Geography has little impact: a comparative study on the role of judges in Singapore and Indonesia in the taking of evidence in civil proceedings

ABSTRACTIndonesia and Singapore are neighbouring countries with vibrant economic relations. Despite the geographical proximity, the legal systems in both countries are strikingly different. The author suggests that the most influencing factor of a country’s legal system is often its former colonial master. Singapore (a former British colony) applies the common law legal system while Indonesia (a former Dutch colony) applies the civil law legal system. Chan and van Rhee suggest that the differences between the two legal systems are often exaggerated, but differences remain. This paper sets out these differences with a focus on the judges’ role in taking evidence in civil proceedings, given the inevitable fact that disputes would arise among the business players of the two countries and that taking of evidence is an essential part that may be decisive to the outcome of a dispute. Doctrinal and comparative methods will be used, namely through analysing various procedural laws as found in the statute, case laws, as well as commentaries. This paper contributes to the scant collection of comparative literature on the two legal systems and assists business players in understanding better the procedures of taking evidence applied by the relevant dispute resolution forum that they can choose to resolve their commercial disputes.KEYWORDS: Civil proceedingsevidencecomparative law AcknowledgementsThe author expresses sincere gratitude to the two anonymous reviewers for their invaluable comments, as well as the exceptional support provided by the editorial team at Asia Pacific Law Review and Taylor & Francis in bringing this article to its final form.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Peter C H Chan and C H (Remco) van Rhee, Civil Case Management in the Twenty-First Century: Court Structures Still Matter (Springer, 2021).2 Peter C H Chan, ‘Comparing the Civil Court Structures of Mainland China, Taiwan, Hong Kong and Macau from a Case Management Perspective’ in ibid 13; CJ Hamson, ‘Civil Procedure in France and England: An Introductory Lecture’ (1950) 10 Cambridge Law Journal 411; Squire Patton Boggs, ‘Gathering Evidence: How Does France Compare?’ (10 June 2013) accessed 3 October 2023; Takeshi Kojima, ‘Japanese Civil Procedure in Comparative Law Perspective’ (1998) 46 University of Kansas Law Review 687; Shozo Ota, ‘Reform of Civil Procedure in Japan’ (2001) 49 The American Journal of Comparative Law 561; see more generally Nader Ghanbari, Hassan Mohseni and Dawood Nassiran, ‘Comparative Study of Civil Procedure in Common Law and Civil Law Systems’ (2016) 9 Journal of politics and law (Toronto) 267; see also Louis Myers, ‘UPDATE: Comparative Civil Procedure: Finding Primary and Secondary Sources’ (GlobaLex, May/June 2023) accessed 7 October 2023. The author lists the different sources of materials to conduct comparative civil procedure for many jurisdictions, though Singapore and Indonesia are not listed.3 Heru Andriyanto, ‘Indonesia Reports Highest FDI in History’ (Jakarta Globe, 25 January 2023) last accessed 4 July 2023. The author acknowledges that Singapore’s role as a regional hub where many international companies decide to set up their regional headquarters may also contribute to such large amount of FDI.4 ‘Singapore International Trade’ (Statistics Singapore, 2023) last accessed 4 July 2023.5 ‘Indonesia’s Top Trading Partners’ (World’s Top Exports, 2023) last accessed 4 July 2023.6 See Queen Mary University of London and White & Case, ‘2021 International Arbitration Survey: Adopting Arbitration to a