Hukum Perdata-Civil Law

by Dharma Na Gara

The General lawsuit/tort/civil law case proceeding flows in Indonesia:

General lawsuit/tort/civil law case proceeding flows in Indonesia:

1. The legal subject/person/legal entity (the plaintiff) who objected or felt that his/her rights had been violated by another legal subject/person/legal entity (the defendant) make and file a lawsuit/tort to the competent District Court;
2. The District Court will examine the completeness of the documents in the form of a lawsuit and a power of attorney if using a legal representative;
3. If the conditions are fulfilled, the District Court will register the case and the case number will be given after the invoice of the filling the lawsuit/tort have been paid by the Plaintiff. Later the parties will be summoned by the District Court with an official letter to attend the trial;
4. The general agendas of the trial are:

• The identity checking and the Power of Attorney checking (if use a Lawyer);
• The mediation process by appointing a mediator;
• Mediation;
• If the mediation goes well, it will be decided by the decision of the deed of peace, otherwise it will be continued to the agenda of the reading of the lawsuit/tort;
• Exception/objection/answer from the defendant (reply to each other of the parties, we call it replik and duplik);
• Before the verification process there’s possibility of an Interlocutory Verdict/Decision from the Judges (regarding the granting or not granting of the absolute/relative competence of the court, intervention lawsuit etc.,);
• Authentication (examination of legal standing, witnesses, evidence(s), expert(s), examination of the land(s) or premises and others;
• Conclusion (can be lodge by the parties);
• Decision/Verdict by the Judges.
• If the parties do not accept the decision of the Court at the District Court level, then they can appeal within 14 days since the decision is pronounced or after being notified to the parties if they’re absent which is lodge through the District Court’s Clerk which has decided the case so that the case is examined by the High Court. If the parties do not accept the High Court’s decision then the parties can file an appeal (we called it “kasasi”) within 14 days since the decision is pronounced or after being notified to the parties if they’re absent so that the Supreme Court can examine the case which is lodge through the District Court’s Clerk which has decided the case. The parties can also take extraordinary legal efforts, namely a Judicial Review (Peninjauan Kembali/PK) to the Supreme Court which is lodge through the District Court’s Clerk which has decided the case if the Decision has been legally binding.

5. The filing of a lawsuit can also be filed by online.

Thus, the general flows of lawsuit/tort proceeding in courts throughout Indonesia, in fact there are still many details that I could explain, but in order to shorten the time and to simplify for the general public to understand, I summarize it in outline and the rest you can read in the source below or you can consult with us.

Source:

1. Yahya Harahap, S.H., 2008, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta.
2. https://pn-karanganyar.go.id/main/index.php/tentang-pengadilan/kepaniteraan/kepaniteraan-perdata/813-tata-urutan-persidangan-perkara-perdata
3. https://pn-klaten.go.id/main/index.php/tentang-pengadilan/kepaniteraan/kepaniteraan-perdata/653-tata-urutan-persidangan-perkara-perdata
4. http://pn-ponorogo.go.id/joomla/index.php/kepaniteraan/kepaniteraan-perdata/upaya-hukum-perdata/banding-perdata
5. http://pn-ponorogo.go.id/joomla/index.php/kepaniteraan/kepaniteraan-perdata/upaya-hukum-perdata/kasasi-perdata
6. http://pn-ponorogo.go.id/joomla/index.php/kepaniteraan/kepaniteraan-perdata/upaya-hukum-perdata/peninjauan-kembali-perdata

by Dharma Na Gara

CCTV as Evidence.

Closed-Circuit Television or CCTV which means using a signal that is closed, unlike ordinary television which is a broadcast signal relying on analog signals.[1] Analog signals are used to transmit video from one or more cameras to a receiving device (receiver). Analog cameras record images, then send them via a coaxial cable to a Digital Video Recorder (DVR). The DVR then converts the video from an analog signal to a digital signal, compresses the data, and stores it on the hard drive. The monitor, which is used to display the recorded results, must be connected to the DVR. The DVR can also be connected to a router and modem to display video over the internet in an internal network.[2]

CCTV is a video-based surveillance system (Video Surveillance) using a camera. This video-based surveillance system is used to increase all activity of the object being observed besides that it can also be a tool that can provide information directly on what is happening at that time.[3]

The aim is to have a positive psychological effect on those around the camera. So that the person feels monitored and would not act criminally even though there is no one around.[4]

Many of our clients underestimated CCTV as evidence on the case which they experienced, they thought that CCTV just wasting their money and time, but the truth is CCTV is very helpful in revealing facts and truth regarding a legal event. CCTV is a shortcut of arguing, because CCTV reveals fact and truth regarding an event which experienced by someone or some people at a certain time and place. Therefore, it’s very important to have CCTV in your private residence or office, it’s very helpful for us as law enforcer to reveal fact of an event that occur, moreover CCTV which has high quality of audio and video. CCTV also is one of the prevention devices to avoid a criminal act happens to you.

Source:

[1] https://id.wikipedia.org/wiki/Televisi_sirkuit_tertutup

[2] https://tekno.kompas.com/read/2020/07/05/10170047/sama-sama-kamera-pengawas-apa-bedanya-ip-camera-dan-cctv-?page=all

[3] https://medium.com/@cecepahmadfauzi93/apa-itu-cctv-dd5e9bcb2adf

[4] Ibid.

by Dharma Na Gara

Summary of Republic Indonesia Constitution and Human Rights Law in Indonesia.

Summary of articles of Republic Indonesia Constitution and Human Rights Law in Indonesia.

Republic Indonesia Constitution Year 1945 or Undang-undang Dasar Negara Republik Indonesia Tahun 1945

Article 1

• The country of Indonesia is a Unitary Country in the form of a Republic;
• Sovereignty rests in the hands of the people and is exercised according to the constitution;
• The Country of Indonesia is a country of law.

Article 4

• The President of the Republic of Indonesia holds governmental powers according to the Constitution.
• In performing his/her duties the President is assisted by one Vice President.

Article 24

• Judicial power is an independent power to administer justice in order to uphold law and justice.
• Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
• Other bodies whose functions are related to judicial powers are regulated in a law.

Article 26

• Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
• Residents are Indonesian citizens and foreigners who reside in Indonesia.
• Matters concerning citizens and residents shall be regulated by law.

Article 27

• All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
• Every citizen has the right to work and a living that is decent for humanity. Every citizen has the right and obligation to participate in efforts to defend the state.

Article 28

Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.

Chapter XA **)

Human rights

Article 28 A

Everyone has the rights to live and has the rights to defend his/her live and life.

Article 28B

• Everyone has the rights to form a family and continue their offspring through a legal marriage.
• Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.

Article 28C

• Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
• Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.

Article 28 D

• Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
• Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
• Every citizen has the rights to equal opportunities in government.
• Everyone has the rights to citizenship status.

Article 28E

• Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
• Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
• Everyone has the rights to freedom of association, assembly and expression.

Article 28F

Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.

Article 28G

• Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
• Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.

Article 28H

• Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
• Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
• Everyone has the rights to social security which enables him/her to complete development as a dignified human.
• Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.

Article 28I

• The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
• Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
• The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
• The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
• To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.

Article 28J

• Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
• In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.

CHAPTER XIII

EDUCATION AND CULTURE

Article 31

• Every citizen has the rights for education.
• Every citizen is obliged to attend basic education and the government is obliged to finance it.
• The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
• The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
• The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.

