Petitioner Siti Aisyah attending the Petition Revision Hearing of Case No. 208/PUU-XXIII/2025, Thursday (20/11). Photo by MKRI/Hamdi.
Jakarta (MKRI) – The Constitutional Court (MK) held a petition revision hearing on Case No. 208/PUU-XXIII/2025 on Thursday, November 20, 2025, at the Courtroom. The Petition was filed by Siti Aisah to challenge Law No. 4 of 1996 on Mortgage Rights against the 1945 Constitution of the Republic of Indonesia.
The hearing presided over by Chief Justice Suhartoyo was scheduled to examine the revised petition. Siti Aisah considered the Elucidation of Article 14 paragraph (2) and paragraph (3) of the Mortgage Law contrary to Article 28G paragraph (1) and Article 28H paragraph (4) of the 1945 Constitution because they erode the protection of auction buyers' rights. She believed that auctioned objects are often held by debtors, which may create disputes and delay execution.
“The explanation concerning the auction of secured collateral is deemed not to provide protection for auction winners as rightful owners, because the auctioned object remains under the debtor’s control and allows the debtor to arbitrarily retain the property by filing lawsuits against the auction winner for unlawful conduct, effectively delaying transfer of the auctioned object. In fact, the constitution guarantees the protection of property rights and assets purchased by auction winners,” she said.
The Petitioner also stated that the provision in question conflicts with the principles of economic democracy.
Furthermore, the Petitioner argued that Article 14 paragraph (2) and paragraph (3) could be interpreted as granting the creditor authority only to execute the sale, without encompassing the authority to carry out the eviction of the auctioned property. This situation is inconsistent with the principles of protection, justice, humanity, and legal certainty as outlined in Law No. 12 of 2011.
“Therefore, the Elucidation to Article 14 paragraphs (2) and (3) of Law No. 4 of 1996 should be interpreted to cover the entire process up to public auction. Holders of mortgage rights must have executorial power not only to sell the secured property but also to vacate the mortgage object,” he explained.
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Mortgage Law Deemed to Lack Legal Certainty for Auction Buyers
In the preliminary hearing, the Petitioner argued that Article 6 of the Mortgage Law does not provide legal protection for good-faith auction buyers. The Petitioner contended that the provision only benefits banks or creditors, while auction buyers must bear legal and administrative burdens after the auction process is concluded.
The Petitioner emphasized that her plea does not constitute ne bis in idem, as stipulated in Article 60 of the Constitutional Court Law and Constitutional Court Regulation (PMK) No. 7 of 2025. She also cited several similar MK decisions, including Decision Nos. 97/PUU-XXIII/2025, 70/PUU-VIII/2010, 84/PUU-XVIII/2020, and 21/PUU-XVIII/2020.
In her petition, the Petitioner objected to the phrase “the first mortgage shall have the right to sell the object of the mortgage by its own authority” as stated in Article 6 of the Mortgage Law. She argued that the phrase “own authority” is ambiguous and creates legal uncertainty, as it can be interpreted to mean that the bank only controls the collateral certificate, not the land itself.
The Petitioner won the auction of a Bank BRI Slawi Branch, Tegal Regency, collateral, and the case was appealed and brought to the cassation level. Yet, even after all legal proceedings had concluded, the auctioned property remained in the debtor's possession. This situation left her facing lawsuits up to the Supreme Court, draining her time, energy, and finances, despite being a bona fide purchaser.
In their petitum, the Petitioner requested that the Court declare Article 6 and the Elucidation of Article 6 of the Law on Mortgage over Land and Objects Related to Land to be in contradiction with the 1945 Constitution and without binding legal force, unless interpreted to mean, “Proceeding to the public auction stage must be preceded by execution of the mortgage object and vacating the mortgage object.”
Author: Utami Argawati
Editor: Lulu Anjarsari P.
PR: Andhini S. F.
Translator: Rizky Kurnia Chaesario
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.
Thursday, November 20, 2025 | 19:57 WIB 194