IKAPI Chairman Oscar Sagita (Relevant Party) testifying virtually at the judicial review hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Monday (11/22/2021). Photo by Humas MK/Ifa.
Monday, November 22, 2021 | 18:00 WIB
JAKARTA, Public Relations—The Association of Indonesian Curators and Administrators (IKAPI) saw the need for judicial review and cassation over decisions on suspension of debt payment (PKPU), said IKAPI chairman Oscar Sagita at the judicial review hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment. IKAPI appeared before the Court after being summoned as a Relevant Party in cases No. 23/PUU-XIX/2021 and 24/PUU-XIX/2021.
“IKAPI saw that legal remedies over PKPU decisions are necessary, as [the decisions] have a legal consequence in that debtors cannot manage or own all or part of their assets without any approval from the managers. This material legal consequence, legal remedies over PKPU decisions should be available,” he said at the hearing on Monday, November 22, 2021 in the plenary courtroom.
Also read: Absence of Cassation for Bankruptcy Cases Challenged
He also said that PKPU petitions by creditors to debtors are full of conflict, as it is contentious. IKAPI also saw that there likely to be mistakes in those decisions or they may take sides.
“It is important for all of us to know that, in fact, legal remedies within PKPU institutions were available when the faillissementsverordening or the Bankruptcy Law was enforced in the colonial era. [Those remedies] were in line with Article 39 paragraph (1) of Law No. 48 of 2009 on Judicial Power, which states that the Supreme Court exercises the highest supervision over every judicial administration. Its philosophical foundation is the principle of controleren beslistheid, that every decision must be supervised,” Oscar said in response to case No. 23/PUU-XIX/2021.
Also read: Rejecting Bankruptcy Ruling, Petitioner Challenges Bankruptcy Law
Grounds for Approval
Therefore, Oscar stressed that there are grounds to approve the Petitioner’s petition, so that PKPU decisions can be reviewed and ruled again by a panel of judges at a higher court. That way, any mistake can be rectified. In addition, the quality of the decisions and the professionalism of the judiciary can also be guaranteed through three essential things: justice, certainty, and benefit.
However, he stressed that legal remedies for creditors over decisions on debtors’ petitions are not necessary because PKPU petitions by debtors serve to offer peace agreements in the payment of part or all of their debts. “And the party who knows best about the financial situation and ability to make payments to creditors is the debtors themselves,” he said at the hearing chaired by Chief Justice Anwar Usman.
Also read: House and Govt Not Prepared, Hearing on Bankruptcy Law Postponed
Groundless
In response to case No. 24/PUU-XIX/2021, Oscar said the Petitioner had requested that general seizure is limited if there is a civil seizure, which is unlawful and even contradicts the principles of asas pari passu and prorata in the Bankruptcy Law.
“If this happens, the bankruptcy process and institutions will no longer be useful because the regularity of asset inventory, the regularity of asset collection, and the regular distribution of debtor assets as payments will be ruined,” he said.
The curator’s authority in managing and/or settling bankrupt assets in relation to the philosophy and principle of general seizure in the bankruptcy process aim to protect the proportional fulfillment of debtors’ obligations to their creditors. Therefore, it is legal that the curator’s authority in general seizure in bankruptcy is maintained without exception.
Therefore, IKAPI believes there is ground to reject case No. 24/PUU-XIX/2021 because if it is granted, there will be legal chaos and legal uncertainty.
Also read: Govt: Provision Eliminating Judicial Review and Cassation on Bankruptcy Ruling Provides Legal Certainty
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 PKPU Law. He had been involved in several concrete cases on PKPU. His 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.
The Petitioner believes 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.
Therefore, in the initial petitum, the Petitioner requested 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.
Meanwhile, the case No. 24/PUU-XIX/2021 was filed Calvin Bambang Hartono, a debtor at PT Bank Bukopin who took a loan with collateral in the form of land and property totaling 538 m2 under the name of Tjandra Liman with Ownership Certificate No. 189/Panjangjiwo Village. However, he has not received a land mortgage deed (APHT) of the loan.
At the preliminary hearing, he stated that Article 31 paragraph (1) of the Bankruptcy Law didn’t give any room for any individual, business, or legal entity that has been declared bankrupt when they, like the Petitioner, has taken legal measures on their case. In the petitum, the Petitioner requests that the Court declare the phrase “The decision of declaration of bankruptcy shall have the consequences that all judgment related to any part of Debtor’s assets established before the declaration of bankruptcy shall be immediately ceased and as from that moment no decisions concerning imprisonment for debt may be executed” as referred to in Article 31 paragraph (1) of Law No. 37 of 2004 not legally binding.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/23/2021 09:50 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.
Monday, November 22, 2021 | 18:00 WIB 535