Eubios Journal of Asian andInternational Bioethics
EJAIB Vol. 25 (5) November 2015
www.eubios.info ISSN 1173-2571
Official Journal of the Asian Bioethics Association (ABA)

Copyright ©2015 Eubios Ethics Institute(All rights reserved, for commercial reproductions).

Contents

page
209

Editorial: Moulding our Minds- Darryl Macer
Mindfulness techniques in schools. Academic &personal development of participants
210- Lara López-Hernáez
Informed consent in dental practice in Bangladesh: A
survey on dental practitioners’ knowledge, attitudes andawareness
216- Shahana Dastagir
Legal Pluralism In Post-Colonial Developing Countries:
The Case of Indonesia
227- Hilaire Tegnan and Saldi Isra
ABA Renewal and EJAIB Subscription
240

EJAIB Editor: Darryl Macer
Associate Editors
Jayapaul Azariah (All India Bioethics Association, India),
Masahiro Morioka (Osaka Prefectural University, Japan).
Editorial Board: Akira Akabayashi (Japan), Sahin Aksoy(Turkey), Martha Marcela Rodriguez Alanis (Mexico), Angeles
Tan Alora (Philippines), Atsushi Asai (Japan), Alireza Bagheri(Iran), Gerhold Becker (Germany), Shamima Lasker(Bangladesh), Minakshi Bhardwaj (UK), Christian Byk (IALES;
France), Ken Daniels (New Zealand), Leonardo de Castro(The Philippines), Ole Doering (Germany), Amarbayasgalan
Dorjderem (Mongolia), Dena Hsin (Taiwan), Rihito Kimura(Japan), Abby Lippman (Canada), Margaret Lock (Canada),
Umar Jenie (Indonesia), Nobuko Yasuhara Macer (Japan),Anwar Nasim (Pakistan), Jing-Bao Nie (China, New Zealand),
Pinit Ratanakul (Thailand), Qiu Ren Zong (China), Hyakudai
Sakamoto (Japan), Sang-yong Song (Republic of Korea);
Noritoshi Tanida (Japan), Ananya Tritipthumrongchok(Thailand), Yanguang Wang (China), Daniel Wikler (USA),
Jeong Ro Yoon (Republic of Korea).

Editorial address, and all correspondence to:Prof. Darryl Macer, Ph.D., Hon.D.
Provost, American University of Sovereign Nations(AUSN), 8840 East Chaparral Road, Suite 285,
Scottsdale, Arizona, 85250 USA
Email: darryl@eubios.info
http://www.eubios.info

Editorial: Moulding our Minds
This issue includes three papers that might at firstlook appear not to have much connection, however,they represent three aspects of the way that bioethics is
associated with reshaping our minds.
The first is by Professor Lara López-Hernáez who iscurrently in resident at AUSN Arizona exploring
mindfulness techniques for personal development. The
results in schools, and in other circumstances suggestthat these practices can help enhance mental wellbeing and also outcomes. It will be interesting to see its
relationshiptodecision-making
andbioethics
education.
The second is results of a AUSN Masters thesis
research on the situation of Informed consent in dental
practice in Bangladesh through a survey on dental
practitioners’ knowledge, attitudes and awareness by
Dr. Shahana Dastagir. Although informed consent was
gathered for surgical operations, there was less use of
informed consent for other examples of dental practice.
Bioethics education can provided on both sides of thepatient- doctor relationship to a new mindset.
Hilaire Tegnan and Saldi Isra review legal pluralism
in Indonesia, making an example of the complexities oflegal traditions and societal norms in Post-Colonial
Developing Countries. Legal systems also shape ourmind, and customary law is also reviewed.
We look forward to publishing more papers soon,
and will be including some from the 16th Asian
Bioethics Conference, just held 4-8 November in
Manila, the Philippines. The conference saw 150
persons from every inhabited continent joining in afeast of bioethics. The Asian Bioethics Association(ABA) Board and General Annual Meeting welcomed
the forthcoming ABC17 in Jogyakarta, Indonesia, 29
November – 3 December 2016, and ABC18, to be heldin Korea in late October 2018. Asian bioethics
continues to grow from strength to strength.
- Darryl Macer
Registered address of EJAIB: P.O. Box 16 329,
Hornby, Christchurch 8441, New Zealand210

Eubios Journal of Asian and International Bioethics 25 (November 2015)

Mindfulness techniques inschools. Academic &personal development ofparticipants- Lara López-Hernáez, PhD. in Educational Psychology
International University of La Rioja, Education Faculty, La
Rioja, Spain; Visiting Professor in Mindfulness andEducational Psychology, American University of Sovereign
Nations, 8840 East Chaparral Rd, Suite 285, Scottsdale,
AZ 82520
Email: Llopez.lara@gmail.com/ lara.lopez@unir.net

Abstract
The purpose of Mindfulness is to arouse conscious
attention in the present moment and so to achieve
higher levels of physical and mental wellbeing. Its
study and implementation has had therapeutic
purposes in clinical settings, but it is something new
in educational settings. In this paper the methodologyof the ".b" is described, which has used Mindfulness
techniques with high school students. This proposal
consists of nine sessions where activities are
performed to help keep the focus on body sensations
in different situations -at breathe, eat, sit, and lie
down or walk-. The material consists of sheets, whotrain a scattered mind, calm, recognition of negativity
and concern and how to live with the difficulties
without rejecting them. A review of studies about theimplementation of Mindfulness programs obtains very
positive results in personal and academic student
development. Teachers have also shown decreased
exhaustion, increase of compassion, improvementsin the classroom organization, on team tasks and on
interactions with students. Its implementation inschools is more effective among high-risk students,
with a long-term practice, with the involvement andwhen teachers are trained and maintain continuity intheir own practice. To ensure the success and qualityof these programs, it is opts for a quality andapplicable research -high number of participants,
involving of the entire educational community,
longitudinal results comparison in different countries
and cultures, and the creation of specific instruments
for each program.
Key Words: Mindfulness, teacher training, personal
development, academic achievement, educational
community
1. Introduction
Mindfulness is the practice of awareness in thepresent moment, a technique originated in Buddhist
thought 2500 years ago. During the last thirty years,
this practice has been secularized and simplified to fit
a Western context (Weare, 2012), whose purpose isto try to alleviate the suffering caused by
dysfunctional forms of behavior. In the 1970s,
mindfulness was linked to intervenions in healthproblems and Jon Kabat-Zinn introduced a structured
eight-week program with which psychologically
positive results were obtained, reducing anxiety andgetting some physical improvements, such as relief
for patients experiencing severe and chronic pain
(Kabat-Zinn, 2005). Since then, interventions haveproliferated around the world and scientific evidence
suggests that the practice of mindfulness has a wide
range of potential applications (Weare, 2012).
Mindfulness practice belongs to the "Vipassana"tradition, it means to live the present moment as it is,
objectively and without reacting, learning to accept
what cannot be changed. To perform activities ofdaily life consciously, invites us to be fully awake andalert at every moment; and events such as eating,washing dishes, talking telephone or peel an orange
for example, offer us an opportunity to know
ourselves more deeply and enjoy more peace andinner balance (Thich Nhat Hanh, 2007). The key tophysical and mental well-being is the emotionalbalance and practicing Mindfulness techniques weare going to change our mind, creating conditions tosee clearly the reality around us and solve problems
that before we were unable to solve (Simon, 2011).
If we use Mindfulness effectively, we have thenecessary foundation to live our life in a moreproductiveway,
conscious
andpeaceful(Gunaratana, 2012), learning to focus attention on theimmediate experience, moment by moment, with the
curiosity of an open mind and accepting everythingthat happens to us (Bishop et al., 2004). Mindfulness
is extracted from a line of contemplative traditions,but the new skills are learned in a very practical way,
through the experience applied in everyday life
(Goldstein and Kornfield, 1987) and of attention in
every activity we do (Segal, Williams and Teasdale,
2002). The opposite of this attention is thesenselessness, state in which we live most of thetime, since we are usually worried with ruminations
on the past and planning for the future (Weare,2012). This senselessness makes us to see ourexperience through a filter of judgments and labelsthat promote our behavior, with the mind
disconnected of the body, so we are not aware ofsigns of stress or clues about the negative emotions
that the body provides us (Weare, 2012).
The regular practice of Mindfulness makes us more
pleased and happy, addition to awaken us otherpositive emotions related to a long and healthy life,
increased physical and mental strength and a moresatisfying relationships (William and Penman, 2010).
It has been found that a high percentage of violent
adolescent students perform actions with social andhealth risk, highlighting drug use (Cerezo and
Mendez, 2012). In this sense, Mindfulness reduces
dependence on alcohol and drugs, hypertension,
chronic pain, cancer, fighting colds and otherdiseases by strengthening the immune system(William and Penman, 2010). With daily practice ofsome very simple Mindfulness techniques, we canEubios Journal of Asian and International Bioethics 25 (November 2015)
focus our energies on achieve a good physical andmental health, emerging further integrative functions
that generate more neural connections, as regulatory
body functions, coherence, emotional balance,
flexibility of responses to the different situations oflife, loss of fear, understanding, empathy and highlevels of morality and intuition (Siegel, 2012).
The most common Mindfulness courses have beenpracticed to reduce stress (Mindfulness-Based Stress
Reduction "MBSR") or depression (MindfulnessBased Cognitive Therapy "MBCT"). However, today it
being carried out other beyond clinical areas, such as“.b” project, conducted in the UK schools. Its
participants are guided by the teacher through simple
exercises that increase their awareness in thepresent moment, discussing the experiences thatarise in the group and seeking its relationship witheveryday life. This practice gives special attention to
the feelings that arise of the body, such as breathing,contact between the body and the chair, thesensation of your feet on the floor and othersensations related to actions such as standing,walking, laughing, among many others. These
exercises are prepared to continue outside theclassroom and to be performed in the normal routinesof daily living (Mindfulness in Schools Project, 2011).
This study seeks to highlight the ".b" program to theeducation community and show whether theapplication of Mindfulness techniques brings benefits
to participants. Also find out if there are limitations to
its implementation in schools, with the aim ofproposing improvements in its implementation.
2. The ".b" project in the schools
It would be interesting to apply Buddhist teaching
and its four immeasurable thoughts in schools,
especially in the infant stage (González-Caldei,2013). However, the ".b" project is nonsectarian, thisis just a practice based on Mindfulness in theschools, whose main objective is to teach to maintain
conscious attention at every moment, through ninesessions, one per week. The first international
conference on ".b" in schools was held in London in
March 2013, where teachers and experts met, andProfessor Willem Kuyken, director of the research
Mindfulness unit at the University of Exeter,
presented some of the latest results. This project was
written in 2007 by three professors from the UK withteaching experience in secondary schools and in theteaching of Mindfulness; Richard Burnett, Chris
Cullen and Chris O'Neil. Currently, it is carried out inthe schools by Richard Burnett and Chris Cullen,
expressing that: "We were both finding great benefits
in ourselves, and we thought put into practice thesetechniques in classes where we taught (...) the
response of the students was amazing and it inspired
us to create a program where they could find fun andwould be accessible and effective in their lives (...).
Now the idea is carried out in twelve countries"(Cullen, 2013; cited in Crossley-Holland, 2013).

211

The teaching of ".b" is provided in Oxford once a
year, since 2009, attended by several teachers andresearchers from around the world. The project is acollaboration between Oxford, Cambridge and Exeter
Universities, which are finding valuable benefits of its
implementation. The program is flexibly designed to
involve everyone, whatever their ideology, religion or
culture (Weare, 2012) and to make it applicable inany context (Mindfulness in Schools Project, 2011). It
is taught among teachers and researchers first, inorder to implement it between student’s volunteer
groups later, or other specially selected, with stress,
depression or anxiety problems. Currently, over two
hundred teachers have been trained to teach it andmore than two thousand teenager’s students haveparticipated in it (Kuyken et al., 2013).
The program material consists of ten books, which
are composed of tabs working the mindfulness topic,
such as coaching a scattered mind, learn to calm
themselves, to recognize the worry, to live in the
moment moving and acting consciously, to recognize
and stop negative thoughts and live with thedifficulties without rejecting them, since these teachus to grow. Students should think and deduce ideas,in addition to practical activities that are discussed insmall groups. The first book is the introduction,
followed by a handbook for the teacher, anotherstudent manual and a DVD with videos and images
shocking about each content -in the website
www.mindfulnessinschools.org it can be found tabs
and pictures of the program sessions that serve as
examples.
All activities are performed in a practical way, someof the most important are: sustaining attention in all
bodily sensations eating chocolate, do a sweep ofsensations in our body when one is lying (Technical"Beditation"), focus on the sensations of the feet andback when sitting (Technical "FOTBOC"), countseven while breathing and eleven while expires(technique "7/11"), or observe body sensations when
walking as undead within the class, among others.
They are simple awareness exercises to give all
students an idea of the importance of mindfulness, sothat they can return to this practice later throughout
their life (Mindfulness in Schools Project, 2011).
According to the results of numerous studies, thepractice of Mindfulness in the school can lead to
immediate benefits, because at the end of the course,
students say they feel generally happier, calmer andmore full, they can concentrate better and having
more tools to deal with stress and anxiety (Hennelly,
2011; Huppert and Jonshon, 2010 and Weare, 2011).
At the end of the course, a questionnaire, about
perception one has of the same, is completed inorder to further improve it. These instruments andresearch studies conducted by Cambridge, Oxford
and Exeter University, have shown that Mindfulness
interventions in the schools are generally enjoyed
and appreciated by the participating students,
reporting positive experiences and significant

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Eubios Journal of Asian and International Bioethics 25 (November 2015)changes in their lives subsequently (Mindfulness in
Schools Project, 2011).
In the article, published in "The Guardian"(Crossley-Holland, 2013) the impact it is having theimplementation of the project ".b" in schools in the
UK is described, showing an analysis of interviews
conducted with students who participated. Students
say that in times of stress and tension before an
exam, they are more aware of their inner state andthey attend "7/11" technical or "Beditation" practiceamong other techniques learned. These are some of
the impacts that the course has had on students,
teachers and some parents: "After practicing
Mindfulness accept more things and do not criticize
people so much, I now understand that people aredifferent and accept you cannot change that (...) My
thinking is more rational (...) I keep my mind focusedand find before the answer to my problems (...) I
started to think more positively (...) I learned to makebetter decisions for my present and my future (...) I
am calmer, more relaxed and less stressed"(Mindfulness in Schools Project, 2011; cited in
Crossley-Holland, 2013).
When teenage students are more present in every
activity, they are more able to deal situations from a
fresh perspective and make better use of the learning
content (Weare, 2012). Moreover, students are better
able to cope with everyday stresses on tests, social
relations, sleep and family problems because
Mindfulness struggle against the difficult mental
states, such as depression, ruminations, anxiety andlow moods (Weare, 2012).
The ".b" has a solid foundation of scientificevidence, with tests that have been conducted after
the courses, such as randomized controlled trials andbrain imaging tests.
3. Scientific findings of the implementation of
Mindfulness in Schools
Several studies about ".b" program in the schools
have been published in reputable scientific journals.
Participants were teenage students in most cases,
teachers and parents, chosen on the basis ofvoluntariness. It has been demonstrated that thecontinued practice of Mindfulness can provide
beneficial results, including positive effects onemotional and social skills, greater ability to control
our own lives, greater acceptance of experience as itis, better manage difficult feelings, keeping calm,
besides increasing the strength, compassion andempathy (Baer, 2003; Salmon et al., 2004).
More and more studies in the field of Mindfulness inschools are coming to the conclusion that thesetechniques are viable and promising. Interventions inschools are generally acceptable and there weren’treports of adverse effects (Burke 2009; Harnett andDawe, 2012). Hennelly (2011) conducted acomprehensive study of Burnett, Cullen and O'Neill(2011) ".b" program with 68 high school students,using a questionnaire and interviews with teachersand parents to triangulate the data. The instruments
were used longitudinally immediately after the courseand six months later, to assess the immediate andsustained changes in mindfulness, ego-strength andwellbeing. Statistical analyzes established significant
differences between participants and control groups
in each of the study variables, also found that allthese positive changes were even more significant in
the long term.
The author focuses its thematic analysis on thetheories of self-regulation, self-determination andself-efficacy (Braun & Clarke, 2006; Deci and Ryan,
2000; Bandura, 1977; cited in Hennelly, 2011), to
describe the effects of mindfulness training inmotivation,
confidence,competenceandeffectiveness of adolescents. It follows that the ".b"program is associated with immediate improvement
and months after the course in the general operation
and welfare of participants, in addition to identifying
cognitive and behavioral changes, so it is proposed
as a viable and effective program in enhancing
strengths and personal development of high school
students.
The Mindfulness program in the schools taught byconscientious teachers, that is, those who maintaincontinuity in their own practice, leads to a significant
reduction in behavioral problems and depression
scores, especially in students with clinicallysignificant problems before intervention (Joyce et al. ,2010). Kuyken et al. (2013) evaluate the acceptability
and effectiveness of the ".b" program on mental
health and well-being of 522 adolescents in twelve
secondary schools in the UK. They conducted arandomized, with stressed young between 12 and 16
years old, and other mental health problems.
Participants had fewer depressive symptoms, lower
stress and higher welfare in monitoring and after thecourse, compared with the control group. After threemonths follow-up, it showed that those who practiced
more often Mindfulness techniques had even greater
well-being and less stress than those who practiced
only sporadically.
Huppert and Johnson (2010) launched a study with155 students to which attention was measured,
resilience and psychological wellbeing. The results
showed that there is a positive and significant
association between the amount of practice
Mindfulness and improvement in attention andpsychological well-being, which is positively related,
at the same time, with personality variables, such as
kindness and emotional stability. Of the limitations of
the study, the authors concluded that further work isneeded to improve the training program, so theydecided to create a definitive randomized controlled
trial with subjective and objective measures withlonger-term follow-up. To do so, they took into
account the comments of students and teachers
involved, additional consultations with colleagues andconsideration of the needs of each particular
teenager (Burnett, 2010).

