In general, the Indonesia and Japan relationship has been established for more than 50 years, but intensive legal cooperation between the two countries has been conducted for less than 15 years.
The Japan International Cooperation Agency has dispatched legal experts and Japanese lawyers such as Tsutomu Hiraishi, Sozaburo Mitamayama Kawata, and Tamaki Kakuda to Jakarta since 2003. And JICA has invited many judges and lawyers to participate in training. One of the most important contributions from Japan was the implantation of Japanese court-connected mediation (wakai) into the Indonesian legal system.
Although there are some court-connected mediation systems in various jurisdictions, Indonesia prefers to adopt the wakai system, since it is more suitable for Indonesia. In Japan, it has been quite effective in reducing the number of civil disputes since its establishment in 1923.
A thesis written by professor Shigeo Hozumi, titled “The Act for Conciliation of Civil Affairs About Leased Land and Houses After the Great Kanto Earthquake,” published in 1924 by Tokyo University, has shown us how the wakai system was effectively and successfully implemented in land disputes right after the Great Kanto Earthquake of 1923. Therefore, it’s no surprise that there were no land disputes after the big earthquake in Kobe in 1995.
Why should Indonesia adopt the wakai system?
Because Indonesia has a huge backlog of some 16,000 cases at the Supreme Court, level. This court receives up to 800 new cases every month. Of course there are some Japanese investors in the country who have encountered legal problems.
There is a legal step for reducing the backlog – by way of Supreme Court Regulation No. 1 of 2008 on “Court Connected Mediation,” which is basically adopted from the wakai system. The purpose of this regulation is to reduce the number of court cases.
Even though this regulation is for civil disputes, the idea also has been to implement such mediation in small criminal cases. This idea has created heavy pro and con debate among legal practitioners.
Another question is, why must the backlog of cases be reduced and court delays be eliminated? Basically, any form of court delay violates human rights principles. Court delays have taken many forms in developing countries.
Court delays are like riding a bus with many passengers in Jakarta, Bangkok or New Delhi. There is no guarantee of the exact time of departure and arrival; whether the driver has just finished drinking alcohol; whether the engine is in good condition; or whether the bus will arrive safely. In a nutshell, there is lots of uncertainty. In such a situation it is commonly said that “it is more important to know the judge than the law.”
The Supreme Court is the highest judicial institution in the country. The branches of courts in Indonesia are as follows: (1) general, (2) religious, (3) military and (4) administrative.
At the moment there have been various degrees of special extended jurisdiction, such as Children’s Court, Human Rights Court, Fishery Court, the Commercial Court, Labor Court, Anti-Corruption Court, Tax Court, Fishery Court. However the problem is the backlog of cases and court delays. Therefore, it is especially important for us to adopt the wakai system to reduce the number off civil cases.
Five causes of court delays:
• According to Indonesian law, any case from a lower court may go to the High Court and Supreme Court on appeal.
• There is no limit on the number of cases that may be appealed.
• The time between filing a case and hearing the case is unlimited, especially at the Supreme Court level.
• Although, to prevent case delay, the Supreme Court has issued a circular stating that any case brought to court should be completed in six months, not all lower courts comply with this.
• There are obstacles in law enforcement, and awareness among legal practitioners is still inadequate.
In short, it is not easy to overcome the court delays and backlog cases in the Indonesian judicial system. Therefore, to learn from Japan’s legal system is vital. At this point, to strengthen ties and legal cooperation between Indonesia and Japan is indispensable.
T.M. Luthfi Yazid, an Indonesian lawyer, is currently teaching at the Gakushuin University Faculty of Law. He is the editor of “WAKAI: A New Approach for Dispute Resolution” (2008) by professor Yoshiro Kusano of Gakushuin University. Views here are his alone (www.lyzlaw.com).
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