In civil litigation, it is often found that a defendant submits an absolute or a relative demurrer which in essence states that the court does not have the competence to examine the case, as well as requesting the panel of judges to issue an interlocutory decision on the matter. In this regard, this article will outline a number of provisions, both in civil procedural law, court decisions, and the opinions of experts, which in principle states that the panel of judges is obliged to decide in advance regarding the demurrer of the court’s competency separately from the merit of the case.
I. Civil Procedural Law
Below are several articles stipulated in the HIR to support the above argument.
1. Article 125 paragraph (2) HIR states that:
“However, if the defendant in his response according to Article 121, raises a demurrer (objection) arguing that the district court has no competency to examine the case, then even if he himself or his attorney does not come, it is obligatory for the district court to make a decision regarding the demurrer, after hearing the plaintiff; only if the demurrer is not justified can the district court decide the case “.
2. Article 134 HIR states that:
“If the dispute is a case which does not cover the competency of the district court, then at any time during the examination of the case, it can be requested that the judge declare himself as not having any competence and the judge must also acknowledge it because of his position.”
3. Article 136 HIR states that:
“The demurrers (objections) that need to be explained by the defendant, except the one regarding the Judge’s competency, may not be submitted and considered individually, but should rather be examined and decided together with the merit of the case.”
II. The above legal provisions are strengthened by the Decision of the Supreme Court of the Republic of Indonesia, which states that the demurrer regarding the competency of the court can be submitted individually in advance, separate from the defense of the merit of the case:
1. Decision of the Supreme Court of the Republic of Indonesia Reg. No. 22 K/Sip/1974 dated December 11, 1975, which in essence decided as follows:
“Because the demurrer submitted by the Defendant I is considered a right, the examination does not need to be continued by examining the merit of the case.”
2. Interlocutory Decision Banyumas District Court No. 10/Pdt.G/2009/PN.BMS on 5 January 2010:
“Considering, that because the Defendant’s response contains the Absolute Competency Demurrer, the Panel of Judges, based on Article 136 HIR, must first decide the Absolute Competency Demurrer argument with an interlocutory decision;”
III. In line with the provisions of the procedural law and court decision above, there are also legal doctrines from Indonesian Civil Procedural Law experts which emphasize the court’s obligation to first examine, hear and decide on a demurrer of absolute competence regarding the competency of the court, as follows:
1. Former Chief Justice, M. Yahya Harahap, in his book titled “Civil Procedure Law on Lawsuit, Trial, Confiscation, Verification and Court Decision”, published by Sinar Grafika, 2015, page 426, states:
“If the Defendant submits a demurrer of absolute or relative competence, Article 136 HIR orders the judge to:
– Check and decide in advance about the demurrer.
– Ensure that the investigation and termination of the matter are taken and dropped before the examination of merit of the case.
– This means that if the defendant submits a demurrer which contains a statement saying that the district court does not have competency to hear the case, either in absolute or relative terms;
– The judge shall postpone the examination of the merit of the case;
– Actions that can be taken include checking and deciding the demurrer beforehand;
– Such actions are imperative; it is not permissible to examine the merit of the case before a decision that confirms whether the relevant district court has the competency or not to examine is made. Judges are free to make decisions refusing or granting demurrers. “
2. Prof. Dr. R. Wirjono Prodjodikoro, S.H. in his book titled “Civil Procedure Law in Indonesia” published by Sumur Bandung, 1992, page 53, states:
“Article 134 H.I.R or Article 160 R.Bg. states that, if the matter related to the competency of the District Court to adjudicate the case submitted was concerning the contents of the claim, or in other words related to the attribute of the Court’s competency and there is a possibility that it was not the competency of such District Court but the competency of another Agency, this objection can be submitted by a party at any time during the examination of the case, and the Judge even in connection to their position (ambtshalve) must solve such problem, if it exists, by taking its own initiative instead of waiting for the raising of objections regarding the matter by a litigating party. “
3. Prof. Sudikno Mertokusumo in his book titled “Indonesian Civil Procedure Law,” published by Liberty Yogyakarta, 1999, page 65 states:
“If a case is submitted to a judge that absolutely does not have the competency to examine the case, then the judge must declare himself ex officio not authorized to examine it, and not depend on whether or not there is a demurrer from the defendant regarding his competency.”
4. Prof. Soepomo, S.H., in his book titled “Civil Procedure Law of the District Court,” published by PT Pradnya Paramita, Jakarta, 2000, page 49, states:
“Regarding the judge’s lack of competency, Article 136 permits separate examinations and decisions.”
5. Prof. Z. Asikin Kusumah Atmadja, S.H. wrote an article titled “The Principle of International Civil Law” in a book titled “Some Important Civil Jurisprudence and the Relationship of Civil Procedure Law Provisions” published by the Supreme Court of the Republic of Indonesia, Jakarta: 1992 page 17. Prof. Z. Asikin Kusumah Atmadja, S.H. analyzed Decision No. 3221 K /Pdt/1985 dated October 23, 1996, as follows:
“4.1. Competency to adjudicate:
If it is clear that a case/dispute has an international element then it should be first determined whether the judge has the competency (bevoegd) to hear the case/dispute because there is a possibility that the Court is not authorized to examine the foreign party; “
Apart from the above explanation, in the author’s experience, there are also some Panels of Judges in various courts who argue that a demurrer regarding the competency of the court, both absolute and relative demurrers must not be decided in advance through an Interlocutory Decision, but it can also be decided together with the merit of the case.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES