Good Faith Principle and Legal Protection over Parties Related to

Fiduciary Certificate in the Constitutional Court

Decision in Indonesia after the Constitutional Court Decision Number

18/PUU-XVII/2019

Agus Setiawan

, Haris Wiguna

and Pan Lindawaty Suherman Sewu

Faculty of Law, Universitas Kristen Maranatha, Bandung, West Java, Indonesia

Alumnus of Faculty of Law, Universitas Kristen Maranatha, Bandung, West Java, Indonesia

Keywords: Good Faith Principle, Legal Protection, Fiduciary, Court Constitutional Decision.

Abstract: The Fiduciary Institution is regulated in Law Number 42 of 1999 on Fiduciary (‘FL’). One of the ways to

give legal certainty and protection in FL is the registration of the fiduciary so as to give the preferred rights

to the fiduciary recipient over the other creditors; besides publishing the fiduciary certificate. Nevertheless,

the Constitutional Court Decision No. 18/PUU-XVII/2019, brought some consequences to the creditors when

they want to execute and sell the object that becomes the fiduciary object. The method used in this research

is normative juridical. Besides, it is library research applying a descriptive analytical method with secondary

data. The research result shows that after the publication of the Constitutional Court Decision, there are some

changes in the mechanism of the execution of the fiduciary object. The execution of the court verdict based

on the assessment of a default must be in line with the agreement between both parties, namely the creditor

and debtor. The Constitutional Court in its decisions implies the importance of the good faith principle of the

creditors and the need of legal protection for the debtors, especially related to the execution of the fiduciary

object.

1 INTRODUCTION

Economic development is an essential thing in a

country. This thing needs to be prioritized so that the

social welfare in leading a good life in a country based

on the Pancasila philosophy and the 1945

Constitution of the Republic of Indonesia can be

fulfilled. At present, there are a lot of institutions

facilitating this in order to make it easy for the society

to meet their financial needs, which is in the form of

borrowing related to financial institutions, both banks

and nonbanks.

In line with the economic and trade development,

financial institutions as well as guarantor agencies

have given facilities about giving loans to the society

for the purpose of simplifying and also reducing the

payment of a thing desired, which is an object that is

agreed on in a credit transaction.

https://orcid.org/0000-0003-1752-3548

https://orcid.org/0000-0002-6813-4406

https://orcid.org/0000-0003-0258-7450

According to Rachmadi Usman, there are some

criteria for a good collateral which suits the purpose

of the guarantee itself; they are 1. to easily help get

the credit for those who need it; 2. not to weaken the

potentiality (strength) of the debtors to do or continue

the business; 3. to give certainty to the creditors,

which means that the collateral can be executed at any

time, if necessary, it can be easily cashed to pay off

the debtors’ loan. (Usman, 2008)

Therefore, this confirms that a guarantee should

consider these two factors, namely: 1. secured,

meaning that the credit guarantee is bound in a

judicial and formal way so that in the event of

defaults, (failure of a party to fulfil its obligations

under a contract), the bank has the judicial power to

do an executional action. 2. marketable, meaning that

if the collateral is to be executed, it can be sold or

cashed fast to pay off the debt that becomes the

342

Setiawan, A., Wiguna, H. and Sewu, P.

Good Faith Principle and Legal Protection over Parties Related to Fiduciary Certiﬁcate in the Constitutional Court Decision in Indonesia after the Constitutional Court Decision Number

18/PUU-XVII/2019.

DOI: 10.5220/0010751800003112

In Proceedings of the 1st International Conference on Emerging Issues in Humanity Studies and Social Sciences (ICE-HUMS 2021), pages 342-348

ISBN: 978-989-758-604-0

debtor’s obligation. This must give assurance to all

the parties in doing the agreement by following the

procedures and knowing the limitations so that

anything harmful for any party can be hindered.

After the guarantee is given by the related

institution, the law should be responsible for

balancing the speed of trade activities, supervising as

well as controlling each action in doing the

transactions that are continuously developing.

The Law of Guarantees is a legal area that is

currently more popular with the term The Economic

Law, which has the function of supporting the

economic progress and development in general.

Hence, the arrangement of the legal area needs to be

prioritized. (Mulyadi,1972).

The guarantee itself in general is regulated in

Article 1131 of the Civil Code, which states that any

property of the debtor, both movable and immovable,

whether it currently exists or will exist in the future,

becomes a collateral for any agreement. As a result,

any property of the debtor automatically will become

a collateral whenever the person makes a loan

agreement despite the fact that it is not explicitly

stated as a guarantee. (Civil Code).

