26 Aug 2019
SUPREME COURT PUSHES AHEAD WITH EXPANSION OF E-LITIGATION SERVICES

A. Overview

The concept of e-litigation was first introduced in Indonesia with the issuance of Supreme Court Regulation No. 3 of 2018 (“Reg. 3/2018”),[1] the scope of which was largely confined to the electronic filing and service of documents, payment of court fees, and internal case administration by the courts.

On the back of Reg. 3/2018, Chief Justice Muhammad Hatta Ali officially launched the country’s new e-litigation system (known as “E-Court”) during a ceremony in Balikpapan, East Kalimantan, on 13 July 2018 (the E-Court website may be accessed at https://ecourt.mahkamahagung.go.id/Home#body).

The Supreme Court has now issued a new regulation (Regulation No. 1 of 2019 / “Reg. 1/2019,”[2] effective 19 August 2019), which significantly expands the scope of the earlier regulation and envisages the eventual development of a full-blown electronic court system, meaning that proceedings can be commenced, court fees paid, documents and pleadings submitted, hearings conducted and judgments pronounced electronically. To ensure that this goal can be achieved, Reg. 1/2019 anticipates that evidentiary hearings (i.e., hearings during which evidence is heard) will ultimately be capable of being conducted remotely by means of video conferencing. However, as the Supreme Court readily admits, it will be some time before this can be realized as a significant investment in the necessary technological infrastructure will be required.

For the time being, e-litigation services are only available for civil / administrative proceedings in the district courts, religious courts, administrative courts and military courts. Reg. 1/2019 also expands the scope of the e-litigation system to encompass the appellate, cassation and judgment-review (peninjauan kembali) levels, whereas previously, under Reg. 3/2009, it was restricted to proceedings at first instance.

A set of technical guidelines to support the implementation of Reg. 1/2019 has been issued in the form of Chief Justice’s Directive No. 129/KMA/VIII.2019.[3]

B. Current Situation

As things stand at the moment, e-litigation services are confined to e-filing of documents (such as claims/applications, powers of attorney and pleadings), e-payment of court fees, e-summons to hearings, and e-notification of judgments.

According to the E-Court website, e-litigation services are currently available in all of the country’s 382 district courts, as well as 412 religious courts (including the shariah tribunals in Aceh province), and 30 administrative courts.

Regarding the level of utilization of the system, up-to-date figures are unavailable. However, per end-March 2019, it was reported that a total of 208 cases in the district courts, 714 cases in the religious courts and 28 cases in the administrative courts had been filed online.

As for the rolling out of electronic evidentiary hearings, a firm timeframe for this has yet to be announced.

C. ABNR Commentary

While the move towards the establishment of a comprehensive e-litigation system is warmly to be commended, there are nevertheless a number of constraints that could hamper the process.

Firstly, the fact that the consent of both parties (plaintiff and defendant) is required before e-litigation services may be availed of could impede uptake as, from the psychological perspective, many defendants will likely to be unwilling to accept anything that would make it easier for them to be sued.

There are also concerns over data security. Potential litigants, particularly businesses, may consider that the time and cost savings generated by e-litigation are outweighed by the dangers posed by entrusting confidential information to an external electronic system.

Another possible constraint is resistance from courtroom lawyers, some of whom will no doubt be concerned about disruption to established ways of doing things and the potential loss of income that e-litigation could give rise to.

Notwithstanding these potential obstacles, it is to be hoped that the Supreme Court will press ahead with its ongoing development of the e-litigation system. Not only will e-litigation result in considerable savings in terms of time and money for businesses that find themselves involved in legal disputes, it will also be of significant benefit to the general public in a country as large as Indonesia, where geographical distance from physical court infrastructure often serves as a real impediment to justice.

By Ulyarta Naibaho (unaibaho@abnrlaw.com) and Adithya Lesmana (alesmana@abnrlaw.com)

[1] Supreme Court Regulation No. 3 of 2018 on Electronic Administration of Cases in the Court System (Peraturan Mahkamah Agung Republik Indonesia Nomor 3 Tahun 2018 Tentang Administrasi Perkara di Pengadilan Secara Elektronik)

[2] Supreme Court Regulation No. 1 of 2019 on Electronic Administration of Cases and Hearings in the Court System (Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2019 Tentang Administrasi Perkara dan Persidangan di Pengadilan Secara Elektronik)

[3] Chief Justice’s Directive No. 129/KMA/VIII.2019 on Technical Guidelines for Electronic Administration of Court Cases and Hearings (Keputusan Ketua Mahkamah Agung No. 129/KMA/VIII.2019 Tentang Petunjuk Teknis Administrasi Perkara dan Persidangan di Pengadilan Secara Elektronik)

This ABNR Legal Update and its contents are intended solely to provide a general overview, for informational purposes, of selected recent developments in Indonesian law. They do not constitute legal advice and should not be relied upon as such. Accordingly, ABNR accepts no liability of any kind in respect of any statement, opinion, view, error, or omission that may be contained in this Legal Update. In all circumstances, you are strongly advised to consult a licensed Indonesian legal practitioner before taking any action that could adversely affect your rights and obligations under Indonesian law.