Regulating Court Jurisdiction to Protect Weaker Parties: An Overview of the Indonesian Civil Justice System

It is necessary to facilitate easy access to courts to protect weaker parties. This can be achieved by regulating the personal jurisdiction of the court so that weaker parties can easily access it. In the Indonesian civil justice system, some regulations have been implemented to protect weaker parties through the jurisdiction of courts. This article elaborates on these regulations and their obstacles in protecting the access of consumers, workers, women and children, and foreigners to Indonesian courts. A statutory approach with reference to the general principles of the court’s personal jurisdiction and the principles of access to justice for weaker parties This article finds that some regulations related to the court’s personal jurisdiction in Indonesia provide protection to weaker parties by allowing them to submit their claim to the court where they reside against the counterparty. However, a lack of consistency may hinder its implementation.


Introduction
In contract law or civil law relationships, there is often an imbalance in power between parties. The relative bargaining position, control of economic and information resources, dependency, psychological or physical condition, or social status of one party can be stronger than that of the other. 1 This imbalance may be caused by a party's stronger financial position, higher social status, or greater physical strength. 2 In the context of law enforcement, efforts have been made to 1  tradition. 7 To initiate a civil lawsuit, the plaintiff must file in court with jurisdiction over the defendant's residence or domicile. In Indonesia, Article 118(1) HIR/142 (1) RBg stipulates that any civil lawsuit tried in the court of first instance shall be first submitted to the Chief of the District Court, whose jurisdiction covers the residence of the defendant. 8 If the residence is unknown but the physical whereabouts of the person are known, then the defendant will be sued in a district court whose jurisdiction covers the place where he/she is located. [9][10] The actor sequitur forum rei principle also appears in Article 118(2) of the HIR/142 (2) RBg. This article provides that if a case has more than one defendant, each of whom has a different residence not within the jurisdiction of a district court, then the plaintiff can file in the district court whose jurisdiction includes the residence of one of the defendants. The other defendants then followed the lawsuit in the district court chosen by the plaintiff. This provision implements the actor sequitur forum rei principle and avoids the legal uncertainty of imperfect lawsuits in which the defendants are incomplete (plurium litis consortium). 11 Article 118 (2) HIR/142(2) RBg also states that if a lawsuit consists of a defendant as the debtor and another defendant as the guarantor, then it shall be filed in the district court whose jurisdiction covers the debtor's residence. In this case, the actor sequitur forum rei principle is implemented using the forum connexitatis approach, whereby the law considers the closeness of the legal relationship between the creditor and debtor, rather than the creditor and guarantor. 12 Article 118(3) HIR/142(3) RBg does not implement the actor sequitur forum rei principle but rather forum actoris. This is an exception to the former principle, 7 Hélène Van Lith, 'International Jurisdiction and Commercial Litigation Uniform Rules for Contract Disputes, Den Haag' (Erasmus University 2009). [65]. 8 Law No. 23/2006 on Population Administration as amended by Law No. 24/2013 stipulates the domicile of a person in Indonesia. 9 Article 17 of the Civil Code stipulates "If there is no such residence, then the real place of residence is consideres as his dwelling". 