Access to Information on Matrimonial Property Restricted, KIP Law Challenged

Legal counsel I Wayan Suka Wirawan explaining the subject matter of the petition at the preliminary hearing of the judicial review of Law No. 14 of 2008 on Public Information Transparency (KIP), Wednesday (9/21/2022). Photo by MKRI/Bayu.

Wednesday, September 21, 2022 | 16:25 WIB

JAKARTA (MKRI)—Sulistya Tirtoutomo filed a judicial review petition of Law No. 14 of 2008 on Public Information Transparency (KIP) to the Constitutional Court (MK). The hearing for case No. 88/PUU-XX/2022 took place on Wednesday, September 21, 2022 in the plenary courtroom, before Constitutional Justices Manahan M. P. Sitompul (chair), Wahiduddin Adams, and Suhartoyo.

Through legal counsel I Wayan Suka Wirawan, the Petitioner argued that Article 6 paragraph (3) letter c, Article 17 letter g, Article 17 letter h point 3, Article 20 paragraph (1), Article 38 paragraph (2), Article 45 paragraphs (1) and (2), Article 2 paragraph (4), and Article 52 of the KIP Law is unconstitutional. The Petitioner and Soeprawiro Ing Widjojo have been divorced based on the Decision of the Surabaya District Court No. 82/Pdt.G/2002/PN.Sby dated April 23, 2002. The Petitioner questioned the ownership of land and house building in Mansion Park Blok MP I Kav. No. 10 Citraland City, Jeruk Village, Lakarsantri Subdistrict, Surabaya City, East Java, which Soeprawiro Ing Widjojo (the Petitioner’s ex-husband) purchased, which is (supposedly) a joint asset.

The Petitioner’s ex-husband refused to share their joint assets, against which she then filed a civil lawsuit, for which she required a copy of the certificate along with the land certificate for the house. However, she could not obtain the certificate or its copy because was not involved in making the sale and purchase deed (AJB) and transferring the title to the house. She then visited the land office to find information, but her request was rejected. She then submitted a request for settlement of the public information dispute to the East Java Provincial Information Commission (KIP).

“It is not legally warranted and even violates the law to [keep a spouse from accessing] such information, the information in question being a copy of certificate and land certificate kept by the Surabaya Land Office,” Wayan explained before the Court virtually. 

Uncertain Regulation

The dispute was not resolved even 225 days after the request was filed. Therefore, the Petitioner claimed that the enactment of Article 2 paragraph (4) of the KIP Law has violated her constitutional rights, especially those in relation to Article 28D paragraph (1) of the 1945 Constitution, because the classification of exempted (confidential) public information is based on usefulness rather than justice.

Article 2 paragraph (4) of the KIP Law reads: “Exempted Public Information shall be in nature confidential pursuant to legislations, appropriateness, and public interest based on the test of consequences that will emerge if an information is disclosed to public and after meticulously measured that confining the Public
Information may protect a greater interest compared to disclosing it, or vice versa

The Petitioner also believes Article 6 paragraph (3) letter c, Article 17 letter g, Article 17 letter h point 3, Article 20 paragraph (1) of the KIP Law to be vague because they have created uncertain implementation by the competent institutions in handling public information disputes due to its generality. Wayan added that the Court is obligated to stop such uncertainty, which constitutes an issue of constitutionality.

“Please understand, that [the institutions] had completely disregarded justice, since [the Petitioner’s effort] to fight for her rights was hindered by such bureaucracy. How unfair it would be that a public institution [such as the land office and the East Java KIP] refuse to perform a test because the a quo Law could construct [such an act] as a [criminal] offense,” Wayan asserted. 

Justices’ Advice

Constitutional Justice Wahiduddin Adams advised the Petitioner to complete the explanation on the Court’s authorities and add an explanation on the impairment due to the violation of her rights. The Petitioner’s concrete case can be used as an entry point in the petition, but it would be necessary to contrast the background to the norms being petitioned.

“Please highlight the contradiction to the 1945 Constitution, which is used as the basis for the review, so there is no need to explain the concrete case too much in the posita,” he said.

Next, Constitutional Justice Suhartoyo advised for the legal standing to be summarized so following Article 51 of the Constitutional Court Law on the Petitioner’s constitutional impairment and to the continuation of the concrete case to be included. He added that the events experienced by the Petitioner was a matter of implementation, not constitutionality.

“In addition, in the context of public consumption, please review the petitum again,” he concluded.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul asked the Petitioner to summarize the theories so that it would be easier to understand and become an entry point for questioning the norms in question. He also suggested that the Petitioner observe the Constitutional Court Decisions No. 3/PUU-XIV/2016, 45/PUU-XVII/2019, and 64/PUU-XIV/2016 where similar norms were petitioned, even though the petitions were declared inadmissible due to formal defects (niet ontvankelijke verklaard). 

Before concluding the hearing, Justice Manahan gave the Petitioner until October 4, 2022 at 14:00 WIB to submit the revised petition to the Registrar’s Office. 

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

Translation uploaded on 10/14/2022 16:13 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, September 21, 2022 | 16:25 WIB 111
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