Harmonizing Legal Decisions: Analysis of the 2023 Supreme Court's Chamber Plenary Meetings
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General Overview
To maintain unity in the application of the law and the consistency of decisions, since 2019 each chamber of the Supreme has regularly held a Chamber Plenary Meeting. Therefore, on 29 December 2023, the Chief Justice of the Supreme Court of the Republic of Indonesia (Supreme Court "CJ”) establish the Circular of the Supreme Court CJ (“SEMA” – Surat Edaran Mahkamah Agung) Number 3 of 2023 on the Enforcement of the 2023 Supreme Court Chamber Plenary Meeting Result Formulation as Guideline for the Implementation of the Duties of the Court (“SEMA 3/2023”).
From 6 (six) Chamber Plenary Meeting of Supreme Court, this ARMA Update takes a closer look and focuses on the formulations of the Civil and Religious Chamber Plenary Meeting.
• Background of the Chamber Plenary Meeting
The Supreme Court has held a 2023 Chamber Plenary Meeting to discuss judicial technical and non-judicial technical matters which arise in each chamber. The Chamber Plenary Meeting has produced the following formulation:
- Formulation of the Criminal Chamber Plenary;
- Formulation of the Civil Chamber Plenary;
- Formulation of the Religious Chamber Plenary;
- Formulations of the Military Chamber Plenary;
- Formulation of the State Administrative Chamber Plenary; and
- Formulation of the Secretariat Chamber Plenary.
Chamber Plenary Meeting formulations serve as key guidelines for handling cases and secretarial affairs at the Supreme Court, court of appeal, and court of first instance, contingent on alignment with their respective authorities.
• Civil Chamber Plenary
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The Language Validity of the Agreement with Foreign Entity
The General Civil Chamber have affirmed that in connection with agreements between Indonesian entities and foreign parties preparing in a foreign language without an Indonesian translation, cannot be canceled unless bad faith in omitting the translation is proven by either party.
In order to mitigate this issue, the parties in the agreement may opt to put a waiver clause whereas the absence of Indonesian translation in the agreement shall not hinder the performance of rights and obligations therein.
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Bankruptcy and Debt Payment Suspension
The Special Civil Chamber gave the guidelines in the field of bankruptcy and debt payment suspension, specifically pointing about the Collateral Taken Over (Agunan Yang Diambil Alih or “CTO”) and the petitions of bankruptcy or suspension of debt payment against property developers.
Firstly, the Special Civil Chamber affirmed that CTO shall not be construed as the sale of collateral but merely the voluntary surrender of collateral to the bank for sale as debt settlement. Moreover, the CTO keeps the bank as a separatist creditor and the CTO object constitutes part of the bankruptcy estate; once sold, the bank can pursue outstanding debt as a concurrent creditor. In order to determine the status of debtor, the Supervisory Judge will use the updated information from the Financial Information Service System (SLIK) at the Financial Services Authority (OJK).
The final formulation of the Special Civil Chamber is that the petitions of bankruptcy or suspension of debt payment against property developers do not qualify as simple evidence under Article 8 paragraph (4) of Law No. 37 of 2004 concerning Bankruptcy and Debt Payment Suspension (“Bankruptcy Law”).
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Compensation and Severance Pay for Employee Termination
The Supreme Court Industrial Relations Chambers have affirmed that for all workers or laborers employed under a Fixed-Term Employment Agreement (Perjanjian Kerja Waktu Tertentu – “PKWT”) who experience termination before the expiration of the agreed term are entitled to receive compensation and severance pay, taking into account the duration of the PKWT they have completed.
• Religious Chamber Plenary
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Domestic Violence for the Ground of Divorce
The Religious Chamber has updated the previous marriage law outlined in SEMA 1/2022 which adding the domestic violence by either the defendant or plaintiff as an additional ground for divorce. This addition adds to the existing and previously determined evidence of divorce, including ongoing conflict, an inability to live in harmony, and a minimum separation period of 6 (six) months from the shared residence.
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Guardianship to Represent Minors
The Religious Chamber affirmed that to legally represent minor children, the living parent (either the father or mother) can voluntarily request for custody or guardianship, with an additional request of determination of which parent (if still alive) will represent the child in certain legal matters both in and out of court.
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Inheritance for the Unregistered Marriage’s Child
The Religious Chamber affirmed that to safeguards a legitimate child's best interests born out of an unregistered Islamic marriage, the child can be designated as a receiver of “wasiat wajibah” to the deceased's will, in which wasiat wibah means a will intended for the heirs who do not receive a share of the inheritance of the person who died, due to a sharia obstacle.