Constitutional justices entering the courtroom for the ruling hearing of Article 30 of Law No. 42 of 1999 on Fiduciary Security, Thursday (2/24/2022). Photo by Humas MK/Ifa.

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Friday, February 25, 2022 | 10:13 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) ruled that ‘the authorized party’ to help the execution of fiduciary security objects are district courts, as referred to in the Elucidation to Article 30 of Law No. 42 of 1999 on Fiduciary Security. This ruling was read out at the hearing for case No. 71/PUU-XIX/2021 on Thursday, February 24, 2022. The Court granted part of the petition filed by married couple Johanes Halim and Syilfani Lovatta Halim.

”[The Court] grants the Petitioners’ petition in part; declares the phrase ‘the authorized party’ in the Elucidation to Article 30 of Law No. 42 of 1999 on Fiduciary Security unconstitutional and not legally binding insofar as not interpreted as ‘the district court,’” said Chief Justice Anwar Usman alongside six constitutional justices.

The Petitioners challenged Article 30 of Law No. 42 of 1999 and its elucidation. They argued that the a quo norms were inseparable from Article 15 paragraph (2) of Law No. 42 of 1999, which the Court had ruled in Decision No. 18/PUUXVII/2019 on January 6, 2020 and affirmed in Decision No. 2/PUU-XIX/2021 on August 31, 2021.

Reading out the Court’s legal considerations, Deputy Chief Justice Aswanto said that in those two previous decisions, the Court had explained the procedure of the submission of fiduciary objects. Thus, the Petitioners’ concerns of unilateral executions or arbitrary withdrawals by creditors will not occur as the Court had also considered the procedure for the execution of fiduciary security certificates that is regulated in other provisions in Law No. 42 of 1999 to adjust to the Decision No. 18/PUUXVII/2019.

This means that the a quo decision on the Elucidation to Article 15 paragraph (2) is not standalone because other provisions in Law No. 42 of 1999 relating to the execution procedure must also follow the a quo decision, including the provision of Article 30 of Law No. 42 of 1999 and its elucidation. As such, creditors cannot independently execute the objects in force, for example with the help of the police in the event of a fiduciary rights giver (debtor) defaulting but not admitting it and objecting to volunteer the fiduciary object.

“In this case, the Court has reaffirmed in Decision No. 2/PUU-XIX/2021 that creditors must lodge a petition of execution to the district court,” Justice Aswanto said.

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

Police Not Executor

Justice Aswanto added that fiduciary agreements are a civil (private) legal relationship. Therefore, he added, the police’s authority is only limited to securing the execution if necessary, not as part of the executor. Only if there are criminal elements do the police have the authority to enforce the criminal law. Therefore, the phrase ‘the authorized party’ in the Elucidation to Article 30 of Law No. 42 of 1999 is interpreted as ‘the district court’ as the party whose assistance is requested to carry out the execution.

“Meanwhile, the Petitioners’ argument that the Elucidation to Article 30 of Law No. 42 of 1999 had led to legal uncertainty against Article 28D paragraph (1) of the 1945 Constitution, and had eliminated the right to protection of person, family, honor, and dignity as referred to in Article 28G paragraph (1) of the 1945 Constitution was without merit,” Justice Aswanto stressed.

Also read: Petitioner of Fiduciary Law Affirms Legal Standing

The Petitioners challenged Article 372 of the Criminal Code and Article 30 of the Fiduciary Law, which they believed had failed to provide legal certainty and protection. Based on the Constitutional Court Decision No. 18/PUU-XVII/2019, they 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.

The Petitioners had 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 the arrest of Petitioner I by the Greater Jakarta Metropolitan Regional Police.

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

Translation uploaded on 2/25/2022 15:01 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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