The existence of judge's authority norm in preliminary review as an embodiment of the principle of immediate procedures in civil procedure law

Judge's authority in formal examination in the scope of State Administrative Court and Constitutional Court. The formal requirements as stipulated in the civil procedural law provide a reason for the defendant to submit an exception against the lawsuit submitted by the plaintiff to be declared inadmissible by the panel of judges (Putra et al., 2020). It is necessary to find new laws to reform the civil justice bureaucracy in Indonesia. Matters relating to administration and formal requirements for filing a lawsuit can be done in a preliminary examination mechanism to improve a lawsuit that has not meet the requirements in formal civil provisions, where the preliminary examination hearing mechanism has been established and implemented in other general court jurisdictions, namely in the state procedural law of the administrative court which is known as the dismissal procedure mechanism/preparatory examination, and the procedural law of the constitutional court known as the preliminary review.

Deliberative meeting, which commonly also known as the Dismissal Process, or screening stage, is regulated in Article 62 of Law No. 5 of 1986 concerning the State Administrative Court (PTUN)¹. In this deliberative meeting, the chief of the court examines the submitted lawsuit, whether the lawsuit meets the requirements as regulated in the State Administrative Court Law and whether it is within the authority of the State Administrative Court to try it. This provision was made considering that the State Administrative Court is a new agency in Indonesia, so many people still do not fully understand the functions, duties, and authority of the State Administrative Court, as well as the procedural law that applies to it. This means that if all lawsuits go straight to the Trial Examination, it is feared that it will only be a waste of time, not only for the Plaintiff but also for the Court and the Defendant, even though the Defendant here is a State Administrative Official who generally has quite busy executive duties (Zurahmah, 2014).

A conclusion can be drawn that the consideration for doing the dismissal procedure is to create efficiency in the procedural process in PTUN trials. Based on the argument above, submitting all lawsuits without a filter will waste time and material for the defendant officials carrying out a mandate/functional public interest. This kind of proceeding should also be carried out in civil trials, which have a higher urgency regarding the private interests of each individual. However, to date there is no process similar to the dismissal procedure in the PTUN, where in practice, many declared inadmissible decisions occur due to defects in the formal requirements in civil trials. This really hinders the realization of the principle of fast, simple and low-cost justice because the plaintiff has to repeatedly file a lawsuit just because of a formal error without any guidance or direction from the Panel of Judges.

The process or stage of examining formal requirements before examining a case in court can be found in the procedural law of the Constitutional Court, which is called preliminary examination. Clarity of petition's material is one of the areas of preliminary examination, so the issue requested for trial can be formulated and understood clearly, both by the applicant and by the constitutional judge. This is certainly necessary so that the trial examination can be carried out effectively and focus on the requested issues. In this preliminary examination, the constitutional judge is obliged to provide advice to the applicant on completing and/or revising the application. The provisions of Article 39 paragraph (2) of the Constitutional Court Law Law of the Republic of Indonesia No. 5 “On Administrative Court”. (1986, November). Retrieved from https://peraturan.bpk.go.id/Details/46914/uu-no-5-tahun-1986. Law of the Republic of Indonesia No. 24 “On Constitutional Court”. (2003, February). Retrieved from https://peraturan.bpk.go.id/Details/44069/uu-no-24-tahun-2003. provide a time limit for applicants to complete or revise their application of no later than 14 (fourteen) days.

In terms of determining the extent of the case, and the initiative to file or end the case is determined entirely by the parties involved in the case, where in that case the judge must be passive. However, after a civil case is officially submitted by the litigant to the Court, the Judge must show an active attitude. However, in practice, procedural law actually becomes an obstacle in achieving the material truth of a case or even becomes an obstacle in accessing justice. This is reflected in the number of lawsuits declared as Not Accepted (NO), where the court decided not to investigate further regarding the subject of the case being filed. If examine it more deeply, civil matters are the highest volume of problems in society. Thus, this correlates with the effectiveness and efficiency of the court in implementing procedural law or the trial process. The court decided that the NO Decision contributed to the obstruction of law enforcement and access to material justice needed by the community.

