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Implementation Of E-litigation: The Main Alternatives Of Case Settlement In The Pandemic

Since the first case of Covid-19 in March 2020 in Indonesia, President Joko Widodo has issued an appeal to all Indonesians to work from home. This appeal aims to reduce the potential for a wider spread of Covid-19.

Judicial institutions are also playing their part to prevent the potential spread of Covid-19 by the implementation of online trials (E-Litigation). This is a follow-up to the issuance of the Supreme Court Circular Letter Number 1 of 2020 on Adjustments to the Work System of Judges and Judicial Apparatus in Prevention of the Spread of Covid-19 within the Supreme Court and Lower Judiciary Bodies. (hereinafter referred to as SEMA No. 1 Tahun 2020) which was amended by the issuance of SEMA No. 2 of 2020 and thereafter amended by SEMA No. 3 of 2020. Based on the Supreme Court Circular Letter, courts throughout Indonesia are expected to carry out online trials (E-Litigation).

In fact, the procedure for the implementation of E-Litigation in Indonesian courts is not something new. E-Litigation was introduced by the Supreme Court of the Republic of Indonesia in the last few years with the issuance of Regulation of the Supreme Court of the Republic of Indonesia (hereinafter referred to as PERMA) Number 3 of 2018 on Electronic Administration of Case at Court, subsequently replaced by the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2019 concerning Electronic Administration of Case at Court. However, since the PERMA was published, the implementation of E-Litigation had not been implemented evenly in all courts in Indonesia. The Pandemic has changed this.

Since the Covid-19 pandemic broke out, the Supreme Court expects all courts in Indonesia to start implementing E-Litigation as the main mode of case handling in order to prevent crowds in court buildings. In theory, the implementation of E-Litigation is expected to increase the effectiveness and efficiency of case handling, especially for parties who are domiciled outside the jurisdiction of the court where the case is heard. This is obviously because these parties do not need to travel now between regions, reducing the potential of contagion between one area to another.

The biggest obstacle to the implementation of E-Litigation is that information technology hardware and internet access is not evenly distributed throughout Indonesia. This was conveyed by the Chairman of the Indonesian Advocates Association (PERADI) and senior Advocates, Dr. Luhut M.P. Pangaribuan, S.H., LL.M., that despite the signing of a memorandum of understanding regarding the use of video conferences in criminal case examinations, especially for examining witnesses; the obstacles to the availability of electronic devices in each instance, the position of the defendant, and the presence of related parties (witnesses) becomes an obstacles.1

This is surely an important note for the Supreme Court to evaluate the effectiveness and fairness of the E-Litigation system. Equal access to justice, both substantive and procedural, must be protected for Accused persons.

In civil cases, Article 20 of PERMA No. 1 of 2019 provide that approval from both the Plaintiff and Defendant must be given before E-Litigation is implemented for that hearing. This requirement can sometimes be one of the inhibiting reasons in the implementation of E-Litigation. If one of the parties does not agree to carry out E-Litigation, the trial will continue to be carried out in a conventional manner. This is clearly non-negotiable since it relates to the principle of fair trial. Although in a pandemic like this, Judges are still bound by procedural rules and difficult litigants can insist on face to face hearings even where Judges want to prioritize health aspects and minimize the risk of contagion.

Overall, there are clearly arguments for stricter rules on E-Litigation and its implementation. E-Litigation is arguably a good solution in the midst of the outbreak of Covid-19. In the future, we hope that E-Litigation will be implemented more consistently throughout Indonesia, even if the situation has returned to normal. ALH/HES