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Expert presented by Applicant who was also former Constitutional Judge Harjono was delivered his expertise at judicial review session on Act of Arbitrary and Alternative Dispute Resolution (Undang-Undang Arbitrase dan Alternatif Penyelesaian Sengketa) on Tuesday (30/3) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie.

 

 

Former Constitutional Judge Harjono was presented as expert at judicial review session on Arbitrary and Alternative Dispute Resolution Case (Perkara Pengujian Undang-Undang Arbitrase dan Alternatif Penyelesaian Sengketa) by PT Indiratex Spindo as Applicant on Monday (30/3). Harjono delivered his expertise in front of plenary judge led by Deputy Chief of the Constitutional Court (Wakil Ketua Mahkamah Konstitusi) Anwar Usman.

The constitutional law expert delivered his expertise related with judicial review on Article 67 (1) and Article 71 Act of Alternative Dispute Resolution (UU Alternatif Penyelesaian Sengketa). As known, both articles regulate norms related with acknowledgement of international arbitrary award implementation.

According to Harjono, after the Round Table Conference (Konferensi Meja Bundar –KMB) between Dutch and Indonesia government during independence era, an issue raised on Indonesia legal system concerning on the enforcement of international treaties which ever agreed by the Dutch colonial government. The issue was whether or not the agreements remain valid in Indonesia system after Independence.  

Against the problem, the Supreme Court (Mahkamah Agung –MA) in deciding acknowledgement petitions and international arbitration award implementation argued that Indonesia was not bound with prevailing treaties made by Dutch Government. Therefore, provisions that regulated on acknowledgement and award implementation basically wasn’t international treaty, rather it was arbitrary provisions regulated on Article 615 until 651 of the Civil Procedure Rules (Reglemen Acara Perdata –RAP). 

Through the MA Verdict on cassation from Verdict No. 228/1979 dated June 10, 1981, the MA stated foreign court verdicts cannot be applied in Indonesia and transition treaties between Indonesia-Dutch didn’t bound Indonesia government. It was because there was no obligation for Indonesia to obey international legal validated by Dutch.

In 1981, Haryono added, Indonesia government was ratified New York Convention 1958 of Recognition and Enforcement of Foreign Arbitration Award by Presidential Decree (Keputusan Presiden –Keppres) No. 34 Year 1981. However, from previous cassation verdict, Keppres No. 34 Tahun 1981 that was ratification from New York Convention, it instead declared not automatically made the New York Convention could be determined, until after the government released legislation implementation.

However, despite the MA declared that the 1958 New York Convention cannot automatically implemented before the government made legislation implementation, Indonesian government actually had never made the regulation as required by the Supreme Court, the implementing legislation. Indonesian government was also never revoked Presidential Decree 34 Year 1981. “It means, (Indonesia government, red.) still expressed their attitude to be bound by the 1958 New York Convention,” explained Harjono.

Related with Presidential Decree No 34 Year 1981, the MA then released the Supreme Court Regulation (Peraturan Mahkamah Agung –PERMA) No. 1 Year 1990 of Foreign Arbitration Implementation Procedures (Tata Cara Pelaksanaan Arbitrase Asing). According to Harjono, the PERMA above then used by the MA for basis in decide acknowledgement petition and foreign arbitration implementation.

When the case viewed from academic and law studies perspectives, Harjono said the PERMA had caused controversy. It was because the MA which previously decide Keppres No. 34 Year 1981 to be implemented in Indonesia and ordered the Government to make implementing legislation.

"The issue is whether it is intended as the implementing legislation by the Supreme Court, is the PERMA made by the Supreme Court, PERMA No. 1 Year 1990? If it understood in the sense of the law, the government said that in this context, Indonesian government is the Indonesian state and the implementing legislation should be the prevailing acts. Therefore, the PERMA is not appropriate to accommodate the intention of implementing legislation, "said Harjono. (Yusti Nurul Agustin/Prasetyo Adi N.)

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