What Really Happens in Court?

What really happens in court?

 

The “what happens in court” page doesn’t fully describe the court experience; what really happens in court needs a bit more explanation.

Your first hint may be the courtroom itself. If you are in Bali you probably arrived through the beautifully modern, air-conditioned, and expensive airport. Imigrasi in Renon and many other government offices are newly built or renovated, and world-class luxury hotels pull huge sums of money from overseas guests.

The government frequently makes announcements of changes in policy and regulations to encourage or streamline foreign investment, but a visit to the Pengadilan Negeri Denpasar may be a shock because the attention given by the government to the legal system necessary to protect those investments is negligible.

The buildings are old, noisy, and without air-conditioning. Ventilation comes from open windows, meaning that all the outside noise echoes through the tile-floored courtrooms. The audience sits on hard wood-slat benches and must strain to hear the words of the judges or hakim, the lawyers or pengacara, and especially the witnesses or saksi who are facing away from the audience. There are no microphones or sound equipment to amplify or record the proceedings.

Motorbikes roar past outside. At 1:00 PM the bus from the prison arrives accompanied by a half dozen police guards on large motorbikes, while the prisoner bus backs into place with a loud dinging bell beside the courtroom, and the prisoners then exit accompanied by loud shouts. And all the time the courtroom proceedings continue through the din, unheard by most spectators or even participants.

Although there is a notice posted outside the courtroom door explaining required courtroom decorum including such norms as that the audience must rise as the judges enter the court, cellphones must be silenced, no conversations are allowed in the court, and so on, they have no effect in practice. The acoustics of the courtroom are already difficult enough, but for anyone sitting in the audience it is made worse as they try to follow the proceedings through all the private conversations and cellphone discussions going on in the back of the room.

Previously it was noted that the Gugatan and other declarations to the court may be read aloud, but are more often taken into submission as written documents. But generally if read aloud the declarations are delivered in a mumbled monotone—most Indonesian lawyers seem to have poor courtroom skills—while the hakim and other participants may or may not be paying attention. Typically the hakim freely converse among themselves or read other documents while declarations or witness testimonies are being delivered.

Indonesian pengacara claim that the Majelis Hakim do not need to pay attention during court because they will read everything later. This may be true, but since the Panitera is responsible for recording witness testimony, and the Panitera only writes down what he or she herself feels are highlights, and the Panitera sits at the far end of the bench away from the saksi where she may or may not be able to hear the testimony well, the written record may be far from complete.

The end result is that despite all the procedures, declarations, and hearings, the actual courtroom experience generally fulfills the formal requirements of process and testimony, but may doubted whether it provides effective presentation and evaluation of merits.

Presentation of evidence raises another doubt. The opposing party receives a copy of the other side’s List of Evidence or Daftar Bukti, and the opposing pengacara may get a quick glance at the evidence itself as it is presented to the Majelis Hakim for approval—although without explanation of the meaning or details of the evidence at that time—but it is difficult for the opposing principals to know the contents of the opposing party’s evidence. If the documents are falsified, there is no way for the opposing party to know. They might request copies of documents, but the request may or may not be granted.

Particular definitions of evidence in Indonesian law opens up opportunities for falsified documents or withholding of original documents in civil trials; if a party submits a false or altered document, gambling that the opposing party will not discover it, and then destroys the original false document after the Majelis Hakim approves the photocopy, it may be difficult to file a criminal charge for falsification of documents because the original document needed for evidence no longer exists. Any legal scholar would argue that the copy in the hands of the Majelis Hakim is sufficient proof, but in practice any half-way experienced collusive investigator could side-track a criminal report.

Witholding of documents is equally effective. Proof of land ownership in most cases requires the original Certificate of Land Ownership or Setifikat Hak Milik. If the Tergugat has the land and the Sertifikat but refuses to bring it to court, the Decision may be found against the Penggugat due to lack of evidence. In theory the Majelis Hakim has the authority to compel submission of the document, but they seldom use it. The reason to include the BPN or National Land Office or other Turut Tergugat in the Gugatan is with the hope that they will appear and present proof of the original documents as disinterested parties. But with collusion, the BPN may be fully interested in the case—either on behalf of one of the parties, or even possibly to cover up practices at the BPN itself—and so may fail to present documents in court. Again, the Majelis Hakim is unlikely to use their power to compel compliance.

[But on the other hand, for a disputing party to show bad faith by failing to submit original documents despite clear evidence that they do indeed posess those documents, does permit the Majelis Hakim to issue a ruling accepting the existence of the documents...so refusal to cooperate with the court is not always entirely effective, and may even be counter-productive if the Majelis Hakim decides a party has shown contempt of court.]

And most peculiarly, 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. In many cases it is abudantly clear that witnesses on one side or the other, and maybe both sides, are lying. Expecting principals as witnesses 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.

As explained early in this website, the Indonesian legal code derives from the Dutch H.I.R code which applied only to the native peoples of Indonesia. The more complete R.V. 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. The H.I.R. 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 even under the current code, the Majelis Hakim has powers to compel testimony and presentation of evidence and deliver rulings that they are reluctant to use, for no obvious reason other than that it just is not usually done that way. 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.

But that is what we have. Some judges are highly educated and motivated and can make sophisticated analysis and judgments in complex cases, while others are completely overwhelmed and make apparently arbitrary decisions on issues and evidence which they cannot possibly understand.