Domestic Reference Archives

Marriage Regulations of Different Religions and Beliefs in Indonesia: An Analysis

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From: A.M Oktarina Counsellors at Law Contributors: Ricki Rahmad Aulia Nasution, S.H., Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Marriage of different religions and beliefs in our country is certainly not new. This has become a practice that we often encounter in society for a long time. Of course, this reaps pros and cons from various walks of life. Various opinions and assumptions arise regarding marriage of different religions and beliefs, so how do Indonesian regulations respond to it? This needs to be reviewed both in terms of history and positive legal history that governs it. Legal Basis Constitution of the Republic of Indonesia Year 1945. (“1945 Constitution“) Law Number 1 of 1974 concerning Marriage. (“Law No. 1/1974“) Law Number 23 of 2006 concerning Population Administration. (“Law No. 23/2006“) Regeling op de Gemengde Huwelijken. (“GHR“) Compilation of Islamic Law. (“KHI“) Supreme Court Circular Number 2 of 2023 concerning Guidelines for Judges in Adjudicating Cases of Petition for Registration of Marriages Between People of Different Religions and Beliefs. (“SEMA No. 2/2023“) In this dynamic of marriage of different religions and beliefs, we need to research and look at the history of regulation. Long before the issuance of Law No. 1/1974, marriages of different religions and beliefs had been regulated in Regeling op de Gemengde Huwelijken Koninklijk Besluit van 29 December 1896 No.23, Staatblad 1898 No. 158, issued by the Dutch Colonial Government. In GHR, it is explained about the Mixed Marriage Regulation with one of them referring to Article 7 paragraph (2) of GHR that reads: “Differences in religion, class, population or origin cannot be an obstacle to marriage.” Over time, the Indonesian government as a regulator enacted Law No. 1/1974, so with this, the provisions in the GHR were revoked and no longer valid as positive law in Indonesia. (as the link attached) So what is the definition of marriage itself today? We may refer to Article 1 of Law No. 1/1974 that reads: “Marriage is the inner bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the Supreme God.” Furthermore, Article 2 paragraph (1) of Law No. 1/1974 stipulates as follows: “(1) Marriage is valid, if it is performed according to the laws of each religion and belief.” Regarding the prohibition of marriage, it may refer to Article 8 letter f of Law No. 1/1974 that reads: “Marriage is prohibited between two persons who: have a relationship that, by religion or other applicable regulations, is prohibited from marrying.“ Judging from the article above, Law No. 1/1974 has regulated the provisions for valid marriage, namely when it is in accordance with the laws of each religion and belief held by the prospective husband and wife, and also prohibits marriage that has been prohibited by their religion. Article 28B paragraph (1) of the 1945 Constitution also explains as follows: “(1) Everyone has the right to form a family and continue offspring through legal marriage.” The diction “through legal marriage” means that a person has the right to have a family provided that the marriage is valid in the eyes of the law and religion. In Indonesia’s positive law, there is no regulation that specifically regulates the prohibition of marriage of different religions and beliefs, so it may be said that there is still a legal vacuum and uncertainty. Regulation is only limited to returning these provisions to the religious law of each individual. Let us take an example in the religion of Islam. In Islam, marriage of different religions and beliefs is not allowed and the law is haram, where if a Muslim marries a partner of different religions and beliefs, then the marriage is considered invalid in the eyes of the religion and also automatically in the eyes of the law, because the law returns the provision to the rules of their respective religions. Regarding the prohibition of marriage of different religions and beliefs in Islam has also been regulated in Article 40 letter c and Article 44 KHI that reads: Article 40 letter c of the KHI: “It is forbidden to enter into a marriage between a man and a woman due to certain circumstances: a woman who is not Muslim.” Article 44 of the KHI: “A Muslim woman is forbidden to marry a man who is not Muslim.” Then today, there is a dynamic in practice, namely in 2022, there is a court decision from the Surabaya District Court that grants marriage petition of different religions and beliefs between Muslim men and Christian women. Previously, the Surabaya District Court had also granted 17 (seventeen) marriage petition for different religions and beliefs (as the link attached). In addition, the South Jakarta District Court also granted the petition for marriage of different religions and beliefs between Muslim and Catholic couples as registered in Case No. 53/Pdt.P/2023/PN Jkt.Sel, and granted permission for the petitioner to register his marriage at the Department of Population and Civil Registration (“Dukcapil“) of the South Jakarta Administration City (as the link attached). This then raises pros and cons in society. However, over time, the Head of the Supreme Court has issued SEMA No. 2/2023 that regulates guidelines for judges in adjudicating the registration of marriage petition of different religions and beliefs that regulates as follows: “To provide certainty and unity in the application of the law in adjudicating petition for registration of marriages between people of different religions and beliefs, judges must be guided by the following provisions: A valid marriage is a marriage carried out according to the laws of each religion and belief, in accordance with Article 2 paragraph (1) and Article 8 letter f of Law Number 1 of 1974 concerning Marriage. The court does

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Difference between Bankruptcy and Liquidation based on Limited Liability Company Law No.40 of 2007 and Law No. 37 of 2004 concerning Bankruptcy and Suspension of Payment

