Eliadi Hulu, the Petitioners’ legal counsel, conveying the Petitioners’ arguments at the judicial review hearing of Law No. 42 of 1999 on Fiduciary Security, Thursday (1/6/2022) virtually. Photo by Humas MKs.

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Friday, January 7, 2022 | 10:52 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of the Criminal Code (KUHP) and Law No. 42 of 1999 on Fiduciary Security on Thursday, January 6, 2022. The petition No. 71/PUU-XIX/2021 was filed by married couple Johanes Halim and Syilfani Lovatta Halim (Petitioners II). The preliminary hearing was presided over by Deputy Chief Justice Aswanto (chair) with Constitutional Justices Manahan M. P. Sitompul and Enny Nurbaningsih.

The Petitioners challenge Article 372 of the Criminal Code, which reads, “Any person who with deliberate intent and unlawfully appropriates property which wholly or partially belongs to another and which he has in his possession otherwise than by a crime, shall, being guilty of embezzlement, be punished by a maximum imprisonment of four years or a maximum fine of nine hundred rupiah,” as well as Article 30 of the Fiduciary Law, which reads, “The Fiduciary Grantor must submit the Goods being the object of Fiduciary Security for the execution of the Fiduciary Security.”

The Petitioners’ legal counsel Eliadi Hulu asserted that the norms failed to provide legal certainty and protection. Based on the Constitutional Court Decision No. 18/PUU-XVII/2019, she argued, the assessment of breach of trust must be based on the debtor’s agreement and the fiduciary security to be executed must be offered voluntarily. However, if the debtor objects, the creditor has no right to carry out execution except for taking a legal remedy stating that the debtor has defaulted.

“Based on the Court decision, the debtor has the right to protect the object of fiduciary security, which is their property. The debtor also has the right to protect the assets under their control, including by not showing the creditor the object of the fiduciary security in order to avoid unilateral execution and withdrawal,” Hulu said virtually.

He also revealed that BCA Finance had carry out a unilateral fiduciary execution against the Petitioners by taking their STNK (vehicle registration certificate) and the key to a Toyota Voxy car (object of the fiduciary security). The Petitioners revealed they had obtained a letter approving delay in repayment of installments a second time due to COVID-19 pandemic. However, BCA Finance reported the Petitioners, which resulted in their arrest by the Greater Jakarta Metropolitan Regional Police.

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih said the Petitioners must take into account the constitutional losses experienced by Petitioners I and II. Despite being married, they must explain their legal standing separately in the case. She also requested that they explain the concrete case in relation to the impairment of the Petitioners’ constitutional rights due to the enactment of Article 372 of the Criminal Law in relation to the rights of debtors and creditors guaranteed in the Fiduciary Law.

Meanwhile, Deputy Chief Justice Aswanto asked Petitioner I to explain the erroneous implementation of the a quo norms by the police as it does not constitute a constitutional issue. Therefore, he stressed, the Petitioners must elaborate the constitutional issue of the norms.

“Normatively indeed there is a violation, but what lodged to the Constitutional Court must be a constitutional issue. Thus, the Petitioners must ensure that there is a constitutional issue in the norms being reviewed,” he said.

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

Translation uploaded on 01/10/2022 11:52 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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