10  However, Article 118(3) HIR. One interpretation is that forum rei sitae is implemented conditionally, meaning it is implemented if the residence of the defendant is unknown and the cause of the action concerns immovable property. If the residence of the defendant is known, the actor sequitur forum rei principle must be applied. 16 The other interpretation is that, as long as the cause of action concerns immovable property, the lawsuit must be filed in the district court whose jurisdiction covers the location of the object, so that forum rei sitae is applied absolutely. 17 These differences in interpretation create legal uncertainties. In a decision that adheres to the forum rei sitae principle, the Indonesian Supreme Court held that '... since the fields and the plantations as the objects of the lawsuit are located beyond the jurisdiction of Takalar District Court, then the District Court has no jurisdiction to try the case. Therefore, the lawsuit must be declared inadmissible. 18 Article 118(4) HIR/142(4) RBg enables parties to insert a choice of a forum agreement into a written contract. However, even though the parties have agreed to a certain district court in their contract, the article allows the plaintiff to file a lawsuit concerning the contract in the district court where the defendant resides. Therefore, the actor sequitur forum rei principle may prevail. 19 Article 118(4)/ 142(4) RBg requires that the choice of a forum in a contract must be in written form, either as a clause in the main agreement or as a separate agreement. 20 Article 118 HIR/ 142 RBg is a general provision to determine the jurisdiction of district courts over civil disputes and therefore serves as lex generalis (the general law). 21 Theoretically, the personal jurisdiction of a court, known as relative competence in the Indonesian legal system 22 , requires that the connecting factors between the court (forum) and the facts of the dispute (cause of action) 23 be examined. 24 The facts of the dispute may include the parties (subject), legal relationship, time when the legal event occurred, and object of dispute. 25 Actor sequitur forum rei, as a general principle to determine the personal jurisdiction of the court, can be applied in any situation. According to this principle, a defendant can be sued at any time and in any situation in a court whose jurisdiction covers the defendant's residence (country or domicile). This principle is based on relational theory, under which the jurisdiction of the courtas an authority -arises from the defendant's personal attachment as a citizen who must comply with and be loyal to the authority (lord-tenant relations); therefore, the authority will provide protection and justice. 26 Relational theory also explains the court's authority when forum actoris is implemented in a situation where the defendant's residence is unknown. This is a form of legal protection that allows citizens to obtain justice as plaintiffs.
Forum rei sitae, as the basis for the court's authority over immovable objects located within its jurisdiction, is based on the power theory. A court is an institution of power that has the authority to regulate social order, including applying and enforcing the law on every object within its jurisdiction. Thus, the court asserted its jurisdiction over cases concerning immovable properties located within its jurisdiction. 27 The jurisdiction of the court based on the choice of the forum (forum electus) originates from contract theory. The relationship is no longer between the ruler and the people, but between free and equal people who agree. 28 Contract theory postulates that a court's jurisdiction is based on explicit or implicit agreements between parties. 29 Forum electus gives jurisdiction to the court chosen by the parties in a written agreement.
Actor sequitur forum rei and forum actoris are the principles that determine the personal jurisdiction of the court in disputes concerning in personam rights.
These principles require a close connection between the court as a forum and the defendant's domicile (for actor sequitur forum rei), or the plaintiff's domicile (for forum actoris).

