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HKPI as Related Parties represented by Azet Hutabarat delivered testimony at judicial review on Act of Bankruptcy and Payment Suspension, on Thursday (2/7) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) again held judicial review session on Act Number 37 Year 2004 of Bankruptcy and Payment Suspension (Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang –UU Kepailitan) –Case Number 50/PUU-XIII/2015 on Thursday afternoon (2/7). The session was scheduled on hearing Related Parties testimony, in this case were the Indonesian Curators Association (Himpunan Kurator dan Pengurus Indonesia –HKPI) and the Central Information Commission (Komisi Informasi Pusat –KIP)

The HKPI represented by Azet Hutabarat delivered that Article 69 (2) Act of Bankruptcy wasn’t stand alone, but it linked with other articles on Act a quo.

“This article isn’t stand alone. The first link is referred to Article 24 (1) Act of Bankruptcy which stated that the debtors was by law lost their right to control and manage their assets which included on bankruptcy estate since the date of bankruptcy decision declared. Therefore, if Article 69 (2) becomes the objection, it would clash with prevailing regulations which regulated on Article 24 (1), so the debtors lost their right to manage (their assets, red) and its authority is given to the curators as stipulated in the Act a quo,” said Azet Hutabarat who served as HKPI’s Chairman of Ethics Board (Ketua Dewan Komite Etik HKPI).

The HKPI also argued, the substance of debtors’ right loss became a strong principle as stipulated in Article 1 (1) Act of Bankruptcy which stated, “Bankruptcy is common confiscation towards entire assets of bankrupt debtor in which the curator taking care of it under the supervision of supervisory judges, as stipulated in the Act a quo.” (“Kepailitan adalah sita umum atas semua kekayaan debitur pailit yang mengurus dan membereskannya dilakukan oleh kurator di bawah pengawasan hakim pengawas, sebagaimana diatur dalam undang-undang ini.”).

“Certainly the Applicant objection is important material which binding and related to Article 1 (1) Act of Bankruptcy; therefore it is impossible the curator could choose whether or not conducts it (confiscation, red), as objected by the Applicant if this Article removed,” said Azet.

Azet said, Article 1 (1) Act of Bankruptcy related to Article 69 (2) because the curator duty was taking care and conducting settlement on bankruptcy estate. According to him, it was difficult to be implemented if the curator should request approval to bankrupt debtors, in this case were bankrupt law entity companies. 

Meanwhile, KIP Commissioner Evi Trisulo said entire matters related to public policy should be transparent, based on Act Number 14 Year 2008 of Public Information Transparency (Undang-Undang Keterbukaan Informasi Publik). Evi explained, court decisions including decisions related to people’s bankruptcy were one of the forms of public policy, in this case was court policy. It meant that the bankrupt debtor could be categorized into parts which affected to public interest because it related to individual’s assets in a case.

“Related to individual’s assets, even though Article 17 stated that (asset information, red) is exception information, however in Article 18 stated it is not included as exception information if under the approval of relevant parties,” Evi explained.

As known, the Applicant was Tato Suwarto as founder, stakeholder and director of PT. Batamas Jala Nusantara which established in 1986 and located in Batam. During monetary crisis in 1998, Applicant partner as director of PT. Batamec declared unable to continue his business. The solution was shifting position between him and his partner; he shifted to commissioner of PT. Batamec and his partner replaced him as director of PT. Batamec.

The Applicant said that he was declared bankrupt and felt cheated by his foreign partner OTTO Industrial Co Pte LTD who controls his company assets, by inserting false address to his bankrupt petition. In fact, his partner knew the actual address of his company.

Due to his bankruptcy, the Applicant had imprisoned for 10 months. It caused the curator could freely violated the law and against the rights to conduct auction towards moving goods, including company stock auction and non-moving goods in which the buyer was from internal company. The Applicant considered had lost his property right on bankrupt estate which including in general confiscation in which the management conducted by the curator under supervisory judges. Therefore, the Applicant assessed Article 69 (2) letter a Act of Bankruptcy which stated “In carrying out their duty, curators: (a) are not required to grant approval or give prior notification to debtors or one of the debtor organs, although the approval and notification is required in condition outside the bankruptcy.” (“Dalam melaksanakan tugasnya, kurator: (a) tidak diharuskan memperoleh persetujuan dari atau menyampaikan pemberitahuan terlebih dahulu kepada debitur atau salah satu organ debitor, meskipun dalam keadaan di luar kepailitan persetujuan atau pemberitahuan demikian dipersyaratkan.”), didn’t provide clear borders on curator duty.

The Article a quo was assessed gave dominant and unlimited rights to the curator by placing the debtor who owned bankruptcy estate as external party in the process of bankrupt estate management and settlement. (Nano Tresna Arfana/Prasetyo Adi N)

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