So what actually happens if you are the Plaintiff or Respondent in a civil or perdata case?
A lawsuit or Accusation is called a Gugatan, so the person bringing the Accusation is called the Penggugat,
and the Accused is called the Tergugat.
There are often multiple Tergugat, or multiple “Secondary Accused” or Turut Tergugat in cases involving land or
business disputes. Turut Tergugat might include notaries involved in preparing sales or business documents and the Badan
Pertanahan Nasional or National Land Office in land disputes. Bringing them in as Tergugat does not mean that the Penggugat
is asking them for compensation, but it is a way of attempting to compel them to be present and confirm the original documents in question.
Including them as parties to the Gugatan makes it harder for them to ignore requests to appear in court.
Courts must have specific district jurisdiction to hear a case. The case must be brought in the court district of the object
in dispute or objek sengketa. If the Penggugat lives in Jakarta, but the Tergugat and the land in dispute is located in Denpasar, Bali,
the case must be brought in the Bali court or Pengadilan Negeri Denpasar.
It gets more complicated if there are multiple Tergugat and multiple objek sengketa in multiple court districts, but
in general the courts will base their decision about whether to accept jurisdiction on a preponderance of locations of either the
objek sengketa or the Tergugat. It is not
necessary to split cases into different lawsuits for each district; a single court can handle all aspects of a single case even if they
are located elsewhere in Indonesia. Where the Penggugat lives is irrelevant to the district of jurisdiction...how nice it would be for a
Penggugat living in Jakarta if he could bring a case in Jakarta against a Tergugat in Bali, but it doesn’t work that way.
The principals in the case—that is the Penggugat and the Tergugat do not necessarily need to appear in court. All court
appearances can be handled by the pengacara without a single appearance by the principals.
The lawyer prepares the Gugatan with a particular formula laying out the names and addresses of the parties, then describing the facts
of the case, and then closing with a Petition or Petitum or Permohonan specifying exactly what the Penggugat is requesting as a ruling from the court.
Petitum is from the Dutch, Permohonan is Indonesian meaning “request”; either term may be used.
Later in the process the Tergugat will also have equal opportunity to present facts from their point of view and may present their own Petitum.
Often the Tergugat will counter-sue and request damages from the Penggugat.
It is universally true in the world of law that the court cannot grant rulings that have not been specifically and formally requested by the parties
in the case. That is, a Penggugat or Tergugat cannot just issue a general complaint about the rottenness of the other party and then hope the judge
will figure out something fair to do about it.
The first request in the Petitum is formulaic: it requests that the Petitioner’s request (whether Penggugat or Tergugat) be granted
in its entirety.
More specific requests follow, for instance to grant sums of money for losses or to rule that land or business be turned over to the petitioning party.
The requests must be specific. If a sum of money is requested, the judge may choose to grant less than that sum but cannot by law grant more than the requested amount.
If land or businesses are involved, the exact description of the land or businesses must appear in the Petitum along with a description of
exactly what the Petitioner wishes to have done, or else the judge does not have the power to grant the request.
The final request of the Petitum is also formulaic: it says atau mohon putusan yang seadil-adilnya (ex aequo et bono), which
means “or grant a decision which is equally just” (and obviously the Latin must mean that too).
The Gugatan is filed at a window in the courthouse with a small fee, about Rp 600,000 as of January 2017.
There are also small fees for each hearing. Most often the Penggugat party will place a deposit of Rp 2,000,000 or so with
the court to cover the coming hearings in advance.
Usually within a week the court will send out a Summons or Panggilan to all the parties, setting a first court date.
The business of the case is handled by a Court Clerk or Panitera, who issues all the summons, keeps all the files, takes notes of proceedings
and testimony in the courtroom, and will eventually type up the final court decision for signature by the judges.
On the day of the first court appearance the lawyers report directly to the Panitera when they arrive in court. Then, as at every court
everywhere in the world, the waiting begins. The case may be called quickly, or you may have to wait for hours.
The courtroom layout is standard worldwide: the judges panel or Majelis Hakim usually consists of three judges or hakim sitting at a
table at the front of the room. In the center it the Ketua or Head Judge, and to either side sit the assistant judges. Who is the Ketua
and who are the assistants is not necessarily a matter of experience or prestige; the judges may switch positions in different trials.
Next to the Majelis Hakim sits the Panitera who handles the logistics of scheduling and documents. To the front right of the
Majelis Hakim is a table for the Penggugat, and to the front left of the Majelis Hakim is a table for the Tergugat. A chair in the middle, facing the
Majelis Hakim is for witnesses. In criminal trials—which in many respects are similar to civil trials—the witness chair is called
kursi kesakitan or “chair of pain” (ouch!), which is a play on words in Indonesia because saksi or “witness”
sounds like sakit or “pain”. It gets called that in civil trials too; lying witnesses can get noticeably squirmy.
It often happens in cases with multiple Tergugat that not all parties are present. In fact it frequently happens that even the main Tergugat fails to
appear. In that case the Ketua takes attendance and notes who is and who is not present, and if a party was summoned but is not present, the court will
set another trial date and order a second Panggilan to be issued. If parties fail to appear at the second summons, a third summons will be issued.
If, after three summons, the Tergugat has not appeared, the hakim may order the trial to proceed in verstek, or without the
presence of the missing parties. In theory a verstek trial would end in a default judgement.
