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Preventative Measures against COVID-19 by E-court and Social Distancing

“Within the provision concerning court proceedings, SEMA 1/2020 states that cases related to civil matters, religious civil matters, and national administrative matters are encouraged to be conducted by utilizing e-litigation, or electronic court proceedings”

Starting in the end of 2019, there has been an outbreak of diseases caused by the Coronavirus (“COVID-19”). On 11 March 2020, World Health Organization has stated that COVID-19 can be categorized as a pandemic. There have been more than 850,000 cases in more than 200 countries, and 42,158 people who have lost their lives and still counting till now. Therefore, WHO called on all countries to activate and scale up their emergency response mechanisms against COVID-19.

In relation to the WHO announcement, the President of the Republic of Indonesia has formally declared COVID-19 as a national disaster (non-natural disaster). Consequently, multiple ministries and authorized agencies in Indonesia have issued decrees and policies applicable to civil apparatus, as preventative measures against the spread of COVID-19, such as the Circular Letter of the Ministry of Health No. HK.02.01/MENKES/202/2020 concerning Self-isolation Protocol in Counteracting COVID-19.

Considering the nature of the viruses to spread by contagion, the most appropriate countermeasure would be to keep a reasonable distance between one another, which is also known as social distancing. Any event or other activity involving larger number of crowds is deemed to be harmful to the general public, including legal proceedings in courtrooms.

Prior to the spread of COVID-19, court proceedings have been made available via electronic means, or e-court, through the issuance of the Supreme Court Regulation No. 1 of 2019 concerning Court Administration and Court Proceedings via Electronic Means (“Perma 1/2019”).

Perma 1/2019 defines electronic court administration as the electronic process of document receipt, management, submission, and storage for every phase of legal proceedings for cases related to civil matters, religious civil matters, military administration matters, and national administration matters. On the other hand, electronic court proceedings or e-litigation is defined as the process of examination and adjudication which are conducted by the virtue of information technology.

Concluding from the aforementioned definitions, Perma 1/2019 allows for court proceedings to be conducted without a physical audience in the courtroom. Every phase of the legal proceedings, including the examination and adjudication, can be done electronically. Furthermore, Article 3 of the regulation states that the court proceedings in the Appellate Court and Supreme Court can be done electronically as well, insofar as the court proceedings in the National Court has been done electronically.

Having social distancing as a countermeasure against the spread of COVID-19, the Secretary of the Supreme Court has issued the Circular Letter No. 1 of 2020 concerning Adjustment of the Working System of Judges and Court Apparatus in Preventative Measure against the Spread of COVID-19 in the Scope of Supreme Court and Adjudicative Bodies in Lower Hierarchy (“SEMA 1/2020”). The circular letter stipulates matters of working system of the judges and court apparatus, court proceedings, implementation of events, and business expeditions.

Within the provision concerning court proceedings, SEMA 1/2020 states that cases related to civil matters, religious civil matters, and national administrative matters are encouraged to be conducted by utilizing e-litigation, or electronic court proceedings. This limitation applies because Perma 1/2019 only stipulates for cases related to such matters. Cases related to criminal matters, military criminal matters, and religious criminal matters, must be conducted conventionally through physical audience.

In an attempt of implementing social distancing throughout the spread of COVID-19, SEMA 1/2020 authorizes judges to postpone a court proceeding. However, such postponement may result in a complication in the future, especially related to criminal cases. In the event of continuous postponement, there is a high probability that the containment of the defendant will come to an end before the conclusion of the court proceedings. This incident can be harmful to the prosecutor and the general public. Therefore, for court proceedings which is of higher priority, SESMA 1/2020 authorizes judges to enforce a limitation and reasonable distance between the spectators. This authority is expected to minimize the spread of COVID-19 throughout the legal proceedings conducted in the courtrooms.

Author: Yohana Veronica Tanjung

Gaffar & Co. is an Indonesian Boutique Law Firm that focused on Commercial law Area include Dispute Resolution both litigation and non-litigation process.

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