Leonardo Siahaan, the Petitioner, reading out the subject matter at the panel preliminary hearing of the material judicial review of Article 251 of the Commercial Code, Monday (5/29/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing of the material judicial review of Article 251 of the Commercial Code (KUHD) on Monday, May 29, 2023. The petition No. 52/PUU-XXI/2023 was filed by Leonardo Siahaan, a private employee.

Article 251 of the Commercial Code (KUHD) reads, “Every incorrect or false notice, or every concealment of facts known by the insured party, even though made in good faith, the nature of which is such that the agreement concerned would not have been made, or would not have been made under the same conditions if the insuring party learnt the factual situation of all these matters, shall render the insurance concerned void.”

At the hearing, which was held on site, the Petitioner conveyed the constitutional impairment he had experienced. “[I] wish to purchase insurance, but before [I] enter into an insurance agreement, [I] first studied insurance regulations so that [I] can avoid being deceived by insurance companies. When [I] was studying regulations relating to insurance, [I] read the contents of Article 251 of the Commercial Code. After reading and exploring Article 251 of the Commercial Code, [I] have concerns about [its] enactment,” the Petitioner explained before Constitutional Justices Daniel Yusmic P. Foekh (chair), Wahiduddin Adams, and Suhartoyo.

The Petitioner further alleged that the article is prone to abuse by insurers who do not have good faith because many insured parties lacking knowledge of insurance, which is often exploited by insurers. Not infrequently, insurers make the contents of the policy lengthy that the insured do not have enough time to read them.

Not uncommonly, insurers use uses language that is difficult for the insured in the policy so that the policy is more favorable to them. Groups such are the elderly and people who have below-average intelligence are prone such manipulation by insurers who have bad faith.

Siahaan alleged that Article 251 KUHD is very unfair because it only burdens the insured. Both the insured and the insurer, he argued, should have an equal position in the insurance agreement. Based on Article 251 KUHD, in addition to the insured being obliged to disclose material facts that should be notified to the insurer, the insurer is also obliged to provide notification/information relating to the certainty of compensation guarantees and rejection of claims that befall the object of insurance in the event of an incident. If the insurer considers something about the object to be insured important, they must ask specific questions about the object to be insured.

Therefore, in his petitum, the Petitioner requested that the Court grant the petition in its entirety and declare Article 251 of the Commercial Code unconstitutional and not legally binding. 

Justices’ Advice

Responding to the petition, Constitutional Justice Wahiduddin Adams suggested revision to the material or article. Justice Wahiduddin also asked him to revise the touchstone.

Meanwhile, Constitutional Justice Suhartoyo asked the Petitioner to revise his legal standing by strengthening his argument. In explaining his legal standing, he argued potential loss of constitutional rights, while in explaining the potential loss he argued as a party who wishes to sign an insurance contract as the insured.

“Therefore, to strengthen the argument, evidence should be presented later whether it is true that you have actually filled out the application form as an insured in a certain insurance company,” Justice Suhartoyo said.

Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to strengthen the posita or background of the petition. Before adjourning the session, he announced that the Petitioner had 14 workdays to revise the petition and submit it by June 12, 2023 at 10:00 WIB.

Author       : Utami Argawati
Editor        : Nur R.
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.

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