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From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background In recent times, there have often been companies that cannot survive when they experience destruction and / or failure in running their business and business and then decide to carry out Liquidation and / or Bankruptcy for the company. However, as we know, to carry out Liquidation and Bankruptcy requires requirements and procedures that must be fulfilled first by the company. Then what kind of steps must be taken by the company to carry out Liquidation and also Bankruptcy and what is the difference between Liquidation and Bankruptcy? Legal Basis Law Number 40 of 2007 concerning Limited Liability Companies (“UUPT“). Law Number 37 of 2004 concerning Bankruptcy and Suspension of Payment (“UUK-PKPU”). Regulation of the Minister of Finance of the Republic of Indonesia Number 272/PMk.05/2014 concerning the Implementation of Liquidation of Accounting Entities and Reporting Entities at State Ministries/Institutions (“Permenkeu No. 272/PMK.05/2014“). Indonesian Civil Code (“Civil Code“). Before diving further into the mechanism of bankruptcy and liquidation, by definition bankruptcy itself refers to Article 1 paragraph (1) of the Law that reads “Insolvency is a general confiscation of all assets of the Insolvent Debtor whose management and settlement is carried out by the Curator under the supervision of the Supervising Judge as stipulated in this Law.” And also the definition of liquidation, namely the act of settling all assets and liabilities as a result of the termination / dissolution of accounting entities and / or reporting entities at state ministries / institutions, referring to Permenkeu No.272/PMK.05/2014. Based on the results of our research there is a difference between liquidation and bankruptcy, it includes regulations, conditions, legal consequences, authorities and others. So what are the differences? Let’s look at the table below: DIFFERENCE LIQUIDATION BANKRUPTCY Regulation UUPT UUK-PKPU Condition Some conditions and mechanisms for the Liquidation process: – Based on the decision of the GMS and based on the determination of the court; – Companies that have been declared bankrupt are in a state of insolvency as stipulated in the Law on Bankruptcy and Suspension of Debt Payment Obligations; or – the revocation of the Company’s business license thus requiring the Company to liquidate in accordance with the provisions of laws and regulations. – must be followed by liquidation carried out by the liquidator or curator; – The Company cannot take legal action, unless it is necessary to settle all the Company’s affairs in the context of liquidation. – In the event that the dissolution occurs on the basis of a decision GMS, the period of establishment of that is stipulated in The articles of association have expired or are repealed bankruptcy based on a commercial court decision and GMS does not appoint liquidators, the Board of Directors acts as Liquidator. (Vide Article 142 paragraph (1), paragraph (2) and paragraph (3) of the PT Law). That the conditions for the occurrence of the mechanism or process of Insolvency must be fulfilled 2 elements: – There are 2 (two) or more creditors; – There is 1 (one) debt that is due or due and collectible that is not paid by the debtor. “A debtor who has two or more Creditors and does not pay in full at least one debt that has fallen due and can be collected, is declared bankrupt by a decision of the Court, either on his own application or on the application of one or more of his creditors.” (Vide Article 2 paragraph (1) UUK-PKPU). Application Procedure – Announcing Indonesian newspapers and state news, (“BNRI”) followed by notifying the Ministry of Law and Human Rights (“Kemenkunham“) to be recorded in the company’s register that the company is in liquidation. – In the announcement of the newspaper and BNRI are required to add the phrase “in liquidation” in the newspaper that has been created on behalf of the company that will carry out the liquidation process. – The liquidator must also notify the Minister about the plan to distribute the liquidated assets by notifying by registered letter to the relevant Minister, the payment of the remaining liquidated assets to shareholders; and other actions that need to be taken in the implementation of wealth clearance. – After the expiration of 90 days of this second announcement, the liquidator can settle by selling assets that have previously been assessed with the services of an independent appraiser followed by distributing these assets to their creditors on the basis of pari passu pro rata parte. – Conduct GMS on the accountability of the liquidation process that has been carried out. – In the event that the GMS accepts accountability for the liquidation process that has been carried out, it is followed by an announcement to the newspaper that is then followed by a notification to the Minister that the liquidation process has ended. – In the event that the announcement has been made, the Minister will record the expiration of the company’s legal entity status and remove the company’s name from the list of companies followed by an announcement in the State Gazette of the Republic of Indonesia. (Vide Article 147 paragraph (1), Article 143 paragraph (2), Article 149 paragraph (1), Article 152 paragraph (1), Article 152 paragraph (3), Article 152 paragraph (5) j.o Article 152 paragraph (8) of the Law and Article 1131 jo.1132 of the Civil Code) – The application for bankruptcy declaration is submitted to the Commercial Court and those entitled to file it include creditors, debtors, Bank Indonesia, Minister of Finance, Capital Market Supervisory Agency and prosecutors in the public interest. – The application for bankruptcy statement that has been received by the court will be processed through an examination hearing and no later than the bankruptcy decision must be read 60 (sixty) days after the date of registration of the bankruptcy statement

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Legal Protection for Debtors When the Fiduciary Guarantee Object is Unilaterally Deprived by Creditors