Failing to appear does not mean the the principals to the case fail to appear. It is the pengacara with the
Surat Kuasa Khusu who are important. Appearance by the lawyers alone is sufficient.
But if all parties do show up in court, the first trial session will be for the presentation of the letters
of Special Power of Attorney or Surat Kuasa Khusus. (The “Special” or Khusus power of
attorney to represent a client in court action differs from a normal power of attorney as often used in non-court actions. The difference
will be discussed elsewhere.)
The Gugatan is also presented at this first hearing. An original is presented to the judges, and copies are presented to each of the
Tergugat and Turut Tergugat. The Majelis Hakim may order the lawyers for the Penggugat to read the Gugatan aloud,
but more often all parties agree to forego the reading and deem the Gugatan as sufficiently presented to the court by the written copy.
It is mandated by law that the court then order an attempt at mediation before proceeding to trial. The Majelis Hakim may take a direct
hand in the scheduling and may even instruct the personal appearance of the main parties to the action with a mediation judge. But often the
court will leave it up to the parties themselves to arrange a mediator.
The parties have a month to achieve a settlement. If they can reach agreement they then bring it back to court for ratification by the Majelis Hakim,
and the case is finished. But in Indonesia most often the parties fail to agree—probably in part because Indonesian law makes it easy for
a party to drag out a case for years without resolution, thereby removing incentive for quick settlement—and so the case returns to the court
for continuance of the trial.
The response of the Tergugat to the Gugatan is called the Jawaban or “answer.” It is delivered like the Gugatan
as a written document which may be, but probably will not be, read aloud.
The next hearing is for a response from the Penggugat called the Replik. The following hearing is an opportunity for response from the
Tergugat called the Duplik.
So at the fastest, assuming all parties show up on time and that hearings can be scheduled on successive weeks, about nine weeks have gone by:
- File the Gugatan
- Panggilan to all parties setting the first court date
- First hearing—the Penggugat presents the Gugatan
- Opportunity for mediation, one month
- Second hearing—the Tergugat presents the Jawaban
- Third hearing—the Penggugat presents the Replik
- Fourth hearing—the Tergugat presents the Duplik
After all parties have finished Gugatan, Jawaban, Replik, and Duplik, the parties have opportunity to present their
documentary evidence or bukti.
The term bukti has multiple meanings in Indonesian law. The specific meanings will have to wait for a later discussion,
but suffice it to say that bukti here simply means whatever documents the two parties wish to present. The Penggugat
will have first opportunity, and the Tergugat may present their evidence the following week. If there is a great deal of
evidence the presentations may be extended over many hearings, because in general the court likes to keep hearings short so they can
handle all cases present for hearing each day. If the hearing runs over an hour, the hakim may order a continuance.
Presentation of evidence is far less dramatic than it sounds. The presenting party prepares a list of evidence or Daftar Bukti
listing each document and possibly a short description or explanation. Then in hearing the original document is shown to the
Majelis Hakim and compared with a photocopy which has been stamped with a meterai (a stamp available from the Post office
costing Rp 6000) and legalized or legalizir at the court office—for no particular reason except that every document
presented in court must pay the small taxes of the meterai and legalizir. It’s not a big deal, you can do
it in ten minutes on the way to court.
Then the Majelis Hakim compares the originals to the photocopies, and if all is well, they return the originals. If not,
they return the originals and ask that new copies be made showing the exact state of the original. The Majelis Hakim does
not hear an explanation of the importance or meaning of the documents; this is reserved for later.
The opposing party receives a copy of the Daftar Bukti but does not receive copies of the documents. (And if you are
thinking that there is a lot of room for dirty tricks here, you are right.)
After the two sides have entered all documentary evidence, the following hearings are for the presentation of witnesses, starting
with the Penggugat and followed in later hearings by the Tergugat.
Witnesses not currently testifying are instructed to wait outside so they cannot hear the testimony of other witnesses. The side
presenting the witness begins the questioning, followed by an opportunity for the opposing party to cross examine. But the hakim
may also take part in the questioning at any time and are often very active and may take over the questioning from the presenting lawyers.
This may be in part because many Indonesian lawyers have poor courtroom skills and are not competent at presenting a witness with
precise directed questions; the hakim has more experience and might take over just to speed up testimony and cut to the relevant facts.
If this is a land case the Majelis Hakim may scheduled a visit to contested properties at the conclusion of witness testimony. The
site visit is called a “PS” or pemeriksaan setempat. If some of the objek sengketa are in other court districts,
the court will issue a request letter to the other district court to conduct the PS on their behalf.
Finally, the two parties wrap up their cases with hearings to present their closing arguments, or kesimpulan, one hearing
for the Penggugat, the following hearing for the Tergugat. As with all the other presentations, the kesimpulan
may be read aloud, or they may simply be submitted as written statements to be read later by the Majelis Hakim.
The Panitera will issue a summons in a few weeks for the final hearing in which the Majelis Hakim reads the decision aloud.
So adding all this up, assuming a fairly simple case in which both sides have witnesses and everyone shows up on time, a trial will take
about 16 weeks. Many trials are more complex and involve numerous intentional and unintentional delays, and the entire process can take
up to a 18 months.