Normatively, the existence of judges does not mean that judges are obliged to provide direction or guidance regarding the examination of formal requirements in a separate process, and judges also have no attachment or obligation to provide direction or guidance to litigants regarding the completion of formal requirements properly and in accordance with the rules. Judges play an important role in accelerating access to justice for anyone who needs it (Ramadhan & Rafiqi, 2021). However, in practice judges can rely on the principles of civil procedural law, one of which is the principle of active judge. In practice in Indonesia, judges are trapped in the paradigm of passive judges, which is misunderstood to mean that judges cannot interfere at all in a civil trial. In fact, passive judges in the civil justice process are limited to not interfere in determining the extent of the case. So, the judge has the authority to provide guidance and direction to the plaintiffs to guide them in improving all their formal requirements.

If viewed from the perspective of legal benefits, according to John Stuart Mill, legal benefits are seen from the elements of enjoyment, prosperity, and happiness as well as minimizing suffering in the implementation of the law in society (Septiansyah & Ghalib, 2018). The judge's actions or initiatives based on the principle of an active judge to provide direction and input to the parties in completing and improving their formal requirements will facilitate access to justice in society and reduce the number of cases being decided by NO Decision. The principle of utility must be prioritized in an effort to carry out prosperity and order between individuals in society (Pratiwi, 2022). With many cases being decided with a NO Decision, it will cause the community suffering because they have to go through a long and drawn-out trial or legal process.

In practice, civil procedural law sometimes becomes an obstacle in achieving material truth in a case or accessing justice. Many “Lawsuit is Unacceptable” decisions limit people's access to justice. Civil judges should be able to provide direction to litigants to ensure formal requirements are met. This will make it easier for the public to access justice and reduce the “Lawsuit is Unacceptable” decisions.

Judges being active in providing direction, is in accordance with the principle of active judges, helping to achieve legal benefits and justice in society. Judges do not have a normative obligation to provide guidance on formal requirements, but as a practical matter, they can do so to ensure the process runs smoothly. The judge may not interfere with the extent of the subject of the case, which is determined by the litigants. In the context of the dynamics of the civil trial process, with the large number of “Lawsuit is Unacceptable” decisions, judges should provide direction and wisdom to litigants regarding improving formal requirements. Society needs this guidance for better access to justice.

S. Sunarto (2016) highlighted the implementation of the active principle, whether the preliminary review had been conducted or not. He stated that judge has the power to be proactive on resolving trials. Scientist concluded that judge has the right to inform and educate the parties involved in the trial about the procedure and formal requirements for conducting a trial. The research delves into the longstanding debate surrounding the involvement of civil law judges in Indonesia, specifically focusing on the principle of passive judgeship versus active judgeship. Drawing from legal traditions within the Indonesian justice system, this research analyzed for a passive role of judges. According to this perspective, judges are expected to adhere strictly to established procedural laws, such as the HIR, which dictates that they refrain from making decisions on matters not explicitly raised by the plaintiff. This view emphasizes judges' responsibilities to oversee proceedings without actively interfering in the judicial process, thereby upholding the principle of passive judgeship.

On the other hand, S. Sunarto's study contends that judges should adopt an active role throughout the civil litigation process. This proactive approach entails judges actively engaging with parties involved in legal proceedings, providing guidance, and explaining legal rights and procedures. S. Sunarto's research underscores the importance of judges intervening to address formalities and streamline the legal process, particularly to minimize the occurrence of unfavourable decisions, such as cases being dismissed due to technicalities.

