Class actions were formally regulated in 2002 in the form of Supreme Court Regulation (PERMA) No. 1 Year 2002 on 26 April 2002. The PERMA regulates lawsuits filed in groups, one of which is a class action. The definition of class action based on PERMA RI Number 1 Year 2002 is a method of filing a lawsuit in which one or more persons representing a group file a lawsuit for themselves or themselves and at the same time represent a group of people who are many in number, who have similar facts or legal basis between the group representative and members of the group in question.

Class action lawsuits are a form of lawsuit on behalf of the public interest. This is an efficient solution because in filing a lawsuit with many class members there is no need to mention the identity of the parties one by one. In fact, class action lawsuits are not widely known by the public, even the skills of judges in handling these cases are still limited. The problem of class action lawsuits becomes more complicated when there are many parties who become class members. The judge in examining the case must be guided by PERMA No.1 of 2002 by carefully examining who are the class members. The parties listed in the lawsuit are not necessarily part of the group that is directly harmed, it is necessary to review the possibility that the names listed are simply drawn without the knowledge and consent of the parties concerned. This must be proven by a statement made in writing by each class member that they include parties who feel their interests are harmed.

Based on Article 1 of PERMA Number 1 Year 2002, what is meant by Class Action is ‘a procedure for filing a lawsuit, in which one or more persons representing a group file a lawsuit for themselves or themselves and at the same time represent a group of people who are many in number, who have the same facts or legal basis between the group representative and the members of the group in question’. Meanwhile, what is meant by group representative is one or more people who suffer losses who file a lawsuit and at the same time represent a larger group of people.

According to Black’s law dictionary, a class action is ‘a large group of persons interested in a cause of action, one or more of whom may sue or be sued on behalf of the large group of persons without the necessity of naming in any one instance the members represented.’

A class action can be a method for individuals with similar claims to join together to bring claims more efficiently, and a person who will participate in a class action must consent to representation.’

According to the Glorilier Multi Media Encyclopedia, a class action is ‘a lawsuit filed by one or more members of a community group representing all members of the community group.’

In the laws and regulations in the Unitary State of the Republic of Indonesia, there are several regulations governing Class Action, namely as follows: 1) Law No. 8 Year 1999 on Consumer Protection; 2) Law No. 41 Year 1999 on Forestry; 3) Law No. 32 of 2009 on Environmental Protection and Management; and 4) Law No. 17 of 2019 on Water Resources.

Based on the description above, the author is interested in discussing How is the Class Action Mechanism?

Discussion:

Every citizen has equal rights before the law and he has the right to defend his rights if he feels harmed by another party. This is the rationale for the regulation of civil lawsuits. In general, there are two types of civil lawsuit models: lawsuits conducted outside the court are known as non-litigation, while lawsuits conducted through the courts are called litigation. Therefore, a civil lawsuit can be the basis for the organisation of a civil court.

Class action is a method for individuals with similar claims to join together to bring claims more efficiently, and a person who will participate in a class action must consent to representation. This means that the fundamental uses of class action include case efficiency, economical litigation, avoiding repetitive judgements that may risk inconsistent judgements in the same case.

In the laws and regulations in the Unitary State of the Republic of Indonesia, there are several regulations governing Class Action, as follows:

1. Law No. 8 Year 1999 on Consumer Protection

Article 46 Paragraph (1) letter b states that:

‘A lawsuit against a business offence may be brought by:

1. an aggrieved consumer or his/her heirs;
2. a group of consumers who have the same interest;
3. …… dst ’

Law No. 41 Year 1999 on Forestry

Article 71

‘The community has the right to file a representative lawsuit to the court and or report to law enforcement against forest destruction that harms people’s lives.’

Article 71 Paragraph (2)

‘The right to file a lawsuit as referred to in paragraph (1) is limited to claims against forest management that is not in accordance with applicable laws and regulations.’

Article 73 Paragraph (1)

‘In the context of implementing forest management responsibilities, forestry organisations have the right to file a representative lawsuit for the purpose of preserving forest functions.’

Article 73 Paragraph (2)

‘Forestry sector organisations entitled to file a lawsuit as referred to in paragraph (1) must meet the following requirements: a. be in the form of a legal entity; b. the organisation in its articles of association explicitly states the purpose for which it was established in the interest of conserving forest functions; and c. have carried out activities in accordance with its articles of association.’

Law No. 32 Year 2009 on Environmental Protection and Management

Community Suit Right

Article 91

Paragraph (1)

‘The public has the right to file a class action lawsuit for their own interests and/or for the interests of the community if they suffer losses due to environmental pollution and/or damage.’

Paragraph (2)

‘A lawsuit can be filed if there is a similarity in facts or events, legal basis, and type of claim between the group representative and the group members. Paragraph (3) Provisions regarding the right to sue the public shall be implemented in accordance with laws and regulations.’

Environmental Organisation’s Suit Right

Article 92

Paragraph (1)

‘In the context of implementing the responsibility for environmental protection and management, environmental organisations have the right to file a lawsuit in the interest of preserving environmental functions.’