Article 32

• The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
• The Country respects and maintains regional languages as national cultural assets.

NATIONAL ECONOMY AND SOCIAL WELFARE

Article 33

• The economy is structured as a joint effort based on the principle of kinship.
• Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
• The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
• The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
• Further provisions regarding the implementation of this article shall be regulated in law.

Article 34

• The poor and neglected children are cared by the country.
• The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
• The country is responsible for the provision of adequate health service facilities and public service facilities.
• Further provisions regarding the implementation of this article are regulated in law.

Human Rights in Indonesia was regulated in Undang-undang No. 39 tahun 1999 concerning Human Rights which regulated as follows:

CHAPTER I

GENERAL REQUIREMENTS

article 1

In this law what is meant by:

1. Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
2. Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
3. Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
4. Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
5. Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his interest.
6. Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
7. The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.

CHAPTER II

BASIC PRINCIPLES

Article 2

The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.

Article 3

• Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
• Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
• Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.

Article 4

The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.

Article 5

• Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
• Everyone has the rights to fair assistance and protection from an objective and impartial court.
• Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.

Article 7

• Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
• The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law

Article 8

The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.

Article 9

• Everyone has the rights to live, defend his/her life and improve his/her standard of living.
• Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
• Everyone has the right to a good and healthy environment.

RIGHT TO JUSTICE

Article 17

Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.

Article 18

• Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
• Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
• Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
• Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
• Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.

Article 19

• No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
• No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.

Article 22

• Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
• The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.

Article 26

• Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
• Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.

SECTION SIXTH

THE RIGHT TO FEEL SECURE

Article 28

• Everyone has the rights to seek asylum to obtain political protection from other countries.
• The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.

Article 29

• Everyone has the rights to protection of self-personal, family, honor, dignity and property.
• Everyone has the rights to recognition everywhere as a personal human before the law.

Article 30

Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.

Article 31

• The place of residence of any person may not be disturbed.
• Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.

Article 32

Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.

Article 33

• Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
• Everyone has the rights to be free from enforced disappearance and deprivation of life.

Article 34

Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.

Article 35

Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.

THE RIGHT TO WELFARE

Article 36

• Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
• No person may be confiscated from his/her property arbitrarily and illegally.
• Property rights have a social function.

Article 41

• Every citizen has the rights to social security necessary for a decent life and for his full personal development.
• Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.

Article 42

Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.

WOMEN’S RIGHTS

Article 45

The rights of women in this law are human rights.

Article 47

A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.

Article 48

Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.

Article 49

• Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
• Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
• The special rights inherent in women due to their reproductive function are guaranteed and protected by law.

Article 50

An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.

Article 51

• A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
• After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
• After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.

PART TEN

CHILDREN’S RIGHTS

Article 52

• Every child has the rights of protection by parents, family, society and the country.
• Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.

Article 53

• Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
• Since birth, every child is entitled to a name and citizenship status.

Article 54

Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.

Article 58

• Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
• In the event that a parent, guardian or child caregiver who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.

Article 60

• Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
• Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.

Article 64

Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.

Article 65

Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.

Article 66

• Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
• The death penalty or life sentence cannot be imposed for the offender who is a child.
• Every child has the rights not to be illegally deprived of his/her freedom.
• The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
• Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
• Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
• Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.

CHAPTER IV

BASIC HUMAN OBLIGATIONS

Article 67

Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.

Article 68

Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.

Article 69

(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.

(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.

Article 70

In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.

CHAPTER V

GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES

Article 71

The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.

Article 72

The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.

by Dharma Na Gara

Law and Justice

A. Law

Definition of Law

Law according to Mr. Soerojo Wignojodipoero in the book Introduction to Legal Studies states that law is:

The compilation of compelling living laws and regulations, contains an order, prohibition, or permission to do or not do something and with the intention of regulating involvement in life.

Satjipto Raharjo explained that law is a human work in the form of norms containing behavioral guidelines. Law is a reflection of the human will about how society should be nurtured and where it should be directed. Therefore, law contains first of all a record of the ideas chosen by the society in which it was created. These ideas are in the form of ideas about justice.

Sudikno Mertokusumo explained that law is a legal norm which is a provision or guideline on what should or must be done. In essence, the rule of law is the formulation of opinions or views on how someone should or must behave. As a guidance legal norm has characteristic of general and passive.

J.C.T. Simorangkir and Woerjono Sastropranoto explained that laws are coercive regulations made by authorized bodies, which determine human behavior in society, violations of these regulations result in punitive action being taken.

B. Judicature

Definition of Judicature

Judicature is the job of judges or court bodies. Judges and courts are bodies that are firmly charged with the task of examining complaints about tampering with rights (law) or examining lawsuits and these bodies issue legal decisions.

Judicature consists of fair and everything that is related to court. Court here is not defined solely as a body to judge, but as an abstract meaning, namely the matter of providing justice. Providing justice means that which is related to the duties of the judiciary bodies or judges in providing justice, namely giving the person concerned concretely to those who ask for justice, what is their right or what the law is. In other words, judicature is everything that is related to the duty of the judges in deciding cases, whether civil cases or criminal cases, to maintain or ensure compliance with material law. Judicature laws are more likely to settle cases through courts as their institutions, while judicature justice take more steps outside the court, such as by way of peace through arbitration institutions.

C. Law and Justice

Law is an institution to create justice in society. Legal experts differ widely in formulating justice.

Justice can indeed be formulated in a simple way as a benchmark used by experts in defining justice. The formulas include:

1. Justice from Hans Kelsen’s point of view

According to him, justice is a certain social order in an effort to seek truth that develops fertile. Justice includes justice for freedom, justice for peace, justice for democracy, justice for tolerance.

2. Herber Spenser

Everyone is free to decide what to do as long as he does not violate the same freedoms of others.

3. Justinian

Justice is a virtue that produces results, that everyone gets what is their rights.

4. Ulpian

Justice is a will that is permanent and perpetual to give everyone what is belong/deserve to each of them (Justitia est constans et perpetua voluntas ius ssum curique tribuendi).

5. Aristotle

Justice is a political policy whose rules form the basis of state regulations and these rules are a measure of what is right. People must control themselves from Pleonesia, that is to gain advantage for themselves by taking away what belongs to others, or rejecting what should be given to others.

D. Law as a protector of Rights

The law protects a person’s interests by allocating a power to him to act in the framework of those interests. This allocation of power is carried out in a measured manner, in the sense that its breadth and depth are determined. Such power is known as rights.

Rights not only contain elements of protection and interests but rights also contain elements of will. If a person owns a plot of land, then the law gives him rights in the sense that his interest in the land is protected. He has free to will with the land that he owns.

According to Fitzgerald, the characteristics of rights inherent in law are:

1. The right is attached to someone who is called the owner or subject of the right. He is also known as the person who has the title for the goods which are the target of rights.
2. The right is assigned to another person, namely becoming the holder of the obligation. Between rights and obligations there is a correlative relationship.
3. This right that is in someone obliges the other party to do (commission) or not to do (omission) an act. This right can be called the content of rights.
4. Commission or omission concerns something that can be called the object of rights.
5. Every right according to law has a title, which is a certain event on which why the right is attached to the owner.

The term right is also used in the sense of immunity from the jurisdiction of others. Just as power is the ability to change legal relations, this immunity is liberation from the existence of a legal relationship that can be changed by others. Immunity has the same position in relation to power as between freedom and rights in a narrow sense: immunity is liberation from the power of others, while freedom is liberation from the rights of others.

