Petitioners Ignatius Supriyadi, Sidik, and Janteri at the virtual judicial review hearing of Law No. 40 of 2007 on Limited Liability Company, Thursday (26/8/2021). Photo by Humas MK/Bayu.

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Thursday, August 26, 2021 | 14:30 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 40 of 2007 on Limited Liability Company (PT) on Thursday afternoon, August 26, 2021 in the plenary courtroom. The petition No. 40/PUU-XIX/2021 was filed by Ignatius Supriyadi, Sidik, and Janteri, advocates and taxpayers. They requested the material judicial review of the Elucidation to Article 120 paragraph (2) of the PT Law, which reads, “According to the code of good corporate governance, an Independent Commissioner is a commissioner from an external party.”

“The Petitioners suffer or at least will potentially suffer constitutional loss due to the enactment of the Elucidation to Article 120 paragraph (2) of Law No. 40 of 2007 in relation to the right to a job and decent living as well as fair legal certainty as referred to in Article 27 paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution,” said Sidik, one of the Petitioners, before Constitutional Justices Wahiduddin Adams (chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh.

The phrase ‘a commissioner from an external party’ is in quotation marks in the elucidation to the article. The Petitioners believe the quotation marks mean that ‘a commissioner from an external party’ has a special meaning or cannot be interpreted literally. However, there is no further explanation of it.

The Petitioners questioned whether it means that the external commissioner is not affiliated with the major shareholders, members of the board of directors, and/or other members of the board of commissioners. If so, the Petitioners believe no further explanation is needed because Article 120 paragraph (2) of the PT Law contains such material.

In addition, the Petitioners stated that they had the opportunity to become independent commissioners. Their expertise and professionalism in the field of law is a basic or even higher qualification because their law degree ensures the corporate legal compliance. However, this opportunity has diminished or even disappeared due to the multiple interpretations of the elucidation in question, where an independent commissioner can be interpreted as “may be a state civil apparatus (ASN), state administrator, or state official.”

The Petitioners has recently received many questions regarding the independent commissioner, whether ASNs may be independent commissioners in BUMN (state-owned enterprise) or private companies. The ambiguity of the a quo elucidation makes them unable to provide a certain opinion, which hinders them in their profession. 

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to revise how they write the article and paragraph of the law, where the article should precede the paragraph. He also explained the proper format of the petition.

“The Court’s authority is sufficient, as several laws have been mentioned. The Petitioners have detailed their legal standing as advocates and taxpayers, but do not only base it on the Constitutional Court decision that the status of taxpayer can be [used to support] legal standing,” he advised. He also recommended that the Petitioners explain the argument on the opportunity to become independent commissioners.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to revise their argument on constitutional loss due to the a quo elucidation.

Last, Constitutional Justice Wahiduddin Adams emphasized that the elucidation to a law did not contain any norm, meaning that it cannot be used as a basis to provide a follow-up regulation to a norm.

“Therefore, it is always mentioned that the elucidation to an article cannot contain a norm that conceal the article or expand the provisions in the article,” he stressed.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/30/2021 17:32 WIB

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

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