349
Hamzah, Reform of Civil Procedural Law at the Appellate-Level Courts in Indonesia
A. Pendahuluan
The authority of the high court as the appellate-level court is conirmed by Law No. 20
of 1947 concerning Appeal Court Regulation of Appeal Court in Java and Madura, and Part Three,
Chapter IV of Rbg, consisting of Articles 199−205 for regions outside Java and Madura.
1
This authority is independent, rather than hierarchical
2
, in the exercise of its authority the appellate-level court
cannot be intervened by the Supreme Court for it has different functions. The appellate-level court serves
as the judex facti
3
since judges judex examine legal
facts, namely actions, events or circumstances,
4
as the basis of the case and then match the legal facts
against the laws constituting the juridical basis of iling a civil lawsuit.
5
The function of judex facti is carried out through the following stages: irst,
formulating the facts; second, inding the causal link; and third, deducing the probability.
6
Such stages represent the mechanism of examination of
a case within the scope of judex facti. The functions of judex facti in the appellate-level court are not
regulated in the Het Herziene Indonesich Reglement HIR,
7
and Reglement voor de buitengewesten RBg, as well as Law No. 20 of 1947 concerning
Appeal Court Regulation of Appeal Court in Java and Madura.
Substantively, Law No. 20 of 1947 concerning Appeal Court Regulation of Appeal Court in
Java and Madura and RBg only regulate judicial administration, but not the procedure for civil
proceedings, as conirmed by M. Yahya Harahap
8
, further afirming
that the provisions regarding procedure for examination of a case at the appellate-
level court are not regulated in Law No. 20 of 1947
and Het Herziene Indonesich Reglement or Revised Indonesian Regulation HIR, and Reglement op
de buitengewesten RBg”. The legal facts indicate a fairly long vacancy of civil procedure law at the
appellate-level court.
In practice,
9
examination of a case at the appellate-level court uses Article 357 of the
Reglement op de Burgerlijke Rechtsvordering Rv
10
, which reads: “The case is subsequently decided by the appellate judge concerned without
much process and only based on the documents, but prior to the delivery of the inal decision, he
is
authorized to deliver a preparatory decision or a preliminary order”. Among the evidence
for examination of a case by documents was the decision of the Supreme Court of the Republic of
Indonesia No. 879 KSip1974, which stipulated that:
11
[...] The high court is to examine and decide an appeal based on the case ile submitted by
the district court to the high court; it does not mean the decision handed down without the
presence of the litigant parties is not valid,
since such a system is a regular procedure at
1
Code of Procedure for Areas Outside Java and Madura Reglement van het tot Regeling rechtswezen gewesten buiten in de Java en Madura, abbreviated as Reglement op de buitengewesten RBg, S. 1927-227.
2
Ibid., p. 33.
3
Ibid., p. 106. See Henry Campbell, 1979, Black’s Law Dictionary deinitions of the Terms and Phrases of American and English Jurisprudence,
Ancient and Modern, West Publishing Company, St. Paul Minn, p. 754, 532. Judex latin: a judge judge, to judge, assessor. Facti facto: in fact; by an act
facts, events.
4
Philip M. Hadjon and Tatiek Sri Djatmiati, 2005, Legal Arguments in Explanation of the Inductive Reasoning, Gadjah Mada University Press, Yogyakarta, p. 40.
5
Ibid.
6
Ibid., p. 33.
7
Het Herziene Indonesich Reglement HIR or Revised Indonesian Regulation, Stb. 1848 No. 16 in conjunction with Stb. 1941 No. 44.
8
M. Yahya Harahap, 2008, The Authority of the High Court and the procedure of civil proceedings at the Appellate Court, Sinar Graika,Jakarta, p. 112
9
Ibid.
10
Reglement op de Burgerlijke Rechtsvordering Rv or the Code of Civil Procedure for the European group, Stb. 1847 No. 52, in conjunction with Stb. 1849 No. 63, is the procedural law applies exclusively to European groups and for those equivalent for iling a civil lawsuit to the
Raad van Justitie and Hooggerechtshof . With the abolition of The Raad van Justitie and Hooggerechtshof, Rv is not applicable. In today’s judicial practice, the existence of provisions in Rv remain being used and maintained as set forth in the Guidelines for Implementation of Court
Duties and Administration, Books I and II, the Supreme Court of the Republic of Indonesia, 20032004, p. 60 and p. 126 hereinafter referred to as Rv
.
11
The Supreme Court of the Republic of Indonesia, 1982, Collection of Commercial Law Jurisprudence in Indonesia , Pradnya Paramita, Jakarta, p. 73.
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MIMBAR HUKUM Volume 28, Nomor 2, Juni 2016, Halaman 348-364
the appellate level [...]. The Supreme Court was of the opinion that
the procedure for examination of a case at the appellate level does not require the presence of the
litigants, as with the procedure for examination of a case at irst-instance courts.
Based on the above background, the legal basis of the procedure for
civil proceedings at the appellate-level court constitutes the central issue of
this paper.
B. Analysis
