The primary spirit of the establishment of ASEAN is to realize prosperous, peaceful, and secured nations. In order to reach the goals, there are plenty efforts which must be carried on. Among those efforts, there is one of the crucial sectors that must be guaranteed, which is the sector of law enforcement. It is stated in the article 1 of the ASEAN charter that the purposes of the founding of the ASEAN are, among others, to enhance security, to create a single market, to protect human rights and fundamental freedoms, to respond effectively to all forms of threats, transnational crimes and trans-boundary challenges, and to provide the peoples of ASEAN with equitable access to justice. To assure the realization of these purposes, enhancing a regional cooperation in judicial assistance and service of documents under ASEAN body is good way to start. This idea is founded on the reason that the ASEAN charter aims at creating a community of law, even greater, it aims at creating a single market in the future. A border between nations will decrease. The circulation of goods, services and humans will increase. The dispute between citizens and the emergence of transnational crimes will be unavoidable. Therefore, to ensure good law enforcement, an effective mechanism of judicial assistance and service of documents between ASEAN state members must be formed.
The ASEAN Community has been officially established in 2015 during the Kuala Lumpur Declaration on the Establishment of the ASEAN Community.[1] The guarantee on security and justice constitutes a strong basis of the creation of the ASEAN community which is based upon three considerable pillars, namely ASEAN Political and Security Community (APSC), ASEAN Economic Community (AEC) and ASEAN Socio-Cultural Community. Hence the state must be aware of the impacts of free circulation of person, goods, services, investment, and capital. Nowadays, every state member of ASEAN already faces the uncontrolled growth of the International and Transnational Organized Crimes, such as terrorism, illicit drug trafficking, human trafficking, money laundering, arms smuggling, maritime piracy, and cybercrime. In one hand, the regional integration serves at creating stability and political cooperation which may lead to the realization of ASEAN vision, but in the other hand, ASEAN may face plenty of challenges arisen from the existence of jurisdiction and difference of legal systems in criminal and civil law matters.
By the time being, ASEAN has taken necessary measures to ensure regional security and justice. These measures are implemented by reinforcing the judicial cooperation, which is concretized in a form of judicial assistance, in particular on criminal matters covering ordinary crimes and transnational organized crimes and on civil-commercial matters. Further, the discussion will be directed to analyze two main issues, which are: the scope of judicial assistance and service of documents which has been exercised by Indonesia within ASEAN framework (A), and identification of efforts to revitalize the concept of mutual judicial assistance and service of documents within ASEAN framework (B).
- Scope of Judicial Assistance Having Been Exercised by Indonesia Within ASEAN Framework
To open further discussion, the meaning of judicial assistance needs to be clearly defined in relation to the issue of this paper. Generally, the notion “judicial cooperation” is often used to describe the notion of “judicial assistance”. Whereas, according to international perspective, judicial cooperation covers a broader sense than just a “judicial assistance”.[2] Judicial cooperation includes all activities related to the development of law and creation of international legal norms, both the substantive and procedural law, while the “judicial assistance” describes the procedural act of judicial authorities (e.g. police, prosecutor and court) of a state by request of a requesting state where a legal process is being taken. Therefore, the scope of judicial assistance which is defined on this paper may include all procedural acts such as service of providing legal documents, service of summons abroad, service of taking evidence abroad, verification and seizure of property and goods abroad, conveying information, also recognition and enforcement of foreign judgment.
Actually, there are some works analyzing about the importance of international cooperation on private law field in order to harmonize legal norms, even greater, to harmonize different legal systems among the countries within ASEAN framework.[3] The need resulted from the great concern on the legal impacts of the regional integration phenomenon, particularly on the creation of ASEAN community. Nevertheless, these works are too broad and too complex to be discussed on this paper which concerns only at the matter of “judicial assistance”.
