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Principal Applicant Samuel Bonaparte Hutapea delivered petition revision on judicial review session on Act of Shipping (Undang-Undang Pelayaran –UU Pelayaran) on Monday (22/6) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) again held judicial review session on Act Number 17 Year 2008 of Shipping (Undang-Undang Pelayaran –UU Pelayaran) which filed by Ucok Samuel Bonaparte Hutapea with agenda petition revision on Monday (22/6). Ucok Samuel was Indonesian citizen who planned to establish shipping company.

In his petition which registered with number 64/PUU-XIII/2015, the Applicant asserted had conducted revision. Previously the Applicant only reviewed Article 158 (2) letter c Act of Shipping. However in this session, the Applicant added several articles which materially filed, which were Article 1 point 21 and 28, Article 223, and Article 341 Act a quo.

In addition, petition revision also conducted on legal standing. The Applicant attached evidence regarding account making plan for purchasing shares owned by shipping company. “For revision on legal standing, Applicant attaches evidence regarding on account making plan for purchasing shares owned by shipping company. It is also for buying a company engaged in port sector and mining company which owned particular and individual terminal, in order to fulfill legal standing directly as affected party,” Ucok Samuel explained in front of Justice Panel led by Constitutional Justice I Dewa Gede Palguna at Plenary Room, the Constitutional Court Building.

The Applicant also asserted legal uncertainty caused by enactment of Article 158 (2) letter c Act of Shipping. According to the Applicant, prior to Act of Shipping passed, a lot of shipping company whose majority shares owned by foreign party. It was because no transitional provision which required obligation to divest (capital reduction) on shares owned for foreign shareholders. This provision raised interpretation that the divestiture conducted by foreign shareholders was optional. It caused national shipping company which newly-established after Act of Shipping passed became difficult to compete with foreign company, resulted to unconducive competition.

The Applicant argued such loss hampered the development of Indonesian shipping businessmen. Indonesian shipping businessmen became difficult and reluctant to enter shipping sector because they worried of unable to compete with shipping companies whose majority shares owned by foreigners.

In his argumentation, the Applicant said cabotage principle was the main principle of Act of Shipping. Cabotage principle was the principle of granting privilege to commercial operational supporting ships which flagged countries concerned to conduct shipping to the territory (port). Further, the ships should own and operated by citizens or business entity which established under respective country law. Even, majority shareholding (at least 51 percent) should also owned by respective country companies.

According to Ucok Samuel, the objective of cabotage principle was for protecting national interest and national maritime industry interest for the sake of its citizens. Therefore, it was very shallow if cabotage principle only related to ship flag, in which the flag allowed to use for domestic shipping was Indonesian flag only. Meanwhile, maritime business was very broad and cabotage principle covered on entire aspects related to maritime sector.

“Cabotage principle will be pointless and meaningless if the ship was Indonesian-flagged ship, but then the port is not required Indonesian majority or in other articles filed, companies who wants to register their ships, the Applicant requests that share adjustment become Indonesian majority share owned. It is meaningless for Indonesia if the ship is flagged Indonesia but the company is dominated by foreigners. Completely meaningless,” said Ucok Samuel. (Ilham/Prasetyo Adi N) 

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