THE PROVISIONS governing the legal relationship between Indonesian and foreign elements are specifically regulated under Articles 16, 17 and 18 Algemene Bepalingen van Wetgeving voor Indonesie (Staatblad 1847 No. 23) or AB. Article 16 AB stated that, “De wettelijke bepalingen betreffende den staat en de bevoeg dheid der personen blijven verbindend voor Nederlandsche onderdanen, wanneer zij zich buiten’s lands bevinden.Evenwel zijn zij bij vestiging in Nederland of in eene andere Nederlansche Kolonie, zoolang zij aldaar hunne woonplaats hebben, ten aanzien van het genoemde gedeelte van het burgerlijk recht onderworpen aan de ter plaatse geldende wet.” [The legal provisions regarding the status and competence of persons remain binding on Dutch nationals when they are abroad. However, if they are settled in the Netherlands or in another Dutch Colony, as long as they have their place of residence there, they are said part of civil law subject to the locally applicable law].
This article generally serves as a legal ground for Indonesian judges to declare that personal and family law of Indonesian is the law applicable in Indonesia even though they are staying or living abroad.
On top of that, Article 17 AB stated that, “Ten opzigte van onroerende goederen geldt de wet van het land of plaats, alwaar die goederen gelegen zijn.” [Real property is subject to the law of the country where the property is located]. This article regulates movable and immovable objects which must be valued according to the laws of the country or place where the object is located, regardless of who owns the object (Lex rei sitae). While Article18 AB states that, “1. De vorm van elke handeling wordt beoordeeld naar de wetten van het land of de plaats, alwaar die handeling is verricht. 2. Bij de toepassing van dit en van het voorgaande artikel moet steeds worden acht gegeven op het verschil, hetwelk de wetgeving daarstelt tussen Europeanen en Inlanders.” [The form of every transaction is determined by the laws of the country where the transaction takes place. 2. With the application of the current as well as the previous article, consideration should be given to the differences between Europeans and natives as provided in the regulations]. In essence, this article stipulates that the law applicable to every legal relationship between individuals is the law where the legal relationship was created. These articles are remained effectively in force even though it has been enacted more than one hundred years ago (Article 1 of the Transitional Provision of the Indonesian Constitution 1945).
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After knowing the general overview of Indonesia's private international law, we will look further at the current regulations regarding the recognition and enforcement of foreign judgments in Indonesia. Basically, a foreign judgment cannot be recognized and enforced in Indonesia. That is because the Reglement op de Rechtsvordering (RV) is still intact and applicable under Indonesian law. RV is the code of civil procedure created for European residents during the Dutch colonial rule in Indonesia. As the same approach taken by AB, RV is adopted into the Indonesian legal system after the Indonesian independence to fill the gap until it is substituted by the prospective rules in the future. The article referred to in the RV is Article 436, which stipulates that, ““1. Alle vonnissen van buitenlandse rechtbanken zijn niet-afdwingbaar op Indonesisch grondgebied, behalve in de zaken genoemd in artikel 724 van het Wetboek van Koophandel en in andere regelgeving. 2. Die andere zaken kunnen opnieuw voorgelegd worden aan en berecht worden door Indonesische rechtbanken.” [1. All judgments delivered by foreign courts are unenforceable in Indonesian territory except in the matters mentioned in Article 724 of the Commercial Code and in other regulations. 2. Those other matters can be brought again in front of and be judged by Indonesian Courts.”] Based on this article, recognition and enforcement of foreign judgments cannot be implemented in Indonesia except for foreign judgments relating to conditions regulated in Article 724 of the Commercial Code, that is foreign judgments relating to the calculation and replacement of Avarij (compensation for losses in shipping).
In practice, Indonesian legal scholars argue that Article 436 RV can be deviated. For certain types of judgments, such as declaratory and constitutive, Indonesian legal scholars agree that foreign judgments may be recognized and enforced in Indonesian territory. A declaratory judgment is a judgment made to validate a particular legal status or situation (for instance, the validity of a contract or heirship), while a constitutive judgment is a judgment that creates a new legal condition or abolishes an existing legal condition (for example, an adoption, an annulment of a contract or a divorce). The evidentiary practice of this recognition and enforcement can be seen in the decision issued by the High Court of Semarang in 2019, where the court recognized the decision of the Judicial State of Illinois Circuit County of Winnebago No. 2016 D 48 (Decision of the High Court of Semarang No. 473/PDT/2019/PT SMG). The case was about child custody dispute between two Indonesian citizens who live in Illinois, the United States. The parents of the child agreed to divorce but were unable to agree on custody. The Illinois tribunal had held that the applicant has a right to custody and prohibited the mother from taking the child out of the United States. However, the mother did not obey the decision and flew away with the child to Indonesia. Feeling aggrieved by the mother’s act, the applicant asked the High Court of Semarang to recognize and enforce the Illinois Court’s judgment. The High Court of Semarang did recognize the Illinois judgment by rendering a decision stating that the mother had unlawfully brought the child to Indonesia and ordering the mother to take the child back to the United States to live with the applicant. The mother appealed against this decision to the Indonesian Supreme Court. In her appeal, the mother argued that a foreign judgment is not recognizable and enforceable in Indonesia under Article 436 RV (Decision of the Supreme Court No. 2021 K/Pdt/2020). The Indonesian Supreme Court supported the mother’s argument and found that the Illinois judgment cannot be recognized and enforced in Indonesia. The Indonesia Supreme Court then annulled the applicant’s custody and gave the rights to the mother.
The above-mentioned case illustrates the current practice of the recognition and enforcement of foreign judgments in Indonesia, which arguably seems inconsistent and does not provide legal certainty to the parties. In short, Article 436 RV has always been used as a basis for courts to refuse recognition and enforcement of foreign judgments even if courts acknowledge the existence of theories suggesting that recognition and enforcement of foreign judgments might still be possible. A former Supreme Court judge, M. Yahya Harahap, has expressed the view that the only way to recognize and enforce a foreign judgment in Indonesia is by using the judgment as the legal basis for filing a new lawsuit before an Indonesian court (M. Y. Harahap, 2016:136). Then, the foreign judgment can be used as prima facie evidence, particularly written evidence, either as an authentic deed or merely as a legal fact. The fourth Chief Justice of the Indonesia Supreme Court, Soebekti, later endorsed this viewpoint, asserting that foreign judgments hold the same weight as authentic deeds under Article 1868 Burgerlijk Wetboek voor Indonesie (BW) (R. Subekti, 1981:28). In other words, the dispute must be retried before Indonesian courts to start over and examine the merits of the case. The government's reluctance to shift its perspective is a key factor in the continued relevance of Article 436 RV, as it maintains the stance that foreign judgments should not be recognized in order to safeguard judicial and territorial sovereignty (S. Gautama, 2002:277). In general, this stance could only be overridden if Indonesia has a reciprocal agreement with other states for the mutual enforcement of judicial decisions. As of now, Indonesia has not signed any international agreements, treaties, or conventions concerning the recognition and enforcement of foreign judgments, nor does it have any bilateral agreements on this issue.
Baca Juga: Revisi KUHAP: Memperkuat Due Proces of Law
Dwi Satya Nugroho Aji
(Hakim PN Dataran Hunipopu, Maluku)
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