Eubios Journal of Asian and International Bioethics 25 (November 2015)
Franco et al. (2011) have shown through thequestionnaire of "self-concept and self-actualization"(AURE) the Mindfulness practice in schools is valid
and appropriate to promote personal growth and selfrealization among adolescents. The authors suggest
the use of these techniques as a complement to otherprograms aimed at personal and emotional
development of students. In this sense, Leon et al.
(2009) try to find significant relationships between
mindfulness -with the "Scale of Mindfulness"
designed by them- and emotional intelligence -withthe test "TMMS-24 / Trait Meta Mood Scale" - in asample of 344 students of 1st and 2nd year of highschool. They verify the significant and positive
relationship between attention and emotion, so they
propose the development of mindfulness through theimplementation of Mindfulness techniques in theschools.
Ruiz et al. (2014) launched the project "Growing
with attention and mindfulness" in the continuous
evaluation finding the participants - students of aschool in Madrid - increased their capacity for
empathy, improving relations, reducing anxiety,symptoms of attention deficit and hyperactivity andincreasing academic performance.
Franco et al. (2010) evaluated the levels of
psychological distress in a group of 68 secondary
teachers, in the experimental and the control groupby the scale "Symptom Checklist-90-R / SCL-90-R"
before and after the implementation of training
program in Mindfulness. Statistical analysis showed asignificant reduction in the three general measures ofpsychological distress (Global Severity Index,
Distress Symptoms Positive and Positive Symptom
Total Index) and in all its dimensions (somatization,obsession-compulsion,interpersonalsensitivity,
depression, anxiety, hostility, phobic anxiety,paranoid ideation and psychoticism) in theexperimental group compared with the control group.
The monitoring showed that in the experimentalgroup, the results remained after four months the endof the intervention.
Lawlor et al. (2012) studied mindfulness among 286
children aged 11, 12 and 13, with the conscious scaleof children "MAAS-C", modified version of the test toassess attention in adults. The results indicated that
Mindfulness is related to emotional disturbance,emotional well-being and happiness. Razza et al.
(2013) evaluated the efficacy of an intervention basedon Mindfulness and yoga techniques, with twenty
children from 3-5 years old. The results indicatedsignificant effects on self-regulation, especiallyamong children who were at increased risk ofdysfunction of it. Greenberg and Harris (2012) madea review of research on Mindfulness practice withchildren and young people, both clinical and school
settings treatment and prevention of health. They
conclude that the Mindfulness intervention is afeasible and effective method to increase resilienceand self-esteem and to improve the treatment of213

health disorders in clinical populations. In regard
Rosa-Alcázar et al. (2014) also found that high selfesteem is one of the most important predictors andheavier in psychological health.
The Mindfulness techniques in the school also havea positive influence on learning problems, since it
requires complex cognitive processes such asattention, concentration and executive function, or
higher-order thought processes that govern theworking memory, planning, reasoning problem
resolution and multi-tasking (Semple et al. 2010).
These authors evaluated the impact of Mindfulness
program between students of 9-13 years old were
having academic difficulties, and the results showedsignificant improvements in measures of attention
and reduction of anxiety problems and behavior,compared to students who had not participated.
Mindfulness practice in the schools has shown a very
high impact on the intellectual, improving sustained
attention, visual-spatial memory, working memoryand concentration of students (Jha Krompinger andBaime, 2007; Chambers et al., 2008; Zeidan et al.,2010).
Saltzman and Goldin (2008) launched a program
based on Mindfulness learning techniques for eightweeks, among children aged 9-11 and their parents,
whose evaluation was based on objective measuresof self and parent reports. The results indicatedimprovements for children and parents, attention,
emotional reactivity and in some areas of metacognition. Beauchemin et al. (2008) launched anotherprogram based on mindfulness techniques over five
weeks, among 34 adolescents with learning
difficulties. They concluded that the practice ofmindfulness reduces anxiety and increases faith inthemselves, promoting social skills and positive
educational outcomes.
The study of Gustems and Calderon (2014) relates
the character strengths with the test "Values in Action
Inventory of Strengths" and psychological well-being,with the test "Brief Symptom Inventory" and its impact
on the academic performance of 98 student teachers,
concluding that the strengths of nature (goodness,justice, teamwork, love and honesty) are positively
related to psychological well-being of the students,
and indirectly to the academic performance of them.
Gallego et al. (2010) conducted a study to verify the
impact of Mindfulness techniques on levels of
academic achievement, self-concept and anxiety in agroup of students of 1st year of high school. In theexperimental group a significant increase inacademic achievement, an improvement in all
dimensions of self-concept and a significant decreasein anxiety states it was observed.
Studies have also been conducted on the impact of
Mindfulness among teachers. Flook et al. (2013)
conducted a pilot randomized controlled trial in acourse about stress reduction "Mindfulness-Basedstress reduction / MBSR" adapted to teachers. The
results suggest that the course may be a promising

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Eubios Journal of Asian and International Bioethics 25 (November 2015)

intervention, showing significant reductions in
psychological symptoms of exhaustion, increased
self-pity, improved classroom organization andperformance of team tasks. By contrast, participantsin the control group showed increased stress.
Singh et al. (2013) measured the effects of earlychildhood education students that took a course
about Mindfulness among their teachers over 8
weeks. The results showed a decrease challenging
behaviors of students and increased their complianceto requests from the teachers, while a decrease in
the negative social interactions and increased in suitisolated.
It was also demonstrated that mindfulness training
for teachers is effective in changing the teacherstudent interactions, bound to improvement of theirhealth in the workplace, which encourages theparticipation and learning of students (Roeser et al.,2012). Moreover, through a comparison between two
groups of teachers who participated in a program ofthis nature, it was found that the Mindfulness
techniques were more effective in supporting
teachers working with students in high-risk
environments (Jennings et al. , 2011).
Teachers are one of the professional groups mostaffected by psychological problems (Franco et al.,2010). The improvement in attention by Mindfulness
practice is correlated with changes in the direction of
psychological symptoms, exhaustion and sustained
attention in teachers (Flook et al., 2013). However,teachers do not receive enough training on how toteach these techniques and many of them are noteven aware of the importance of their own practice,as this is most effective when is taught by teachers
who have developed it (Mindfulness in Schools
Project, 2011). Teachers who practice mindfulness,
are better able to create positive change, both insideand outside the classroom, they are able to focus
more clearly the key ideas, to set priorities, develop
improved materials for the classroom, to focus
without distractions, to create peaceful and orderly
climate and to induce a better behavior in theirstudents (Mindfulness in Schools Project, 2011).
However, the results of the implementation of
Mindfulness programs in schools, show that short,brevity in practice and discussions, prevent
participants obtain long-term results; while thesewere created only as a tool for those who wish to use
it and delve into it later (Mindfulness in Schools
Project, 2011). Getting a welfare state is substantive
work, an exercise that must be maintained over time
and that never ends, so a course of a few weeks is
not enough (Burnett, 2010).
Moreover, research on these programs show little
applicability, since the number of participants is not
sufficient and does not involve the entire schoolcommunity and even less to Families (Burnett, 2010).
The comparison of the results of the application of
the same program in different locations or countries
with different culture is also missing, together with thepromotion of longitudinal studies that show what
happens after a year of implementation, and if
participants continue to practice or not outside thecenters (Mindfulness in Schools Project, 2011).
In turn, the instruments that measure the results of
the implementation of these techniques, in mostcases are adapted, but are not specific for aparticular program. With all this, it should promoteplans to implement this practice in the schools, taking
into account the importance of clearly articulating theobjectives, in terms of who it may concern, to keep inmind the level of motivation of the participants,
considering the ethical part program and teacher
training as a key in it teaching (Burnett, 2010).
4. Conclusions
Mindfulness practice provides greater self toparticipating students, greater acceptance ofexperience as it is, better manage difficult feelings,
keeping calm, increased strength, self-esteem,compassion and empathy, fewer depressive
symptoms, lower stress and greater well-being.
Better academic results are also seen, improved
intellectual abilities, sustained attention, visuo-spatial,
working memory, concentration and in some areas ofmeta-cognition. These techniques increase the clarityof feelings and emotions on a personal level,
therefore, its development in the schools can becentral to student learning and their affective andemotional development (Leon et al, 2009).
Mindfulness has the potential benefit of improving
attention and social skills, reducing test anxiety andthe maintenance of calm (Ruiz et al, 2014). Rempel(2012) obtained some of these results after continued
practice with students, proposing integrate activities
based in Mindfulness with children and youth inschools.
Teachers who have participated in these programs
have shown improvement on a personal level,
professional and interacting with students andcolleagues. In this sense, Burnett (2010) commitment
to teacher training as a key element in teaching
mindfulness, and the continuity of their own practice.
The limitations found in the reviewed studies showthat the Mindfulness practices are innovative in
educational settings, but in most cases are
implemented by external researcher’s clinical setting,without continuity or integration into the regulareducational curriculum. They do not include training
experiences for educational counselors, so thattraining in Mindfulness techniques in the corecurriculum of the educational counselor is proposed.
The success of these programs lies in its long-term
practice, so should increase their duration. Only
through continued practice it can reach beyond thestates of calm, throwing a more penetrating light on
the functioning of our suffering (Burnett, 2010).
In the adult world, Mindfulness is characterized by
an extremely open mind to the internal investigation
itself: "I only say that this is a work in progress, weEubios Journal of Asian and International Bioethics 25 (November 2015)
never know where it will end (...)" (Feldman, cited in
Burnett, 2010). "There are no limits either intechnique or in the program, everything is open andtherein lies its wealth (...)" (Cullen, in Mindfulness in
Schools Project, 2011). It has also been seen thatfamily involvement is essential, in this sense the
Mindfulness techniques are organized to take place
in a wide range of contexts and persons, are nice andfun for participants and can take place in all contexts,
because they are universal and simple to practice.
The ".b" program has very low implementation costs
and a fairly rapid positive impact on students,
teachers and families (Mindfulness in Schools
Project, 2011).
As said, it is proposed to improve these programs
increasing its duration in time, training of educationalcounselors and teacher, and involve the entire schoolcommunity, which suggests a thorough review of its
implementation and reinforcement in the spirits ofresearch (Greenberg and Harris, 2012) offering new
directions (Rempel, 2012) because so far it is not
being easy to measure the practice of mindfulness
from an empirical perspective (Burnett, 2010).
Be attentive to what happens, learn to observe thestress and anxiety as their own body and know us
more deeply it is a universal right for all humanbeings (Mindfulness in Schools Project, 2011). The
implementation of Mindfulness programs in schools
should provide students a way to combat stress andpressure in a difficult world, having as main objective
their personal development and creating a society
with greater welfare. The current school andprofessional panorama requires that the involvementof different educational agents go beyond the meretransmission of academic content, they should beaware that their participation must contribute to theoverall development of all (Alvarez and Bisquerra,2011).
Notes
1- See www.neru.dhamma.org/ for more information about
Vipassana.
2- “.b” means: stop -dot-, breathing and being

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Informed consent in dental
practice in Bangladesh:
A survey on dental
practitioners’ knowledge,
attitudes and awareness.
- Shahana Dastagir, B. Dental Surgery, MPH, MBGPH
Dhaka, Bangladesh
Email: dastagirshahana@gmail.com

Abstract
The core issue in the concept of informed consent
is grounded in the principle of patient autonomy.
Informed consent is the process of providing thepatient or, in the case of a minor or incompetent
adult, the parent with relevant information regarding
diagnosis and treatment needed, so that an educateddecision regarding treatment can be made by thepatient or parent. The objective of this study was toEubios Journal of Asian and International Bioethics 25 (November 2015)
determine the knowledge, attitudes and awareness ofgeneral dental practitioners (GDPs) regarding
informed consent. This was a cross-sectional study
comprising 53 respondents including general dental
practitioners from a Government Dental College(N=25) and two Private Dental Colleges (N=28).
Subjects were collected purposively. The study
involved an interview with a written self-administeredstructured questionnaire consisting of 20 items used
to assess dental professionals' knowledge andattitudes towards informed consent in Dhaka Dental
College, Bangladesh Dental College and City Dental
College. Data were analyzed using statisticalsoftware namely SPSS version 20 for Windows andboth descriptive and inferential analysis were used as
appropriate. Research findings were narrated throughelaborated tables and graphs with descriptions. By
assessing the knowledge, attitude and practice
regarding informed consent, the results of this thesis
may be used to help plan strategies to promote
greater knowledge of informed consent. Emphasisshould be given in undergraduate and postgraduate
training to legal dental jurisprudence and legal
medicine as this is essential for dentists to protect
themselves from civil litigation (trespass, assault or
battery) and even criminal proceedings for common
1
aggravated or indecent assault.
1. Introduction
1.1. Informed Consent in DentistryLong gone are the days when patients would entera dental office, sit quietly in an operator chair andallow the dentist to perform whatever treatment hedeemed necessary, and then pay the fee in full on theway out with no questions asked. Today’s patientsare better educated in the age of the Interent, more
informed and less trusting than the patients thirty
years ago. In current daily practice, medical
specialists and the dentists come across common
ethical issues.
The core issues in medical ethics are the ethics ofthedoctor–patient
relationship,patient's
confidentiality, and the need to obtain informed
consent, whereas bioethics deals with allencompassing moral issues in medicine andbiomedical sciences (McCullough and Chervenak,
2007; Mahmood 2005; Dierks et al., 1999).
The
concept of informed consent is grounded in theprinciple of patient autonomy. Informed consent is theprocess of providing the patient or, in the case of aminor or incompetent adult, the parent with relevant
information regarding diagnosis and treatment needs
so that an educated decision regarding treatment canbe made by the patient or parent. The informed
consent form should provide a source of consistent1

This paper is based on a dissertation from the Masters in
Bioethics and Global Public Health (MBGPH) Program ofAmerican University of Sovereign Nations (AUSN), UnitedStates of America (USA).

