LOCAL CHAPTER LEGAL WRITINGS
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ALSA Highlight #2 The Concept of Force Majeure under Indonesian Law Written by: Aqilla Febriandiny and Nabilla Farah A. I. Staff of External Public Relations of ALSA LC UI Board of 2020 Force majeure is an event that happens beyond an individual's control. The party who experienced force majeure may be exempted from responsibilities arising from the nonfulfillment of contractual obligations. This concept is recognized in the Indonesian Civil Code (“ICC”) and the general scope of force majeure is provided by Articles 1244 and 1245 of the ICC. There are three elements for force majeure under the ICC: 1. the existence of unforeseen events (such as disasters); 2. the affecting party shall not have caused such event; and 3. the good faith of the affecting party. Force majeure events consist of objective and subjective types. Objective force majeure means there is an absolute impossibility to perform the obligation, while subjective force majeure means the obligation can be performed with some sacrifices, which makes the contract impracticable. Due to the rapid spread of Corona Virus Disease 2019 (“COVID-19”) around the world, Indonesian Government has declared COVID-19 as a national non-natural disaster. However, the outbreak doesn't necessarily mean the parties can rely on force majeure. Parties need to review specific clauses on force majeure in the contract and identify the clarification or requirement that must be satisfied to establish force majeure. The aftereffects of force majeure will be: •
the affected party may be excused from its obligations for the period of the force majeure event;
•
the affected party may not be liable to pay damages for non-performance of its obligation; and
•
the agreement may be terminated.
The implementation of force majeure can be seen on the Decision of Indonesian Supreme Court No. 1787K/PDT/2005 regarding the dispute between PT. Pertamina and PT. Wahana Seno Utama. The economic crisis in 1997 made their agreement about the performance of the Build-Operate-Transfer Contract of Pertamina Gas Tower went disrupt. The rise in prices caused PT. Wahana Seno Utama as the defendant failed to perform its obligation. This prompted the Plaintiff to file a lawsuit for breach of contract. Eventually, the Supreme Court took the view that the defendant’s failure to fulfill its obligation due to a monetary crisis categorized as a force majeure event. In this case, the parties have not agreed on certain conditions to be categorized as force majeure, so it has to be decided by judges. This month’s ALSA Highlight sources are from: 1. Adiyanto, Taufiq. Dealing with Unexpected Circumstances: Judicial Modification of Contract under Indonesian and Dutch Law. Hasanuddin Law Review 5 No. 1 (2019). P. 102-119. 2. Kadir, Andi Y. Indonesia: COVID-19 Outbreak: Things to Consider Before Declaring Force Majeure. https://www.bakermckenzie.com/en/insight/publications/2020/04/covid19-outbreakthings-to-consider. Accessed on April 27th, 2020. 3. Murti, Prawidha and Rizki Rakhim. The Uncharted Waters of COVID-19 Outbreak Force Majeure and Construction Service Works in Indonesia. https://www.ashurst.com/en/news-and-insights/legal-updates/the-uncharted-waters-ofcovid-19-outbreak-force-majeure-and-construction-service-works-in-indonesia/. Accessed on April 27th, 2020. 4. Simorangkir, Stefanny, I Ketut Dharma Putra Yoga, and Zefanya Prabowo. When Contractual Obligations Breached Under Pandemic. https://www.thejakartapost.com/academia/2020/04/17/when-contractual-obligationsbreached-under-pandemic.html. Accessed on April 27th, 2020. 5. Subekti, R. and R. Tjitrosudibio. Kitab Undang-Undang Hukum Perdata. Jakarta: Balai Pustaka. 2013. 6. Supreme Court. Indonesian Supreme Court Decision. No. 1787K/PDT/2005.
ALSA Highlight #3 Intellectual Property Rights: The Pharmaceutical Development for COVID-19 in Collaboration with ALSA Forum Jakarta 2020 Written by: Anissa Astarina and Sheyla Namirah Korompot Head and Vice Head of Marketing of ALSA Forum Jakarta 2020 What are Intellectual Property Rights? Intellectual property rights are the rights given to persons over the creations of their minds that usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Its Regulations in Indonesia ● Law No. 7 of 1994 on Ratification of Agreement Establishing the World Trade Organization (“WTO”) ● Law No. 10 of 1995 on Customs Law ● Law No. 12 of 1997 on Copyright ● Law No. 14 of 1997 on Trademark ● Law No. 13 of 1997 on Patents ● Presidential Decree No. 15 of 1997 on Ratification of the Paris Convention for the Protection of Industrial Property and the Convention on Establishing the World Intellectual Property Organization (“WIPO”) ● Presidential Decree No. 17 of 1997 on Ratification of the Trademark Law Treaty ● Presidential Decree No. 18 of 1997 on Ratification of the Berne Convention for the Protection of Literary and Artistic Works ● Presidential Decree No. 19 of 1997 on Ratification of the WIPO Copyright Treaty What is Pharmaceutical Development? Pharmaceutical development, also known as drug development, is a scientific approach and quality risk management to design a development of a quality product and its manufacturing process, also to consistently deliver the intended performance of the product.
