Conditions for being a Representative
To act as a proxy/representative of the plaintiff's representative or the defendant's representative/proxy, one must meet one of the following conditions, namely:
- must have a special power of attorney, in accordance with the provisions of Article 123 paragraph 1 HIR/ Article 147 paragraph 1 RBg.
- appointed as a proxy/representative in the lawsuit
- appointed as a proxy or representative in the lawsuit note if the lawsuit is filed orally.
- appointed by the plaintiff as a proxy/representative in the trial.
- meet the requirements in the regulation of the minister of justice
- has been registered as an advocate.
Meanwhile, those acting as attorneys/representatives of the state/government based on Staatblads 1992 No. 522 and Article 123 paragraph 2 HIR, Article 147 paragraph 2 RBg are:
- State attorneys appointed by the government
- Prosecutors
- Certain people / appointed / designated officials.
Lawsuits can also be filed by the community/group of people who have the same interests, which is called a representative/group lawsuit in the Legal system Anglo Saxon known as Class Action. This lawsuit is possible in two ways. It can be by a directly interested party who is harmed and represents the same group or by a specific institution.
In detail, representative lawsuits are regulated in PERMA Number 1 of 2002 concerning Class Action Procedures. Example of a lawsuit Class Action, environmental pollution cases (Law Number 23 of 1997 concerning Environmental Management) where lawsuits can be represented by Greenpeace.
Consumer protection cases (Law Number 8 of 1999 concerning Consumer Protection) in this case can be represented by the Indonesian Consumer Foundation Institute (YLKI).
Those who can act as attorneys/representatives of the plaintiff/defendant or applicant in court, namely:
- Advocates;
- Prosecutors with special power of attorney as attorneys/representatives of the State/Government in accordance with Article 30 paragraph (2) of Law No. 16 of 2004 concerning the Indonesian Attorney General's Office;
- Government/TNI/Kejaksaan RI Legal Bureau;
- Directors/Administrators or designated employees of a legal entity;
- Those who receive incidental power of attorney determined by the Head of the Court (e.g. LBH, Family Relations, TNI/POLRI legal bureau for cases involving TNI/POLRI members/families);
- Incidental power of attorney on the grounds of blood or marriage family relations can be accepted up to the third degree as evidenced by a certificate from the village head/lurah.
Regarding power of attorney from the TNI/POLRI Legal Bureau/Legal Service or other forms of naming, if viewed in the guidebook, it means that TNI/POLRI institutions can be used to litigate and become attorneys for the personal interests of someone, provided that the person is a TNI/POLRI member or a family member of the TNI/POLRI and this construction is the same if the University Legal Aid Bureau becomes an attorney for someone's personal interests. And the power of attorney is made in the construction of incidental power of attorney.
The legal basis for the Legal Bureau/Diskum TNI Polri to litigate representing private interests is the Supreme Court Letter Number MA/KUMDIL/8810/IX/1987 dated September 21, 1987.
Then the problem of LBH or legal aid bureaus in universities can litigate, the basis of its legitimacy is the Constitutional Court Decision No. 006/PUU-II/2004 which states that Article 31 of Law Number 18 of 2003 concerning Advocates is contrary to the 1945 Constitution of the Republic of Indonesia, where the decision contains the following considerations:
“that as a law governing the profession, Law Number 18 of 2003 should not be intended as a means of legalization and legitimacy that only advocates can appear in court because this must be regulated in procedural law, whereas the procedural law currently in force does not or does not yet require the parties to the case to appear using a lawyer (verplichte procureurstelling). Therefore, if there is no such obligation according to procedural law, other parties outside of advocates should not be prohibited from appearing to represent the parties in court. This is also in accordance with the real conditions of society today where the number of advocates is very disproportionate, and uneven, compared to the area and population that requires legal services;”
The Constitutional Court's consideration above, if related to the party requesting the case, means that in addition to advocates, the Legal Consultation and Service Laboratory (LKPH) of UMM in particular and legal aid bureaus in all universities in Indonesia can become attorneys/representatives in court.
Article 54 of the Criminal Procedure Code states that for the sake of defense, a suspect or defendant has the right to legal assistance from one or more legal advisors. A legal advisor is defined as a person who meets the requirements determined by or based on law to provide legal assistance.
In the practice of criminal trials, in addition to advocates (pure) who usually accompany the defendant are LBH or legal aid bureaus from universities and the Legal Service or legal bureau from the POLRI, if the defendant is a member of the police. This means that both parties in criminal trials qualify as legal advisors.
Literature
- Abdulkadir Muhammad, Indonesian Civil Procedure Law, Citra Aditya Bakti, Bandung. 2000
- M. Yahya Harahap, S.H., Scope of Civil Execution Problems, 3rd Printing, PT. Gramedia, Jakarta, 1991
- M.Taufik Makarao, Basics of Civil Procedure Law, Rineka Cipta, Jakarta, 2004
- Retnowulan Sutantio, Iskandar Oeripkartawinata, Civil Procedure Law in Theory and Practice, Cet. VI. Mandar Maju, Bandung, 1989
- Retnowulan Sutantio, and Iskandar Oeripkartawinata, Civil Procedure Law in Theory and Practice, Mandar Maju, Bandung, 2005
- R. Subekti, Civil Procedure Law, BPHN and Bina Cipta, 1977
- R. Subekti, Civil Procedure Law, 3rd Printing, Binacipta, Bandung, 1989 R.
- Supomo, Civil Procedure Law of the District Court, Pradnya Paramita, Jakarta 1980
- R. Supomo, Civil Procedure Law of the District Court, 9th Printing, PT. Pradnya Paramita, Jakarta, 1986
- Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, Civil Procedure Law in Theory and Practice, CV. Mandar Maju Bandung, 1989
- Riduan Syahrani, Civil Procedure Law in the General Court Environment, Pustaka Kartini, 1998
- Sudikno Mertokusumo, Indonesian Civil Procedure Law, Liberty, Yogyakarta, 2002
- Law Number 48 of 2009 concerning Judicial Power
- Law Number 3 of 2009 concerning the Second Amendment to
- Law Number 14 of 1985 concerning the Supreme Court Law
- Law Number 49 of 2009 concerning the Second Amendment to the Law
- Law Number 2 of 1986 concerning General Courts Law Number 5 of 1986 jo Law Number 9 of 2004 concerning State Administrative Courts Law Number 3 of 2006 concerning Amendments
- Law Number 7 of 1989 concerning Religious Courts Law Number 31 of 1997 concerning Military Courts
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