217

information about treatment with the larger goal ofprotecting patients from harm and ensuring theirautonomy (Jefford and Moore 2008; Faden et al.,1986). The concept of informed consent is rooted in
moral, cultural, and legal principles (Bal, 1999).
Informed consent is often perceived as necessary forlegal protection against malpractice claims (Meisel
and Kuczewski, 2006).
In order for informed consent to be useful, thepatient must be provided sufficient information
relating to the treatment of procedure. Furthermore,
the information contained in the document must also
be clear and understandable to patients
Several professional organizations and government
entities have recognized the importance of consent
by issuing guidelines for informed consent, andminimum legal requirements also exist at the statelevel (Nattinger et al., 1996; Bottrell et al., 2000).
Generally guidelines for informed consent are lessspecific in dentistry than in medicine (Estrada et al.,2000). There is a limited discussion on this issue inthe dental literature within Bangladesh despite theimportance of this subject to dental providers of thiscountry. The American Dental Association's
Principles, Code of Professional Conduct, andAdvisory Opinions state, “The dentist has a duty torespect the patient's rights to self-determination andconfidentiality.” It goes on to explain that, “…
professionals have a duty to treat the patient
according to the patient's desires, within the boundsof accepted treatment … the dentist's primaryobligations include involving the patient in treatment
decisions in a meaningful way, with due
consideration being given to the patient's needs,
2
desires and abilities ….” The American Academy of
Pediatric Dentistry (AAPD) requires informed consent
forms to include a description of the proposed
procedure, known risks, alternative treatments,
opportunity to ask questions, all terms specificallyand simply stated, and places for signatures of11
dentist, office member, and a witness. When aperson does not have the capacity to consent
however, issues of autonomy become more
complicated. For patients under the age of majority or
adults with diminished mental capacity, informed
consent should be obtained from a parent (Sfikis,
2003). The parent is presented with all elements of avalid informed consent followed by documentation in
the patient’s chart with signatures (Watterson, 2012).
Informed consent is not simply a piece of paper
signed by a patient or a guardian. It is the process ofcommunication between a doctor and a patient inwhich a patient grants permission for the proposed
treatment based on a realistic understanding of thenature of the illness, description of procedure, risks
and benefits, and treatment alternatives, including notreatment at all. When a form is utilized, it is best to
2

Current policies, adopted 1954–2007. Chicago: American
Dental Association, 2008.

218

Eubios Journal of Asian and International Bioethics 25 (November 2015)use simple words and phrases, avoiding technicalterms, so that it may be easily understood. A
modified or customized consent form is preferredover a standard form and should be in a format that isreadily understandable to a lay person (American
Dental Association, 2007; Watterson, 2012;
Australian Capital Territory Government HealthDirectorate. Policy, 2012; American Medical
Association, 2013; Tait et al., 2005; ACT 2008).
A doctor-patient, especially a dentist-patient
relationship is a special one as the patient seeks help
from the dentist for relief from pain and for restorationof their oral health. They permit the dentists to see,touch and manipulate structures in and around theoro-facial region and also divulge information about
themselves they wouldn’t normally reveal. They dothis because they trust the dentist to maintain theirconfidentiality and also believe that dentist will act intheir best interests. But there is an increasingawareness among patients regarding their rights as a19
consumer of health care services (ACT 2008).
Currently, the medical and dental professions arefacing an ever increasing rate of malpractice suits(Meisel and Kuczewski, 1996), found that patients felt
they were ill informed about their treatments and that
all treatment options were not discussed with them.
They also felt that dentists assume that they
understood everything that was told to them when in
reality they did not. Patients facing such situations
may seek legal aid for redresser of their grievances.
A 5 year retrospective survey on dental malpractice3
claims in Teheran, found that in 57% of clinicalcases, and 40% of non-clinical cases, dentists were
found to be guilty of malpractice. In a similar study inTurkey (Gundogmus et al., 2005) 48% of the dentists
were liable for malpractice suits which included
negligence, inappropriate treatment, and diagnostic
failure. In a Riyad study it was found that mistakes
during treatment were the most frequent allegationand in 87% of the cases the dentist was found to be
the guilty party. Therefore, one of the most important
legal safeguards and moral obligations of dentists totheir patients are obtaining consent for any course ofhealth care action (Al-Ammar and Guile, 2000).
Literature reviews regarding obtaining consent indental practice have shown that most dentists agree
as to the importance of consent before performing
any dental procedure (Avramova and Yaneva, 2011).
The American Academy of Pediatric Dentistry(AAPD) recognizes that informed consent is essential
in the delivery of health care. The informed consent
process allows the patient or, in the case of minors,
the parent to participant retain autonomy over thehealth care received. Informed consent also may
decrease the practitioner’s liability from claims
associated with miscommunication. Informed refusal
3

for dental malpractice claims in Tehran, Iran (Electronic
Version).
JournalForensic
Legal
Medicine,doi:10.1016/j.jflm.2008.08.016.

occurs when the patient/parent refuses the proposed
and alternative treatments (American Dental
Association 2007; Watterson, 2012.; Chen et al.,2007). The dentist must inform the patient/parent
about the consequences of not accepting the
proposed treatment and obtain a signed informed
refusal. It is recommended by the ADA that informed
refusal be documented in the chart and that thepractitioner should attempt to obtain an informed
refusal signed by the parent for retention in thepatient record. An informed refusal, however, does
not release the dentist from the responsibility of
14
providing a standard of care. If the dentist believes
the informed refusal violates proper standards ofcare, he/she should recommend the patient seek
another opinion and/or dismiss the patient from thepractice (American Dental Association, 2007). Whena form is utilized, it is best to use simple words andphrases, avoiding technical terms, so that it may beeasily understood. A modified or customized consent
form is preferred over a standard form and should bein a format that is readily understandable to a lay
person (American Dental Association 2007;
Watterson, 2012; Chen et al., 2007; American
Medical Association, 2013; Tait et al., 2005).
Informed consent and informed refusal forms
should be procedure specific, with multiple forms
likely to be used. For example, risks associated withrestorative procedure will differ from those associatedwith an extraction. Separate forms, or separate areas
outlining each procedure on the same form, would benecessary to accurately advise the patient regarding
each procedure (American Dental Association, 2007).
Consent for sedation, general anesthesia, or
behavior guidance techniques such as protective
stabilization (i.e., immobilization) should be obtained
separately from consent for other procedures(American Academy of Pediatric Dentistry, 2013ab).
Consent may need to be updated or changed
accordingly as changes in treatment plans occur. For
example, when a primary tooth originally planned for
pulp therapy is determined to be non-restorable at thetime of treatment, consent will need to be updated toreflect the change in treatment (American Dental
Association, 2007).
1.2. Concepts of Consent to Treatment
Consent to treatment consists of three essential
characteristics namely competence, voluntarinessand knowledge. Competence means that the patient
has sufficient ability to understand the nature of thetreatment and the consequences of undergoing or
refusing the treatment. ‘Voluntariness’ means thatthe patient has freely agreed to submit to thetreatment without any coercion or force. ‘Knowledge’means that sufficient comprehensible information isdisclosed to the patient regarding the nature andconsequences of the proposed and alternative
treatments (Chen et al., 2005). All these factors are
influenced by the level of health literacy of the patient.

Eubios Journal of Asian and International Bioethics 25 (November 2015)
The concept of health literacy and its influence on
patients ’ ability to provide informed consent will befurther addressed in detail later in the review.
1.3. The Ethical Basis for Consent to Treatment
Consent of treatment is based on two ethicalprinciples namely, the principle of autonomy and theprinciple of beneficence.
Autonomy: The predominant model in the past still
adhered to by many health care professionals is theconcept of paternalism. This concept implies that thedoctor is knowledgeable and skilled, therefore thebest person to make judgments without involving
thepatient when deciding a therapeutic regimen. A
shift in attitude has taken place after World War IIwith the Nuremberg
Trials, resulting
in theNuremberg Code and The Declaration of Helsinki
which stated that the voluntary consent of the humanresearch subject is absolutely essential and thatconsent should be based on sufficient knowledge andunderstanding. In these regulations we see theconcept of patient autonomy in health care.
Autonomy may therefore be crudely defined as aperson’s ability to decide and act on the basis ofrational thought and deliberation (Bridgman 2002).
When a patient is given control over decision making
with respect to his bodily integrity it indicates respect
for the patient’s autonomy. This is reflected byobtaining a voluntary and informed consent from thepatient or a guardian before a clinical intervention.
Beneficence: In simple terms, Beneficence is a
moral obligation to act in the interest or benefit ofothers. All health care providers have a duty to carefor the patient and all health care actions performed
should be done with the best interests of the patientsin mind. A conflict between patient autonomy andbeneficence can result when both patient andclinician differ in what they both consider as ‘in thebest interest’. In such situations, a decision should
be made based on the attitude of the patient and thedentists’ technical judgment. In practice dentists
may come across patients whoseek outknowledgeable, skilled, and trustworthy doctors , butthereafter prefer to let that doctor lead in the decision
making. On the other hand, the dentist will alsocome across patients who have strong views andwant to be involved in every step of the decision
making process.
1.4. In the Context of Indian Law
According to the Indian Civil law -Indian Contract
4 31
Act of 1872,
a doctor patient relationship isconsidered to be a contractual and legal agreement
for professional services. Section 13 of the act
defines consent as when “two or more persons agree
on the same thing in the same sense.” Section 14 of
4Indian Contract Act 1872, Sections 12-14. Retrieved from:http://indianlawcases.com/Act-Indian.Contract.Act,.1872.2384

219

the same act defines ‘free consent’ as one that is“given without the existence of coercion, undue
influence, fraud, misrepresentation or mistake”.
Therefore according to this act, a contract is valid
only if it is entered into with the free consent of theparties concerned in this case, the dentist and patient(Indian Contract Act 1872, Sections 11-18) The
Indian Criminal Law also deals with consent underthe Indian Penal Code of 1860 under Sections 87 5
92. (IPC 1860).
Who can give consent? The age of consent isbound by legal definitions and within the context of
the Indian law there are two schools of thought.
32
Section 90 of the Indian Penal Code of 1860
states that “ Consent by intoxicated person, person of
unsound mind or a person below twelve years of age
is invalid”
This therefore implies that a person above 12 yearsof agecan consent to medical/surgical/dental
treatment if it is intended for their benefit andundertaken in good faith.
On the other hand, according to Sec. 11 of the
6
Indian Contract Act of 1872 - a competent personof sound mind who has attained the age of majority of
18 years (according to the Indian Majority Act of1875) can legally enter into a contract. Since thedentist-patient relationship is essentially a contract, it
implies that only persons 18 years of age and above
can enter into a doctor- patient contract and can giveconsent for treatment (Bastia et al., 2005; Murkey etal., 2006).
In order to understand the evolution and importanceof informed consent it is essential to
havebackground knowledge of the other types of consent
which are routinely used in dental practice. They
include:Implicit (tacit) consent: This is the most common
type of consent one encounters in a dental clinic or
hospital. Here consent is implied when the patient
indicates a willingness to undergo a certain
procedure or treatment by his or her behavior. For
example, consent for an oral examination is impliedby the action of opening one’s mouth.
Explicit consent: This type of consent is given
orally or in writing. It is required for minor
examinations or invasive procedures. It is preferable
that a disinterested third party act as witness to theconsent.
Proxy consent (Substitute consent): This type ofconsent is utilized in the event the patient is unable togive consent because he/she is a minor or mentally
unsound/unconscious. In such situations a parent or5

Indian Penal Code 1860, Sections 87-92. Retrieved from:http://indianlawcases.com/Act-Indian.Penal.Code,18601515
6
Indian Contract Act 1872, Sections 12-14. Retrieved from:http://indianlawcases.com/Act-Indian.Contract.Act,.1872.2384

220

Eubios Journal of Asian and International Bioethics 25 (November 2015)

close relative can provide proxy consent. Locoparentis (Krishnan and Kasthuri, 2007).
In an emergency situation in case of children, when
parents / guardians are not available, consent can beobtained from the person bringing the child for dental
examination or treatment (For example: school
teacher, warden, etc.).
“Verbal consent: Verbal consent is where a patientstates their consent to a procedure verbally but does
not complete a written consent form.
Valid Consent: Consent is valid if the following four
elements have been satisfied:
1 .Patient is competent to give consent
2. Full information of risks, benefits, alternatives
and costs has been provided
3. Consent is freely given, and
4. Consent is specific to the procedure.” (ACT
Health Procedure Consent to treatment, 2008).
The study of Singh et al. (2010) among dental andmedical health professionals found that the medical
professionals had greater awareness of Consumer
Protection Act (CPA) when compared to dental
professionals.
Similarly, postgraduates and private practitioners ofboth professions had significantly more awarenessthan the graduates and academics respectively. The
lack of awareness of CPA among dentists andgraduates in particular implies that they are illequipped to deal with litigations that may arise in theirdental practice.
Most likely the current infrastructure in medical anddental colleges is not sufficient to deal with the
problems. To design a curriculum on bioethics it isnecessary to assess the knowledge and attitudes ofthe students who are at the initial stages of ethical3
practice. In view of these observations, this study
conducted to explore the knowledge and attitude
about informed consent among dental professionalsof Dhaka City, Bangladesh.
1.5. Rationale
Currently, the medical and dental professions arefacing an ever increasing rate of malpractice suits(Meisel and Kuczewski, 1996). A study by King
(2001) found that patients felt they were ill informed
about their treatments and that all treatment options
were not discussed with them. They also felt that
dentists assume that they understood everything thatwas told to them when in reality they did not. Patientsfacing such situations may seek legal aid for redressof their grievances. Tahir et al. (2009) found that thefirst year graduates were more cognizant of theimportance of obtaining consent and practiced taking
informed consent from the patients in comparison tothird and fourth year students. 68% of the students
felt that consent was essential to protect the dentist
while only 9% felt that it was an essential patient
right.
In a questionnaire study conducted by Avramova
and Yaneva (2011), among Bulgarian dentists, it was

