Indonesia Civil Litigation
Indonesian civil proceedings are not adversarial, do not involve any jury system, and there is no ‘discovery’ of documents. Generally, civil proceedings in the district courts may take up to six months before an order is obtained. At the early stages of the proceedings (that is before the defendant is required to file a defence or any jurisdictional challenge), the parties are required to mediate with a view to amicably resolving their dispute.
No foreign judgments are recognised or are directly enforceable in Indonesia and the range of remedies and enforcement procedures differs from those found in common law jurisdictions and some civil law jurisdictions.
The Indonesian court system has long been a weak link in the nation’s copyright enforcement chain. The long-standing problem of judicial corruption, which is now officially acknowledged, combined with a lack of training and insufficient resources, have made the courts the graveyard of many piracy prosecutions. Weaknesses among the corps of prosecutors compound the problem. Most are poorly trained, especially with regard to IPR matters, and their assignments are frequently rotated, virtually foreclosing the possibility of improving the skills base.
Evidence is rarely preserved or presented properly, and judicial orders to destroy seized pirate product or production equipment are often ignored. Typically, either extremely light sentences are imposed, even on major commercial pirates, or else the case simply languishes and is never acted upon. As with enforcement generally, the experience of 1998-99 was slightly more positive, with a number of well-publicized convictions of video pirates in particular; but the forward progress has ground to a halt recently, with rare exceptions.
While the problems of Indonesia’s judicial system will not be solved easily or quickly, some steps could be taken immediately to help improve the situation. Specialized teams of prosecutors should be dedicated to piracy cases and given the proper training to handle them. Tough sentencing guidelines for IPR cases should be issued to dispel the notion that piracy deserves only nominal punishment. The issuance and implementation of such guidelines should stress the role that the national judiciary must play in fulfilling Indonesia’s international obligations, in this case, its TRIPS obligation to impose sentences that are sufficient to deter piracy. In recognition that most Indonesian judges are not well trained to handle cases dealing with intellectual property rights, mechanisms to refer such cases to specialized panels or divisions of existing courts should be explored now.
A longer term solution must look toward the establishment of a specialized IPR court in Indonesia, along the lines of the model that has proven successful in Thailand. The pending copyright legislation, which gives specialized commercial courts jurisdiction over some copyright cases, is a step in the right direction. But it falls far short of a solution, because the commercial courts are only empowered to handle civil litigation (not currently a viable method of enforcement against major piracy in Indonesia), and because no provision has been made for specialized training of the commercial court judges in copyright matters. While creation of a specialized IPR court may require new legislation, an arduous process under current circumstances, planning toward this goal should begin now, without detracting from the steps urgently needed to enable the courts to contribute positively to enforcement efforts in the short run
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