THE DEVELOPMENT OF WITNESS EVIDENCE IN CIVIL PROCEDURAL LAW IN THE ERA OF GLOBALIZATION AND THE COVID-19 PANDEMIC

The negative and positive impacts of globalization which are colored covid-19, one side threatens world safety, on the other hand increases the use of technology in all areas of life. One of which  has an impact on the settlement of legal cases through the court. So that when the local government conducts a lockdown policy,resulted in many  legal cases through court hearings pending the implementation of the settlement. Especially in the matter of proving witnesses evidence. In civil cases, although the evidence of a letter is considered to be the most important, because the letter was intentionally made with a view to proving an event that occurred, the witness also proved an event that occurred. Both of these evidences were brought together by the litigation before the judge.

From the judicial bodies, there have been alternative ways to settle civil cases for the smooth running of the evidence witness hearing  through electronic means through teleconference media. So that judicial activities continue after there is agreement from the parties who litigate, even though communicating visually via online. This method of verification has been confirmed in Supreme Court Regulation (PERMA) number 1 of 2019 concerning Case Administration and Trials in Courts Electronically. This PERMA also confirms the validity of electronic evidence that has been contained in Act Number 11 of 2008 concerning Information and Electronic Transactions yo Act No 19 of 2016 concerning Amendment to Act No 11 of 2008 concerning Information and Electronic Transactions.

If you look back at the regulation of evidence in the civil procedural law that has taken place so far, as determined in article 164 HIR / 284 RBG and book IV BW, it states: the evidence consists of letters, witnesses, allegations of confession and oaths. These evidences are binding on the judge in examining civil cases in the event of civil evidence at the trial.

These evidences are very related to the burden of proof of civil cases, because article 1865 BW / 163 HIR / 283 RBG determines; "whoever claims to have a right and to determine that right or deny the rights of another person, that person must prove the existence of that right, or event".

Based on the aforementioned articles, the burden of proof on a civil case through a court is carried out by the litigants and the distribution of the evidence is carried out by the judge. Means to prove and judge judges in this evidence both for the parties and the judge are bound by the implementation of the evidence set out in article 164 HIR / 284 RBG and book IV BW.

The evidentiary regulation regulated in HIR / RBG or BW is seen from the history of its formation originating from the Dutch Colonial government which embraced the proof of the continental legal system (continental legal system) and is closed in nature, and the regulation is dominated by statutory law. So that in this closed system, it is evident in proving the existence of rights or events that can only be done by using evidence that is already regulated in the law.

In the development of the legal world, which is currently inseparable from globalization and colored by the covid pandemic 19, the legal system of proof in Indonesia is not the time to rely on the closed system of proof. But it was expanded with an open evidentiary system and still fulfilled the terms and conditions in the civil procedural law according to the HIR / RBG. As the formal requirements of witnesses that must be met, among others: the person who is a witness must be competent, his statement must be given verbally and personally in advance of the trial in accordance with article 144 HIR / 171 RBG / 1905KUH Civil and take an oath at the trial in accordance with article 147HIR / 175RBG / 1911KUH Civil Code. Thus the examination of witnesses even though through a visual teleconference in front of the trial, also still provides information verbally and personally in advance of the trial. Likewise with the appointment of witness oaths, although judges and court officers who guide the oath are in the courtroom where the case is examined continue to take an oath by holding the scriptures according to the witness's religion, the witness still follows the oath in different places through the teleconference intermediary. Likewise, the material requirements, such as the testimony of a witness in providing information as evidence, must be fulfilled based on what was seen, heard and experienced.

Therefore, it is appropriate for the Supreme Court to issue PERMA Number 1 of 2019 as its authority to further regulate matters needed for the smooth running of justice, if there are things that are not sufficiently regulated in the law. These rules are guidelines that must be applied by the judge when handling a case. This is in accordance with the principle of justice that the judge must not refuse to examine and decide the case that was submitted to him. Even though the legal excuse is absent and unclear.

A more open evidentiary system that has been affirmed in PERMA No. 1 of 2019 so that it has a stronger legal position, as well as in creating the principles of justice, usefulness and legal certainty, it is important later to be published in the progressive reform of national civil procedural law (changes towards improvement ).