Changing World’ (2021) last accessed 8 September 2023, 5.7 Ibid, 13.8 For more literature regarding the SICC, see Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 The International and Comparative Law Quarterly 903; Georgia Antonopoulou, ‘Procedure Before International Commercial Courts and Ordinary Courts’ in Stavros L Brekoulakis and Georgios Dimitropoulos, International Commercial Courts : The Future of Transnational Adjudication (Cambridge University Press 2022) 421; Man Yip, ‘The Battle for Jurisdiction Through Jurisdictional Requirements’ in ibid, 176; Andrew Godwin, Ian Ramsay and Miranda Webster, ‘International Commercial Courts : The Singapore Experience’ (2017) 18 Melbourne Journal of International Law 219; Gary J Shaw and Michael Evan Jaffe, ‘International Arbitration: Spotlight on Singapore; The Stand Alone Rules of the Singapore International Commercial Court – How Do They Measure Up?’ (2022) 172 New Law Journal 19.9 See also the observation regarding the lack of such study of Asian courts and their functional dynamics in Jiunn-Rong Yeh and Wen-Chen Chang, ‘Introduction: Asian Courts in Context: Tradition, Transition and Globalization’ in Junrong Ye and Wen-Chen Chang, Asian Courts in Context (Cambridge University Press, 2015) 6.10 Mark Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of Discipline?’ in Mark Van Hoecke, Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Bloomsbury Publishing Plc, 2013) 1 accessed 21 November 2022.11 Mike McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, 2017) 4.12 Ian Dobinson and Francis Johns, ‘Qualitative Legal Research’ in ibid, 19.13 Martin M Shapiro, Courts : A Comparative and Political Analysis (University of Chicago Press, 1981).14 Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 9.15 Ibid, 7.16 Ibid, 9.17 ‘WJP Rule of Law Index’ accessed 10 October 2022.18 Eric TM Cheung and others, Civil Procedure in Hong Kong (7th edn, LexisNexis 2023) 4.19 Yuill v Yuill [1945] 1 All ER 183 (CA, Eng) at 185; see also Jones v National Coal Board [1957] 2 QB 55 at 64 where by Lord Denning MR mentions few instances where it is appropriate for judges to ask questions, e.g. (1) ‘it is necessary to clear up any points that have been overlooked or left obscure’, (2) ‘to see that advocates behave themselves seemly and keep to the rules laid down by law’, (3) ‘to exclude irrelevancies and discourage repetition’, (4) ‘to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth’; and (5) ‘to make up his mind where the truth lies’.20 Ibid, 185.21 Kevin Tan Yew Lee, ‘A Short Legal and Constitutional History of Singapore’ in Walter CM Woon (ed), The Singapore Legal System / Edited by Walter Woon (Longman, 1989) 7.22 For detailed overview on the adoption of English law in Singapore see Walter Woon, ‘The Applicability of English Law in Singapore’ in ibid, 112; for further modern development of the Singapore legal system, see also Gary Kok Yew Chan and Jack Tsen-Ta Lee (eds), The Legal System of Singapore : Institutions, Principles and Practices (LexisNexis, 2015) 9.23 For some statistics, see Woon (n 19) 107, 135.24 Waleed Haider Malik, Judiciary-Led Reforms in Singapore: Framework, Strategies, and Lessons (World Bank Publications, 2007) 11 accessed 9 October 2022; see also Helena HM Chan, The Legal System of Singapore (Butterworths Asia, 1995) 66.25 Kerstin Steiner, ‘Branding Islam: Islam, Law, and Bureaucracies in Southeast Asia’ (2018) 37 Journal of Current Southeast Asian Affairs 27.26 Ibid, 30; see also the Administration of Muslim Law Act (AMLA) (cap 3, No. 27 of 1966).27 Malik (n 24) 10.28 For further reading about separation of powers in Singapore, Chan and Lee (n 22) 47.29 Jeffrey Pinsler, ‘The Early Development