The Position of Intellectual Property Rights on Pharmaceutical Development Innovation-led companies that seek to develop new drugs, improve or adapt existing drugs or develop new pharmaceutical equipment or processes, tend to rely heavily on the patent system to ensure they recover the investments incurred in research and development. The Use of Intellectual Property Rights on Pharmaceutical Development ● Provide its owner the exclusive right; ● Prevent others from importing the patented invention without the owner's permission; ● Obtain exclusivity over the design of medical equipment; ● Attach the protection of undisclosed test data; ● Protect the trademark; and ● Avoid the exploitation of plant variety. The Pharmaceutical Development for COVID-19 Scientists around the world are developing effective vaccines for COVID-19. In a recent review in the British Journal of Pharmacology, scientists from the United Kingdom called for wider screening of existing drugs to see if they might work against the coronavirus. Many of the drugs being developed or tested for COVID-19 are antivirals. These would target the virus in people who already have an infection. Whereas vaccines are designed to protect people before they’re exposed to a virus. A vaccine basically trains the immune system to recognize and attack the virus when it encounters it. Vaccines protect both the person who’s vaccinated and the community. Dr. Robert Amler, dean of the School of Health Sciences and Practice at New York Medical College and a former chief medical officer at the Centers for Disease Control and Prevention (“CDC”) Agency for Toxic Substances and Disease Registry (“ATSDR”), says both antivirals and vaccines will be valuable tools in combating COVID-19. In response to that combat, the World Health Organization (“WHO”) embraced a proposal Friday to create a voluntary pool to collect patent rights, regulatory test data, and other information that could be shared for developing drugs, vaccines, and diagnostics. The goal is to create a pathway that will attract numerous governments, as well as industry, universities and non-profit organizations, also to make it available for everybody around the world the
different advances and innovations and put those into service at lower costs to protect people. The World Health Assembly, which governs the WHO, is considering a resolution that, in part, embraces a voluntary pool in hopes of ensuring that less-developed countries can navigate patent rights for COVID-19 medical products. The WHO would be responsible for creating a framework for the pool. Indonesia’s Objective Indonesia has made it a point to ensure that multilateral efforts are actively pursuing to keep COVID-19 vaccines and drugs equitable and affordable, which is very relevant considering there are international patent regimes that are prone to monopolizing innovations that all mankind needs access to. Indonesia has been consistently raising the issue of equitable access in various international forums and has so far cooperated with nine countries, nine international entities and 76 NGOs to procure medical supplies, including personal protection equipment and Polymerase Chain Reaction (“PCR�) tests.
This month’s ALSA Highlight sources are from: 1. European Medicines Agency. Note for Guidance on Pharmaceutical Development. https://www.ema.europa.eu/en/documents/scientific-guideline/note-guidancepharmaceutical-development_en.pdf. Accessed on June 1st, 2020. 2. International Journal of Molecular Sciences. Review COVID-19 Drug Discovery Using Intensive Approaches. https://www.researchgate.net/publication/340843538_COVID19_Drug_Discovery_Using_Intensive_Approaches/fulltext/5ea05bf2a6fdccd7cee141 db/COVID-19-Drug-Discovery-Using-Intensive-Approaches.pdf. Accessed on June 1st, 2020. 3. Radcliffe, Shawn. Here’s Exactly Where We Are with Vaccines and Treatments for COVID-19.
https://www.healthline.com/health-news/heres-exactly-where-were-at-
with-vaccines-and-treatments-for-covid-19#Vaccines. Accessed on June 2nd, 2020. 4. Silverman, Eid. WHO Embraces Plan for COVID-19 Intellectual Property Pool. https://www.statnews.com/pharmalot/2020/05/15/who-covid19-coronavirus-patentsintellectual-property/. Accessed on June 5th, 2020. 5. The Jakarta Post. Indonesia Rallies to Keep COVID-19 Vaccines, Drugs Affordable. https://www.thejakartapost.com/news/2020/05/01/indonesia-rallies-to-keep-covid-19vaccines-drugs-affordable.html. Accessed on June 5th, 2020. 6. Tirumalaraju, Divya. Australia’s UQ COVID-19 Vaccine Candidate Advances to Preclinical Tests. https://www.pharmaceutical-technology.com/news/queensland-unicovid-vaccine-preclinical. Accessed on June 2nd, 2020. 7. World Intellectual Property Organization. What is Intellectual Property Rights? https://www.wipo.int/sme/en/documents/ip_pharma_fulltext.html. Accessed on June 1st, 2020. 8. World Trade Organization. Trade-Related Aspects of Intellectual Property Rights. https://www.wto.org/english/tratop_e/trips_e/trips_e.htm. Accessed on June 1st, 2020.
ALSA Highlight #5 The Rampant Circulation of Illegal Cell Phones in Indonesia Erodes State Revenue, Industry, and Consumers Written by: Qonita Syafitri M. Z. Staff of External Public Relations of ALSA LC UI Board of 2020 What is Black Market? Black market is an economic activity, whether physical or virtual, where the trade in goods and services is conducted illegally. The reasons black market affairs conducted outside the law are: •
The illegal nature of the goods and services. Most of the goods are stolen goods and are strictly controlled products such as drugs, firearms, protected species of animals, slave labor, and human organs. Meanwhile smuggling of services can be in the form of migrant/sex workers smuggling.
•
The illegal nature of the transaction. It takes place outside government-sanctioned channels to let participants avoid government taxes, license terms, price controls, and rationings.
How are Cell Phones Traded on the Black Market in Indonesia? Cell phones are traded through illegal transaction processes or without going through registration from the Directorate General of Customs and Excise. They do not have the certification, guidebook in Indonesian, and warranty as it is provided on legal cell phones. The trading process itself is done by business actors in the trade sector (producers, importers, distributors, agents, retailers, and electronic commerce business actors) with the aim of avoiding payment of import duty and taxes on imported goods. Every year, there are at least 9 to 10 million illegal cell phone units are introduced in Indonesia. Cell Phone Smuggling Methods in Indonesia There are few methods of cell phone smuggling in Indonesia: •
Transporting through illegal ports and didn’t report to the local Customs and Excise officers;
•
Larger quantities of goods are transferred in the Exclusive Economic Zone (“EEZ”) so that they are not detected by the authorities;
•
Sailing using a speed boat or a small boat;
•
Even if the smugglers have to pass through an official port, they will smuggle the cell phone by putting it in other products;
•
Brought the cell phone in the form of a smart selfie stick cell phone (without supporting accessories) or in the form of separate parts which will be reassembled next in Indonesia; and
•
There is "cooperation" between the smugglers and the authorities.
