Contestation on inheritance jurisdiction in the past and present
At the start of this essay, I mentioned that in inheritance cases jurisdiction is contested. This contestation occurred between the Civil court and the Islamic court or between the adat court and the Islamic court.
It happened partly because of a 1937 Dutch government policy that minimised the authority of the religious court by removing its authority to deal with inheritance cases and transferring it to the adat court. Hence, the jurisdiction of the adat court was expanded (Lev 1972).After independence, the effort to strengthen adat law promoted by Van Vollenhoven and Ter Haar ran out of steam. One of the reasons was the urge for legal unification while there were few well-educated judges and researchers with expertise in Indonesian adat law. Adat law was considered as an obstacle to progress and perceived as a symbol of naivety and the surrender of Indonesians. Many legal scholars and academics assumed that adat law was not in line with a modern industrial country. Economic progress required a new law, namely, civil law. The desired social revolution needed a law which was better suited to meet the needs of workers and farmers for a better future. Indonesian people should have new, modern law. Therefore, at that time, the leaders of the state considered that adat law was unsuitable and had to be discarded (Lev 2000).
It is not surprising that later, through Emergency Law No. 1 of 1951, Sukarno's regime abolished autonomous courts in some regions. Nonetheless, the Islamic court was maintained. To this day, the jurisdiction of the Islamic court keeps on expanding in fields far beyond inheritance law, including Islamic banking. In 2006, the Law on Islamic courts' Article 49 suggests that there is no longer an option for Muslim litigants in inheritance cases to choose a court and that they are required to turn to the Islamic court.
Three out of the 169 Supreme Court cases studied show that the judge has questioned the issue of jurisdiction of the court. The Supreme Court rejected settling one case on the grounds that inheritance cases among Muslims should be addressed in the religious court. The case was ended without a solution, even though the parties had followed all the procedures in the court of first instance, appellate court, and the Supreme Court.
By contrast, one case was decided in both the Islamic and the civil court (ne bis in idem). The two courts produced two different decisions, with the Islamic court deciding in favour of a second wife and her two daughters, and the civil court in favour of the first biological daughter from a first marriage. However, the Supreme Court did not problematise the competence of jurisdiction of the court, and they settled the essence of the dispute instead.
In another case, the parties referred to different bodies of law. The Minangkabau woman who was the defendant referred to adat law, which gives women protection by granting them access to the matrilineal inheritance right, whereas the man, who was the plaintiff, wished to apply Islamic inheritance law. The Islamic court followed the plaintiff and used Islamic law as a legal reference, a decision upheld by the Supreme Court both in cassation and upon review.
In the past, the contestation over jurisdictions of inheritance dispute occurred between official institutions (State court, adat court, and Islamic court). Today, the conflicting jurisdiction at local levels is getting even more complicated, since it is not limited to the State institutions but also involves many more different local forums and actors. Cianjur is the best example of this. The contestation is between state institutions like the Islamic court and the office of religious affairs (Kantor Urusan Agama/ KUA), and many local forums of ulamas (like the Islamic boarding school and village ulama).
In Cianjur, a normative system which is not known or perceived as not belonging to the Faraid will be categorised as adat law by some ulamas or community member—and even by some women.
It concerns norms such as granting women a portion of the inheritance which is equal to a man's share, and the recognition of the right of an adopted child as an heir. They perceive these kinds of normative references as adat law, even though they themselves do not know what adat law is.It seems that the interpretation of Islamic inheritance law also develops in terms of the time when the inheritance should be divided. According to traditional Islamic inheritance law, inheritance is always associated with death. However, in Depok and Cianjur, people do not always divide the inheritance after the owner of the property (usually the father or husband) dies. The needs of the surviving mother receive some attention from the family so that her needs are prioritised in the use of the inheritance. They do not mind waiting and dividing inheritance after the mother dies. Such social justice is far more common than disputes taken to court.