---

Tuesday, June 29, 2021 | 20:53 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire material judicial review petition No. 8/PUU-XIX/2021 of Article 7 paragraph (1) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (PKPU). The verdict was read out at a ruling hearing on Tuesday, June 29, 2021. The case was filed by Depok City civil servant (PNS) Hendry Agus Sutrisno.

In its legal considerations read out by Constitutional Justice Enny Nurbaningsih, the Court held that the practice of advocates or legal counsels in the commercial court is a form of protection for any person before law. The provision that only allows advocates to litigate in the commercial court strengthens the Petitioner’s position due to the specific nature of the case. Advocates are able to help the Petitioner optimally in court.

“The Petitioner’s assertion that bankruptcy and [suspension of debt payment] can be studied by anyone including law graduates is, the Court agrees, not wrong. However, it does not mean that all law graduates can litigate in special courts for cases of bankruptcy and [suspension of debt payment],” Justice Enny read out at the hearing that was chaired by Chief Justice Anwar Usman.

Also read: Provision Allowing Only Advocates to Litigate in Bankruptcy Law Challenged

Legal Aid

Justice Enny then explained the constitutionality of the a quo article and its contradiction to other courts such as tax, criminal, civil, state administrative, military, and juvenile courts regarding the mandatory advocate counsel. The Court held that the different provisions between laws were due to different levels of urgency and subject matters.

“Therefore, litigating in the commercial court, especially on cases of bankruptcy and [suspension of debt payment], cannot be equated with that in general courts because the nature of the laws on which such trials are founded uses public legal paradigms that require legal counsel,” she explained.

Meanwhile, she added, petitioners may litigate in civil and state administrative courts by themselves or appoint an advocate because such cases are universal and do not require specificity as the commercial court does. However, if the petitioner cannot afford an advocate, the state will provide legal aid. This is regulated in Article 1 points 1 and 2 of Law No. 16 of 2011 on Legal Aid. Therefore, recipients of legal aid (poor persons and/or groups) that are involved in civil, criminal, and state administrative cases receive legal aid for free, pursuant to Article 22 of Law No. 18 of 2003.

Also read: Petitioner of Bankruptcy Law Revises Petition

The Petitioner alleged that the a quo article stipulates that only an advocate can argue in a court, while creditors and debtors cannot. As a creditor, Hendry is involved in a litigation against debtors KSP Pandawa Mandiri Grup and Nuryanto in the Central Jakarta Commercial Court. He hired an advocate to file the suit. If the bankruptcy case is closed and the debts haven’t been settled, he’d have to hire an advocate again.

He believes that the a quo article is highly discriminatory, doesn’t uphold the principle of equality before the law, and doesn’t serve justice to the Petitioner and all Indonesian people. Therefore, he requested that the Court declare Article 7 paragraph (1) of the Bankruptcy Law unconstitutional and not legally binding insofar as not be interpreted “The petition as intended by Article 6, Article 10, Article 11, Article 12, Article 43, Article 56, Article 57, Article 58, Article 68, Article 161, Article 171, Article 207, and Article 212 must be filed by an advocate or a creditor and/or debtor with a law degree.”

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Annisa Lestari
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 6/30/2021 16:20 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.

---