One of the cases of illegal cell phone sales in Indonesia recently involved the boss of the PS Store, Putra Siregar. It is known that Putra Siregar received the cellphone he bought from someone named Jimmy, who is currently still on the Daftar Pencarian Orang (“DPO”). Customs and Excise calculated the loss due to unpaid taxes amounting to 26,332,919 IDR. Now, Putra Siregar is still in the trial process and with the accusation of violating Article 103 letter D of Law No. 17 of 2006 concerning Customs. What is The Impact of The Circulation of Illegal Cell Phones in Indonesia? •
For state: The potential loss of state revenue from import duties to taxes reaches 2.81 trillion IDR per year. The potential lost for tax revenue is 10% value-added tax and 2.5% income tax.
•
For industry: -
The lower prices of illegal cell phones disrupt the market balance and create unfair competition.
-
Loss of jobs and depreciation of factories and local components by up to 10% of the direct production costs, which is equivalent to 2,25 trillion IDR.
•
For the consumers: -
Illegal cell phones don’t have an International Mobile Equipment Identity (“IMEI”) registered in the database of the Ministry of Industry. As a result, consumers are not able to connect to cellular networks or internet if one day it is blocked by the government; and
-
Consumers can't claim repair and replacement services at the relevant official outlets in Indonesia as it doesn’t have an official guarantee.
The Law Aspect Regarding the Circulation of Illegal Cellphones in Indonesia. •
The provisions for criminal sanctions for the criminal act of smuggling are regulated in Law No. 17 of 2006 concerning Customs;
•
The provisions for criminal sanctions for perpetrators who break the technical requirements and telecommunications equipment licenses are regulated in Law No. 36 of 1999 concerning Telecommunications;
•
Consumers who suffer losses due to the purchase of illegal cellphones can obtain responsibility from business actors as regulated in Law No. 8 of 1999 concerning Consumer Protection;
•
The Ministry of Trade Regulations No. 82/M-DAG/PER/12/2012 concerning Provisions for Import of Cellphones, Handheld Computers, and Tablet Computers;
•
The Ministry of Communication and Information Technology Regulation No. 11 of 2019 concerning Control of Telecommunication Equipment and/or Equipment Connected to Cellular Mobile Networks through International Mobile Equipment Identity Identification;
•
The Ministry of Trade Regulation No. 78 of 2019 concerning Amendments to Regulation of the Ministry of Trade No. 38 of 2019 concerning The Provisions on The Manual and After-Sales Service Guarantee for Electronic Products and Telematics Products; and
•
The Ministry of Trade Regulation No. 79 of 2019 concerning Obligation of Labeling in Indonesian on Goods.
IMEI Validation Policy in Indonesia Applied on April 18th, 2020 •
Definition of IMEI IMEI is an international identity issued by the Global System for Mobile Association (“GSMA”) that consists of a unique fifteen-digit decimal number used to identify telecommunication tools and/or equipment and to connect to networks.
•
Parties Involved Ministry of Communication and Information, Ministry of Industry, Ministry of Trade, Ministry of Finance, and all cellular operators.
•
The Purposes of IMEI 1. To prevent the circulation of illegal telecommunication in Indonesia;
2. To protect consumers from devices that don’t comply with applicable regulations; 3. To encourage the domestic cellphones industry to be able to have high competitiveness; and 4. To optimize State revenue from import duties and taxes. •
Regulations regarding IMEI The Ministry of Trade Regulation No. 78 of 2019 and The Ministry of Trade Regulation No. 79 of 2019: 1. Producers, Importers, or Business Actors are obliged to equip Electronics Products and Telematic Products with IMEI, warranty card, guidebook in Indonesian, and Registration Mark Number according to the provisions of law; 2. They are required to withdraw Electronic Products and Telematic Products that don’t comply with the provisions of law; and 3. Producers, Importers, or Business Actors who violate the rules will be subject to administrative sanctions which are revocation of business licenses by publisher officials according to the provisions of law.
•
How is the scheme? The government will block illegal devices with a whitelist scheme where cell phones that are activated after April 18th, 2020 with an IMEI that are not registered in the Ministry of Industry will automatically not receive a signal from a mobile operator.
•
How is it going? Even though the rules were in effect 3 months ago, there is still recognition from the public that the black market devices can still be used. There are still people who buy the latest series of cellphones from the black market who don’t encounter any problems.
This month's ALSA Highlight Sources are from: 1. Fontinelle,
Amy.
How
Black
Market
Works.
https://www.investopedia.com/articles/economics/12/mechanics-black-market.asp. Accessed on August 12th, 2020. 2. Griadhi, Kevin Saputra Ryadi Ni Md. Ari Yuliartini. Pengaturan Sanksi Pidana Terhadap
Pelaku
Tindak
Pidana
Penyelundupan
dalam
Undang-Undang
Kepabeanan. Accessed on August 13th, 2020. 3. Supanto dan Denny Mahendra Putra. Tinjauan Hukum Pidana dalam Perlindungan Hukum Bagi Konsumen Perangkat Ponsel Pintar Berteknologi 4G/LTE Berdasarkan Peraturan Menteri Perindustrian Nomor 65/M-IND/PER/7/2016 Tentang Ketentuan dan Tata Cara Penghitungan Tingkat Komponen dalam Negeri Jo. Undang-Undang Nomor 8 Tahun 1999 Tentang Perlindungan Konsumen. Accessed on August 13th, 2020. 4. Nasution, Eva Syahfitri. Pertanggungjawaban Pidana Pelaku Tindak Pidana Penyelundupan di Indonesia. Accessed on August 13th, 2020. 5. Anonim. Pemerintah Tetapkan Aturan Pengendalian IMEI dengan Sistem Whitelist. http://ilmate.kemenperin.go.id/berita-industri/informasi-industri/berita/pemerintahtetapkan-aturan-pengendalian-imei-dengan-sistem-whitelist. Accessed on August 13th, 2020. 6. Marison, Walda. Lima Fakta Sidang Perdana Putra Siregar: Beli Ponsel Ilegal hingga
Penyitaan.
https://apple.co/3hXWJ0Lhttps://megapolitan.kompas.com/read/2020/08/11/0726537 1/lima-fakta-sidang-perdana-putra-siregar-beli-ponsel-ilegal-hingga?page=all. Accessed on August 14th, 2020. 7. Sylviana, Cindy. Indonesia Issues New Regulation to Block Illegal Imported Phones. https://kr-asia.com/indonesia-issues-new-regulation-to-block-illegal-imported-phones. Accessed on August 14th, 2020. 8. Tibahary, Abdul Rahman. Kepastian Hukum dalam Transaksi Jual-Beli Telepon Genggam (Handphone) di Pasar Gelap (Black Market). Accessed on August 14th, 2020.