Living in international and pluralism atmosphere, Indonesia is aware about the importance of judicial assistance among countries since there are bilateral agreements on judicial assistance with a number of countries.[4] Consequently, the creation of bilateral agreement on judicial cooperation was concluded between Indonesia and Thailand in 1972. The conclusion of this agreement was triggered by the result of ASEAN Concord in Bali in 1976 which declaring ASEAN members’ commitment to built a cooperation in legal field among ASEAN countries.
To overview the judicial assistance exercised by Indonesia within ASEAN framework, it initially needs to categorize the type of the matters which will be divided into criminal matters (1) and civil-commercial matters (2). Criminal matters also dealt with the issue of Transnational Organized Crimes (TOC).
- Judicial assistance in criminal matters.
Within ASEAN framework, Indonesia has signed the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters concluded in 2004 and has ratified it by the enactment of Act no.15 of 2008. Previously, Indonesia has enacted Act no.1 of 2006 nationally regulating the mutual legal assistance in criminal matters.[5] Even if both Acts regulating the same subject, but the relation between both Acts is not contradictory but complementary. Act no. 1 of 2006 serves as national legal basis for creating further bilateral and multilateral judicial cooperation in criminal matters, while conserving several mandatory rules that cannot be excluded in bilateral or multilateral treaty.[6]
Indonesia has also been the member of ASEANAPOL. This institution is aimed at creating police cooperation and coordination in Southeast Asia. The existence of ASEANAPOL facilitates the mechanism of judicial assistance among ASEAN members.[7]
While regarding TOC, ASEAN has recognized the need to enhance cooperation to combat transnational crime such as terrorism and illicit drugs trafficking.[8] This association has envisaged the measures in form of bilateral and multilateral cooperation to produce more specific judicial assistance regarding TOC.
- Judicial assistance in civil-commercial matters.
During the 6th Meeting of ASEAN Law Ministers being held in 2005, the law ministers has emphasized the importance of enhancing cooperation on judicial assistance in civil and commercial matters. They agreed to work intensively on making Agreement on Service Abroad of Judicial and Extra Judicial Documents among ASEAN member and Agreement on Abolishment of Legalization of Foreign Public Documents used in Judicial Assistance among ASEAN members. The Ministers also agreed to establish working groups to examine modalities for harmonizing the trade laws of ASEAN Member Countries, uniform laws on legalization of foreign public documents, a model ASEAN extradition treaty and a model law on maritime security.[9] Nevertheless, until now, these important agreements on judicial assistance in civil and commercial matter within ASEAN regional framework are not yet concretized in view of the pluralism of socio-culture, economic system and legal system of the state members of ASEAN.
In international level, Indonesia preserved certain bilateral agreements on judicial assistance concerning civil and commercial matters, for example between Indonesia and Thailand or between Indonesia and Australia.
According to the situation above, it is then necessary to analyze the performance of mutual judicial assistance within ASEAN framework.
- Identification of Efforts to Revitalize the Concept of Mutual Judicial Assistance and Service of Documents within ASEAN Framework
According to the situation of judicial assistance within ASEAN framework, it may be concluded that, to some extent, ASEAN has posed a great concern to the necessity of judicial assistance on criminal and civil-commercial matters. Yet, on the level of implementation, the existing mechanism is still considered as not effectively established. Generally overviewed, there is no comprehensive ASEAN treaty specifically addressing civil and commercial judicial assistance and service of documents. Whereas the existence of such treaty may facilitate the cooperation between judicial institutions in ASEAN region in administrating justice for civil and commercial cases involving person or legal entities of the state member of ASEAN.
While the other impediments which influence the implementation of judicial assistance and service of documents within ASEAN framework are:
1.The unclear hierarchy of regional treaties towards other existing regulations on judicial assistance.
It is realized that before the ASEAN regionalization, state member already has bilateral and even multilateral agreement with other countries (either member or non-member of ASEAN). In Indonesian case, Indonesia even has national law which regulates the matter of judicial assistance in criminal matters before the conclusion of the ASEAN treaty regarding the same subject. Learning from the experience of European Union, this big regional community has courage to implement the principle of “Supremacy of European Union law over the national law and International law is superior to European Union law”. This is a determinant attitude in settling the conflict of laws that may arise between two or more Acts or Treaties regulating the same subject.