Salim HS formulates the economic law as the

overall legal rules that arrange the relationship

between the guarantee giver and receiver regarding

the imposition of guarantee in order to get the credit

facility. The aspects mentioned in the definition are:

1. The legal rule in the economic law, which can be

distinguished into two types, namely the written

economic law and the unwritten economic law. 2. A

guarantee giver or guarantor and recipient. A

guarantor is a person or institution that gives the

collateral to the guarantee recipient. The guarantor

refers to a person or a legal entity that needs a credit

facility. 3. A collateral, which is a material or

nonmaterial thing. A material collateral is a guarantee

in the form of property rights of movable and

immovable things. A nonmaterial collateral is a

guarantee in the form of nonmaterial things. 4. A

credit facility, which is the collateral imposition done

by the guarantor with the aim of getting the credit

facility from a bank or nonbank financial institution

based on trust.

Moreover, Sri Soedewi Masjchoen Sofwan claims

that the economic law is law that regulates the

juridical construction which makes it possible to give

a credit facility by making the things bought as

collaterals. (Sofwan, 2003). One of the guarantor

agencies which accommodate this is fiduciary.

Fiduciary has been applied in Indonesia since the

Dutch colonialization as a form of guarantee that

originates from jurisprudence. Fiduciary is still

applied because the process of imposition is

considered simple, easy and fast. The rules

concerning fiduciary are regulated in Law Number 42

of 1999 on Fiduciary (hereafter abbreviated as ‘FL’).

Article 1 Section1 of FL gives an understanding that

fiduciary is “a transfer of ownership of an object on

trust with the provision that transferred ownership of

the object remains in the control of the owner”.

The word fiduciary comes from Latin, which is

“fides”, meaning trust; hence, fiduciary refers to a

legal relationship between a debtor who gives

fiduciary and a creditor who receives fiduciary. This

relationship is based on trust. The transfer of

ownership which is based on trust in fiduciary is

commonly called a transfer of constitutum

possesorium (a transfer by continuing the authority).

A guarantor agency, more specifically fiduciary,

has the main purpose of enabling the society to meet

the needs which are felt higher and higher day by day.

Nevertheless, there must be some absolute things to

do in fulfilling the fiduciary agreement, one of which

is the fiduciary certificate made in front of a notary

and registered to the fiduciary registration office. All

the parties, both the debtor and creditor, must

understand how the fiduciary agreement is made. The

process of fiduciary attachment must be done

meticulously and elaborately so as not to create a hole

that can be exploited by irresponsible parties.

Besides, this is also done so that, if a default done by

one party takes place, the solution can be executed in

a clear way and it can be obeyed by the two parties

having the agreement. Fiduciary gives a legal

protection as well for both parties and it gives legal

certainty that is written in the approved agreement by

having the fiduciary certificate or grosse akte.

Then the Constitutional Court Decision No.

18/PUU-XVII/2019 was issued, which definitely

influences the characteristic of absoluteness of a

fiduciary certificate, which has so far given the legal

assurance because it contains a specific characteristic.

This certainly has impacts on some interested parties,

both directly and indirectly. Creditors will meet a

quite significant obstacle, considering that the process

of executing and selling the fiduciary object changes,

and it is not as simple as before the Constitutional

Court Decision was issued.

2 METHODS

The research is done using the normative juridical

method, by analysis Law Number 42 of 1999

concerning Fiduciary and also the Constitutional

Court Decision. Next, a careful analysis is done

Good Faith Principle and Legal Protection over Parties Related to Fiduciary Certiﬁcate in the Constitutional Court Decision in Indonesia

after the Constitutional Court Decision Number 18/PUU-XVII/2019

343

regarding the legal standing of the fiduciary

certificate after the Constitutional Court Decision No.

18/PUU-XVII/2019, the role of the good faith in the

process of the fiduciary object after the Constitutional

Court Decision No. 18/PUU-XVII/2019, and whether

the application of the Constitutional Court Decision

is immediate or it has to be legislated first.

The research is descriptive analytical and it

describes the legal standing of a fiduciary certificate

after the issuance of the Constitutional Court

Decision No. 18/PUU-XVII/2019 and the role of

good faith in the execution of the fiduciary object and

also the application of the Constitutional Court

Decision. In addition, the research contains an

analysis of the facts in the practice of whether the

Constitutional Court Decision is immediate or it has

to be legislated first.