ALSA Highlights #7 Child Protection in Indonesia in collaboration with ALSA CLCC LC UI 2020 Written by: Nicole Christy Syamhadi - Head of Internal Public Relations Kartika Vidya Noorlaela - Vice Head of Internal Public Relations Sasha Brilliani Trison - Vice Head of Internal Public Relations Child Protection in Indonesia Indonesia, through Presidential Decree Number 36 Year of 1990, ratified the Convention on the Rights of the Child, in which the first article states that a child is every human being below 18 years old. This Convention as well stipulates that children are attached to their childhood to be in school and at play, to grow strong and confident with the love and encouragement from their family and society. Acquainting the importance of protecting children's rights and to further implement the Convention on the Rights of the Child, Indonesia then passed Law Number 23 Year of 2002 concerning Child Protection, which elaborates that children's rights are part of human rights that must be guaranteed, protected, and fulfilled by parents, family, society, government, and the country. Furthermore, Law Number 23 Year of 2002 stipulates children's rights and obligations in Chapter III, one of them is the rights upon education to develop children's personality and intelligence based on their interests and expertise that is mentioned in Article 9. Rights to education and the quality of it are also focused in Article 28 and 29 of the Convention on the Rights of the Child as education is a key social and a powerful tool for breaking the cycle of poverty, supporting child survival, development, and well-being, as well as closing the gap in social inequality. Facts about Child Protection in Indonesia Nonetheless, millions of children are not fully protected, and many of them face violence, abuse, neglect, exploitation, exclusion, and discrimination on a daily basis. Having such a violation
limits their chances of surviving, growing, developing, and pursuing their dreams. Hence, the government establishes independent institutions whose task is to protect children who are victims of crime, namely the Indonesian Child Protection Commission and Integrated Service Center for Women's Empowerment and Child Protection. The government has also increased accessibility to essential social services, namely network development, provision of life skills, implementation of education, provision of school equipment, student monitoring and evaluation through the Child Social Welfare Program. This program has been piloted since 2009 by the Ministry of Social Affairs of the Republic of Indonesia and aims to provide welfare and protection services to children, especially for the most vulnerable ones. This program's basis is the fulfillment of children's basic rights, one of which is the right to education. Thus, the government accommodates assistance in the education sector, namely School Operational Assistance, Bidik Misi, and scholarship programs to sustain the future of children owing to Article 31 paragraph (4) of The 1945 Constitution which explicitly prioritizes education by budgeting at least 20% of the allocation from the State Revenue and Expenditure Budget and Regional Revenue and Expenditure Budget. School Operational Assistance was first introduced in 2005 to enable free education in primary and secondary schools to increase basic education access. At the same time, the quality of school practices is emerging in some primary and secondary schools, although the total quality of learning that the students receive is still low. The current challenge is to continuously improve education quality across the country, which is in line with the education quality improvement framework in the Indonesian National Education Standards. However, in the records released by the Central Statistics Agency, as of 2017, the number of children between the age of 7 to 12 years old who have access to inclusive education and the Pure Enrolment Rate is 97.19 percent. This indicates that there is still 2.81 percent of Indonesian children between the age of 7 to 12 years old who do not attend school. Referring to PISA research, conducted by the Organization for Economic Cooperation and Development in 2015, the reading ability of Indonesian children aged 15 years old is below the average of 72 other countries, with a score of 397. This number is far behind neighboring countries such as Singapore, which became the number one with a score of 535.
This month’s ALSA Highlight Sources are from: 1. "Hak-Hak
Anak
dalam
Hukum
di
Indonesia."
http://digilib.uinsby.ac.id/2936/5/Bab%202.pdf. Accessed on October 17th, 2020. 2. Eleanora, F, N., Sari, A. (2019). Role and Function of Indonesian Child Protection Commission in Providing Against Vic- tims of violence in the Street. Jurnal Hukum Prasada, 6(2), 103-108. doi: http://dx.doi.org/10.22225/jhp.6.2.1177.103-108 3. Alisjahbana, Armida S. (1994) "Demand for Child Schooling in Indonesia: Intrahousehold Allocation of Resources, the Role of Prices and Schooling Quality", PhD dissertation, University of Washington 1994 4. UNICEF.
"Childhood
Defined."
https://www.unicef.org/sowc05/english/childhooddefined.html. Accessed on October 17th, 2020. 5. UNICEF.
