An Update: Navigating Legal Remedy Through the Digital and Physical Distancing Era
What you need to know
- Following the Chairman of Supreme Court Decree No. 271/KMA/SK/XII/2019 on Technical Guidance for Case and Hearing Administration at Court on Appeal, Cassation and Civil Review Stage Electronically, the Supreme Court recently issued a guidance book certifying the use of e-court for appeal process in courts.
- The guidance book contains specific technical guidance in using e-court for appeal process in courts.
What you need to do
- Becoming aware of the technology offered by the e-court system to weigh its benefit in the long run.
- Considering the options to undergo e-court for dispute settlements conducted through courts.
Supreme Court Guide Book to the Electronic Appeal Legal Remedy
The e-Court System in General
The year 2019 marks the beginning of digital revolution in Indonesia's legal adjudicative sector with the issuance of Supreme Court Regulation No. 1 of 2019 on Administration of Case and Hearing in the Court through Electronic System issued on 8 August 2019 ("SC Regulation No. 1/2019") and the Chairman of Supreme Court Decree No. 129/KMA/SK/VIII/2019 on Technical Guidelines for the Administration of Case and Hearing in the Court through Electronic System issued on 13 August 2019 ("SC Decree No. 129/2019") introduce the e-Court system which has been proven to be more efficient, transparent, and effective in terms of case administration and management for first instance case examination level. Find our take on this matter here.
Further, the outbreak of Corona Virus Disease 2019 ("Covid-19") in Indonesia since early 2020 prompted another push by the Supreme Court to effectuate digital approach in minimizing physical interaction during the implementation of physical distancing policies. This is showcased in Circular Letter No. 1 of 2020 on Guidelines for Executing Duties During the Prevention Period of Covid-19 Spread in the Supreme Court and Lower Judicial Bodies issued on 23 March 2020 along with its amendments ("SC Circular Letter No. 1/2020") which promote and urge the use of e-Court. Find our take on this approach here.
On 31 December 2019, the Supreme Court issued Chairman of Supreme Court Decree No. 271/KMA/SK/XII/2019 on Technical Guidance for Case and Hearing Administration at Court on Appeal, Cassation and Civil Review Stage Electronically ("CSC Decree No. 271/2019"). However, the contents of CSC Decree No. 271/2019 are notably very general and require a complementary implementing law to provide more clarity on the technicalities. To deal with this issue, the Chairman of Supreme Court issued the technical guidance for CSC Decree No. 271/2019 on 19 August 2020 in the form of a guide book containing the detailed procedure and images of the e-Court application to help illuminate the explanation ("Guide Book"). With the introduction of the Guide Book, Indonesian court has taken one more step forward in transforming its outdated legal proceedings.
E-Court for Legal Remedy
Under Indonesian procedural law, there are 3 (three) stages of court process as follows:
| First Stage (District Court) |
The first stage is a proceeding at the District Court, this is where the plaintiff submit a claim against the defendant in a civil case and for the prosecutor to indict the allege criminal perpetrator. |
| Second Stage (Appeal Legal Remedy) | The second stage is an appeal to the High Court whereas the losing party can appeal the District Court decision. |
| Third Stage (Cassation Legal Remedy | The last stage is a cassation to the Supreme Court for parties' dissatisfied with the High Court decision. Decision in the third stage is automatically final and binding. |
| Extraordinary Legal Remedy | On an extraordinary event and providing that the relevant qualifications are fulfilled, parties disagree with the Supreme Court decision may submit a civil review to the Supreme Court. |
It should be noted however, there are certain cases which involve less than 3 (three) stages of court process. Amongst others are Bankruptcy or Suspension of Debt Repayment (PKPU) case and recusal petition of an arbitrator to the court, both of which consist of the First Stage Process and Cassation to the Supreme Court only.
Moreover, the CSC Decree No. 271/2019 introduce an e-court system for the appeal process. The CSC Decree No. 271/2019 itself contains the general stipulation prescribing the use of e-Court for appeal, cassation and civil review. Such general stipulation contains amongst others:
- Definitions, which follow the general concept introduced in SC Decree No. 129/2019;
- Scope of e-Court which is extended to appeal, cassation and civil review;
- Administration fee for electronic legal remedy;
- Administration for the submission of legal remedy application electronically;
- Management of electronic documents; and
- Procedure for electronic legal remedy.
E-Court for court legal remedy is similar to the general concept of e-Court for first instance proceedings. Whereas, the e-Court system is mainly utilized for the submission of documents and other administration matter such as court fee payment. From the Guide Book, we can summarize the process in using e-Court for legal remedy in appeal stage as follow:
| No. | Process |
|---|---|
| 1. | Login as Registered User (advocates only); |
| 2. | Accessing the Online Appeal section at e-Court's system; |
| 3. | Choosing the court rendering the first instance decision; |
| 4. | Registration of appeal legal remedy (petition) (by uploading the relevant documents); |
| 5. | Registration of power of attorney (by uploading the relevant documents); |
| 6. | Registration of the petitioner party (identity and electronic address) (by uploading the relevant documents); |
| 7. | Issuance of Electronic SKUM (letter validating the initial court administration fee); |
| 8. | Payment of initial court administration fee (to the designated bank account); |
| 9. | Application confirmation notification via electronic mail (email) to the petitioner party (issued by the system); |
| 10. | Issuance of appeal deed by the Court (electronically); |
| 11. | Issuance of electronic summons (e-Summons) to the petitioned party; |
| 12. | Electronic submission of appeal memorandum and counter memorandum, and related documents; |
| 13. | Issuance of e-Summons on decision; and |
| 14. | Distribution of copy of decision and payment for the copy of decision electronically. |
Notwithstanding the above, it is important to highlight that the Guide Book has not provide guidance on the process of cassation to the Supreme Court and Civil Review. This is despite the CSC Decree No. 271/2019 expressly mention that all legal remedies can be submitted via the e-court system. Additionally, the Guide Book (and CSC Decree No. 271/2019) still do not allow cases that were initially tried through traditional physical hearing to migrate to e-Court system during the legal remedy process.
From our experience , we note that there are still difficulties for appellant to submit a legal remedies via e-court system. Introduction of the Guide Book does smooth things for the appeal process to the High Court. However, we do understand that the e-court system has not provided any option to submit a cassation to the Supreme Court or civil review via the e-court system. We understand that the e-court system is an ongoing project and based on our discussion with court officials, they are planning to update the system throughout this year. Hence, we anticipate there will be more regulations on e- court process for the cassation and case review in the near future.
Conclusion
Although relatively the progress of e – court system is moving in a slow motion, the introduction of Guide Book does solve a wide variety of problems and uncertainties surrounding the implementation of e-Court system for legal remedy process. It is not surprising to see many justice seekers would now prefer the use of e-Court in in appeal stages rather than undergoing traditional procedure, especially during the implementation of physical distancing policies throughout the country. On this note, unfortunately it appears that the e-court system is not yet ready to fully implement the whole Court proceedings process, including the legal remedy process. Without the capable system, we view that the Supreme Court guidance would not have much impact in practice.
To conclude, the addition of e-Court for appeal stage legal remedy still marks another milestone for the justice system in Indonesia in digital technology reform which, despite of its flaws, still worth our appreciation. It is worth to consider for the Supreme Court to allow for the parties at all times during the proceedings to migrate from traditional to e- court system. Accommodating such migration is crucial to especially in the event of pandemic or natural disaster occurrences.
Authors: Prawidha Murti, Partner; Rizki Imral Rakhim, Senior Associate.
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