What Doesn’t Happen in Court?

What doesn’t happen in court?

(but probably should)


In civil court lawsuits such as disputes over contracts or marital assets, courts in most countries find judicial powers to collect testimony and evidence including

  • direct testimony by principals,
  • direct testimony from close witnesses,
  • depositions under oath,
  • the power of the court to compel testimony

to be indispensible in determining facts behind the claims.

So it can be difficult for foreign observers to understand the basis for civil court decisions when they discover that these valuable tools are not available in Indonesian courts.

No direct testimony from principals

Not only are the principals—the Penggugat and the Tergugat—not required to ever appear in court in a civil or perdata lawsuit, they are in fact prohibited from giving personal testimony to the court.

This prohibition seems to be based on what appears to be a peculiar analysis as explained by the respected scholar M.Y. Harahap:

In the HIR, RBG, and Civil Code there are no provisions that either prohibit or permit the principals in a lawsuit from appearing as witnesses. It is as if the law codes leave the subject to development in practice.


Based on observation, although there is no principle of positive law that prohibits the parties from appearing as witnesses, courtroom practice does not permit it...The most basic reason prohibiting it is that the parties involved in the dispute have direct interest in the outcome of the lawsuit in which they are being called as witnesses. In that case, how would it be possible for anyone with an interest in the outcome to be independent and impartial? Certainly they will support their own interest because they themselves will be the first beneficiary of their testimony!

However, independent of the above explanation, Ida Iswoyokusumo among others has written that the development of law regarding evidence in Holland does allow the contending parties to give testimony as witnesses under the conditions:

  • They are not forced to testify...
  • They are not under danger of criminal charges if they testify...

While regarding the value of such testimony as evidence:

  • It should be considered as open evidence with the meaning that the hakim is free to accept or reject it,
  • It cannot be considered as “perfect” evidence which can be accepted as proof unsupported by other evidence.


However, despite there being a change in the law in Holland, the practice of the courts of Indonesia does not allow this.


from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 682-683


Certainly no one can believe that witnesses presented by one side or the other are independent and impartial. Usually the witnesses are presented by the two contending parties of the lawsuit, and their witnesses are selected because they are useful to each party’s position. In many cases it is abudantly clear that witnesses on one side or the other, and maybe both sides, are lying. Expecting principals to be held above the standards of their own witnesses is unreasonable.

But most important, prohibiting principals from testifying prevents the judges from questioning and evaluating them directly, while explanation of the case from the points of view of contending principals can often be the most effective and concise way for the Majelis Hakim to cut to the essence of the case.


No direct testimony from close witnesses

Principals cannot give testimony, but neither can relatives, employees, or other co-workers.

Pasal 145 Herzien Indonesis Reglement (HIR) states:

Testimony cannot be heard from witnesses who are

1e. family by blood or by marriage from one or the other principals in direct descent,

2e. husband or wife of one or the other principals, even if already divorced,

3e. children who it is unclear whether they have reached the age of 15,

4e. mentally ill persons, even if sometimes they have a lucid memory.

Employees are also excluded from giving witness testimony as explained by Harahap:

In principle according to jurisprudence they are not members of the groups prohibited from giving witness testimony according to Pasal 145 HIR... So they are qualified to be witnesses.

In practice however, one can always question whether a person with a work relation with one or the other principals is appropriate as a witness? Does not the relationship between boss and employee remove the independence of the employee to give honest testimony?..Especially if the other party objects that the witness would be biased, the judge has the authority to weigh the objection according to Pasal 172 HIR. In that pasal it is said that one factor that a judge must weigh is the status of the witness in the broader sense, including work relationships. However if the opposing party has no objection, this is not a problem.

from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 641

In simpler times, employees covered by the HIR were generally domestic servants, or laborers, or even slaves, whose existence was under nearly absolute control of their employers. With the development of the Indonesian economy and society, most employees are no longer entirely dependent on their masters.

Actually the written law does not exclude employees including domestic help or work associates including business partners from giving testimony. But Harahap’s ”in practice” is not just in practice according to Pasal 172 HIR: in real life the court usually excludes testimony from anyone related by work without weighing any other factors.

In a recent personal experience in a land dispute arising from an agreement made in 1982 between a non-profit organization and a local resident who at the time agreed to a nominee arrangement, one party presented a witness who had invested money and was present at the original purchase. The judge immediately—without any objection from the second party—asked whether the witness was still active on the board of directors or was already retired from the board.

”Still active” said the witness, by which he meant that he still consulted with the board on this particular issue although in fact he was otherwise no longer active.

The judge immediately ruled that the witness could not give evidence.

Considering that the rational for excluding work associates was that they might not have independence of testimony, but as if retirement from the board of which the witness had been a member for 35 years would suddenly give him objectivity, clearly this is a purely formal rule divorced from logic.

Anyway, no point in arguing it. That’s the rule.


No deposition

In many countries deposition—meaning giving testimony under oath outside the courtroom—is an unavoidable responsibility of the contending parties in a civil lawsuit. The court does not need to order the parties into deposition, although a judge will order parties to cooperate if one or the other make deposition difficult.

Requirements for deposition mean that obviously fraudulent lawsuits expose the contending parties to potential criminal charges either for perjury or fraud if they make false claims to the court. This adds intentive to finding settlements before continuing the case in front of the judge.

