Petitum Unclear, Case on Bankruptcy Law Dismissed
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Constitutional Justice Suhartoyo reading out the Court’s opinion at the ruling hearing of the judicial review of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment, Thursday (3/30/2023). Photo by MKRI/Ifa.


JAKARTA (MKRI) — The Constitutional Court (MK) dismissed the judicial review petition of Article 31 paragraph (1) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment (Bankruptcy Law) and its elucidation on Thursday, March 30, 2023 at a ruling hearing in the plenary courtroom. The case No. 11/PUU-XXI/2023 was filed by curators Umar Husin, Zentoni, Sahat Tambunan, Paulus Djawa.

Reading out the Court’s legal consideration, Constitutional Justice Suhartoyo said that the Court had found that the petitum (what the Petitioners wished the Court ruled) was ambiguous, even when the Court had given the Petitioners recommendations for the revision at a hearing on February 8.

In petitum No. 2, the Petitioners requested that the Court “declare he elucidation to Article 31 paragraph (1) constitutional if it is changed to ‘by not reducing the provisions of Articles 56, 57, 58, and 59, these provisions shall not apply to creditors as referred to in Article 55.’” While in No. 3, they requested that the Court “declare Article 55 paragraph (1) constitutional if it is changed to ‘while still taking into account the provisions as referred to in Articles 56, 57, and 59, every creditor who holds a pledge, fiduciary guarantee, mortgage, or other collateralized property rights shall be able to execute their rights as if bankruptcy had not occurred.’”

“These petitums are unusual. Formally, such are not standard petitum as referred to in Article 10 paragraph (2) letter d of the Constitutional Court Regulation (PMK) No. 2 of 2021. Based on the aforementioned legal consideration, the Court believes that the Petitioners’ petition was unclear or vague,” Justice Suhartoyo said at the ruling hearing presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other constitutional justices.

Also read:

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Curators Affirm Constitutional Impairment in Case on Bankruptcy Law

The Petitioners had asserted that Article 31 paragraph (1) of the Bankruptcy Law had led to legal uncertainty as they have been in constant legal debates with separatist creditors whose debtors defaulted. Such creditors reject compliance with the article, thus, leading to complete elimination or at least reduction of the Petitioners’ authority to take over and sell assets of the defaulted debtors, which are in fact granted by the Law.

There is indeed special treatment for separatist creditors, who can also execute bankruptcy as per Article 55 of the Bankruptcy Law, but not without following procedure as set in Articles 56-59 of the Law.

Therefore, the Petitioners requested that the Court declare the elucidation to Article 31 paragraph (1) of the Bankruptcy Law legally invalid and repeal it due to the ambiguity of Article 31 paragraph (1), which has impaired the Petitioners’ constitutional rights, led to injustice and legal uncertainty, and is in violation of Article 28D paragraph (1) of the 1945 Constitution.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Yuniar Widiastuti (NL)

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.


Thursday, March 30, 2023 | 12:58 WIB 218