"Child
Development
and
Education."
https://www.unicef.ca/en/discover/education#:~:text=The%20Importance%20of%20Edu cation%20for%20Children&text=Education%20is%20a%20powerful%20tool,earnings% 20by%2010%20per%20cent. Accessed on October 17th, 2020. 6. UNICEF. "The Convention on the Rights of the Child." https://www.unicefirc.org/portfolios/crc.html#:~:text=For%20the%20purposes%20of%20the,child%2C%20 majority%20is%20attained%20earlier. Accessed on October 17th, 2020. 7. Andrews, Donald W. K. and Marcia M. A. Schafgans (1998) "Semiparametric Estimation of the Intercept of a Sample Selection Model", Review of Economic Studies v65, n3 (July 1998): 497-517 8. Bedi, Arjun S. and Ashish Garg. "The Effectiveness of Private versus Public Schools: The Case of Indonesia." Journal of Development Economics v61, n2 (April 2000): 463-94
9. Adzkia, Aghnia. "Kualitas pendidikan anak Indonesia memprihatinkan". Diakses dari https://beritagar.id/artikel/berita/kualitas-pendidikan-anak-indonesia-memprihatinkan. Accessed on October 15th, 2020 10. UNICEF. "Child Protection". https://www.unicef.org/ffl/12/. Accessed on October 15th, 2020. 11. Yasmin Anwar Putri, Nandang Mulyana, & Risna Resnawaty. "Program Kesejahteraan Sosial Anak (PKSA) dalam Memenuhi Kesejahteraan Anak Jalanan" Jurnal Universitas Padjadjaran, Vol. 2, No. 1, 2015. Hlm. 57 12. Dian Nurkholis. 2014. "Program Kesejahteraan Sosial Anak (PKSA) Untuk Anak Rentan Jalanan di Yayasan Domore". Skripsi. Ilmu Pendidikan. Pendidikan Luar Sekolah. Universitas Negeri Yogyakarta: Yogyakarta. 13. UNICEF. "Integrated Child Welfare Services: Reaching the Most Vulnerable Children in Indonesia".
https://www.unicef.org/indonesia/sites/unicef.org.indonesia/files/2019-
06/PKSAI-FactSheet-ENG-HiRes.pdf. Accessed on October 15th, 2020. 14. OECD, Asian Development Bank. 2015. "Education in Indonesia: Rising to the Challenge". http://luk.staff.ugm.ac.id/education-indonesia-rising-challenge.pdf. Accessed on October 15th, 2020.
A Gateway to the Future: E-Litigation in Indonesia’s Judicial System By: Amalia Nuril Aqmarina, Dante Deva Daniswara, and Fadilla Miftahul Staff of Legal Research and Development ALSA LC UI Board of 2020
An Introduction of E-Court Under Indonesian law, the term electronic court (“e-court”) itself carries two meanings. The first one is the general and broad meaning, which defines e-court as the whole procedure of daily court life, from the registration of the dispute (“e-filing”), information about the procedural fee (“e-SKUM”), paying the procedural fee (“e-payment”), summoning the parties involved in the dispute (“e-summon”), and the litigation itself (“e-litigation”). The second one is in a much narrower term that defines e-court as only an e-litigation, which is essentially an online court.1 The era of globalization and the rise of the technology gives us a clear signal of rapid and massive technological development that will affect the livelihood of billions of people on earth. This technological revolution, often called the Industrial Revolution 4.0, will give benefits to simplify and improve the methods by which society conducts itself. The judiciary, an integral part of a free and democratic society will also receive these benefits. 2 The concept of e-litigation in Indonesia is relatively new, compared to other more developed countries, Indonesia is quite slow to accept this revolutionary idea. This perhaps relates to the effects of the reformation era, at the beginning of the 21 st century, Indonesia went through a large-scale national reformation process that also affected the judicial system. Law No. 35 Year 1999 concerning Fundamental Judiciary Powers regulates basic judicial authorities, while Law No. 48 Year 2009 concerning Judicial Authority further details the regulations of the Indonesian judicial system. Compared to more developed countries, it is obvious that Indonesia is lacking in terms of innovation in the judiciary. For example, 1
Mahkamah Agung, “Peta E-Court Peradilan Umum,” https://ecourt.mahkamahagung.go.id/ma pecourt_umum, accessed on 30th September 2020 2 Narayan Toolan, "3 Ways The Fourth Industrial Revolution Is Disrupting Law, " https://www.weforum. org/agenda/2018/04/three-ways-the-fourth-industrial-revolution-is-disrupting-law/, accessed on 30th September 2020.
Indonesia‟s Asian neighbor South Korea already has a functioning e-court system for a long while. The effects of this system are largely positive such as 24/7 access to the court system, simple and easy administrative process, and document security. 3
E-Litigation State of Affairs in Indonesia To adjust the judiciary system with modern times, the Indonesian judiciary started to incorporate e-litigation into its system. This began in 2015 when the Indonesian Supreme Court started to organize a competition to find the best innovations that the court can use. It is the opinion of the Supreme Court that the spirit of innovation comes from Article 4 Paragraph 2 of Law No. 48 Year 2009 that mandated the court to uphold justice by solving any problems and issues that may be an obstruction of justice and to achieve a judicial system that is simple, fast, and low cost. This goes along with the fact that the Indonesian judiciary has a principal of constante justitie, which means that the process of law must be clear, concise, simple, and accessible to all. 4 The principle of a simple, fast, and low-cost court is adopted in Article 4 Paragraph 2 and Article 2 Paragraph 4 Law No. 48 Year 2009 and the previously amended laws which was later applied to e-litigation.5 Besides the positive effects of constante justitie, there are some weaknesses in terms of the principle of simple, fast and low-cost justice:6 -
To file a lawsuit, the Plaintiff or his lawyer must come in person to the Court. In the condition that the Plaintiff is domiciled in City X and the Defendant is domiciled in City Y, the lawsuit must be filed in District Court at City Y. Transportation costs that must be paid by the Plaintiff to commute from City X to City Y certainly are not cheap or low-cost, as 3
The World Bank, “Improving court efficiency: the Republic of Korea‟s e-court experience, ” https://www. doingbusiness.org/content/dam/doingBusiness/media/Annual-Reports/English/DB14-Chapters/DB14-Improvingcourt-efficiency.pdf, accessed on 30th September 2020. 4 S Fitra and D.H Jayani, “Mengukur Kinerja DPR dan Harapan untuk DPR Baru,” https://latadata.co.id /telaah/2019/10/3, accessed on 30th September 2020. 5 Indonesia, Undang-Undang tentang Perubahan Kedua Atas Undang-Undang Nomor 14 Tahun 1985 tentang Mahkamah Agung (Supreme Court), Law No.3 year 2009, LN No. 3 Tahun 2009, TLN No. 4958, art. 4. 6 Asep Nursobah, “Pemanfaatan Teknologi Informasi Untuk Mendorong Percepatan Penyelesaian Perkara di Mahkamah Agung,” Jurnal Hukum dan Peradilan, vol. 4, no. 2 (2015), p. 334.