The data collection technique uses a secondary

data as the main data and the primary data is used in

support of the secondary data.

3 RESULTS AND DISCUSSION

A fiduciary certificate becomes the base of the

execution of the fiduciary object; however, the

issuance of the Constitutional Court Decision No.

18/PUU-XVII/2019 causes some changes in the

execution of the fiduciary object. Therefore, in the

next part there will be a further elaboration of the

execution of the fiduciary object in practice.

3.1 The Legal Standing of the

Fiduciary Certificate after the

Constitutional Court Decision No.

18/PUU-XVII/2019

An authentic deed clearly distinguishes between the

rights and duties, assures the legal certainty, and also

gives the legal protection to all the parties. The

agreement that is contained in an authentic deed is

also expected to be able to avoid a continuous dispute.

An authentic deed is a written proof that is strong

enough to really contribute to the problem solution in

a cheap and fast way. (Akhmad, 2019).

A fiduciary certificate is a proof of an agreement

between two parties, namely the creditor and debtor,

which arranges the transfer of the ownership of an

object based on trust, which is the copy of the

fiduciary list book containing some notes regarding

the agreement made in front of a notary in accordance

with the Act (Vide Act Number 42 of 1999 concerning

Fiduciary). A fiduciary certificate is an evidence tool;

on the other hand, it also has the immediate

characteristic which becomes the base of doing an

execution without having to go to court.

A fiduciary certificate also regulates the transfer

of ownership of an object based on trust; in other

words, a fiduciary certificate is the copy of the

fiduciary list book which contains the things about the

agreement made in front of a notary in accordance

with Law Number 42 of 1999 concerning Fiduciary.

(HS, Salim 2017) A fiduciary certificate has the

characteristic of grosse akte, which is an official

duplicate copy of a deed for a debt declaration with

the head of deed “In the Name of Justice Based on the

Divinity of the One God”. This oath makes a

fiduciary certificate have a strong legal certainty to be

the foundation of being able to do an immediate

execution without having to go to court. The

execution can be done if the debtor does a default.

A fiduciary certificate is a step for making an

agreement done by the two parties as a strong

evidence tool in the ownership evidence; moreover, it

is also used to prevent a conflict with the other party.

A fiduciary certificate must be done in front of a

notary and registered to the fiduciary registration

office. The making of the fiduciary agreement which

becomes the fiduciary deed must be attended by all

the parties. In addition, the redaction of the deed has

to be done in a meticulous way so that there will not

be a hole that can be exploited by irresponsible

parties. This is also done so that when the parties do

a default, the solution can be clear and obeyed by the

two parties having the agreement.

Basically, the fiduciary certificate has the function

of making it easier for creditors to do the execution

because they have the executional power regulated in

Law Number 42 of 1999 concerning Fiduciary. It is

further emphasized that fiduciary is also a parate

execution, which is described by Bachtiar Sibarani

that “a parate execution can do the execution itself

without the help or intervention from the court or

judges” (Sibarani, 2001). R. Subekti explains that a

parate execution means “doing it itself and taking

what becomes the rights” (Subekti, 1989) Hence, in

this explanation, it is obvious that a fiduciary

certificate is immediate.

Then the Constitutional Court Decision Number

18/PUU-XVII/2019 was issued. This decision makes

the mechanism that refers to Article 15 Sections (2)

and (3) of the Fiduciary Law obstructed in practice.

This has an impact on the creditor who will

execute the fiduciary object because after the

Constitutional Court Decision, the legal standing of

the fiduciary certificate which has been made by the

parties becomes unclear. Besides, the certificate also

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loses the immediate characteristic of its function as

grosse akte to do the execution immediately. This will

lead to the fact that the legal certainty for the creditor

is reduced. If the debtor does not willingly give the

fiduciary object, an obstruction for the execution of

the fiduciary will occur.

3.2 Mechanism of the Fiduciary Object

Execution after the Constitutional

Court Decision No. 18/

PUU-XVII/2019 based on Good

Faith

The Fiduciary Law guarantees the practical solution

mechanism of the execution of the fiduciary object. If

the debtor is considered to do a default, the creditor

can execute the fiduciary object immediately. The

execution of the fiduciary object is based on the

fiduciary certificate which has the grosse akte

characteristic with the executional power so that the

immediate execution of the fiduciary object can be

done without the help of the court, on condition that

a default occurs.

