Petition revision hearing of case No. 71/PUU-XIX/2021 on the judicial review of the Fiduciary Law on the execution of fiduciary security object, Wednesday (1/19/2022). Photo by Humas MK/BPE.

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Wednesday, January 19, 2022 | 14:47 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of the Criminal Code (KUHP) and Law No. 42 of 1999 on Fiduciary Security on Wednesday, January 19, 2022. The hearing had been scheduled to hear the revisions to petition No. 71/PUU-XIX/2021, filed by married couple Johanes Halim and Syilfani Lovatta Halim (Petitioners I and II).

The Petitioners’ legal counsel Eliadi Hulu said the legal standing of Petitioner II had been affirmed. He added that Petitioner II had been shouldering all business matters because Petitioner I was being detained by the police. Petitioner II also had constitutional impairment and, thus, legal standing in the case. He also conveyed the revision to the articles petitioned, in which the arguments of the contradiction of those articles to the 1945 Constitution.

“We also revised the petitum. The Petitioners request that the Court grant their petition in its entirety,” said Hulu before Deputy Chief Justice Aswanto (chair) and Constitutional Justices Manahan M. P. Sitompul and Enny Nurbaningsih.

Also read: After Unilateral Fiduciary Execution and Arrest, Couple Challenges Fiduciary Law 

On Thursday, January 6, 2022, the Court held the preliminary hearing of the judicial review of the Criminal Code (KUHP) and Law No. 42 of 1999 on Fiduciary Security for the case No. 71/PUU-XIX/2021, filed by married couple Johanes Halim and Syilfani Lovatta Halim (Petitioners I and II).

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.

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

Translation uploaded on 01/20/2022 09:49 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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