well as in terms of energy spent, and time. Of course, this is contrary to the principle of inexpensive or cheap justice. -
In Indonesia, developments in technology in the judiciary is still very much focused on the administrative process of court life. The technological reforms have not brought enough change in the courtroom itself. 7
-
The summons of parties is enforced immediately by the bailiff to the parties‟ domicile, in the condition, if the parties‟ domicile is outside of the city, abroad, or its location is difficult to access, of course this will not take a short time. Which is not in accordance with the principle of fast judiciary. In fact, with information technology advancement, it can be utilized in summoning the parties by message, social media, or e-mail. . Those weaknesses compelled the Supreme Court to issue Indonesian Supreme Court
Regulation No. 1 Year 2019 concerning Administration of Case and Legal Proceedings in Court via Electronic Means (“PERMA No. 1 Year 2019”) which transformed the conventional trial to electronic administration and trial, which the Author will discuss in the next sub-chapter. Furthermore, this condition is not linear with the principle of constante justitie. From the competition of innovations held by the Indonesian Supreme Court, it can be seen that Indonesia already has a basic legal framework to begin with e-litigation. The legal framework for the implementation of e-litigation began in 2018. In that year, the Supreme Court established Indonesian Supreme Court Regulation No. 3 Year 2018 concerning the Administrations of Disputes Electronically in Courts. However, it must be noted that for now e-litigation in Indonesia is still limited to cases concerning private law (general and Islamic), state administrative law, and military administrative law as given in The Letter from the Chief Justice of the Indonesian Supreme Court No. 6 Year 2020 concerning The Working System in the Environment of Supreme Court in the New Normal. The first cases in which elitigation was tried in 2018 inside 32 first level courts in the Indonesian Supreme Court trial program. 7
Mahkamah Agung, Laporan Tahunan Mahkamah Agung 2014, (Jakarta: Mahkamah Agung, 2015).
The Administrative Process of E-litigation The administrative process is generally divided into three which are electronic filing, electronic payment, and electronic summons. 8 -
Electronic Filling The process of registration now can be done online by users (advocates) and non-users (other than advocates). Firstly, they must log in to their account and choose the court where they want to litigate. Then, they will receive an online registration number and can go on to upload their lawsuit in a soft file form. Lastly, they will receive an estimation of the procedural fee. This program gives us easier and much-needed access to our courts. Justice seekers from all over the country can now litigate from the tip of their fingers.
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Electronic Payment We can pay the procedural fee electronically from an E-SKUM Virtual Account (“VA”). The court‟s bank is connected electronically to the administrative program. This gives parties involved in a dispute a chance to pay the fee via their advocates from anywhere such as ATMs, internet banking, and other ways to pay the fee. This innovation originated from the Pekanbaru regional court. They created this application as a web-based application, which can be accessed by all users of the internet. This technology gives us transparency and efficiency in paying the court‟s procedural fee. Moreover, it can inhibit corruption, or often called pungli, in the judiciary. 9 After the fee is paid, the lawsuit will automatically enter the online system of the aimed court. The assigned apparatus will verify the data and upload it to the case tracking information system (“SIPP”) to get the case number. After that, you will receive a notification that says “your lawsuit has been successfully filed”.
-
Electronic Summoning
8
Mahkamah Agung Republik Indonesia, Buku Panduan E-Court Panduan Pendaftaran Online untuk Pengguna Terdaftar, (Jakarta: Mahkamah Agung RI, 2018). 9 M. Beni Kurniawan, “Implementation of Electronic Trial (E-Litigation) on the Civil Cases in Indonesia Court as a Legal Renewal of Civil Procedural Law,” Jurnal Hukum dan Peradilan, vol. 9, no. 1 (2020), p. 55.
In traditional litigation, the summoning is done by a bailiff directly to the partiesâ€&#x; domicile. Now, after e-litigation is applied the summoning process can be done via e-mail. This results in a speedier process and a much more efficient system. 10 As mentioned above, we have already discussed the first phase of e-litigation in the Indonesian courts. However, it was still limited only to the administrative process alone and lacked in the real litigation process. This was then expanded in 2019 via PERMA No. 1 Year 2019.
This rule
established the basic groundwork for e-litigation and gave it a working system divided into two parts. First, the administration, which we already discussed above, and then the litigation process itself. In general, the process of e-litigation consists of: 11 -
The first trial and court calendar Here the plaintiff and the defendant are summoned in front of the court. The panel of judges asks the plaintiff to show the lawsuit and other documents relating to the case. We must take note, that this process was the result of the consent and understanding of both the plaintiff and the defendant in order to protect their rights. After that, the court will try to mediate between the two parties, if mediation fails the court will go to the next stage. 12 In the e-litigation system, the court calendar is used to schedule the court. It determines the times of jawab-menjawab, evidentiary process, and verdict of the case.
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Brief description of dispute; responses, replik, and duplik (courtroom questions) In the e-litigation process, the parties are not required to attend the courtroom questions stage. On the other hand, the panel of judges continues to convey as usual in the courtroom. The procedures of this stage are: a) The parties are required to submit electronic documents on time; b) After receiving said documents, the panel of judges shall forward it to the opposing party; 10 11
Indonesia, Supreme Court of Republic of Indonesia, regulation No. 1 of 2019, art. 17. Zainal Arifin, Hukum Acara Perdata Di Indonesia, cet. Ke 2, (Jakarta: Prenadamedia Group, 2016), hlm.
24-26 . 12
Indonesia, Supreme Court of Republic of Indonesia, regulation No. 1 of 2014, art. 4.
c) The clerks are obliged to record all courtroom activity via the electronic dossier; and d) The parties who do not submit electronic documents according to the schedule are considered to be forfeiting their rights. -
The evidentiary process In the e-litigation system, the evidentiary process largely follows that of the procedure enumerated
in the
Herzien
Inlandsch
Reglement
(“HIR”)
or
Rechtsreglement
Buitengewesten (“RBg”). Before the process begins, the parties are required to upload their evidence in the e-litigation system. After that, both parties are required to attend this evidentiary process for the benefit of both parties to help the court verify corresponding documents and to participate in the questioning of summoned witnesses. In the HIR/RBg, the parties must give their conclusions orally or in writing. In the e-litigation system, this is done paperless by uploading each party‟s conclusions online. After the evidentiary process, the verdict is read by a conveyed court without the parties having to attend the court. The chief judge is responsible for uploading the verdict after it was read.
The Challenges of Applying E-Litigation in Indonesia After we have discussed the history, development, and framework of e-court system in Indonesia we now discuss the difficulties and challenges of applying e-court inside Indonesia‟s courtrooms. To identify these challenges, we can use Lawrence Friedman‟s theory of effectiveness that encompasses legal substance, legal culture, and legal structure.13 -
Legal Substance This part revolves around the substance and materials of the regulations around elitigation itself. As we know, these new regulations transform the procedure of the court. The problem that has emerged is to synchronize the newly born Supreme Court decisions about e-litigation to the previous decisions litigated accordingly by using HIR/RBg. The main question here is, can the newly developed concept of e-courts go in line with a well13
Lutfil Ansori, “Reformasi Penegakan Hukum Perspektif Hukum Progresif,” Jurnal Yuridis, vol. 4, no. 2 (2018), p. 148.
established court system before the Indonesian legal system?14 We must take note that most of the regulation concerning e-litigation are mostly not incorporated to official Indonesian law and are still mostly technical guidelines in the form of circular letters such as: a) The Letter from the Chief Justice of the Indonesian Supreme Court No. 122 Year 2018 concerning Guidelines for Registered User of Court Information System; b) The Letter from the Chief Justice of the Indonesian Supreme Court No. 271 Year 2019 concerning Technical Guidelines for Administration of Case and Legal Proceedings in High Courts, Cassation, Judicial Review via Electronic Means; and c) The Letter from the Chief Justice of the Indonesian Supreme Court No. 129 Year 2019 concerning Technical Guidelines for Administration of Case and Legal Proceedings in Court via Electronic Means. -
Legal Structure Legal Structure correlates with the “hardware” components of the courts. These components consist of institutional readiness, personnel, human resources, and basic infrastructure of courts.15 In order to conduct an effective e-court system, the court as an institution must open itself to technology and heavy digitalization. It must adapt to the ways possibly foreign to much of the court‟s apparatus. Of course, this is a challenge that will require quite a big reform inside Indonesian courts. The second problem relating to the legal structure is human resources. In order to have an effective e-court system, the court must have a working apparatus able to masterfully understand and practice the various new technologies employed by the court at all times. An effective e-court system will facilitate the tortuous procedures of bureaucracy. The simplification will reduce costs and increase public access to information by reducing the waste of time and money of the court administration. Judges must be accustomed to these
14
Sarwono, Hukum Acara Perdata Teori dan Praktik, (Jakarta: Sinar Grafika, 2016), p. 45. Iman Pasu Purba, “Penguatan budaya hukum masyarakat untuk menghasilkan kewarganegaraan transformative,” Jurnal Civics: Media Kajian Kewarganegaraan, vol. 14, no. 2 (2017), p. 146. 15
new methods to work properly inside an e-court. It is undeniable that judges that are already senior have a lot of difficulties in adapting to all the new technologies used in an e-court.16 Moreover, an effective e-court will further the transparency of the judicial process to be easily evaluated publicly, increase public accountability and responsiveness (social accountability) in the justice system, and thereby most importantly strengthen the legitimacy of judicial power. Transparency of information in the justice system is one of the matters to highlight since it relates to the right to a fair trial. Convoluted bureaucratic procedures have the potential to make people reluctant to fight for their rights through formal institutions of law. Research reveals many extortion practices carried out by court officials in Indonesia in providing judicial services to the public.17 The last problem within the legal structure is around the basic infrastructure that a court needs to function electronically. It is highly necessary to have an up-to-date information system in order to support an electronic courtroom. Another thing worth investing in is an effective encryption system to protect sensitive information from irresponsible and potentially dangerous parties. Lastly, to support the electronic courts it is necessary to have an integrated population data system in order to easily identify the parties involved in a case. This further adds to the effectiveness and efficiency of an electronic courtroom. -
Legal Culture In the end, the effectiveness of an electronic courtroom is highly dependent on the legal culture practicing these new technologies. If legal culture is ignored, then all of these innovations will be in vain. People will stick to old and inefficient ways rather than embracing progress. We must note that legal culture does not only derive from the culture of the people working inside the court, but also of people using the court system. With that in mind, the fact that a lot of people are still not used to the application of e-litigation will be a 16
Dory Reiling, Technology for Juctice: How Informaton Technology Can Support Judicial Reform (Leiden: Leiden University Press, 2009), p. 17. 17 Wim Voermans, „Judicial Transparency Furthering Public Accountability for New Judiciaries,â€&#x; Utrecht Law Review, vol. 3, no. 1 (2007), p. 159.
huge challenge to tackle. For example, in The Letter from the Chief Justice of the Indonesian Supreme Court No. 122 Year 2018 we can see that registered users are only advocates, this halts non-advocates from using e-litigation.