After the issuance of the Constitutional Court

Decision Number 15/PUU-XVII/2019, in which it is

stated that the creditor cannot execute the fiduciary

object unilaterally just based on the fiduciary

certificate.

The Constitutional Court decides that a creditor

who wants to do the execution must file a request to

the District Court first although it is still possible for

the creditor to be able to do the immediate execution

as long as the debtor admits having done a default and

willingly gives the fiduciary object.

A debtor who willingly gives the fiduciary object

usually has good faith. This good faith originates

from the relationship between human beings of

dignity, which is a relationship that is free but does

not harm each other.

Article 1313 of the Civil Code (hereafter

abbreviated as CC) formulates a contract as follows:

“A contract is an action to which one or more

individuals bind themselves to one another”. From

this definition of Article 1313 of CC, it can be

concluded that a contract referred to in the article is a

contract that causes an agreement (overenkomst).

Therefore, the relationship between an agreement and

a contract is that a contract leads to an agreement. A

contract is one of the sources of an agreement, besides

the law as another source.

A contract is formed because of the agreement

with declaration of intent as stipulated in the first part

of Article 1320 of CC regarding one of the

requirements for the contract to be considered valid,

namely the consent of the individuals who are bound.

In general, an agreement takes place because there

is a declaration from one party to bind himself, and

then the other party makes a declaration to accept the

offer.

Herlien Budiono is of the opinion that at least

there are three main principles covering the law of

contract, which are:

a. “Consensual Principle, in which a contract is

made because of the consensus of the parties.

In principle, a contract can be made freely and

not bound to a certain form and it is not

fulfilled formally, but only based on

consensus.

b. Binding Legal Force Principle (verbindende

kracht der overeenkomst) – all the parties must

fulfil what have been agreed on.

c. Freedom of Contract Principle

(contractsvrijheid) – all the parties have the

free will to make a contract and each person is

free to attach themselves to whoever they

want. The parties are also free to determine the

content scope as well as the conditions of the

contract, as long as the contract is not in

conflict with the mandatory laws, both in

public order and decency”.

Besides the 3 (three) main principles which base

the law of contract, in the writers’ opinion, there is

one very important and fundamental principle which

develops the law of contract, namely the good faith

principle.

Good faith is a principle in a contract; basically a

contract must be made based on good faith (vide

Article 1338 section (1) CC), while in the context of

Article 1338 section (3) CC, good faith must be based

on rationality and propriety.

The arrangement of Article 1338 (3) CC stipulates

that a contract must be done with good faith

(contractus bonafidei – a contract based on good

faith). This means that the contract is done according

to propriety and justice. The understanding of good

faith in law has a wider scope than it is in everyday

use. Hoge Raad in his decision on 9 February 1923

formulates that a contract must be done “volgens de

eisen van redelijkheid en bilijkheid”, meaning that

good faith must be done with propriety and decency.

P. L. Werry translates this using the terms virtue and

propriety. Good faith becomes an important principle

in the system of the contract law in Indonesia. Good

faith must be done since the pre-contract stage.

Good Faith Principle and Legal Protection over Parties Related to Fiduciary Certiﬁcate in the Constitutional Court Decision in Indonesia

after the Constitutional Court Decision Number 18/PUU-XVII/2019

345

The changes of the mechanism of the fiduciary

object execution due to the Constitutional Court

Decision are divided into:

1. Execution Mechanism of the Fiduciary Object

before the Constitutional Court Decision

No. 18/PUU-XVII/2019

Basically, before the Constitutional Court

Decision, the practice of the fiduciary execution

refers to Article 15 section (1) and section (2) of the

Fiduciary Law. In principle the creditor can

immediately do the execution if there is a default done

by the debtor as long as it meets the condition, namely

having the fiduciary certificate. A creditor can sell the

thing that becomes the fiduciary object due to the

authority of the fiduciary recipient through a public

auction and he can take the repayment of the debt

from the sales results of the execution based on the

parate execution.

Therefore, it should be noticed that in Article 29

section (1) of the Fiduciary Law, this is a conditional

provision, which will be applied if the condition

mentioned is met, namely if the debtor has done a

default. Hence, before the Constitutional Court

Decision, the mechanism process of the execution of

the fiduciary is simpler, faster, and straight to the

point. Besides, the object can be auctioned directly,

which becomes the characteristic of fiduciary, namely

the ease of executing the object, if a default occurs.

