Plenary judicial review hearing of Law on Fiducia Security, Tuesday (12/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Tugofo.

The Constitutional Court held the judicial review of Law No. 42 of 1999 on Fiducia Security in the Panel Courtroom of the Constitutional Court on Tuesday (12/03/2019). The case No. 18/PUU-XVII/2019 was petitioned by Aprilliani Dewi dan Suri Agung Prabowo. They argued that Article 15 paragraphs (1), (2), and (3) of the Fiduciary Law that reads, “(1) The Fiducia Security Certificate as referred to in Article 14 section (1) contains the words “IN THE NAME OF JUSTICE BASED ON THE ONE AND ONLY GOD ”; (2) The Fiducia Security Certificate as referred to in section (1) has the same executorial power as that of a final and binding court decision; (3) If a debtor is in default, the Fiducia Recipient has the right to sell the Goods being the object of Fiducia Security upon its own power,” had violated their constitutional rights. They deem the a quo article contradicting Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.

Before the Court chaired by Constitutional Justice I Dewa Gede Palguna accompanied by Constitutional Justices Suhartoyo and Enny Nurbaningsih, Suri Agung said that his car, a Toyota Alphard V Model 2.4 A/T 2004, had been seized by PT Astra Sedaya Finance (PT ASF).

The Petitioner had made a Multipurpose Financing Agreement to finance the purchase of the luxury car. In accordance with the agreement, he was required to pay the loan to PT ASF for Rp222,696,000 in 35-month installments starting November 18, 2016. In November 18, 2016 - July 18, 2017 the Petitioner had finished paying the installments. However, on November 10, 2017, PT ASF sent a representative to seize the car on the grounds of default. The Petitioner subsequently filed a letter of complaint regarding the seizure by PT ASF representative. However, it was not responded, until he received more mistreatments.

In response to the mistreatments, the Petitioner took a legal action by filing a civil suit to the South Jakarta District Court on April 24, 2018 in case No. 345/PDT.G/2018/PN.jkt.Sel. The court granted the Petitioner\'s claim by stating that PT ASF had committed an illegal act. However, on January 11, 2018, PT ASF once again seized the Petitioner\'s car in the presence of the police. The Petitioner considered that PT ASF had taken refuge behind the article reviewed in the a quo case even though, Suri Agung added, the decision of the South Jakarta District Court is higher than the a quo law. Thus, the Petitioner argued that there was no legal juridical reason for PT ASF to seize his car by face, including on the basis of the a quo article.

"In accordance with the results of the court\'s decision, PT ASF [should not have taken] the car. But in reality, they did. So, due to the a quo article the constitutional loss is that the position of the creditor, PT ASF, has legal force, while the debtor does not, [contrary to the] court\'s ruling," said Suri Agung accompanied by Aprillia. 

Constitutional Loss

Constitutional Justice Palguna questioned the obscurity of the constitutional loss conveyed by the Petitioner. He observed that the petition only outlined the concrete case experienced by the Petitioner. He then requested that the Petitioner study the conditions for constitutional loss. “So, why does the article contradict [the Constitution]? You must focus on the article being reviewed by elaborating the constitutional loss due to the enactment of the a quo law against the 1945 Constitution. Why do they contradict?” he asserted.

Constitutional Justice Enny suggested that the Petitioners learn the format of the petition. She said that the petition was hard to understand. “So, revise the format [as well as legal standing] following the template of petition. If the [legal standing] is unclear, [you] will not be able to proceed to the subject of the petition. So, what is the constitutional right given by the a quo law that was violated?” she asked. (Sri Pujianti/NRA/Yuniar Widiastuti)