Thatâ€&#x;s indeed against the
principle that everyone is free to have an advocate or not to represent themselves in the court. Moreover, the nature of e-litigation is still optional and not mandatory, if the parties do not agree on having their case litigated through online litigation, then they can still engage in conventional court proceedings.
How Should We Respond to the Challenges? After identifying all the problems related to the application of e-litigation, we now must start to create a solution to respond to these various problems. The solutions offered must be in line with the legal climate and system in Indonesia because the e-litigations itself is a new idea. -
In Regards to the Legal Substance The problems in this aspect of law can be addressed by firstly recognizing and understanding that in Indonesian law the HIR/RBg has a higher standing in regulating the courtâ€&#x;s procedure. This is due to the legal principle of lex superiori derogat legi inferiori (higher rules overrule the lower ones inside a hierarchy). With that in mind, the government can tackle this problem by firstly stating clearly that PERMA No. 1 Year 2019 was not designed to contradict the procedures stated inside the HIR/RBg, but rather to complement it and give people a chance to litigate electronically. Another way of dealing with this problem is to incorporate the electronic court procedure to the HIR/RBg itself to end the debate about the hierarchy of the law.
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In Regards to the Legal Structure The solution in this aspect relies on development and education. Development, because as an institution the court must evolve to answer the test of times and also the government must provide basic infrastructure to the courts. Education, because the judges and apparatus of the court must learn and get used to all the new online and technological
innovation available. It is a very long and costly process but in the long term, the court will benefit greatly from this investment. -
In Regards to the Legal Culture Regarding the problem of legal culture, which is mostly sociological, the key is socialization and adaptation of the electronic court. The government as an agent of change and development must socialize this new and unfamiliar way of litigation to the judiciary of Indonesia. After that, the expansion of e-courts to the lower level courts is necessary to improve legal culture. Reviewing the current trends in Indonesian courts, there are still a lot room for improvement regarding the culture of the courts based on the principle of constante justitie. For example, the Supreme Court‟s report in year 2004-2007 indicates that the delay of numerous cases still proves that our courts have not fully implemented constante justitie.18
Indonesian E-Litigation in Comparison with Other Countries According to Indonesian Law Digest, Online Dispute Resolution (“ODR”) began in the European countries in 2016. Based on the EU Regulation No. 524 Year 2013 concerning online dispute resolution for consumer disputes, the intention of the ODR itself is similar to Indonesian e-litigation, which provides a simple, low-cost means of resolving consumer disputes that arise between consumers and between parties involved in a dispute.19 In Indonesia, as mentioned above, the e-litigation existence is in accordance with the Indonesian judiciary principle of constante justitie that had been adopted in Article 4 Paragraph 2 and Article 2 Paragraph 4 Law No. 48 Year 2009. Furthermore, from developing countries such as India, although the system of their Online Dispute Resolution is still considered to be in a very early stage, India has already introduced a number of practices, which encompass negotiation, mediation, conciliation, and 18
Sebastian Pompe, “The Indonesian Supreme Court, a Study of Institutional Collapse,” (Jakarta: Lembaga Kajian dan Advokasi untuk Indpendensi Peradilan, 2014), p. 679. 19 EU Commision, “Know Your rights,” https:/ec.europa.eu/consumers/odr/main/?event=main.home. mitworks, accessed October 30th 2020.
arbitration for various types of disputes, with a particular focus on e-commerce disputes.20 However, unlike Indonesia, India has developed several platforms to perform its e-litigation systems such as Techno Legal Centre of Excellence for ODR in India (“TLCEODRI”) and Legal Referee. Meanwhile, in Indonesia, we only use one platform from the Supreme Court that can be accessed through the website of “ecourt.mahkamahagung.go.id”21 In comparison with China, they started to develop their e-litigation in the same year as Indonesia, which is 2015. Since the growth of their E-Commerce transaction that surpasses the United State of America, the Chinese government decided to take a part in developing their elitigation system. In China, the system was developed by the China International Economic and Trade Arbitration Commission (“CIETAC”).22 CIETAC in 2015 issued a set of Online Arbitration Rules (“CIETAC Rules”), which address the procedures which are to be used when seeking resolutions to e-commerce disputes. In Indonesia, the e-litigation itself was first established to follow the progress of legal dispute resolutions in modern times and not to exclusively solve the problems of e-commerce disputes. Therefore, there are differences in the system of e-litigation itself and the intention behind it.
20
ODR India,”Resolve E-Commerce Disputes in India Through E-Commerce,” (New Delhi: Indian Arbitration Comission, 2017). 21 ODR India, “Cyber Arbitration Trends in 2017 by TLCEODRI,” New Delhi: Indian Arbitration Comission, 2017). 22 Laws of The People‟s Republic of China,Arbitration Rules of The International economic and Trades Arbitration Commision of The People’s Republic of China,” (Beijing: Chinese Government: 2005).
Conclusion In conclusion, from the materials that have been explained above regarding e-court and elitigation in Indonesia, we could conclude that this is a modern way to approach dispute resolution and it is in accordance with the development of modern times court. E-litigation also shows that it is a great leap forward in the digitalization and mechanization of courts. In Indonesia, e-litigation brings numerous positive changes inside Indonesian courts such as a speedy administration process, greater access to courts, transparency in procedural fees, and overall greater experience in litigation. And the most important, it is in accordance with the principle of constante justitie. Although e-litigation could be seen as a great breakthrough in substantial changes in procedural law and legal culture of Indonesia, in order to successfully apply the e-litigation system the government and legal entity must participate in order to and solve the problems related to e-litigation, and socializing also improving the system to be widely accepted in the society. Pertaining to the challenges explained, specifically concerning the infrastructure that has not been adequate in supporting the proceedings through e-court, the government can also allocate a certain amount of state budget to develop the infrastructure needed for e-court to function well. Shifting the allocation of state budget or Anggaran Pendapatan dan Belanja Negara (“APBN�) to focus on the development of e-court can indeed have a positive impact to the judicial system.