15 April, 2020
Enforcing the Salus Populi Suprema Lex Esto (the Health of the People Should be the Supreme Law) Principle During Covid-19 Outbreak with Supreme Court Circular Letter No. 1 of 2020.
What you need to know
- The Supreme Court addresses the urgent Covid-19 outbreak situation in Indonesia by issuing a Circular Letter addressed to all judges, court apparatuses, and parties of cases.
- The Circular Letter stresses the urgency to implement strict health and safety requirements at the court area;
- Postponement / delay on hearing schedules are highly possible and allowed on case to case basis with the discretion of the relevant panel of judges;
- Urging judges to work from home, while suggesting the utilization of e-court / e-litigation as a substitute of physical attendance before the court;
- Anyone appearing before the court must comply with strict health and safety requirements imposed in each court (e.g. body temperature must be below 38 degree Celsius to enter);
- Several quasi-judicial bodies (such as BANI and KPPU) are affected by Covid-19 as well, with hearings being postponed based on the discretion of the arbitrator in BANI and the Commissioner in KPPU; and
- It is to be noted that different court may have different views on the approach to be taken, e.g. Jakarta District Court approach may be different with Surabaya District Court approach.
What you need to do
- Follow up closely on the development of each respective cases;
- Expect and anticipate delays that will likely occur due to the current situation;
- New lawsuit to be submitted with the e-court system;
- Ensuring strict health and safety requirements in the event physical attendance to a court hearing is necessary; and
- Keep updated on the development of the Covid-19 outbreak.
Following the recent escalation of 2019 Novel Coronavirus ("Covid-19") outbreak in Indonesia, the Supreme Court of Indonesia took an unprecedented and preventative action by issuing the Supreme Court Circular Letter No. 1 of 2020 on Guidelines for Executing Duties During the Prevention Period of Covid-19 Spread in the Supreme Court and Lower Judicial Bodies ("Circular Letter").
The Circular Letter which was signed by Chief Justice M. Hatta Ali on 23 March 2020, revoked the previous Supreme Court Secretary Circular Letter No. 2 of 2020 on Adjustment of Judicial Work System and Judicial Apparatuses in Preventing the Spread of COVID-19 within the Supreme Court and the Lower Judicial Bodies dated 17 March 2020. The Circular Letter serves as the newest measure implemented by the Supreme Court with respect to the Covid-19 issue.
1. Scope of the Circular Letter
Referring to the Salus Populi Suprema Lex Esto (the Health of the People Should be the Supreme Law) principle, the Circular Letter conveyed new important work system / guidelines that should be strictly enforced by the court chairmen, judges and judicial apparatus in all judicial bodies, including the parties of a case.
In essence, the Circular Letter strongly urges that:
- All courts must ensure the implementation of extra health and safety measures in the environment of the court, such as the use of infrared thermometers, surgical masks, hand sanitizer, and strict physical contact awareness.
- All Judges and judicial apparatus should, use their best efforts, to carry out official duties by working from home except when it is ultimately necessary to do otherwise.
- All relevant parties to a case should undertake court administration utilizing the e-court application system; and
- All relevant parties to a case should conduct hearings by using the e-litigation application system.
2. Effect to Ongoing Cases / Hearings
The Circular Letter strongly advises every hearing (including civil, religious, and state administrative case hearings) to utilize the available e-litigation / e-court system. However, this does not apply in a similar manner to criminal, military, and jinayat (criminal proceeding in Islamic procedure) cases. Those cases may be continued as scheduled depending on the status of the defendant or situation.
Essentially, the Circular Letter still provides a wide discretion for the panel of judges to decide on whether physical attendance for hearings is necessary.
In the event physical attendance is necessary:
- The panel of judges has the authority to postpone the hearing.
- The panel of judges has the authority to limit the number and the distance between visitors at the hearing (social distancing).
- The panel of judges may order the detection of body temperature and prohibit physical contact such as handshakes by parties who will be present at the hearing.
- The panel of judges may order attendees at the hearing to use protective equipment in the form of masks and medical gloves if appropriate given the conditions and situation of the hearing.
In any case, the Circular Letter affirms that the Supreme Court and Lower Judicial Bodies shall comply with central government directives in the event of a lockdown.
3. Moving Forward
What to Expect?
As Indonesia continues to battle the spread of Covid-19, the situation has not deescalated at the time of this client alert, so Clients should expect the measures set out in the Circular Letter to be effective for the time being. From our experience in the last 2 (two) weeks, there have been varied approaches from courts in different regions as to how to handle ongoing cases. Although we have seen some courts decide to postpone all hearings until mid-April 2020, other courts still require physical attendance at civil case hearings.
All district courts in Jakarta remain operational as usual (as at the issue date of this client alert) with strict health, safety, and social distancing requirements implemented. An exception is the South Jakarta District Court which has postponed all hearings for 2 (two) weeks commencing 16 March 2020, excluding criminal cases with a detention period expiring soon.
Moreover, we also note that several quasi-judicial bodies in Indonesia, such as BANI (Indonesian National Board of Arbitration) and KPPU (Commission for the Supervision of Business Competition) are currently postponing all hearings until the end of March, with possible additional postponements until further notice, depending upon the development of the Covid-19 situation.
Considering all the above, Clients will need to follow closely the development on each case, as each institution still has a wide discretion to decide the approach moving forward on a case to case basis.
The Rise of E-Court
In the meantime, applications for a new lawsuit should generally utilize the available e-litigation / e-court system to anticipate any mishap such as the outbreak of Covid-19.
The Circular Letter may be considered as an affirmation and complementation to the Supreme Court Regulation No. 1 of 2019 on Administration of Case and Hearing in the Court through Electronic System issued in June 2019. The e-court system has been implemented in numerous district courts around Indonesia, but with certain obstacles to its implementation such as the low digital literacy in many regions.
In any event, the Circular Letter is expected to stimulate the implementation of e-court in all Indonesian courts with an aim to achieve simple, speedy and inexpensive resolution to proceedings. It is especially appropriate in this challenging time of the Covid-19 outbreak, where justice must still be served even without the physical attendance at court of the parties.
Unfortunately, any ongoing cases that were commenced using the traditional processes and have yet to utilize the e-litigation / e-court system following the first hearing will be unable to switch now to using it according to Supreme Court Regulation No. 1 of 2019 on the Administration of Case and Hearing in Court Electronically. We hope that the Supreme Court is aware that this problem must be resolved by issuing another circular letter allowing any ongoing cases being conducted through traditional processes to switch immediately to e -litigation.
For further information, please contact:
Prawidha Murti, Partner, Ashurst
prawidha.murti@ashurst.com