Rights can be grouped as follows:

1. Perfect rights and imperfect rights

Perfect rights are those that can be exercised through law as if necessarily through coercion by law. Imperfect rights are those that are recognized by law, but are not always exercised by the courts, such as rights that are limited by expired institutions.

2. Primary and additional rights

Primary rights are those that are extended by other rights. Additional rights are those that complement the main rights, such as land lease agreements that give additional rights to the main rights of the land owner.

3. Public rights and civil rights

Public rights are those that exist in general society, namely the state. Civil rights are those that exist in individuals, such as the right of a person to enjoy the goods they own.

4. Positive and negative rights

Positive rights demand positive actions from the party where the correlative obligation lies, such as the right to receive personal benefits.

6. Rights to own and Personal Rights

Rights to own relate to items owned by a person that are normally transferable. Personal rights relate to a person’s position which can never be transferred.

E. Obligations

Between rights and obligations have a very close relationship. Obligations are absolutely necessary for someone who wants his rights to be fulfilled. A person can claim his rights if he has completed his obligations.

Curzon classifies obligations into several groups, namely:

1. Absolute and relative obligations

Austin stated that an absolute obligation is one that does not have rights pair, such as an obligation directed to oneself, which is demanded by society in general; which is only addressed to the power (sovereign) in charge of it. Relative power is that which involves rights on the other hand.

2. Public and civil obligations

Public obligations are those that correlate with public rights, such as the obligation to comply with criminal law. Civil obligations are correlative to civil rights, such as obligations arising from an agreement.

3. Positive and negative obligations

Positive obligation requires positive actions such as the seller’s obligation to deliver goods to the buyer. A negative obligation is one that requires a party not to do something, such as a person’s obligation not to do something that disturbs a neighbor’s property.

4. Universal, general and special obligations

Universal obligations are addressed to all citizens, such as those arising from law. General obligations are addressed to a certain class of people, such as foreigners, parents (father, mother). Special obligations are those that arise from certain areas of law, such as obligations in contract law.

5. Primary and sanctioning obligations

Primary obligations are those that do not arise from acts that are against the law, such as the obligation of a person not to defame others, which in this case does not arise from violations of other previous obligations. Obligations that are sanctioned are those that arise solely from acts that are against the law, such as the obligation of the defendant to pay the lawsuit of another party who has won the case.

F. Responsibility in view of the Law

Responsibility is the result of an act. When someone does an action, that action will have an impact on other people, the impact or consequence must be borne by the person who did the action. Responsibility is sued because there is an error that can harm the rights and interests of others.

According to Roscoe Pound, there are three types of responsibilities, namely:

1. Liability for deliberate loss.
2. Liability for loss due to negligence and accidental.
3. Liability in certain cases for damages incurred not due to negligence and accidentally.

Accountability is a case of offense, if the injured party does not file a case, then there is no claim to be responsible. Submission of these cases can be pursued by court and can also be pursued by reconciliation with compensation.

G. Justice

1. Definition of Justice

Justice comes from the word just, according to the Indonesian Dictionary, just is not arbitrary, impartial[1]. Fair mainly implies that decisions and actions are based on objective norms, so they are not subjective, moreover arbitrary. Justice is basically a relative concept, everyone is not equal, fair according to one is not necessarily fair to others, when someone asserts that he is doing justice, it must be relevant to public order where a scale of justice is recognized. The scale of justice varies greatly from place to place, each scale is defined and fully determined by the community in accordance with the public order of that society. For most people justice is a general principle, that individuals should receive what they deserve[2].

Justice is a major virtue in social institutions as well as truth in systems of thought. A theory, however elegant and economic, must be rejected or revised if it is not true, so laws and institutions, no matter how efficient and neat it is, must be reformed or abolished if they are unfair. Everyone has an honor based on justice that the whole of society cannot even cancel it. On this basis justice is justified by the greater that others get. Justice does not allow the sacrifices imposed on the few to be aggravated by the Most of the benefits enjoyed by many. Therefore, in a just society the freedom of the citizen is considered established, the rights guaranteed by justice are not subject to political bargaining or social interest calculations[3].

In Indonesia, justice is described in Pancasila as the basis of the country, namely social justice for all Indonesian people. The values contained in the principle of social justice for all Indonesian people are based on and inspired by the principle of beliefs in God, Just and Civilized Humanity, Indonesian Unity, and Democracy led by philosophy wisdom in Deliberation / Representation. The fifth principle contains values which are the goals in life together. So, the fifth principle contains the values of justice that must be manifested in life together (social life). As for justice is based on and imbued with the essence of human justice, namely justice in the relationship between man and himself, human being with other humans, man with society, nation and state, as well as the relationship between man and his God[4].

A sense of justice is essentially the fruit of a human’s spiritual work. And, a human being is primarily individual or subjective. However, in social life for years, centuries, ages, each member of society has naturally, without thought, felt that the passions of each in the end must be reduced to give the other members of society a chance to feel pleasure also in living together in this world.

Thus, the sense of justice of each member of society, even though it is attached to each individual, generally already contains an element of mutual respect for each other’s interests so that it is appropriate that among the various feelings of justice from various elements of society there is a similarity in rhythm which allows for equality of existence as well as the fruit of that sense of justice[5].

If justice is interpreted as social happiness, then social happiness will be achieved if the needs of the social individual are met. Fair regulations are rules that can ensure the fulfillment of these needs. But it is inevitable the fact that one’s desire for happiness can conflict with the wishes of others. So, justice is the fulfillment of individual desires in a certain level. The greatest justice is the fulfillment of the wishes of as many people as possible[6]. But if justice is interpreted as legality. It is fair if a rule is applied to one case but not the same in another. Justice in the sense of legality is a quality that is not related to the content of positive rules, but with its implementation. According to legality, a statement that an individual’s action is fair or unfair means legal or illegal, that is, the action is in accordance with or not with valid legal norms to assess as part of a positive legal system. Only in this sense of legality can justice enter into the science of law[7].

Justice is a fair behavior, namely placing everything in its place or in accordance with its portion, fairness does not have to apply equally to everyone but the characteristic is subjective. Everything that has become the provisions of Allah must be fair, therefore Allah commands mankind to behave fairly, because fair is closer to piety. To receive justice at first it will feel heavy and unable to accept it, therefore to accept justice the key is sincerity, while to accept sincerity is also very hard at first, but if it is felt and submitted to Allah the God of the Universe, you will certainly be able to accept it, so that to carry out sincerity one must be patient and trust in God who orders everything[8].

So that not happen justice like the elephant story studied by blind researchers. Each researcher feels different parts of the legs, ears, tusks, so that each of them describes this in different ways as well as fat and strong, thin and pliable, smooth and hard. While the elephant itself the justice can never be fully recognized by any individual description[9].

So, the criteria of justice, like the criteria of truth, does not depend on the frequency with which the justification is made. Because humans are divided into many different nations, classes, religions, professions and so on, there are also many different ideas of justice. Too many to call one of them justice[10]. Likewise, the research of the blind people on the elephant mentioned above, each researcher feels a different part.

