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The Petitioners’ attorney Ari J. C. Pasaribuan in the ruling hearing of the judicial review of the Fiduciary Law, Thursday (25/6) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) decided to dismiss the judicial review petition of Law No. 42 of 1999 on Fiduciary filed by employees Pazriansyah and Firdaus from Indragiri Hilir Regency, Riau.

"The [Court] adjudicated, declares the Petitioners’ petition not accepted," said plenary chairman Chief Constitutional Justice Anwar Usman along with the other constitutional justices in the ruling hearing in the Plenary Courtroom of the Constitutional Court.

The Petitioners of case No. 19/PUU-XVIII/2020 challenged Article 30 of the Fiduciary Law that reads, “The Fiduciary Grantor must submit the Goods being the object of Fiduciary Security for the execution of the Fiduciary Security,” as well as its Elucidation that reads, “In the event that the Fiduciary Grantor fails to deliver the Goods being the object of Fiduciary Security at the time of the execution, the Fiduciary Recipient has the right to collect the Goods being the object of Fiduciary Security and, if necessary, may ask for help from the authorized party.”

The Petitioners are internal collectors who act on behalf of PT Indomobil Finance Indonesia in Tembilahan branch to collect arrears. They were given power by the company to collect fiduciary security object from Yusnida Binti Yulius Hatta, who were in arrears for three months. However, they were reported by said debtor to Indragiri Hilir Precinct police of theft and damage under Article 363 and/or 406 of the Criminal Code (KUHP).

According to the Petitioners, that happened because the original intent of Article 30 of the Fiduciary Law and its Elucidation does not provide clear interpretation of the collection of fiduciary security object. Therefore, they felt that their constitutional rights had been violated when doing their job as a financial service company’s internal collectors and they felt they hadn’t received equal and fair acknowledgement, guarantee, protection, and legal certainty as well as equal treatment before the law as stated in Article 28D paragraph (1) of the 1945 Constitution.

Article 50 paragraph (5) of the Regulation of the Financial Services Authority (OJK) No. 29/POJK.05/2014 on the Business Activities of Financing Companies reads, "Employees and/or outsourced personnel of financial service companies that handle billing are required to have professional certificates in billing from institutions designated by the association by notifying the OJK and providing a reason for their appointment," as amended by Article 65 paragraph (5) of the OJK Regulation No. 35/POJK.05/2018 on the Business Activities of Financing Companies that reads, “Employees and/or outsourced personnel of financial service companies that handle billing and execution of collateral are required to have professional certificates in billing from designated institutions in financial services that are registered with the Financial Services Authority.”

After examining the evidence submitted by the Petitioners, the Court did not find evidence that the Petitioners met the criteria stipulated in the provisions, in particular a professional certificate in billing from a professional certification body in financing that is registered with the OJK. The legal facts served to assess whether the Petitioners qualify as collectors as specified in Article 50 paragraph (5) of the OJK Regulation No. 29/POJK.05/2014, amended by Article 65 paragraph (5) of the OJK Regulation No. 35/POJK.05/2018. 

The Court only received a substitution power of attorney on vehicle collection No. 4/SKS-COLL/TBL/2017 dated January 17, 2017 that gave the Petitioners power as collectors for PT Indomobil Finance Indonesia of Tembilahan branch to collect one unit of two-wheeled motorized vehicle to PT Indomobil Finance Indonesia without a sufficient duty stamp. “Therefore, the Court did not have confidence in the evidence, thus did not consider [the evidence],” said Constitutional Justice Arief Hidayat who read out the Court’s opinion.

Based on the legal considerations, because the Petitioners did not meet the qualification as legal subjects as specified in Article 51 paragraph (1) of the Constitutional Court Law, the perceived constitutional damage wasn’t further considered. "Therefore, the Court concluded that the Petitioners did not have legal standing to file the a quo petition," he said. (Nano Tresna Arfana/ASF/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 06/26/2020

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