---

Panel petition revision hearing of the judicial review of Law on Mortgage over the Land and Objects Related to the Land (Mortgage Law), Tuesday (17/11/2020) 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 another judicial review hearing of Law No. 4 of 1996 on Mortgage over the Land and Objects Related to the Land (Mortgage Law) on Tuesday, November 17, 2020. The petition of case No. 84/PUU-XVIII/2020 was filed by homemaker Rosmanidar.

Article 6 of the Mortgage Law 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.

Through attorney Irfandi, the Petitioner conveyed the revision to the background of the petition. Irfandi said Article 6 of the Mortgage Law doesn’t have a clear provision on what happens if a debtor passes away; it only discusses the debtor. “If the debtor hadn’t passed away, the a quo article wouldn’t be problematic or have caused loss to the Petitioner,” he said virtually before Constitutional Justices Manahan M. P. Sitompul (panel chair), Wahiduddin Adams, and Saldi Isra.

He also said the a quo article only discusses the settlement of a defaulting debtor’s debt, but doesn’t discuss the debtor’s heir. In practice, the two have the same legal standing but are different legal subjects. Therefore, the Petitioner requested that the Court declare the a quo article unconstitutional and not legally binding.

Also read: Debtor’s Heir Questions Lack of Provision in Mortgage Law 

At the preliminary hearing, the Petitioner explained that as the heir of a debtor Mardi, she 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.

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

Translation uploaded on 11/18/2020 20:00 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.

---