Gender and Pluralism in the Law of Inheritance in Indonesia

By M. Billah Yuhadian *)

People may think that the prevailing law of inheritance in Indonesia is solely derived from the religious law (Islamic fiqh). While in reality, the implementation of inheritance allocation is very pluralistic and does not always use the Islamic jurisprudence as a reference. The most common principle used is discussion for a consensus. Although the foundation in determining the distribution of inheritance refers to the religious law (Faraid Law), but each family usually has a policy in the distribution of inheritance based on consensus. And as long as the decision was taken by consensus and in fairness, then the family members can accept the distribution of property without having to go through a formal decision of the judiciary (the District Court or a Religious Court).

This condition indicates that the inheritance law in Indonesia is pluralistic in nature; some are subject to the positive law sourced from the law applied since the colonial era, Burgerlijk Wetboek (BW), and some to the Islamic Inheritance Law compiled in the KHI (Compilation of Islamic Law) and the Traditional Inheritance Law. This diversity can be translated as a form of political accommodation that was established by the government in the colonial period which still continues to the present time to accomodate other laws that have been introduced in the society. The recognition shows that the three sources of law have full authority and regarded as equal.

Obviously, inheritance will be discussed only if all three required elements for inheritance distribution have been fulfilled; in the event of death, any property to be inherited, any party entitled to receive inheritance and the agreement for inheritance distribution.

In the traditional law, one of the reoccuring issue is regarding the eldest child’s position that is often associated with his/her responsibility as the successor of the clan, which is frequently seen as a reason enough for a firstborn to receive more/most inheritance compared to his/her siblings. As the case between sons and daughters, either one is sometimes more prioritized for inheritance. Some culture still distribute inheritance only to the sons, with the preassumption that the daughters would already get a cut from their husbands. Certainly this is based on the assumption that every woman will marry and every woman marries a man that is entitled for inheritance in his family. For this reason also, daughters are often expected to find a suitor from equal social status, and even sometimes subject to arranged marriage.

This viewpoint is deemed problematic, one of which is because not all woman gets a partner or gets a partner that is entitled for family inheritance. Therefore, a traditional mechanism is usually applied to ensure that a daughter would get equal share, such as home, land, or jewelry, as seen in Lombok indegenious people of NTB.

The inheritance distribution based on traditional law is not always in line with the other two law sources. This indicates that Indonesia’s inheritance law is still using the pluralistic law approach. The positive law (BW) introduced the equal 1:1 distribution of inheritance for both male and female children. This applies to all condition, regardless of position in the family, gender, or financial status. While the Islamic Inheritance Law generally applies the 2:1 distribution—where the son is entitled for twice the amount of inheritance than the daughter. The traditional inheritance law, however, has a diversed pattern and nature, which has become a inheritance distribution model that is unique to Indonesian culture that is completely different from the Islamic Inheritance law or the (western) Civil Inheritance Law based on the BW.

The inheritance distribution based on the Traditional Inheritance Law is influenced by the kinship in the society itself. Theoretically, the kinship system in Indonesia can be categorized in three patterns; the patrilineal system, in which the position of men is more favored and therefore affects the inheritance, the matrilineal system in which the position of daughters and women in generally are higher, and the parental or bilateral system which puts both man and woman as equal and therefore have equal rights.

The fact that the Inheritance Law in Indonesia is pluralist by nature, of course, makes those who seek for justice wonder; which inheritance law is most appropriate to be used in case of inheritance dispute. In most cases, people would seek justice in the courts provided by the government. Non-Muslim family or a Muslim family who do not want to use Islamic law, would use the western inheritance law or the positive law derived from BW. Those who uphold customary law can use the Traditional Inheritance Law, and Muslim Families can use the Islamic Inheritance Law in the Compilation of Islamic Law (KHI).

Whichever law that is finally applied, the most important thing is to uphold the values of justice and consensus. By using gender analysis, we can find a benchmark to see how justice can be enforced; that everyone should be considered as equal, or a discrimination could occur and prejudice would come into play and one party might oppress another. Whereas the inheritance law discussed in the aforementioned sources of law was created to avoid opression and to enforce justice. From the law point of view, we can make an independent choices on which law that conform with the collective agreement.

*) Writer is an alumni of the Faculty of Law University of Hasanuddin, Makassar and a researcher in Rumah Kita Bersama