Finality and fallibility in the Indonesian revision system: Forging the middle ground

Binziad Kadafi

Research output: ThesisDoctoral Thesis

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Abstract

Finality and Fallibility in the Indonesian Revision System: Forging the Middle Ground
Binziad Kadafi
Revision, which is commonly referred to as peninjauan kembali or PK in Indonesia, or herziening in Dutch, is a legal remedy to review criminal court decisions that have obtained permanent legal force based on very restrictive reasons. Revision consists of three pillars: formal conditions; material grounds; and procedures. Not only in practice, the legal framework also prescribes revision as an extraordinary legal remedy.
However, the extraordinary traits of revision in Indonesia have been vanished. The number of incoming revision requests in Indonesia is high. Revision is seen as a fourth judicial process or a third level appeal process. It is sometimes seen as a substitute for ordinary appeals. As a result, even an already correct final judgment becomes susceptible to reopening, which could bring new errors in the judgment. Decisions resulting from revision also raise incoherencies and create perceptions of arbitrariness.
With such background, this study tries to answer the following research questions: (1) What are the functions of the revision system in Indonesia and how have those functions been carried out in legal practice? (2) In what way does the elaboration of the theories of finality and fallibility of judicial decision and proceedings help the regulation and the legal practice of revision in Indonesia to perform its functions?
Through a doctrinal method and the use of interviews, this study suggests that revision must have two valid functions: (1) correcting factual errors in final judgments; and (2) maintaining the finality of a final court judgment. This study also offers ne bis in idem to be the underlying doctrine in the design and the use of the revision system.
In doing so, this study explains three levels of connection between ne bis in idem and the revision system, namely: regulatory; theoretical; and operational. In addition, this study explains that ne bis in idem is relevant to both detrimental and favorable revision.
Armed with all that, this study discovers that the various problems in the Indonesian revision system were caused by placing too much weight on the correction of error. The function of revision to maintain the finality of the court’s decision has been disguised. The problems also occur because the elaboration of theories regarding the principle of finality and concerns for the fallibility of court’s decisions has been lacking.
By elaborating the theories, and by approaching ne bis in idem as the underlying doctrine of the revision, this study recommends a new foundation for the revision system in Indonesia. Among the recommendations are the introduction of falsum into the material grounds and the emphasis on the role of the trier of facts (judex factie) in the procedures for revision.
Original languageEnglish
QualificationDoctor of Laws
Awarding Institution
  • Tilburg University
Supervisors/Advisors
  • Adams, Maurice, Promotor
  • Loth, Marc, Promotor
Award date16 Dec 2019
Publication statusPublished - 2019

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