found that though most dentists took consent while
treating children, they were less prudent in taking
consent while treating their professional colleagues,
relatives, friends and longtime patients.
In a study among private dental practitioners inIndia, found that only 49% practitioners sometimes
obtained the consent. The fact that only half takeinformed consent could probably be due to hurry, lackof time or negligence on the part of the dental
professionals (Farhat, 2013). Another study in India
found that 18% of the dentists stated that they would
refuse to give a copy of the consent form. This
reaction could stem from the basic lack of knowledge
regarding the dentist’s legal obligation to provide apatient with the copy of consent form, or fromfear/guilt due to incomplete, incorrect, misleading or
destroyed information in the consent form that would
put the dentist in an unfavorable position (Bastia etal., 2005). 46% of the dentists would give theconsent form only after asking the reason for therequest, while only 36% said they would provide
consent form willing if it was requested by the patient.
The study further highlighted the lack of patient
record maintenance on part of the dentist either for
purposes of documenting present and future
treatment plans or as a means of protecting thedentist in the event of future litigation on part of thepatient (Kotrashetti et al., 2010)
In a cross sectional study done in Bangladesh
regarding informed consent revealed that 100%
dentist agreed to the importance of informed consent
although 19% of them did not consider failure in
obtaining consent as an offence. 63% of theparticipants did not agree to the notion that writtenconsent would make dentistry difficult while theremaining 37% feared that dentistry would be difficult
if written consent was made mandatory (Khan 2012).
The healthcare landscape in Bangladesh iscomplex. The majority of the people are poor and the
public health system is under-resourced and overburdened. Sickness is a well-known cause ofindebtedness and poverty.
Beside this, social,
cultural, economic and educational variables affectthe physician–patient relationship. These variables
also form divides between doctors and their patients.
The majority of people lives in rural areas and tends
to place greater value on health than on the principleof personal autonomy. As a result, different demands
are placed on the process of informed consent. A
combination of factors, including the patients’background, lack of knowledge the value they assign
to their dental health and their beliefs about
personal autonomy, determine their positions on the‘right to know’–‘right not to know’ spectrum. In theother hand dental surgeons of Bangladesh may not
feel obliged to take a verbal or written consent
thinking that a patient may not understand its
importance.
In the perspective of Bangladesh, the studies
indicate that the dentist needs to be serious aboutEubios Journal of Asian and International Bioethics 25 (November 2015)
dental ethics in their practice. It was therefore hopedthat the findingsof this study will provide an
opportunity for all Bangladeshi dentists to improvetheir education and therefore their potential to comply
with both the ethical obligation and the legal
requirement of gaining valid consent before the startof any type of dental treatment.
2. Objectives and Definitions
2.1. General Objectives
The aim of this study is to assess knowledge,
attitudes and awarenessof general dental
practitioners (GDPs) regarding informed consent in
Dhaka city, Bangladesh. The study population was
BMDC (Bangladesh Medical and Dental Council)
registered dental surgeons, working in Dhaka Dental
College, Bangladesh Dental College and in City
Dental College.
The structured questionnaires were distributed
among 53 registered dental surgeons.
2.2. Operational Definitions
Surgical intervention - In Dentistry it is any of anumber of medical procedures that involve artificiallymodifying dentition; in other words, surgery of theteeth and jaw bones.
Endodontic treatment - It is a sequence of treatment
for the infected pulp of a tooth which results in theelimination of infection and the protection of thedecontaminated tooth from future microbial invasion.
Prosthetic treatment - The ADA defines it as "thedental specialty pertaining to the diagnosis, treatment
planning, rehabilitation and maintenance of the oral
function, comfort, appearance and health of patientswith clinical conditions associated with missing or
deficient teeth and/or oral and maxillofacial tissues
using biocompatible substitutes."
Orthodontic treatment - Orthodontic treatment is a
way of straightening or moving teeth, to improve theappearance of the teeth and how they work. It canalso help to look after the long-term health of yourteeth, gums and jaw joints, by spreading the bitingpressure over all your teeth.
Dental hygiene and Scaling - Dental scaling involve
removing plaque (soft, sticky, bacteria infested film)
and tartar (calculus) deposits that have built up on
the teeth over time for maintain patient’s dental
hygiene.
2.3. Informed consent
The interview took approximately 15-20 minutes.
There was no risk or hazard to the respondents toparticipate in this survey. The respondents did notreceive any benefit or reimbursement from answering
the questionnaire. This research was not funded byany institution, and there is no financial reward to theresearcher or institutions involved. The informationthat the respondent provided was totally confidential
and were not disclosed. It was only be used forresearch purposes. The name, address, and otherpersonal information were removed from the221

instrument, and only a code was used to connect thename and the answers without identifying the
respondents. Signed consent was obtained from theparticipant and all the information shared among theparticipant.
2.4. Data Analysis
Both descriptive and inferential statistics will be
used and it was present in the form of tables anddiagrams. Demographic Variables were analyzed byfrequency and percentage distribution. Data wasanalyzed by statistical software SPSS version 20.
3. Results
3.1. Demographics
A total of 50 dental surgeons participated in thissurvey. Out of 53 targeted participants, 1 failed toprovide the filled in questionnaires in the specified
time and 2 did not complete the questionnaires
correctly, so the forms were excluded from the study.
Out of 50 dental surgeons, 76% were male and 24%
were female. Among them 60% had a bachelor's
degree and 40% had a Post-Graduation degree indentistry .Out of these 20 Post-Graduate dental
surgeons, 4 (8%) had a Diploma (DDS), 10 (20%)
had a Masters (MDS) and 6 (12%) had a PhD in
dentistry. The duration of the dentist's practiceranged from 2 years to 35 years (Table 1). 25 GDPs
attached with government dental college and rest 25
working in private dental college.
Table 1: Years of Dental PracticeYears of Dental Practice<55 -9
10 -20
>20
Total

N
30
9
7
4
50

%
60
18
14
8
100

Place of Employment
Dhaka Dental College (Government)
City Dental College (Private)
Bangladesh Dental College (private)
Total

N
25
12
13
50

Table 2: Place of Employment
%
50
24
26
100

3.2. Scope of dental services offered
General information: 41 GDPs offered all generaldental treatments including consultation andtreatment for oral and maxillofacial surgery,
Endodontic,
orthodontics,
prosthodontics
andmaintaining oral hygiene with scaling. 9 GDPs
informed that they don’t offered orthodontics
treatment.
3.3. Knowledge of informed consent
Table 5 shows that 96% of the dentists haveknowledge about informed consent. In this study 94%
agreed that they had sufficient knowledge aboutverbal and written consent as well as. On the other
hand 70% of GDPs had no idea about Implied
consent.

222

Eubios Journal of Asian and International Bioethics 25 (November 2015)

Table 5: Responses regarding knowledge attitudes
and awareness towards informed consent.

Knowledge

YES
N (%)
48 (96%)NON (%)
2 (4%)

2. Do you know what a verbal
consent is?

47 (94%)

3 (6%)

3. Do you know what an
implied consent is?

35 (70%)15 (30%)4. Do you know what a writtenconsent is?
5. Do you think it is necessary
to take informed consent?
6. In which areas of dental
treatment do you consider it isnecessary to obtain informed
consent?
A. In all cases
B. Only in:i) Dental hygiene/cleaningii) Surgical interventioniii) Endodontic treatmentiv) Prosthetic treatmentv) Orthodontic treatment
7 .Do you obtain parents‘informed consent when treating
their children?
8. Do you disclose the chargesof the treatment to your patient?
9. Is the written consent
obtained in the local language?
10. When you were a patient, isinformed consent taken fromyou?
11. Are you aware that one
copy of the informed consent
from should be given to thepatient if asked for?
12. What are consent forms
for?
A. To protect the doctor
B. To protect the patient
C. Both

47 (94%)

3 (6%)

50 (100)

0.0

15 (30%)35 (70%)2 (4%)
50(100%)20 (40%)32 (64%)41(82%)48 (96%)48 (96%)030 (6%)
18 (36%)9(18%)
2 (4%)

32 (64%)18 (36%)41 (82%)9 (18%)

16 (32%)34 (68%)7 (14%)

43 (86%)32 (64%)
3 (6%)
15 (30%)18 (36%)47 (94%)35 (70%)1. Do you know what
informed consent is?

All surveyed GDPs stated that they think it isnecessary to take consent before starting any type oftreatment procedure. Similarly 100% of dentists
considered it is necessary to obtained consent incase of all type of surgical procedures.
In non-surgical procedures like Orthodontics
however, only 82% of GDPs took consent from theirpatient. The figures for Prosthodontics were 64%,and Endodontics 40%, and in the case of dental
hygiene and scaling only 4% GDPs took consent
from their patient. Only 30% GDPs took consent for
all cases.
This study also revealed that 96% of respondents
obtained parent’s consent when treating theirchildren.

This study revealed that 64% GDPs did not disclosethe charges of the treatment to their patient. Only
36% GDPs informed their patient about the treatment
cost before starting their treatment (Table 5).
Our study also revealed that only 12% of the dental
professionals agreed that they take signatures even
if it is a verbal consent. On the positive side, 82%
said that they obtained written consent in the local
language; the remaining 18% obtained consent inEnglish, as they have some foreign patients as wellas (Table 5).
In current study 32% of participants responded thatthe consent was obtained from them while they werea patient and 68% of participants responded
negatively about obtaining Informed consent when
they were patients.
A total of 86% dental practitioners reported thatthey are not aware that one copy of informed consent
form should be given to the patient if asked for. Only
14% of practitioners were aware regarding thismatter. But only 4% of them actually give them.
though.
A majority 32 (64%) of GDPs stated that consent
forms are to protect the doctor. Only 6%said it was toprotect the patient. One third 30% said it was for both
(Table 5).
3.4. Attitudes towards informed consent
In the current study, 56% reported that they took
only the verbal consent before treating their patients.
Only 28% took written consent and only 16% ofdental surgeons took both verbal and written consent
before treatment.
On the other hand, the study revealed that only
12% of dental professionals agreed that they takesignatures even if it is a verbal consent. On the other
hand, 80% GDPs stated that they found obtaining
written consent is time consuming.
All the participants 100%responded that they obtain
the informed consent before starting the treatment
procedure. The study found that only 8% of dentists
obtained consent from their long time patient, while
14% obtained it from relatives, 24% from friends and
52% took consent from their colleagues whentreating them.
In case of illiterate patients, 35 GDPs 70% reported
that they took only verbal consent from their patients.
Of the remaining, 16% took the patient's thumbprint,
4% GDPs stated that they took the relative's
signature and 10% of GDPs stated that they obtained
verbal consent, as well as the patient's thumbprint on
the consent form.
Forty two percent of GDPs stated that they
discussed the various treatment modalities available
at their clinic with their patients before starting
treatment. Fifty eight percent of GDPs reported thatthey did not explain the various treatment modalities
available (Table 5).
The healthcare landscape in Bangladesh iscomplex. The majority of the people are poor and theEubios Journal of Asian and International Bioethics 25 (November 2015)
public health system is under-resourced and overburdened. Sickness is a well-known cause ofindebtedness and poverty. Social, cultural, economicand educational variables affect the physician–patient
relationship. These variables also form divides
between doctors and their patients. The majority ofpeople lives in rural areas and tends to place greater
value on health than on the principle of personalautonomy. As a result, different demands are placedon the process of informed consent. A combination offactors, including the patients’ background, the value
they assign to health and their beliefs about personalautonomy, determine their positions on the ‘right toknow’–‘right not to know’ spectrum. Consequently, allpatients need to be assessed for their value systems.
Such evaluations have to be explicit, as they will
determine the amount of information that is required
to be given to the patient on the disease, diagnostic
procedures and treatments.
Table 6: Responses regarding attitudes towards informed
consent
Attitudes
1. What is the form of informed
consent that you obtain in yourpractice?
A.
VerbalB.
WrittenC.
Both of them
2. Do you take signature even it
is a verbal consent?
3. Do you take patient consent
before treatment?
4. Do you take patient consent
after treatment?
5. Are there any patient fromwhom you might not wish toobtain informed consent?
A. Colleague
B. Relative
C. Friend
D. Long time patient
E. None of them
6.Type of consent obtained froman illiterate patient
A. Verbal consent
B. Patient’s thumbprint
C. Signature of relative
D. Verbal consent and thumbprint
7. Before starting the treatment
do you inform the patient of all
the treatment options available?
8. Do you think taking writtenconsent time consuming?

Yes

No

28 (56%)14 (28%)8 (16%)
6(12%)

22 (44%)36 (72%)42 (84%)44(88%)

50 (100%)0050 (100%)

36 (72%)42 (84%)38 (76%)46 (92%)
3 (6%)

14 (28%)8 (16%)
12 (24%)4 (8%)
47 (94%)35 (70%)8 (16%)
2 (16%)
5 (10%)
21 (42%)15 (30%)42 (84%)48 (96%)45 (90%)29 (58%)40 (80%)10 (20%)4. Discussion
4.1. Sample representativenessThis study surveyed on one Government and two
well-regarded private dental colleges in Dhaka City
with a 96% response rate. The dentists who

223

responded in this current study were notrepresentative of all Bangladeshi dentists. Because
they worked in Government and two well-regarded
private dental college hospital in Dhaka City. As aresult, many have postgraduate qualifications andtreat patients with complicated oral health problems
who have been referred to them. It is also likely that
there is peer pressure to provide quality care,including ensuring that their patients give informed
consent. These factors would not influence many
Bangladeshi dentists, especially those who work inrural areas. It is therefore possible that the dentists
who responded to the questionnaire were moreaware of the need for informed consent from patients
than many other Bangladeshi dentists.
4.2. Knowledge of consent
In the current study, 96% of the dental
professionals acknowledged what informed consent
is. Our results are in accordance with a study
conducted in Bathinda city, Punjab, India (Gupta etal., 2015) found that 97.4% of the participants
regarded consent as an integral part of dentistry.
Another study conducted in Khyber Pakhtunkhwa by
Farhat et al (2013) revealed that 99% participants
had knowledge regarding informed consent.
There were 94% of the dentists in this study who
agreed that they had sufficient knowledge aboutverbal consent. Similarly, in the study conducted by
Farhat et al (2013) it was found that among the typesof consent, 84% had sufficient knowledge aboutverbal consent. In the current study 56% reported
that they took only the verbal consent before treating
their patients. Less than one third 28% took writtenconsent and only 16% of dental surgeons took bothverbal and written consent before treatment. A study
conducted in Bangladesh by Khan and Taleb (2012)
stated that only 15% obtained written consent fromtheir patient, but
the majority was satisfied withverbal consent.
In this study all GDPs stated that they think it isnecessary to take consent before starting any type oftreatment
procedure. A similar type of study
conducted by Kotrashetti et al. (2010) in Belgium
reported 100%, and other study conducted by
Avranova and Yaneva (2011) in Bulgaria reported
98%.
A study conducted in Bangladesh by Khan and
Taleb (2012), it was revealed that 100% dentist
agreed to the importance of informed consent
although 19% of them did not consider failure in
obtaining consent as an offence.
On the other hand in the current study, 80% ofGDPs stated that they found obtaining writtenconsent is time consuming. Over one half (56%)
reported that they took only the verbal consent before
treating their patients. This could probably be due topatient load, lack of time, or negligence on the part ofthe dental professionals (Farhat et al., 2013). It also

224

Eubios Journal of Asian and International Bioethics 25 (November 2015)

demonstrates very significant deficiencies in thedentist’s understanding of the consent process itself.
In the present study, only 15% of dentists took
consent in all cases, which is lower than a study
conducted in India in 2015 by Sanchit Pradhan(Chate, 2008), which reported 25% of respondents
obtained consent in all types of treatment. In
24
Bulgaria a study in 20xx found 87.5% respondents
obtained consent in all types of treatment.
In the current study, 100% dentist considered it isnecessary to obtained consent in all types of surgicalprocedure s and 40% obtained consent during
endodontic treatment, which are comparatively morethan the study conducted by Sanchit Pradhan (Chate2008), and more than the study conducted in Bulgaria(Avramova and Yaneva, 2011).
(12.5% during
surgical intervention and 6.5% during endodontic
treatment), respectively.
The above response shows the importance ofInformed consent was not uniformly practiced for all
treatment procedures and some procedures wereconsidered eligible for obtaining consent.
In this current study, 14% obtained written consent
of their patients that are comparatively lower than the
study conducted in Bulgaria (37.5%, Avramova and
Yaneva 2011), Lahore (59.2%; Ferrus-Torres et al.
2011), and Belgium (64%, Kotrashetti et al. 2010).
Another study conducted in Bangladesh by Khan and
Taleb (2012) stated that only a few (15%) obtained
written consent from their patient, but the majority
were satisfied with verbal consent (Khan and Taleb,2012). In the present study, 28(56%) participants
obtained verbal consent which is comparatively morethan the study conducted in Lahore (12.8%, FerrusTorres et al. 2011). Only 14% took written consent in
the present study that shows a low percentage of
responses because written consent provides
information of the details and costs of their proposed
treatment to the patients. The importance of obtaining
written consent was also described in of the study
conducted in Spain (Lopez-Nicolas et al. 2007),
which found that in 78% cases of dental malpracticeduring treatment, there was no written consent(Singh et al. 2010).
Sometimes obtaining informed consent prior totreating children can be difficult (Chate, 2006). But
this study revealed that 96% of respondents reported
obtaining parent’s consent when treating theirchildren. So it is clear that respondents in the current
study believed in obtaining consent for their childpatients.
In current study it was found that only 8% ofdentists obtained consent from their long time patient,while 14% obtained it from their relative, 24% fromtheir friends and 52% took consent from theircolleagues. It may be due to very significant
deficiencies in the dentist’s understanding of theconsent process itself.
In a questionnaire study conducted by Avramova
and Yaneva (2011) among Bulgarian dentists, it was

found that though most dentists took consent while
treating children, they were less prudent in taking
consent while treating their professional colleagues,
relatives, friends and longtime patients (Sfikis, 2003).
In this study, 86% of dental practitioners informedthat they are not aware that one copy of informed
consent form should be given to the patient if asked
for. Only 14% practitioners aware regarding thismatter. In a study among general dental practitioners
in India, it was found that 18% of the dentists statedthat they would refuse to give a copy of the consent.
form (ACT, 2008) This reaction could stem from thebasic lack of knowledge regarding the dentist’s legal
obligation (Singh et al., 2010) to provide a patientwith the copy of consent form, or from fear/guilt due
to incomplete, incorrect, misleading or destroyed
information in the consent form that would put thedentist in an unfavorable position.
In the current study revealed that only 12% of thedental professionals agreed that they take signatureseven if it is a verbal consent. This was in accordancewith the study conducted by Avaramova andKrassimira (2011). This was a rather low percentage
because written consent provides some evidence
that patients have been informed of the details and24
costs of their proposed treatment.
In our study, 50 (100%) of the dentists informedthat they take consent for all types of surgicalprocedures. This could probably be due to the risks ofcomplications following third molar or impacted
canine extraction are well documented (Ferrus-Torres
et al., 2011) and the use of consent forms for patients
to sign prior to such surgery is widespread in
dentistry (Ferrus-Torres et al., 2011; Rubinos Lopezet al., 2013; Ghafurian, 2009).
In the current study 64% of GDPs stated thatconsent forms are to protect the doctor. Only 6% said
it was to protect the patient, while 30% said it was forboth.
In a study among general dental practitioners inIndia (Kotrashetti et al, 2010) it was found that 70%
practitioners felt that taking consent was a necessary
safeguard for the doctor alone, while only 27% feltthat it was also necessary to protect both the doctor
and the patient. The results are similar.
5. Conclusions
The importance of consent to treatment cannot be
overemphasized. It is believed that the bestarguments in favor of fully informed consent are
moral rather than legal. The current study concluded
that dental practitioners have an unbalanced
knowledge about informed consent and the attitudes
of some respondents towards its use in clinicalsettings was found dissatisfactory. This study opens
a new vista for more detailed research among otherdental practitioners in other parts of the country.
The results of this study indicate certain key areasof deficiency in the knowledge and understanding of
informed consent among the dentists. Though GDPs

