Constitutional Justice Suhartoyo at the ruling hearing of the judicial review of Law on Bankruptcy and Suspension of Debt Payment, Wednesday (8/31/2022). Photo by MKRI/Ifa.
Wednesday, August 31, 2022 | 16:05 WIB
JAKARTA (MKRI)—The judicial review of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (Bankruptcy and PKPU) filed by Tommy Chandra Kurniawan and three others was finally rejected by the Constitutional Court (MK).
“[The Court] adjudicated, declares to reject the Petitioners’ petition for the entirety,” said plenary chairman Chief Justice Anwar Usman at the ruling hearing for case No. 38/PUU-XX/2022 on Wednesday, August 31, 2022.
The Petitioners requested that the provision on the consequence of cassation against PKPU decisions be equated (mutatis mutandis) to that on the consequence of cassation on decisions regarding bankruptcy. In its legal considerations read out by Constitutional Justice Suhartoyo, the Court was of the opinion that from lawmaking perspective, such provisions may be formulated by lawmakers in a law if the a quo law is amended or if they can delegate it to the Supreme Court. The Supreme Court’s jurisdiction to regulate certain things for smooth judicial process is based on Article 79 of Law No. 14 of 1985 on the Supreme Court as amended by Law No. 3 of 2009 on the Second Amendment to Law No. 14 of 1985 on the Supreme Court.
The Court, Justice Suhartoyo added, held on to the Decision No. 23/PUU-XIX/2021 that such regulation fit the Supreme Court better as a judicial body that can try PKPU petitions at the first or cassation level, taking into account the authority of the relevant ministry authorized by Law No. 37 of 2004 to draft guidelines on service fee for the management (vide Article 234 paragraph (5) of Law No. 37 of 2004).
“However, such a regulation must still pay attention to and/or protect the rights of the PKPU management appointed by the court to manage debtor assets affected by the suspension of debt payment obligations,” Justice Suhartoyo said.
Also read: Administration and Administrator Fees in Bankruptcy Law Questioned
He added that the delegation of further provisions to the Supreme Court would take into account the authority of the relevant ministry. The Court asserted that this eliminated potential constitutional impairment due to unregulated consequences of cassation for PKPU management, especially the Petitioners.
“Even if there are no provisions or regulations by the Supreme Court yet regarding the consequences of appeals against PKPU decisions, this, the Court believes, does not necessarily result in the norms requested for review being unconstitutional. Moreover, the Supreme Court with its authority as a judiciary that hears cassation cases as well as supervisory judicial bodies under it can realize a legal protection for the PKPU management through a cassation decision without having to wait for the issuance of said regulation,” he explained.
Also read: Curators Revise Petition of Law on Bankruptcy and Debt Payment Suspension
Based on those legal considerations, the Court asserted that the matters in the Petitioners’ arguments had been imminent in Decision No. 23/PUU-XIX/2021. In addition, many things in the petition had been considered in said decision, thus a comprehensive reading of the legal considerations for that decision would be necessary. Therefore, Article 235 paragraph (1) and Article 293 paragraph (1) of Law No. 37 of 2004, which the Court had interpreted, did not cause legal certainty nor impairment relating to recognition, guarantee, and legal protection for the Petitioners. Thus, according to the Court, the two norms requested for review as interpreted in the Constitutional Court Decision No. 23/PUU-XIX/2021 did not conflict with Article 28D paragraph (1) of the 1945 Constitution.
“Considering whereas based on the entire elaboration of the legal considerations as described in the paragraphs above, the Court concludes that the Petitioners’ petition in its entirety is legally groundless,” Justice Suhartoyo stressed.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/5/2022 14:00 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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