Doctrine to Determine Jurisdiction to Protect Weaker Parties
The civil justice system is part of the law enforcement regulated by civil procedures. 30 There has been a shift in civil procedures to implement the concept of access to justice, which provides greater opportunities to those seeking justice. 26 Arthur von Mehren, 'Adjudicatory Authority in Private International Law: A Comparative Study', Adjudicatory Authority in Private International Law (Brill Nijhoff 2007). [18]. 27 ibid. 28 ibid. [18][19]. 29 ibid. 30 ibid.
New procedures, including class action, citizen lawsuits, and the legal standing of NGOs to protect vulnerable groups, have been recognized in the Indonesian civil justice system. However, in certain situations, the implementation of the general principle of court jurisdiction in civil procedures may hinder vulnerable groups from obtaining justice and pose an obstacle to court access. 31 The protection for the weaker parties through jurisdiction is necessary because: (1) the weaker parties are usually unaware of their rights, and even they are, they may not know how to claim the; (2) litigation may be very costly and time consuming; and (3) when they have to claim according to the general principles of personal jurisdiction, the claim must be submitted to the court out of their domicile, which may harm their rights. 32 Therefore, another effort to protect vulnerable groups involves regulating court jurisdiction, so that they may easily access the courts.

Jurisdiction in Consumer Disputes
The legal relationship between consumers and businesses is regarded as unbalanced. Consumers are on the weaker or more vulnerable side because businesses have a relatively stronger position in terms of capital and knowledge about the mechanisms of production and distribution compared with consumers.
The legal protection of consumers is implemented by measures such as the product liability of businesses and the shifting of the burden of proof, requiring businesses to prove that they are not liable for consumer losses. Businesses must prove that they have carried out their production properly and carefully, according to good manufacturing practices. By contrast, consumers only need to prove their losses due to the production of businesses without proving the fault of the businesses. 33 The modern civil justice system applies the forum actoris principle in consumer case is the court whose jurisdiction covers the consumer's domicile. 34 The principle of forum actoris was adopted in Article 23 of  The forum actoris principle only applies if businesses act purposefully (which must be proven by their actions) to make the consumer's domicile a product marketing area. If there is no intention to do so, the court cannot implement forum actoris to enforce its jurisdiction over consumer disputes. 36 The implementation of forum actoris will face a problem if the transactions are made online by consumers. A consumer might buy a product from outside the jurisdiction of the consumer's state, whereas the manufacturer or seller does not have a branch office or representative in that state. The fact that the manufacturer or seller places its information online on a server, so consumers from various countries can access information about its products, does not mean that the manufacturer or seller avails itself of various jurisdictions where the information about their products can be accessed. 37 Likewise, the state in which the server is located has no jurisdiction over disputes arising from online transactions. 38 On the other hand, if a business deliberately sends an email containing information about a product that is offered to a consumer, it is sufficient evidence that the business avails itself of the court whose jurisdiction covers the domicile of the consumer. 39 In the Anglo-American system, to declare that a court has jurisdiction over persons who are not domiciled in its jurisdiction, which can occur in disputes arising from online transactions, the court must consider the following connecting factors between the dispute and the forum 40 : 41 1. The defendant intentionally initiated transactions that led directly to the plaintiff who was domiciled in the jurisdiction of the forum. 42 2. Whether the defendant visited the jurisdiction of the forum related to the implementation of negotiations before the agreement was reached was agreed upon. 43 3. Whether the defendant was physically present in the jurisdiction of the forum when it entered the agreement. 44 4. Whether the defendant performed its obligation under all or part of the agreement in the forum territory. 45 5. Whether the agreement established a relationship and ongoing obligations between the plaintiff and defendant. 46

Jurisdiction in Labour Disputes
An imbalance of power between employees and employers often requires state intervention as an authority with regulatory power. 47 State intervention in the legal relationship between employees and employers is the enactment of labor regulations that protect workers' interests (e.g., employment requirements, minimum wage, normative rights of workers, freedom to form and join labor unions, and requirements for termination of work). 48 In Indonesia, legal protection for workers in labor disputes is regulated by Relations Court is located only in the capital city of the province, so laborers still encounter difficulties in defending their rights before the court. 49 Forum laboris cannot be ruled out with the choice of a forum in the work agreement between workers and employers; any clause that does so shall be deemed non-binding.
In some cases, difficulties in implementing forum laboris can arise, such as  (1) and (5)

Jurisdiction in Family Cases
Male domination can be found in almost all communities and in many respects, including access to justice. 56 Specific measures must be taken to provide women with access to justice when men dominate the control of resources.  (1) A divorce motion is filed by the husband, wife, or their attorney to court that jurisdiction covers the residence of the defendant.
(2) In the event that the residence of the defendant is unclear or unknown or does not have a permanent residence, a divorce motion is submitted to the court at the residence of the plaintiff.
(3) In the event that the defendant lives abroad, the divorce suit is filed in court at the residence of the plaintiff. The Chief Judge submits a request to the defendant through a local Representative of the Republic of Indonesia.
This provision demonstrates that the actor sequitur forum rei principle still applies. Therefore, if the wife is willing to file for divorce, the motion must be filed in a court whose jurisdiction includes the husband's domicile as the defendant. is submitted to a religious court whose jurisdiction covers the residence of the wife (respondent), except if the respondent deliberately leaves the joint residence without her husband's consent.
In contrast, if the wife files the divorce motion, it must be filed in a religious court whose jurisdiction covers the residence of the wife (plaintiff) unless she has left her residence without her husband's consent. Article 73 of the Law on Religious Courts provides the following.
(1) A divorce motion filed by the wife or her attorney to a court whose jurisdiction covers the residence of the plaintiff, unless the plaintiff deliberately leaves the joint residence without the consent of the defendant.
(2) If the plaintiff lives abroad, the divorce motion is filed in the court whose jurisdiction covers the residence of the defendant.
(3) If the plaintiff and defendant live abroad, the divorce motion is filed to the court whose jurisdiction covers the place where their marriage was held or to the Religious Court of Central Jakarta.