Eubios Journal of Asian and International Bioethics 25 (November 2015)
stated that they think it is necessary to take consent
before starting any type of treatment
procedure.
This study indicates that theoretically most dentists
are aware of their ethical, legal and moral obligations
to take consent from their patients, but in practicemany fail to do so. It was noticed that GDPs wereless aware of the concept of written consent and its
importance. The importance of consent to treatment
cannot be over emphasized. It is believed that thebest arguments in favor of fully informed consent are
moral rather than legal. In the perspective of
Bangladesh, survey findings demand that the dentist
needs to be serious about dental ethics in theirpractice, and the more they are exposed to moral
issues, the more they would be aware of the need forgood clinical practice.
The findings provide an opportunity for all clinicians
to improve their education and therefore theirpotential to comply with both the ethical obligations
and the legal requirement of gaining valid consent
before the start of any treatment. More emphasisshould be given in undergraduate and postgraduate
training on legal jurisprudence and legal medicine as
this is essential for dentists to protect themselvesfrom civil litigation (trespass, assault or battery) andeven criminal proceedings for common aggravated orindecent assault. A further study on the same topic
with larger sample size across the country could beundertaken in the future.
6. Acknowledgements
I express my deep sense of gratitude and indebtedness
to my respected guide Professor Darryl Macer, Provost,
American University of Sovereign Nations (AUSN), for his
valuable guidance, constructive suggestions, generous
support and encouragement in preparation and completionof my dissertation.
This would be my pleasure to render my earnest
reverence and deep appreciation to my another respected
guide Professor Shamima Lasker, Head of the Departmentof Anatomy, City Dental College Malibagh, Chowdhurypara,
Dhaka, for her scholarly guidance and valuablesuggestions during the study period. I also thank my thesis
examiners, Prof. Miko Ferine and Prof. Martha Marcela
Rodriguez-Alanis for excellent suggestions. I want to thankthe Principal of Dhaka Dental College Professor Dr. S.M
Iqbal Hussain; Director of City Dental College Dr. A S.M
Badruddoza; and Principal of Bangladesh Dental College
Professor Dr. Labuda Sultana for her kind co-operation
during data collection. I am ever grateful to the respondents
who gave their consent and full co-operation during datacollection.

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amongdentalProfessionals. Medical Ethics History of Medicine, 2, 20
Farhat, W., Qiam, F., Shah, S.M.A. et al. Informed consent
in dentistry: perceived importance and limitations in
Khyber Pakhtunkhwa. JKCD. 2013 Jun; 3: 14–19
Kotrashetti, V. S., Kale, A. D., Hebbal, M., & Hallikeremath,
S. R. (2010). Informed consent: A Survey of generaldental practitioners in Belgaum city. Indian Journal of
Medical Ethics, 2010;7:90-4
MAI Khan, A Taleb. Informed consent for Dental Treatment:
A survey on Dental Practioners’ perception Awarenessand Understanding. .Bangladesh Journal of Dental
Research & Education > Vol 2, No 2 July (2012) .
Gupta VV, Bhat N, Asawa K, Tak M, Bapat S, Chaturvedi
P. Knowledge and attitude toward informed consent
among private dental practitioners in bathinda city,
punjab, India. Osong Public Health Res Perspect. 2015
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Sanchit Pradhan1, Sumanth Prasad , Suchi Khurana,
Chinmaya BR , Shourya Tandon. The practice ofInformed Consent among the Dental practioners of NCR.
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Lopez-Nicolas M, Falcón M, Perez-Carceles MD, Osuna E,
Luna A. Informed consent in dental malpractice claims.
A retrospective study. Int Dent J 2007; 57:168-72.
Chate RA. An audit of the level of knowledge andunderstanding of informed consent amongst consultant
ortho- dontists in England, Wales and Northern Ireland.
British Dental Journal 2008; 205: 665-673
Ferrus-Torres E., Valmaseda-Castelion E., BeriniAytes L.
Informed consent in oral surgery: the value of written
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1400. [PubMed]

Legal Pluralism In PostColonial Developing
Countries: The Case ofIndonesia- Hilaire Tegnan
Department of Constitutional Law, Law School Andalas
University, Padang, Indonesia
Email: tegnan1@yahoo.fr- Prof. Dr. Saldi Isra
Professor of Constitutional Law and Director of the Centerfor Constitution Study (PUsaKo), Andalas UniversityPadang, Indonesia
Email: saldiisra@yahoo.com

Abstract
It has been over 70 years since Indonesia
proclaimed her independence in August 1945.
However, the 350 years of the Dutch colonization isstill impacting the life of the Indonesian people. The
difficulties faced by the Indonesian legal system as
the government tries to accommodate adat andreligious principles within the national law and theextent to which this legal mechanism affects theEubios Journal of Asian and International Bioethics 25 (November 2015)
everyday life of the Indonesian people from the legal
perspective are the main focuses of this paper. It
discusses the characteristics as well as the evolutionof the Indonesian legal system which is assumed tohave derived from the Europe Continental Law
through colonization. The research, conducted in 5
cities, reveals that several problems hinder theIndonesian legal system: the foreignness of the law,
the neglect of customary law, half century of military
and totalitarian regimes, corruption within the State’s
apparatus and unsynchronized law.
Keywords: Legal pluralism, adat law, post colonial
developing countries
1. Introduction
In contemporary Indonesia, as in many otherpost colonial countries, three strands of laws prevail,
namely State Law (Hukum Negara), Transnational
Law (treaties and conventions as well as regulations
imposed by international organizations such as World
Trade Organization, the European Union, the World
Bank, the International Monetary Fund, the United
Nations) and customary law (referred to as adat law
or hukum adat hereafter) as the government
struggles to incorporate the rights of its traditional
7
communities (Masyarakat adat) within the state’s
legal system. However, the recognition of these rights
either by the colonial administration or the politicalregimes that ensued was the starting point of a “weaklegal pluralism” as Griffiths puts it, for it was done“rather in an ambiguous way and subject to the8state’s regulatory control”. The political concept
known as Era Reformasi (Reformation Era) ensuing
the fall of the Suharto’s regime in May 1998 isregarded as the Indonesian government’s attempt tobring about political, legal and social changes in
response to the people’s demand for greater
individual freedom, democracy, equality before thelaw and justice for everyone. But more importantly, it
was a call for more regional autonomy and a greater
9
recognition of adat rights to village resources.
2. The Pre-independence Legal System
The Indonesian legal system came into
existence after the proclamation of independence on
August 17, 1945. This constitutes a critical moment in
the Indonesian judiciary affairs because it marks the‘replacement’ of the colonial legal order set by the
Dutch with a ‘national legal system’. The IndonesianConstitution, the 1945 Constitution (Undang Undang
Dasar 1945 or UUD 1945) is the basic law uponwhich every law and regulation is based. All laws
enacted by the Dutch administration duringcolonization were to be repealed because they7

See Article 18b of the Indonesian 1945 Constitution
See Franz and Keebet Von Benda Beckmann, 2001
9
See Kurnia Warman, 2010, 213-70
8

227
10

“contravened the Constitution”.
In fact, before
establishing the Indonesian 1945 Constitution, “onlyDutch rules and regulations were applied throughout
the archipelago to the detriment of the indigenous” asMarzuki (2011) observes. Marzuki also argues that“no modern law existed until the adoption of theReglement op de Rechterlijke Organisatie en Het
Beleid der Justitie (Regulation of Judiciary and the
Policy of Justice), abbreviated as R.O. Algemene
Bepalingen van Wetgeving (General Provision ofLegislation), commonly abbreviated as A.B.,
Burgerlijk Wetboek (Civil Code), referred to as B.W.,
Wetboek van Koophandel (commercial Code),
commonly called W.v.K., and Bepalingen Betrekkelijk
Onvermogen, Misdrijven, Begaan ter Gelegenheid
van Faillisement en bij Kennelijk, Mitsgaders bij
Surseance van Betaling (Provision on Crimes related
to Bankruptcy and Insolvency)”. These laws havebeen enacted by Royal Decree of May 16, 1847 andofficially promulgated in the Netherlands-India
Gazette of 1847 No. 23. The law preceding thecolonial-madeconstitution
calledRegeringsreglement, commonly abbreviated as R.R.
was patterned on the 1848 Netherlands Constitution
as Marzuki claims. The R.R. was used as basic law
made by Dutch Crown and the Netherlands
Parliament in charge of controlling the colony. Such alaw was based on the article 59 paragraphs 2 and 4of the then amended Netherlands Constitution. The
R.R. was enacted on January 1, 1848 and beganeffective in 1885. In the Netherlands, this was just abasic regulation to carry out government power, but
in the colony, it was deemed as a constitution, argues
Marzuki. In January 1, 1942, the R.R., was replacedbytheIndische
Straatsregelingcommonly11
abbreviated as I.S, which was also deemed as aconstitution to the Indonesian but considered by thecolonizer as a law just like the R.R. It was the I.S., theso called constitution that really brought distinction
between ruler and indigenous Marzuki argues. In aview pretty similar to Marzuki’s view, Robert R.
Strang (2008) makes the following observation:“Like many other former colonies of Continental
Europe, Indonesia generally follows the civil law
tradition. During the colonial period, the Dutch
maintained a dual criminal justice system within
Indonesia-one court system for the Dutch and otherforeigners living in the colony and a second court
12
system for indigenous Indonesians, the pribumi.”

10

See Peter Mahmud (2011), An Introduction toIndonesian Law, Chap. I. p.2
11
Read Soetandyo Wignjosoebroto, Negara Hukum dan
Permasalahan
Akses
KeadilandiNegeri-Negeri
Beerkembang Pasca- Kolonial, Konferensi dan Dialog
National Jakarta, 9‐10 Oktober 201212
See R. Strang (2008), More Adversarial, but notCompletely Adversarial: Reformasi of the Indonesian
Criminal Procedure Code. Fordham International Law
Journal Vol. 32 Issue 1

228

Eubios Journal of Asian and International Bioethics 25 (November 2015)

3. The After Independence Legal System“Where men build on false grounds, the more they13
build, the greater is the ruin.”
It is widely assumed that the Indonesian legal
system is based on the Roman-Dutch law due tothree and half centuries of Dutch occupation (1602 –1945). However, prior to the first appearance ofDutch traders and colonists in the late 16th century
thand early 17
century, indigenous kingdoms
prevailed and applied a system of adat (customary)law. The Dutch presence and subsequentcolonization during the next 350 years until the end ofWorld War II left a legacy of Dutch colonial law. A
number of such colonial legislations continue to apply
today. Subsequently, after independence wasproclaimed on 17 August 1945, the Indonesian
government began to create a national legal system
based on Indonesian precepts of law and justice. As
a consequently, three strands of law, i.e., adat law,
Dutch colonial law and Islamic law co-exist in modern
Indonesia. For example, commercial law is grounded
upon the Commercial Code 1847 (Kitab UndangUndang Hukum Dagang or Wetboek van
Koophandel), a relic of the colonial period. However,commercial law is also supplemented by a large
number of new laws enacted since independence.
They include the Banking Law 1992 (amended in1998), Company Law 1995, Capital Market Law
1995, Antimonopoly Law 1999, and the Oil & Natural
Gas Law 2001. Although adat law is lessconspicuous, some adat principles such as“consensus through decision making” (musyawarah
untuk mufakat) appear in modern Indonesian
legislation. Islamic laws came up and have greatly
influenced Indonesian National Marriage Law (ActNo. 1 year 1974), Islamic Court Law (Act No. 7 year1989), Zakat/ Alms law, Wakaf law, Islamic banking
law, and so forth. Islamic law in Indonesia applies
only in civil matters, however in Aceh province, thenorthernmost province of Indonesia, Islamic law also
applies for certain offenses such as adultery,gambling, khalwat (intimate partner gathering without
marriage bound), and selling and drinking alcohol.
The legal bases of such laws are local regulations(Qanun).
4. The Role of the adat law (hukum adat)
When Indonesia achieved independence in
1945, it inherited a justice system combining
traditional, colonial and Islamic legal influences as
discussed earlier. The Dutch administration had dealt
with the plurality of customary norms and institutions
by establishing a hybrid legal system that applieddifferent laws to different racial groups. Europeans
were subject to Dutch law and Indonesians to
traditional customary or adat law. But the notion ‘adat
law’ was not recognized by the Dutch administration
still it was brought up by Snouck Hurgronje in his
13

Read Thomas Hobbes (1651), Theviathan. p. 166

14

work ‘De Atjehers’.
The formal position ofcustomary local institutions changed in 1999 when abroad process of regional autonomy was initiated by
Era Reformasi, the political era that came into being
after the fall of President Suharto and his New Order.
Law No. 22/1999 on Regional Governanceauthorized district governments to rearrange village
governance structures —including dispute resolution
mechanisms — along inclusive and democratic
15
lines. In accordance with regional autonomy, thelaw established democratically elected village
parliaments and devolved a greater degree of
executive authority. On the “judicial” side, article
101(e) gave binding authority to village heads,
together with the Adat Council, to resolve disputes.
The Nagari government in the West Sumatera
16
Province is a good example. Customary justicesystems in Indonesia have contributed immensely inthe dispensation of justice services to poor andvulnerable people. Adat law is a law that originateswith the people in the most direct sense. Adat law
courts are accessible and familiar to the local people
and that is what makes them popular. Generally,
every actor involved into adat legal system such asneighborhood heads, village heads, religious leaders
are based in the village, known to community
members and accessible. By contrast, state legal
institutions are often located in distant district
capitals. A concomitant strength is speed of action.
Lengthy resolution processes can impact on the
livelihoods of the poor, particularly where economic
rights are at stake. In their Reassessing Customary
Law Systems as a Vehicle for Providing Equitable
Access to Justice for the Poors, Minneh Kane, J.
Oloka-Onyango and Abdul Tejan-Cole wrote:
Customary Law systems have many valuable
features. They are flexible; they evolve as
communities evolve and provide communities with asense of ownership, in contrast to formal legal
systems that are perceived as alien to a considerable
number of people in Africa. Customary law tribunals
are inexpensive, accessible, and speedy. Their
proceedings are easily understood by users of thesystem. They are useful when the formal state
institutions are unable to reach the people, or wheresuch institutions have broken down or are affected bycivil strife and conflict.
Even though Customary Law prevails in almost
every aspect of people’s lives, it still faces many
obstacles that make it ineffective. In fact, it isimportant to note that prior to colonialism adat law
was presided over and adjudicated by traditional
cultural leaders, who were often knowledgeable

