• If the plaintiff does not have the standing or qualifications to file a lawsuit, does the hearing examination need to continue to the merit of the case?
• If the same issue is also being examined by another District Court or is still at the level of Appeal to the high court or Appeal to the supreme court, does the examination of the lawsuit need to be continued until the merit of the case?
• If the case that has been filed by the plaintiff has been decided by the court, does the examination of the lawsuit need to continue until the merit of the case?

Article 136 of the HIR stipulates that except for demurrer concerning the competency of the court, other demurrers may not be submitted and considered individually but should be examined and decided together with the merit of the case. In connection with these provisions, this article will analyze the questions below:

1. What are the background, intent, and purpose of making Article 136 HIR?
2. What is the interpretation of legal experts regarding Article 136 HIR?
3. How is the implementation or application of Article 136 HIR in the practice of justice in Indonesia?
4. With Article 136 HIR, does the defendant have sufficient reasons to submit a demurrer and ask the judge to issue a decision that stops the case before the merit of the case is examined?
5. What types of demurrers, other than demurrer concerning the competency of the court that can be submitted by the defendant with the intention that the judge issues a decision that stops the case before the merit of the case were examined?

Below are the explanations:

1. What are the background, intent, and purpose of making Article 136 HIR?

A description of the background, intent, and purpose of making Article 136 HIR, among others, can be seen in:

a. Opinion from Prof. Dr .R. Supomo, S.H. in his book with title Civil Procedure Law of the District Court, Published by Pradnya Paramita Jakarta, 14th Edition, 2000, page 50 which states:

“According to Mr. A.J. IMMINK, De regtspleging voor de inlandsche rechtbanken, etc. (1889), p.53, article 136 of the Indonesian Relations at the time of the draft of the Regulation, proposed by Hooggerechtshof in Jakarta in his advies, 21 February 1848. The highest court was of the opinion that to simplify the proceedings before the Landraad court, the defendant must not be allowed maintain the response of demurrer, but all demurrers must be jointly submitted with a response on the merit of the case and all response must be submitted together at the same time considered and decided by the judge. Mr. WICHERS as the drafter of the Indonesian Regulations approved Hooggerechtshof’s proposal, excluding the judges’ lack of power. The intention of Hooggerchtshof is to prevent the efforts of the defendants to prolong the process by forcing the judge to make decisions on each demurrer”

b. Opinion from Prof. DR. R. Wirjono Projodikoro S.H., in his book titled Civil Procedure Law in Indonesia, published by Sumur Bandung, 1992 page 70 which states:

“Formers of legislator in the Dutch era in compiling Article 136 HIR and Article 162R.Bg. and a similar article from the Burgerlijke Rechtsvordering Regulations, article 114 paragraph 1, carried out a “concordantie” policy, namely the adjustment of the Dutch East Indies legislation in Europe, following the example 141 article 2 of the Civil Procedure Code in the Netherlands. “

“Article 114 paragraph 1 B.Rv., the same as article 141 paragraph 2 in the Netherlands, mentions a punishment, if the provisions of the article are not considered by the defendant, namely that if the defendant does not at the same time advance all “demurrer,” then the defendant cannot use the “demurrer,” which has not been submitted, and if the defendant initially only advances the demurrer without mentioning the merit (op de hoofdzaak, ten principale), then the defendant, if the “demurrer” is rejected , the claim must be granted just like that by not having to listen to a defendant’s defense of the merit of the casae.”

“This kind of punishment is not contained in Article 136 HIR and Article 162 R.Bg. The absence of punishment raises doubts in conducting trials by Judges. “

c. Page 73 in Prof. DR. R. Wirjono Projodikoro’s book as stated above mentions:

“And also because there is no punishment for violating Article 136 HIR and Article 162 R.Bg., then article 136 HIR and article 162 RBg should be interpreted as a suggestion to the defendant so that the defendant may collect everything he/she wishes to submit in his response, when he/she makes a defense at the beginning of the hearing. “

Based on the quotations of the opinions of the experts mentioned above regarding the background and the intent and purpose of making Article 136 HIR, the following facts are revealed:

