article | Opini | 2025-07-20 08:00:24

FEW would realize that the month of May marks one of the important milestones in the history of Indonesian civil procedure. Nearly two centuries ago, on 1 May 1848, the Dutch colonial government passed the regulations on civil procedure for the autochthonous populations in Java and Madura (Het Inlandsch Reglement). Over eighty years thereafter, its counterpart for the outer territories, Rechtsreglement Buitengewesten, was enacted on 11 May 1927. Along with the civil procedure for the European (Reglement op de Burgerlijke Rechtsvordering voor Europeanen), these statutes would eventually serve as the foundation of modern Indonesian civil procedure up to this day. In the annals of modern law, our civil procedure is therefore almost two centuries old. Thus, it is about time to reflect upon its long-lived history.Colonial Origin The inception of the law begins with the colonial government’s intention to implement in the Dutch East Indies the series of legal codes that had already been put into effect in 1838 in the Netherlands by virtue of the concordance principle. Such a doctrine dictates that, apart from some practical modifications, all laws and regulations that were in force in the homeland should also be applied as far as possible in the colonial realm.   The story goes that a renowned Dutch lawyer who was also the Chief Justice of the then colonial Supreme Court, Mr. Hendrik Ludolf Wichers, was assigned by the Governor General of the Dutch East Indies to inquire into the appropriate civil procedure for Indonesian subjects. Instead of using the Dutch procedural code as his main reference, he thought that European legal provisions did not really befit the simple-minded character of Indonesian subjects. Such an attitude comes as no surprise as the colonial legal policy at that time was based on a naïve belief that the natives were not yet able to grasp the particularly complex western legal concepts. The autochthones have their own juristic awareness which might not necessarily be compatible with western legal precepts. The Dutch Governor General at that time, Jan Jacob Rochussen, even asserts that simple rules of proceeding are more desired because of the rather childish disposition of native Indonesians’ social institutions (meer kinderlijken aard en met de maatschappelijke instellingen van den Inlander). Therefore, the intended draft ought to be fashioned as simply and briefly as possible to the extent that it would be effortless for the prospective native litigants to comprehend (Van Helsdingen, 1923).Against the backdrop of such conceitedness, Mr. Hendrik Ludolf Wichers began drafting a straightforward procedure without many formalities to ensure a somewhat inexpensive and quick trial for the would-be native litigants. For instance, as opposed to European civil procedure, the native procedural rule does not require litigants to be represented by a council in court. The structure and redactional formulations of the rules also reflect this simplicity. For instance, in place of putting specific procedural instances such as the admission of evidence and witness testimonies into a separate section, the intended provision lumps them together in a catch-all section called the Handling of Trial (Behandeling van de Zaken). As the Latin legal maxim says, ‘simplicitas est legibus amica’, (simplicity is the law’s friend) is its formula, so to speak.In addition, the draft also proves to be advantageous for the Dutch administrators, who will share the burden of dispensing justice with the judiciary. Contrary to popular belief, the administration of justice to Indonesian subjects in the Dutch East Indies was largely carried out not by professional jurists, but by colonial administrators who did not hold any degree in law (C. Fasseur, 1993). At that time, a glaring shortage of professional lawyers prompted the colonial authorities to assign judicial duties to government officials who would act as non-lawyer magistrates (rechters die geen jurist waren) in the native court (Rutgers, 1911). To ease their task, a straightforward procedural law is indispensable. For this reason, the simplicity of Wicher’s draft would be useful since its provisions could be readily mastered simply by using common sense (dat slechts gezond verstand en oplettendheid daartoe nodig waren).The draft for the native civil procedure (Inlandsch Reglement) was finally completed in 1839. By virtue of State Gazette Number 57 of 1848, the provision came into force on 1 May 1848 and would be applicable in Java and Madura. Initially, the colonial