Panel hearing of judicial review of Limited Liability Company Law (UU PT), Tuesday (10/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

A number of liquidators conducted a judicial review on Law No. 40/2007 on Limited Liability Companies (UU PT), on Tuesday (10/4). The Petitioners of case No. 29/PUU-XVI/2018 are M. Achsin (Petitioner I), Indra Nur Cahya (Petitioner II), Eddy Hary Susanto (Petitioner III), Anton Silalahi (Petitioner IV), Manonga Simbolon (Petitioner V), Toni Hendarto (Petitioner VI), Handoko Tomo (Petitioner VII).

In the petition, the Petitioners convey their grievances against the enactment of the ten articles in the UU PT, that is, Article 142 paragraph (2) letter a, paragraph (3), Article 143 paragraph (1), Article 145 paragraph (2), Article146 paragraph (2), Article147 paragraph (1), paragraph (2) letter b, Article148 paragraph (2), Article149 paragraph (1), paragraph (2), paragraph (4), Article150 paragraph (1), paragraph (4), Article151 paragraph (1), paragraph (2), and Article152 paragraph (1), paragraph (3), paragraph (7), paragraph (7). The Petitioners questioned the absence of clear requirements related to the liquidator profession. This has led to legal uncertainty and criminalization threat of the Petitioners\' profession.

The Petitioners’ attorney Reza Indrawan Samir mentioned that clear requirements and terms about the liquidator profession are needed by the Petitioners. Therefore, Reza added, UU PT only lays down the roles, duties, and authority of a liquidator without describing the meaning of the liquidator and the requirements that must be met to become a liquidator. "Without clear requirements, anyone can claim himself as [someone] who works as a liquidator," he explained in the session presided over by Constitutional Justice Arief Hidayat.

Reza said that the factual losses suffered by the Petitioners are that many foreign liquidators (non-Indonesian citizens) conduct liquidation practices against Indonesian legal entities or foreign companies in Indonesia. On the other hand, the potential loss that liquidators can suffer is the absence of legal protection due to unclear definition of the liquidator. This is seen as a cause to the criminalization of the liquidator profession.

Similarly, Reza added, is the phrase "directors shall act as liquidators" in Article 142 paragraph (3). This phrase is considered leading to potential conflict of interest because when the directors act as liquidators, surely the directors will save the company\'s assets so as not to lose money. "So it can be said that the actions of the directors do not apply objectively in performing the duties/function of the liquidator, which is to divide the company\'s assets to creditors," he explained.

Reza said that the directors in a PT (limited liability company) and the liquidator cannot be equated because each has its own expertise. So both should complement each other with their expertise. For this reason, the Petitioners requested that the a quo articles be declared contradictory to the 1945 Constitution.

Justices’ Advice

In response to the petition, Constitutional Justice Aswanto requested that the Petitioners elaborate on the principal points of the petition that he judged had not reflected the constitutional impairment suffered by the Petitioners. "This is so that the Court can be convinced that what the Petitioners experience is a constitutional issue, not a concrete case," he said on the case No. 29/PUU-XVI/2018.

Constitutional Justice Arief Hidayat requested that the Petitioners add academic references related to the liquidator profession, especially compared to similar professions abroad. The Petitioners, he said, had also made a comparison to the existing liquidator profession in Australia, but the Petitioners must also take into account the characteristics of the legal system existing in Indonesia. "Australia implements the common law, while we are more influenced by the civil law," he explained. (ARS/LA/Yuniar Widiastuti)