Legal counsel Irawan Santoso conveying the petition’s subject matter at the panel preliminary hearing of the judicial review of the Civil Code, Tuesday (7/4/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — A material judicial review hearing of Articles 1765, 1766, 1767, and 1768 of the Civil Code took place on the Constitutional Court’s (MK) plenary courtroom on Tuesday, July 4, 2023. The case No. 63/PUU-XXI/2023 was filed by Utari Sulistiowati and Edwin Dwiyana (Petitioners I-II).
Before the panel chaired by Constitutional Justice Manahan M. P. Sitompul, legal counsel Irawan Santoso said that Petitioner I made a loan agreement to the amount of 1 billion rupiahs with interest rate with H. Hendri Syah Abdi based on a notary deed dated February 19, 2019 before notary Supriyanto, S.H., M.M., who works in Depok City, West Java Province. Meanwhile, Petitioner II entered into a cash loan agreement to the amount of Rp750,000 with an interest rate of 3.95%—which he finds unfavorable—with PT Lentera Dana Nusantara through the e-commerce app Shopee on November 22, 2022.
The Petitioners feel their constitutional right to follow and practice their religion has been violated by the enactment of Articles 1765, 1766, 1767, and 1768 of the Civil Code as they had to agree on a loan agreement with an interest rate despite being Muslims who believe that usury in loans is haram.
Article 1765 of the Civil Code reads, “It shall be permitted to stipulate interest in respect on a loan of money or other consumable items.”
Article 1766 of the Civil Code reads, “Any person who has received a loan and has paid interest that was not agreed upon cannot reclaim such, nor can they reduce it from the principal sum, unless it exceeds the legal interest, in which case the overpayment may be reclaimed or the principal sum may be reduced. The payment of interest that is not agreed upon shall not oblige the debtor to continue to pay it; however, agreed interest shall be due until the return or delivery of the principal amount, even if return or delivery could have taken place after the maturity date.”
The Petitioners believe Indonesia’s Civil Code to be the legacy of Dutch colonialists that has not been amended, was the translation of the Burgerlijk Wetboek (BW), and had many elements that are not in line with eastern or religious values in Pancasila-based Indonesia. As such, they asserted, the Court must declare the provisions of Articles 1765, 1766, 1767, and 1768 of the Civil Code in violation of Article 1 paragraph (1) of the 1945 Constitution.
Usury
Irwan added that the word “interest” in those articles were straight out of the Code Napoleon and, thus, irrelevant to Indonesia’s Pancasila-based economic values, which prioritizes social justice for all Indonesians.
The Petitioners challenge the word “interest” in this petition as they believe it has led to their freedom to practice Islam not be guaranteed. They also asserted that it is unjust because it makes creditors inferior while debtors superior. They believe that usury will harm the creditor and debtor. As such, they asserted, the Court should annul the object of the a quo petition and set itself against groups that approves of usury among Muslims in Indonesia.
Justices’ Advice
In response, Constitutional Justice Arief Hidayat requested that the Petitioners elaborate their constitutional impairment, whether potential or actual. “Loss caused by these article should have cause and results. Whether the loss is potential or actual must be explained. Meanwhile, to describe the background of the petition, you can just explain the contradiction between Articles 1765, 1766, 1767, and 1768 and the Constitution. How do the articles conflict with Article 1 paragraph (1) of the 1945 Constitution?” he asked.
Meanwhile, Constitutional Justice Manahan M. P. Sitompul emphasized the importance of legal standing, as it opens the door to the case. “How could there be no clear elaboration of constitutional impairment? So, the constitutional rights or authority granted by the Constitution that are harmed by the enactment of the law must be explained—how is the loss, is it specific, actual, or potential?” he asked.
Before adjourning the session, Justice Manahan announced that the Petitioners would have 14 workdays to revise the petition and submit it to the Registrar’s Office by Monday, July 17, 2023.
Author : Utami Argawati
Editor : Nur R.
PR : Fitri Y.
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.
Tuesday, July 04, 2023 | 16:43 WIB 390