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

From: A.M Oktarina Counsellors at Law Contributors: Ricki Rahmad Aulia Nasution, S.H., Pramudya Yudhatama, S.H., Raysha Alfira, S.H., Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Nowadays, there are many cases of misunderstanding between Creditors and Fiduciary Debtors, in that objects to the Fiduciary Guarantee Object are executed by Creditors unilaterally and arbitrarily without a determination from the Court. The execution of Fiduciary Guarantee cannot be done carelessly by Creditors because there must be a determination from the Court and also the existence of a Notary Deed and Fiduciary Guarantee Certificate against the object of guarantee that has been registered. So what are the legal remedies that may be taken by the Debtor and legal protection against the Debtor for the Fiduciary Guarantee Object executed by the Creditor unilaterally and arbitrarily? Legal Basis Criminal Code (“KUHP“) Civil Code (“KUH Perdata“) Herziene Inlandsch Reglement (“HIR“) Rechtreglement voor de Buitengewesten (“RBg“) Law Number 42 of 1999 concerning Fiduciary Guarantee (“Law 42/1999“) Government Regulation Number 21 of 2015 concerning Procedures for Registration of Fiduciary Guarantees and Costs for Making Fiduciary Guarantee Deed (“PP 21/2015“) Constitutional Court Decision Number 18/PUU-XVII/2019 (“Constitutional Court Decision 18/PUU-XVII/2019“) Regulation of the Head of the National Police of the Republic of Indonesia Number 8 of 2011 concerning Securing the Execution of Fiduciary Guarantees. (“Perkapolri 8/2011“) Before understanding further into the fiduciary mechanism, by definition fiduciary itself refers to Article 1 number 1 of Law 42/1999 that reads: “Fiduciary is the transfer of ownership rights of an object on the basis of trust provided that the object to which ownership rights are transferred remains in the possession of the owner of the object.” and Article 1 number 2 of Law 42/1999 that reads: “Fiduciary Guarantee is a security right to movable goods, both tangible and intangible, and immovable goods, especially buildings that cannot be encumbered with dependent rights as referred to in Law Number 4 of 1996 concerning Dependent Rights that remain in the control of the Fiduciary, as collateral for the repayment of certain debts, which gives the Fiduciary a preferred position over other creditors.” Judging from the two articles above, when the Creditor transfers property rights to the Debtor for Fiduciary Guarantee, the Fiduciary Guarantee Object is still in the hands of the Debtor for use. When the Debtor is deemed to have committed Default in accordance with Article 1238 of the KUH Perdata for not carrying out its obligations in accordance with the principal agreement between the parties, the Creditor may execute the Fiduciary Guarantee Object. However, the execution cannot be carried out directly, and there are mechanisms that must be known, such as the following provisions. Referring to Article 5 paragraph (1) of Law 42/1999 that reads: “(1) The encumbrance of Objects with Fiduciary Guarantee is made by notarial deed in Indonesian and is a deed of Fiduciary Guarantee” Article 4 PP 21/2015 that reads: “The application for registration of Fiduciary Guarantee as referred to in Article 3 shall be submitted within a maximum period of 30 (thirty) days from the date of making the deed of Fiduciary Guarantee.” Article 11 paragraph (1) of Law 42/1999 that reads: “(1) Objects encumbered with Fiduciary Guarantees must be registered.” It may be explained, the fiduciary must be stated in the Notarial Deed and registered. The mechanism, after obtaining the deed of Fiduciary Guarantee, the object is registered with the Fiduciary Registration Office by the Creditor by attaching a statement of registration of Fiduciary Guarantee, after that according to Article 14 paragraph (1) of Law 42/1999 explains: “(1) The Fiduciary Registration Office issues and delivers to the Fiduciary a Certificate of Fiduciary Guarantee on the same date as the date of receipt of the application for registration.” The Fiduciary Guarantee is born if the Object of Fiduciary Guarantee has been registered and a Certificate of Fiduciary Guarantee has been issued. If the Fiduciary Guarantee Object has not been registered, the Creditor has no right to execute the Fiduciary Guarantee Object. This of course provides legal protection and legal certainty to the Debtor. In the event that the Creditor wishes to execute the Fiduciary Guarantee, it has several ways as stipulated in Article 29 paragraph of Law 42/1999 that reads: “(1) If the debtor or Fiduciary defaults, the execution of the Thing which is the object of the Fiduciary Guarantee may be carried out by: implementation of executory title as referred to in Article 15 paragraph (2) by the Fiduciary Beneficiary. sale of Objects that are the object of Fiduciary Guarantee on the Fiduciary Beneficiary’s own power through public auction and take repayment of his receivables from the proceeds of the sale; underhand sales made under the agreement of the Fiduciary Grantor and Beneficiary if in such a way the highest price in favor of the parties can be obtained. (2) The implementation of the sale as referred to in paragraph (1) point c shall be carried out after the lapse of 1 (one) month since notified in writing by the Grantor and or Fiduciary to the interested parties and announced in at least 2 (two) newspapers spread in the relevant area.” Then refer to Article 15 paragraphs (2) and (3) of Law 42/1999 that reads: “(2) The Fiduciary Guarantee Certificate as referred to in sub-article (1) shall have the same executory power as a court decision that has obtained permanent legal force. (3) If the debtor defaults, the Fiduciary Receiver shall have the right to sell the Thing which is the object of the Fiduciary Guarantee in his own discretion.” Referring to the two articles above, that has been published through the Constitutional Court Decision 18/PUU-XVII/2019, it is explained that Article 15 paragraph (2) of Law 42/1999 on the phrases “executory power” and “the same as a court decision” is contrary to the Constitution of the Republic of Indonesia Year 1945 and has no binding legal force as long as it is not interpreted “For

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Announcement of Cooperation between AM OKTARINA Counselor at Law and Chongqing Jingsheng Law Firm

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Announcement of Cooperation between AM OKTARINA Counselor at Law and Chongqing Jingsheng Law Firm It is with great pride, and honor, that we announce that we have entered into a Cooperation with Chongqing Jingsheng Law Firm. Our main goals are to improve each other’s business, recommend each other in the best legal services between countries, and increase investment opportunities. Chongqing Jingsheng Law Firm is a law firm that focuses on legal consulting services, non- litigation services, and litigation and arbitration. Established since 1996, founding by Ms. Jing Peng, it has various fields of competence, such as M&A investment financing, Real estate and construction, Internal business and intellectual property, Government and public affairs, Healthcare and life sciences, Cybersecurity and data compliance, Liquidation and restructuring, Commercial and corporate, Financial securities insurance, Criminal, Environmental resources and safety production Family cases and family succession services, with competent lawyers in their fields, Chongqing Jingsheng Law Firm has become one of the leading law firms in China, and widely in East Asia, and has also spread its wings to Europe, namely in the UK, with JINGSHENG Ltd UK. Chongqing Jingsheng Law Firm has a long history, excellent reputation, and has won many prestigious titles, Chongqing Jingsheng Law Firm has twice been named an Outstanding Law Firm in China by the Ministry of Justice of the People’s Republic of China and the China Lawyers Association. We have been called an Outstanding Law Firm, Integrity Law Firm, and Annual Top Law Firm in Chongqing by the Department of Justice of Chongqing and the Chongqing Bar Association. In 2017, Chongqing Jingsheng Law Firm was selected as Corporate/Commercial Recognized Law Firm: Chongqing by Chambers and Partners Asia- Pacific Rankings. Having partners in many countries and continents, Chongqing Jingsheng Law Firm has become a global law firm with outstanding competence. This is a competence and excellence, which of course clients will be given good, structured, and detail-oriented solutions that are positive. It is an honor to work with and collaborate with one of the best law firms. We are certainly determined to be able to help each other, assist, and provide the best competence and always improve the relationship to a level that is always profitable and easy for clients. AM OKTARINA Counselor at Law together with Chongqing Jingsheng Law Firm wishes that the cooperation that will be built will be a good, big, profitable, and positive collaboration in a larger scope. Do you want to know more about Chongqing Jingsheng Law Firm? We can see it through the web htt ps:/ /www.ji ngshenguk.com/ ! Thank you for your cooperation and trust! For further information, please call: – partner@ amokt arina.n et – n.pasaribu@amokt a rina. net – 0817779122

