On Thursday, March 31, 2015, the Faculty of Law UGM’s Unit for Research and Community Service (Unit PPM FH UGM) held its regular “Bulaksumur Legal Discussion” with the theme “Court Jurisdiction in Resolving Civil Cases Based on Claims of Unlawful Acts: General Court vs Religious Court.” On that occasion, Hartini, S.H., M.Si., a lecturer in the Department of Islamic Law at the Faculty of Law UGM, explained the intersections and connectivity between the jurisdictions of the General Court and the Religious Court.
In principle, Indonesia has two judicial institutions authorized to resolve civil disputes: the General Court and the Religious Court. Civil lawsuits may be filed on several grounds, including unlawful acts (Perbuatan Melawan Hukum/PMH). It has long been generally accepted that civil cases based on claims of unlawful acts fall under the absolute jurisdiction of courts within the General Court system. However, after the enactment of Law Number 3 of 2006, the jurisdiction of the Religious Court was expanded and modified. This expansion included, among others, the addition of authority to adjudicate sharia economic disputes, while the changes included the abolition of the option rights in inheritance cases and the addition of a special provision in Article 50 paragraph (2) regarding the settlement of ownership disputes or other disputes. An overlap arises when unlawful acts are connected to inheritance matters involving Muslim heirs.
According to Article 1365 of the Indonesian Civil Code, an unlawful act is defined as: “Every unlawful act that causes harm to another person obliges the person whose fault caused the harm to compensate for such losses.” The elements that must be fulfilled in an unlawful act include the existence of an act, the unlawfulness of the act, fault on the part of the perpetrator, losses suffered by the victim, and a causal relationship between the act and the losses.
Before 1919, unlawful acts were interpreted narrowly due to the influence of legalism. The term used was onrechtmatigedaad, meaning an act violating statutory law, implying that an act would only be considered unlawful if it contradicted legislation. This understanding was based on the Arrest Hoge Raad of January 6, 1905 in the Singer Naaimachine case and the Arrest Hoge Raad of June 10, 1910 in the Zutphenese Juffrouw case, where the concept was interpreted as onwetnalaghten, requiring intentional conduct.
After 1919, through the Lindenbaum vs. Cohen case on January 31, 1919, the meaning of unlawfulness was significantly broadened. An unlawful act came to include acts or omissions that violate the rights of others, conflict with legal obligations of the actor, contradict morality, or violate standards of due care and propriety within society regarding other persons or their property.
Law Number 7 of 1989 concerning Religious Courts, in Article 50, stipulated that in the event of disputes concerning ownership rights or other civil matters in cases referred to in Article 49, the disputed object must first be decided by a court within the General Court system. This provision was amended by Law Number 3 of 2006 through the addition of paragraph (2) to Article 50, which states that if the ownership dispute involves parties who are all Muslims, the dispute shall be decided by the Religious Court together with the matters referred to in Article 49. However, it should be clarified that this provision does not explicitly revoke the authority of the General Court to adjudicate cases based on unlawful acts.
Unlawful acts are considered a “blanket norm,” meaning that the implementation of Article 1365 of the Civil Code still requires materialization through provisions outside the Civil Code. Therefore, unlawful act cases are always connected to a principal matter such as sale and purchase, lease agreements, debts, inheritance, marriage, and so forth. In civil cases, parties are generally free to file lawsuits, provided procedural requirements are met. Civil judges are also prohibited from rejecting cases on the grounds that no law exists. Judges may engage in legal discovery and are even granted flexibility to apply legal construction methods, which are restricted in criminal cases. Ideally, defendants should have the right to submit an absolute jurisdiction exception, or, if no such exception is raised, judges in General Courts should declare themselves absolutely incompetent to hear the case. In practice, inheritance disputes among Muslims that involve claims of unlawful acts are brought before both General Courts and Religious Courts.
Differences in perception among judges within the General Court system regarding unlawful acts in Islamic inheritance disputes still exist. Some judges continue to reject absolute jurisdiction exceptions raised by defendants. For example, the Rangkasbitung District Court Decision dated January 26, 2012 No. 01/Pdt.G/2011/PN.Rkb was overturned by the Banten High Court Decision No. 32/Pdt.G/2012/PT.Btn. In inheritance cases based on unlawful acts, defendants submitted absolute jurisdiction exceptions which were accepted by the District Court, such as in Blitar District Court Decision No. 45/Pdt.G/2014/PN.Blt. The term “connectivity” in Indonesian may be translated as “konektivitas,” meaning interconnectedness or a state of connection.
Based on Article 50 of Law Number 3 of 2006, it is now clear that Religious Courts are authorized to examine and decide ownership disputes and other disputes that fall under their absolute jurisdiction, including Islamic inheritance cases. When Religious Courts are authorized to resolve ownership or other civil disputes involving Muslim parties, this authority also encompasses unlawful act cases. Even without an exception being raised, some courts within the General Court system have declared themselves absolutely incompetent, such as the Selong District Court Decision No. 44/Pdt.G/2006/PN.Sel, which was upheld by the Mataram High Court Decision No. 33/Pdt/2007/PT.Mtr and Cassation Decision No. 30 K/Pdt/2008. In inheritance disputes based on unlawful acts, defendants submitted absolute jurisdiction exceptions which were accepted by the District Court. (Febri/Eka)