This also means that before the constitutional

court decision, the execution mechanism refers to

Tittle Eksekutorial, which does not have to be done

through a court decision, but which can be in the form

of an authentic deed that is made by the parties

concerning the debt agreement that has Tittle

Eksekutorial, which is equal to a court decision.

Furthermore, it also has the oath on the binding head

of the deed which is made by a notary who has high

integrity (Satrio, 1993).

Herlien Budiono further states that in principle,

fiduciary is a material agreement, and not a

consensual one, despite the fact the object is a

movable one. The reason why it has to be in the form

of a notarial deed is because it becomes the absolute

condition of fiduciary. The reason why fiduciary has

to be registered is because it becomes the publicity

principle (Budiono, 2016).

2. Execution Mechanism of the Fiduciary Object

before the Constitutional Court Decision

No. 18/PUU-XVII/2019

After the Constitutional Court Decision, there is a

change of the mechanism of the fiduciary object,

referring to the written verdict which in essence

explains that if a debtor does not willingly give or has

an objection to give the fiduciary object, the

execution must be done based on the court decision,

which then evaluates that the default cannot be judged

by just one party, but there must be an agreement

between the two parties, the creditor and debtor.

Thus, after the Constitutional Court Decision, the

creditor can no longer do the immediate execution,

but there must first be the debtor’s willingness

although the creditor has already got the fiduciary

certificate.

On the one hand, this decision creates a legal

protection to the debtor, but on the other hand, from

the creditor’s side, a creditor should also have equal

legal protection. The mechanism of the fiduciary

object, in which it must obtain an agreement from the

court if a debtor does not willingly give the fiduciary

object, will cause an impact of economic imposition

on the creditor as it will be difficult to execute the

fiduciary object.

3. Application of the Constitutional Court

Decision No. 18/PUU-XVII/2019

A decision is a term used to refer to the end of a

court case in the sense that each decision given by the

judge must be obeyed by both parties. This is in line

with the fact that a case must be ended through the

judge’s final decision (in rachet) so that it is known

which side wins and which side loses in the decision.

This final decision must be accepted and obeyed by

both parties. Soeparmono states that a judge’s

decision is a statement made by a judge as a state

official who is assigned the judicial power and given

the authority for this. This is literally spoken in the

court and has the purpose of ending a case.

(Soeparmono, 2005). However, not infrequently does

a judge’s decision create new cases instead of ending

a case.

The Constitutional Court reviews the Fiduciary

Law towards the 1945 Constitution of the Republic of

Indonesia, which starts with the creditor’s filing a

judicial review to the constitutional court regarding

the execution problem because the debtor is

considered to have done a default of the agreement.

The Constitutional Court, based on Law Number

24 of 2003 concerning the Constitutional Court, has

the authority in doing a review of the law towards the

1945 Constitution of the Republic of Indonesia, on

condition that one of the parties files a judicial

review. The Constitutional Court does a judicial

review on the law and the one filing the judicial

review gives a proposition that Article 15 sections (2)

and (3) contradicts the regulation in the Constitution

so that the Constitutional Court can make a final

decision that can change the mechanism of the

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fiduciary object. The written verdict contains the

followings:

1. the execution of the fiduciary object must be

done through the court when the debtor does

not willingly give the object.

2. the evaluation about the debtor’s default

cannot be done unilaterally, but it must be

based on a mutual agreement between both

parties

The Constitutional Court Decision has explained

the meaning of Article 15 section (2) and section (3)

of the Fiduciary Law and has put a new rule in it so

that a new rule is applied. However, the question is

whether the Constitutional Court has the authority to

insert a new rule into a law in an immediate way or it

is the Fiduciary Law that has to change and this

change has to be legislated. As a result, the

Constitutional Court’s authority and its type of

decision related to this need to be further analysed.

The Constitutional Court’s review of the law

towards the 1945 Constitution as regulated in Article

56 Law No. 24 of 2003 concerning the Constitutional

Court are as follows:

1. stating that the application cannot be accepted

if the applicant does not meet the condition

2. stating that the application is approved a. THE

CONSTITUTIONAL COURT is of the

opinion that the application is reasonable b.

the law does not fulfil the rule of the forming

of the 1945 Constitution

3. stating that the application is rejected because

it is considered that the law does not contradict

the 1945 Constitution.

Regarding the authority of the Constitutional

Court, according to the rules stated in the law about

the Constitutional Court above that it would be better

if the Constitutional Court does not insert a new rule

in the law in an immediate way, but it has to be

legislated first so that it has the binding characteristic.