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BREAKING GROUND IN ARBITRATION: AM OKTARINA’S KEY ROLE IN FCC CASE AA4718

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BREAKING GROUND IN ARBITRATION: AM OKTARINA’S KEY ROLE IN FCC CASE AA4718 Contributor: Ricko Anas Extrada, S.H. Muhammad Ardin Ardiansyah, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.LM. (Adv). Aflah Abdurrahim, S.H. Image Sources: https://pin.it/2O3fZnoeI A. Background AM Oktarina Counsellors At Law Secures Significant Victory in International Arbitration under the Federation of Cocoa Commerce (FCC) in London Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 2 AM Oktarina Counsellors At Law has successfully secured a significant victory in an international arbitration dispute under the Federation of Cocoa Commerce (FCC) in London. The case, identified as AA4718, revolved around the interpretation of contractual clauses related to the choice of arbitration forum, the fulfillment of contractual obligations, and arbitration jurisdiction under international legal principles. In this matter, AM Oktarina represented its client, an Indonesian company, against claims brought by the buyer (claimant) in an international cocoa trade transaction. This achievement not only highlights AM Oktarina’s legal expertise but also reinforces legal certainty in resolving disputes through international arbitration mechanisms. The dispute arose from an international cocoa sale transaction where the parties agreed to refer disputes to FCC arbitration, as stated in the contract clause: “The parties agreed that any issues to be resolved, arising out of the contract, will be referred to Arbitration under the prevailing rules of the Federation of Cocoa Commerce Limited, London.” The claimant alleged that the respondent (AM Oktarina’s client) had breached the contract; however, the claim was filed without adhering to the FCC’s procedural rules, such as the requirement to provide a formal written notice declaring the respondent in default. Through comprehensive legal arguments, AM Oktarina successfully persuaded the arbitration tribunal that the claimant’s claims were legally unfounded and violated the formal procedures stipulated in the FCC Arbitration and Appeal Rules. Consequently, the tribunal ruled in favor of the respondent, declaring that no breach of contract had occurred and releasing the respondent from all claims. Summary of Case AA4718 Chronology at the FCC 1. Contract Formation: Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 3 On January 27, 2023, the claimant (Kamala Consumer Care PVT Ltd.) and the respondent (PT Surya Kakao Internasional) signed a purchase agreement for 160 MT of Natural Cocoa Butter at USD 3,700 per MT, totaling USD 592,000. The agreed delivery schedule was from March to August 31, 2023 (FOB Jakarta). Payment terms included a 30% deposit and 70% upon scanning the shipping documents. 2. Delivery Schedule Breach: Out of the eight scheduled shipments, only three were completed before the deadline (August 31, 2023). The fourth shipment was made on September 10, 2023, exceeding the agreed timeline. 3. Contract Termination: On April 24, 2024, the respondent declared its inability to continue the contract due to a sharp increase in raw material prices (cocoa beans). The respondent claimed that the price of Grade “A” Natural Cocoa Butter had soared to USD 40,000 per MT, far above the initial contract price. 4. Arbitration Claim Submission: On June 29, 2024, the claimant submitted an arbitration claim to the FCC, accusing the respondent of failing to deliver the remaining 80 MT and seeking damages for financial and reputational losses. 5. Respondent’s Defense: Represented by AM Oktarina Counsellors At Law, the respondent argued that the claimant’s submission exceeded the 56-day deadline as stipulated by the FCC Arbitration Rules. The respondent also rejected the claimant’s demand for USD 2,904,000 in damages, citing unrealistic and inaccurate calculations. 6. Arbitration Proceedings: Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 4 The FCC Tribunal reviewed submissions and arguments from both parties. It concluded that the claimant had failed to formally declare the respondent in default in compliance with FCC Rules. 7. Final Decision: The tribunal ruled that while the respondent wrongfully terminated the contract on April 24, 2024, the claimant had also failed to meet procedural obligations. The tribunal ordered the contract to remain enforceable for the remaining deliveries but split the arbitration costs evenly, with each party bearing their legal expenses. This case exemplifies the importance of adhering to procedural rules in arbitration and underscores AM Oktarina Counsellors At Law’s ability to navigate complex international legal disputes effectively. Legal Basis 1. FCC Arbitration and Appeal Rules (Applicable to contracts concluded on or after 0 July 2021) [“FCC Arbitration and Appeal Rules”] 2. Contract Rules for Cocoa Beans (Applicable to contracts concluded on or after 01 March 2023) [“CP4 Rules”) 3. Arbitration Act 1996 Disputing parties in international transactions generally predetermine the forum and/or applicable law to be used when disputes arise. Determining such formalities is critical since the parties often come from different countries with distinct legal systems. Therefore, choice of forum and choice of law are essential for contracting parties when determining which international arbitration forum will be used to resolve future disputes. Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 5 When parties have predetermined their preferred international arbitration forum for resolving disputes, they must clearly and explicitly state this choice in a written agreement prior to any dispute. This ensures legal certainty for the contracting parties and provides the arbitral tribunal with the necessary legal standing or authority to adjudicate the dispute. In the case experienced by our client, the arbitration was conducted under FCC Arbitration, where the parties had explicitly stated in their contract: “The parties agreed that any issues to be resolved, arising out of the contract, will be referred to Arbitration under the prevailing rules of the Federation of Cocoa Commerce Limited, London.” Additionally, both parties must agree and declare that they are aware of, familiar with, and willing to comply with the agreement incorporating the FCC Arbitration Rules. In other words, one party must not exploit a dominant position to the detriment of the other party’s understanding of the FCC Arbitration or other