14

See Peter Mahmud (2011), An Introduction toIndonesian Law. Chap. I. p.4
15
See Law No. 32/2004 on Regional Government(Indonesia), which replaced Law No. 22/1999 on Regional
Government
16
See Hilaire Tegnan, 2015

Eubios Journal of Asian and International Bioethics 25 (November 2015)
about it and vested with the authority of theircommunities to translate it. Transferring the
adjudication of adat law to formal courts has incertain respects caused adat law to lose its original
strength. Adat system has been reduced into asecondary source of law for the formal courts, andtherefore the law that emanates therein issubordinate, if not so much in the same way as theircolonial predecessors did. This is observed bySamuel Clark et al. when they argue:“When the new republic was formed in 1945, national
policypromotedauniform
legal
system.
Institutionally, legal pluralism was viewed as inimical
to nationhood and modernity. Nonetheless, the 1945
Constitution and subsequent amendments haveprovided conditional recognition of traditionalcustomary law. This level of recognition is very
limited, however: judges are required by law to“explore, follow and understand the legal values andsense of justice which exists in society”. While judges
are obliged to take into account the outcomes of nonstate justice deliberations, in reality they are free toignore or pay lip service to this requirement, andindeed many do […] Adat is a default legal source,
applicable only informally or where regulations are
silent.” At least from the state’s perspective, written
state law will always trump customary law.
H.M. Hadin Muhjad (2011) on the other hand
believes that the customary legal system that washanded over by the Dutch administration duringcolonialism period does not reflect the realities ofIndonesian people’s life today. He argues: “We (theIndonesians) have been greatly misled by ruse of
Dutch made law which was established back then for
the Dutch colonial interests. We are more willing toinherit this Dutch law than the law of our ancestors
for sake of prestige. Yet the Dutch law prestige can
not always address administrative issues at thevillage level. We forget that we have customary law
that has been proven for centuries capable ofpreserving
thenaturalandsocio-economic
governance of society. We prefer to underestimate
the quality of customary law, because it is considered
as archaic or plebeian, so consequently we lost ourcivilization or habit.”
5. The Role of the Islamic Law (hukum Shariah)
The existence of Islamic courts in Indonesia dates
back to a nineteenth century Dutch decree
establishing a system of Islamic tribunals on theislands of Java and Madura. The decree createdcollegial courts in which a district-level religious
official called the penghulu acted as chair and was
assisted by member judges chosen from the local
religious elite. The courts were vested with power todecide over family disputes, but execution of thecourts’ decisions required an executory decree fromthe civil court. The system was expanded to south
Kalimantan in the 1930s, but at the same time thejurisdiction over inheritance was transferred to the229

civil courts. At independence, the Islamic judiciary
was placed under the authority of the Ministry of
Religion, which used executive powers to expand thesystem to other parts of the country. On 29
December 1989, Law No. 7 of 1989 on the Religious
Court (Pengadilan Agama) was passed by the
People’s House of Representatives or Dewan
Perwakilan Rakyat (DPR). This law proves theimportant of the Religious Court in Indonesian law
and the community in general. The Religious Courts
can be found at the municipal level and Religious
High Courts are located in the capital city of eachprovince. The jurisdiction of the Indonesian religious
courts also include inheritance cases as well as somecases involving economic transactions based on
Islamic law. In 2004, the administrative supervision of
the Islamic judiciary was transferred from the Ministryof Religion to the Supreme Court. In 1999, theprovince of Aceh was granted special autonomy
status that included the authority to enforce Islamic
law. The Dutch did not seek to regulate theadministration of Islamic law beyond the territory ofJava, Madura, and parts of Borneo. In other parts ofthe colony, the matter remained under the control of
17
local authorities.
Other areas, including Aceh,
Jambi, Sambas, Pontianak, east coast of Borneo,
South Sulawesi, Ternate and Ambon had separate
Islamic tribunals staffed by judges called “qadi”
18(sometimes written “kadi” or “kali”) or “hakim.
Finally, in West Sumatra, religious issues were
decided by an assemblage of customary or adat
leaders and religious officials that was called the19“Friday Council”. It is important to note that eventhough Islamic law seems to have strong power inmany areas, Religious Judicature Act, declares theSupreme Court to be the highest judicial authority on
20
matters of Islamic law. The Indonesian Islamic
Courts have jurisdiction over marriage and divorce.
The Marriage Act deals with the substantive law ofmarriage and divorce. However, when new courts
were created in other parts of the country after
independence, the jurisdiction of these new tribunals
was defined more broadly to include both matrimonial
causes and inheritance. Many discrepancies in thejurisdiction of Islamic Courts in different areas
remained until the passage of the Religion Law in1989, which, for the first time, established a uniform
jurisdiction for all Islamic tribunals nationwide. Islamic
law has contributed not only into bringing notions like
morality, ethics and decency within the politic arena,
but it also helped maintaining public order. Leaders
17

Read Marck E. et al., The Islamic Legal System inIndonesia
18
Examples of decisions made by Islamic tribunals fromsouth Sulawesi and Ternate can be found in 29 Adat
Rechtbundels: Bezorgd Door de Commissie Voor Het
AdatRecht 37-201 (1928).
19
See Supomo, supra note 17, at 74.
20
See Religious Judicature Act, Act No. 7/ 1989, and art. 35(1)230

Eubios Journal of Asian and International Bioethics 25 (November 2015)

have used the powers granted them through thedecentralization laws to implement regulations
relating to the wearing of Islamic dresses, proscribe
conduct such as prostitution, gambling, and sale orconsumption of alcohol, the insertion of Arabic
programs at school, the prohibition of sexualintercourse before marriage and the administration of
the Islamic Tax (Zakat). However, despite the factthat the majority of the Indonesian population isMuslim, the post independence government did not
opt for the implementation of Islamic Law (Hukum
Shariah) in Indonesia, the world largest Islamic State.
Studies suggest that this was mainly due to politicalreasons as well as the divergence among the world
Islamic Schools as noticed by Francois Borella(2008). In fact, Borella argues that between 750 and
850 AD, four Islamic Schools of Law gradually gained
power as the orthodox interpretation of the Sharia
giving birth to fiqh or legal science. Named after theirauthor, these four schools of law spread today
throughout every major Islamic State or dar al Islam(House or Country of Islam): North Africa and Sub21
Saharan is maliki (founded by Malik ibn Anas),
Egypt, the Middle East, and Central Asia are hanafi(founded by Abu Hanifa an-Nu‘man), Saudi Arabia
and Qatar are hanbali (founded by Ahmad ibn
22
Hanbal),Eastern Africa and Asia are chafi’I
23(founded by Muhammad ibn Idris ash-Shafiʿi).
These schools have different views on technical24
matters. Islam, clearly, could not be the foundationof the Indonesian legal system in that the Indonesian
population, contrary to many Islamic States is nothomogenous. The Indonesian “founding fathers”
understood this when Sukarno declared thatIndonesia should rest on nothing but the doctrine ofPancasila (Sanskrit for “five principles”) defined in theconstitution as “a belief in the one supreme God; justand civilized humanity; the unity of Indonesia;
democracy guided by the inner wisdom ofdeliberations among representatives; social justicefor all the Indonesian people. Proclaiming Indonesia
as an Islamic state at the dawn of independence wastoo controversial a decision to be realistic, theminority Christians would have objected and those inEastern Indonesia might have been tempted to25
secede as Robert Cribb puts it.
21

See Hisham M. Ramadan (2006), Understanding Islamic
Law: From Classical to Contemporary, Rowman Altamira,ISBN 978-0759109919, p. 26-27
22
Ibid. p. 24-29
23
See Abdullah Saeed (2008), The Qur'an: An Introduction,
Routledge, ISBN 978-0415421256, p. 17
24
Read Francois Borella (2008), Elements de droit
constitutionel. Paris Presses de Sciences Po, p.344
25
Read Donald K. Emmerson (1999), Indonesia Beyond
Suharto, Polity, Economy, Society, and Transition. M. E.
Sharpe, Inc. Armonk, New York. Chap.I, p.21. See also
Adam Schwarz and Jonathan Paris (1999), The Politics ofPost- Suharto Indonesia. Council on Foreign Relations
Press, New York.

6. Mistakes within the Indonesian Legal System
6.1. Law was acquired instead of innate
In the authors view, two mistakes occurred in theshaping of the Indonesian legal system: first, thelegal system was imposed from above on adiscriminatory basis and second, it did not evolvefrom the Indonesian tradition, principles and way oflife. Wignjosoebroto (2012) helps explain thisassertion when he observes that the concept ofRechtsstaat (from which the Indonesian legal system
is derived) is foreign to Indonesian civilization. He
claims that “it involves a populist revolution that
occurred in Western civilization, since law is the
product of a nation's history”. In a view identical to
Mazurki, Wignjosoebroto argues that the then Dutchcolonial administration clearly separated the areas ofjurisdiction law in Indonesia: one that applies toDutch citizens and other Westerners, and one for
non-European
populationgroups.
Indigenous
population groups on the other hand were under asystem referred to as "zijn eigen gewoonte,
gebruiken en godsdienstige instellingen" (indigenous
traditions, customs and religion). Wignjosoebrotoconcludes that this dual system has helped create a26
legal gaps.
Much in the same position as
Wignjosoebroto, Taiwo (2009) observes that the legal
system in Britain emerged as a single element,
among several others, in a movement towardepochal social transformation from feudalism tocapitalism, from the middle ages to the modern age.
He claims that the transformation had multiple facets:
philosophical, economic, political, legal, religious,
social, and so on, and that legal system did not
emerge in isolation from these other elements,
although they did not all evolve at the same time. The
victory of the legal system was part of the triumph ofa way of life that was all-encompassing in its effects
while in Africa the legal system was not introduced aspart of a program of general social transformation. It
was not the outgrowth of a system of interrelatedorganic institutions. Quite the contrary, it originatedas a tool, a weapon in the arsenal of the colonial
authorities for the singular purpose of keeping thecolonies and protectorates safe for the colonizers andthe natives in their place. It was a part of the coercive
institutions fabricated by the colonial state to secure
its rule over unruly “natives.” As such, there was nointerest on the part of those responsible for its
introduction to plant the whole seed from which a fullygrown plant might have been cultivated. Nor was
there any chance that an organic system could havebeen replicated in the dependencies for logical and27
practical reasons.

26

See Soetandyo Wignjosoebroto, Negara Hukum dan
Permasalahan
Akses
KeadilandiNegeri-Negeri
Beerkembang Pasca- Kolonial, Konferensi dan Dialog
National Jakarta, 9‐10 Oktober 201227
See Olufemi Taiwo (2009), How Colonialism Preempted
Modernity in Africa. Indiana University Press. p. 168-169.

Eubios Journal of Asian and International Bioethics 25 (November 2015)

231

Table 1: Law making process
Type of answer, Gender & Number of Respondent
Bottom-up
Top downother
Sex of Respondent
Sex of Respondent
Sex of Respondent
Male
FemaleMale
FemaleMale
FemaleAge ofRespondent
18-28
29-39
40-50
51-61
62-72
TOTAL
%
Combined %

75
17
12
11
5
120
72

61
13
15
1

22
10
2
6

16
14
5

90
67

40
24

35
26

4

6
1

2
2

70

6
4

9
7

25

5

Table 2: the impact of Western law
Type of answer, Gender & Number of RespondentAge ofYes
Maybe
No
No Idea
Respondent
Sex of Resp.
Sex of Resp.
Sex of Resp.
Sex of Resp.
M
F
M
F
M
F
M
F
18-28
29-39
40-50
51-61
62-72
TOTAL
%
Combined %

26
11
6
7
4
54
33

21
5
4

46
5
6
7

44
15
8
3

30
22

64
39

70
52

28

26
9
3
3
1
42
25

45

12
4
8

3
2
1

6
4

24
18

6
4

10
7

22

5

Table 3: The people’s view on the Indonesian Legal System
Type of answer, Gender & Number of RespondentAge ofReliable
BiasedConfusingNo idea
Respondent
Sex of Resp.
Sex of Resp.
Sex of Resp.
Sex of Resp.
M

F

M

F

M

F

M

F

18-28

21

13

24

23

52

46

4

1

29-39

3

5

5

6

18

16

1

1

40-50

3

5

4

6

8

7

1

2

51-61

13

1

2

2

2

62-72

2

1

2

TOTAL

42

24

36

35

82

71

6

4

%

25

18

22

26

49

53

4

3

Combined %

22

24

51

3

Table 4: the connection between the legal system and adat
Type of answer, Gender & Number of RespondentAge ofYes
Maybe
No
No idea
Respondent
Sex of Resp.
Sex of Resp.
Sex of Resp.
Sex of Resp.
M
F
M
F
M
F
M
F
18-28
29-39
40-50
51-61
62-72
TOTAL
%
Combined %

45
13
6
7
3
74
45
40

32
7
5
1

25
7
3

22
8
6
1

45
34

35
21

37
28
24

29
7
10
7
2
55
33
35

28
12
8
1

2

1
1
1

49
37

2
1

3
2
2

232

Eubios Journal of Asian and International Bioethics 25 (November 2015)

Table 1 is the result of the research I conducted on
the questions as to whether law making process
should be top down or bottom-up, and whether or not
the inheritance of a colonial legal system is beneficial
to Indonesia. The research shows that 70% of the
respondents think law emerges from below. It can beinferred from this study that a great majority of theIndonesian population believes that law should not be
imposed from above, so therefore it was detrimental
to Indonesia to import law. Table 2 justifies this.
As can be noticed from Table 2, 22% of the 300
respondents think that bringing in colonial legal
system was not a good idea, 28% believe it helped
Indonesia and 45 % are in doubt. It can be inferredthat the 45% in doubt could mean that the Indonesian
legal system is so complex a system that much of the
population has little or confusing knowledge about it.
It could also be inferred from the above result that if avast majority of the people is in doubt then colonial
legal system inheritance was not a good idea as it
seems to have brought about legal confusion insteadof legal certainty − one of the core principles of thelaw. The above data is justified by Table 3. When
asked what their opinion on the Indonesian legal
system was, the respondents again adopted thesame view.
The data shows that 51% of the respondents thinkthat the Indonesian legal system is confusing, 24%
find it biased while only 22% think it is reliable.
6.2. The neglect of customary law“It is true indeed that, in the profound ignorance ofletters, which formerly overspreadthe wholewestern world, all laws were entirely traditional, forthis plain reason, because the nations among which
28
they prevailed had but little idea of writing” .
The second clog within the Indonesian legal system
is its failure to take its roots in the Indonesiancustoms. According to Article 7 paragraph (1) of Law
No. 12 / 2012, the following is the hierarchy of laws inIndonesia:
1. The Indonesian Constitution (Undang-undang
Dasar 1945);
2. The Provision of People's Consultative Assembly(MPR);
3. Statutes (Undang-undang) / Interim Emergency
Laws (PERPU);
4. Government Regulation (Peraturan Pemerintah);5. Presidential Regulation (Peraturan Presidenor
PP);
6. Provincial Regulation (Peraturan Daerah or
Perda);
7. District Regulation (Peraturan Kota).
Much like within the 1945 Constitution, no room ismade for hukum adat whose condition has remained
the same as during colonialism. In Western Europe,
the tiny part of the world whose civilization has
28

