Legal counsel Veri Junaidi delivering the points of revision of the judicial review of Law on Fiducia Security, Tuesday (26/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court held the second judicial review hearing of Law No. 42 of 1999 on Fiducia Security in the Panel Courtroom of the Constitutional Court on Tuesday (26/03/2019). 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 contradict Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.

Legal counsel Veri Junaidi conveyed the revision to the petition, including the addition of Article 1 paragraph (3) of the 1945 Constitution, which stipulates that all actions must go through a clear legal process. According to Veri, based on the background and scope of executor rights within the a quo article, through legal considerations, the a quo article emerged during an economic crisis that required guarantees in granting loans. To strengthen the executor, he added, the a quo article and fiduciary certificates were created. However, the provision of the a quo article does not provide fair legal certainty.

"So, it does not explain the position of the fiduciary certificate if faced with a court ruling or breach of trust whether it is unilateral to the creditor even though it involves debtor and creditor. So, there is a unimplemented legal mechanism of an execution process that provides legal guarantees for both parties,” Veri explained before the Court presided over by Constitutional Justice I Dewa Gede Palguna, in the company of Constitutional Justices Suhartoyo and Enny Nurbaningsih.

Veri also conveyed the Petitioner’’s argument on their constitutional impairment in the form of legal uncertainty. The Petitioners observed that the fiduciary certificate was prioritized over a court ruling. Veri expressed doubt if the guarantee certificate can overrule a court ruling, despite not having binding legal force. Therefore, through the petitum the Petitioners argued that the a quo article is contrary to the 1945 Constitution.

The Petitioners had previously argued that their car, a Toyota Alphard V Model 2.4 A/T 2004, had been seized by PT Astra Sedaya Finance (PT ASF). They 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. (Sri Pujianti/LA/Yuniar Widiastuti)