Because justice and truth as compass, thus the legal process runs objectively and rationally, rationally means that there are clear, logical and acceptable standards for anyone’s common sense. Objective, means that case resolution must follow normative procedures related to the problem being handled, not following the subjective will of the law enforcement party. That’s the criteria that must be applied to anyone indiscriminately. So that everyone benefits from the existence of laws that are truly objective, fair, rational. The wicked must be punished, the weak are not treated arbitrarily according to the orders of the strong. And, the strong people, there is no compromise, must be prosecuted if found to have broken the law. The law places everyone equal[11].

2. Justice according to the Philosopher

a. Plato

In the context of Plato’s doctrine of ideas, the idea of justice can be shown in relation to the idea of the state (polis), because the contemplation of the idea of the state (polis) produces an image in which laws and regulations hardly play no role at all[12]. According to Plato, justice is the emancipation and participation of citizens (polis) in the idea of goodness in the state and it is a philosophical consideration for a law.

b. Aristotle

Aristotle was a Greek philosopher who spoke quite clearly about justice. From his work Ethics Nichomachea can be seen his thoughts about justice. For Aristotle, virtue, namely obedience to the law (policy law at that time, written or unwritten) was justice. Aristotle distinguishes justice into two, namely:

• Distributive justice is justice that applies in public law, which focuses on the distribution, honorarium for wealth and other goods obtained by members of the public.
• Corrective justice, is justice related to correcting something wrong, providing compensation for the injured party or an appropriate punishment for the perpetrator of the crime. So compensation and sanctions are a corrective justice according to Aristotle[13].

More fully regarding justice according to Aristotle was put forward by Theo Huijbers, including:

1. Justice in the division of positions and public assets. This is where geometric similarity applies. For example, if a regent is twice as important than a subdistrict head, then the regent must receive twice as much honor as a subdistrict head. To equal importance is given equal, and unequal importance is given unequal.
2. Justice in buying and selling. According to him, the price of goods depends on the position of the party. This is now impossible to accept.
3. Justice as arithmetic equality in the private or public sphere. If a person steals, then he must be punished, regardless of the position of the person concerned. Now, if an official is legally proven to have committed corruption then that official must be punished, regardless of whether he is an official.
4. Justice in the field of legal interpretation. Because the law is general in nature, it does not cover all concrete issues, the judge must interpret it as if he himself were involved in the concrete event. According to Aristotle, the judge must have epikeia, which is “a sense of what is appropriate[14].

c. Friedrich Nietzsche

In his work entitled Menschlisches Allzumenschliches, he says that originally justice is the same power or force. Or justice is reward or respond and exchange on condition that the position of power or authority is roughly the same. So, for example, that originally revenge lies within the sphere of justice. It is an exchange[15].

d. Gustav Radbruch

Justice can be distinguished in several meanings:

• Justice as a prominent or virtue (Gerechtigkeit als Tugend), namely justice as a personal trait or quality (for example for a judge). Here is subjective justice, and justice as the nature or quality of human relations (for example, a fair price). Subjective justice is a stand or attitude, views and beliefs directed towards the realization of objective justice as primary justice. Meanwhile subjective justice is secondary. What is objective justice is less clear. Perhaps in Radbruch’s view, objective justice is justice in human relations.
• Justice according to the standard of positive law and justice according to the ideals of law (rechtsidee), or positive law and the ideals of law is the source of justice.
• The essence of justice is equality (Gleichheit). Here Radbruch follows Aristotle’s opinion of justice, namely commutative justice (for example between achievement and counter-achievement) and distributive justice (in the private and public spheres. Private: salaries are paid according to work performance, public: positions based on qualifications)[16].

e. John Stuart Mill and Bentham

Explaining justice is the greatest benefit or happiness to many people. So a small number of people or individuals can become victims for the sake of many people and that is still called “justice” as well[17].

f. Jacques Derrida

Derrida explained that justice is an experience of the impossible, an experience as “crossing” in a sense, an experience is something that opens a path, makes access and breaks down. Justice is an experience of aporia, which is a limit of things that can be experienced, for example, people are trapped in a dead end, or in other words, aporia of no access, dead ends means that someone cannot fully experience justice[18].

g. Notohamidjojo Notohamidjojo distinguishes justice into three, namely:

• Vindicative justice, is justice that imposes a sentence in accordance with the crime committed.
• Creative justice is justice that provides equal opportunities and freedom for everyone to create positively.
• Protective justice is justice that provides equal protection for everyone in society[19].

h. Widiartana Widiartana explained that in criminal law there are usually two kinds of justice, namely as follows:

1. Retributive justice is justice that focuses on the conviction of the perpetrator of a crime as retribution or reward for the crime he has committed.
2. Restorative justice is justice that focuses more on or focuses on repairing or restoring victims who have suffered as a result of the perpetrator’s crime. In other words, this justice is shown more to the victim than to the perpetrator. This is also a form of responsibility for the perpetrators without neglecting the interests of rehabilitation for the perpetrators. According to Widiartana, restorative justice in the criminal field is more in line with the principle of kinship in Pancasila (Pancasila is the basis of the state and basis of the philosophy of the Republic of Indonesia). It is fair that the perpetrator of the crime is convicted. For example, perpetrators of crimes in domestic crime, but it is also fairer if the victims are given recovery[20].

From the various definitions above, it is very clear that there are various understandings of the meaning of justice. There are those who associate justice with state political regulations, so that the measure of what is a right or not is always based on a measure determined by the state. There are those who see justice in the form of a willingness that is permanent and perpetual, to provide what is right for everyone. There are also those who see justice as a justification for the implementation of law, as opposed to arbitrariness.

Thus, there are also expressions about “justice” that place justice as something that must be sanctified, and exist not only in the courtroom, but everywhere, and must be cleaned of the filth of scandal and corruption. Among the above expressions, there are those who assert that there is no such thing as perfect “justice”, there is only the attainment of justice in a certain level[21].

[1] Eko Hadi Wiyono, Kamus Bahasa Indonesia Lengkap, Jakarta, Akar Media, 2007, p. 10.

[2] M. Agus Santoso, Hukum, Moral, dan Keadilan, Jakarta, Kencana Prenadamedia Group, 2012, p. 85.

[3] John Rawls, A Theory of justice Teori Keadilan Dasar-dasar Filsafat Politik untuk Mewujudkan Kesejahteraan Sosial dalam Negara, Yogyakarta, Pustaka Pelajar, 2011, p. 3-4.

[4] Kaelan, Pendidikan Kewarganegaraan untuk Perguruan Tinggi, Yogyakarta, Paradigma, 2007, p. 36.

[5] Wirjono Prodjodikoro, Asas-asas Hukum Pidana di Indonesia, Bandung, Refika Aditama, 2008, p. 18-19.

[6] Hans Kelsen dalam Jimly Asshiddiqie dan M. Ali Safa’at, Teori Hans Kelsen tentang Hukum, Jakarta, Konstitusi Press, 2012, p. 17.

[7] Ibid., p. 21.

[8] M. Agus Santoso, Op. cit., p. 87-88.

[9] Karen Leback, Teori-teori Keadilan Six Theories of Justice, Suplemen: Konsep Keadilan dalam Kristen, oleh Hans Kelsen, Bandung, Nusa Media, 1986, p. 1.

[10] Jimly Asshiddiqie dan M Ali Safa’at, Op. cit, p. 18.