See Sir William Blackstone (1765-1769), Commentariesof the Laws of England. p.60

dominated the rest of the world, customary laws wereat the epicenter of the legal systems. The term
Common Law which means law developed as aresult of custom and judicial decisions suffices toprove this reality. Clarence Darrow (1922) agrees that
custom is the true driving force of the law. During the
pre-revolutionary period in America, the thirteencolonies developed their own judicial systems despite
the enormous influence of the England common law
legal system each had its own local variations and29
customs to which strong attachment developed .
The importance of customs in shaping the legal
system is demonstrated by Clarence Darrow (1922)
when he argues that men from the earliest timearranged themselves into groups; they traveled in acertain way; they established habits and customs andways of life. These “folk-ways” were born long before
human laws and were enforced more rigidly than thestatutes of a later age. Slowly men embodied their“taboos,” their incantations, their habits and customs
into religions and statutes. He emphasizes that a law
was only a codification of a habit or custom that long
ago was a part of the life of a people, and that thelegislator never really makes the law; he simply
writes in the books what has already become the ruleof action by force of custom or opinion, or at least
30
what he thinks has become a law. However, Darrow
goes on to say that neither conscience nor religion(though it is a higher and more binding on man thanhuman law) is the foundation of the law. In fact
Darrow believes that religion is controversial as it
rests on interpretation, and even the things that seemthe plainest have ever been subject to manifold andsometimes conflicting construction. He therefore
concludes that religious doctrines do not and clearly31
cannot be adopted as the criminal code of a state.
As for conscience, Darrow argues that it is purely amatter of environment, education and temperament,
and is no more infallible than any habit or belief.
None of the generally accepted theories of the basisof right and wrong has ever been the foundation oflaw or morals Darrow observes (pp. 7-9). He claims
that the true driving force of the law is custom− thefolkway. These customs and folk-ways must be soimportant in the opinion of the community as to maketheir violation a serious affair. Such violation isconsidered evil regardless of whether the motives are
selfish or unselfish, good or bad. Darrow concludes
that laws which interfere with the habits, customs andbeliefs of a large number of people never receive theassent of so large a percentage as to make people
conscious of any wrong in violating them, andtherefore people break them when they can (p. 79). I

29

Read Sandra Day O’Connor (2003), The Majesty of theLaw, reflection of the Supreme Court Justice. Chap 22
30
Read Clarence Darrow (1922) Crime: Its Cause andTreatment, the Pennsylvania State University Electronic
Classics Series 2004. p.9, 78
31
Ibid. p. 7

Eubios Journal of Asian and International Bioethics 25 (November 2015)
surveyed 300 people in 5 major towns on thequestion as to whether or not the legal system
reflects their culture. Table 4 displays what thesurvey came up with.
The data informs us that most Indonesian people
have mixed views on whether or not the legal systemreally mirrors their culture as only 40% answered
affirmative while 35% think otherwise. The 24% thatanswered ‘maybe’ also proves that the Indonesian
culture is yet to be fully incorporated within the legal
system. However, it is important to note that
Parliament members are not always to blame. The
neglect of customary laws has partly to do with theinefficiency of some customary institutions whichhave renounced their duty of holding the Parliament
accountable for failing to uphold adat principles. Most
adat institutions seem to lack any interest in the law
making process and would rather handle petty crimes
32
while living off government handouts.
6.3. Half Century of Military and Totalitarian
Regimes
The first Indonesian organisation of armed
forces was established on 22 August 1945 and wascalled the Badan Keamanan Rakyat (BKR/People’s
Security Board) aimed at ‘maintaining security
together with the people and related state bodies’.
However when President Sukarno took power, hechanged the name of BKR to Tentara Keamanan
Rakyat (People’s Security Army/TKR) on 5 October
1945 marking the birth of the Indonesian military.
This date even today is considered the anniversary of
33
the Indonesian Armed forces. The involvement of
the army in political arena after Indonesian
independence is due to the fact that the very soldiers
who fought for independence and later reorganised
themselves to form the military base of the nation hada prior history of being members of politicalorganisations and the militia wings of political parties
during the Dutch colonial era. Two important events
34
contributed into the influence of the Army in politics:
1. The declaration of martial law in 1957 allowing
the military to get involved in politics as they ran thestate of emergency; and2. The introduction of the ‘middle way’ concept in1958 by the then Army Chief of Staff A.H Nasution.
The middle way basically provided the opportunity
for TNI (the new Indonesian Military) to become
involved in the government on the basis of the “Asas32

During an interview at his office on December 18, 2014,
Dr. Risnaldi, a DPRD Member told me that adat leaders do
not make use of the procedure given to them for having a
say in legislations in West Sumatra. He explained that not
making use provided means signifies that adat leaders
simply do not submit reports of their concerns to the local
DPRD.
33
Read Ikrar Nusa Bhakti et al., Military Politics, Ethnicity
and Conflict in Indonesia. Crise Working Paper No. 62
January 2009. p.6
34
Ibid. p. 7

233

Kekeluargaan” principle (the Family Principle). These
ideas were later developed by the New Order underSuharto who took power following the politicalviolence of 1 October 1965 as the representative of
the military then referred to as Angkatan Bersenjata
Republik Indonesia (ABRI)- Indonesian Armed
Forces, ABRI). Suharto was officially inaugurated
35
president in 1968. Elections were held in 1971, butthey were tightly controlled by the government. The
government-backed Golkar (Golongan Karya) party
secured most of the seats in the House ofRepresentatives, as it would in each of the elections
held at five-year intervals thereafter. Similarly, thePeople’s
Consultative
Assemblyor
Majelis
Permusyawaratan Rakyat (MPR) routinely returned
Suharto to the presidency, unopposed, at five-year
intervals. He then used the military to build personal
power and a dictatorship. To support his efforts,
Suharto established a pyramid base whereby he36
controlled all resources of power.
Table 5: Number of ABRI seats in DPR from1967 to 1999
Year
ABR SEATS
TOTAL
SEATS
1967

43

350

1968
1969

75
75

414
460

1985
1992
1997
1999

100
100
75
35

550
550
550
550

Source: Ikrar Nusa Bhakti, Sri Yanuarti and Mochamad
Nurhasim, Military Politics, Ethnicity and Conflict inIndonesia. Crise Working Paper No. 62 January 2009

Similarly, the military was not only involved inpolitics but in the legislative. In fact during Orde Baru
the military held a certain number of seats in theHouse of Representatives and the People’s
37
Consultative Assembly.
During Suharto’s
administration the demand of military group that onefifth of the members of provincial district assemblies,
approximately one-fourth of the members of
Parliament, and one-third of the members of the35

Under both Sukarno and Suharto’ regimes no direct freeand democratic elections were held. Their terms wereextended only through votes in unrepresentative
parliaments. The Parliament during that time period was
unrepresentative because a vast majority of the seats washeld by military officers chosen by the president since all
the political parties were banned back then (see table 5).
36
Read Ikrar Nusa Bhakti et al., Military Politics, Ethnicity
and Conflict in Indonesia. Crise Working Paper No. 62
January 2009. P.6
37Adam Schwarz and Jonathan Paris (1999), The Politics
of Post- Suharto Indonesia. Council on Foreign Relations
Press, New York. p. 3-15234

Eubios Journal of Asian and International Bioethics 25 (November 2015)

People's Congress be appointed by President
Suharto's military establishment was agreed to in late1969 with nearly no major opposition from thepolitical parties. However, the 360 members of
Parliament not appointed by the military were to beelected on the basis of party preference rather than38
individually. Table 5 presents the number of seats
held by the armed forces during Suharto’s
presidency:
Vital to the New Order and how it worked were
Indonesia’s army forces. They maintained thedomination of the state over society. They justified
their intervention in civilian politics under the doctrine
39
known as dwifungsi, the dual function. According tothis idea, the armed forces has two closely relatedroles; to defend the country not only fromconventional military threats originating abroad, butalso from domestic dangers of any kind, military,politics, socioeconomic, cultural, or ideological. The
armed forces implemented the interventionist dualfunction doctrine by placing active and retired military
personnel in the assembly, parliament, and provincial
and district legislatures; in executive and staff
positions in central, provincial, and district
administration; in positions of formal and informal
authority over Golkar; and by keeping the population
under surveillance through territorial command thatcovered the country from Jakarta to the outermost
islands and down to every village. Serving officers
occupied roughly one-fifth of the seats in every
regional legislature, where they reported to their local
commanders, and in national parliament andassembly. Serving and retired officers wereappointed to post in civilian government for reasonsof patronage and control. Nearly half of the provincial
governorship and district headship, by far the mostimportant civilian government positions in the regions
40
were also in military hands. However, since theadvent of Era Reformasi, the Indonesian Military has
given up its duafungsi and has returned to its primary
duty that is to defend the integrity of Indonesia and its
people against possible attacks both from within and41
outside. The unprecedented example of the noninvolvement in politics is the role it played during theimpeachment process of President Abdurraman
Wahid in July 2001. The military refused to back him
up when he attempted to hold onto power by issuing
an emergency decree to dissolve the Parliament that38

Read Donald K Emmerson (1999), Indonesia Beyond
Suharto, Polity, Economy, Scietty and Transition. Chap. 2
p. 44-45
39
Under Suharto's regime, the dual function (dwifungsi) of
the military as both a defence force and a participant incivilian politics and governance was legitimised by Law No.
20/1982 on State Defence Regulations.
40
Read Donald K. Emmerson (1999), Indonesia Beyond
Suharto, Politics, Economy and Transition. p. 44-48
41
Read Adam Schwarz and Jonathan Paris (1999), The
Politics of Post- Suharto Indonesia. Council on Foreign
Relations Press, New York. p. 11-15

filed two separate censures of MPR against Wahid
alleging corruption and incompetence.
6.4. Corruption within the State’s apparatus“CORRUPTION does not happen merely, because
we have BAD PEOPLE, but also because we have a
42
BAD SYSTEM”
Corruption has long been one of the most criticalproblems
that
underminetheIndonesian
administration. The symptoms of this social disease
were felt as early as during President Sukarno’s
regime. In no way this means that corruption did notexist under the Dutch colonial administration. The
period ensuing independent is relevant as it marks
the birth of a new State capable of running its own
affairs. After independence was gained, two politicalregimes, i.e. the Sukarno and the Suharto regimes
considered by most Indonesian as well as foreignscholars as the most totalitarian and the most corrupt
regimes Indonesia has ever had, contributed into
plundering the vast majority of the wealth the country
has. Although some of Suharto’s policies are deemed
to have brought about considerable economic growth,
many of his actions worked towards the very opposite
direction of the alleged achievement. A large share ofIndonesia’s wealth was concentrated in the hands of43
the president’s family and their associates. Bhakti
argues that Suharto’s regime created a lot of
problems to Indonesians, including human suffering,corruption,collusion,
nepotism,
economic
dependency on foreign debt, and economic collapse.
Apart from that, during the Suharto period, there was
44
no political freedom at all. Since its advent, Era
reformasi (the political era that came into being after
the collapse of Suharto and his Orde Baru) vowed torid the sociopolitical and legal fields of corruption byembarking on massive reforms; hence its name.
Today however, though these reforms sound45
beautiful, they seem unable to eradicate corruption.
Not only has corruption taken roots within the central
government, but it has also spread throughout nearly46
every Indonesian province.
The Era Reformasi
having realized the escalation of corruption inIndonesia decided to go at war with it by creating acommissionfor
its
eradication
orKomisi
Pemberantasan Korupsi (KPK). KPK is a stateagency which, as it says, in the course of performing
its duties and authority is independent and free fromany influences. Since modern corruption in Indonesia
is catalogued as an extraordinary crime, the creation
of KPK is based on the need for its systematic

42

A quote in KPK’s Annual Report 2007
Read Adam Schwarz and Jonathan Paris (1999), The
Politics of Post- Suharto Indonesia. Council on Foreign
Relations Press, New York. p. 5-15
44
See Ikrar Nusa Bhakti, The Transition to Democracy inIndonesia: Some Outstanding Problems.
45
See KPK’s Annual Repports from 2004 to 2014.
46
Ibid.
43

Eubios Journal of Asian and International Bioethics 25 (November 2015)
47

eradication. According to Law No. 30 of 2002, KPK
is vested with the authority to:
1. coordinate with other institutions authorized toeradicate corruption;
2. supervise institutions authorized to eradicate
corruption;
3. to perform pre-investigations, investigations, andprosecutions against corrupt acts;
4. toperform
preventive
actions
againstcorruptions; acts and;5. to monitor state governance.
KPK investigates acts of corruption committed byGovernment officials (The trial of former Minister for
Religious Affairs (2005) along with his former
Secretary General and the arresting of former Chiefof BKPM (Investment Coordinating Board), Governor,
Regent, Mayor, Members of Parliament, Board of
Directors of State-Owned Enterprises, National
Police, and Civil Servants. It basically holds everyone
having public authority accountable for their actions
before the Indonesian people. Today, KPK regards
itself as a “catalyst of corruption eradication and48
governance reform”.
The battle to eradicate
corruption in Indonesia is not a recent initiative. In
fact, several institutions aiming at the eradication ofcorruption had existed before the creation of KPK.
Those institutions are: the Military Operation (1957),
the Corruption Eradication Team (1967), theCommission for the Appraisal of the Wealth ofGovernment Executives (KPKPN), and the Joint
Commission for Corruption Eradication (2000). But
according to KPK’s Commissioners, those previous
institutions were not focused on prevention efforts.
There is no better place or institution to look for dataon corruption than KPK. The following diagrams
show the number of corruption cases prosecuted by
KPK from 2004 up to 2014.
Table 6: Corruption cases prosecuted by KPKfrom 2004 to 2012

235

cases; 2- Heads of Institution/Ministry: 07 cases; 3Ambassadors: 04 cases; 4- Commissioners: 07
cases; 5- Governors: 08 cases; 6- Mayors/Regentsand Deputies: 32 cases; 7- Civil Servants Echelon I,
II, and III: 107 cases; 8- Judges: 05 cases; 9- Private
Institutions: 70 cases; Others: 32 cases.
From 2004 to 2012 KPK has handled a total
number of 337 corruption cases from the Indonesianmost trusted Individuals and Institutions. Of all these
corruption cases, the three government branches
account for 128. The Table 7 is the number of
corruption cases dealt with by KPK during the year
2013.
Table 7: Corruption cases prosecuted by KPK in2013

Source: KPK’s Annual Repport.
The corruption cases concern the same types ofprofessions as Table 6: 1- DPR/DPRD Members: 08
cases; 2- Heads of Institution/Ministry: 04 cases; 3Ambassadors: 0 case; 4- Commissioners: 0 case; 5Governors: 02 cases; 6- Mayors/Regents and
Deputies: 03 cases; 7- Civil Servants Echelon I, II,
and III: 07 cases; 8- Judges: 04 cases; 9- Private
Institutions: 24 cases; Others: 07 cases.
In 2013 alone, KPK handled a total number of 59
corruption cases of which the three government
branches account for 21. Table 8 presents thenumber of cases supervised by KPK in the year
2014.
Table 8: Corruption cases prosecuted by KPK in2014

Source: KPK’s Annual Repport.
The first and second columns show the numbers
and types of professions while column number three
to eleven display the years. The last row shows thetotal number of cases handled. The professions andtheir corruption cases from 2004 to 2012 aretranslated as follows: 1- DPR/DPRD Members: 65
47
48

See the KKP’s Annual Report 2004
See KPK’s Annual Report 2005

Source: KPK’s Annual Report.

