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Ike Farida as Applicant accompanied by her attorney delivered petition points at judicial review session on Act of Agrarian Basic Regulations and Act of Marriage on Wednesday (24/6) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) held further judicial review session on Act Number 5 Year 1960 of Agrarian Basic Regulations (Undang-Undang Pokok Agraria) and Act Number 1 Year 1974 of Marriage (Undang-Undang Perkawinan) which filed by a Japanese foreigner wife Ike Farida on Wednesday (24/6). At the panel session led by Deputy Chief Anwar Usman, the Applicant revised petitum and strengthened petition arguments.

Revising petitum, the Applicant said the phrase ‘Indonesian citizens’ in Article 21 (1) and Article 36 (1) Act of Agrarian Basic Regulations should be interpreted “all Indonesian citizens in entire circumstances, conditions, as well as marital status, particularly Indonesian citizens who married with foreigners along the citizens didn’t have dual citizenship and didn’t lost their Indonesian citizenship.”

Applicant also requested to the Court to declare the phrase ‘since rights granted’ in Article 21 (3) Act of Agrarian Basic Regulations contrary to the Constitution if didn’t interpreted ‘since ownership shifted’. According to the Applicant, based on the general explanation on Act of Agrarian Basic Regulations, main basis and potential on Act a quo establishment was nationality principle to ensure Indonesian citizens’ legal certainty which in accordance with Article 33 (3) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945)

According to the Applicant, Article 21 (3) Act of Agrarian Basic Regulations had different meaning from legislators’ main objectives. The phrase ‘since rights granted’ was interpreted as since rights occurred. If applied on marriage law particularly on intermarriage, the phrase should have meaning ‘since purchasing or granting ownership rights or building rights title (hak guna bangunan) by Indonesian citizens who conduct intermarriage.

As for Act of Marriage, according to the Applicant, the phrase ‘during or before marriage conducted’ in Article 29 (1) and Article 29 (3) Act of Marriage and the phrase ‘during the marriage lasted’ in Article 29 (4) Act of Marriage were contrary to the 1945 Constitution.

Previously the Applicant reviewed provisions on Article 21 (1) and (3), Article 36 (1) Act of Agrarian Basic Regulations and Article 29 (1), Article 35 (1) Act of Marriage which stated:

 

Article 21 (1) Act of Agrarian Basic Regulation

Indonesian citizens only who could have property right

(Hanya warga-negara Indonesia dapat mempunyai hak milik.)

Article 21 (3) Act of Agrarian Basic Regulation

Foreigners who after this Act enacted granted property right because intestate inheritance or treasury mixing due to marriage, as well as Indonesian citizens who have property right after the enactment of Act lost their citizenship are obliged to release their right within one year since the right granted or the citizenship lost. If the right released after the time limit passed, the right is removed by law and the land handed over to the State, in terms other parties’ rights which burdened are still remained.

(Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarganegaraannya wajib melepaskan hak itu didalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarganegaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.)

Article 36 (1) Act of Agrarian Basic Regulation

People who may have building rights are: a. Indonesian citizens; b. legal entities established under Indonesian law and located in Indonesia.

(Yang dapat mempunyai hak guna bangunan ialah: a. warga negara Indonesia; b. badan hukum yang didirikan menurut hukum Indonesia dan berkedudukan di Indonesia.)

Article 29 (1) Act of Marriage

During or before marriage, both parties under join agreement could conduct written treaty which legalized by marriage registrar officials, after which its contain also applied to third party along the third party related.

(Pada waktu atau sebelum perkawinan dilangsungkan, kedua pihak atas persetujuan bersama dapat mengadakan perjanjian tertulis yang disahkan oleh Pegawai pencatat perkawinan, setelah mana isinya berlaku juga terhadap pihak ketiga sepanjang pihak ketiga tersangkut.)

Article 35 (1) Act of Marriage

Property acquired during the marriage becomes joint property.

(Harta benda yang diperoleh selama perkawinan menjadi harta bersama.)

 

According to the Applicant, the norms above had removed her rights to grant Freehold and Building Right Title (Hak Milik dan Hak Guna Bangunan). It was because the apartment purchasing treaty conducted by the Applicant was unilaterally cancelled by the developers because her husband was foreigner and the Applicant had no marriage agreement. The Applicant added, the purchasing cancellation was justified by East Jakarta District Court decision which stated the cancellation of order letter as a result of unfulfilling objective validity terms of an agreement, which was violation to Article 36 (1) Act of Agrarian Basic Regulation.

“It can be concluded Applicant’s right to own apartment is wiped out by the enactment of articles in Act of Agrarian Basic Regulation and Act of Marriage,” said him at the session of Case Number 69/PUU/XIII/2015 on Thursday (11/6) at Plenary Room, the Constitutional Court Building

Therefore in the petitum, the Applicant requested the Court to declare the phrase ‘Indonesian citizens’ in Article 21 (1) and Article 36 (1) Act of Agrarian Basic Regulation contrary to the Constitution and had no legal binding if it wasn’t interpreted ‘an individual Indonesian citizen without exception’ (warga negara Indonesia tunggal tanpa terkecuali).

Moreover, the Applicant requested the Court to declare the phrase during or before marriage and so forth in Article 29 (1) Act of Marriage contrary to the 1945 Constitution and had no legal binding. The last was the Applicant requested to the Court to declare the phrase ‘joint property’ in Article 35 (1) Act of Marriage contrary to the Constitution if it wasn’t interpreted as ‘right to sue’. (Lulu Hanifah/Prasetyo Adi N)

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