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Virtual panel preliminary examination hearing of the judicial review of Law on Mortgage over the Land and Objects Related to the Land (Mortgage Law), Monday (2/10/2020) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary examination hearing of the judicial review of Law No. 4 of 1996 on Mortgage over the Land and Objects Related to the Land (Mortgage Law), Monday noon, November 2, 2020. The virtual hearing took place in the Plenary Courtroom with presiding Constitutional Justices Manahan M. P. Sitompul (chair), Wahiduddin Adams, and Saldi Isra.

The petition of case No. 84/PUU-XVIII/2020 was filed by Rosmanidar, who was represented by Mohammad Yusuf Hasibuan, Irfandi, and Afandi Arief. She challenges Article 6 of the Mortgage Law, which reads, “If the debtor defaults, the first Mortgage holder has the right to sell the object of the mortgage on their own authority through a public auction and to repay their receivables from the proceeds of the sale.” The Petitioner alleged that the article violated Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution.

Yusuf explained that the Petitioner is the heir of debtor Mardi Can who didn’t get her rights due to the enactment of Article 6 of the Mortgage Law because there was no clarity whether, upon the debtor’s death, all heirs were responsible for the settlement of the debtor’s debts. In comparison, Article 16 paragraphs (1) and (2) of the Mortgage Law states that upon the debtor’s death or if the receivables guaranteed by inheritance rights are transferred due to inheritance, the mortgage rights are transferred to the new creditor and it must be registered with the land office. However, if the debtor dies, it is not strictly regulated by law that registration with the land office is required to transfer the debtor’s obligations to their heirs. This is very detrimental to the Petitioner’s constitutional rights because on the one hand the creditor has legal certainty, while the Petitioner as a debtor’s heir does not.

Justices’ Advice

Constitutional Justice Wahiduddin Adams advised the Petitioner to study previous Constitutional Court decisions such as Decision No. 70/PUU-VIII/2010, which rejected the petition whose touchstones were different from the one being reviewed. “It is important that the Petitioner study judicial review [cases] against Article 28D paragraph (1) and Article 28G paragraph (1) [of the 1945 Constitution], whether there is any difference with [the previous case] that used Article 27 paragraph (1) and Article 28D paragraph (1) [as touchstones],” he said. He also advised her not to only explain her concrete case but also the contradiction between the norm petitioned and the touchstones to support her argument of the norm’s unconstitutionality.

Meanwhile, Constitutional Justice Saldi Isra said that the Petitioner must explain the contradiction between Article 6 of the Mortgage Law and Article 28D paragraph (1) of the 1945 Constitution. “[The contradiction] will be judged by the Court. If there is no explanation and argument regarding that, it is possible that the petition be ruled obscure. So, this should be explained because the Court will no rule on concrete cases; the Court only judge the constitutionality of norms,” he said.

Constitutional Justice Manahan M. P. Sitompul said that the Petitioner’s status as an heir should be proven with a relevant document. Before concluding the session, Justice Manahan reminded the Petitioner to submit a revised petition no later than Monday, November 16, 2020 at 13:30 WIB to the Registrar’s Office, after which the Court will schedule the next hearing.

Writer: Sri Pujianti
Editor: Nur R.
PR: Tiara Agustina
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/06/2020 21:30 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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