The term bukti or evidence is confusing because it has two separate meanings in Indonesian law. The single term
bukti is used for both meanings. Clients, lawyers, police, and judges often appear unclear about the difference.
The two meanings are based in the role of the court—because ultimately all legal proceedings could or will end up in either
civil perdata or criminal pidana court.
From M.Y. Harahap, regarding bukti in a perdata proceeding:
Bukti is connected with the necessity of reconstructing a past event as a truth. The truth sought
and achieved in a perdata proceeding is not the ultimate truth, but only the relative or probable truth. But even
finding the probable truth can be difficult.
...
In principle, the role of a judge in developing evidence is passive according to an adversarial system. The judge in
a perdata proceeding cannot take an inquisitorial role. The powers of a perdata judge in seeking the truth are limited. For
instance, a judge is not free to make his own determination if presented with perfect and sufficient evidence (bukti sempurna
dan mengikat) such as Akta Otentik, or a confession or statement under oath. In such a situation, although the judge
may doubt the validity of the document, the judge is not free to reject it.
from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 496
Regarding bukti in a pidana proceeding:
The process of developing evidence in criminal proceeding demands a search for absolute truth.
- it must be based upon a minimal standard of legal evidence, that is that there must be at least two pieces of legal evidence which
fulfill both the appropriate formal and material standards;
- and regarding the evidence that fulfills the above minimal standards, they must be supported by a certainty of belief of the judge
concerning the truth of that evidence against the defendant to the standard of “beyond a reasonable doubt.”
from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 498
Regarding bukti in a perdata proceeding:
In a perdata proceeding... the truth that is sought and acheived by the judge is sufficient if it is only a formal truth.
In the evidence itself and in the heart of the judge, there need not be certainty. The parties in contention may submit false evidence
based on lies, but this fact in theory must be accepted by the judge to protect or maintains the individual’s rights.
from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 498
Harahap’s statement seems to go beyond the explanation in
False Documents. Not really, but procedures for a party to defend against
a false Akta Otentik presented in a perdata trial can be complicated.
The legal code lists the types of bukti
admissible in court, and if they are not presented in the case, there is by law no evidence to proceed with trial.
For example, a case about property—whether concerning contracts or marital assets or inheritance—must
have the original Sertifikat Hak Milik presented as bukti, or else there is no basis for further consideration.
A trial about a contract requires the original Notaris agreement.
Witnesses, signed letters, or other lesser forms of evidence cannot replace the original bukti.
This is at odds with law in many other nations in which
a wide variety of evidence can be considered to arrive at the truth of a situation. As usual, Indonesian law takes
a formalist approach to evidence.
HOWEVER, this does not mean that the Sertifikat Hak Milik or the Notaris contract is a magical document.
The legal bukti document is required, and it is considered “perfect” evidence of the underlying transaction,
unless proof is brought forward that it is defective, or falsified, or acquired through fraud or misrepresentation.
An original Sertifikat Hak Milik or Notaris contract can be challenged. Causing false information to be entered into
an official document is criminal.
Also “original” in this sense does not mean the single original document obtained at the signing of the document.
It may be an official copy. A photocopy of the Sertifikat Hak Milik with a stamp of legalizir from the BPN certifying
that the photocopy conforms to the original document is also an original document.
So ultimately, the Sertifikat Hak Milik or Notaris contract is considered to be evidence that the underlying transaction
does in fact exist and that it is legal, the same as in other countries with a less formalist approach where a wider
range of evidence is permitted, and in normal circumstances this is sufficient for the court to proceed with a trial.
A successful challenge to the bukti—and this might now include witness statements that the contract was signed
under false pretenses—can cause the court to invalidate or set aside some or all provisions of the bukti.
For example, and looking specifically at the “Expat Spouse Law,” a spouse’s name on a Sertifikat Hak Milik does
not mean that an expatriate spouse has no rights to the property as marital assets in common. It would not be unusual for a lawyer
to tell a client that the existence or wording of a document puts the case beyond challenge, but this may be untrue.
It depends on the skill of the lawyer, and for whose interests he is really working.