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Principal Applicant Ibnu Kholdun cries after hearing verdict announcement on Act of Electricity (Undang-Undang Ketenagalistrikan), on Tuesday (22/9) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) partially grants petition on Act Number 30 Year 2009 of Electricity (Undang-Undang Ketenagalistrikan), particularly regarding Article 54 (1). By the verdict, PLN consumers who have no operation acceptance certificate are only threatened by fine sanction, instead of imprisonment.

“Grants Applicant’s petition in its partially,” said Chief Justice Arief Hidayat read Court Verdict on Tuesday (22/9) at Plenary Room, the Constitutional Court Building.

As known, Ibnu Kholdun files petition which registered in Case Number 58/PUU-XII/2014. In the petition, he says the phrase ‘imprisonment for 5 years and’ contrary to the 1945 Constitution and has no legal binding if it isn’t interpreted as ‘anyone who operate electricity installment without operation acceptance certificate as referred in Article 44 (4) shall be sentenced with maximum fine of 500 million Rupiahs’ (‘Setiap orang yang mengoperasikan instalasi tenaga listrik tanpa sertifikat laik operasi sebagaimana dimaksud dalam Pasal 44 ayat (4) dipidana dengan denda paling banyak Rp.500.000.000,00 (lima ratus juta rupiah)’).

 

Article 44 (4) Act of Electricity stated,

Every electricity installations shall have operation acceptance certificate (‘Setiap instalasi tenaga listrik yang beroperasi wajib memiliki sertifikat laik operasi.’)

Article 54 (1) Act of Electricity stated,

(1) Each person operates electricity installation without operation acceptance certificate as referred in Article 44 (4) shall be sentenced by maximum imprisonment of 5 years and maximum fine of 500 million Rupiahs ((1) Setiap orang yang mengoperasikan instalasi tenaga listrik tanpa sertifikat layak operasi sebagaimana dimaksud dalam Pasal 44 ayat (4) dipidana dengan pidana penjara paling lama 5 (lima) tahun dan denda paling banyak Rp 500.000.000,00 (lima ratus juta rupiah)).

  

According to the Court, the norm is cumulative because each person operates electricity installation without operation acceptance certificate shall be sentenced by imprisonment and fine. The Court argues operation acceptance certificate is administrative requirement which obliged by the State for each person who operates electricity installation. Thus, the sanction of disobeying such obligation is in form of administrative sanction which including in administrative criminal law matter.

“According to the Court, it is inappropriate if the absence of operation acceptance certificate in electricity installation is imposed with imprisonment sanction. Administrative violation is not a violation which removes other people’s rights such as murder, human rights violation, or theft. Thus, imprisonment sanction as stipulated in Article 54 (1) Act of Electricity is contrary to Article 28G (1) the 1945 Constitution,” explained Constitutional Justice Patrialis Akbar when read Court’s Consideration.

Regarding sanction for households which have no certificate, the Court explains that the certificate is mandatory requirement in operating electricity installation. It is PLN fault if the PLN still provide electricity to households which have no certificate, because households cannot operate installation without the electricity. “Thus, if the PLN still distributes electricity for household installment and cause fire due to the lack of operation acceptance certificate, the PLN shall responsible for the loss. Thus, it is inappropriate if fine and imprisonment are imposed to the people,” said him.  

Transitional Clause

The Court assesses transitional clause is needed regarding operation acceptance certificate to prevent loss resulted by changing of Act a quo. Thus, transitional clause cannot apply retroactively.

The requirement of operation acceptance certificate stated in Article 44 (4) Act a quo and the sanctions stated in Article 54 (1) Act a quo are applied since 2009 when the Act of Electricity enacted. However, a lot of electricity installation which have been built before the Act enacted.  

“According to the Court, the requirement of operation acceptance certificate in electricity installation stated in Article 44 (4) Act of Electricity and the sanctions stated in Article 54 (1) Act of Electricity are in effect since this Court Verdict announced,” said him.

Thus, the requirement of operation acceptance certificate for each electricity installment stated in Article 44 (4) and the fine sanction in Article 54 (1) Act of Electricity are in effect since Court Verdict announced. However, fine sanction is not imposed to household electricity installment.

Moreover, the Court declares certificate requirement needs to distinguish between power plants, power transmissions, power distributions, high power utilizations, and middle power utilizations, including for households. Each electricity installment has different functions, utilizations, operations, and risks. The distinction shall be regulated by positive legislators along it is not contrary to the Constitution. (Lulu Hanifah/Prasetyo Adi N)

 

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