Court bailiffs have been an integral part of civil procedure. Starting as humble court servants, these officers evolved into professionals whose pivotal role ensures the equal treatment of disputing parties.
However, their role is frequently overlooked. The literal translation of their office as the confiscator (juru sita) helps create a somewhat distorted impression, partly because seizure constitutes merely one of their functions.
As Indonesia moves to modernize its civil procedure, it is therefore worthwhile to reflect upon their history. Better understanding of their evolution could help reconsider their office in the new civil procedure.
From Simple Court Servant
The need for a court functionary to deliver judicial notices and enforce rulings can be traced back to antiquity. The earliest mention of a similar officer can be found in the Corpus Iurus Civilis, the progenitor of civil law tradition, which makes mention of a comparable functionary called exsecutores.
The prototype of modern bailiff, however, finds its basis in French medieval law where the written summons proceeding was adopted in the 13th century. This proceeding requires a formal notice, called assignation, to be delivered to the defendant, informing them of the plaintiff’s claim and the date they were required to appear in the court.
At that time, the writs were initially served by an officer called sergent, whose job also includes enforcing verdicts. Additionally, there was another officer responsible for assisting judges during hearing, called the huissier.
The term huissier comes from the old French word for “door”, and, thus, literally means “doorman” or “one standing at the door”. This reflects their historical role of managing access into and maintaining order during a hearing. Over time, the sergent and huissier’s roles were eventually combined into a single office of huissier de justice, who was tasked with not only enforcing court decisions, but also serving summons.
Similar development also occurred in various provincial judiciaries across the Low Countries. For instance, the Dutch-speaking county of Lille adopted the French bailiff model as early as 1390, serving as one of the earliest examples. Subsequently, the court of Brabant and the Council of Malines followed suit.
The High Court of Holland, the apex court for the provinces of Holland, Friesland, and Zeeland, commissioned a bailiff as its functionary by 1435. In Dutch, they were similarly known as deurwaarder (doorman), a term signifying their original function in controlling access to and preserving order during a hearing. Like their French counterpart, these bailiffs served not only as order keeper, but also as court messenger.
For some time, bailiffs were regarded as a least-respected figure in society. Consequently, this made their task a risky one. Because the law makes no distinction between a commoner and a person of noble birth, the writ must be served equally to both. While ordinary people harassed them, bailiff also risk being beaten by the noblemen.
There are accounts of a bailiff being thrown through the window. In a symbolic gesture, the French King Louis XII came to the Parlement with his left arm in a bandage to demand justice for a bailiff abused by a noble. These incidents serve as a stark reminder of their desperate condition in the past.
To ensure the unwavering execution of court orders, Dutch law establish a duty of office (ministerieplicht), compelling them to perform their office, and prohibiting any interference with their work. For instance, the High Court of Holland issued an instruction on 20 Augusts 1531 requiring anyone served by a bailiff to respect their authority or face legal sanctions.
Their official role in serving summons was also underscored by their obligation to carry a baton, bearing the monarch’s heraldic badge, symbolizing the power of the state behind their legal action. This symbolic power ensures the proper execution of bailiff’s duty.
The historical role of bailiffs in enforcing judgments against immovable property, including the procedural formalities of judicial sale, has roots in the past. As Van Rhee noted in The History of the Huissier de Justice in the Low Countries, a bailiff may only initiate enforcement after authorization from the sovereign. A judgment debtor was first allowed a certain time to voluntarily comply with the rulings.
Upon non-compliance, a bailiff could investigate and seize the debtor’s property for public auction. The sale was subsequently announced through proclamations read on church and market days, informing prospective bidders and allowing opposing parties to present their case.
As civil proceedings can only be initiated with a writ of summons served by a bailiff, their capacity as the authorized court messenger solidifies their standing as the gatekeeper of civil procedure (poortwachter van de civiele procedure). Similarly, their role in enforcing judicial verdicts establishes their reputation as the enforcer of civil law (handhaver van het burgerlijk recht). While the parties may subsequently make their case before a judge, it is the bailiffs who are entrusted to execute the final decision once the court reaches its ruling. A bailiff, while an unsung judicial functionary, assumes thus a crucial role in ensuring the due process of civil procedure.
The bailiff’s reinvention as a respectful profession was continued by the French with a decree in 1813 defining their authority as a full-fledged court officer and strict requirements for entry into the profession. After the French annexed the Netherlands in 1795, the edict was implemented in the Netherlands until replaced by the 1934 Bailiff Regulation.
A notable development is the transformation of bailiff’s profession from a court attached functionary into a more liberal profession (vrije beroep), allowing them to perform nonjudicial tasks, such as debt collecting and providing legal advice.
