Six students of Sultan Ageng Tirtayasa University challenging Law No. 42 of 1999 on Fiduciary Security, Thursday (11/11/2021). Photo by Humas MK/Bayu.

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Thursday, November 11, 2021 | 21:05 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 42 of 1999 on Fiduciary Security on Thursday, November 11, 2021 in the plenary courtroom. The petition No. 57/PUU-XIX/2021 was filed by six students of Sultan Ageng Tirtayasa University (Untirta)—Muhammad Armand Prasetyanto, Mohamad Fikri Nur Yahya, Bagas Febriansyah, Geraldus Manahan, Khairul Syekhan Febriansah, and Kharis Pranatal Sihotang. The hearing was presided over by Constitutional Justices Suhartoyo (panel chair), Wahiduddin Adams, and Enny Nurbaningsih.

The Petitioners challenge Article 15 paragraph (2) of the Fiduciary Law and its elucidation against Article 28D paragraph (1) of the 1945 Constitution. The a quo article reads, “The Fiduciary Security Certificate as referred to in paragraph (1) has the same executorial power as that of a final and binding court decision.” The elucidation reads, “In this provision, the term ‘executorial power’ means that it can be implemented directly without going through any court and it is final and binding to the parties in executing such decision.”

At the hearing, Mohamad Fikri Nur Yahya said the Constitution guarantees the Petitioners’ constitutional right to express their thoughts orally and in writing to uphold values in protecting constitutionalism. As students, he added, the Petitioners, who are actively trying to understand constitutional issues and even involved in several legal studies, felt disturbed by the lack of legal clarity and certainty on several legal issues.

“The Petitioners are law students of Sultan Ageng Tirtayasa University who have concern over various legal issues in Indonesia, especially the right to legal certainty. As such, it is the Petitioners’ obligation to minimize the potential of legal uncertainty,” he said virtually from his residence.

Bagas Febriansyah added that the Petitioners believe that uncertain execution procedure of fiduciary security has led to legal uncertainty. In Decision No. 18/PUU-XVII/2019, the Court ruled that Article 15 paragraph (2) of the Fiduciary Law and its elucidation are unconstitutional. However, in Decision No. 2/PUUXIX/2021the Court essentially declared that the execution of a fiduciary security certificate through a district court is only an alternative in the event that there is no agreement between the creditor and the debtor, in relation to default and voluntary submission of the object of security from the debtor to the creditor.

“The Petitioners believe there are discrepancies in the two decisions, leading to legal uncertainty of the regulation in Indonesia, in this case on the execution of fiduciary security,” Bagas said.

The Petitioners believe the legal uncertainty has impaired the citizens’ constitutional rights guaranteed in Article 28D paragraph (1) of the 1945 Constitution. They believe the execution of fiduciary security must be through the court. This is important given that debt collectors often act unilaterally and seize debtors’ properties. The execution of fiduciary security through the court will provide fair legal certainty and, thus, must be a given.

Petition’s Consistency

Constitutional Justice Wahiduddin Adams advised the Petitioners to pay attention to the consistency between the Court’s authority, the posita, and the petitum. He reminded them to not mix the consequence of those two Constitutional Court decisions, which could lead to legal uncertainty for them.

Meanwhile, Constitutional Justice Enny Nurbaningsih asked the Petitioners to read and understand the two Court decisions in full and to make necessary revisions in the petition, as the two previous cases have been ruled and interpreted by the Court.

“Please read [the decisions] once again in full. The Court would not change its stance because there is no sufficient ground to do so from those decisions,” she said.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/12/2021 07:40 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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