1. Article 136 was proposed by Hooggerechtshof in Jakarta with the aim of simplifying the trial process in the district court, as well as to create an efficient judiciary by requiring the defendant to submit all his arguments both the demurrer and the response in the merit of the case as well as at the beginning of the trial so that all the arguments of the defendant can be decided simultaneously by the judge;
2. As the designer of the HIR, Mr. Wichers agreed to Hooggerechtshof’s proposal by excluding the judge’s competence demurrer. This means that the demurrer to the power of a judge may be submitted separately or not together with other demurrer and responses in the merit of the case;
3. The concept of making Article 136 HIR is taken from Article 114 paragraph 1 B.Rv., while the concept of making Article 114 paragraph 1 B.Rv., is taken from Article 141 paragraph 2 of the Civil Procedure Code in the Netherlands which determines:
   • If the defendant does not submit all demurrers at the beginning of the trial, the defendant will receive sanctions that for the next trial the defendant is not permitted to raise demurrers that have not yet been submitted;
   • If the defendant only submits a demurrer without mentioning the merit of the case, then if the demurrer is rejected, the defendant will receive sanctions in the form of the plaintiff’s claim being filed for the principal case without giving the defendant an opportunity to respond to the claim in the merit of the case.
4. Article 136 HIR does not include sanctions as regulated in Article 141 paragraph 2 of the Civil Procedure Code in the Netherlands. This means:
   • if the defendant does not submit all demurrers at the beginning of the trial, then in the next trial the defendant is still permitted to submit a demurrer that has not yet been submitted;
   • if the defendant only advances a demurrer without offending the subject matter, then if the demurrer is rejected, the defendant will not receive any sanctions, because the defendant still has the opportunity to response to the lawsuit in the merit of the case.

2. What is the interpretation of legal experts regarding Article 136 HIR?

Based on the background, intent, and purpose of making Article 136 HIR as stated above, the legal experts interpret  Article 136 HIR as follows:

a. Prof. Dr. Wirjono Prodjodikoro, S.H.:

Since there is no sanction for violating Article 136 HIR, Article 136 HIR should only be interpreted as a recommendation to the defendant to submit demurrers and response as far as possible in the subject matter as fully as possible at the beginning of the trial, with the aim that the judicial process can run efficiently, as it is not obstructed by the defendants who have bad intentions to slow down the trial process. (Vide: Page 73, Prof. Wirjono Prodjodikoro’s book as stated above).

b. Prof. Dr. R. Supomo, S.H.:

The purpose of Article 136 HIR is to avoid unnecessary delays, or those that are made to make the process run long. (Vide: page 51 of Prof. Dr. R. Supomo, S.H.’s book as stated above);

c. Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, S.H.,: in their book titled Civil Procedure Law in Theory and Practice, published by Mandar Maju Bandung Publisher, 1997, page 41:

The purpose of the provisions of Article 136 HIR is to avoid unnecessary delays or artificial ones so that the process runs quickly and smoothly;

3. How is the implementation or application of Article 136 HIR in the practice of justice in Indonesia?

In connection with the problem of the application or implementation of Article 136 HIR, the Supreme Court has made a decision that should be used as permanent jurisprudence, namely the Supreme Court Verdict R.I. Reg. No. 22K/Sip/1974 dated December 11, 1975, which upheld the decisions of the district court and the high court which in essence decided that because the demurrer submitted by Disputed I was considered to be true, the examination did not need to proceed by examining the subject matter and the refutation of the response because it was not at least imperfect, must be declared unacceptable;

In the opinion of the writer, by not continuing the examination in the merit of the case, the judges in the case No. 22K/Sip/1974 December 11, 1975, has carried out the judiciary with a simple, fast and low cost (justice efficiency) as mandated by Article 4 of Law No. 14 of 1970 jo. Law No. 35 of 1999 jo. Law No. 4 of 2004 concerning Judicial Power. Moreover, the judges have also carried out their obligations as stipulated in Article 27 of Law No. 14 of 1970 which states that judges as law enforcers and justices are required to explore, follow and understand the values of law that live in society.

