PANEL #14 INLU: NEW LEGAL MECHANISMS TO PROTECT LEGAL UNITY

The Indonesia-Netherlands Legal Update (INLU) is a biennial event, building on the success of the INLU in November 2014 in the Hague and the INLU in January 2018 and December 2019 in Jakarta. The INLU is designed as an open platform of panels where policy makers, experts, researchers, and practitioners from Indonesia and the Netherlands meet to present and discuss topics and updates in the rule of law of both countries. INLU 2022 will take place from 19-29 September 2022 and will bring together legal institutions, policy makers, experts, researchers, and practitioners from Indonesia and the Netherlands to present and discuss topics and updates in the field of rule of law development in both countries. The theme of INLU 2022 is “Digitalization, Innovation and Sustaining Legal Relations” and includes as many as 15 panels at several venues in Jakarta.

DESCRIPTION PANEL 14: New Legal Mechanisms to Protect Legal Unity

About ten years ago, the Mahkamah Agung and the Hoge Raad both adopted new legal mechanisms that had the objective to increase legal unity: the Mahkamah Agung has issued internal regulations that responds to various judicial matters and conflicting legal issues as a guidance for courts and judges in deciding cases, while the Hoge Raad obtained the competency to pass judgment on prejudicial questions concerning pressing legal issues arising in concrete cases at lower courts.

Since the introduction of the one-roof system in Indonesia, the Mahkamah Agung has expanded its authority to regulate organizational and judicial matters by issuing internal regulations (Surat Keputusan Ketua MA/SKKMA, Peraturan Mahkamah Agung/PERMA and Surat Edaran Mahkamah Agung/SEMA). The Supreme Court issues internal regulations to fill the legal vacuum due to the absence of legislations. These includes the issuance of PERMA for Small Claim Procedure, or PERMA on Minor Crimes and the Amount of Fines. The increasing number of internal regulations issued by the Supreme Court is an indication of the strengthening of the Supreme Court’s power in law-making.

Through several Chief Justice Decrees, the Supreme Court introduced the chamber system in 2011, consisting of five chambers: the civil law, penal law, Islamic law, administrative law and military law chambers. In the chambers’ annual plenary meetings legal issues are discussed that according to the members of the Supreme Court chamber require guidance, because current court judgments on the legal issue are inconsistent or because it is a novel legal issue which needs to be resolved. The legal solutions agreed upon by the Supreme Court Chambers are subsequently published in Supreme Court circulars (Surat Edaran Mahkamah Agung; SEMA) which serve as guidelines for judges at lower courts in order to ensure consistent court judgments and increase legal unity in Indonesia’s legal system.

With the same objective of increasing legal unity, the Law on Prejudicial Questions was introduced in the Netherlands in 2012. The prejudicial question is a new legal means for first-instance or appellate court that handle a complex case, to ask the opinion of the Hoge Raad. The legal issue at hand must be a matter that is widely considered as a pressing legal issue. The prejudicial question is a legal mechanism that makes it possible for lower courts to ask for guidance from the Hoge Raad at a much earlier stage – as previously lower courts had to wait for a judgment to reach the Supreme Court in appeal in cassation. By offering the possibility of prejudicial questions, it was anticipated that in the Netherlands court judgments on novel pressing legal issues would become more consistent.  In short, the novel law-making devices of the Hoge Raad and the Mahkamah Agung both have the same objectives: consistency and legal unity.

OBJECTIVES:

• Background: Why was it considered necessary to create new legal mechanisms in which the Mahkamah Agung and the Hoge Raad obtained more possibilities to fulfill their law-making function? Why is case law development no longer sufficient? What’s the impact of these internal regulations toward court, judges and public in general?
• Legal status: What is the legal status of a circular as Mahkamah Agung guideline? And what is the status of a Hoge Raad judgment as answer to a prejudicial question? To what extent are judges required to abide by the new directions provided?
• Legal practice: How are the experiences with these new legal mechanisms in the last 10 years? What are the strengths and what the weaknesses of each legal mechanism?
• Take away: What can we learn from both experiences with the new legal mechanisms?

PROGRAM RUNDOWN

Location: Auditorium Anggrek (4^th Floor); Anggrek Campus – BINUS UNIVERSITY, Jl. Kebon Jeruk Raya No. 27, Kebon Jeruk, Jakarta Barat 11530

Time : 28 September 2022 (at 10:00 – 12:30 (GMT+7)

For registration (just choose one):

• Online: https://bit.ly/INLU-Panel14
• Onsite: https://bit.ly/INLU2022Registration