2.The different procedural rules between state members.
The existing procedural rules may vary within one country to another. This fact may constitute difficulty to provide judicial assistance and service of documents as requesting state requests. For example, Indonesia recognizes the principle of cautio judicatum solvi, while the other members of ASEAN possibly do not recognize it. Or, another example, Indonesia recognize the seizure in form of “pands beslaag”, while the other states might not.
3.The problem of legal authority from the “requested” and “requesting party”.
When there is no bilateral or multilateral agreement on judicial assistance, the mechanism which is often to use is a diplomatic channel. When requesting state sends its requesting letter through diplomatic channel, it can be assumed that the requesting letter will be later addressed to the right authorities. Therefore, if there is bilateral or multilateral agreement on mutual judicial assistance for ASEAN member, the parties involved in this judicial assistance mechanism must be clearly defined because every country has different perception concerning the authorities in certain matter. For example, in case of corruption, Indonesia recognizes two investigating bodies; they are the Police and the Corruption Eradicating Commission or KPK. If requesting state requires information about the investigation of corruption case, to whom it must be addressed, the Police or KPK? The other state member may not be aware about the different competency between the Police and KPK in corruption case.
The problem of legal authority may also arise when the requesting party is apparently non-state, for example Lawyer, Public Defender, NGO, CSO, etc. Can one of them be requesting party based on the concept of judicial assistance? The unclear definition of requesting party must be clarified.
4.Lack of facilities on technology and communication.
Nowadays, technology and communication are important to serve as supporting tools to sustain the coordination and cooperation between state members. Besides, the society has been grown up in the middle of the mass of technology and sophisticated communication, and some people utilize technology and communication for criminal purpose. Therefore, the judicial authorities must be well-equipped in facing this kind of challenge.
5.The technical obstacles.
The technical obstacles may arise from the incapability of judicial authorities to adequately and properly perform on giving the judicial assistance and service of documents to the requesting state. It may happen because of the lack of education and skills.
Considering several impediments which are identified above, the efforts that may be suggested to handle those impediments are:
- The community of ASEAN must determine whether there is supremacy of ASEAN law (resulted from ASEAN treaty) over national law and supremacy of international law (resulted from multilateral non-regional treaties) over the ASEAN law or not. This is with assumption that bilateral agreement is not as binding as regional agreement because the scope of bilateral agreement is narrow and binds only two states. This is very important to enable the judicial authorities of the state members in applying and interpreting the rules concerning the judicial assistance.
- There must be harmonization of the procedural rules. It has to be pointed out that harmonizing does not practically means unifying. Harmonizing is an attempt to generalize the same matter and treat exclusively the specific and different kind of rules. For example, the result of harmonization is preserving all the procedural rules existing within each state member, but there must be general agreement about regional mandatory rules respected by each state member, for example: requesting testimony evidence from incapable person (“incapable person” is differently regulated in each country) shall be subjected to refusal. Related to this, the regional mandatory rule that may be agreed by ASEAN community is “the status of incapable person is subjected to national law”.
- There must be a firm and clear definition on “legal authorities of the requested party and requesting party” so the professionalism and the capability of the authority are conserved.
- There must be supporting facilities particularly in technology and communication to guarantee the well-performing of the judicial authorities.
- There must be continued-education and skills-improving to guarantee the professionalism and the well-performing of the judicial authorities in giving judicial assistance and service of document to the requesting party.
- It is important to form a kind of ASEAN body to supervise and to evaluate the performance of the judicial assistance and service of documents mechanism to ensure that the mechanism is performed in accordance with the vision of ASEAN community and to the related ASEAN norms.