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PENGGABUNGAN, PELEBURAN ATAU PENGAMBILALIHAN SAHAM DAN/ATAU ASET DARI SUDUT PANDANG HUKUM PERSAINGAN USAHA DAN PERAN KPPU

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Contributor: Moh. Ilham Makhal, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.LM. (Adv). Aflah Abdurrahim, S.H. Sumber Gambar: https://www.freepik.com/free-vector/hand-drawn-international-trade_20289224.htm#fromView=search&page=1&position=22&uuid=5f9155ba-2c8a-4e84-95b1-7a4cf8a97540 Background Akhir-akhir ini praktik pasar modal di Indoesia semakin marak dan berdampak kepada banyaknya transaksi yang dilakukan oleh para pelaku usaha (Perusahaan). Salah satunya adalah transaksi yang dilakukan oleh Perusahaan seperti Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi yang dilakukan oleh pelaku usaha merupakan suatu Corporate Action yang dilakukan oleh satu badan hukum atau lebih untuk menggabungkan diri dengan badan usaha lain, meleburkan diri dengan cara mendirikan satu bandan usaha baru, atau mengambilalih saham dan/atau aset yang mengakibatkan beralihnya pengendali Perusahaan. Namun bagaimana regulasi di Indonesia yang mengatur terkait pelaksanaaan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi dari suduh pandang persaingan usaha? Apakah dampak yang akan terjadi setelah dilakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi tersebut dan bagaimana pengawasannya? Mari kita simak lebih dalam terkait peraturan dan dampak Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi dari sudut pandang hukum persaingan usaha di Indonesia. Legal Basis Undang-Undang Nomor 5 Tahun 1999 tentang Larangan Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“UU No. 5/1999”). Peraturan Pemerintah Nomor 57 Tahun 2010 tentang Penggabungan atau Peleburan Badan Usaha dan Pengambilalihan Saham Perusahaan yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“PP No. 57/2010”) Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) Secara definisi hukum, menurut Pasal 1 PerKPPU No. 3/2023 menjelaskan tentang pengertian Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset sebagai berikut: “Penggabungan adalah perbuatan hukum yang dilakukan oleh satu badan usaha atau lebih untuk menggabungkan diri dengan badan usaha lain yang telah ada yang mengakibatkan aktiva dan pasiva dari badan usaha yang menggabungkan diri beralih karena hukum kepada badan usaha yang menerima penggabungan dan selanjutnya status badan usaha yang menggabungkan diri berakhir karena hukum”; “Peleburan adalah perbuatan hukum yang dilakukan oleh dua badan usaha atau lebih untuk meleburkan diri dengan cara mendirikan satu badan usaha baru yang karena hukum memperoleh aktiva dan pasiva dari badan usaha yang meleburkan diri dan status badan usaha yang meleburkan diri berakhir karena hukum”; “Pengambilalihan adalah perbuatan hukum yang dilakukan oleh pelaku usaha untuk mengambilalih saham dan/atau aset yang mengakibatkan beralihnya pengendalian perusahaan dan/atau aset tersebut”. Kegiatan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset dapat mengakibatkan terjadinya penguasaan pasar oleh satu atau lebih badan usaha yang hal ini dapat mengakibatkan terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat. Komisi Pengawas Persaingan Usaha (KPPU) yang merupakan otoritas yang bertugas mengawasi persaingan usaha di Indonesia melalui Undang-Undang Nomor 5 Tahun 1999 tentang Larangan Praktik Monopoli dan Persaingan usaha Tidak Sehat (“UU No. 5/1999”) dan Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) mengatur tentang Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset. Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset diatur di Pasal 29 UU No. 5/1999 yang mengatur sebagai berikut: “Ayat Penggabungan atau peleburan badan usaha, atau pengambilalihan saham sebagaimana dimaksud dalam Pasal 28 yang berakibat nilai aset dan atau nilai penjualannya melebihi jumlah tertentu, wajib diberitahukan kepada Komisi, selambat-lambatnya 30 (tiga puluh) hari sejak tanggal penggabungan, peleburan, atau pengambilalihan tersebut. Ketentuan tentang penetapan nilai aset dan atau nilai penjualan serta tata cara pemberitahuan sebagaimana dimaksud dalam ayat (1) diatur dalam Peraturan Pemerintah.” Pelaku usaha yang melakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset wajib melakukan notifikasi kepada KPPU. Notifikasi adalah pemberitahuan secara tertulis kepada KPPU yang wajib dilakukan oleh pelaku usaha sejak Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau aset berlaku efektif secara yuridis. Pelaku usaha yang telah melakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset wajib melakukan Notifikasi kepada KPPU paling lama 30 (tiga puluh) hari sejak tanggal Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset berlaku efektif secara yuridis. Ketentuan wajib Notifikasi ini sesuai dengan PerKPPU No. 3/2023 terdiri atas: Memenuhi batasan nilai asset dan/atau nilai saham penjualan; Terjadi perubahan pengendali; Bukan transaksi antar pelaku usaha terafiliasi; dan Transaksi antar pelaku usaha yang memiliki asset dan/atau penjualan di Indonesia. Selain ketentuan wajib Notifikasi sebagaimana yang telah diuraikan diatas, pelaku usaha wajib menyampaikan Notifikasi kepada KPPU dalam hal Pengambilan Aset mengakibatkan peningkatan kemampuan penguasaan atas suatu pasar tertentu oleh Pelaku Usaha yang melakukan Pengambilan Aset dan tidak termasuk transaksi Pengambilalihan Aset yang dikecualikan. Sehubungan dengan batasan nilai Aset dan/atau nilai penjualan (Thresshold) dari hasil Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau aset yang wajib dilakukan oleh pelaku usaha untuk Notifikasi ke KPPU adalah: Nilai aset pelaku usaha hasil Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset melebihi Rp2.500.000.000.000,00 (dua triliun lima ratus miliar rupiah); atau Nilai Penjualan Pelaku Usaha hasil Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset melebihi Rp5.000.000.000.000,00 (lima triliun rupiah). Untuk batasan nilai aset dan/atau nilai penjualan dalam hal transaksi dilakukan oleh para Pelaku Usaha yang bergerak di bidang perbankan jika nilai aset Pelaku Usaha hasil Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau asset melebihi Rp20.000.000.000.000,00 (dua puluh triliun rupiah). Pelaksanaan Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau asset yang terjadi di Indonesia diatur dalam Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) Jo. Peraturan Pemerintah Nomor 57 Tahun 2010 tentang Penggabungan atau Peleburan Badan Usaha dan Pengambilalihan Saham Perusahaan Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“PP No. 57/2010”). Sanksi terhadap pelaku usaha yang tidak/terlambat melakukan Notifikasi ke KPPU sesuai dengan batas paling lama yaitu 30 (tiga puluh) hari sejak tanggal Penggabungan, Peleburan atau Pengambilalihan Aset/Saham berlaku efektif secara yuridis, yang mana sanksi tersebut diatur dalam Pasal 6 PP No. 57/2010 adalah

