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Even in USA which was super capitalist, labor s position still got the priority.

Case of Act No. 37/2004 about bankruptcy and the delaying of loan payment (Bankruptcy Act) trial was getting hot. Indeed, the petition had been brought twice by the officer of Federation of Indonesian Labor  Unity (Federasi Ikatan Serikat Buruh Indonesia (FISBI)) as well as 137 ex-labor of PT Sindoll Pratama. Last time, the petition was stated un-acceptable by the Constitutional Court (Mahkamah Konstitusi (MK)) since FISBI could not present Experts nor Witness to support the petition.

Now, FISBI is getting serious. Ex Coordinator Minister of Economy in Gus Dur era, Rizal Ramli was presented. Rizal explained his knowledge about Bankruptcy Act. “The Act was made by the foreigner,” he said in MK s Court Room, Tuesday (8/26). He said, nature of the forming of the Act was to protect international investors and was the effect of Letter of Intent between International Monetary Fund (IMF) and Indonesian Government.

Indeed, Rizal was very regret with the content of Bankruptcy Act which prefer to  protect the investor than to protect the right of the labor. He said that the formers of Bankruptcy Act were not stupid. “But they have interests,” he stated.         

As information, the petitioners complained some articles of Bankruptcy Act. Those were Article 29, Article 55 paragraph (1), Article 59 par (1) and Article 138. Point of the problem, the articles considered to make the position of the labor under the secure creditor.

When a company was bankrupt, the secure creditor would get the first priority. In fact, the labor often got nothing because majority of the treasure was ended, given to the secure creditor. FISBI considered all regulation violated Article 28D par (2) 1945 Constitution. 

Rizal criticized the articles which considered to violate the right of labor. He also gave sample of the distribution of creditor type existed in USA and some European countries. “Even in super capitalist country like USA, the labor stand above the secure creditor,” he said. He confessed that he wondered with what happened in Indonesia. “How come, in Indonesia, labor stand under secure creditor”, he added.

In USA, Rizal continued, there was a hierarchy of the sides which should be priority to be paid with the treasure when bankruptcy happened. First, administration fee. Second, statute claim, where tax and worker s salary as well as extra-wage which had not been paid consisted there. Third, secure creditor. Fourth, the un-secure creditor. 

Parliament and Government as the Act former responded. They explained why the Bankruptcy Act was like that. Directory General of General Law Administration of the Ministry of Law and Human Right Syamsuddin Manan Sinaga said that the regulation brought the legal certain to all kind of creditors such as secure creditor, preferent, concurrent, as well as labor.

Contradictory of the Act

A member of Commission III of the Parliament Nursyamsi Nurlan thought that the protection toward secure creditor automatically protected citizens. In fact, the secure creditor was a bank which gave loan to company with . So, since the bank had been protected, consumer of the bank also would be protected. “It is a legal protection for thousands bank consumer,” he said. Labor Lecturer of Law Faculty of Atmajaya University, Surya Candra confessed that it was so complicated. He considered that there were a contradictory between two Acts, they were Act No.13/2003 about Employee and Bankruptcy Act. When Bankruptcy Act made secure creditor as the priority, Employee Act made the labor as it.

Surya brought Article 95 paragraph (4) of Employee Act which stated "In case a company was getting bankrupt or was liquidated, based on the regulation, the payment of employee/labor s salary and another rights of them is a loan which should be the piority".

Nursyamsi criticized that the contradictory of the Acts was not the court s authority. He stated the court only has a right to  study the constitutionality of the Act. However, Surya brought different opinion. “If there is a contradictory between them, we should turn it back to constitution. So, the petitioner has done a right thing”, the Executive Director of Trade Union Right Centre (TURC) said. He also let the Court to decide where the Court would go. “To protect the secure creditor or human (labor)?” he said. 

The Constitutional Justices also got interested in the legal discuss. Constitutional Justice Maruarar Siahaan confessed that he was interested with creditor hierarchy which made the labor stand above the secure creditor. However, he did not get any explanation from Experts brought by the Petitioners. “We also need to hear explanations from the Experts brought by the Government,” he finally said. In the next trial, indeed the session would be held to hear the explanations of the Experts brought by the Government.(Ali)

Source www.hukumonline.com (26/08/08)

Photo Constitutional Court s document

Translated by Kencana Suluh Hikmah/MKRI

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