Nowadays, the Dutch has its own specific regulation on court bailiff enacted in 2001 (the Court Bailiffs Act/ Gerechtsdeurwaarderswet) which cemented the professionalization of court bailiff not only as judicial officer, but also as liberal profession.
Court Bailiff in Colonial Indonesia
The colonial judiciary as established by the VOC has known a rudimentary form of court bailiffs. As noted by La Bree in De Rechterlijke Organisatie en Rechtsbedeling te Batavia in de XVIIe Eeuw, the Court of Justice in the 17th century Batavia had a court secretary whose function encompasses judicial task, such as attending judicial auction (openbare verkoping) and other enforcement of rulings.
The modern prototype of the Indonesian bailiffs originates, however, from the establishment of the colonial Supreme Court, Hooggerechtshof van Nederlandsch Indie, in 1819. This was accompanied with the issuance of an instruction on bailiffs’ office with a somewhat clunky name: Instructie voor de Deurwaarders en Exploiteurs van den Hoogen Raad van Justitie te Batavia, mitsgaders van de Raden van Justitie te Samarang en Sourabaya (Instruction for the Bailiffs of the High Court of Justice in Batavia and Court of Justice in Semarang and Surabaya). As the name suggests, court bailiffs served mainly as order keepers (deurwaarder) and messengers (exploiteur).
In the former capacity, bailiffs maintained order and controlled access to hearings, whereas in the latter they served judicial notices. The regulation also mandated that bailiffs must carry a judicial baton and wear a silver breastplate when serving summonses. Failure to wear these tokens of authority would result in the nullification of the summonses.
The formalities inherent in bailiff’s work were not only limited to their attire, but also extended to their practical tasks. For instance, bailiffs were required to personally serve summonses to the recipients. If the person was not present, the summons would be given to a spouse or another family member if they were willing to accept it.
Should all family members refused, the bailiff would post a copy of the summons on the door of the concerned person’s house. This formal process also applied to the enforcement of judicial orders, such as execution of judgements, civil detention (gijzeling) and seizures, which could only be conducted with rulings or written authorization from the court.
The colonial apex court saw the first appointment of two court bailiffs by the name of Van den Heuvel and Jollie on 30 January 1819, who would perform their office until 1830. Interestingly, until the overall colonial judicial reformation in 1848, there were only 11 persons serving as the superior court’s bailiffs. The 1819’s instruction on bailiff’s office would remain in force until its eventual replacement with the 1847’s Regulation on the Judiciary (Reglement op de Regterlijke Organisatie, Staatsblad Number 1847, 23) which would be the main legal framework of the judiciary in colonial Indonesia until the Japanese occupation in 1942.
Modern Indonesian Court Bailiffs
Before 1847, regulations for court bailiffs were sporadic and disjointed, with specific rules only for those assigned to the colonial supreme court. The enactment of the 1847’s statute on the colonial judiciary established uniform regulation for court bailiffs at all levels of tribunals. Curiously, article 196 of this regulation retained the outdated bailiff’s role of maintaining order in the courtroom. This contrasts with contemporary Indonesian bailiffs, who no longer perform such a function. A parallel development also occurred in the Netherlands, where this task was phased out completely in the 1970s because of bailiff’s transformation into an independent legal profession.
Serving summonses and enforcing rulings remain the primary responsibilities of court bailiffs. Under article 198 of the 1847’s regulation, court bailiffs were invested with the authority to serve summons and judicial notices. This provision is subsequently replicated in Indonesian civil procedural codes, namely article 388 HIR and 716 RBg.
However, apart from the court’s chairperson and greffier, these codes did not expressively state the role of court bailiffs within the entire enforcement procedure.
Such a role is bestowed by article 54 paragraph (2) of the Law Number 48 of 2009 on the Indonesian Judiciary, which states that the judicial enforcement of civil ruling is to be performed by the court’s greffier and bailiffs under the leadership of the court’s chairperson.
The year 2022 marked the dawn of digital transformation in Indonesian civil procedure with the issuance of Supreme Court Regulation Number 7 of 2022, which consolidated digital proceedings.
It established the framework for the e-court system, expanding its scope to include the entire litigation proceedings. Provided the case was digitally registered, the plaintiff can initiate digital proceedings without the other party’s consent.
This change also allows court bailiffs to serve writs of summons to the parties’ digital domicile. In the same vein, the apex court instituted a new system of serving summonses by registered mail. With the issuance of the Supreme Court Circular Letter Number 1 of 2023, registered mail was incorporated into the service of process, complementing electronic summons.