PENGGABUNGAN, PELEBURAN ATAU PENGAMBILALIHAN SAHAM DAN/ATAU ASET DARI SUDUT PANDANG HUKUM PERSAINGAN USAHA DAN PERAN KPPU Read More »

Analysis of the Interpretation of Pre-Trial Decision Number 10/Pid.Pra/2024/Bandung District Court Regarding the Revocation of Pegi Setiawan’s Suspect Status

Domestic Reference, News & Legal Update / M Kamal

Image Source : https://www.freepik.com/premium-vector/bad-policeman-officer-cop-character-arrestinterrogatessuspect_12861406.htm?epik=dj0yJnU9UUhXMEVwV2RTR1ZzOHo2Tmt3andsLXhITmFHa191WmcmcD0wJm49MHB5QXgxdTRUZkZFTTJweU5BcGM1ZyZ0PUFBQUFBR2FqV3pZ From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatam, S.H., Muhammad Ardin Ardiansyah,S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). A. Background A pre-trial decision is a legal remedy that can be filed by a suspect, their family, or their legal representative in the law enforcement process in Indonesia. The purpose of a pre-trial is to examine the legality of an arrest, detention, termination of investigation or prosecution, and to seek compensation and rehabilitation for someone who feels their rights have been violated during the legal process. In pre-trial case number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, with the respondent Pegi Setiawan, there are several legal aspects that need to be analyzed to understand the decision moreover its became a trending topic in the mass media as reported by the BBC with the title ” Pegi Setiawan bebas, hakim menyatakan penetapan tersangka dalam kasus Vina ‘tidak sah dan batal demi hukum – Polisi diperintahkan pulihkan nama baik Pegi” which was published on July 2, 2024 (as the link attached) This raises the subsequent question: how should this decision be interpreted? B. Legal Basis 1. The 1945 Constitution of the Republic of Indonesia (“UUD NRI 1945”) 2. Law Number 8 of 1981 on the Criminal Procedure Code (“KUHAP”) 3. Supreme Court Regulation Number 4 of 2016 on the Prohibition of Reconsideration of Pre-Trial Decisions. (“Perma 4/2016“) In the pre-trial decision number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, the judge ruled that the arrest and detention of Pegi Setiawan were legally invalid. This decision was based on several legal considerations, including: Article 1 point 10 of KUHAP: “Pre-trial is the authority of the district court to examine and decide in the manner regulated in this law, concerning: a. the legality or illegality of an arrest or detention upon petition of the suspect or their family or another party on behalf of the suspect; b. the legality or illegality of the termination of an investigation or prosecution upon petition for the sake of upholding law and justice; c. a petition for compensation or rehabilitation by a suspect or their family or another party on their behalf whose case is not submitted to the court.” Article 2 paragraph (3) of Perma 4/2016: “(3) A pre-trial decision that grants a petition regarding the illegality of the suspect’s designation does not nullify the Investigator’s authority to designate the person as a suspect again after meeting at least two new valid pieces of evidence, different from the previous evidence related to the matter of the case.” In the pre-trial case number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, Pegi Setiawan filed a petition to revoke his suspect status designated by the investigator. The Bandung District Court decided to grant the petition with the following legal considerations: 1. Compliance with the Legal Procedure for Suspect Designation The court found that the designation of Pegi Setiawan as a suspect did not comply with the prevailing legal procedures. Based on Article 77 of KUHAP, the designation of a suspect must be based on sufficient preliminary evidence. In this case, the investigator failed to present sufficient preliminary evidence to designate Pegi Setiawan as a suspect. 2. Human Rights of the Suspect The decision also considered the human rights of the suspect as stipulated in Article 28D paragraph (1) of UUD NRI 1945, which states that every person has the right to recognition, guarantees, protection, and fair legal certainty as well as equal treatment before the law. The designation of a suspect without sufficient evidence was deemed to violate these human rights. 3. Upholding the Principle of Legality The court emphasized the importance of the principle of legality in the law enforcement process. Investigators are required to comply with the provisions of the prevailing laws at every stage of the investigation. In this case, the investigator did not adhere to the legal procedures outlined in KUHAP, rendering the suspect designation invalid. C. Conclusion The pre-trial decision number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, which revoked the suspect status of Pegi Setiawan, provides an important lesson on fair and lawful law enforcement. This decision affirms that the designation of a suspect must be based on sufficient preliminary evidence and comply with the prevailing legal provisions. The human rights of suspects must be protected, and the principle of legality must be upheld at every stage of the law enforcement process. The interpretation of this decision provides guidance for law enforcement officials to always act in accordance with existing regulations, ensuring legal certainty and fair treatment for all citizens. References: • https://www.bbc.com/indonesia/articles/c97dl9qx4glo For further information, please call: – partner@amoktarina.co – n.pasaribu@amoktarina.co – 0817779122

