The Petitioner’s attorneys at the material judicial review hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Thursday (17/6/2021). Photo by Humas MK/Ifa.
Thursday, June 17, 2021 | 16:26 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held a preliminary hearing of the material judicial review of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (PKPU) on Thursday, June 17, 2021. The case No. 23/PUU-XIX/2021 was filed by PT Sarana Yeoman Sembada, represented by executive director Sanglong a.k.a. Samad. He challenges Article 235 paragraph (1) and Article 293 paragraph (1) of the law.
Before Constitutional Justices Enny Nurbaningsih (panel chair), Arief Hidayat, and Suhartoyo, attorney Husendro explained how the two articles had harmed the Petitioner.
“In principle, the subject of the matter is the judicial review of Article 235 paragraph (1) and Article 293 paragraph (1). The reason being that the article has restricted access to justice in taking an ordinary legal measure—cassation—or an extraordinary one—judicial review in the commercial court of Medan of the Petitioner’s bankruptcy case,” he said.
He also said that the Petitioner’s evidence for three previous cases was rejected. However, he received a different bankruptcy ruling in his fourth case. With the same evidence as the three previous cases, the fourth was accepted by the court, resulting in a positive ruling.
In the petition, the Petitioner elaborates that in the Constitutional Court Decision No. 17/PUU-XVIII/2020, one of the important points of the justices’ considerations was that settlement is a mechanism to guarantee fair and speedy trial. However, the Petitioner believes that private businesses exploit the bankruptcy petition as a loophole to file for bankruptcy and suspension of debt payment.
The Petitioner explains in the petition that settlement is not used as an incentive to find solutions but to legitimate bankruptcy and suspension of debt payment because the evidentiary aspect is ridden with issues. Therefore, any ruling on temporary bankruptcy and suspension of debt payment is problematic. There is currently no legal action that can be taken against this type of ruling. Therefore, if the Respondent is temporarily declared bankrupt and its settlement request is denied (even though they deny any debts), they will be automatically declared bankrupt.
The Petitioner also believes that legal actions against this problematic ruling should be available so that it can be confirmed whether there are any the debts before the ruling is passed. Such an action would open up the possibility of mediation.
The Petitioner believes that the two articles violate the 1945 Constitution and have been challenged and decided in the Decision No. 17/PUU-XVIII/2020, in which the entire petition was rejected. However, the case concerns the uncertainty of curator fees, which led to the bankruptcy declaration of PT Korea World Center Indonesia. Meanwhile, the current petition concerns inaccurate material evidentiary process that is in violation of justice and harms the Petitioner.
The Petitioner contrasts this lack of legal action to cassation and judicial review that are commonplace in district courts, high courts, and the Supreme Court. Cassation and judicial review can mitigate any erroneous ruling in a lower court although they do not suspend or prevent a court ruling.
Therefore, in the petitum, the Petitioner requests that the Court declare Article 235 paragraph (1) and Article 293 paragraph (1) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment unconstitutional and not legally binding, so that cassation and judicial review petitions can be filed to the Supreme Court for such cases.
Justices’ Advice
Responding to the petition, Constitutional Justice Arief Hidayat advised the Petitioner to elaborate on their legal standing and to detail the reason why the articles are in violation of the 1945 Constitution. He noted that the petition detailed the concrete case more. Meanwhile, Constitutional Justice Enny Nurbaningsih asked them to study the Court’s regulation for the standard format of judicial review petitions.
Link to the hearing on YouTube: https://youtu.be/ISDjqJN45tw
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/18/2021 17:14 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.
Thursday, June 17, 2021 | 16:26 WIB 342