Constitutional Justice Enny Nurbaningsih reading out the Court’s legal considerations at the ruling hearing of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Wednesday (12/15/2021). Photo by Humas MK/Ifa.
Wednesday, December 15, 2021 | 20:57 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire petition No. 24/PUU-XIX/2021 by Calvin Bambang Hartono, a debtor at a private Indonesian bank. The ruling was pronounced on Wednesday afternoon, December 15, 2021 in the plenary courtroom.
In its legal considerations, read out by Constitutional Justice Enny Nurbaningsih, the Court asserted that, without the intention to rule on the concrete case that the Petitioner was involved in, as a debtor the Petitioner was granted a sufficient time by the creditor to settle his debt. As such, the decision on the bankruptcy statement that the Petitioner believed had violated his constitutional rights was an optimal effort to settle the debt between the Petitioner and the creditor that had been ruled on by the court.
Also read: Rejecting Bankruptcy Ruling, Petitioner Challenges Bankruptcy Law
In addition, according to the Court, a bankruptcy decision can be implemented first even though there are legal remedies (uitvoerbaar bij voorraad). In other words, this means that the decision handed down can be executed immediately, even though it has not yet obtained permanent legal force as stipulated in Article 8 paragraph (7) and Article 16 paragraph (1) of Law No. 37 of 2004.
In this context, Justice Enny added, the implementation of the decisions as referred to in those articles is falls within general confiscation of the debtor’s property, which is carried out at the request of the curator under the supervision of a supervisory judge to be secured to be followed up with verification of the grouping of creditors attached to the assets of the bankrupt debtor. Furthermore, for the general seizure, the debtor’s debt repayments can be distributed to creditors according to their nature as described above and on a pari passu pro rata parte basis. In fact, Article 31 paragraph (1) of Law No. 37 of 2004 petitioned by the Petitioner with regard to general seizure are in line with the principle of pari passu pro rata parte, namely collectively obtaining repayment in accordance with the nature of the respective creditor who have receivables.
Therefore, the bankruptcy statement justifies the principle of guarantee as stipulated in Articles 1131 and 1132 of the Civil Code, which provide protection for concurrent creditors or competing creditors and differentiates them from separatist creditors and preferred creditors. On the Petitioner’s argument that the general seizure of the bankrupt debtor’s assets cannot be carried out if there is still a civil case with the same subject and object, it is important for the Court to emphasize that the management and settlement of the assets carried out by the curator under the supervision of a supervisory judge is the essence of bankruptcy.
Also read: Govt: Provision Eliminating Judicial Review and Cassation on Bankruptcy Ruling Provides Legal Certainty
Provision of Seizure in PKPU
Justice Enny also emphasized that general seizure rules out other special seizures of property, such as seizure of collateral and marital property. This aims to prevent overlap between types of seizures and the potential for seizure of the bankrupt debtor’s assets by creditors and to stop the actions of the bankrupt debtor from bad intentions and harming the creditor. Even so, the actio pauliana principle applies, in tha the court can cancel all the debtor’s legal actions that are detrimental to the creditor.
“If the bankrupt debtor’s assets both before and after the declaration of bankruptcy are placed under criminal seizure, there will be a conflict between public and civil interests. Article 39 of the KUHAP [(Criminal Procedure Code)] states that objects that are in seizure due to a civil case or due to bankruptcy can be confiscated for the purposes of criminal investigation, prosecution, and trial. Therefore, against such arguments, the public interest must take precedence. Thus, seizure is in connection with a criminal case because it is related to the public interest, therefore the state must be present to protect the public interest in question,” Justice Enny stressed.
Also read: IKAPI: Judicial Review and Cassation over PKPU Decisions Necessary
General Seizure
In relation to general seizure, Justice Enny said, the Court reiterated that general seizure is a priority. Thus, through it, the debtor’s obligation to their creditor can be fulfilled proportionally and maximally, which is limited to the bankrupt debtor’s assets within general seizure and other assets of the debtor as referred to in Article 1131 of the Civil Code. Therefore, other interpretations of Article 31 paragraph (1) of Law No. 37 of 2004 will actually override justice and legal certainty guaranteed by the 1945 Constitution in handling bankruptcy cases and PKPU.
“Thefore, the Court is of the opinion that there was no constitutionality issue in Article 31 paragraph (1) of Law No. 37 of 2004 unlike what the Petitioner asserted,” Justice Enny stressed.
The Petitioner was 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 12/20/2021 09:27 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.
Wednesday, December 15, 2021 | 20:57 WIB 352