Insights

The implementation of a chamber system at the Supreme Court aims to maintain the unity of law application and consistency of the court decisions. The Chamber Plenary Meeting is one of the instruments to obtain the goal. From 19 November 2023 to 21 November 2023, several Chamber Plenary Meetings was held, producing several important notes such as the Legal Guidance of the Criminal, Civil and Religious Chambers. The following table elaborates the important points in Supreme Court Circular Letter Number 3 of 2023/Surat Edaran Mahkamah Agung No. 3 Tahun 2023 (“SEMA No. 3/2023”):

 

Criminal Chamber Legal Formulation	Important Points Change or Addition
When the Chief of the District Court grants warrant to search a building/office/agency/institution by the request of an investigator, the District Court Chief must declare in detail the place or room specifically for carrying out the search.	This is a guidance for the implementation of the Article 33 paragraph (1) of the Criminal Procedure Code/Kitab Undang-Undang Hukum Acara Pidana (“KUHAP”) which only requires that if investigators intends to search a house, they must obtain approval from the Chairman of the District Court.
The Chief of the District Court who gives approval for confiscation of narcotics evidence must include the net weight of the narcotics evidence that has been confiscated and requested in the approval.	This is a guidance for the implementation of the Article 38 paragraph (1) of the KUHAP, where the provisions for confiscation can only be carried out by investigators after obtaining an approval from the Chief of the local District Court and according to the Article 39 paragraph (1) letter d of the KUHAP, narcotics are other goods/objects that have a direct relationship with criminal acts committed.
If a defendant is charged under Article 114 paragraph (1) of Law No. 35 of 2009 of Narcotics jo. Government Regulation in Lieu of Law on Job Creation No. 2 of 2022 (“Narcotics Law”), the judge can impose a criminal sentence that exceeds the threat of a special minimum prison sentence.	This is a guidance for the implementation of the Article 114 paragraph (1) of the Narcotics Law where the minimum prison sentence that can be imposed on a defendant is 5 (five) years in prison.
Under SEMA No. 3/2023 on the application for Peninjauan Kembali/Judicial Review, if the argument of conflict between two/more different court decisions argued by the applicant for the Second Judicial Review/convict is not proven, the decision on the application for Judicial Review is declared rejected (ditolak).	This is a confirmation regarding the application for Judicial Review under the Supreme Court Circular Letter Number 10 of 2009/Surat Edaran Mahkamah Agung No. 10 Tahun 2009 (“SEMA No. 10/2009”) jo. Supreme Court Circular Letter Number 7 of 2014/Surat Edaran Mahkamah Agung No. 7 Tahun 2014 (“SEMA No. 7/2014″), where there is a provision that since the SEMA No. 10/2009, a Judicial Review can only be submitted once and if more than once it will be rejected. However, there is an exception to this, namely if there is a dissenting with 2 (two) or more Judicial Review decisions, then the Supreme Court can accept a request for Judicial Review of the case.
Civil Chamber Legal Formulation	Important Points Change or Addition
An agreement made between Indonesian private institutions and/or Indonesian individuals and a foreign party, with no Indonesian language translation cannot be used as a basis for annuling the agreement, unless it can be proven that the absence of the Indonesian language translation is due to bad faith by one of the parties.	This is a guidance regarding the provisions on the use of Indonesian language in a business agreement as stated in the Article 31 of Law No. 24 of 2009 on the Official Flag, Language and Emblem, and the National Anthem which states that the obligation to use Indonesian language in terms of agreements involving an Indonesian.
Workers/laborers who work based on a Fixed Term Employment Agreement and their employment relationship is terminated before the term of the agreement ends, the worker/laborer is entitled for the compensation money and compensation taking into account the term of the Fixed Term Employment Agreement.	This is a guidance to the compensation that can be received by workers/laborers from Government Regulation Number 35 of 2021 on Fixed Term Employment Agreements, Outsourcing, Working Time, Employment Relations, Rest Time, and Termination of Employment Relations, which states that workers/laborers who are terminated before the term of the Fixed Term Employment Agreement ends, hence the employers shall provide compensation towards workers/laborers.
The application for declaration of bankruptcy or PKPU against developer of apartments and/or flat (rumah susun) does not meet the requirements of simple authentication as intended in provisions of Article 8 paragraph (4) of Law Number 37 2004 on Bankruptcy and Postponement Debt Payment Obligations (“Bankruptcy Law”).	This exclude the PKPU/bankruptcy application against developer of apartments and/or house from the “simple authentication” criteria as stated in the Article 8 paragraph (4) of the Bankruptcy Law.
Religious Chamber Legal Formulation	Important Points Change or Addition
Regarding inheritance for biological children resulting from unregistered marriages under the Islamic religion, they can be designated as recipients of the obligatory will of the testator.	This is a guidance for the Article 7 paragraph (1) Chapter II Basics of Marriage Book I Marriage Law Compilation of Islamic Law where marriage can only be proven by a Marriage Certificate made by a Marriage Registrar. Furthermore, regarding the rules of Article 172 and Article 174, Chapter II, Heirs, Inheritance Law Book, Compilation of Islamic Law, which states that the groups that can receive inheritance include the group of child heirs. So the provision in the Supreme Court Circular is an additional provisions for biological children resulting from  unregistered marriages conducted according to the Islamic religion.
Revision of the provisions under Supreme Court Circular Letter No. 1 of 2022 which regulates regarding the divorce on the basis of continuous quarrels and disagreements.	With the SEMA No. 3/2023, the divorce on the basis of continuous quarrels and disagreements must be followed by the lack of potential of reconciliation and living separately for at least 6 (six) months, unless there is proof of domestic violence.
Administrative Chamber Legal Formulation	Important Points Change or Addition
Revoke point A number 6 Administrative Chamber Legal Formulation year 2013 as stipulated in the Supreme Court Circular Letter Number 4 of 2014 (“SEMA No. 4/2014”).	The Supreme Court only able to provide opinion and advice on legal matters to state institutions and government institutions.

Written by: R. Bayu Perdana, Shabrina Hanifa, and Ali Mutthahari

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