Facing Criminalization, Two Leasing Collectors Challenge Fiduciary Law
Image


The Petitioner’s attorney Ari JC Pasaribu delivering the subjects of the petition in the judicial review hearing of the Fiduciary Law, Monday (11/5) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Amidst the large-scale social restrictions (PSBB) in the Jakarta Special Capital Region, the Constitutional Court (MK) continues to hold judicial review hearings with physical distancing in compliance with health protocols set by the Health Ministry and the WHO. In the judicial review hearing of Law No. 42 of 1999 on Fiduciary, the panel chairman Constitutional Justice Suhartoyo said that the petitioners and their attorney(s), the government, experts, witnesses, and other parties can watch the hearing online.

The Constitutional Court uses Zoom and Cloudx to enable litigating parties to follow the court hearing from their respective locations. When filing a petition for an online hearing, they must inform the Court’s ITC team of their communication devices at least two days prior.

On Monday (11/5/2020), the Court held a hearing for case No. 19/PUU-XVIII/2020 petitioned by Pazriansyah and Firdaus (Petitioners I and II). The Petitioners argue that Article 30, Article 23 paragraph (2), and Article 36 of the Fiduciary Law are contrary to the 1945 Constitution. According to them, as individual citizens who work as internal collectors of a financial service company in Tembilahan, Pekanbaru, Riau, in a concrete case when executing fiduciary security, they were reported of theft and damage by a defaulting debtor who had no ability to fulfill the terms of the financing agreement. They were then sentenced for five months following the Supreme Court Decision No. 282 K/PID/2018 dated May 8, 2018.

The Petitioners argue that they were unfairly treated and accused of stealing the object of fiduciary security, which supposed to be the creditor’s responsibility. They believe that the Fiduciary Law gives creditors preferential treatment in the collecting and execution of fiduciary security, both by employees or internal collectors of financial service companies or external collectors. Negative responses of bad creditors hinder collectors in doing their job and subject them to criminalization.

“While in fact, they (the Petitioners) have done their job in compliance with the Fiduciary Law. The debtor defaulted, so the creditor could take the fiduciary security in the form of motorcycle,” explained one of the Petitioners’ attorneys Ari JC Pasaribu, in the panel hearing that was also presided over by Constitutional Justices Arief Hidayat and Enny Nurbaningsih.

Therefore, the Petitioners are of the opinion that the provision of the articles does not provide legal certainty and may not even provide adequate legal protection for collectors in carrying out their job, as stated in Article 1 paragraph (3), Article 24 paragraph (1), Article 27 paragraphs (1) and (2), Article 28D paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution.

Structure of the Petition

Constitutional Justices Arief Hidayat responded that the petition did not follow the structure of a petition in the Constitutional Court. He explained that a petition must contain the Petitioners’ profile, the articles being reviewed, the touchstone, the Court’s authorities, the Petitioners’ legal standing, the posita, and the petitum. He advised that they study the petitions available on the Court’s website.

“The petition doesn’t need to be too long, but the matter being reviewed is explained in the petition and the basis of its review against the 1945 Constitution should be focused and sharp. This petition is not sharp and it doesn’t focus on the things that the Court needed [to know in relation to] the constitutional loss experienced by the Petitioners," he explained.

Justice Enny Nurbaningsih said that as the Constitutional Court reviews the constitutionality of laws, the Petitioners must clarify the articles to be reviewed and make it consistent. “[What is the touchstone?] Do not haphazardly include the articles because for the constitutional provisions that appear in the petition, you are also responsible for explaining them," she explained.

Justice Suhartoyo advised that the Petitioners pay close attention to their status as petitioners, whether as individuals or a professional, which is crucial in determining their legal standing. They are expected to show evidence regarding their profession, in the form of a power of attorney that allows them to collect or take the debtor’s fiduciary collateral.

“You must include evidence. Otherwise, you wouldn’t be able to get to the subject of the petition. Therefore, [you] must strengthen your legal standing first,” he advised the Petitioners.

Before concluding the session, Justice Suhartoyo reminded the Petitioners to submit a revised petition no later than Tuesday, May 26, 2020 at 09:30 WIB to the Registrar’s Office of the Constitutional Court so that the Court can schedule the next hearing. (Sri Pujianti/ASF/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 05/13/2020


Monday, May 11, 2020 | 16:46 WIB 156