Legal counsel Irawan Santoso conveying the petition’s revisions at the panel judicial review hearing of the Civil Code, Monday (7/17/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a second hearing for the material judicial review hearing of Articles 1765, 1766, 1767, and 1768 of the Civil Code took place on Monday, July 17, 2023 in the plenary courtroom. The case No. 63/PUU-XXI/2023 was filed by Utari Sulistiowati and Edwin Dwiyana (Petitioners I-II).

Legal counsel Irawan Santoso conveyed the revisions to the petition, including the Petitioners’ profile, the mention of the Civil Code, the Court’s authority over the case and relevant legislation on it, as well as the Petitioners’ legal standing.

“Petitioner II had factual losses due to the articles in the Civil Code. Usury does not only concern the Petitioner, who is a Muslim, but also concerns the freedom to execute public trust,” he said before Constitutional Justices Manahan M. P. Sitompul (panel chair), Arief Hidayat, and Daniel Yusmic P. Foekh.

He also said that the a quo norms are against Article 1 paragraph (1) and Article 29 paragraph (2) of the 1945 Constitution. These provisions and expert opinions on usury provide no justification of interest on money. As a result, he stressed, these norms are unconstitutional.

Also read: Usury in Civil Code Questioned

At the preliminary hearing on Tuesday, July 4, 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.”

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.

In addition, 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.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
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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