Recalling The Latest Court Guidelines From The Supreme Court

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Recalling The Latest Court Guidelines From The Supreme Court

Recalling The Latest Court Guidelines From The Supreme Court

December 21st, 2021

INTRODUCTION

The Supreme Court of the Republic of Indonesia ("Supreme Court") has been convening its annual plenary meeting addressing significant legal issues (substance and proceedings) since 2012. The Supreme Court circulates the resolution to all national courts to achieve uniformity and a consistent approach in dealing with particular legal issues ("Circular Letter").
 
Up to date, the Circular Letter number 10 of 2020 dated 18th December 2020 concerning the enactment of the Supreme Court's plenary meeting 2020 as the implementation guideline duties for the court ("Circular Letter 10/2020") was the latest Circular Letter issued by the Supreme Court concerning guidelines for implementing tasks for the court.  
 
In the Circular Letter 10/2020, several chambers of the Supreme Court, including the criminal court chamber, the civil court chamber, and the state administrative court, resolved legal issues and determined the practical guidelines.  
 
We provide, below, highlights of the guidelines incorporated in the Circular Letter 10/2020.


HIGHLIGHTS

Chamber of Criminal Law

Concerning a criminal tax case, besides handing down a sentence of imprisonment, the Judges also imposed a fine against the convict. If the convict cannot pay, the prosecutor shall confiscate and auction the assets. If the assets do not settle the fine, then the convict would have an additional term of imprisonment imposed up to a maximum of 8 (eight) months (calculated proportionally).
 
The State confiscates a convict's assets based on a Criminal Court Judgement. Should the commercial court declare a convict bankrupt under the Commercial Court decision concurrently, the confiscation by the general attorney as the prosecutor prevails.
 
When determining the amount of a remedy in a corruption case, the law enforcement officers must consider any assets confiscated/ deposited/surrendered by the convict to the State.
 
A few criteria apply when determining whether the losses suffered by the subsidiary of State-Owned Enterprise/Regional-Owned Enterprise determine a state financial loss. We will elaborate on it in a separate article.
 
The panel of judges has the liberty to impose the criminal charge against the convict without being bound to the convict's status as a justice collaborator.

 

Chamber of Civil Law

The Circular Letter described four guidelines to determine whether the "lack of parties" challenge or the non-inclusion of relevant parties to land ownership disputes apply. In addition, it requires specific advice on which parties should join a land dispute on a case-by-case basis.

Concerning the validity of land certificates and the payment proofs of land transactions:

a. Judges of the Civil Court do not have the jurisdiction to revoke a land certificate but only have the authority to declare that the certificate has no legal force. Therefore, revocation of a certificate is an administrative action that falls under the State Administrative Court jurisdiction.

b. A deed of land sale and purchase is a valid proof of payment provided that the said deed explicitly states that it is a proof of payment.

 
Land occupation by the Government
The act of the Government occupying a plot of land that has not been yet certified is not unlawful if the Government occupies the land in good faith, continuously for the public interest, and recorded as State property.

Nominee arrangements
The owner of a plot of land is the party with a name stipulated on the land certificate. This approach disregards the money/property/assets of the others or foreigners who purchased the land.


Chamber of State Administration Law

Decrees of the Minister of Law and Human Rights concerning Ratification of the Articles of Association) and the General Meeting of Shareholders Resolution of a Limited Liability Company to the extent connecting with the public legal norms fall under the jurisdiction of the State Administrative Court.

Disputes regarding the validity of the Articles of Association (AD) and the private General Meeting of Shareholders (GMS) fall under the jurisdiction of the District Court.

The Revision of the Supreme Court Plenary Resolution of 2019: The relevant regulations explicitly stipulate that the State Administrative Court has the jurisdiction to adjudicate disputes in connection with:

a. Law Number 14 of 2008 concerning Freedom of Information;

b. Law Number 2 of 2012 concerning Land Acquisition for Development for Public Interest;

c. Law Number 7 of 2017 concerning General Elections;

d. Article 21 and Article 53 of Law Number 30 of 2014 concerning Government Administration;

e. Disrespectful Dismissal based on a decision by a criminal court or Ethics Commission.

An internal administrative settlement process, namely upaya administrasi, is excluded for the abovementioned cases.

 
COMMENTS

Law No.12 of 2011 concerning Regulation Formation does not classify the circular letter as part of the rules hierarchy. However, practically wise, the Circular Letter has been immensely helpful for legal practitioners as a solid basis in building arguments, pleadings, and other legal reasoning.

Without setting aside that the nature of cases might be similar, but obviously, the facts of each case are likely different, not to mention the evidence, witnesses, and pleadings. Therefore, the potential outcome of each case could be different, albeit sharing similar material issues.

The Circular Letter contains the endorsement of the views or approaches of the Supreme Court as the highest court in Indonesia in dealing with the progression of laws. Therefore, there is a reasonable expectation that the lower courts, such as the High and District Court, will constantly obey and implement the Circular Letter.

Therefore, the Supreme Court must sustain the regular issuance of the Circular Letter because the circular letter would help the legal practitioners catch up with the development of laws and, at least, resonate a gradual improvement in the level of certainty and predictability of the Indonesian legal system for the justice seekers.

Should you have any queries and need further consultation, don’t hesitate to contact us.

 
Mangi Sapang Attorneys at Law solely owns this publication. The content of this publication, the whole or parts, shall not be reproduced, modified, or transmitted by any party with any forms or mechanisms without prior consent from Mangi Sapang Attorneys at Law.

This publication serves only as general information. Any party shall not treat this publication as our professional advice and shall not rely upon it in any circumstances. The interested parties could contact us for specific advice for particular issues or cases. 

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