In comparing the results of the two research studies, several similarities and differences emerge. Firstly, both studies acknowledge the traditional view of passive judgeship as prevalent within the Indonesian legal system. However, while the first research maintains the importance of adhering strictly to this passive role, S. Sunarto's research emphasizes a shift towards a more active judgeship model. Regarding support or disagreement with conclusions, the first research may support its findings by emphasizing the importance of upholding established legal norms and traditions. It might be argued that maintaining a passive judgeship role ensures adherence to procedural fairness and consistency within the legal system. Conversely, S. Sunarto's research may argue that the active judgeship model is necessary to address shortcomings within the legal process, such as delays and inefficiencies, and to ensure access to justice for all parties involved.

While this research may prioritize upholding legal traditions and minimizing disruptions to established practices, S. Sunarto's research may prioritize innovation and adaptation to address contemporary challenges within the legal system. Through a comparative analysis of both research perspectives, the study seeks to provide a comprehensive understanding of the debate surrounding judges' roles in civil cases in Indonesia. By examining the implications of passive versus active judgeship principles at different stages of civil litigation, the research aims to contribute valuable insights to ongoing discussions on judicial reform and the administration of justice within the Indonesian legal system.

Conclusions

In the debate regarding the role of civil law judges in Indonesia, there are two conflicting views. Long-standing traditions in the Indonesian justice system recommend that judges act passively, in line with the principle of passive judges regulated in legislation, such as the Civil Procedure Law (HIR). This principle states that judges are not permitted to give decisions on matters that the plaintiff does not request. This traditional view also emphasizes that the judge's job is only to supervise the proceedings in accordance with the applicable stages and procedures, without actively interfering in the judicial process.

Meanwhile, within the scope of the PTUN and Constitutional Court, it is known that there is a form of implementation of the active judge principle, namely by establishing a mechanism of preparatory examination or the Dismissal Process as well as a Preliminary Examination which aims to perfect the lawsuit submitted to the court. In this process, the judge is required to provide advice to the plaintiff or applicant regarding formal matters that can potentially complicate and prolong a trial process of the case in the court of law.

The presence of judges in civil preparatory examinations has no legal basis. Still, it is only limited to basic principles or in the form of an appeal for judges to take active initiatives in the trial process. Until now, there has been no manifestation of the “fast” principle or the principle of access to justice within the scope of civil justice which can answer the problem of the accumulation of cases filed in the court as well as many cases being decided with the Lawsuit is Unacceptable decision. The existence of the judge's authority to provide advice or direction regarding procedures for completing or improving administrative and formal matters in a lawsuit is only an optional initiative, not an obligation that the judge must carry out.

Future research in this area could investigate the effectiveness and impact of different models of judicial behaviour in civil proceedings in Indonesia.

References

1. Afriana, A. (2022). Basic principles of passive and active judge in civil court. Journal of Bina Mulia Law, 7(1), 142-154. doi: 10.23920/Jbmh.V7i1.1078.

2. Fahren, O. (2020). The application of the principle of simple proof in bankruptcy cases in commercial courts (a special characteristic in the civil procedural law system). (PhD thesis, University of North Sumatra, Medan, Indonesia).

3. Fikriyah, U. (2019). The active role of judges in examining witness testimonies in trials: Towards professional judges in the era of information technology advancement. Al-Adalah, 22(2), article number 145. doi: 10.35719/Aladalah.V22i2.19.

4. Hidayat, D. (2023). Implementation and obstacles in civil dispute resolution. Indonesian Legal Development Journal, 5(1), 47-69. doi: 10.14710/jphi.v5i1.47-69.

5. Makalew, J.M., Korah, R., & Gerungan, C.A. (2023). Juridical analysis of the Niet ontvankelijke verklaard (no) lawsuit in land disputes in civil procedure law. Lex Administratum, 11(2).

6. Many, N., & Sofian, A. (2021). Free legal assistance (pro bono) as realization of access to justice for the poor in Indonesia. Media Information of Social Welfare Research, 44(3), 269-278.

