Sudargo Gautama and the Development of Indonesian Public Order: A Study on the Application of Public Order Doctrine in a Pluralistic Legal System

Abstract

A sweeping proviso that protects basic or fundamental interests of a legal system is known in various names – ordre public, public policy, public order, government’s interest or Vorbehaltklausel. This study focuses on the concept of Indonesian public order in private international law. It argues that Indonesia has extraordinary layers of pluralism with respect to its people, statehood and law. Indonesian history is filled with the pursuit of nationhood while protecting diversity. The legal system has been the unifying instrument for the nation. However the selected cases on public order show that the legal system still lacks in coherence. Indonesian courts have treated public order argument inconsistently. A prima facie observation may find Indonesian public order unintelligible, and the courts have gained notoriety for it. This study proposes a different perspective. It sees public order in light of Indonesia’s legal pluralism and the stages of legal development. With regard to responding to public order argument this study finds that the courts faced systemic and practical challenges. Legal pluralism – in its broadest sense – creates confusion on the part of the court. The stages of legal development shows that (in)dependent judiciary reacted differently to public order argument. Inconsistent treatment is due to lack of operable framework. The study finds that Gautama doctrine for Indonesian public order can provide consistent application and coherence to the legal system. The doctrine can serve as cohesion for the legal system and an operable framework for Indonesian private international law by striking a balance between legal unity and legal pluralism, national interests and international demands.