The shift of the service of process to postal mechanism is not without solid legal grounds. In fact, article 388 HIR and 716 Rbg, explicitly grant equal authority to serve judicial notices to these three functionaries: bailiffs (deurwaarders), messengers (boden), and servants of the court (dienaren). Accordingly, the inclusion of postal service to serve summonses remains within the ambit of this provision. In other words, the change has clear legal grounds in the existing procedural codes.
These developments have reduced Indonesian court bailiff’s functions within civil procedure. Service of process, which was formerly their traditional province, has been taken over by digital means and postal service. As a result, their role is now limited to the enforcement of civil rulings, which includes conducting confiscation, eviction, and judicial sale of the defendant’s real properties at the behest of the court’s chairpersons.
Reconsidering Court Bailiff’s Role in the New Civil Procedure
In expectation of the new procedural code, there are several reasons to reconsider the court bailiff’s role in the service of process. Traditionally, bailiffs are regarded as the gatekeepers of the civil process because they must properly serve a writ of summons to commence every civil proceeding.
While postal service streamlines this procedure, judges in some instances have no choice but to return to using bailiffs as the mail delivery still indicates defects such as delivery failure. This was caused by the lack of numbered addresses in remote areas, making delivery challenging even for the mail carrier. By contrast, court bailiffs naturally strive to identify the concerned parties correct address and personally deliver the summons. This makes their service preferable to mail service.
The service of summons by a court bailiff also provides more assurance to the concerned parties. Not only is a court bailiff the dedicated person to performing service of process but they are also subject to stringent measures that hold them accountable for any negligence and misconduct. For example, Article 21 Rv expressively requires a court bailiff to compensate the concerned party for any losses if a writ is nullified due to the bailiff’s actions. By contrast, such an indemnification does not typically apply to failure of delivery by a mailman, illustrating the higher standard of liability placed on court officials.
In closing, the long history of bailiffs within civil procedure has indicated their indispensability in ensuring that both sides are informed of the ongoing proceedings. Whatever the system of service of process is ultimately adopted in the new code, it should guarantee a fair hearing by ensuring that both parties are reliably notified of the legal proceedings. Together with the postal service, the court bailiff could play this crucial role.
References
- C. H. van Rhee, Geschiedenis van het Deurwaardersambt, Van Nederige Dienaar to Zelfbewuste Professional, dalam Justitiële Verkenningen, 1993 (3);
- C.H. van Rhee, The History of the ‘Huissier de Justice’ in the Low Countries, in C.H. van Rhee & A. Uzelac (Eds.), Enforcement and Enforceability: Tradition and Reform, Ius Commune Europaeum, 84, Intersentia, Antwerp, 2010;
- M. Teekens, De Gerechtsdeurwaarder, Rechts en Praktijk, Kluwer B.V., Deventer, 1973;
- Christina van den Berg-Smit, De Gerechtsdeurwaarder: Ambtenaar en Ondernemer, Ontwikkelingen in de Beroepsuitoefening en de Gevolgen voor de Opleiding, Maklu-Uitgevers, Appeldoorn, 2013;
- Kees Briët, Het Hooggerechtshof van Nederlands-Indië 1819-1848, Potret van een Vergeten Rechtscollege, Amsterdam University Press B.V., Amsterdam, 2015;
- J. La Bree, De Rechterlijke Organisatie en Rechtsbedeeleing te Batavia in de XVIIe Eeuw, Nijgh & Van Ditmar N.V., Rotterdam, 1951;
- TH. Korporaal, De Deurwaarder, Zijn Ontstaan, Zijn Bestaan, Van Gorcum & Comp. N.V., Uitgevers, Assen, 1939;
- Dutch Law on the Court Bailiffs (Gerechtsdeurwaarderswet, Staatsblad 2001, 70);
- Indonesian Law Number 48 of 2009 on the Indonesian Judiciary (Undang-undang Kekuasaan Kehakiman);
- Supreme Court Circular Letter Number 1 of 2023 on the Procedure for Summons and Notices by Registered Mail (Surat Edaran Mahkamah Agung Nomor 1 Tahun 2023 tentang Tata Cara Panggilan dan Pemberitahuan Melalui Surat Tercatat);
- Indonesian Civil Procedure (Herziene Inlandsche Reglement, Staatsblad 1941, 44, and Rechtsreglement voor Buitengewesten, Staatsblad 1927, 227);
- Regulation on the Colonial Judiciary (Reglement op de Regterlijke Organisatie en het Beleid der Justitie in Nederlands-Indie, Staatsblad 1847, 23).
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