According to Jimly Asshiddiqie, the legal

standing of the Constitutional Court is as Negative

Legislator, meaning that the Constitutional Court can

only decide that a rule in a law contradicts the

Constitution; it cannot insert, add or change a new

rule that has already been in the law (Asshiddiqie,

2006).

The Constitutional Court Decision can be in the

form of a negative decision (abolishing a law) and a

positive decision (creating a new regulatory state of

law). The Constitutional Court Decision is negative

when a certain law is declared to be contradictory to

the 1945 Constitution, considering that the

Constitutional Court decision is self-executing, final

and binding, the executor of the Constitutional Court

decision is the House of Representatives, as the

embodiment of the principles of checks and balances,

which immediately follows this up so as not to create

the legal vacuum, which will also affect the

implementation rules in the Government, if a law

changes, automatically the implementation rules

change. The Constitutional Court as the Negative

Legislator in the Constitutional Law Enforcement

(Bintari, 2013).

The formation of the Constitutional Court is

intended to have the authority as a Negative

Legislator. This means that the Constitutional Court

can only abolish a law or rule. On the other hand, the

parliament is called a positive legislator because it has

an active authority to make laws. This doctrine then

develops and is continuously used as one of the

supporting theories in the context of power separation

in Indonesia, especially between the Constitutional

Court and House of Representatives. In other words,

it is interpreted that the authority of the Constitutional

Court is limited only to abolishing the laws, and not

making the laws or other rules (Faiz, 2016).

Thus, the Constitutional Court cannot change the

rule in a law in an immediate way, but it has to be

legislated first by following the guidance of good law

making principles in order to prevent any mistakes

and faults in the rule making. After the decision of the

constitutional court, things that happen in practice

have an impact on creditors who have good faith, they

can find it difficult to carry out executions when

dealing with debtors with bad faith. It is necessary for

the decision of the constitutional court to be followed

up by the legislature to complete the applicable rules.

If the legislative body does not act proactively

enough in adopting the decisions of the constitutional

court, there will be obstacles in practice in the

execution of guarantees.

4 CONCLUSIONS

Based on the result of the research done, the legal

standing of the fiduciary certificate after the

Constitutional Court Decision Number 18 PUU-XVII

2019 in practice has an executorial right as explained

in Article 15 section (2) of the Fiduciary Law, which

means that the execution of the fiduciary object can

be done without the court and this is final and binding

so that it must be obeyed by the two parties when the

execution process is going on. After the

Constitutional Court Decision, the process of the

fiduciary execution is not immediate; an immediate

Good Faith Principle and Legal Protection over Parties Related to Fiduciary Certiﬁcate in the Constitutional Court Decision in Indonesia

after the Constitutional Court Decision Number 18/PUU-XVII/2019

347

execution can be done as long as the debtor willingly

gives the fiduciary object. If the debtor is not willing

to give the fiduciary object, the execution of the

fiduciary certificate must be done and must be the

same as the execution decided by the court which has

a permanent legal force. The impact caused by the

Constitutional Court Decision is the lack of the legal

certainty of the execution of the fiduciary object if the

debtor does not willingly give the object he owns and

he does not admit the default. However, if the debtor

willingly gives the fiduciary object and admits the

default, the creditor’s executorial right can still be

legally assured.

The Constitutional Court has changed the

mechanism of the fiduciary certificate execution. In

practice, this causes some difficulties for the creditor

so that the legal protection cannot be fulfilled if the

debtor is not willing to give the fiduciary object,

although there is a fiduciary certificate (as the

requirement of the fiduciary object execution).

Consequently, the Constitutional Court Decision

Number 18 PUU-XVII 2019 cannot be immediately

applied because the role of Constitutional Court is as

Negative Legislator. As such, the Constitutional

Court can only abolish a rule in a law which

contradicts the Constitution.

Although the Constitutional Court Decision has a

binding legal force right after it is read out. Yet, not

all Constitutional Court decisions which approve of

the applicant’s applications are executable because

there must be a process of making the new law or the

law amendment. This is needed due to the fact that

the values of legal norms in the society are formed

through the laws and legislation which in general give

the binding effects.

So this decision of the constitutional court needs

to be followed up immediately by making legal rules

that can answer legal certainty for the parties so that

in the end legal protection for both creditors and

debtors with good faith can still be fulfilled.

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