Paragraph (2)

‘The right to file a lawsuit is limited to a demand for certain actions without a claim for damages, except for real costs or expenses.’

Law No. 17 Year 2019 on Water Resources

Article 61 Paragraph (1)

In carrying out Water Resources Management, the community has the right to:

h. file a lawsuit with the court against various Water Resources issues that are detrimental to his/her life.

The legal basis for conducting a Class Action lawsuit is PERMA No. 1 of 2002 concerning Procedures for Class Action Lawsuits with representative lawsuit procedures must fulfil the following requirements:

1. Numerosity, which is the number of class members must be so large that it is not effective and efficient if the lawsuit is conducted individually.
2. Commonality, there is a similarity of facts (events) and similarity of legal basis (question of law) between the class representative and the represented party (class members). representative and the represented party (class members). Class representatives are required to explain this commonality.
3. Typicality, both the claim (for a Class Action plaintiff) and the defence (for a Class Action defendant) of all represented class members must be similar. members must be typical. In general, in class actions, the type of claim that is demanded is the payment of damages.
4. Adequacy of representation, the group representative must have honesty and sincerity to protect the interests of the group members represented, by fulfilling several requirements:
5. must have the same facts and/or legal basis as the group members they represent;
6. have strong evidence;
7. honestly;
8. has the sincerity to protect the interests of its group members;
9. have an attitude that does not prioritise their own interests over the interests of their group members; and
10. able to bear the costs of the court case.
11. A lawsuit, in addition to fulfilling the formal requirements as stipulated in the Civil Procedure Law, must contain:
12. complete and clear identity;
13. detailed and specific definition of the group;
14. information about group members;
15. posita of the whole group;
16. If the claims are not the same because of the different nature of the damages, then one claim may be grouped into several parts or sub-groups;
17. compensation claims or petitions, distribution mechanisms and proposed team formation.

Failure to fulfil the requirements as mentioned above may result in the lawsuit being inadmissible.

The parties who can file a Class Action Lawsuit, are as follows:

1. Society;
2. Non-Governmental Organisations;
3. Government.

Procedures for Filing a Class Action Lawsuit in the District Court:

The lawsuit is registered with the public court, as soon as the judge decides that the class action is valid, the group representative notifies the group members through print/electronic media, government offices or directly to the group members. After the notification is made, the group members are given the opportunity to leave the group membership within a certain period of time. The trial proceeds in accordance with the provisions stipulated in the Civil Procedure Law (1. Examination of the Parties; 2. Mediation; 3. Reading of the lawsuit letter by the plaintiff; 4. Answer from the defendant; 5. Replication or the plaintiff’s response to the answer submitted by the defendant; 6. Duplication or the defendant’s response to the plaintiff’s response in the replication; 7. Evidence which is the presentation of evidence and hearing witnesses; 8. Conclusion which is a resume and is simultaneously read by both parties; 9. Decision).

Based on Article 2 of PERMA RI No. 1 Year 2002, a lawsuit can be filed using the Class Action procedure if:

1. The number of class members is so large that it is not effective and efficient to sue individually or jointly in one lawsuit;
2. There are similarities in facts or events and similarities in the legal basis used which are substantial, and there are similarities in the types of claims between group representatives and group members;
3. Group representatives have the honesty and sincerity to protect the interests of the group members they represent;
4. The judge may advise the group representative to change lawyers, if the lawyer acts contrary to the duty to defend and protect the interests of the group members.

The provisions of procedural law in class actions in Indonesia are specifically regulated in PERMA RI No. 1 Year 2002 concerning class actions. However, to the extent not regulated by PERMA No. 1 Year 2002, the provisions of the prevailing Civil Procedure Law (HIR/RBg) apply to class actions. To represent the legal interests of the class members, the class representative is not required to obtain a special power of attorney from the class members (Article 4 PERMA RI No. 1 Year 2002). Under the provisions of Indonesian civil procedural law, there is no obligation for the parties (either the plaintiff or the defendant) to be represented by another person or lawyer during the trial. The parties may directly appear in the examination process at trial. However, as is customary in court proceedings, the parties are usually represented or authorise a lawyer to appear in court. In class action cases, the provisions of the Civil Procedure Code require that if the class representative is represented by a lawyer, a special power of attorney must be executed between the class representative and the lawyer.

Closures:

Based on the above, the author concludes as follows:

The class action lawsuit pursued by a group in a dispute resolution effort is motivated by good reasons in accordance with its purpose, which is more directed towards simplifying access to the public in obtaining justice, as well as streamlining the efficiency of resolving violations of the law that harm many people. Through this class action lawsuit, it is expected to be able to realise the provisions stipulated in the judicial power, that justice is carried out simply, quickly and at low cost, or what is often referred to as the principle of the Trilogy of Justice. But besides all that, in the course of its journey there are shortcomings that cause its own criticism for class action lawsuits, starting from the determination of group membership itself, to compensation that is considered small and inappropriate.

Author: Rahmat Nur Najib, S.H.