice Wiryono Prodjodikoro.

Given the history of decisions of the Supreme Court in its early days, judges' current decisions, which provide access to justice for women in the present time, are not something new. If we look at the decisions of the judges and trial sessions in inheritance cases, it appears that the same questions are still raised—whether a woman (wife or daughter) is an heir or not, and how big her share of inheritance is—even if many such matters have been long decided in favour of women.

Gradual change is reflected in some progressive decisions, but there are always also a few conservative ones. This presumably relates to the lack of a tradition in Indonesian law that jurisprudence is an important source of law. Precedents are still not considered binding, meaning that they need not be followed or even referred to. This is quite surprising considering the fact that the legal system of Dutch and Indonesian law have the same root and that in the Netherlands, precedents play an all­important role.

At the local level, the direction of the ‘living' Islamic inheritance law is likewise still characterised by debates and different interpretations of the actors about whether women are heirs and how big their share is. In this case, even though the main reference of the ulama is Shariah, there are differences in the interpretation of inheritance rights for women.

Contestation of jurisdiction at the local level also occurs between dispute settlement forums in the community and the State court (the Islamic court). This study shows that the disputing parties see the Islamic court as the last resort in the settlement of inheritance, such as when there is a need to capitalise the estate or when a dispute cannot be resolved at the family level or by the help of ulama.

Regarding the actors who play an important role at the local level in determining women's rights in inheritance—which are the ulama, or in the family, the father or brother—this research indicates that there is always a possibility of negotiation, which provides more space for those seeking justice for women. Islamic inheritance law and adat law may be construed in accordance with the demands of society and women's sense of justice.

Finally, this research left another question to be addressed by the next researchers in this field. In the Supreme Court and the Islamic court, the number of female judges is increasing, which was not the case in the early and pre-reform period. Does the growing number of female judges have any correlation with decisions on inheritance that are likely to provide access to justice for women?

Notes

1 Wiryono Prodjodikoro was the chairman of Landraad, and published several articles on the adat law prior to the Japanese occupation. In 1947, he became a judge of the Supreme Court, and later became the chief justice of the Supreme Court in 1952. He was associated with the National Party and was an observer of the issues of social reform (Lev 1962).

2 According to Daniel S Lev (2000, 114), Judge Wirjono prepared a paper entitled: “Efforts to Improve Inheritance Law in Indonesia” for the congress of Indonesian Lawyers Association in 1959.

3 The data about cases from 1952, 1957, 1959, and 1960 are quoted from Dan S. Lev (1962; 1972).

4 In Nanggroe Aceh Darussalam Province, the Religious courts are named Mahkamah Syar’iyah (Syar’iyah Courts) and are invested with jurisdiction pursuant to Law No. 18 of 2001, Qanun No. 10 of 2002, and Presidential Decision 11/2003. The jurisdiction of the Mahkamah Syar’iyah in NAD province includes a number of criminal matters.

5 Ibid.

6 Religious courts acquired this jurisdiction pursuant to Law N0.7 of 1989 and Law N0.3 of 2006 on the Religious Judiciary. Their jurisdiction includes: (ι) divorce (included in marriage cases), (2) inheritance, wasiat [wills and testaments], and hibah [charitable bequests], which are carried out in accordance with Islamic law; (3) wakaf [charitable trusts] and shadaqah [other forms of alms]; (4) infaq and zakat [charitable donations/ alms]; and (5) syari'ah economy.

7 Profil Peradilan Agama, Direktorat Jenderal Badan Peradilan Agama Tahun 2009. See www.Badilag.net.