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Youngky Fernando as the Petitioner’s attorney reading out the principal points of the petition in the preliminary hearing of the Agrarian Law on Monday (8/1) in the Courtroom of the Constitutional Court  Photo by Humas MK/Ifa.

The Constitutional Court (MK) held a preliminary hearing for the judicial review of Article 21 paragraph (3) and Article 26 paragraph (2) of Law No. 5/1960 on Basic Regulations on Agrarian Principles (Agrarian Law) on Monday (8/1). The hearing was chaired by Constitutional Justice Manahan M.P. Sitompul, accompanied by Constitution Justices I Dewa Gede Palguna and Suhartoyo, and held in the Courtroom of the Constitutional Court.

Below are the articles petitioned by the Petitioner.

Article 21 paragraph (3) of the Agrarian Law

“Any foreigner, who after the coming into force this law has obtained the right of ownership through inheritance, without a will or through communal marital property and any Indonesian citizen too, having the right of ownership and losing nationality after the coming into force of this law, are obliged to relinquish that right within a period of one year after the obtaining of that right of after losing that nationality. If after expire of that period the right of ownership is not relinquished, then it becomes invalid by the provision that the right of other parties, incumbent hereon, endure.”

Article 26 paragraph (2) of the Agrarian Law

"Each sale and purchase, exchange, gift, bequest by will and other acts which are meant to transfer the right of ownership directly or indirectly to a foreign, to a national possessing a foreign nationality in addition to his/her Indonesian nationality in addition to his/her Indonesian nationality, or to a corporation, except those which have been by the Government as meant in Article 21, clause (2) are not valid by law the provision that rights of another party incumbent therein remain valid and that all payments which have been received by the owner may not be reclaimed."

The case No. 101/PUU-XV/2017 was filed Oltje J.K. Pesik, a housewife. Through her attorney, Youngky Fernando, the Petitioner claimed the a quo articles potentially harming her constitutional rights. Youngky explained the phrase "by law" and "other acts which are meant to transfer the right of ownership directly or indirectly" in both articles have multiple interpretations that led to legal uncertainty for the citizen or Petitioner seeking legal truths in the Cibadak Religious Court, the Religious High Court of Bandung, and the Religious Affairs of the Supreme Court.

Youngky also stressed that the phrase also indirectly transfers the property of the Petitioner to a foreign national. According to him, the phrase raised the question of constitutionality because the meaning of the phrase "by law" is immediately valid without further legal process.

"Therefore, the Petitioner appealed to the Constitutional Court to declare Article 21 paragraph (3) contradictory to the 1945 Constitution and having no binding legal force as long as it is not interpreted \'by law\' or, in other words, \'by law\' immediately applies without legal process. And [for the Court] to state, the phrase in Article 26 paragraph (2) contradictory to the 1945 Constitution as long as it is not interpreted as ‘other acts which are meant to transfer the right of ownership directly or indirectly’ also including the stipulation and decision of a court that transfer the right to land belonging to a citizen of the Republic of Indonesia to become a joint property with a foreign national," Youngky explained when reading the Petitioner’s petitum.

Justices’ Advice

In response to the petition, Justice Manahan gave several notes for improvement to strengthen the arguments of the petition. He suggested that the Petitioner elaborate her legal standing. "It is necessary to elaborate the concrete case experienced by the Petitioner as well as her constitutional rights, and not to mention the decisions related to the things experienced by the Petitioner," he explained.

Meanwhile, Justice Palguna also observed that the petition was very detailed in elaborating the concrete case, so it seemed as if he was reading a civil case. He also considered that the petition not related to the constitutionality of the norm.

"This is a petition for judicial review with a simple frame of mind. So reading this petition is like reading a civil case and it has nothing to do with the norm to be reviewed. So, reconsider the legal standing, qualification, and the constitutional rights that are harmed," said Justice Palguna.

Meanwhile, Justice Suhartoyo found it difficult to understand the petition because he saw an effort to seek a point of view by trying to examine the norms claimed to harm the Petitioner\'s constitutional rights.

At the end of the hearing, Justice Manahan stated that the Petitioner was to submit a revision on Monday, January 22, 2018 at 10:00 a.m. at the latest. (Sri Pujianti/LA/Yuniar Widiastuti)

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