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Principal Applicant Sigit Sudarmaji during stating his propositions at judicial review session on Act of Aviation on Thursday March 12 at Plenary Room the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) was held first session of judicial review on Act Number 1 Year 2009 of Aviation (Undang-Undang Penerbangan –UU Penerbangan). The enactment of Article 118 (1) letter b and Article 118 (2) Act a quo is considered discriminative.

The petition was filed by Sigit Sudarmaji, a civil servant who worked at Transportation Ministry (Kementrian Perhubungan –Kemenhub). He felt Article 118 (1) letter b and Article 118 (2) Act of Aviation that regulated the minimum number of aircraft possession and control is discriminative and potentially eliminate low-scale aviation entrepreneurs.   

Article 118 (1) letter b states:

possess and control aircraft with certain amounts;

Whereas Article 118 (2) states:

Aircraft with certain amounts as referred in paragraph (1) letter b, for:

a. scheduled commercial air transport that have at least five (5) units of aircraft and control at least five (5) units which the type of aircraft supports business continuity in accordance with the routes served;

b. non-scheduled commercial air transport have at least one (1) unit of aircraft and control at least two (2) units which the type of aircraft supports business continuity in accordance with the operating area served; and

c. cargo-specialty commercial air transport have at least one (1) unit of aircraft and control at least two (2) units which the type of aircraft supports business continuity in accordance with the route or operation area served.

Sigit who interested in becoming aviation entrepreneur explained three discriminative points in the regulation. First, the discrimination towards aviation entrepreneur as compared with other modes of transportation entrepreneur. For example is the difference between aviation businesses with shipping businesses. "For shipping businesses, there is no minimum requirement. It means, in order to make shipping business, one ship is enough, "he said at the first session of Case Number 29/PUU-XIII/2015 at session room MK, Jakarta, Thursday March 12.

In addition, the discrimination occurred between the aviation entrepreneurs who had low capital and high capital one. He added, his intention of being aviation entrepreneur was hampered due to the regulations. It is because he had to control at least 10 units and possess 5 of them. “I imagine someday I would establish a route from Pontianak to Tusibau. Maybe around 3 routes, so in our calculation it possibly enough with 2 units of aircraft to serve the routes.”   

The regulation is also discriminative for aviation entrepreneurs because it is only applied to domestic aviation industry. “While domestic routes are also passed by foreign airlines and we never asked to them the number of aircraft they possessed,” he explained.

Therefore, the Applicant filed to MK to declare that Article 118 (1) letter b and Article 118 (2) Act of Aviation is contradicted with the Constitution and has no legal grounds.

Strenghten the Posita

Responding to the petition, Judge Panel led by Chief Justice Arief Hidayat advised to the Applicant to strengthen his petition points, particularly on the reason of norms reviewed that considered contradictory with The 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945). It is because the Constitutional Court is not adjudicate concrete cases and review cross-acts.  

 “If you compare it with Act of Shipping, it means you compare between two acts. It is not the Constitutional Court’s authority. But, if you could explain the reason of both differences clearly, you could see the article is whether correct or incorrect,” said Constitutional Judge Maria Farida Indarti.

The Applicant also asked to revise his legal position and clearly described his constitutional losses, either concrete or potential losses. "I am very interested with your petition that mentions the discrimination between foreign entrepreneurs with Indonesian entrepreneurs in the field of aviation. Try to elaborate, because if a foreign company could establish their business in Indonesia, the airline could enter Indonesia with the amount of units they have remained unnoticed, "said Arief. (Lulu Hanifah/Prasetyo Adi N)

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