Review of Indonesian Courts under the Supreme Court

By Mahareksha Dillon and Dewi Savitri Reni

Article 24 of the Indonesian Constitution stipulates that two institutions have judicial authority in the country, namely the Supreme Court (Mahkamah Agung or "MA") and the Constitutional Court (Mahkamah Konstitusi or "MK"). These two institutions are independent of one another.

Law No. 48 of 2009 regarding Judicial Authority (the "Judiciary Law") stipulates the authority of each institution as administrators of Indonesia's judicial system. As stipulated in Article 20 of the Judiciary Law, the Supreme Court is the highest judicial institution and the final court of appeal in Indonesia with regard to criminal, civil, religious, military and state administrative courts, and any special courts established by laws enacted by the People's Representative Assembly (Dewan Perwakilan Rakyat or "DPR").

The Supreme Court has the authority (a) to hear and rule on all final decisions made by appellate courts that have authority over criminal, civil, religious, military and state administrative laws; (b) to review the legality of regulations (but not laws enacted by the DPR); (c) to provide legal explanations, recommendations and advice to government institutions; and (d) to provide judicial reviews (peninjauan kembali) of final and binding court decisions, but only if certain requirements are satisfied.

There are four judicial environments under the authority of the Supreme Court, as follows:

(A) Courts of General Jurisdiction (Peradilan Umum): These courts have the authority to examine, adjudicate and decide both general criminal and civil law cases. The court of first instance for courts of general jurisdiction is known as a District Court (Pengadilan Negeri). There are approximately 250 District Courts throughout Indonesia.

A District Court decision will take effect and become enforceable as a final judgment seven days after being issued for criminal cases and 14 days for civil disputes if no appeal is submitted to the High Court (Pengadilan Tinggi). As with District Courts, High Court verdicts take effect and become enforceable as a final judgment 14 days after being issued for both criminal and civil cases if no cassation application is submitted to the Supreme Court. Even after a court decision becomes final and binding, parties can file for a judicial review of the decision.

There are several Special Courts within the courts of general jurisdiction. What is meant by Special Court is a court that has the authority to examine, adjudicate and decide on certain disputes as regulated by law. There are six Special Courts within the courts of general jurisdiction, as follows:

1. Human Rights Courts: Human Rights Courts have the authority to examine, adjudicate and decide serious human rights violations, including those committed outside the territory of Indonesia by an Indonesian citizen. Human Rights Courts use the same procedural law as criminal proceedings, with several exceptions such as the possibility of having ad hoc proceedings. Any appeal or cassation shall be addressed to the High Court or the Supreme Court, respectively.

As mentioned, Human Rights Courts have special ad hoc proceedings for alleged human rights violations committed before the enactment of Law No. 26 of 2000 regarding Human Rights Courts (November 23, 2000). Human Rights Courts are established in every District Court in the capital of each regency or town throughout Indonesia.

2. Commercial Courts: Commercial Courts have the specific authority to examine, adjudicate and decide matters concerning intellectual property, bank liquidations by the Indonesian Deposit Insurance Company (Lembaga Penjamin Simpanan or "LPS") and bankruptcies. Commercial Courts in principle use civil procedural law, though there are several exceptions. Specifically for bankruptcy proceedings, Commercial Courts do not have an appeals process, but rather go directly to cassation.

As of this writing, there are five Commercial Courts in Indonesia: at the Central Jakarta, Medan, Semarang, Surabaya and Makassar District Courts.

3. Corruption Courts: Corruption Courts have the specific authority to examine, adjudicate and decide corruption cases. Corruption Courts use criminal procedural law, with several exceptions. One of the primary procedural differences is that the investigators in Corruption Court cases may come from either the Attorney General's Office or the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or "KPK").

Also, in corruption cases, the KPK can act as the prosecutor. Notably, in Corruption Courts there may be ad hoc judges assigned to hear cases. The appeal and cassation process at the courts follows the same procedure as in general criminal law. Corruption Courts are established in every District Court in the capital of each regency or town throughout Indonesia. Corruption Courts are governed by Law No. 46 of 2009.

4. Juvenile Courts: Juvenile Courts have the specific authority to examine, adjudicate and decide criminal cases involving children. A child is defined in Law No. 11 of 2012 regarding the Juvenile Criminal Court System (the "Juvenile Court Law") as anyone below the age of 18 years old. Juvenile Courts use criminal procedural law, with several exceptions.

The Juvenile Court Law stipulates that the approach taken is Restorative Justice, which emphasizes repairing the harm done by a crime rather than retribution. Juvenile Courts encourage diversion, which is the process of reaching a settlement outside of the court system. Juvenile Courts are established in every District Court in Indonesia.

5. Industrial Relations Courts: Industrial Relations Courts have the specific authority to examine, adjudicate and decide industrial disputes. There are four types of industrial disputes handled by these courts, namely disputes regarding rights, interest, the termination of employment and disputes between labor unions in a company.

Disputes regarding rights are disputes arising because of an unfulfillment of rights due to different treatments or interpretations of the provisions of laws and regulations, agreements, company regulations, collective labor agreements, etc.

Disputes regarding interest are disputes arising from the work relationship because of a difference of opinion regarding the making and/or changing of work prerequisites set out under a work agreement or company regulation or collective labor agreement.

Disputes regarding termination of employment are disputes arising from a difference of opinion regarding termination of employment by one of the parties. Disputes between labor unions in a company normally arise due to a difference of opinion regarding membership and/or the implementation of the rights and obligations of the union.

