Judiciary of Indonesia

The Supreme Court building in Jakarta

The Judiciary of Indonesia constitutionally consists of the Supreme Court of Indonesia (Mahkamah Agung Republik Indonesia, abbreviated into MA), the Constitutional Court of Indonesia (Mahkamah Konstitusi Republik Indonesia, abbreviated into MK), and the lesser court system under the Supreme Court. These lesser courts are categorically subdivided into the public courts (Peradilan Umum), religious courts (Peradilan Agama), state administrative courts (Peradilan Tata Usaha Negara), and military courts (Peradilan Militer). ^[1]

The Public Prosecution Service (Kejaksaan Republik Indonesia), headed by the Attorney General, is not part of the judiciary; they are part of the executive branch of the government, with the state prosecutors themselves as civil servants, and the Attorney General themselves only answers to the President of Indonesia.

Law

Main article: Law of Indonesia

Indonesian law is a continuation and improvement of the Dutch colonial laws, Islamic family laws, and aspects of Adat laws (unwritten, traditional rules still observed in the Indonesian society). The highest law of the land is the 1945 Constitution, amended four times from 1999 to 2002 during the early Reformasi period. Under the current rules on Indonesian lawmaking, the type of laws enacted by the government are hierarchically structured as:

1. The 1945 Constitution (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945)
2. Resolutions of the People's Consultative Assembly (Ketetapan Majelis Permusyawaratan Rakyat)
3. Acts (Undang-Undang) and Government Regulations in-lieu-of Acts (Peraturan Pemerintah Pengganti Undang-Undang)
4. Government Regulations (Peraturan Pemerintah)
5. Presidential Regulations (Peraturan Presiden)
6. Provincial Ordinances (Peraturan Daerah Provinsi)
7. City Ordinances or Regency Ordinances (Peraturan Daerah Kota or Peraturan Daerah Kabupaten)

Indonesian law ascribed to civil law system, inherited from the Dutch implementation of the Roman legal system (Roman-Dutch law), as well as the Napoleonic Code. The judicial system is inquisitorial in nature, where the court of law actively pursue the facts of the case and dispute, working closely with other elements of the Indonesian law enforcement agencies. The judges reach a verdict after examining the evidences, and prefer applying statutory laws: Stare decisis is not widely used. Trials by jury system is not implemented.

Indonesia is a decentralized, unitary state, and thus there is no separation between central and regional judiciary system; All judicial system is set on a hierarchical, but contiguous top-down chain of command.

Courts System

Courts structure

Indonesian court system is set on basic three-level courts: ^[2]

• first-level courts (Peradilan tingkat pertama) based in the municipalities (city or regency), where the courts in this level have original jurisdiction to hear cases, resolve disputes, and reach a verdict;
• second-level courts (Peradilan tingkat banding) based in the provincial capital, where the courts in this level have appellate jurisdiction to hear appeals from the first-level courts; and
• third-level courts (Peradilan tingkat kasasi) based in the national capital Jakarta, where the main court in this level, the Supreme Court, serve as the final court of appeals, although they also have original jurisdiction over certain matters. Meanwhile the Constitutional Court also have original jurisdiction over certain matters separate from the Supreme Court, but have no appellate jurisdiction.

Supreme Court

Main article: Supreme Court of Indonesia

Mahkamah Agung Republik Indonesia, or the Supreme Court of the Republic of Indonesia is the highest court of law. It is the final court of appeal for criminal and civil verdicts made in the lesser courts, thus they are able to overrule lesser courts' verdicts. It resolves dispute on the matter of judicial jurisdiction, and hears request to review previous Supreme Court verdicts due to newly discovered evidence or due to judicial error. The latter legal action is known as Peninjauan Kembali, abbreviated into PK.

Aside from administration of justice, the Supreme Court are tasked to nominate three people to fill the position for the justices of the Constitutional Court, reviews laws and regulations lower than Acts jointly enacted by the DPR and the President (Judicial Review), and provide opinions as a constitutional requirement for the President before granting executive pardon and legal rehabilitation of convicts. ^[3]

The Supreme Court is headed by the Chief Justice of the Supreme Court of Indonesia, currently by Muhammad Syarifuddin. ^{[4] [5]}

