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Principal Applicant Tato Suwarto delivered the petition points at judicial review session on Act of Bankruptcy and Payment Suspension (Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang) on Thursday (30/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie  

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) held a preliminary session on Act Number 37 Year 2004 of Bankruptcy and Payment Suspension (Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang) –Case Number 50/PUU-XIII/2015– on Thursday afternoon (30/4). The case was filed by Tato Suwarto who conducted judicial review on Article 69 (2) letter a Act Number 37 Year 2004.

Article 69 (2) letter a Act a quo stated “"In performing its duties, the curator: (a) are not required to obtain approval from or give prior notification to the debtor or one of the debtor organs, despite in a state outside of bankruptcy approval or such notice is required. "

The Applicant is the founder, shareholder, and director of PT. Batamas Jala Nusantara, a company founded in 1986 and based in Batam. During monetary crisis in 1998, the Applicant partner as President Director of PT. Batamec declared unable to run their business. Therefore, the solution taken was change of Applicant position which previously as Commissioner to be Director of PT. Batamec. Meanwhile the foreign partner was promoted to be Commissioner from Director position previously.

The Applicant said he was declared bankrupt and felt cheated by the foreign partner OTTO Industrial Co Pte Ltd DKK who controlled the company’s assets and operational, through planned fraudulent bankruptcy by inserting false address into the request of bankruptcy declaration. In fact, the foreign partner knew the address of PT. Batamas Jala Nusantara.

The Applicant had sentenced 10 months imprisonment due to his bankruptcy. It caused the curator was able to against the law and the rights by conducting auctions for moving items, including company’s shares auction and non-moving items auction with the buyers of their own colleagues.

The Applicant assessed Article 69 (2) letter a Act No. 37 Year 2014 didn’t provide explicit limits regarded the duties of curator. Article a quo provided dominant and unlimited rights to the curator due to the debtor as bankrupt assets owner could be regarded as outside parties in the process and settlement of bankrupt assets.

According to the Applicant, the phrase “are not required to obtain approval from or give prior notification to the debtor…” in Article 69 (2) letter a Act No. 37 Year 2014 implied restriction, revocation, and removal of the debtor’s rights to understand and to be informed about the state of bankruptcy, the debtor’s business continuity and task execution. It was also implied abolishment of the Applicant’s existence as well as provided the curator rights to classify their tasks in handling and or settling bankruptcy cases.

Responded to Applicant arguments, Constitutional Justice Maria Farida Indrati said that the petition was systematically well. “However, in the petition, you are abundantly explaining factual matters. Thus, the relation Article 69 (2) letter a Act No. 37 Year 2004 with the 1945 Constitution as the touchstone are obscure,” said Maria. “It has to be reiterated on why this article leads to your constitutional loss,” Maria added.

Meanwhile, Constitutional Justice Suhartoyo responded, “Someday you could file bankrupt petition, right? What if you had won the bankrupt petition case then Article 69 (2) letter a Act of Bankruptcy is abolished. The curator then should ask permission to the bankrupt applicant, and then the applicant is definitely objected, right? Each person who lost the case is definitely objected if his property confiscated,” added Suhartoyo.

Meanwhile, Constitutional Justice Patrialis Akbar said that the Applicant’s petition was very long so it needed to be shortened. Patrialis assessed the Applicant’s petition was more related to the matter of curator’s authority abuse. “If it is relates to authority abuse, it is not the norm matter. We already know that the Constitutional Court handles norm cases,” added Patrialis. (Nano Tresna Arfana/Prasetyo Adi N.)  

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