[11] Dossy Iskandar Prasetyo dan Bernard L. Tanya, Hukum Etika dan Kekuasaan Yogyakarta, Genta Publishing, 2011, p. 111-112.

[12] Carl Joachim Friedrich, Filsafat Hukum Perspektif Historis, Bandung, Nusa Media, 2010, p. 19.

[13] Aristoteles dalam Theo Huijbers, Filsafat Hukum dalam Lintas Sejarah, Yogyakarta, Kanisius, 1984, p. 29.

[14] Ibid., p. 30.

[15] Friedrich Nietzsche, dalam Hyronimus Rhiti, Filsafat Hukum (dari Klasik sampai Postmodernisme), Edisi lengkap, Yogyakarta, Universitas Atma Jaya, 2011, p. 244.

[16] Ibid., p. 245.

[17] Ibid., p. 246.

[18] Derrida dalam Anthon F. Susanto, Ilmu Hukum-Non Sistematik, Fondasi Filsafat Pengembangan Ilmu Hukum Indonesia, Yogyakarta, Genta Publishing, 2010, p. 94

[19] Notohamidjojo, Soal-soal Pokok Filsafat Hukum, Jakarta, BPK Gunung Mulia, 1975, p. 53-54.

[20] G. Widiartana, Keadilan Restoratif pada Kebijakan Penanggulangan Kekerasan dalam Rumah Tangga dengan Hukum Pidana, Makalah Diskusi, Yogyakarta, Fakultas hukum UAJY, 2010, p. 5.

[21] Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicial Prudence) Termasuk Interprestasi Undang-undang (Legisprudence), vol 1 Pemahaman Awal, Jakarta, Prenadamedia Group, 2012, p. 221-222.

by Dharma Na Gara

The Breach of Contract/Default and Inevitable Circumstance or Force Majeur

A. The Breach of Contract or Break a Promise/ Wanprestasi/Default and Inevitable Circumstance or Force Majeur

a. Definition of Breach of Contract or Break a Promise/ Wanprestasi

Breach of contract or break a promise or in Indonesian Language is wanprestasi means negligence, default, failure to fulfill obligations in the contract. Thus, breach of contract or break a promise / wanprestasi is a condition in which a debtor (indebted) doesn’t fulfill or doesn’t perform achievements as stipulated in a contract. Breaching of contract (negligence) can arise because:

1. Deliberateness or negligence of the debtor himself;
2. Force majeur/ inevitable happening (overmacht).

b. Types of Breaching of contract

There are four types of debtor who can be said to have breach of contract, namely:

1. The debtor does not meet any achievements at all;
2. The debtor has met the performance, but not as it should have been;
3. The debtor meets the achievements, but was not on time;
4. The debtor meets the achievements, but does what is prohibited in the contract.

c. Breach of Contract Occurrence

In general, a breach of contract occurs when the debtor is declared to have been negligent in fulfilling his performance, or in other words, a breach of contract exists if the debtor cannot prove that he has committed the breach of contract beyond of his fault or due to compelling/inevitable circumstances. If a grace period is not determined in the implementation of fulfillment, it is deemed necessary for a creditor to warn / reprimand the debtor so that he fulfill his obligations. This warning is also known as warning letter or somasi.

In the event that the grace period for fulfilling the achievements has determined, then according to Article 1238 of KUHPerdata (the Indonesia Civil Code), the debtor is deemed negligent by the time specified. Warning letters/somasi must be submitted in writing explaining what is being demanded, on what basis, and at what time the achievement is expected. This is useful for creditors if they want to sue the debtor in court. In this lawsuit, the warning letters becomes evidence that the debtor has actually committed a breach.

There is no need for a warning or a reprimand, if the person in debt at one point in time can automatically be considered negligence. For example, in the case of a contract to make the wedding dress, but on the wedding day, the dress has not finished. In this case, even though the achievement was made by the debtor but not according to the contract, the performance itself could be considered as negligence. Sometime, in the contract itself has decided, when or in what cases the debtor can be considered negligent. There is no need for a warning or somasi here.

d. The Consequences of the Breach of Contract

As a result of default by the debtor, it can cause losses for creditor. There are four types of sanctions or legal consequences for debtors who breach, namely:

• The debtor is required to pay compensation suffered by the creditor (Article 1243 KUHPerdata /Indonesia Civil Code).
• Cancellation of the agreement is accompanied by payment of compensation (Article 1267 KUHPerdata/Indonesia Civil Code).
• Transfer of risk to the debtor since the time of breach (Article 1237 paragraph 2 of KUHPerdata/ Indonesia Civil Code).
• Payment of court fees if litigated before the judges (Article 181 paragraph 1 HIR).

Besides that, in a reciprocal agreement (bilateral), the breach of one party gives the other party the right to cancel the agreement. In such case the cancellation must be requested to the judges. This request must also be made, although the conditions for cancellation regarding non-fulfillment of these obligations are stated in the agreement. If the conditions are not stated in the agreement, the judges are free according to the circumstances, at the request of the defendant, to give a period of time for the opportunity to fulfill his obligations, which period may not be more than one month (Article 1266 of Indonesia Civil Code).

In accordance with the provisions of Article 1267 of the Indonesian Civil Code, in the event that a debtor is in breach, the creditor can choose his rights claims in the form of:

1. Fulfillment of the agreement.
2. Fulfillment of the agreement accompanied by compensation.
3. Compensation only.
4. Cancellation of the agreement.
5. Cancellation of the agreement is accompanied by compensation.

The obligation to pay compensation for the debtor can be carried out if the creditor has met four conditions, namely:

1. The debtor has indeed been negligent in breach of contract.
2. The debtor is not in compelling/inevitable circumstances.
3. The absence of any defense from the debtor to immobilize claims for compensation.
4. The creditor has issued warning letters or somasi.

e. Defense of Debtor who Breach

A debtor who is accused of negligence and who is asked to be punished for his negligence, can defend himself by proposing several reasons to free himself from these punishments. There are three kinds of defense, namely:

1. Declare that there is compelling/inevitable circumstance (overmacht).
2. Declare that the creditor has been negligent.
3. Declare that the creditor has given up his / her rights.

B. Compensation for Breaching

a. Definition of Compensation

Compensation of costs, losses and interest due to non-fulfillment of an agreement will then begin to be obliged if the debtor, after being declared negligent in fulfilling the agreement, continues to neglect it, or something that must be given or made, can only be given or made within a grace period that has passed (Article 1243 of Indonesia Civil Code). Therefore, basically, compensation for damages is compensation for losses arising from the debtor in breach.

b. The elements of Compensation

According to the provisions of article 1246 of Indonesia Civil Code, compensation consists of three elements, namely:

1. Costs, namely all expenses or expenses that have actually been incurred.
2. Loss, namely losses due to damage to the goods which belong to the creditor due to negligence of the debtor.
3. Interest, namely the profit that should be obtained or expected by the creditor if the debtor was not negligent.

c. Limitations Regarding Indemnity/compensation

Basically, not all losses can be compensated. The law provides that the losses that must be paid by the debtor to the creditor as a result of breach:

1. Foreseeable losses when the contract was made. According to article 1247 of the Civil Code, the debtor is only obliged to pay compensation that is evident or was supposed to be suspected at the time the contract was made, except if the non-fulfillment of the agreement was due to deception committed by him.
2. Losses as a direct result of the breach. According to article 1248 of Indonesia Civil Code, if the contract is not fulfilled due to the deceit of the debtor, the payment of compensation is simply about the loss suffered by the creditor and the profit lost to him, only consists of what is a direct result of not fulfilling the contract.

