Evidence or Bukti

Evidence or Bukti

 

Bukti in Indonesian law has a specific and narrow definition. 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.