CONCLUSION
The concept of judicial assistance and service of documents has been acknowledged by the ASEAN states member even before the existence of ASEAN treaty concerning the related matter. Nevertheless, the vision of ASEAN Community envisages the effective and strong judicial cooperation, in which judicial assistance and service of documents become a necessity to face all threats and disputes that may be arisen between the state members of ASEAN. In view of the impediments, which have and potentially influence the well-performing of the judicial assistance mechanism within ASEAN framework, some efforts have been identified to handle such things, such as the adoption of the principle “Supremacy of ASEAN law over national law and supremacy of international law over ASEAN law”; the harmonization of the procedural rules; the clear definition of legal authority of the requested party and requesting party; the availability of supporting facilities and educated and trained-skills judicial authorities. Last but not least, is the formation of a kind of ASEAN body whose function is to supervise and evaluate the performance of judicial assistance from each state member.
Author: Sandra Dini F A (Kantor Hukum Sandra Dini, Nugraha & Rekan).
Image by Thuân Tiên Nguyến,
REFERENSI
Eva Joks, “Some problems of international judicial assistance from an Estonian perspective” on: http://www.juridicainternational.eu/public/pdf/ji_1999_1_80.pdf
Eman Suparman, “Kerjasama Bidang Peradilan Antar Negara dan Upaya Penyeragaman Pranata Hukum Antar Bangsa”.
“Service Overseas-Bilateral Treaty”:
http://www.ag.gov.au/www/agd/agd.nsf/Page/Privateinternationallaw_ServiceOverseas-BilateralTreaty
Joint Communique of the Fifth ASEAN Ministerial Meeting on Transnational Crime (AMMTC)
Ha Noi, 29 November 2005.
Joint Communique of the 6th ASEAN Law Ministers Meeting (ALAWMM)
Ha Noi, Viet Nam, 19-20 September 2005.
Kuala Lumpur Declaration on The Establishment of The ASEAN Community – ASEAN Main Portal
Undang-undang Republik Indonesia No.15 tahun 2008 tentang Pengesahan Treaty on Mutual Legal Assistance in Criminal Matters (Perjanjian tentang Timbal Balik dalam Masalah Pidana).
Undang-undang Republik Indonesia No.1 tahun 2006 tentang Bantuan Timbal Balik dalam Masalah Pidana.
[1] See more: Kuala Lumpur Declaration on The Establishment of The ASEAN Community – ASEAN Main Portal
[2] See more the publication from Eva Joks, “Some problems of international judicial assistance from an Estonian perspective” on: http://www.juridicainternational.eu/public/pdf/ji_1999_1_80.pdf
[3] At the beginning, the idea of creating unification of law came from Kollewijn, which subsequently supported and developed by Sudargo Gautama. This idea reappears as the fact of regional integration grows among nations throughout the world. In Indonesia, the idea has been elaborated in some scientific works, for example see the paper presented by Eman Suparman, “Kerjasama Bidang Peradilan Antar Negara dan Upaya Penyeragaman Pranata Hukum Antar Bangsa”. See more on: http://resources.unpad.ac.id/unpad-content/uploads/publikasi_dosen/1E%20Kerjasama%20Bidang%20Peradilan.pdf
[4]See more on “Service Overseas-Bilateral Treaty”: http://www.ag.gov.au/www/agd/agd.nsf/Page/Privateinternationallaw_ServiceOverseas-BilateralTreaty
[5] Undang-undang Republik Indonesia No.1 tahun 2006 tentang Bantuan Timbal Balik dalam Masalah Pidana.
[6] Article 7 of the Act no. 1 of 2006 about the Refusal to grant mutual legal assistance can be considered as Indonesian Mandatory rules.
[7] See more: http://www.interpol.go.id/id/pertemuan-dan-event/pertemuan/106-pertemuan-working-group-pembentukan-sekretariat-aseanapol
[8] Joint Communique of the Fifth ASEAN Ministerial Meeting on Transnational Crime (AMMTC)
Ha Noi, 29 November 2005.
[9] Joint Communique of the 6th ASEAN Law Ministers Meeting (ALAWMM)
Ha Noi, Viet Nam, 19-20 September 2005. See more on: http://www.asean.org/17738.htm