C. Compelling/Inevitable Circumstance/Force Majeur

a. Definition of Compelling/Inevitable Circumstance/ Force Majeure

The Compelling/Inevitable Circumstance/ Force Majeure is interpreted differently according to scholars, including:

1. According to Mr. Prof. Subekti, S.H., an Inevitable Circumstance is an excuse to be exempted from the obligation to pay compensation.
2. According to Mr. Abdulkadir Muhammad, S.H., an Inevitable Circumstance is a condition where the debtor’s achievements cannot be fulfilled because an event occurs not because of his fault, which events cannot be known or cannot be expected to occur at the time of making the contract.
3. According to Mr. R. Setiawan, S.H., an Inevitable Circumstance is a condition that occurs after a contract was made, which prevents the debtor from fulfilling his performance, where the debtor cannot be blamed and does not have to take risks and cannot predict when the agreement was made. All of this is before the debtor is negligent in fulfilling his performance at the time the situation arises.

Therefore, it can be concluded, that in this Inevitable Circumstance, the debtor cannot be blamed for the failure to implement an agreement or the delay in the implementation of an agreement. Because, this situation arises beyond the willingness and ability or the expectation of the debtor, and therefore, the debtor cannot be punished or subject to sanctions.

b. The Elements of the Compelling/Inevitable Circumstance/Force Majeur

The elements contained in that are:

1. Not fulfilled with achievement, due to an event that destroy or exterminate the object of the contract. It is always constant.
2. The achievement cannot be fulfilled because of an event that hinders the debtor’s actions from achieving. This can be permanent or temporary.
3. The event cannot be known or expected to occur at the time of making the contract, either by the debtor or by the creditor. So, not because of the fault of the parties, especially the debtor.

c. Regulation of the Inevitable Circumstance in Indonesia Civil Code

In the Civil Code, the matter of Inevitable Circumstances is regulated in Article 1244 and Article 1245 of Indonesia Civil Code. But the two articles that regulate this Inevitable Circumstances only act as a defense of the debtor to be exempted from paying compensation if the debtor does not fulfill the contract due to a condition which Inevitable Circumstances, the provisions of the two articles are:

1. According to Article 1244 of Indonesia Civil Code, if there is a reason for this, the debtor must be punished with compensation for expenses, losses and interest if he is unable to prove that that it’s not or at the valid time to do the contract, was due to an unforeseen or unexpected event, can be accounted for to him, even all of that if bad faith is not on his side.
2. According to Article 1245 of Indonesia Civil Code, there is no cost of loss and interest, must be replaced, if due to Inevitable Circumstances or because of an accidental incident the debtor is unable to give or do something that is required, or because the same things have committed a prohibited act.

To find out about more, please consult your problem with us.

Source:

P.N.H. Simanjuntak, S.H., 2016, Hukum Perdata Indonesia, Prenadamedia Group, Jakarta.

by Dharma Na Gara

Consumer Protection Law in Indonesia

The rights and obligations of the consumer are regulated in Republic Indonesia Law Number 8 Year 1999 regarding Consumer Protection (Undang-undang No. 8 Tahun 1999 tentang Perlindungan Konsumen).
Article 4 establishes consumer rights as follows:

1. The rights to security, comfort and safety in consuming goods and / or services.
2. The rights to choose goods and / or services and to obtain these goods and / or services in accordance with the exchange rates and conditions and guarantees promised.
3. The rights to have correct, clear and honest information regarding the condition and guarantee of goods and / or services.
4. The right to be heard or complained about the goods and / or services which have been used.
5. The right to obtain advocacy, protection and proper consumer protection dispute resolution efforts.
6. The rights to get guidance and consumer education.
7. The right to be treated or served correctly and honestly in a non-discriminatory manner.
8. The right to get compensation, indemnity and / or replacement, if the goods and / or services received are not in accordance with the agreement or not as it should be.
9. Rights stipulated in the other provisions of laws and regulations.

Apart from these consumer rights, the law also regulates consumer rights which are formulated in the following articles, namely regarding the obligations of business actors. Obligations and rights are actually antinomies in law, so that the obligations of business actors can be seen and as (part of) consumer rights. The obligations of business actors as regulated in Article 7 include:

1. In good faith in carrying out business activities.
2. To provide true, clear and honest information regarding the condition and guarantee of goods and / or services and provide an explanation of the use, repair and maintenance.
3. Treating or serving consumers properly and honestly and not discriminatory.
4. Ensuring the quality of goods and / or services produced and / or traded based on the prevailing quality standards for goods and / or services.
5. To provide the opportunity for consumers to test, and / or try certain goods and / or services and to provide guarantees for the produced goods and / or traded.
6. To provide compensation, indemnity and / or replacement for losses resulting from the use and the utilization of traded goods and / or services.
7. To provide compensation and / or indemnity if the goods and / or services received or used are not in accordance with the agreement.

Article 5, Apart from obtaining these rights, consumers also have the obligation to:

1. Read or follow information instructions and procedures for the use or utilization of goods and / or services, for security and safety.
2. Have good faith in purchasing transactions for goods and / or services.
3. Pay according to the agreed exchange rate.
4. Participating in proper legal settlement of consumer protection disputes.

Simultaneously, based on Article 6, business actors also have rights that must be protected. The rights of business actors are also part of the obligations of consumers, namely:

1. The rights to receive payment in accordance with the agreement regarding the conditions and exchange value of the goods and / or services being traded.
2. The rights to get legal protection from consumer actions with bad faith.
3. The rights to defend properly in the settlement of consumer disputes.
4. The rights to rehabilitate a good name if it is legally proven that the consumer’s loss was not caused by the goods and / or services being traded.
5. Other rights which regulated in the other provisions of laws and regulations.

Furthermore, Law Number 8 Year 1999 regarding consumer protection stipulates restrictions for business actors which result in consumer losses. Violation of these prohibitions is a criminal offense.
Article 8, business actors are prohibited from producing and / or trading goods and / or services which:

1. Do not meet or does not comply with the required standards and statutory provisions.
2. Do not in accordance with net weight, net content, and the amount in the calculation as stated on the label or etiquette of the goods.
3. Do not according to the actual size, measure, scale and amount calculated according to the actual size.
4. Do not in accordance with the conditions, guarantees, features or efficacy as stated in the label, etiquette or description of the goods and / or services.
5. Do not in accordance with certain quality, level, composition, processing, style, mode or use as stated in the label or description of the goods and / or services.
6. Do not in accordance with the promise stated in the label, etiquette, description, advertisement or sale promotion of the goods and / or services.
7. Do not write down the expiration date or the period of use / utilization that is the best suited for certain goods.
8. Do not comply with the provisions for halal production, as stated in the statement “halal” which is stated in the label.
9. Do not attaching labels or making descriptions of goods that contain the name of the goods, size, or net weight / content, composition, rules of use, date of manufacture, side effects, names and addresses of business actors, as well as other information for uses which according to the provisions must be installed / made.
10. Do not include information and / or instructions for the use of goods in Indonesian Language in accordance with the provisions of the prevailing laws and regulations.

