From: A.M Oktarina Counsellors at Law
Contributors: Ethania Surinitulo Duha, S.H., Pramudya Yudhatama, S.H., C.L.A.
Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).
- Background
The Supreme Court (“MA”) is an institution that functions and is authorized as a judicial institution. This means that the Supreme Court has independent power as an actor of judicial power to uphold law and justice in Indonesia through the administration of justice. However, there are often circumstances in which the Supreme Court must regulate several things. Thus, the authority of the Supreme Court is not limited only to its function as a judicial institution because the Supreme Court also has the authority to make regulations. Therefore, the Supreme Court is also given the authority to regulate which can be seen in the legal products issued by it. So, what is the position of Supreme Court legal products in the hierarchy of laws and regulations? Then, do the Supreme Court legal products have legal force?
- Legal Base
- Constitution of 1945; (“1945 Constitution“)
- Law Number 14 of 1985 concerning the Supreme Court Law Number 5 of 2004 concerning Amendments to Law Number 14 of 1985 concerning the Supreme Court jo. Law Number 3 of 2009 concerning the Second Amendment to Law Number 14 of 1985 concerning the Supreme Court; (“Law No.14/1985“)
- Law Number 12 of 2011 concerning the Establishment of Laws and Regulations Law Number 15 of 2019 concerning Amendments to Law Number 12 of 2011 concerning the Establishment of Laws and Regulations jo. Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Establishment of Laws and Regulations. (“Law No.12/2011“)
In carrying out its duties and functions, the Supreme Court is given the authority to adjudicate at the cassation level, examine laws and regulations, and other authorities granted by law as stated in Article 24A paragraph (1) of the 1945 Constitution that:
Article 24A paragraph (1) of the 1945 Constitution:
“The Supreme Court has the authority to adjudicate at the cassation level, examine laws and regulations under the law against the law, and has other powers granted by law.”
The other authority of the Supreme Court includes one of the regulatory authorities. However, the Supreme Court can only issue regulations as a supplement when there are legal deficiencies or vacancies in a matter even though these matters have not been adequately regulated in Law Number 14 of 1985 concerning the Supreme Court. In addition, the regulations issued by the Supreme Court are also distinguished from regulations prepared by the framer of the Law and will not interfere and exceed the regulation on the rights and obligations of citizens in general and also do not regulate the nature, strength, means of proof and assessment as well as the distribution of the burden of proof as explained in Article 79 of Law No.14/1985 and Explanation of Article 79 of Law No.14/1985 that:
Article 79 of Law No.14/1985:
“The Supreme Court may further regulate matters necessary for the smooth administration of justice if there are matters that have not been adequately regulated in this Law.”
Explanation of Article 79 of Law No.14/1985:
“If in the course of justice there is a lack or vacuum of law in a matter, the Supreme Court has the authority to make regulations as a supplement to fill the deficiency or vacancy. With this Law, the Supreme Court has the authority to determine arrangements on how to resolve a problem that has not been or is not regulated in this Law.
In this case, the regulations issued by the Supreme Court are distinguished by the regulations prepared by the framer of the Law. The administration of justice contemplated by this Act is only part of the procedural law as a whole. Thus the Supreme Court will not interfere with and exceed the regulation of the rights and duties of citizens in general nor will it regulate the nature, power, means of proof and judgment or the sharing of the burden of proof.”
That way, the Supreme Court can be said to have the authority to issue legal products. Then, what legal products can be issued by the Supreme Court? There are 4 types of legal products that can be issued by the Supreme Court which include:
- Supreme Court Rules (“PERMA”)
- Supreme Court Circular (“SEMA”);
- Supreme Court Fatwa; and
- Decree of the Head Justice of the Supreme Court;
Then, what is the position of the Supreme Court legal product in the hierarchy of laws and regulations? To answer this question, it is necessary to know in advance what is included in the hierarchy of laws and regulations consisting of 7 types of regulations as explained in Article 7 paragraph (1) of Law No.12/2011 that:
Article 7 paragraph (1) of Law No.12/2011:
“The types and hierarchy of laws and regulations consist of:
- Constitution of the Republic of Indonesia Year 1945;
- Decrees of the People’s Consultative Assembly;
- Government Laws/Regulations in Lieu of Law;
- Government Regulations;
- Presidential Regulation;
- Provincial Local Regulations; and
- District/City Regulations.”
For the legal products issued by the Supreme Court, their existence is recognized and has binding legal force to the extent ordered by higher laws and regulations or their formation based on the authority as explained in Article 8 paragraph (1) and paragraph (2) of Law No.12/2011 that:
Article 8 paragraph (1) of Law No.12/2011:
“Types of laws and regulations other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People’s Consultative Assembly, House of Representatives, Regional Representative Council, Supreme Court, Constitutional Court, Audit Board, Judicial Commission, Bank Indonesia, Ministers, agencies, institutions, or commissions at the same level established by Law or the Government by order of the Law, Provincial People’s Representative Council, Governor, Regency/City People’s Representative Council, Regent/Mayor, Village Head or equivalent.”
Article 8 paragraph (2) of Law No.12/2011:
“Laws and regulations as referred to in paragraph (1) are recognized to exist and have binding legal force to the extent ordered by higher laws or established by authority.”
So that PERMA as a regulation issued by the Supreme Court has a position in the hierarchy of laws and regulations and has binding legal force as long as it is ordered by higher laws or formed based on authority. However, it should be noted that Article 8 paragraph (2) of Law No.12/2011 does not applied to SEMA, Supreme Court Fatwa, Supreme Court Decree because it is not in the form of regulations.
- Conclusion
Although the Supreme Court has the authority to regulate, this authority is limited to the ability of the Supreme Court to issue regulations that do not interfere with and exceed the regulation of the rights and obligations of citizens in general and do not regulate the nature, strength, means of evidence, and judgment or division of the burden of proof. However, almost all of the Supreme Court’s legal products are not in the form of regulations except PERMA. So that only PERMA is included in the hierarchy of laws and regulations as stated in Article 8 paragraph (1) of Law No.12/2011. In addition, PERMA is also the only legal product of the Supreme Court that has binding legal force provided that its formation is based on the orders of higher laws and regulations or based on authority.
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