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The Mechanism for Granting Golden Visas, How Indonesia Regulations Regulate It?

Leave a Comment / Domestic Reference, International Update, News & Legal Update / M Kamal

Source : https://www.flaticon.com/free-icon/conversation_610407 From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., C.L.A., Ethania Surinitulo Duha, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Moving a person, from one country to another, whether for a tourist visit, or for work, is common nowadays. Many countries, including Indonesia, have immigration-related regulations to deal with this, to provide clear and clear procedures, mechanisms, and restrictions. Until it comes down to legal certainty. In this move, we usually find the phrase “Residence permit” which is a legal instrument that is the basis for foreign nationals to stay for some time in Indonesia. However, this must begin with having a visa first. This then becomes interesting, because as we know, recently, the mass media has been hotly talking about giving a Golden Visa to Shin Tae-Yong, through the news “Diterima Shin Tae Yong, Apa Itu Golden Visa?” which was published on July 25th, 2024 (as the link attached). Then the next question is, what is the Golden Visa? Is there any difference with visas in general? Let’s take a look at the following explanation! Legal Basis Law Number 6 of 2011 concerning Immigration as amended by Law Number 6 of 2023 concerning Determination of Government Regulations In Lieu of Law Number 2 of 2022 concerning About Job Creation Become Law (“Law 6/2011“) Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 22 of 2023 concerning Visas and Residence Permits (“Permenkumham 22/2023“) Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2024 concerning Amendments to the Regulation of the Minister of Law and Human Rights Number 22 of 2023 concerning Visas and Residence Permits (“Permenkumham 11/2024“) Before we dive further into the golden visa itself, let’s look at the definition of a visa from Article 1 number 18 of Law 6/2011 as follows : “The Visa of the Republic of Indonesia, hereinafter referred to as the Visa, is a written information, both manually and electronically, given by the official authorized to travel to Indonesia Territory and is the basis for the granting of a Residence permit.” Looking at this definition, a visa is given to a foreigner, as a residence permit for a person for several periods in Indonesia. Furthermore, the visa is the basis for granting a residence permit, which has the following definition, in Article 1 number 21 of Law 6/2011 : “A Residence Permit is a permit granted to a Foreigner by an Immigration Officer or a foreign service official either manually or electronically to be in Indonesia Territory.” Visas themselves, along with residence permits, are divided into several types. For example, for visas themselves, they are divided into 2 (two), namely visit visas, and limited stay visas (Article 3 paragraph 1 of Permenkumham 22/2023), but furthermore, Indonesia also recognizes diplomatic visas and service visas as stated in Article 34 of Law 6/2011. However, through Permenkumham 22/2023, Indonesia issued the latest visa, namely the golden visa. This is stated in Chapter V of the Golden Visa. Article 184 of Permenkumham 22/2023 states “Golden Visa is a grouping of Limited Stay Visas, Limited Stay Permits, Permanent Stay Permits, and Re-entry Permits for a certain period of time.” The golden visa itself can be used for investment, family reunification, repatriation, and a second home. The validity can be valid for 5 (five) years, or 10 (ten) years. (Article 185 of Permenkumham 22/2023) Going deeper, let’s discuss each of the uses of the golden visa, as follows: Investment, which may be given to a Foreigner as an individual investor who intends to establish a company in Indonesia, or who does not intend to establish a company in Indonesia, who will serve as a member of the board of directors or a member of the board of commissioners in a company to be established in Indonesia that is a branch or subsidiary of a company outside the Territory of Indonesia, and a Foreigner a representative of a holding company abroad, who make visits or duties to branches or subsidiaries in Indonesia. (Article 186 paragraph 1 of Permenkumham 11/2024) Family Reunification, which can be granted to foreigners who join their husband or wife as holders of Limited Stay Permits or Permanent Residence Permits, children who are not yet 18 (eighteen) years old and unmarried who join their fathers and/or mothers who hold Limited Stay Permits or Permanent Stay Permits; and foreigners who join with children of holders of Limited Stay Permits or Permanent Stay Permits. (Article 187 of Permenkumham 22/2023) Repatriation, which can be given to former Indonesia citizens who will live without a Guarantor, and the descendants of former Indonesia citizens at most the second degree without a Guarantor. (Article 188 of Permenkumham 22/2023) Second home, which can be given to second homes, special skills, world figures, and elderly foreigners aged 55 (fifty-five) years or older. (Article 189 of Permenkumham 11/2024) Therefore, this is a breakthrough that will make it easier for foreigners to be able to contribute more, but of course, the implementation of the golden visa regulation, must be with optimal synergy and coordination. Conclusion It can be concluded that the granting of Golden Visa is a good and useful breakthrough. This can certainly open up good opportunities for foreigners who want to stay longer and contribute positively in Indonesia. However, of course, in its implementation, supervision from related agencies is required, so that the provision can be effective and on target, which in the end produces the same opportunities, and is beneficial for Indonesia. References : https://www.liputan6.com/hot/read/5654095/diterima-shin-tae-yong-apa-itu-golden-visa For further information, please call: partner@amoktarina.co pasaribu@amoktarina.co 0817779122