of the Discovery Process in Civil Actions in Singapore’ [1997] Singapore Journal of Legal Studies 396.30 Siyuan Chen and Eunice Hui Han Chua, Civil Procedure in Singapore (3rd edn, Wolters Kluwer, 2018) 70.31 ‘Media Release: New Rules of Court to Transform and Modernise Singapore’s Civil Justice System’ (Default) accessed 20 October 2022.32 Siyuan Chen and Lionel Leo, The Law of Evidence in Singapore (3rd edn, Sweet & Maxwell Asia/Thomson Reuters, 2022) 10.33 Ibid, 4.34 Ibid, 9; 1893 Evidence Act, s2(1); Tan Chin Seng v Raffles Town Club Pte Ltd [2002] 2 SLR(R) 465 at [10]-[11]; BNA v BNB [2020] 1 SLR 456 at [76]-[78].35 Ibid, 3.36 LTAL Wardhani, MDH Noho and A Natalis, ‘The Adoption of Various Legal Systems in Indonesia: An Effort to Initiate the Prismatic Mixed Legal Systems’ (2022) 8 Cogent Social Sciences 4.37 As regulated under Law No. 44 of 1999 on Implementation of Privileges for the Special Province of Aceh and Law No. 18 of 2001 on Special Autonomy for the Special Province of Aceh.38 Wardhani, Noho and Natalis (n 36) 4.39 Olivia Tasevski, ‘The Dutch Are Uncomfortable With Being History’s Villains, Not Victims’ (Foreign Policy) accessed 20 October 2022.40 Rudy, ‘The Pathway of Civil Law Development in Indonesia: Laws on Land’ in Yuka Kaneko (ed), Civil Law Reforms in Post-Colonial Asia: Beyond Western Capitalism (Springer, 2019) 74.41 Rahman Syamsuddin, Pengantar Hukum Indonesia (Introduction to Indonesian Law) (1st edn, Prenadamedia Group 2019) 44.42 Indonesia recognises the principle that judicial decisions must be accompanied by reasons, see H Ishaq, Pengantar Hukum Indonesia (PHI) (Introduction to Indonesian Law (1st edn, PT Raja Grafindo Persada, 2014) 242. In practice, the reasoning in the decisions tend to be scarce.43 Takdir Rahmadi, ‘Sistem Kamar dalam Mahkamah Agung: Upaya Membangun Kesatuan Hukum’ (Chamber System in the Supreme Court: Efforts to Build Legal Unity) (translated by the author) (Supreme Court of the Republic of Indonesia, 24 June 2016) accessed 7 September 2023.44 Ibid.45 Codification is one of the main characteristics of Civil Law.46 L M Rasyid and Herinawati, ‘Modul Pengantar Hukum Acara Perdata’ (‘Module on Introduction to Civil Procedural Law’) (UNIMAL Press, 2015) 17.47 See Soepomo, Hukum Acara Perdata Pengadilan Negeri (Civil Procedural Law of the District Court) (Pradnya Paramita, 2000) 11. Soepomo cited the Decision of the District Court of Jakarta dated 17 January 1955 in which the court found that it could not utilize the provisions of RV, but if necessary and useful, the court can utilize institutions within the RV by ‘creating themselves’ without using the provisions of the RV itself. Unfortunately, the test of ‘necessary and helpful’ introduced by the court is not explained further.48 See Akmal Adicahya, ‘Menelusur Hukum Acara Perdata di Indonesia’ (Exploring the Civil Procedural Laws in Indonesia) (Supreme Court of Indonesia 2021) last accessed 12 July 2023. Adicahya suggests the legal bases for the applicability of HIR and RBg as the civil procedural laws of Indonesia, namely Article 5 paragraph (2) of Emergency Law No. 1 of 1951 concerning Temporary Actions to Perform Unified Arrangement of Powers and Civil Court Procedures which provides that the power, procedure, and tasks of the court in Jakarta shall refer to the existing regulations of the Republic of Indonesia when the Emergency Law was enacted. At that time (and until now), the existing regulations are HIR and RBg based on Law No. 34 of 1942 concerning Arrangement of Civil Courts.49 John H Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52 The University of Chicago law review 823.50 M Yahya Harahap, Hukum Acara Perdata: Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan (Civil Procedural Law: Court Claims, Hearings, Attachment, Evidence and Decisions)(translated by the author) (Sinar Grafika, 2006) 498. According to Harahap, ‘formal truth’ (formeel waarheid) is truth based on whether the evidence fulfils the legal formality, e.g. an authentic deed is considered as fully binding and perfect evidence. Perfect means no other type of evidence is required to decide the dispute other than the authentic deed. Binding means that the judges are bound by such authentic deed unless it can be proven otherwise. In comparison, judges in criminal cases must search for ‘material truth’.51 HIR, Article 176.52 L J van Apeldoorn, Pengantar Ilmu Hukum (Introduction to Law) (translated by the author) (Pradnya Paramita, 2001) 250.53 Decision of the Supreme Court No.2775 K/Pdt/1983 dated 9 February 1985.54 Nelly Sama Kamalia, ‘Asas Pasif dan Aktif Hakim Perdata serta Relevansinya dalam Konsep Kebenaran Formal’ (Passive and Active Principles of Civil Proceeding Judges and their Relevance in the Formal Truth Concept) (translated by the author) accessed 7 September 2023, 7.55 For further reading, see Steiner (n 25). However, the article does not discuss Islamic law development in Indonesia.56 Siyuan Chen, ‘The Impact of the Rules of Court 2021 on the Law of Evidence’ (2022) 34(2) Singapore Academy of Law Journal 1.57 These terms are used interchangeably in this paper although ‘discovery’ is a more Anglo-American term whereas ‘document production’ is a term generally used to explain compulsory disclosure of evidence by a party to another.58 Chen and Chua (n 30) 193.59 Pinsler (n 29) 396.60 Ibid, 396.61 Ibid, 397.62 Pelin Baysal and Bilge Kagan Çevik, ‘Document Production in International Arbitration: The Good or the Evil?’ (Kluwer Arbitration Blog, 9 December 2018) accessed 7 September 2023.63 2021 Rules of Court, O11 r2(1).64 2021 Rules of Court, O11 r1(3) and (4). It is provided that a broader scope of discovery may be ordered in the interests of justice, and it will be in the interests of justice to conduct such broader scope of discovery where it could aid in disposing fairly of the proceedings.65 Ibid, O11 r5.66 Chen and Chua (n 30) 198. For the test of justness and necessity, see for example Success Elegant Trading Limited v La Dolce Fine Dining Company [2016] SGHC 159, [54]-[57]. Note that Singapore diverges from the English position which allows discovery to assess the strength of the claim, see Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832, [37].67 2021 Rules of Court, O 11 r4.68 Chen and Leo (n 29) 648; Greenough v Gaskell (1833) 1 My & K 98 at 103.69 Ibid, 649.70 Evidence Act, ss 128, 128A and 131.71 Ibid, s 23.72 Ibid, ss 123.73 Ibid, s 124; see also Systematic Airconditioning Pte Ltd v Ho Seng Ken et al. [2023] SGHC 10 at [18]-[19].74 Evidence Act, s 125.75 Ibid, s 126; Ramesh s/o Krishnan v AXA Life Insurance Singapore [2016] 4 SLR 1137 at [33].76 Evidence Act, s 132.77 Ibid, s 133; Asplenium Land Pte ltd v Lam Chye Shing [2019] 5 SLR 130 at [129]-[132].78 Chen and Leo (n 32) 651.79 Skandinaviska Enskilda Banken AB, Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR (R) 367; Yap Sing Lee v Management Corp Strata Title Plan No 1267 [2011] 2 SLR 998 at [15].80 Mah Kiat Seng v Attorney-General [2021] SGHC 202 at [54]-[57].81 2021 Rules of Court, O 11 r 6.82 K Solutions Pte Ltd v National University of Singapore [2009] 4 SLR(R) 254 at [107]-[109].83 HIR, Article 164; Indonesian Civil Code (Burgerlijk Weitbook), Article 1866. Other types of evidence include, witnesses, presumptions, admission, oath, the judges’ own investigation, local inspection (see HIR, Article 153), and expert witnesses (HIR, Article 