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Attorney Rene Tantrajaya delivering the subjects of the petition in the preliminary hearing of the material review of Article 235 paragraph (1) and Article 293 paragraph (1) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Thursday (5/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary examination hearing of the material review of Article 235 paragraph (1) and Article 293 paragraph (1) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (PKPU) against the 1945 Constitution on Thursday (5/3/2020) in the Plenary Courtroom of the Constitutional Court. The case No. 17/PUU-XVIII/2020 was petitioned by Mr. Gi Man Song and Mrs. So Yun Kim, South Korean investors and shareholders of foreign investment company PT Korea World Center Indonesia.

In the hearing presided over by Constitutional Justice Enny Nurbaningsih, the Petitioners, represented by attorney Rene Tantrajaya, confirmed that their constitutional rights and/or authority had been impaired de facto and de jure and they experienced legal discrimination due to Article 235 paragraph (1) and Article 293 paragraph (1) of the KPKPU Law. The Petitioners were declared bankrupt, along with all legal consequences, in a case of Request for Delaying Debt Payment Obligation (PKPU).

The Petitioners believe they were declared bankrupt not because of debts but an obligation to pay the services of a mediator, which was clearly unlawful and detrimental to them as investors who had contributed to the development of Indonesia. "In fact, homologation was approved by all creditors, which should have been carried out and should not have been rejected by the judge only because there was no guarantee for the payment of the management team\'s fees, even though the Petitioners had provided 7 (seven) written transfer instructions on an active account for payment of the fees, and they were received by the management team," Rene said.

The Petitioners had requested a review of court decision, which was denied. The ruling stated that the a quo case started from suspension of debt payment (PKPU), in which case the provision of Chapter III Article 289 of the KPKPU Law applies, in which Debtors were declared bankrupt. On the ruling, the provision of Article 290 in conjunction with Article 293 of the KPKPU Law applies. It means that there is not any legal action to be taken, including request for a review of court decision, as regulated in Article 14 in conjunction with Article 290 of the KPKPU Law.

The Petitioners believe that Article 235 paragraph (1) and Article 293 paragraph (1) of the KPKPU Law are against Article 28D paragraph (1) of the 1945 Constitution, which states that each person has the right to recognition, security, protection, and certainty under the law. The article leads to legal uncertainty and injustice, because there is no clear and firm interpretation of the clause “extraordinary remedies cannot be filed,” while those remedies are absolute right for legal certainty and justice.

In addition, those articles do not reflect the principle of justice, causing constitutional harm to both the Petitioners and other debtors, whose cases are not simple. With the limitation of legal remedies, it is possible that loopholes will be exploited to create an unfair business competition with the aim of bringing down and stopping its competitors\' business through commercial justice. According to the Petitioners, this must be prevented and should not happen, because Indonesia really needs investors’ confidence to invest in the country for the development of Indonesia, the results of which are expected to be enjoyed for the prosperity of all Indonesian people.

Therefore, in their petitum, the Petitioners requested that the Constitutional Court declare Article 235 paragraph (1) and Article 293 paragraph (1) of the KPKPU Law unconstitutional and not legally binding along with all its legal consequences. 

Petitioners Not Indonesian

Constitutional Justice Enny Nurbaningsih said that in a judicial review, the Petitioners must pay attention to their legal standing. "So, it must be noted that the Constitutional Court Law is related to who can actually submit a petition for a judicial review at the Constitutional Court," she said. According to her, the Constitutional Court Law explicitly states to submit a petition individually, one must be an Indonesian citizen (WNI). Meanwhile, the Petitioners are not Indonesian nationals.

Similarly, Constitutional Justice Suhartoyo said that the Petitioners needed to observe past petitions to improve the structure of and revise the petition.

The Petitioners were given 14 days to revise the petition until Wednesday, March 18 at 12:30 WIB. (Utami/NRA)

Translated by: Yuniar Widiastuti

Translation uploaded on 3/10/2020

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