Constitutional Justice Daniel Yusmic P. Foekh delivering the Court’s opinion at the ruling hearing for the material judicial review of Article 251 of the Commercial Code,Tuesday (6/27/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — On Tuesday, June 27, 2023, the Constitutional Court (MK) ruled the material judicial review petition of Article 251 of the Commercial Code (KUHD) inadmissible. “[The Court] declares the Petitioner’s petition inadmissible,” said Chief Justice Anwar Usman delivering the Decision No. 52/PUU-XXI/2023 alongside the other eight constitutional justices.

In its opinion, delivered by Constitutional Justice Daniel Yusmic P. Foekh, the Court stated that the Petitioner had explained his constitutional rights, which he believed had been impaired specifically and potentially by the enactment of Article 251 of the Commercial Code. “The Petitioner was able to explain the causality between the constitutional impairment and the enactment of the norm petitioned,” Justice Foekh said.

Therefore, if the a quo petition was granted, the Petitioner asserted, the constitutional impairment would not occur. As such, regardless of whether the unconstitutionality of the norm could be proven, the Petitioner had legal standing in the a quo petition.

Justice Foekh explained the Petitioner’s revised petition had been in line with the format set in Article 31 paragraph (1) of the Constitutional Court Law and Article 10 paragraph (2) of Constitutional Court Regulation (PMK) No. 2 of 2021. However, upon careful examination, the petitums were contradictory or at least unlike standard petitums for material judicial review.

“At a hearing on June 12, 2023, although it was not a hearing to deliver advice, since the Petitioner’s petitums were unusual, the Court gave its recommendations for revision so that the petitums be in line with the standard in the Court,” he explained.

The second petitum read, “Article 251 of the KUHD is against the Constitution and is not legally binding,” and the third read, “Article 251 of the KUHD along the phrase ‘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’ conditionally unconstitutional and not legally binding if not interpreted as ‘such that the agreement concerned be void based on the agreement of both parties or based on a court decision.’”

In relation to that, the Court felt the need to stress that those petitums were unusual since, on the one hand, the Petitioner requested that the Court declare Article 251 of the Commercial Code unconstitutional and not legally binding while, on the other hand, he requested that the Court declare it conditionally constitutional. According to logical reasoning, such petitums were contradictory and, thus, the Court could not grant them both at the same time. Such petitums could only be granted when presented as alternatives. Formally, they were not in line with standard petitum as referred to in Article 10 paragraph (2) letter d of PMK No. 2 of 2021.

“Based on all the aforementioned legal considerations, the Court believes that, as the Petitioner’s petitums were vague, the petition became obscure. Although the Court has the authority to rule over the a quo petition and the Petitioner had legal standing, since the petition was obscure, it did not meet the formal requirements as referred to in Article 31 paragraph (1) of the Constitutional Court Law and Article 10 paragraph (2) of PMK No. 2 of 2021. Therefore, the Court did not consider the Petitioner’s petition further,” Justice Foekh emphasized.

Also read:

Petitioners Asserts Insurance Agreement in Commercial Code Unfair 

Petitioner Revises Case on Insurance Policy in Commercial Code 

The petition No. 52/PUU-XXI/2023 was filed by Leonardo Siahaan, a private employee. He challenged Article 251 of the Commercial Code (KUHD), which 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 preliminary hearing on Monday, May 29, he conveyed the constitutional impairment he had experienced. While reading up on legislation on insurance as he wished to apply for a premium, he read Article 251 of the Commercial Code.

“After reading and exploring Article 251 of the Commercial Code, [I] have concerns about [its] enactment,” he explained.

He alleged that the article is prone to abuse by insurers who do not have good faith because many insured parties lack knowledge of insurance, a fact often exploited by insurers. Not infrequently, insurers make the contents of the policy lengthy that the insured would not have enough time to read them.

Not uncommonly, he claimed, insurers use difficult language in the policy so that it would be more favorable to them. Groups such as the elderly and people who have below-average intelligence, he argued, are prone such manipulation by insurers who have bad faith.

The Petitioner believes Article 251 KUHD is very unfair because it only burdens the insured. Both the insured and the insurer, he argues, should have an equal position in the insurance agreement.

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

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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