Provisions in Article 27 of Law No. 14 of 1970 are emphasized again by his explanation that judges are formulators and seekers of legal values that live among the people. In this connection, the judges in the case of Reg. No. 22K/Sip/1974 dated 11 December 1975 prove that they have plunged into the midst of society to know, feel, and be able to explore the feelings of law and a sense of justice that lives in the community, so that they can become “living interpreters” who are able to capture the spirit of justice in society and not shackled by procedural normative rigidity that exists in a statutory regulation because they are fully aware that the judge is no longer merely a la bouche de la loi (mouth or mouthpiece of the law).

Suppose the judges in the Reg. case. No. 22K/Sip/1974 dated December 11, 1975, are still shackled by procedural normative rigidity that exists in a statutory regulation or still hold the notion that judges are the mouth or mouthpiece of the law, of course, they will reject the defendant’s demurrer in the case as well conduct an examination of the merit of the case, based on Article 136 HIR. However, the facts prove that the judges accepted the defendant so that the merit of the case was not examined. This decision is clearly a manifestation of the implementation of the principles of justice that are simple, fast and low cost (justice efficiency) as determined in the provisions of the legislation above.

4. With Article 136 HIR, does the defendant have sufficient reasons to submit a demurrer and ask the judge to issue a decision that stops the case before the merit of the case is examined?

Based on the description stated earlier, the authors argue that as long as the lawsuit does not meet formal or procedural requirements, the defendant has sufficient reasons to submit a demurrer and request the judge to issue a decision that stops the case before the merit of the case is examined.

5. What types of demurrers, other than demurrer concerning the competency of the court that can be submitted by the defendant with the intention that the judge issues a decision that stops the case before the merit of the case were examined?

a. Demurrer on Disqualification

As for the understanding and grouping of Disqualified Demurrer in a number of demurrers according to the civil procedural law, among others, can be seen in various books written by legal experts as follows:

• Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, S.H., in their book mentioned above on pages 38 and 39 states:

“Defendant’s response can consist of 2 types, namely:

1. An indirect response to the merit of the case called an objection or demurrer;

2. Direct response to the merit of the case (verweerten principale)

Regarding response or demurrer, HIR only knows one type of demurrer regarding the competency of the court. As mentioned above, this demurrer consists of 2 types, namely demurrer concerning absolute competence and demurrer concerning relative competence. Both types of demurrers include demurrer concerning procedural;in civil procedural law they are called demurrer on procedural.

Other procedural demurrers are demurrer that the same issue has been decided and the verdict has obtained permanent legal force, a demurrer that the same problem is also being examined by another district court or is still at the stage of appeal to the high court or appeal to the supreme court and the demurrer that the person concerned (the plaintiff) does not have the qualifications/standing to act. “

• Prof. Dr. Sudikno Mertokusumo, S.H. in his book with title Indonesian Civil Procedure Code, published by Liberty Yogyakarta, Fifth Edition, Second Printing, 1999, page 97 which states:

“Response (verweer) is basically aimed at getting the plaintiff’s claim rejected. And this defendant’s respsonse may consist of rebuttal or demurrer, and denial.

What is meant by rebuttal (exceptief verweer) and denial (verweer ten principale) is not explained by law.

In general, what is interpreted as a demurrer is a refutation or rebuttal from the defendant against the plaintiff’s claim, which is not directly related to the merit of the case, which contains a request to reject the claim. Whereas what is meant by a denial (verweer ten principale) is a refutation relating to the merit of the case.

Procedural demurrer is efforts that lead to claims not being accepted. A statement not accepted means a rejection in limine litis, based on reasons outside the merit of the case.

Including, the procedural demurrer is an evasive objection (declinato demurrer) such as the demurrer about the competency of the court, the demurrer on the claim that  is canceled, and the demurrer on the case that has been decided in other court and the demurrer that the plaintiff does not have a standing as a plaintiff (Disqualificatoir demurrer). “

• Prof. Dr. R. Soepomo, S.H., in his book above on pages 48-52 states:

“Demurrer is a rebuttal that fends off the claim of the plaintiff while the merit of the case is not directly mentioned. For example, a rebuttal that says that the judge has no competence to examine a claim filed by the plaintiff (excetie van onbevoegdheid van den rechter “), a rebuttal that says, that the case filed by the plaintiff has been decided by the judge (exceptie van gewijsde zaak), or a rebuttal said that the plaintiff does not have the legal standing to file the claim (Disqualificatoire Exceptie).”

