Chief Justice Suhartoyo, along with Justice Arief Hidayat and Justice Ridwan Mansyur, presiding over a preliminary panel hearing of the judicial review of Law on Bankruptcy and Suspension of Debt Payment on Monday (02/09/2024). Photo by MKRI/Ifa.

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Jakarta, MKRI – Several apartment buyers challenged Article 74 paragraph (1) and (3) juncto Article 185 paragraph (3) of Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligations (Bankruptcy and PKPU Law). The petitioners of case no. 112/PUU-XXII/2024 are Aniek Trisolawati and Idha Achira Handajanti (housewives), as well as Indri Marini Akbar and Donny (private employees). Petitioners felt harmed due to the bankruptcy of PT Crown Porcelain and PT Cakrawala Bumi Sejahtera, as developers of Point 8 Apartment, located in Jalan Daan Mogot KM 14, Cengkareng, West Java. They asked that the bankruptcy process could be carried out faster and transparently.

During the preliminary hearing on Monday, September 2, 2024, Petitioners were represented by legal counsel Heriyanto, who said that the reduction of the legal certainty principle of Article 28D paragraph (1) of the 1945 Constitution was evident in the process of administering bankruptcy assets by the Curator Team of bankrupt debtor PT Crown Porcelain and PT Cakrawala Bumi Sejahtera which untuk now petitioners do not now the deadline in carrying out the administration of the bankruptcy assets.

“So, until now, there are no measures that can be taken by the Petitioners except to endure their suffering with a sense of hope and disappointment as well as trauma toward the uncertainty in waiting for the settlement of the bankruptcy assets, the only thing that is clear and certain in the proses of settlement of the bankruptcy assets by the Curator Team of the bankrupt debtor PT Crown Porcelain and PT Cakrawala Bumi Sejahtera is to wait for any information of the Curator report’s report to the supervisory judge which can be extended continuously,” he explained before Chief Justice Suhatoyo as the lead justice.

According to the Petitioners, time certainty in the settlement of bankruptcy assets should start by determining a specific time limit for every stage of the bankruptcy process. The court and existing regulations must determine a clear time limit for key stages, such as claim submission, review, and determination of payment priority. A firm time limit will avoid ambiguous interpretations and provide clear guidance for all parties involved. Without a firm time frame, the settlement process may take place indefinitely, causing lags and deadlocks. All parties involved, including curators, creditors, and debtors, may face significant uncertainty as to when the process will be completed. He asserted that this could lead to confusion, anxiety, and even prolong the financial stress that the debtor may face, especially if there are assets that are delayed in being sold or divided, further stating that the lack of clarity on time limits in the context of bankruptcy can have a serious impact on the integrity and fairness of the bankruptcy estate process. One significant impact is the creation of legal loopholes that could potentially be exploited by ill-intentioned parties. In circumstances where time limits are not clearly defined, there is a risk that certain parties will seek to slow down the process or even take advantage of the time vacuum to advance their personal interests.

 According to the petitioners, the existence of loopholes creates inequality between parties involved in settling bankruptcy assets. Parties with better knowledge and access to existing legal loopholes may take advantage to slow down the process. This may disadvantage other parties who may have more pressing interests, such as creditors who need a quicker distribution of assets to satisfy their claims. This inequality harms the integrity of the legal process and can create unfairness in the resolution of bankruptcy. Ill-intentioned parties may try to take advantage of the time vacuum caused by the lack of clarity of the statute of limitations to take steps that may benefit their own interests. Such parties may resort to unethical legal tactics or even try to manipulate the bankruptcy process for personal gain.

Petitum

On the petitum, the Petitioners ask the Court to declare Article 74 paragraph (1) of Bankruptcy and PKPU Law, which reads, “The curator must submit a report to the Supervisory Judge on the status of the bankruptcy assets and the implementation of its duties every 3 (three) months” is conditionally constitutional, i.e. constitutional insofar as it is interpreted as “The curator must submit a report to the Supervisory Judge on the status of the bankruptcy assets and implementation of its duties every 3 (three) months and must complete the bankruptcy assets settlement and all of its duties within the period of no later than 3 (three) months since the pronouncement of bankruptcy.”

Furthermore, the Petitioners also requested the Court to declare Article 74 paragraph (3) of the Bankruptcy and PKPU Law, which says that “Supervisory Judge may extend the period as referred to in paragraph (1)” is conditionally constitutional insofar as it is interpreted as “Supervisory Judge may extend the reporting period as referred to in paragraph (1) for a maximum of 3 (three) months.”

The petitioners also requested the Court to declare Article 185 paragraph (3) of the Bankruptcy and PKPU law, which reads, “All objects that are not immediately or completely unable to be disposed, the Curator decides the action to be taken against the object with the permission of the Supervisory Judge” is conditionally constitutional insofar as it is interpreted as “All objects that are not immediately or completely unable to be disposed within a period no later than 2 (two) years, the Curator decides on the action to be taken against the object with the permission of the Supervisory Judge.”

Justices’ advice

Responding to the petition, Justice Arief Hidayat advised that all petitioners study the previous Constitutional Court’s decisions regarding the Court’s authority in changing time limits and adding new norms to a law. “Whether the Court is authorized or not. Then, whether the Court is allowed to add new norms. Try to observe,” Justice Arief said.

 Before concluding the hearing, the panel stated that the Petitioners would be given 14 days to revise their petition. The revision must be submitted to the Registrar’s Office on Tuesday, September 17, 2024, at 15.00 WIB at the latest.

Author: Utami Argawati.

Editor: N. Rosi.

PR: Fauzan F.

Translator: Rizky Kurnia Chaesario (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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