7. Marzuki, P.M. (2019). Legal research: Revised edition. Jakarta: Kencana Prenada Media Group.

8. Merta, M.M., & Junaidi, J. (2020). Passive judge principles in Reglement Op De Rechtsvordering (R.V) and active judge principles in Herziene Indonesisch Reglement (HIR) in the Resolution of civil cases in court. Journal of Legal Science, 13(1), 60-77. doi: 10.31942/jqi.v13i1.3426.

9. Prasetya, U. (2020). Analysis of the Audi et alteram partem principle in civil case trial process (Case No. 20/Pdt.G/2019/PN Pwr). Amnesty: Law Journal, 2(2), 57-75. doi: 10.37729/amnesti.v2i2.657.

10. Pratiwi, E. (2022). Jeremy Bentham's utilitarianism theory: Purpose of law or legal product testing method? Constitutional Journal, 19(2), 268-293. doi: 10.31078/jk1922.

11. Putra, I.G.A.K.B.W.A., Widiati, I.A.P., & Ujianti, N.M.P. (2020). Non-receivable lawsuit (Niet Ontvankelijke Verklaard) in plaintiff divorce lawsuits in badung religious court. Legal Construction Journal, 1(2), 305-309. doi: 10.22225/jkh.2.1.2565.305-309.

12. Putra, R.H.M.H. (2023). Analysis of the basis of judges' consideration and legal consequences in rejecting divorce lawsuits that cannot be accepted (Niet Ontvankelijke Verklaard) in court from the perspective of civil procedure law. Unes Law Review, 6(2), 4843-4856. doi: 10.31933/unesrev.v6i2.1298.

13. Rahman, F., & Wicaksono, D.A. (2016). Existence and characteristics of conditional decisions of the constitutional court. Constitutional Journal, 13(2), 348-378. doi: 10.31078/jk1326.

14. Ramadhan, F., & Dwi Rafiqi, I. (2021). Study of constitutional court decisions cancelling all norms in the law. Legality: Jurnal Ilmiah Hukum, 29(2), 286-308. doi: 10.22219/ljih.v29i2.15434.

15. Rijanto, B. (2019). Module entitled history, sources, and principles of civil procedure law. Tangerang Selatan: Universitas Terbuka.

16. Sarmah, M., & Bohra, S. (2023). Right to speedy trial: Access to justice. Law Journal, 11(6), 965-983.

17. Septiansyah, Z.B., & Ghalib, M. (2018). Utilitarianism concept in legal philosophy and its implementation in Indonesia. Journal of Islamic Law and Social Institutions, 34(1), 27-34.

18. Sitorus, S. (2018). Legal efforts in civil cases (objection, appeal, cassation, judicial review and third-party objection). Hikmah Journal, 15(1), 63-71.

19. Suadi, H.A., & Hum, S.M. (2021). Renewal of civil procedure law in Indonesia. Jakarta: Prenadamedia Group.

20. Sultan, S. (2013). The value of justice in the principle of formal truth in civil cases: A perspective from islamic legal philosophy. (Doctoral dissertation, Islamic University of Alauddin Makassar, Makassar, Indonesia).

21. Sunarto, S. (2016). Principle of active judge in civil cases. Law and Justice Journal, 5(2), 249-276. doi: 10.25216/jhp.5.2.2016.249-276.

22. Toqsanbaeva, A.M.Q. (2023). The active role of the judge in the civil procedure in the context of the modern legislation. Science and Innovation, 1(8), 467-473. doi: 10.5281/zenodo.7443296.

23. Weda, N.K.D.N.I., Arjaya, I.M., & Seputra, I.P.G. (2021). Application of the active judge principle (dominus litis) in hearings at the state administrative court (Case study Decision No.1/G/2017/PTUN. DPS.). Journal of Legal Preferences, 2(1), 27-32. doi: 10.22225/jph.2.1.3048.27-32.

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