Inri Januar, Oktoriusmas Halawa, and Eliadi Hulu delivering the subjects of the judicial review petition of Law No. 4 of 1996 on Mortgage over the Land and Objects Related to the Land (Mortgage Law) on Tuesday (12/5) in the Panel Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
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 of laws against the 1945 Constitution. The Court recently held a judicial review hearing of Law No. 4 of 1996 on Mortgage over the Land and Objects Related to the Land (Mortgage Law) with physical distancing in compliance with health protocols set by the Health Ministry and the WHO.
In order to avoid public misperception, panel chairman Constitutional Justice Suhartoyo said that Constitutional Court offers the petitioners and their attorney(s), the government, experts, witnesses, and other parties to come to the courtroom or to hold the hearing online.
He said that 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.
In the preliminary hearing of case No. 21/PUU-XVIII/2020, Petitioners I through III Inri Januar, Oktoriusmas Halawa, and Eliadi Hulu were in attendance. They argue that Article 14 paragraph (3) and Article 20 paragraph (1) of the Mortgage Law are contradictory to Article 1 paragraph (3), Article 27 paragraph (1), Article 28D paragraph (1), Article 28G paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution.
Article 14 paragraph (3) of the Mortgage Law reads, “The certificate of mortgage as referred to in paragraph (2) has the same executorial power as a court decision that has obtained permanent legal force and is valid as a substitute for grosse acte hypotheek insofar as it relates to land rights.” Article 20 paragraph (1) of the Mortgage Law reads, “In the debtor defaults, based on a. the right of the first mortgage holder to sell the object of mortgage as referred to in Article 6, for b. executorial title contained in the certificate of mortgage as referred to in Article 14 paragraph (2), the object of mortgage shall be sold through a public auction in accordance with the procedure specified in the legislation for the repayment of the mortgage holder by taking precedence over other creditors.”
The Petitioners believe that the object of mortgage over land and objects related to the land includes the buildings on or below the land. They feel that they are potentially harmed as, in principle, those articles provide guarantee and legal certainty protection to the holder of the mortgage right (creditor) by equalizing the executorial powerof the certificate of mortgage against a court decision that has permanent legal force. Thus, the Petitioners deem the articles only focusing on providing legal certainty to the creditor. The creditor can execute the mortgage object immediately, if the mortgage holder (debtor) defaults.
“Therefore, the provision of the a quo articles, especially along the phrases ‘executorial power,’ ‘the same as a court decision that has obtained permanent legal force,’ and ‘defaults’ have led to injustice and legal uncertainty for debtors,” explained Eliadi, one of the Petitioners, before the Court presided over by Constitutional Justice Suhartoyo, along with Constitutional Justices Wahiduddin Adams and Manahan M. P. Sitompul.
In their argument, the Petitioners cited J. Satrio that the debtor is said to default if they do not fulfill the obligations of the contract and if there is an oversight. If the debtor did not make a mistake, then they cannot be said to have defaulted or breached the contract. One of the criteria in this category is that when the debtor experiences an urgent situation, it can only be proven through the court. Therefore, the statement of default or breach of contract should not only be based on the unilateral assessment by the creditor.
In addition, the Petitioners also believe that if the debtor could prove they default not because of their own will, but due to an urgent condition (overmacht), a mechanism is needed for them to obtain justice and legal certainty. Therefore, the Petitioners are of the opinion that the articles do not provide legal protection, justice, and legal certainty for debtors.
Constitutional Damage
Constitutional Justice Wahiduddin advised the Petitioners to clarify the constitutional damage that they experienced due to the enactment of the norms. “Actually, […] the law is 24 years old and is quite important because it relates to the mortgage over land. So, you could observe this law from others’ experiences to see whether there is conflict and damage, including for the Petitioners,” he said.
Constitutional Justice Manahan M. P. Sitompul requested that the Petitioners elaborate ‘executorial power,’ ‘the same as a court decision that has obtained permanent legal force,’ and ‘defaults’ in the article.
Constitutional Justice Suhartoyo advised the Petitioners to explain the correlation between their constitutional rights and the mortgage right. He illustrated it by supposing that the Petitioners are the owners of collateral for a house or land that is pledged to the bank and because of a situation there are unpaid installments. Meanwhile, the bank does not accept any excuse. So, he added, the bank may seize the object of the mortgage.
He then said that the Petitioners should provide a concrete case to illustrate their constitutional damage better. “This law is different from the Fiduciary Law because creditors have executorial title [in the Fiduciary Law] while in this norm [they] do not, because a court [ruling] is required, because the object of mortgage is still owned by the debtor. Meanwhile, in the Fiduciary Law, one [puts up a good] as collateral and there is transfer of title. So, there is a difference if your focus is on the breach of contract. So, relate it to the breach of contract for mortgage,” he explained.
Before concluding the session, Justice Suhartoyo reminded the Petitioners to submit a revised petition no later than Wednesday, May 27, 2020 at 11:00 WIB to the Registrar’s Office of the Constitutional Court. (Sri Pujianti/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 05/13/2020
Tuesday, May 12, 2020 | 18:49 WIB 193