Civil Code of Indonesia

Civil Code of Indonesia
States General of the Netherlands
Long title Burgerlijk Wetboek voor Indonesië Kitab Undang-Undang Hukum Perdata
Citation	Staatsblad No. 23 of 1847
Territorial extent	Indonesia
Enacted by	States General of the Netherlands
Royal assent	30 April 1847
Commenced	1 January 1848
Status: In force

The Civil Code of Indonesia (Dutch: Burgerlijk Wetboek van Indonesië, BW), commonly known in Indonesian as Kitab Undang-Undang Hukum Perdata (lit. 'Law Book of Civil Code', derived from Dutch), abbreviated as KUH Perdata), were laws and regulations that form the basis of civil law in Indonesia. Civil law in Indonesia originates from Napoleonic Law, and is codified through Staatsblaad number 23 of 1847.

History

According to historical records, a civil law called the Code Civil des Français was formed in 1804, in which most European referred to them as the Napoleon Code. On 24 May 1806 the Netherlands became a French client state, styled the Kingdom of Holland under Napoleon's brother, Louis Bonaparte in which he was instructed by Napoleon to receive and enact the Napoleonic Code. On 1 January 1811, the Netherlands was annexed by the French Empire and the Napoleonic Code was adopted in unmodified form. Dutch independence was restored with the collapse of French rule in 1813 in which the Kingdom once again pursued codification. Article 100 of the 1814 Constitution refers to a codification based on Dutch law in which various proposals were made between 1816 and 1830. Finally in 1830 a new code was enacted by Parliament which is a mix of influences, mainly from French and Roman-Dutch law.

Relevance to Indonesia

Until 1918, Indonesia was then a Dutch colony with no legislature, which means all laws enacted by the Dutch Parliament was immediately, unless otherwise stated, implemented in the Dutch East Indies. Burgerlijk Wetboek was then modified by the Dutch East Indies government to apply exclusively to Europeans and Foreign Orientals, yet based on Article 2 of the transitional provisions of the 1945 Indonesian Constitution, it states that: "All State Bodies and Regulations that existed until the founding of the Republic of Indonesia on August 17, 1945 shall remain in force, as long as new ones have not been enacted according to the Constitution". This provision allows Burgerlijk Wetboek to retain as Indonesian law, as no substitute has been made. At present, Several provisions contained within the Burgerlijk Wetboek have been regulated separately by various new laws and regulations. For example, relating to land, mortgage rights, and fiduciary.

Legal Challenges

In 1962, the Supreme Court of Indonesia put forward a notion through a circular letter a quo for Burgerlijk Wetboek (BW) to not be considered as a law, but as a document that described a group of unwritten laws. Norms contained in BW are often used by judges in deciding civil disputes between indigenous Pribumi, where in principle, BW should only apply to Europeans and Foreign Orientals.

Through the 2006 Citizenship Act (c.12), racial segregation is considered invalid, where the Indonesian government only recognised two sub-grouping of people, namely Indonesian Citizens and Foreigners. These provisions often becomes a challenge as racial segregation based on Article 131 jo. 163 of the Dutch East Indies constitution (Indische Staatsregeling) is still displayed in so many Dutch inherited law, yet the Indische Staatsregeling itself is non-existence as it was replaced with the Indonesian constitution.