Comity or Reciprocity


Comity refers to the principle that a national court will respect or honor the decision of a court of another nation, at least to the extent that the other nation also honors international court decisions in return.

National courts do not automatically enforce foreign court decisions; in theory, foreign decisions are accepted as a basis for consideration by the national court. But in most cases, if the judgment appears reasonable, the national court will accept the foreign judgment.

In general, countries with well-functioning legal systems will by default assume comity. Judges seem inclined by nature to uphold the dignity of law, and they don't like to hear complaints about dysfunctional legal systems in other countries.

Because courts have authority within the specific limits of their customary jurisdiction, family courts, for instance, will make judgements about issues in family law. They will not be eager to make findings about the competence of the legal institutions of another nation.


So how does “comity” affect you?

If you turn to the court of a foreign country—your home country, for instance, if you are an expatriate—after receiving an unfavorable judgment in an Indonesian court, you may have a very difficult time convincing the court that the Indonesian court decision should be set aside or overruled due to miscarriages of justice in the Indonesian legal system.

This is a frequent occurence in cases of child custody after divorce.

The problem is not that the judge does not believe you, but the judge is restrained by comity from making a finding condemning another country’s legal system.

But the problem of foreign judgments in Indonesia is even worse: the respect extended by foreign courts to the courts of Indonesia is often not reciprocated by the Indonesian courts.

This depends on the quality of education of the judges, because legal education in Indonesia is uneven. Well-educated judges do recognize and honor comity. Poorly-educated judges may look upon foreign judgments as an issue of nationalism, in which contempt for foreign courts demonstrates the soveriegnty of Indonesia. For a nationalist judge, a foreign court judgment is a red flag in front of a bull.


The exception to “comity”

Comity is based upon mutual respect between legal institions and nations. If in your case you have a judgment from another country which has been rejected or treated without respect by an Indonesian court, the fact that the Indonesian court did not honor comity may form the basis for a request to the other country’s court to refuse the resulting Indonesian court decision in return.