This article will discuss a lawsuit concept known as the Actio Popularis Lawsuit or the Citizen Lawsuit. First of all, we will convey the understanding from the opinion of the Dutch Law Scholars, HRW Gokkel and N. Van Der Wal in his book titled “Juridisch Latijn”, vierde druk Tjeenk Willink, Alphen aan de Rijn, Brussels, 1996 on page 11 which mentions the terminology of Actio Popularis as a lawsuit that can be filed by every citizen, indiscriminately, with regulations by the state (Source: E. Sundari, SH, M.Hum, Class Action Lawsuit, Comparative Study and Application in Indonesia, Atmajaya University, Yogyakarta, 2002, page 15).
Furthermore, Mw. Kottenhagen-Ednez, in response to the use of the terminology of Actio Popularis in the Nieuwe Meer case in the Netherlands, stated that “The Niuwe Meer case did not reach the conclusion that Actio Popularis is accepted, and he argued that the argument of public interest should not be too easily used in general (gebruik alignment). This is because Actio Popularis basically means that everyone (iedereen), including individuals, can file a lawsuit in the name of public interest (alignment) using article 1401 BW “(Source: Dr. Paulus Effendi Lotulung, SH, Enforcement of Environmental Law by Civil Judge, PT Citra Aditya Bhakti, Bandung, 1993, page 57).
Then, what are the opinions from Indonesian legal scholars on the Actio Popularis Lawsuit?
As one of the experts in civil procedural law, Prof. Dr. Sudikno Mertokusumo has contributed his thoughts on the Actio Popularis Lawsuit as stated in the opinion published on Hukumonline.com, November 27, 2006. At this point, the opinion stated that only people who have legal interests can file a lawsuit. Not everyone who has an interest can file a lawsuit, but someone who has a direct legal interest, that is, an interest based on the existence of a legal relationship between the plaintiff and the defendant and the legal relationship is directly experienced concretely by the plaintiff. If it is possible for everyone to sue without the conditions of “direct legal interest,” then there is certainty would be are legal uncertainty and neglect of the rule of law enforcement. Civil procedural law regulations are imperative, meaning that they are coercive, cannot be distorted and judges must submit to the law. Judges cannot create rules that bind everyone in general. Foreign civil procedural law institutions, as long as there is no legal basis, for the sake of legal certainty, cannot be applied. Moreover, Judges’ freedom is not absolute, but it is limited by law, public order and morality. The discovery of a law that is often said to be a ‘breakthrough’ cannot be done freely, but there are methods or rules of the game. We must remain compliant to the principle.
Former judge of the Republic of Indonesia, Dr. Susanti Adi Nugroho, S.H., M.H. in a trial provided an expert opinion regarding the Actio Popularis Lawsuit or Citizen Lawsuit by stating that Citizen lawsuit has not been regulated under procedural law and Supreme Court Regulations in Indonesia. Citizen lawsuit means the right or access of citizens to file a lawsuit against the state administrators because of their negligence or neglect that harms the rights of citizens. A citizen lawsuit cannot ask for compensation, what can be asked is the issuance of a regulation, so that the losses suffered are not repeated. If state authorities enter into an agreement with another party, that other party cannot be sued under a citizen lawsuit. Citizens with a citizen lawsuit mechanism cannot file a claim to cancel a civil agreement made by a state administrator with a private party. Furthermore, in a citizen lawsuit, before the lawsuit is filed, the state authority as the defendant is given a notification. Notification is given 60 days before the lawsuit is filed so that state administrators have time to make repairs to the losses that have occurred.
In the same case, former judge M. Yahya Harahap, S.H. conveyed his view that Citizen Lawsuit is a claim or request submitted by citizens and the right to submit it by law is given to every citizen for and on behalf of citizens, on the responsibility of the state administrators, which results in negligence or neglect, resulting in misery or loss to citizens. Therefore, Citizen Lawsuit can only be submitted to state administrators, specifically including the president, vice president, ministers and up to the ranks of the authorities who carry out government policies. In other words, the private sector cannot be the subject of a citizen lawsuit. Furthermore, the prayer that can be requested in a citizen lawsuit is limited to demanding the relevant state administrator(s) to issue a general rule that applies to the public which can stop the negligence that was carried out by the state administrator(s). If a notification has not been made and then a citizen lawsuit is filed, then the lawsuit is still premature.
Still, in the same case, DR. E. Sundari S.H., M.Hum., gave an expert testimony in the trial by explaining the difference between Class Action Lawsuit and Citizen Lawsuit. According to her, Class Action is a lawsuit filed by representatives of a group and Citizen Lawsuit is a lawsuit filed by the citizens. The interests raised in Class Action Lawsuits are the interests of a particular group, while in a Citizen lawsuit, it is a public interest. Furthermore, it was explained that in a Citizen lawsuit, to the best of the expert’s knowledge, the initial notification process was required to be submitted to the Defendant. She also explained that Class Action Lawsuit was normatively recognized in the Indonesian procedural law system, but citizen lawsuit was normatively not yet recognized in the Indonesian legal system. According to her, procedural law is imperative in nature, which explains why it is not possible to conduct legal discoveries. Considering that the law relating to Citizen lawsuit is not yet regulated in Indonesian procedural law, the judge may not make a legal discovery/lex finding related to the procedural law of citizen lawsuit. Moreover, to the best of her knowledge, Citizen Lawsuit has been recognized in several common law countries, though only limited to the scope of environmental law.
How is the legal consideration of the court concerning Actio Popularis Lawsuit?
The Central Jakarta District Court has granted the Actio Popularis lawsuit filed by the Nunukan Migrant Workers against the Government of the Republic of Indonesia (Nunukan Case). Although the Actio Popularis lawsuit has not been regulated yet in the legislation, the court accepted the claim based on the Elucidation of Article 1 jo. Article 27 paragraph (1) of Law No. 14 of 1970 as amended by Law No. 35 of 1999 concerning the Principles of Judicial Power which in essence states that the Judge must explore the values that develop in the community. In its development, the Jakarta High Court overturned the decision of the Central Jakarta District Court.
In connection with the Actio Popularis or Citizen Lawsuit filed by the public in connection with the National Final Examination, the Central Jakarta District Court also granted part of the lawsuit at the end of 2007.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES