---

Attorney Saiful Anam detailing the revision to the petition virtually at the judicial review hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Wednesday (18/11/2020). Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another judicial review hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (Bankruptcy Law) on Wednesday, November 18, 2020. The petition No. 88/PUU-XVIII/2020 was filed by Ashvin Bayudewa and other individual citizens. They argue that Article 55 paragraph (1) of the Bankruptcy Law is against Article 1 paragraph (3); Article 27 paragraph (1); Article 28D paragraph (1); Article 28E paragraph (1); Article 28G paragraph (1) Article 28H paragraphs (1), (2), and (4); Article 28I paragraphs (2) and (4); Article 28J paragraph (1); and Article 33 paragraphs (2) and (3) of the 1945 Constitution.

At the petition revision hearing, one of the Petitioners’ five attorneys, Saiful Anam, detailed the revisions to the petition. First, the number of petitioners was down to only five, who really had common interest in the case No. 88/PUU-XVIII/2020. He said they had suffered loss because developer PT Prospek Duta Sukses (PDS) was ruled to be bankrupt by the Central Jakarta Commercial Court. “What the Petitioners suffered has been a trend in Indonesia among apartment buyers in many other regions,” Saiful said before Constitutional Justices Suhartoyo (panel chair), Enny Nurbaningsih, and Daniel Yusmic P. Foekh in the Panel Courtroom.

Saiful stressed that due to the enactment of Article 55 paragraph (1) of the Bankruptcy Law, many buyers of apartments and tenements have suffered loss.

Also read: Apartment Buyers Challenge Provision on Bankrupt Developers  

At the preliminary hearing, the Petitioners said they had bought units of Apartemen Antasari 45 from developer PT Prospek Duta Sukses (PDS) since 2014 and should’ve had ownership of the units in 2017. However, until early 2020, construction of the units wasn’t finished. The Petitioners’ attorney Fuad Abdullah stated that the Petitioners were disadvantaged by the Central Jakarta Commercial Court ruling that granted PT PDS’ request for suspension of debt payment.

They also argued that the a quo law had harmed them by positioning them as concurrent creditors and the last party to receive and even potential will not receive compensation if the developer goes bankrupt. With the exclusion of buyers of apartments as separatist creditors, besides potentially losing the apartment units they have purchased, the Petitioners also potentially loses part or the entire installments for the units because they are only positioned as concurrent creditors, not separatist or preferred creditors.

In the event that the developer goes bankrupt, during the settlement of the bankruptcy estate, concurrent creditors (apartment/tenement buyers) will only receive a percentage and not even receive their rights according to provisions on consumer loss. Therefore, legal protection for apartment buyers is imperative to keep irresponsible developers from filing for bankruptcy to avoid their obligations to consumers, by protecting the position of consumers/apartment buyers in Article 55 paragraph (1) of the Bankruptcy Law. This, according to the Petitioners, could be achieved by including consumers/apartment buyers as collateral rights holders for other assets, so that their position will not harm them in the event of developer going bankrupt.

Therefore, the Petitioners requested that the Constitutional Court declare Article 55 paragraph (1) of the Bankruptcy Law unconstitutional and not legally binding if not interpreted as buyers being separatist creditors. They also requested that the Constitutional Court declare the article unconstitutional if not interpreted as compensation for consumers/apartment buyers being prioritized.

Writer: Sri Pujianti
Editor: Lulu Anjarsari
PR: Raisa Ayudhita
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/20/2020 08:12 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.

---