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Director General of Human Rights Mualimin Abdi, represented the Government, was delivered the Government testimony at judicial review session on Act of Aviation on Wednesday (14/3) at Plenary Room, the Constitutional Court Building. Photo PR/Ifa

 

 

The Constitutional Court was held a judicial review session on Act No. 1 Year 2009 of Aviation (Undang-Undang Penerbangan –UU Penerbangan) with agenda the Government’s and the House of Representatives’ (Dewan Perwakilan Rakyat –DPR) testimony hearing on Tuesday afternoon (14/4) at Plenary Room, the Constitutional Court Building. Case registered on number 29/PUU-XIII/2015 was filed by a Transportation Ministry (Kementrian Perhubungan –Kemenhub) civil servant Sigit Sudarmaji. The Applicant felt his constitutional rights had detrimental with the provisions on Article 118 (1) letter b and Article 118 (2) Act a quo.

At the session, the President represented by Mualimin Abdi said that the Applicant didn’t explicitly explain his constitutional loss due to the enactment of Act a quo. Moreover Mualimin said, the Applicant didn’t explicitly and clearly note the legal ground that used as the touchstone in his petition. “The Applicant didn’t mention the articles on the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945) clearly and explicitly. In other words, according to the Government, both acts reviewed and the 1945 Constitution as the touchstone were inappropriate and it just merely assumptions,” explained Mualimin as Director General of Human Rights of the Justice and Human Rights Ministry (Direktur Jenderal Hak Asasi Manusia Kementrian Hukum dan Hak Asasi Manusia -- Dirjen HAM Kemenkumham).   

Further, Mualimin questioned the Applicant status who is a civil servant (Pegawai Negeri SIpil –PNS). According to him, it was inappropriate if the act a quo declared discriminative due to the Applicant’s status. “Therefore related with the Applicant status as civil servant, according to us, it is inappropriate if Act of Aviation considers cause discriminative treatment,” explained Mualimin.  

Mualimin delivered that the Government didn’t agree with the Applicant’s arguments which stated there were discriminations towards aviation business when compared with other transportation modes. Moreover, Act a quo basically gives opportunity to everyone or every enterprises who willing to involve in aviation sector. The opportunity is adjusted with the capability of aircraft ownership. According to Mualimin, if the Applicant was only possessed two airplanes, the Act a quo still gave opportunity; in the unscheduled commercial airline category.   

“For example the Applicant could buy two aircrafts, Your Majesty, he cooperate with a company to be able to charter its aircraft to transport to and fro his region, but not in framework of scheduled airline because it shall follow the regulations and rules that are strictly regulated by the authority, "said Mualimin.

Furthermore Mualimin delivered conclusion that the Act a quo wasn’t treated discriminatively for those who willing to open business in aviation sector. Mualimin was also said that airlines had different characteristic and specification with other transportation modes. Mualimin argued the provision stated the obligation to have at least 5 units aircraft and control at least 5 units aircraft was an open legal policy and directly related with the legislators’ authority.

“The provision regarding the number of aircraft operated –5 units owned and 5 units controlled–, according to the Government, it related to open legal policy that directly related with the legislators’ authority, in this case is the DPR following with the President,” said Mualimin.

After hearing the testimony, Constitutional Judge Wahiduddin Adams asked whether or not the indications occurred as mentioned in the Applicant’s petition posita (claim basis). Based on the posita, the provision on Article 118 (1) letter b and Article 118 (2) Act a quo will drove the aviation sector into the gloom. One of the indicators, according to the posita, was no new airlines emerged in the national aviation sector.

“Well, this is might need to be answered whether this later become a part of our provisions, is (the statement) presented is mentioned the indicator. The indicator is no new national airline emerged. Existing national airlines who cannot meet the provision are closed. Existing national airlines are shut down for imposing such regulatory compliance,” explained Wahiduddin.    

Answering the question, Mualimin said that later the Government would be answered by the data. It was needed to explain in detail about the impact of Act a quo towards airline sector.”Later we will deliver by the data, because a lot of matter that we should deliver or the Government delivers in detail using the data,” said Mualimin.

Chief Justice of the Constitutional Court Arief Hidayat inquired about international provisions adopted concerned on the airline establishment. Additionally, Arief inquired about the default settings of airline establishment in other country. "Try described also the benchmark with similar regulations of the airlines establishment that prevailed in other countries. It is a substance that also important, in my opinion, to be known by the Panel in order to discuss the substance, "said Arief. Answering that question, Mualimin said that later he would bring experts to answer the Chief Justice’s questions. (Triya IR/Prasetyo Adi N.)

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