Implementing “Free-cost” for Divorce Case

In Religious Court

Salman, S.H.I., M.A.

Judge Candidate at Cilegon Religious Court

PREFACE

Discussion on court fee is among dynamic discourses we can follow within the idea of developing the performance of legal institutions under the Supreme Court. Regulations on court fee can be found in many laws issued relating with legal procedures. From time to time, there seem to be more technical rules concerning court fee which becomes guidance for courts in arranging the process of litigation.

One principle of private legal case handling is “no cost, no case.” This means that anybody suing their case in the courts should pay some amount of money in order that their cases would be examined by the court. However, some regulations indicate that some special cases could be handled freely, which is popularly called “prodeo” case. In fact, free-of-charge (prodeo) case is not only for the poor, but also for other cases like the case sued by state bureau of inheritance wealth. (See HIR article 240) This means that there is possibility for more other cases that also can be handled freely on the basis of objective reasons especially for the case of marriage disputes.

 As already generally known, achievable fee for the case filed in the court is one of seven key points that should be implemented in terms of realizing the idea of court excellence, i.e. the point of affordable and accessible court services. In Indonesian legal system, it is also already widely understood that among the principles of legal procedure is that judges would handle the case in the manner of being “immediate, simple, and cheap.”

 Implementing “Free-Cost” Case in this point does not necessarily mean directly managing any case without any cost at all. Indeed, this is the highest target. The immediate target for religious courts as for other courts, actually, is to implement the cheap case. However, if it is possible for us to leap to higher target, in the name of the spirit of providing the best service for people, surely it should be a rational choice.

What is to be discussed in this paper is only the case of marriage dispute in Religious Court that is divorce petition or divorce claim, since the case is of the majority cases filed in religious court. Besides, as the reasons and explanation will come, marriage conflict is of fundamental legal case people face in their life where there is no way for solution but in religious court.

 COURT FEE LEGAL BASIS

 There are many legal bases that regulate the point of court fee charged for those filing their cases in the court. Some of them are general and some are particular for special cases. Among the regulations are as follow :

•  Law No. 7/1987 article 89 verse 1 says, “The cost in the marriage case is charged to the plaintiff or petitioner.”

•  Law No. 50/2009 article 91A verse 1 says that “in implementing judicial task, religious court can take court fee.”

 Beside these regulations, there are also others that are generally used as legal basis for regulating the case cost in the courts, some of which are mentioned below :

•  HERZIEN INLANDSCH REGLEMENT (H.I.R) article 121 verse 4, and REGLEMENT BIUTEEGEWESTEN (RBg) article 145 verse 4 say that, “Putting the case into the register as stated in verse 1, cannot be done before paying some amount of money to the registrar that will later be counted which its number is temporarily predicted by the chairperson of the court in accordance with the condition, for the cost of registrar office and for the cost of any summoning and informing obliged to both parties and seal cost that will be used.”

• Law No. 3/2009 on The Supreme Court article 81A point (3) says, “To handle private case and state administrative case as meant by point (2), the cost of registry and case handling process is charged to the party or parties who file the case.”

WHY SHOULD BE FREE?

There are at least four main reasons why this discourse may take place within the idea of developing the performance of religious courts.

First, divorce law for Muslim community should actually be sees as particular private law. Analyzed from the perspective of legal differentiation, many cases filed in religious court are actually not ordinary private law, but rather public law. In other words, this might also be possibly called semi-public law. The main reason for this is the fact that people do not have alternative legal settlement except in Religious Court.

Different from private law, where parties may choose to arrange their case outside the court, divorce conflict of Muslim can only be adjudicated in religious court. This point is, at least, stated in two articles of Kompilasi Hukum Islam (Compilation of Islamic Law), i.e. articles 8 and 15. It is stated in article 8, “The break of the marriage, except divorce by death, can only be proven by the letter of divorce issued by Religious Court whether that is of verdict of divorce, divorce pledge, claim of divorce, or verdict of divorce on condition.”

While article 115 says, “Divorce can only be done in front of the session of Religious Court after the Religious Court endeavors but fails to mediate the parties.”

In such a situation, the state should actually be responsible for all procedures relating with these kinds of cases filed in religious court. It is just not fair, when people are obliged to file their cases in religious court, but at the same time, they also should pay for the cases. Taxes citizens pay for the state are budget source the state has to use to maximize public service.