But there is no deposition in Indonesia. In theory the judges could examine the principles or other witnesses directly, but principals or other close witnesses do not testify.


No power to compel witnesses

Many other potential witnesses could have important insights into a case. For example, the National Land Office (Badan Pertanahan Nasional or BPN) can confirm existence of original Land Certificates (Sertifikat Tanah) in disputes involving property.

An original Sertifikat Tanah is an Akta Otentik, meaning an official legal document of perfect evidence (bukti sempurna) which is necessary to prove the existence of the land in question. If one side in a land dispute has the original certificate but refuses to produce it in court, formal evidence may be not sufficient to render a judgment.

So can the judge compel the party holding the land certificate to produce the original in court? According to the statutes of the HIR, yes, the court does have that power.

The court also has power to compel witnesses to appear. A Petitioner may try to force the BPN to appear with the original land certificate by including the BPN as a co-defendant or turut tergugat in the lawsuit.

But in practice, and based on the author’s personal experience in multiple cases, if the civil lawsuit is based on possible falsification of documents or fraud, the BPN may be reluctant to give testimony. In some cases of land fraud, one could suspect the BPN itself could be involved, or that the BPN has reached an agreement with the Defendant not to appear. Although the BPN may be named as a turut tergugat in the civil suit, there are no negative consequences if the BPN staff simply fails to ever show up in court.

And the court itself may be unwilling to compel the BPN to appear and may be unwilling to compel the Defendant to produce the original documents.

Under the current code, the Majelis Hakim has powers to compel testimony and presentation of evidence and deliver rulings but they are reluctant to use those powers, for no obvious reason other than that it just is not usually done that way.

Harahap explains it like this:

Being a witness is a legal obligation that can be compelled

In criminal court, each witness is deemed to be competent and compellable. This means that serving as a witness in a criminal case is a legal obligation, and those who do not comply can be compelled by subpoena.

How about civil court? Legal principle based on Pasal 139-143 HIR and Pasal 165-170 RGB is that serving as witness in a civil case is a legal obligation.

In certain situations, witnesses cannot be compelled

There is a common opinion that:

  • appearance as a witness in a civil case is not a legal obligation, and a person cannot be compelled to serve as a witness,
  • therefore appearance as as a witness in voluntary, depending on the wishes of the witness.

Thus is often understood and developed by judges in practice. Judges are considered not to have the power to involve themselves in calling and presenting witnesses. This understanding and development of law is clearly mistaken. The principle that witnesses in civil cases are not compellable as a legal obligation is only limited to particular situations as in Pasal 139 paragraph (1) and Pasal 143 HIR, as follows:

  1. The witness is not relevant...
  2. The witness resides outside the jurisdiction of the court... (but examination of such a witness can be delegated and compelled by the court where the witness resides.)

Serving as witness as a compellable legal obligation

Outside the factors listed above, every person who is competent is also considered compellable. In general, serving as a witness in a civil case is a legal obligation that must be obeyed by any person who is competent to give relevant testimony. For those who do not obey this legal obligation, they can be compelled by the powers of the court.

Regarding the method of compelling witnesses to fulfill their legal obligation, this is set forth is Pasal 139-142 HIR...

...if one of the parties submits a request to the court to compel the appearance of a witness through a summons because the witness will not appear voluntarily, per Pasal 121 paragraph (1) HIR the court must ask and examine the extent of the urgency and relevance of the witness to the case at hand. If the party can demonstrate that the testimony is closely relevant to the essence of the case, this means that the witness in question does have the responsibility to appear and give testimony in court.

Therefore the response of the court should be to cause the witness to appear through a court summons...

A judge who denies the request or refuses to fulfill his proper legal obligation can be considered to have engaged in unprofessional conduct.

from Hukum Acara Perdata by M. Yahya Harahap, Sinar Grafika 2013, p. 625-629

Considering that there is no concept of precedence in judicial decisions requiring judges to follow examples of previous rulings, and that some judges often deliver rulings which are clearly contrary to law, it is surprising that so few judges are willing to develop courtroom procedures which are already permitted by law.


As a result, courts have limited evidence on which to base decisions

In a civil case—for example involving a contract or land purchase dispute—the principals, their families, and their employees are all prohibited from giving testimony. And yet who else is likely to have direct knowledge of the events? Are the courts expecting that an unrelated stranger may have passed by at that moment to witnesses the agreement?

As explained early in this website, the Indonesian legal code derives from the Dutch HIR code which applied only to the native peoples of Indonesia. The more complete RV code which resembled the system in use in Holland and which applied to Dutch and Chinese was cancelled during the Japanese occupation and never reinstated.

At one time when most of the native peoples of Indonesia lived in villages, it may well have common for the entire village to know of every transaction. The HIR was sufficient for simple commercial disputes such as small business debts or conflicts over inheritance of a sawah, but it appears wholly inadequate in either the legal code or in the court proceedings to handle modern commercial and personal lawsuits.

But of the four powers of evidence listed above

  • direct testimony by principals,
  • direct testimony from close witnesses,
  • depositions under oath,
  • the power of the court to compel testimony

it appears that only the second factor—prohibition of close relatives as witnesses—is actually determined by statute. The other powers are denied just because it has become common practice. In fact the refusal of court to compel witnesses is contrary to statute.

So despite frequent excuses by Indonesian judges that the civil law system, unlike the common law system, does not permit judges to set precedent outside the written statutes, they have in fact done exactly that.