Articles 73 (2) and (3) of the Law on Religious
Courts apply when the wife as a plaintiff is domiciled abroad or if both husband and wife are domiciled abroad. In these situations, the personal jurisdiction of the divorce motion is the jurisdiction of religious courts in Indonesia. The actor sequitur forum rei principle applies when the wife, as a plaintiff, is domiciled abroad, while the husband is in Indonesia. If both live abroad, the religious court whose jurisdiction covers the place where the wedding was held (forum celebrationis) or the Religious Court of Central Jakarta may have jurisdiction over the divorce motion.
These provisions were created to assist Indonesian citizens living abroad to divorce according to Islamic law, as some secular countries do not have a judicial system that provides a special court applying Islamic law to civil matters for Moslems. 59 Meanwhile, in accordance with Article 77-79 of Presidential Regulation No 25/2008, any divorce judgments obtained by Indonesian citizens from foreign courts or authorities shall be registered with the local agency and reported to the Indonesian representatives where the judgments were obtained.
Upon return, Indonesian citizens must report divorce to the civil registry, where they are domiciled.
The court that decides divorce motions, as regulated by Article 24 (2) of Government Regulation No. 9/1975, also has jurisdiction to decide related matters that follow the divorce motion, such as claims regarding the separation of property, distribution of joint assets, determination of child custody, and allocation of child support or alimony. Articles 66 (5) and 86 (1)

of the Law on Religious Courts
regulate claims for child custody, child support or alimony, allowances for wives, and the distribution of family properties. These claims can be filed together with the divorce application or after the court has ruled on divorce.

on the Examination of Application for Child Adoption. The Supreme Court
Regulation stipulates that the district court, whose jurisdiction covers the domicile or habitual residence of the child, shall have jurisdiction over the application for child adoption. 60 This procedure follows Article 21 (a) of the UNCRC, giving the district court the authority to ensure compliance with the adoption requirements set out in the law and regulations.

Jurisdiction in Disputes Involving Non-Residents in the Event of a Denial of Justice
The principles of international law require a state to provide foreigners with access to justice within its territory through a national court. If the state does not provide adequate access, foreigners reserve their right to obtain protection from their country of origin through a diplomatic channel. 61 International law stipulates that legal protection for foreigners through national courts is available if the cause of an action is closely connected to the state's territory. This principle then became one of the bases for the recognition and exercise of foreign court decisions. 62 If foreigners suffer losses due to an unlawful act within the territory of a state, the national court where the unlawful act occurred has the jurisdiction to conduct the trial. The jurisdiction of the court is based on the forum delicti commissi principle, which has two criteria: (1) an act that is detrimental to the foreigner is qualified as an unlawful act according to the substantive law of the state and (2)

In M Achsan v M Balandi Sutadipura, Mayor of Bandung et al, the Indonesian
Supreme Court held that the court of first instance (the district court) incorrectly stated that it had jurisdiction to try the case on the basis that the cause of the action occurred in its territory. 64 The jurisdiction of the district court is not locus delicti as in criminal cases. 65 The Indonesian Supreme Court refuses to apply forum delicti commissi as the basis of jurisdiction in cases of unlawful acts; instead, the Court applies actor sequitur forum rei as stipulated in Article 118 of the HIR.
Foreigners can also be given access to the national civil justice system through quasi in rem jurisdiction. In certain situations, a court may establish jurisdiction on the basis that the defendant's property is within its jurisdiction, even though the cause of action has no connection with the property in question. 66 Quasi in rem jurisdiction is generally found in connection with the following interests: 1. The plaintiff is trying to secure a lawsuit filed in another forum regarding the property of the defendant located in the territory of the court with quasi in rem jurisdiction, or to secure it from any attempts that may be filed by other parties.

2.
The plaintiff filed a stand-alone lawsuit -not subject to examination of other forums -by using the defendant's assets in court with quasi in rem jurisdiction as collateral. 67 The criteria for quasi in rem jurisdiction must be narrowed to avoid 'forum shopping,' as follows: 1. The aim of quasi in rem jurisdiction is to secure the defendant's property located in another state in which the court trying the case cannot reach the property in question, and the property under conservatory measure is insufficient to satisfy the claim of the plaintiff. In addition, the court's final judgment is legally enforceable by the court where the defendant's property is located. 68 2. The court may try the case based on quasi in rem jurisdiction only if the court of another country, which is supposed to have in personam jurisdiction, has refused to examine and decide the case without a proper legal basis. In this situation, the plaintiff must prove to the court with quasi in rem jurisdiction that: a. The court has denied that justice should have jurisdiction over the case.
b. the defendant's property is within the court's jurisdiction. 69 The Indonesian civil justice system does not implement quasi in rem jurisdiction. In a lawsuit involving the properties of foreigners located in Indonesia, the lawsuit is usually addressed to collective defendants, in which at least one of the defendants is an Indonesian citizen or legal entity, while the other defendants are foreign citizens or legal entities, to satisfy Article 118 (2)  In the event of a denial of justice by the court of a certain country, the courts of other countries are allowed -at the plaintiff's request -to claim jurisdiction based on the doctrine of forum necessitates, which can be found in many legal orders. 73  A court implements the forum necessitatis doctrine based on the following criteria: (1) a foreign court that should have jurisdiction declares its objection; (2) a connection between the case (object and subject) and the national court (forum); (3) the impossibility of, or obvious obstacles to, bringing the case to a foreign court; (4) the fairness of the plaintiff by submitting a lawsuit to the national court (forum); and (5) the absence of a fair litigation process in foreign courts. 84 In recent developments, the Netherlands has implemented two approaches to applying forum necessitatis and declaring the jurisdiction of the national court over a case. 85 The first approach does not require any connection between the case 80 ibid. 81  However, the implementation of these criteria remains inadequate because Article 100 Rv could be used for 'forum shopping. ' Therefore, the plaintiff should be burdened with proving jurisdiction at the preliminary examination stage based on the forum necessitatis the following: (1) there is no other (foreign) court that has jurisdiction or there is a foreign court that has jurisdiction but refuses jurisdiction; and/or (2) there is a substantial refusal or obstacle to taking the procedure to other courts. 94 In addition, Article 100 Rv is limited in that it can be used only if the plaintiff is an Indonesian citizen. Foreigners cannot use Article 100 Rv to initiate a lawsuit in which the facts have no connection to Indonesian jurisdiction.

Conclusion
In civil cases, the personal jurisdiction of the court is generally determined by the actor sequitur forum rei principle, which is based on the defendant's domicile.
To protect weaker parties, Indonesia has implemented measures relating to personal jurisdiction, so weaker parties may easily access the courts and seek justice. Forum actoris applies to consumer disputes, enabling the consumer to submit a claim against a business in a district court where the consumer is domiciled. In labor disputes, the employee may file a claim against the employer in the industrial relations court where the employee performs his or her employment duties.
However, these regulations lack consistency in protecting women in divorce Indonesian courts can apply the forum arresti principle if the case relates to vessels or aircraft registered in other countries, but located within Indonesian territory.
Indonesian courts can use Article 100 Rv to implement forum necessitatis in case of a denial of justice by the court of another country that, according to law, should have jurisdiction over the case. The implementation of Article 100 Rv can only be carried out if the plaintiff is an Indonesian citizen, so the connection between the forum and the case is that the plaintiff is a citizen of the country of the forum (Indonesia). Foreign plaintiffs cannot use Article 100 Rv to access Indonesian courts in the context of forum necessitatis.