Second, to provide the best public service for justice seekers. Certainly, those who need to go to religious courts would be very happy to find that their cases would be handled freely. In other words, what often scares justice seekers to come to religious courts is that they know managing cases in religious courts would need high budget.

As stated in Law No 25/2009 on Public Service, it is said that “the state has to serve any people and citizen to fulfill their basic needs for the sake of public service which is the massage of the Constitution of the Republic of Indonesia year 1945.” Having legal certainty on marital status is among citizen legal basic need in which the state should be responsible. Furthermore, it is also in accordance with the vision of the Supreme Court, namely, “Creating legal supremacy through judicial power that is independent, effective, efficient, receives public trust, professional in giving quality legal assistance, ethical, achievable, and law cost for people, and is able to answer the call of public service.”

Furthermore, people with marriage conflict are those who need help and assistance. They are “sick people.” In such a situation, it is again, the state responsibility to provide the best service for its citizens having life problem. Similar to the fact that the state provides free health care for community, divorce can be seen as also social sickness that needs free treatment served by the government.

Third, in fact, dominant part of the case cost is for the summoning staff of the court whose job is calling the parties to come to the session. Seen deeply, it seems that there is no strong argument to say that calling the parties needs special cost since it is actually the fundamental job of the bailiff (calling staff), where he has transportation facility from the state to support his job. Besides, he is also given functional subsidy as bailiff. Moreover, recently, the state has also provided remuneration aiming at enhancing working spirit of the apparatuses of legal institutions.

Fourth, differences of case cost from one to another may be seen as indicator that there is possibility to treat some case special compared to others. In this point, it is divorce case that should be treated differently, especially in terms of the cost that can be entirely free.

LEGAL LEAP

As described above, the popular principle of handling legal cases is that the court would strive to treat any case on the basis of “immediate, simple, and low cost” principles. Many critics and analysts, so far, still often suggest that among the critical problems facing people when dealing with courts is the matter of court fee. It is not reachable yet for most people. Therefore, striving to implement reasonable court fee is what the Supreme Court should focus. In reality, we need to realize, that even for this immediate target, judicial bodies are still on continuous struggle.

Although we do not succeed in fulfilling public expectation for achievable case cost yet, this does not mean that may not dream for higher achievement. We might call this idea as legal leap, and this can function as pushing power for other ideas of increasing legal service performance of Religious Court in particular, and all legal institutions under the Supreme Court in general.

POSSIBLE IMPLEMENTATION

To implement the idea in the real legal practices, Religious Courts, in fact need legal umbrella that will regulate the procedures clearly. Since there have already been many laws that regulate things related to case cost, there must be steps that should be taken to implement the idea in legal practices.

Considering the highest law used as legal basis that is, legislative-made-law (Undang-Undang), it seems that we need to wait for quite a long time, since the last law issued as the second amendment of Law No 7/1989, namely Law No 50/2009, was just ratified. Other potential regulations like Government Regulation (Peraturan Pemerintah) is another alternative that is also not easy to be issued.

As long as the regulation does not contradict the higher existing rule, institutional regulation issued by the Supreme Court might be the most possible rule that can be used as legal basis for the idea of free-cost for divorce case. However, in fact, Regulation of the Supreme Court on Case Cost, that is the Regulation of The Supreme Court Number 2 Year 2009, was just issued last August.

However, we can begin by using the room provided in the existing law like the one we can read in Law No 50/2009 on Religious Court article 91A point (1) saying that “in implementing judicial task, religious court can take case cost.” The word “can” in this article, indicates that there is possibility for Religious Courts not to take the cost for handling divorce case on the basis of all reasons explained above.

CONCLUSION

In fact, implementing idea of free cost for divorce case in Religious Court is not easy. It needs complicated and long way to be realized. However, the target should be kept in mind and struggle since it is a glorious idea to serve the best for people, law, and justice.

Religious court should take this chance to generate more and massive awareness of all apparatuses of legal institutions under the Supreme Court to ensure that the best legal service is provided. Then, idealism of “willing to serve” rather than “being served” will really become the true spirit of all justice fighters under the Supreme Court.

For recent time, this discourse of “free-cost” case might only be directed for the case of marriage conflict. In the future, this is not impossible to widen the discourse that all legal cases would be handled freely on the name of providing the best service for public legal necessities.

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