government intended to implement the law in these two islands as a trial before applying it in other regions. However, this goal only materialized roughly eighty years later when the so-called Regulation for the Outer Territories (Rechtsreglement Buitengewesten) was enacted by means of State Gazette Number 227 of 1927. The majority of the Rbg’s articles are mostly replications of the HIR’s provisions. Furthermore, a thorough revision of the Inlandsch Reglement was done in 1941, making it known afterward as the Revised Native Procedure (Herziene Inlandsch Reglement). Together with some provisions from the European civil procedure, these ordinances make up the primary bulk of Indonesian civil procedure.National Civil ProcedureThe departure of the Dutch after Indonesian independence has left a vacuum within the legal realm that has to be filled by the nascent state. For this reason, the transitory provision of the 1945 Constitution mandates that all rules and regulations dating back to the ancien régime will remain in effect so far as not being replaced by new ones. The Emergency Decree Number 1 of 1951 regarding Provisory Measures to Administer Civil Courts (UU Darurat Nomor 1 Tahun 1951 tentang Tindakan Sementara untuk Menyelenggarakan Kekuasaan dan Acara Pengadilan Sipil) further substantiated this approach with regard to civil procedure. Accordingly, the triad of colonial procedure (HIR, RBG, and RV), are still operative with several pertinent adjustments. For example, the formerly considered derogatory term for Natives (Inlandsch) was duly replaced with Indonesian (Indonesisch). Thus, the previously called Revised Native Procedure (Herziene Inlandsch Reglement) was afterward known as Revised Indonesian Procedure (Herziene Indonesisch Reglement in English, or Reglemen Indonesia Baru in Indonesian). Most of us are familiar with its abbreviation, i.e., HIR or RIB.As time passed, scholars began to propose its replacement with the national one. Apart from a handful of modifications, the inherited civil procedures are nonetheless the same as their colonial counterparts. Formally, they still espoused legal dualism, as evidenced by the distinction of litigants between their ethnic backgrounds. In addition, the differentiation of their applicability into the Inner and Outer Territories where the HIR would be applicable in the former, whilst the RBG in the latter, has lost its relevance since Indonesia does not differentiate its regional administrative division into similar territories as its colonial predecessor. Nevertheless, since the demise of the colonial regime, the endeavor to dislodge the colonial civil procedures appears to be in limbo. Apart from several attempts by the lawgiver, we still do not have any new comprehensive code of civil procedure.Judicial Lawmaking by the Indonesian Supreme CourtThe circumstances described above create gaping lacune within the civil procedure. In stark contrast to criminal procedure, which has largely been codified in a comprehensive code of law since 1981, it is unfortunate that our civil procedure has still not yet been unified in a compendious legal code. This situation bespeaks not only noticeable disinterest on the part of the lawgiver, but also the primacy of criminal over civil procedure in the eyes of Indonesian solon. As a result, the practitioners of civil procedure must make do with a set of procedural laws harking back to the previous century to tackle problems arising in contemporary society.In the course of time, the Indonesian Supreme Court (Mahkamah Agung) took an increasingly active role in filling such lacunas. This was made possible by article 79 of the law on the Indonesian Supreme Court, which bestowed the apex court with the authority to regulate matters necessary for the smooth implementation of justice. Accordingly, the Indonesian Supreme Court makes good use of such power through various instruments, such as the Restatement of Law made by the Supreme Court’s Civil Chamber (Rumusan Kamar Perdata), which provides trial judges with directives on handling pertinent issues of civil law. In the same vein, the highest court also issues specific judicial ordinances, namely Circular Letter (Surat Edaran or SEMA), and Regulation (Peraturan Mahkamah Agung or PERMA). The former generally sets forth practical guidelines regarding particular issues for court officers, whereas the latter regulates certain aspects of law applicable to all citizens. To illustrate, the suggestion for judges to conduct the on-site judicial inspection (pemeriksaan setempat) in land dispute was given by the Supreme Court