154).84 Ted Greeno (ed.), Litigation & Dispute Resolution 2019 (8th edn Global Legal Group, 2019) accessed 8 October 2023, 133.85 The elucidation to the provision explains that one only needs to dispose of his/her burden of proof when the other party challenges his/her statement, and this is known as division of burden of proof. See further discussion in R Subekti, Hukum Pembuktian (Law on Evidence) (PT Pradnya Paramita, 2011).86 Harahap (n 53).87 Compare with the Indonesian administrative laws that expressly provide judges with the power to request document production from a public official for verification purposes, see Law No. 5 of 1986 on the Administrative Court (as amended), Article 85.88 Evidence Act, s 120. The explanation to the provisions mentions: ‘A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them’.89 Evidence Act, s 120 which sets out the detailed conditions.90 Rules of Court 2021, O 15 r4.91 Administration of Justice (Protection) Act 2016, s 10(1).92 Rules of Court 2021, O 15 r4.93 Rules of Court 2021, O 15 r6.94 Evidence Act, s 139(2).95 Ibid, s 140.96 Ibid, s 143 defines a leading question as ‘any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify’.97 Ibid, s 145(1).98 Ibid, s 145(2).99 Ibid, s 148.100 Ibid, s 153.101 Ibid, s 154.102 Ibid, s 150(1).103 Ibid, s 151.104 Ibid, s 152.105 Chan and Lee (n 2) 180; Yap Chwee Khim v American Home Assurance Co [2001] 1 SLR(R) 638 at [25].106 Yuill v Yuill (n 16) at 20.107 Chan and Lee (n 2) 181; Ng Chee Tiong Tony v Public Prosecutor [2008] 1 SLR(R) 900 at [22].108 Jones v National Coal Board [1957] 2 QB 55 at 64; see also Mohammed Ali bin Johari v Public Prosecutor [2008] 4 SLR(R) 1058.109 2021 Rules of Court, O 3 r2(7).110 Ibid, O 3 r9.111 Ibid, O 7 r3(b) and O7 r7(2).112 Ibid, O 15 r22(2).113 Ibid, O 28.114 HIR, Article 145; Indonesian Civil Code (BW), Article 1910; Yulia, Hukum Acara Perdata (Civil Procedural Law) (Unimal Press 2018) 62.115 HIR, Article 146.116 Decision of the High Court of Banjarmasin Number 39/PDT/2021/PT BJM dated 28 July 2021.117 Decision of the District Court of South Jakarta Number 79/Pdt.G/2013/PN.Jkt.Sel dated 17 February 2014, 28. In its decision, the Court mentioned that ‘given the witnesses put forth by the Claimant and the Respondent are employees of the Claimant and the Respondent, the tribunal shall not consider the testimony of those witnesses, and they shall be ignored’ (translated by the author). This aspect of the decision was later challenged by the Claimant and the Respondent through cassation at the Supreme Court. However, the Supreme Court refused to decide on the matter because it is not within the scope of matters to be decided at the cassation level. See Decision of the Supreme Court Number 1248 K/Pdt/2016 dated 15 September 2016.118 Decision of the High Court of Southeast Sulawesi Number 71/PDT/2021/PT KDI dated 4 August 2021, 26.119 Decision No. 108/pdt/1969, District Court of Cianjur, 27 January 1970.120 HIR, Articles 140 and 141; RV, Articles 184.121 Compare this with the procedure applicable in criminal proceedings: Article 268 of HIR provides that the Head of the Tribunal may ask questions to the witnesses if he/she views it necessary to obtain the truth. Article 272 of HIR also provides that a counsel are entitled to ask questions viewed necessary to the obtain the truth, but he/she must obtain a prior approval from the Head of the Tribunal.122 Ahmad Z Anam, ‘Menakar Keabsahan Pemeriksaan Saksi Melalui Teleconference dalam Hukum Acara Perdata’ (Assessing the Legality of Witness Examination via Teleconference under the Civil Procedural Laws) (Supreme Court of the Republic of Indonesia, 19 February 2018) accessed 8 October 2023, 10.