Article 8 paragraph (2) business actors are prohibited from trading defective or used and tainted goods without providing complete and correct information on the goods. Article 8 paragraph (3) business actors are also prohibited from trading damaged, defective or used and tainted pharmaceutical and food supply, with or without providing complete and correct information. Thus, business actors who commit such violations are prohibited from trading these goods and / or services and must withdraw them from circulation.

Article 9, business actors are prohibited from trading, offering, promoting, advertising goods and / or services incorrectly, and / or as if:

1. The said goods have fulfilled and / or discounted prices, special prices, certain quality standards, certain styles or modes, certain characteristics, history or certain uses.
2. The goods are in good condition and / or new.
3. The goods and / or services have obtained and / or had sponsorship, approval, certain equipment, certain benefits, work characteristics or certain accessories.
4. The goods and / or services are made by a company that has a sponsor, agreement or affiliation.
5. The goods and / or services are available.
6. The item contains no hidden defects.
7. The goods are completeness of certain goods.
8. The goods come from certain areas.
9. Directly or indirectly degrading other goods and / or services.
10. Using excessive words, such as safe, harmless, does not contain risks or side effects without complete information.
11. Offer something that contains an uncertain promise.

Article 10, business actors in offering goods and / or services intended for trade are prohibited from offering, promoting, advertising or making false or misleading statements regarding:

1. The price or tariff of the goods and / or services.
   2. The utility of the goods and / or services.
   3. The conditions, coverage, guarantees, rights or indemnity of the goods and / or services.
   4. Offers of discounts or attractive prizes offered.
   5. The danger of using goods and / or services.

Article 15, business actors in offering goods and / or services are prohibited to do such a coercion or other means that may cause both physical and psychological disturbances to consumers.

Article 16, in offering goods and / or services through an order, business actors are prohibited from:

1. Failure to keep the order and / or the settlement time agreement as promised.
2. Not keeping promises for a service and / or achievements.

Article 17, advertising business actors are prohibited from producing advertisements which:

1. Fooling consumers regarding the quality, quantity, materials, utility, price of the goods and / or rates of service as well as the punctuality of receiving the goods and / or services.
2. Fraud the guarantees of the goods and / or services.
3. Contains false, wrong or inaccurate information regarding the goods and / or services.
4. Does not contain information about the risks of using the goods and / or services.

Standard clause
The Consumer Protection Law Article 18 paragraph (1) prohibits business actors from including standard clauses in every agreement and document if:

1. Declare the transfer of responsibility of the business actor.
2. State that the business actor has the right to refuse the return of goods purchased by consumers.
3. Declare that the business actor has the right to refuse the return of money paid for goods and / or services purchased by consumers.
4. Declare the granting of power from consumers to business actors, either directly or indirectly, to take all unilateral actions relating to goods purchased by consumers in installments.
5. Regulate about the proof of the loss of use of goods or use of services purchased by consumers.
6. Give business actors the right to reduce the benefits of services or reduce the assets of consumers which are the object of sale and purchase services.
7. Declare the consumer’s submission to regulations in the form of new, additional, advanced and / or further amendments made unilaterally by the business actor during the period when the consumer utilizes the service purchased.

Article 18 paragraph (2) also prohibits business actors from including standard clauses whose location or shape is difficult to see or cannot be read clearly, or whose disclosures are difficult to understand. And every standard clause that has been stipulated by the business actor in a document or agreement that meets the provisions as referred to in paragraph (1) and paragraph (2) shall be declared null and void by law, with order that the business actor is obliged to adjust the standard clause which is contrary to the Consumer Protection Law.

Case example for Standard Clauses and Indonesia Consumer Protection Law:

Verdict on Judicial Review at the Indonesia Supreme Court Number 124 PK / Pdt. / 2007 Between PT. Securindo Packatama Indonesia (company) against Mrs. Anny R. Gultom and Mr. Hontas Tambunan.

The Judicial Review Decision rejected the application for judicial review submitted by PT. Securindo Packatama Indonesia based on the first level decision, appeal and cassation which have won Mrs. Anny R. Gultom and Mr. Hontas Tambunan against PT. Securindo Packatama Indonesia, in this case Mrs. Anny R. Gultom and Mr. Hontas Tambunan have lost 1 (one) unit car in a parking area managed by PT. Securindo Packatama Indonesia. Even though there is a standard clause in the parking area managed by PT. Securindo Packatama Indonesia which states: “the parking management party is not responsible for any loss, damage, accidents on vehicles or loss of items in the vehicle and / or that befell people who use the parking area of parking ​​management (parking)”, but PT. Securindo Packatama Indonesia still lost and was sentenced to pay material loss of Rp. 60,000,000 (sixty million rupiah) to Mrs. Anny R. Gultom and Mr. Hontas Tambunan for material compensation costs for the loss of 1 (one) unit of car.

For more information, please consult your problem with us.

by Dharma Na Gara

Terms of validity and the abolition of agreements

Terms of validity of the agreement:

Article 1320 of the Indonesian Civil Code:

For the validity of an agreement, the following conditions are required:

1. Agree those who bind themselves.
2. The ability to make an engagement.
3. The certain thing.
4. The cause that is lawful.

Meanwhile, regarding the abolition of engagements / agreements:

1. Due to payment.
2. The offer of cash payment is followed by escrow.
3. Debt renewal.
4. Compensation or calculation of mutual debt.
5. Debt mixing.
6. Debt relief.
7. The items referred to in the agreement has destroyed/gone.
8. Cancellation of the agreement.
9. As the result of the validity of cancellation condition.
10. Passing time.

Cancellation of the agreement is one of the most frequently encountered issues in practice, thus we slightly discuss regarding the cancellation of the agreement as followings:

The agreements which made by people who according to the law are incapable of acting on their own, as well as those agreement which have made by coercion, err, fraud or having the causes contrary to the law, morals or public order, can be canceled or null and void. This cancellation generally results in the situation between the two parties being returned to the condition when the agreement has not been being made yet.

Source:

Prof. Subekti, S.H., Pokok-pokok Hukum Perdata, Publisher: PT. Intermasa, Jakarta, 2003, XXXIV edition.

To find out more about it, please consult with us.

by Dharma Na Gara

Summary of Articles of Laws in Indonesia Part 1.

Summary of Articles of Laws in Indonesia Part 1.

Undang-undang Dasar Negara Republik Indonesia Tahun 1945 (The Constitution of the Republic Indonesia year 1945)

Article 1

1. The country of Indonesia is a Unitary Country in the form of a Republic;
2. Sovereignty rests in the hands of the people and is exercised according to the constitution;
3. The Country of Indonesia is a country of law.

Article 4

1. The President of the Republic of Indonesia holds governmental powers according to the Constitution.
2. In performing his/her duties the President is assisted by one Vice President.

Article 24

1. Judicial power is an independent power to administer justice in order to uphold law and justice.
2. Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
3. Other bodies whose functions are related to judicial powers are regulated in a law.

Article 26

1. Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
2. Residents are Indonesian citizens and foreigners who reside in Indonesia.
3. Matters concerning citizens and residents shall be regulated by law.

Article 27

1. All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
2. Every citizen has the right to work and a living that is decent for humanity.
3. Every citizen has the right and obligation to participate in efforts to defend the state.

Article 28

Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.

Chapter XA **)

Human rights

Article 28 A

Everyone has the rights to live and has the rights to defend his/her live and life.

