---

Panel preliminary hearing of the judicial review of the Civil Code (KUHPerdata), Thursday (6/12) in the Panel Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

Jandi Mukianto, an ethnic Chinese individual citizen, filed a judicial review of the Civil Code (KUHPerdata). The Petitioner of case No. 96/PUU-XVI/2018 considered the word "Chinese" in the Civil Code impairing his constitutional rights. The first hearing of the case was held on Thursday (6/12) in the Panel Courtroom of the Constitutional Court led by Constitutional Justice Arief Hidayat, accompanied by Constitutional Justices Suhartoyo and Enny Nurbaningsih. 

One of the attorneys, Rendy Alexander, said that the word "Chinese" in the Civil Code limited the function and purpose of law enforcement in Indonesia, which adheres to the principles of certainty, justice, and expediency. In relation to this definition, in when the Petitioner wanted to make a Certificate of Inheritance in a concrete case, he must contact a notary. Meanwhile, ethnic groups other than Chinese only need to come to the kelurahan and get an attestation letter. "As a result, the Petitioner had to pay a considerable amount of money as there is something that distinguishes between Chinese and those other than Chinese," explained Rendy. 

Regarding this, the Petitioners also believe that when a law when is formed and applies it has to apply universally and not only to certain groups. However, in the Civil Code there is still the word "Chinese." According to the development of the Unitary State of the Republic of Indonesia, the spirit of the Civil Code is no longer relevant. "Thus, the word "Chinese" needs to be abolished," said Rendy in the presence of the Petitioners and two other attorneys. 

Therefore, the Petitioners requested that the panel of justices declare the content of every chapter, article, and paragraph containing the word "Chinese" in the Civil Code not to have binding legal force. 

Classification of People

Constitutional Justice Enny Nurbaningsih questioned the proposed substitute word to the word "Chinese" in the Civil Code. According to her, the word does not intend to be discriminatory because it is an element already existing in the Civil Code for population classification. "That there is a distinction when doing a certain legal act that requires [you] to go to the notary office, is that the discrimination referred to?" she asked. 

Constitutional Justice Suhartoyo observed that the petition should fall within the legislative review because it is related to the Civil Code legislation. In addition, according to him, the word "Chinese" stated in the petitum does not have binding legal force might be related to privately recognized regulations. "What if in the future there is a rights dispute related to material law among fellow Chinese descents, where one might want resolve it by the national law and the other thinking that private rights must be distinguished?" said Justice Suhartoyo. 

Discrimination 

Constitutional Justice Arief Hidayat said that Indonesia was built from a diverse structure, including cultures, ethnicity, customs, and religions. The Constitutional Court defines discrimination as the idea that different people must be treated differently and that the same people should not be treated differently. Thus, according to him, in the concrete case described by the Petitioner in which he felt that he received a different treatment in the management of inheritance rights, which required the notary, no clear reason for the discrimination was stated in the petition. "It is still not clear where the discrimination is. In civil law there are indeed different treatments and different people cannot be treated equally," Arief explained.

Before closing the session, Justice Arief reminded the Petitioner to submit a revised petition no later than Wednesday, December 19, 2018 at 10.00 a.m. to the Registrar\'s Office of the Constitutional Court to schedule the next session. (Sri Pujianti/LA/Yuniar Widiastuti)

---