• Prof. Abdulkadir Muhammad, S.H., in his book mentioned above on pages 100 and 101 states:

“Rejection demurrer (declinatory exceptie, declinatory demurrer) is a demurrer that is refusing so that the examination of the case should not be continued. These types include:

a. Demurrer on court competence to examine claims;

b. The demurrer on the claim that is canceled;

c. The demurrer on a case that has been decided;

d. The demurrer on the plaintiff who is not entitled to file a lawsuit;

Rejection demurrers are also called formal demurrer (processuele) because they are based on procedural provisions in the Civil Procedural Code. The defendant gave a response in the form of a formal demurrer to fend off so that the merit of the case was not examined because it was not the competency of the court or because it was not allowed according to the applicable Civil Procedural Law. “

• Lilik Mulyadi, S.H., M.H., in his book with title Civil Procedural Law according to Indonesian Judicial Theory and Practice, published by Djambatan, Second Printing, the Revised Edition 2002, pages 37 to 140 states:

“Judging from the aspect of Civil Procedural Law in principle, demurrers/objections can be categorized into 2 (two) types, namely:(a). Processional Demurrer, namely the defendant’s demurrer or rebuttal, which is only related to the procedural aspect.

As for the kinds of processional demurrers, these are:

i. Demurrer deklinatoir; (declinatoire exeptie).

ii. Demurrer of Litispendentie.

iii. Demurrer inkracht van gewijsde zaak.

iv. Demurrer Plurium litis consortium.

v. Demurrer disqualification is the demurrer submitted by the defendant or their attorney to the plaintiff or their attorney because they do not have the qualification or legal standing to file the claim. “

• H. Riduan Syahrani, S.H., in his book titled Book Material Basic Law on Civil Procedure, published by PT Citra Aditya Bakti Bandung, Year 2000, page 69 states:

“Defendant’s response can consist of 2 (two) types, namely:

(1) An indirect response regarding the merit of the case called a demurrer (rebuttal); and

(2) Direct response on the merit of the case.

A processional demurrer is a demurrer based on Civil Procedural Law. These include demurrers which state regarding the competency of the court to examine claims filed by the plaintiff; the demurrer which states that the case filed by the plaintiff has been decided by other judges; then the demurrer which states that the plaintiff does not have standing as plaintiff (Demurrer Disqualification). “

Based on the demurrer classification according to civil procedural law as stated by the legal experts mentioned above, it can be concluded that the Disqualification Demurrer is one type or form of a procedural demurrer and/or formal demurrer, namely a demurrer that is refusing so that the trial is not continued until the merit of the case, based on reasons outside the merit of the case.

b. Demurrer on Litispendentie

The understanding and grouping of Demurrer on Litispendentie in a number of demurrers according to the civil procedural law, among others, can be seen in various books by legal experts as follows:

• Lilik Mulyadi, S.H., M.H., in his book titled Civil Procedural Law according to Indonesian Judicial Theory and Practice, published by Djambatan of the Second Year of printing, (Revised Edition 2002) pages 137 to page 139 states:

“Judging from the aspect of Civil Procedural Law in principle, demurrers/objections can be categorized into 2 (two) types, namely:

(a). Processional Demurrer, namely the defendant’s demurrer or rebuttal, which is only related to the procedural aspect.

As for the kinds of processional demurrers, these are:

i. Demurrer declinatoire.

ii. Demurrer of Litispendentie: the demurrer of the defendant or their attorney regarding the case submitted by the plaintiff or their attorney have been decided and until now still depend on/have no permanent legal force because in the examination process of appeal/revision or appeal to the supreme court/Cassatie, etc.

iii. Demurrer inkracht van gewijsde zaak.”

• Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, S.H., in their book mentioned above on pages 38 and 39 also write regarding demurrer on litispendentie states:

“Other procedural demurrers are demurrers that the same issue has been decided and the decision has obtained permanent legal force, an demurrer that the same issue is also being examined by another District Court or is still at the level of appeal to the high court or appeal to the supreme court (Litispendentie Demurrer) … … “

• Prof. Abdulkadir Muhammad, S.H., in his book mentioned above on pages 100 and 101 states:

“Rejection demurrer (declinatory exceptie, declinatory demurrer) is a demurrer that is refusing so that the examination of the case should not be continued. Rejection demurrers are also called formal demurrer (processuele) because they are based on procedural provisions in the Civil Procedural Code. The defendant gave a response in the form of a formal demurrer to fend off so that the merit of the case was not examined because it was not the competency of the court or because it was not allowed according to the applicable Civil Procedural Law. “

Based on the demurrer classification according to civil procedural law as stated by the legal experts mentioned above, it can be concluded that the demurrer Litispendentie is one type or form of a formal demurrer and/or formal demurrer, namely a demurrer which is a rejection so that the trial is not continued until the examination of merit of the case, based on reasons outside the subject matter; which is a procedural reason.

c. The demurrer that the parties and the objects of the dispute in the lawsuit have permanent legal force (inkracht van gewijsde zaak exceptie)

• Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, S.H., in their book mentioned above on pages 38 and 39 also write regarding demurrer on litispendentie states:

“Another procedural demurrer is demurrer that the same issue has been decided and the decision has obtained permanent legal force, a demurrer that the same issue is also being examined by another district court or is still at the stage of appeal to the high court or appeal to the supreme court and the demurrer that the person concerned (the plaintiff) does not have the legal standing to act. “

• Prof. Dr. Sudikno Mertokusumo, S.H. in his book with title Indonesian Civil Procedure Code, published by Liberty Yogyakarta, Fifth Edition, Second Printing, 1999, page 97 states:

“Including, the procedural demurrer is an evasive objection (declinato demrrer)… and demurrer on the case that has been decided by other court”

• Prof. Dr. R. Soepomo, S.H., in his book above on pages 48-49 states:

“Demurrer is a rebuttal that fends off the claim of the plaintiff while the merit of the case is not directly mentioned. For example, a rebuttal that says, that the case filed by the plaintiff has been decided by the judge (exceptie van gewijsde zaak)”

• Prof. Abdulkadir Muhammad, S.H., in his book mentioned above on pages 100 and 101 states:

“Rejection demurrer (declinatory exceptie, declinatory demurrer) is a demurrer that is refusing so that the examination of the case should not be continued. These types include:

a. Demurrer on court competence to examine claims;

b. The demurrer on the claim that being canceled;

c. The demurrer on case has been decided;

d. The demurrer on the plaintiff is not entitled to file a lawsuit;”

• Lilik Mulyadi, S.H., M.H., in his book with title Civil Procedural Law according to Indonesian Judicial Theory and Practice, published by Djambatan of the Second Year of printing, (Revised Edition 2002) pages 137 to page 140 states:

“Judging from the aspect of Civil Procedural Law in principle, demurrers/objections can be categorized into 2 (two) types, namely:

(a). Processional Demurrer, namely the defendant’s demurrer or rebuttal, which is only related to the procedural aspect.

As for the kinds of processional demurrers, these are:

i. Demurrer declinatoire.

ii. Demurrer of Litispendentie.

iii. Demurrer inkracht van gewijsde zaak.

iv. Demurrer Plurium litis consortium.

v. Demurrer disqualification is…..”

• H. Riduan Syahrani, S.H., in his book with title Book Material Basic Law on Civil Procedure, Publisher of PT Citra Aditya Bakti Bandung, Year 2000, page 69 states:

“Processional demurrer is demurrer based on Civil Procedural Law. Included in this demurrer for example … The demurrer is that the case filed by the plaintiff has been decided by the judge. “

Based on the demurrer classification according to civil procedural law as stated by the legal experts mentioned above, it can be concluded that the case demurrer that has been decided (exceptie inkracht van gewijsde zaak) is one type or form of a formal process and/or formal demurrer, namely the demurrer that is a refusal so that the trial does not proceed until the examination of the merit of the case, based on reasons outside the merit of the case.

Hope it’s useful,

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