Article 28 B

1. Everyone has the rights to form a family and continue their offspring through a legal marriage.
2. Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.

Article 28 C

1. Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
2. Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.

Article 28 D

1. Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
2. Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
3. Every citizen has the rights to equal opportunities in government.
4. Everyone has the rights to citizenship status.

Article 28E

1. Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
2. Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
3. Everyone has the rights to freedom of association, assembly and expression.

Article 28F

Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.

Article 28G

1. Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
2. Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.

Article 28H

1. Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
2. Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
3. Everyone has the rights to social security which enables him/her to complete development as a dignified human.
4. Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.

Article 28I

1. The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
2. Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
3. The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
4. The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
5. To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.

Article 28J

1. Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
2. In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.

Article 30

1. Every citizen has the right and duty to participate in the defense and security efforts for the country.
2. The country’s defense and security efforts are carried out through the defense and security system of all the people by the Indonesian National Soldier and the Indonesian Police, as the main force, and the people as the supporting force.
3. The Indonesian National Soldier consists of the Army, Navy and Air Force as country’s instruments in charge of defending, protecting and maintaining the integrity and sovereignty of the country.
4. The Police of the Republic of Indonesia is an instrument of the country that maintains public order and security, has the duty to protect and serve the society and enforce the law.

CHAPTER XIII

EDUCATION AND CULTURE

Article 31

1. Every citizen has the rights for education.
2. Every citizen is obliged to attend basic education and the government is obliged to finance it.
3. The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
4. The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
5. The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.

Article 32

1. The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
2. The Country respects and maintains regional languages as national cultural assets.

NATIONAL ECONOMY AND SOCIAL WELFARE

Article 33

1. The economy is structured as a joint effort based on the principle of kinship.
2. Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
3. The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
4. The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
5. Further provisions regarding the implementation of this article shall be regulated in law.

Article 34

1. The poor and neglected children are cared by the country.
2. The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
3. The country is responsible for the provision of adequate health service facilities and public service facilities.
4. Further provisions regarding the implementation of this article are regulated in law.

Human Rights in Indonesia has regulated in Undang-undang No. 39 tahun 1999 tentang Hak Asasi Manusia (Law Number 39 Year 1999 regarding Human Rights) which regulated as follows:

CHAPTER I

GENERAL DEFINITION

article 1

In this law what is meant by:

1. Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
2. Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
3. Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
4. Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
5. Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his/her interest.
6. Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
7. The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.

CHAPTER II

BASIC PRINCIPLES

Article 2

The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.

Article 3

1. Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
2. Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
3. Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.

Article 4

The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.

Article 5

1. Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
2. Everyone has the rights to fair assistance and protection from an objective and impartial court.
3. Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.

Article 7

1. Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
2. The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law.

Article 8

The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.

Article 9

1. Everyone has the rights to live, defend his/her life and improve his/her standard of living.
2. Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
3. Everyone has the right to a good and healthy environment.

RIGHT TO JUSTICE

Article 17

Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.

Article 18

1. Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
2. Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
3. Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
4. Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
5. Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.

Article 19

1. No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
2. No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.

Article 22

1. Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
2. The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.

Article 26

1. Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
2. Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.

SECTION SIXTH

THE RIGHT TO FEEL SECURE

Article 28

1. Everyone has the rights to seek asylum to obtain political protection from other countries.
2. The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.

Article 29

1. Everyone has the rights to protection of self-personal, family, honor, dignity and property.
2. Everyone has the rights to recognition everywhere as a personal human before the law.

Article 30

Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.

Article 31

1. The place of residence of any person may not be disturbed.
2. Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.

Article 32

Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.

Article 33

1. Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
2. Everyone has the rights to be free from enforced disappearance and deprivation of life.

Article 34

Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.

Article 35

Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.

THE RIGHT TO WELFARE

Article 36

1. Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
2. No person may be confiscated from his/her property arbitrarily and illegally.
3. Property rights have a social function.

Article 41

1. Every citizen has the rights to social security necessary for a decent life and for his full personal development.
2. Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.

Article 42

Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.

WOMEN’S RIGHTS

Article 45

The rights of women in this law are human rights.

Article 47

A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.

Article 48

Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.

Article 49

• Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
• Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
• The special rights inherent in women due to their reproductive function are guaranteed and protected by law.

Article 50

An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.

Article 51

• A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
• After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
• After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.

PART TEN

CHILDREN’S RIGHTS

Article 52

1. Every child has the rights of protection by parents, family, society and the country.
2. Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.

Article 53

1. Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
2. Since birth, every child is entitled to a name and citizenship status.

Article 54

Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.

Article 58

1. Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
2. In the event that a parent, guardian or child caretaker who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.

Article 60

1. Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
2. Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.

Article 64

Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.

Article 65

Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.

Article 66

1. Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
2. The death penalty or life sentence cannot be imposed for the offender who is a child.
3. Every child has the rights not to be illegally deprived of his/her freedom.
4. The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
5. Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
6. Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
7. Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.

CHAPTER IV

BASIC HUMAN OBLIGATIONS

Article 67

Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.

Article 68

Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.

Article 69

(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.

(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.

Article 70

In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.

CHAPTER V

GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES

Article 71

The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.

Article 72

The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.

by Dharma Na Gara

Divorce

According to Article 19 of the Republic of Indonesia Government Regulation Number 9 Year 1975 concerning the Implementation of Law Number 1 Year 1974 concerning Marriage, divorce can occur for a reason or reasons:

1. One of the parties commits adultery or becomes a drunkard, a junkie, gambler and others who are difficult to be cured;
2. One of the parties leaves the other party for 2 (two) consecutive years without the permission of the other party and without valid reasons or for other reasons beyond its capabilities;
3. One of the parties receives 5 (five) years imprisonment sentence or heavier sentence after the marriage has taken place;
4. One party commits cruelty or serious maltreatment which endangers the other party;
5. One of the parties has a physical disability or disease resulting in not being able to carry out his obligations as husband / wife;
6. Between husband and wife there are constant quarrels and fights and there is no hope of living in harmony again in the household.

Consult your problem with us to find out more about divorce in Indonesia.

by Dharma Na Gara

Marriage Agreement

Marriage is a physical and mental bond between a man and a woman as husband and wife with the aim of forming a Happy and eternal family (household) based on One Godhead (Article 1 of Undang-undang Republik Indonesia Nomor 1 Tahun 1974 tentang Perkawinan/Law Number 1 year 1974 regarding Marriage)

Marriage Agreement is an agreement between a prospective husband and a prospective wife before entering into a marriage, a marriage agreement can also be made between a husband and wife while still in a marriage bond which applies to a third party as long as the third party is involved. This is regulated in the Putusan Mahkamah Konstitusi Republik Indonesia/Constitutional Court Decision of Republic Indonesia Number 69 / PUU-XIII / 2015 which provides leniency for mixed marriages between husband and wife, the one who is foreign nationality and the one who is Indonesian nationality to have marriage agreement that can be made before or during the marriage bond. So that the husband or the wife who is still Indonesian nationality and have separated their assets can still have his/her ownership rights to land and rights to use building in Indonesia.

Things that mainly regulated in a marriage agreement include:

1. The rights and the obligations of the husband and the wife;
2. The separation of assets thus the husband or the wife who still had Indonesian nationality can still have ownership rights of lands and other rights;
3. The other things as long as they’re not against the law, morality and appropriateness in the society;

Consult with us to learn more about it.