with Circular Letter Number 7 of 2001, whilst digitalization of the civil procedure was spelled out by the Supreme Court’s Regulation Number 1 of 2019 and Number 7 of 2022. Historically, such regulative power has already been effectuated by the colonial judiciary (Idema, 1941). At that time, sluggish legislation also prompted the colonial judicature to issue guidance to its lower instance courts with circulars (circulaire), so much so that such practice was then sarcastically referred to as lawmaking through circulars (wetgeving per circulaire). When investigating the history of the Indonesian judiciary, Termorshuizen-Artz thought that such authority would not even be dreamed of by the Dutch Supreme Court itself (Termorshuizen-Artz, 1994). Nevertheless, judicial legislation by the Supreme Court is arguably indispensable. Amid the rapid development of technology and information within society, digital proceedings in civil matters would not be realized without the highest court’s lawmaking, which complements the provisions of HIR, RBG and RBG as the main reference to Indonesian civil procedure. Hope for the Codification of Civil ProcedureThe Indonesian civil procedure currently resembles a kaleidoscopic mosaic composed of a collection of outmoded regulations harking back to the colonial era and modern rules resulting from partial renewal by the Supreme Court. However, it also evinces a somewhat contradictory makeup since the triad of colonial civil procedure comes with its outdated differentiation of litigants based on ethnicity, whereas its modern counterpart presupposes legal egalitarianism. Moreover, the former hails from the bygone era when paper was still predominant, whilst the latter allows digital proceeding based on information systems. A comprehensive renewal of civil procedure is therefore needed. The first step might be to end the multiformity of procedural rules in HIR, RBG and RV. Their raison d'être is no longer relevant today since we no longer make any distinction with regards to the litigants’ racial background, nor to their place of domicile. Furthermore, the new codification should accommodate numerous legal developments spanning across various fields, such as digital proceeding, electronic evidence, small claims action, and environmental lawsuits. It should moreover be able to resolve practical problems of our current procedure, such as the limit of judicial passivity, the enforcement of court decisions, tracing and eventual forfeiting of the unsuccessful party’s assets, and the criteria for proper and appropriate court announcements.Additionally, although we may have bicentennial civil procedures, they are nevertheless not merely relics of the colonial regime. The fact that the triad of colonial civil procedures has been used as the main rules of Indonesian civil procedure for over a hundred years indicates its ductility in keeping up with numerous tune-ups carried out by the Supreme Court. The procedural frameworks as well as the experiences of its implementation to this day could serve as a model for designing its eventual replacement. Ultimately, such a renewal must consider the main nature of civil procedure itself, namely as a well-regulated instrument for enforcing one’s rights. In conclusion, the renewal and modernization of our civil procedure would create not only clearer and more certain procedural rules, but also a simpler, harmonious, and user-friendly civil proceeding. For almost two hundred years, the triad of HIR, RBG, and RV has been our primary civil procedure, but it is already about time to replace them. The judiciary has done its laudable part in keeping the law up to date, but the Indonesian solon eventually has to pick up the baton of revising and replacing it with the new national code of civil procedure. (Research and Development, fac)ReferencesC. C. Van Helsdingen Jr., De Ned-Indische Wetgeving, Studies en Commentaren, De Nieuwe Wetgeving en Hare Afkondiging, Weltevreden, 1923.C. Fasseur, De Indologen, Ambtenaren voor de Oost, 1825-1950, Uitgeverij Bert Bakker, Amsterdam, 1993.D. Rutgers, Het Inlandsch Reglement, Leidraad voor Studie en Praktijk, J.H. De Bussy, Amsterdam, 1911.H.A. Idema, Indische Juristen Winckel, Piepers, Der Kineren: Iets uit den Strijd om de Legaliteit, Bijdragen tot de Taal-, Land- en Volkenkunde 100 (1941), pp. 173-223.PH. Kleintjes, Staatsinstellingen van Nederlandsch-Indië, Tweede Deel, De Bussy, Amsterdam, 1933.Thermorshuizen-Arts Revisie en Herziening, De Continuïteit in de Indonesische Rechtspleging, Bijdragen tot de Taal-, Land- en Volkenkunde 150 (1994), pp. 330-356.