Constitutional Court

Main article: Constitutional Court of Indonesia

The Constitutional Court building in Jakarta

Mahkamah Konstitusi Republik Indonesia, or the Constitutional Court of the Republic of Indonesia rules over disputes specified in Article 24C of the 1945 Constitution, as well as other functions enshrined by Laws. It is formed in 2003 during the Reformasi period, as the result of the Third Amendment of the Constitution. The Constitutional Court have jurisdiction over cases concerning: ^[6]

• Constitutional review of a Law;
• Disputes between state institutions regarding their constitutional competence and jurisdiction;
• Disputes arising from electoral results, both national, provincial, and municipal elections;
• Dissolution of political parties; and
• Impeachment process of the President and/or the Vice President, in which the Constitutional Court must rules whether the articles of impeachment submitted by the DPR to remove from office the President and/or the Vice President is proven or not proven, in order to proceed or not to proceed to the removal process.

The current Chief Justice of the Constitutional Court of Indonesia is Anwar Usman, who have headed the Constitutional Court since 2015.

Lesser Courts

The four subdivisions of the lesser courts hear its final appeal in the Supreme Court.

Public Courts

Pangkalpinang District Court building

Peradilan Umum or the Public Courts consists of the first-level District Court (Pengadilan Negeri) and the second-level High Courts (Pengadilan Tinggi), after which further appeals go to the Supreme Court. They hear criminal and civil cases involving Indonesian citizens or foreign citizens in Indonesia, as well as Indonesian and foreign legal entities who are based in Indonesia or if they chose to have their case heard in Indonesian court.

District Courts have original jurisdiction to hear cases within the city and regency, while High Courts have appellate jurisdiction at the provincial level, based in the provincial capital. ^[7]

There are specialized courts formed within the system of first-level public courts, such as:

• Juvenile courts (Pengadilan Anak), which function under special juvenile criminal procedural system;
• Human rights courts (Pengadilan Hak Asasi Manusia or Pengadilan HAM), which hear cases of human rights violation conducted by the government or government officials;
• Industrial relations courts (Pengadilan Hubungan Industrial), which hear cases of industrial relations dispute, industrial conflict of interests, prejudiced termination of employment, and resolving dispute between unions in the same workplace;
• Commercial courts (Pengadilan Niaga) which hear cases of corporate bankruptcy, debt suspension, intellectual property disputes, and bank liquidation;
• Fishery courts (Pengadilan Perikanan) which hear cases of fishery crime – that is, illegal, unregulated, and unreported fishing; and
• Anti-corruption courts (Pengadilan Tindak Pidana Korupsi or Pengadilan Tipikor) which hear cases of corruption, graft, bribery, money laundering, and other acts considered to be corruption crime.

Religious Courts

Ambon High Religious Court building

Peradilan Agama or the Religious Courts are for Muslim citizens to resolve civil matters, such as marriage, inheritance, and property donated for religious purposes ( waqf ). ^[8] They are the first-level Religious Court (Pengadilan Agama) and the second-level Religious High Court (Pengadilan Tinggi Agama). Despite the name, they do not hear cases concerning religions other that Islamic cases; Cases concerning civil cases of other religions are heard in the public courts.

Main article: Islamic criminal law in Aceh

In Aceh, special first-level Sharia Court (Mahkamah Syar'iyah) and second-level Provincial Sharia Court of Aceh (Mahkamah Syar'iyah Provinsi Aceh) are vested with special authority, owing to Aceh's special status within Indonesia. These special courts, in addition to basic religious courts' authority, have jurisdiction over Islamic morality criminal cases ( Jinayat ) regulated by local ordinances ( Qanun ), such as public drunkenness, sales of alcoholic beverages, gambling, and other moral crimes incompatible with Islamic values. Under this system, the courts are also empowered to deliver punishments not available under Indonesian laws, such as whipping. ^{[9] [10]}

State Administrative Courts

Peradilan Tata Usaha Negara or the StateAdministrative Courts were established in 1986 as a result of a Law intended to ensure that people would not be treated arbitrarily by government officials or institutions. Initially formed in 1981 as a specialized court under the public courts system, the State Administrative Courts were formalized under Law No. 5/1986 ('State Administrative Courts Act'). ^[11] They rule in disputes involving the state officials or bodies, both within central and regional officials or institutions. ^[12] The object of all state administrative proceedings are actions – proven with the issuance of a decision (Surat Keputusan or Beschikking) – or lack of actions by the government, considered harmful against the interest of the citizens. The courts also hear cases which include civil servants against their superiors of the internal bureaucracy of the government itself. ^[13]

The state administrative courts are the first-level State Administrative Court (Pengadilan Tata Usaha Negara) with original jurisdiction to hear state administrative disputes, and the second-level State Administrative High Court (Pengadilan Tinggi Tata Usaha Negara) with appellate jurisdiction from cases heard in the first-level court. The Supreme Court serves as the final court of appeal.

There is one specialized court created within the system of the administrative courts – the Tax Court (Pengadilan Pajak).

Military Courts

Peradilan Militer, or the Military Courts deal with criminal and military administrative cases involving members of the Indonesian National Armed Forces. ^[14] They are the first-level Military Court (Pengadilan Militer, abbreviated into Dilmi) with original jurisdiction over cases regarding military personnel whose ranks are no higher than a captain, and the second-level High Military Court (Pengadilan Militer Tinggi, abbreviated into Dilmilti) hear appeals against decisions of the first-level courts, as well as having original jurisdiction over cases involving military personnel with ranks of a major and above. ^[15]

Another second-level Primary Military Court (Pengadilan Militer Utama, abbreviated into Dilmiltama) hears appeals against decisions of the High Military Courts and also decides upon issues of jurisdiction of the various military courts. ^[15]

During armed conflict, Battlefield Military Court (Pengadilan Militer Pertempuran) with wartime jurisdiction can be mobilized to hear criminal cases of military personnel and reach a verdict against said military personnel on the battlefield. ^[15]

Judicial Commission

Main article: Judicial Commission of Indonesia

Other than the Supreme Court and the Constitutional Court, Komisi Yudisial Republik Indonesia or the Judicial Commission exercise judicial authority under the Constitution. Specifically, they exist to ensure the independence of the judges and the judicial system from unnecessary intervention and involvement. The laws tasked the Judicial Commission to: ^[16]

1. Nominate candidates of judges (and ad hoc judges) of the Supreme Court to be approved by the DPR, by:
   1. receiving applications of the candidates;
   2. running an open selection process of the candidates;
   3. selecting qualified candidates to be nominated; and
   4. formally nominated the candidates to be approved by the DPR.
2. Maintain and enforce judges' code of conducts and code of ethics, by:
   1. oversee and observe judges' professional conducts;
   2. receive public reports regarding allegations of judges' violation of code of conducts and code of ethics;
   3. verify, clarify, and investigate the public reports and allegations of judges' violation of code of conducts and code of ethics;
   4. protect and maintain the judges' professionalism from unfounded allegations; and
   5. promoting the judges' professional capacity and welfare.

Personnel

Judges

Hakim or Judges are state officials vested with judicial authority to hear cases, resolve disputes, and reach a verdict in civil and criminal cases. Within the Indonesian criminal procedural system, they are one of the most important subjects, aside from the law enforcement (police force), the prosecutors, and the correctional facilities. ^[17]

Aside from regular judges, there exist Hakim Ad hoc or Ad hoc Judges, retired judges who have the judicial experience and skill to be appointed and assigned to hear cases in chambers for a certain period of times. ^[18] They are most prominently assigned to the human rights courts, due to the nature of the cases, which might involve active state and government officials, and the ad hoc judges' authority may eliminate any conflict of interests. ^[19]

Judges decide cases based on statutory law. If there is no applicable statutes, judges must apply unwritten law and decide cases with wisdom and full responsibility to God. ^[20]

Prosecutors

Main article: Public Prosecution Service (Indonesia)

Main article: Attorney General's Office of Indonesia

Jaksa or Prosecutors are government officials of the Public Prosecution Service of Indonesia, headed by the Attorney General, and vested with judicial authority to prosecute criminal cases and execute court orders and sentencings. They can also act as solicitor general, in which they represent the state and the government in civil and state administration cases involving the state and the government. In criminal cases, they are known by the term Jaksa Penuntut Umum (Public Prosecutor), while in civil and administrative cases they are known by the term Jaksa Pengacara Negara (State Attorney).

Parallel to the military courts, the Oditurs of the Office of the Military Prosecutors (Oditurat) function as the relevant authority to prosecute and investigate criminal cases of members of the Indonesian National Armed Forces. The Oditurat are headed by the Oditur Jenderal, which serves as the most senior prosecutor within the Indonesian military judicial affairs.

Attorneys

Pengacara (sometimes the terms Advokat or Penasihat Hukum are used) are lawyers who represent and advise defendants in criminal proceedings and parties in civil cases.

Law enforcement agencies

Main article: Law enforcement in Indonesia

Prominent law enforcement agencies include the National Police and the Corruption Eradication Commission .

Correctional agencies

Lembaga Pemasyarakatan or Lapas are government-ran correctional facilities, which includes prisons for adults, women, juveniles, corruption convicts, and convicts of terrorism charges. They are administered by the Ministry of Law and Human Rights.

Court clerks, bailiffs, and secretaries

Panitera or the court clerks ran the judicial administrative aspect of the courts. They keep records of case proceedings, maintain records of cases of their assigned courts, release official copies of court documents, and execute civil case verdicts. Sometimes they are assigned to appear in court to help administer the oaths. ^[21]

Juru Sita or the bailiffs are the official executor of the court orders. They often hand-deliver court orders and summons, execute court seizures and safekeepings of properties and their attached documents, and communicate and cooperate with other agencies regarding their actions. ^[21]

Sekretaris or the secretaries ran the non-judicial (general affairs) administrative aspect of the courts. They manage the court's assets and its procurement, oversee human resources, and ran the financial affairs of the court. ^[21]

References

1. "UU No. 2 Tahun 1986 tentang Peradilan Umum [JDIH BPK RI]". peraturan.bpk.go.id. Retrieved 18 December 2021.
2. Saragi, Marry Margaretha (21 June 2013). "Mengapa Peradilan di Indonesia Bertingkat-tingkat?". Hukumonline. Retrieved 19 December 2019.
3. Angkouw, Kevin (30 May 2014). "FUNGSI MAHKAMAH AGUNG SEBAGAI PENGAWAS INTERNAL TUGAS HAKIM DALAM PROSES PERADILAN". Lex Administratum. 2 (2). ISSN   2337-6074.
4. Triyono, Agus (8 February 2012). "Hatta Ali Elected New Supreme Court Chief Justice". The Jakarta Globe.
5. Bambang Waluyo (1992) pp. 98, 112-113
6. "Kedudukan dan Kewenangan | Mahkamah Konstitusi Republik Indonesia". www.mkri.id. Retrieved 19 December 2021.
7. Waluyo (1992) , pp. 15–16, 34
8. Bambang Waluyo (1992) p42
9. Lindsey & Sumner. "Courting reform: Indonesia's Islamic Courts and Justice for the Poor" (PDF). Archived from the original (PDF) on 10 March 2020. Retrieved 30 August 2012.
10. "Indonesia". Freedom in the World 2012. Freedom House. Retrieved 23 February 2013.
11. "Sejarah Pengadilan | Pengadilan Tata Usaha Negara Jakarta" . Retrieved 19 December 2021.
12. Bambang Waluyo (1992) pp. 65, 68
13. Lotulung, Paulus Effendi (6 December 1991). "Peradilan Tata Usaha Negara". Jurnal Hukum & Pembangunan. 21 (6): 579–587. doi:10.21143/jhp.vol21.no6.997. ISSN   2503-1465.
14. Bambang Waluyo (1992) p88
15. "SEJARAH PERADILAN MILITER DI INDONESIA". www.dilmilti-jakarta.go.id. Retrieved 19 December 2021.
16. Law No. 18/2011
17. Mulingka, Firman A. (12 August 2015). "FUNGSI DAN KEDUDUKAN HAKIM DALAM SISTEM PERADILAN PIDANAN KAITANNYA DENGAN KEMANDIRIAN HAKIM". Lex Administratum. 3 (6). ISSN   2337-6074.
18. "Situs Web Kepaniteraan Mahkamah Agung RI". kepaniteraan.mahkamahagung.go.id. 24 August 2021. Retrieved 20 December 2021.
19. "MA: Hakim Ad Hoc Berada di Lima Pengadilan Khusus | Mahkamah Konstitusi Republik Indonesia". www.mkri.id. Retrieved 20 December 2021.
20. Bambang Waluyo (1992) p11
21. "Tugas Pokok & Fungsi". www.pn-stabat.go.id. Retrieved 20 December 2021.

Further reading

• Waluyo, Bambang (1992). Implementasi Kekuasaan Kehakiman Republik Indonesia[The Implementation of Judicial Power in the Republic of Indonesia] (in Indonesian). Jakarta: Sinar Grafika. ISBN   979-8061-42-X.
• Indrayana, Denny (2008). Indonesian Constitutional Reform 1999-2002: An Evaluation of Constitution-Making in Transition. Jakarta: Kompas Book Publishing. ISBN   978-979-709-394-5.