Before any industrial dispute can be brought to an Industrial Relations Court, the two parties must first attempt to resolve the dispute amicably in a bipartite meeting. If the dispute cannot be resolved, the minutes of the bipartite meeting must be registered with the Ministry of Manpower and Transmigration, which will then ask the parties to resolve the dispute either through conciliation or arbitration. If after seven days the parties are unable to choose a dispute resolution forum, the dispute will be handed to a mediator. Only if the dispute cannot be resolved through mediation can the parties submit the dispute to the Industrial Relations Court. Industrial Relations Courts use civil procedural law, with several exceptions.

Industrial Relations Courts acknowledge ad hoc judges. There is no appeals process in Industrial Relations Courts. Parties can only pursue the cassation process at the Supreme Court. There are two types of examination in Industrial Relations Courts ― normal and swift examination.

There are Industrial Relations Courts in every province in Indonesia, with an extra Industrial Relations Court in the Gresik district of East Java. Industrial Relations Courts are governed by Law No. 2 of 2004 regarding Industrial Relations Dispute Resolution.

6. Fishery Courts: Fishery Courts have the specific authority to examine, adjudicate and decide fishery-related crimes in Indonesia, whether by Indonesian citizens or foreign nationals. Fishery Courts follow criminal procedural law, with several exceptions concerning matters specific to the field and activities of fisheries. These courts are fairly new and to date only five have been established, in the District Courts of North Jakarta, Medan, Pontianak, Bitung, and Tual.

Further explanation of Fishery Courts is found in Law No. 45 of 2009 regarding the Amendment to Law No. 31 of 2004 regarding Fisheries.

(B) State Administrative Courts: State Administrative Courts have the authority to examine, adjudicate and decide state administrative disputes. A state administrative dispute is a dispute between a person or civil legal entity and a state administrative official or institution as a consequence of the issuance of a State Administrative Decision, including personnel administration disputes.

State Administrative Decisions that can be examined by the courts are decisions that are concrete, individual and final. State Administrative Courts impose a time limit of 90 days from the receipt of a State Administrative Decision to the submission of a complaint. Note that a State Administrative Court decision will take effect and become enforceable as a final judgment 14 days from the date of the decision if no appeal is submitted to the State Administrative High Court, i.e., the court of appeal for State Administrative Court decisions before they are further reviewed by the Supreme Court.

As with State Administrative Courts, the decisions of State Administrative High Courts take effect and become enforceable as a final judgment 14 days after they are issued if no cassation application is submitted to the Supreme Court. After a court decision becomes final and binding, parties can still file for a judicial review.

State Administrative Courts are regulated by Law No. 51 of 2009 regarding the Second Amendment of Law No. 5 of 1986 regarding State Administrative Courts. There are currently four State Administrative High Courts and 28 State Administrative Courts throughout Indonesia.

There is one Special Court within the environment of the State Administrative Courts, which is the Tax Court. The Tax Court has the authority to examine, adjudicate and decide tax disputes. A tax dispute is defined as a dispute between a taxpayer and an authorized official issuing a decision regarding tax matters. Disputes regarding customs and excise shall also be examined, adjudicated and decided at the Tax Court. There is currently only one Tax Court in Indonesia, in Jakarta. The Tax Court, however, may hold proceedings outside of Jakarta, limited to Yogyakarta and Surabaya.

There are two types of legal actions that can be submitted to the Tax Court, these being Appeals and Statements of Claims. For both, the Tax Court shall render a decision that shall constitute a final and binding decision. There is just one legal avenue for contesting a Tax Court decision, which is filing for a judicial review at the Supreme Court.

(C) Religious Courts (Peradilan Agama): Religious Courts have the authority to examine, adjudicate and decide cases among Muslims in the following areas: marriage, inheritance, wills, grants, wakaf (religious charitable trusts), zakat (alms), infaq, shadaqah (voluntary donations) and the Sharia economy. Religious Courts are established in each district and city throughout Indonesia and are outside the courts of general jurisdiction.

Please note that the Indonesian province of Aceh, under the special autonomy granted it by Jakarta to implement Sharia law, has a special court known as Mahkamah Syariah that wields broader judicial authority than common Religious Courts.

(D) Military Courts (Peradilan Militer): Military Courts have the authority to adjudicate criminal acts committed by military personnel. They also have the authority to examine, adjudicate and settle administrative disputes within the military and to decide on compensation for parties injured as a result of criminal acts by military personnel. Military Courts follow a separate procedural law pursuant to Law No. 31 of 1997 regarding Military Courts (the "Military Court Law").

Military Courts are divided into four jurisdictions, which are:

1. Military Court: Military Court is the first-level court and has the authority to examine and decide criminal cases involving defendants with a rank of captain and below.

2. Military High Court: Military High Court is a first-level court and has the authority to examine and decide criminal cases involving defendants with a rank of major and above. It also has the authority to examine and decide military administrative disputes.

3. Military Primary Court: Military Primary Court is an appellate court that hears appeals of decisions made by the Military High Court. The Military Primary Court is also the first and last level for disputes regarding the authority of Military Courts.

4. Military Combat Court: This court has the authority to examine and decide criminal cases in combat zones. The Military Court Law stipulates that cassation and judicial reviews shall be submitted through the Military Primary Court to the Supreme Court.

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