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Analysis of Regulations on the Birth of Children of Indonesian Descent Outside of Marriage Occurring Outside Indonesian Territory

Leave a Comment / Domestic Reference, News & Legal Update / Kamal

Image Source : https://www.freepik.com/free-vector/wedding-concept-illustration_7171680.htm#query=marriage&position=29&from_view=search&track=sph&uuid=80302d1d-1c38-4c2d-9c47-fba7fafd3183 From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Ricki Rachmad Aulia Nasution, S.H. A. Background Marriage is an important and sacred event for all citizens. This is because through marriage, an individual will cause a relationship bound by rights and obligations to the marriage. Of course, as the purpose of marriage, it will produce descendants. Today, however, there are several status classifications of these “descendants”, or in general they can be referred to as children. For the status of children themselves, there is a classification, namely legitimate children born from marriages that are religiously recognized and legally valid, and children born outside marriage religiously and legally. Seeing the increasingly dynamic development, of course this in practice can happen to an Indonesian Citizen (“WNI”) and Foreign Citizen (“WNA”), who can become a child born out of wedlock and born outside the territory of Indonesia. On this matter, the next question becomes, what is the legal certainty and citizenship for the child? B. Legal Basis 1. Law Number 1 of 1974 concerning Marriage j.o Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage. (“Law No.16/2019”) 2. Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection jo. Law Number 1 of 2023 concerning the Criminal Code. (“Law No. 35/2014”) 3. Law Number 12 of 2006 concerning Indonesian Citizenship. (“Law No. 12/2006”) 4. Law Number 23 of 2006 concerning Population Administration jo. Law Number 24 of 2013 concerning Amendments to Law Number 23 of 2006 concerning Population Administration. (“Law No.23/2006”) 5. Government Regulation Number 40 of 2023 concerning the Fourth Amendment to Government Regulation Number 31 of 2013 concerning Implementing Regulations of Law Number 6 of 2011 concerning Immigration. (“Government Regulation No.40/2023”). 6. Decision of the Constitutional Court of the Republic of Indonesia Number 46/PUU-VIII/2010 (“Constitutional Court Decision No.46/2010”). In principle, the birth of a child in a marriage is an inseparable part of human survival to continue the descendants produced by legal or unmarried couples. We can see by definition in Article 42 and Article 43 paragraph (1) of Law No.1/1974 explains that: Article 42 of Law No.1/1974: “A legitimate child is a child born in or as a result of a legal marriage.” Article 43 paragraph (1) of Law No.1/1974 jo Constitutional Court Decision No.46/2010: “A child born out of wedlock has a civil relationship with his mother and his mother’s family and with a man as his father which can be proven based on science and technology and/or other evidence according to law to have a blood relationship, including a civil relationship with his father’s family” Based on the two provisions above, it should be noted, that the civil relationship of children outside marriage, only to their mothers. But what if we look at the context from the citizenship side? Furthermore, before looking at the citizenship aspect, it is necessary to know that for children’s rights first, we can refer to the provisions of Article 1 paragraph 12 of Law No. 35/2014, which states that: “Children’s rights are part of human rights that must be guaranteed, protected, and fulfilled by parents, families, communities, states, governments, and local governments.”. Every child as an individual has human rights that must be guaranteed and recognized, so that with the differences in the status of children previously described, there will be no distinction between the rights of a child. Basically, children born outside the legal marriage of WNI and WNA couples, then the child is an WNI because there are provisions in citizenship regulations. This has been strengthened by the provisions in Article 4 letter h, and Article 5 paragraph (1) of Law No.12/2006 which states: Article 4 letter h of Law No.12/2006: “A child born out of legal wedlock to a Foreign Citizen mother who is recognized by an Indonesian father as his child and the recognition is made before the child turns 18 (eighteen) years old or unmarried;” Article 5 paragraph (1) of Law No.12/2006 “Children of Indonesian citizens born outside of legal marriage, not yet 18 (eighteen) years old and unmarried legally recognized by their foreign fathers are still recognized as Indonesian citizens.” Looking at the provisions above, it can be seen that children born outside marriage between WNI and WNA, either by lineage through father, or mother are still recognized as WNI. After knowing his citizenship status, the next step is administrative registration related to the child’s documents. That every child born outside the territory of Indonesia must be registered by the Indonesian representative and reported to the local civil registry agency. Even though the child was born outside the territory of Indonesia, the child born still receives the same registration treatment in administrative matters, as explained in Article 29 of Law No.23/2006 which reads: (1) “The birth of an Indonesian citizen outside the territory of the Republic of Indonesia must be recorded at the competent agency in the local country and reported to the Representative of the Republic of Indonesia. (2) If the local country as referred to in paragraph (1) does not provide birth registration for foreigners, the registration shall be carried out at the local Representative of the Republic of Indonesia. (3) The Representative of the Republic of Indonesia as referred to in paragraph (2) records the event of birth in the Birth Certificate Register and issues a Birth Certificate Citation. (4) Birth Registration as referred to in paragraph (1) and paragraph (2) shall be reported to the Implementing Agency no later than 30 (thirty) days after the Indonesian citizen concerned returns to Indonesia” As required by regulations, later after the child turns 18 (eighteen) years old, the child must choose his nationality. This is in accordance with Article 6 paragraph 1 of Law No. 12/2006. This must be done considering that Indonesia does not recognize the concept of dual citizenship in

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Regulatory Analysis of the Position of Supreme Court Legal Products in the Hierarchy of Laws and Regulations

Leave a Comment / Domestic Reference, News & Legal Update / Kamal

Image Source: https://www.freepik.com/free-vector/judges-court-hearing-illustration-courtroom-interior-background_3264805.htm#fromView=search&page=2&position=2&uuid=65cb1fa8-87a9-4d87-b5e2-7a40dd13cb5c 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

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