236

Eubios Journal of Asian and International Bioethics 25 (November 2015)

The types of professions are as same as in the twoyear 2014 is 54 of which the three government
tables above: 1- DPR/DPRD Members: 04 cases; 2branches account for 29. From 2004 to 2014, KPK
Heads of Institution/Ministry: 09 cases; 3has investigated and repressed 450 corruption cases
Ambassadors: 0 case; 4- Commissioners: 0 case; 5not to mention those dropped due to lack of sufficient
Governors: 02 cases; 6- Mayors/Regents andevidence. Of these 450 cases, 77 were perpetrated
Deputies: 12 cases; 7- Civil Servants Echelon I, II,
by the Legislative. No wonder it seems to have lostand III: 02 cases; 8- Judges: 02 cases; 9- Private
the trust of the Indonesian people. The following data
Institutions: 15 cases; Others: 08 cases. The total
justifies this assumption (Table 9).
number of corruption cases handled by KPK in the
Table 9: The representability of the ParliamentType of answer, Gender & Number of RespondentAge ofYes
Maybe
No
Respondent
Sex of Respondent
Sex of Respondent
Sex of Respond
Male
FemaleMale
FemaleMale
Female
18-28
12
15
34
28
55
40
29-39
8
4
4
11
15
13
40-50
4
3
3
5
9
12
51-61
4
4
1
9
2
62-72
1
1
3
TOTAL
29
22
46
45
91
67
% Male/Female
17
16
28
34
55
50
Combined %1730
53Table 10: evaluation of KPK’s work
Type of answer, Gender & Number of RespondentAge ofYes
Maybe
No
Respondent
Sex of Respondent
Sex of Respondent
Sex of Respond
Male
FemaleMale
FemaleMale
Female
18-28
77
50
19
26
5
7
29-39
22
19
3
8
2
1
40-50
15
8
1
9
2
51-61
15
3
1
2
62-72
5
TOTAL
134
80
24
43
9
10
% Male/Female
81
60
15
32
5
7
Combined %
71.3
22.3
6.3
Table 11: the people’s trust in the police
Type of answer, Gender & Number of RespondentAge ofYes
Maybe
No
More or less
Respondent
Sex of Resp.
Sex of Resp
Sex of Resp.
Sex of Resp.
M
F
M
F
M
F
M
F
18-28
32
24
2
3
63
54
4
2
29-39
12
4
1
13
23
1
1
40-50
7
3
4
8
12
1
1
51-61
11
1
6
2
62-72
5
TOTAL
67
32
3
7
90
91
6
4
% Male/Female
40
24
2
5
54
68
4
3
Combined %
33
3.3
60
3.3
The above data shows that a vast majority of theIndonesian people thinks the Parliament does not
represent them. It is very common to hear the people
say that the Parliament is staffed with folks who fightto advance their personal interests. It also can beseen from the above data that not a single year
passes without a case of corruption from theIndonesian Parliament both at central and regional

levels being prosecuted by KPK. Ever since its
creation, KPK’s actions have been criticized by someindividual (mostly those who benefit from corruption)as unconstitutional. But for the vast majority of theIndonesian people KPK is contributing in establishing
the rule of law in Indonesia. When asked what theiropinion on the work of KPK is, this is what the
respondents have to say (Table 10)

Eubios Journal of Asian and International Bioethics 25 (November 2015)
It can be inferred from the above data that the work
of KPK is appreciated by a vast majority of theIndonesian people. Consequently, this shows that
KPK has the support of the majority of the Indonesianin its struggle to build a corruption-free Indonesia.
Besides the legislative, corruption also prevails
whitin the judiciary. It spreads from the locale Police
to the Lower Courts before making its way to State’s
Higher Courts (the arrest of the Constitutional Chief
Justice by KPK in 2013 is sadly one example). Under
the 1945 Constitution, the Indonesian Police force orPolisi Republik Indonesia (POLRI) is vested withpower to enforce the law. In fact, Article 30 section 4of the Indonesian Constitution stipulates that POLRI,
as an instrument of the state that maintains publicorder and security, has the duty to protect, guard, andserve the people, and to uphold the law. This makes
the police the very first guardian of the law.
Unfortunately it seems like POLDA has lost credibility
in the eyes of the population. My study investigates
the relationship between the police and theIndonesian population by respondents whether or notthey trust their local police as well as the Indonesian
Police in general. Table 11 provides answers to thisquestion:
The research reveals that 60% do not have trust in
the police. When I asked the reason why, most of the
respondents pointed at corruption. The police officers
are not to the only ones to blame, the system ofrecruiting police officers, too, has a great part ofresponsibility. In fact, although there is no official
data, it is repeatedly heard that a significant sum ofmoney needs to be paid to whoever has power within
the police hierarchy if one wants to join the forces.
Should this be true, a policeman might want to getback all the money he paid by unjustly and illegallytaxing the population. There is a lack of data because
the subject matter is corruption which is always
underground, thus elusive. It can also be inferredfrom the above data that a vast majority of theIndonesian population thinks that the police does notor cannot provide justice. This really is detrimental to
the rule of law whose purpose is to strengthen
institutions of the state by increasing the people’s
trust inthem. The people’s mistrust in the police
contributes into weakening the justice system.
Another major factor that contributes into weakening
the Indonesian justice system is the corruption of thejudges. The corruption within the judiciary has been
exposed to the public by the Corruption Eradication
Commission or Komisi Pemberantasan Korupsi(KPK) ever since its establishment in 2002 under Law
No. 30 of 2002. From 2004 to 2014, KPK has
investigated and repressed 450 corruption cases not
to mention those dropped due to lack of sufficientevidence. Of these 450 cases, 77 were perpetrated
by the Parliament members and 11 were committed
by High Court judges. The arrest of the Constitutional
Chief Justice in 2013 is the most critical of all thecorruption cases prosecuted by KPK. In fact, on the237

night of 02 October, 2013, Constitutional Chief
Justice, Akil Mochtar, the highest officials of thecountry and therefore head the highest institution oflaw enforcement in Indonesia (the Constitutional
Court or Makahmah Konstitusi (MK)) was arrested by
KPK. He was suspected of accepting bribes related
to the election dispute case of two heads of theregion, namely in Gunung Mas, Central Kalimantan
and Lebak, Banten. The alleged corruption involved
evidence of money around Rp. 3 billion in foreign
currency and Rupiah. KPK steeped in this corruption
case after receiving a report from the public since thebeginning of September that year. Such a scandal
not only ruins the reputation of the IndonesianConstitutional Court, but more importantly, it does
help reinforce the skepticism of the Indonesian
people toward their institutions. The Indonesian 1945
Constitution recognizes five courts: Public Courts,
Religious Affairs courts, Military Tribunals, and State
Administrative Courts, and Constitutional Court.
When asking the Indonesian people what in theiropinion all these courts suffer most, they mostly pointat corruption. It is very common to hear people saythat the Indonesian Justice System only works for theaffluents, that ‘all you need to win is money’, says a
respondent during the research.
6.5. Unsynchronized Law
The Indonesian Legislative order is set forth in
Article 7 paragraph (1) of Law No. 12 / 2012 asfollows:• The Indonesian Constitution (Undang-undang
Dasar 1945);• The Provision of People's Consultative Assembly(MPR);• Statutes (Undang-undang) / Interim Emergency
Laws (PERPU);• Government Regulation (Peraturan Pemerintah);• Presidential Regulation (Peraturan Presidenor
PP);• Provincial Regulation (Peraturan Daerah or
Perda);• District Regulation (Peraturan Kota).
For the Indonesian legal system to be intelligible
and effective there should be a verticalsynchronization
betweentheabove
Laws/Regulations (though no room is made forcustomary law). This means that each type of law
must not conflict with any law higher than its own
type in the hierarchy; and a law can amend or repeala law lower than its own type in the hierarchy. Simply
speaking, a Provincial Regulation or Peraturan
Daerah (Perda) is legally valid, only if/when it does
not contradict a law higher on the hierarchy; and,once passed, a Perda may be canceled by any
statute higher on the hierarchy. Unfortunately
however, numbers of contracting laws within theIndonesian Legislation help prove that conformity inlaws is yet to be achieved. My study on the West
Sumatran communal land (tanah ulayat) tenure came

238

Eubios Journal of Asian and International Bioethics 25 (November 2015)

up with some contradictions between central andregional laws.
Case 1: Provincial Government regulation No.
9/2000, nagari government is vested with authority
over tanah ulayat for the benefit of all community
members, yet there is a Presidential Decree (Decree
No. 10/ 2001) promulgated in 2001 that says land
administration throughout Indonesia should becentralized. This Provincial Regulation not only
contradicts the Presidential Decree, but it is also incontradiction with Article 33 section 3 of theIndonesian 1945 Constitution which stipulates that
land, the waters and the natural resources withinshall be under the powers of the State and shall be
used to the greatest benefit of the people.
Case 2: Indonesian Government Regulation No.
24/1997 in its Article 9 Section 1 says the types oflands subject to registration throughout Indonesia are
the following:
1. land property, the right to cultivate, to build, andto use.
2. land management rights;
3. property for religious and social purposes;
4. apartment ownership;
5. mortgage;
6. State land.
Clearly the provision does not include tanah ulayat
as land that can be registered. Nevertheless, theWest Sumatran Local Government enacted Law No.
16/2008 which, unlike the Basic Agrarian Law,
instructs on how tanah ulayat can be registered at theDistrict Land Office. Is this Regional Regulation
meant to improve or to challenge the Government
Regulation No. 24/1997? The answer possibly lies in
the hands of those who enacted these laws. Twoother cases of contracting laws in other IndonesianRegions in addition to the above two are worth
discussing.
Case 3: Madiun District Perda No 4 of 2001 on the
Establishment of the Village Representative Body.
This Perda aims to provide greater representation to
women and youth. However, this Local Regulation
was met with discontent from the village leaders on
the ground that it contradicts Mministry of Home
Affairs’ (MOHA) Decision No 64 of 1999, which does49
not provide for this greater representation.
Case 4: Tangerang City Perda No 8/2005 on
Prostitution. This Regional Regulation forbids anyone
whose attitude or behaviour is ‘suspicious, making
him or her appear to be a prostitute’ from being on aroad, hotel, or ‘other places’ in the city (art 4(1)). It
also prohibits persons from working as prostitutes or
running brothels (art 2(1) and (2)). This Perda
violates some of the fundamental rights enshrined
Indonesian Constitution such as equality before thelaw, and non discrimination. By targeting certain
individuals the Perda breaks with one of the core
principles of the law i.e. the generality of the law. This49

See Supreme Court Decision No 03 G/HUM/2002

also contradicts the Indonesian Criminal Code(KUHP) as it does not guarantee the presumption of
innocence. Finally, this Perda contradicts many
sections of the Article 28 of the Indonesian 1945
Constitution. It also contradicts Law No. 39/ 1999 on
Human Rights. There are numerous other cases but I
have enumerated here just a few. In no way I argue
that Indonesian legislative bodies are in war witheach other as many of their laws contradict one
another. Instead, I suggest that there should be moresynergy with regard to the law making process for amore comprehensible and efficient legal system.
7. Conclusions
A number of studies suggest that Indonesia has
known two legal systems i.e., the pre-independence
and the after independence legal systems, and thatlegal pluralism in Indonesia is the consequence ofcolonialism. It is important to note that during the last
decade or so, Indonesian legal system underwent a
series of crucial reforms to the extent that it is nolonger scholarly to assume that these two periods
helped shape the Indonesian legal system. A third
period known as Era Reformasi constitutes a major
turning point within the Indonesian legal system inthat it broke up radically with colonial legal tradition
put in place before and after independence wasobtained. It is also false to believe that legal pluralismis the product of colonialism in that the Indonesian
people have been practicing it ever since Religion
was introduced into Indonesia which is prior tocolonialism. Though vital, the reforms brought up by
Era Reformasi did not suppress adat and Islamic
laws that make up the Indonesian legal systembesides the National Law. Instead, it contributed topromoting them through decentralization process.
The revilal of nagari government after the fallofpresident Suharto as discussed in Chapter 3 is agood example. However, the changes brought about
by Era Reformasi did not very much provide room foradat law within the Indonesian legal system as
discussed above. Despite the ongoing effort toimprove Indonesian legal system, several issues
need to be addressed such as the hegemony offalse/ corrupt ideas of the Western legal tradition, theneglect of adat laws, high level of corruption andnepotism, and weak and unsynchronized laws. In
addition to these problems, which need to beaddressed, the average Indonesian citizen, too, we
have put some suggestions in Table 12.

Eubios Journal of Asian and International Bioethics 25 (November 2015)

239

Table 12: Things to do to improve the Indonesian legal system
Type of answer, Gender & Number of RespondentAge ofRespondent

Unify legal
systems

Legal
Pluralism

Prioritize
Adat law

Judicial
Freedom&
Integrity

More
CourtsTrain
JudgesSex of Respondents
18-28
29-39
40-50
51-61
62-72
TOTAL
%
Combined %

M
43
10

F
21
13

M
6
3

F
9
1

M
12
5

F
13
2

M
4
1

F
10
2

10
13
3
79
48

12
1

1
1

1

2
1

1

3

47
35
42

11
7

11
8
7

2
3
2
24
14

18
13
14

6
4

15
11
7

It can be concluded from the above data that a vast
majority of the Indonesian people (42%) consider
unifying legal systems as one of the major key
solutions to addressing the Indonesian legal systemproblem. No wonder why most of them (52%) say
they would rather choose State Courts in seeking
justice (see Table 17). In addition to this 42%, 27%
believe that training judges could also help solve theproblems that the Indonesian legal system is facing.
References
Adam Schwarz and Jonathan Paris (1999), The Politics ofPost- Suharto Indonesia. Council on Foreign Relations
Press, New York.
Abdullah Saeed (2008), The Qur'an: An Introduction,
Routledge, ISBN 978-0415421256
Clarence Darrow (1922), Crime: Its Cause and Treatment,
the Pennsylvania State University Electronic Classics
Series 2004.
Emmerson, Donald K. 1999. Indonesia Beyond Suharto,
Polity, Economy, Transition. New York: M.E. Sharpe
Armonk.
Francois Borella (2008), Elements de droit constitutionel.
Paris Presses de Sciences Po.
Franz and Keebet Von Benda Beckmann, 2001
Hilaire Tegnan (2015), Legal pluralism and land
administration in West Sumatra: the implementation of
the regulations of both local and nagari governments oncommunal land tenure, The Journal of Legal Pluralism
andUnofficial
Law,
DOI:
10.1080/07329113.2015.1072386.
Hisham M. Ramadan (2006), Understanding Islamic Law:
From Classical to Contemporary, Rowman Altamira,ISBN 978-0759109919.
Ikrar Nusa Bhakti (2004), The Transition to Democracy inIndonesia: Some Outstanding Problems. Asia-PacificCenter for Security Studies Honolulu.
Ikrar Nusa Bhakti et al., Military Politics, Ethnicity andConflict in Indonesia. Crise Working Paper No. 62
January 2009.
Marck E. et al. (2012), The Islamic Legal System inIndonesia. Pacific Rim Law & Policy Journal Vol. 21 No.1

M
2
1

3
2
3

F
M
4 34
1
8

F
26
8

2
1

2

5 45
4 27

36
27
27

Marzuki, Peter M. 2011. Introduction to Indonesian Law.
Malang: Setara.
Olufemi Taiwo (2009), How Colonialism Preempted
Modernity in Africa. Indiana University Press.
R. Strang (2008), More Adversarial, but not Completely
Adversarial: Reformasi of the Indonesian Criminal
Procedure Code. Fordham International Law Journal Vol.
32Issue 1
Sandra Day O’Connor (2003), The Majesty of the Law,
reflection of the Supreme Court Justice. New York:
Random House.
Sir William Blackstone (1765-1769), Commentaries of theLaws of England. The Clarendon Press, Oxford.
Soetandyo
Wignjosoebroto,
NegaraHukum
danPermasalahan Akses Keadilan di Negeri-Negeri
Beerkembang Pasca- Kolonial, Konferensi dan Dialog
National Jakarta, 9‐10 Oktober 2012
Supomo, supra note 17, at 74
Thomas Hobbes (1909), Theviathan. The Clarendon Press,
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Warman, Kurnia. 2010. Hukum Agraria Dalam Masyarakat
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Vollenhoven Instutute; KITLV-Jakarta.

STATUTES
See Article 18b of the Indonesian 1945 Constitution
Supreme Court Decision No 03 G/HUM/2002
Religious Judicature Act No. 7/ 1989, and art. 3-5(1)Law No. 32/2004 on Regional Government (Indonesia),
which replaced Law No. 22/1999 on Regional
Government.
KPK’s Annual Reports from 2005 to 20014

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