Expert Assesses Regional Governance Act Appendix Cause Legal Uncertainty
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The Court uses video conference for hearing Applicant’s Expert’s testimony at judicial review session on Act of Regional Governance (Undang-Undang Pemerintahan Daerah –UU Pemda), on Monday (28/9) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

By video conference from Faculty of Law Universitas Andalas Padang, Saldi Isra says CC Appendix number 5, Sub-Electricity Affairs stated in Act Number 23 Year 2014 of Regional Governance (Lampiran CC angka 5, Sub-Urusan Ketenagalistrikan Undang-Undang Nomor 23 Tahun 2014 tentang Pemerintahan Daerah) doesn’t meet legal certainty requirement. Isra delivers his testimony as Applicant’s Expert at judicial review session on Act of Regional Governance (Undang-Undang Pemerintahan Daerah –UU Pemda), on Monday (28/9) at Plenary Room, the Constitutional Court Building.

West Kutai Regent (Bupati Kutai Barat) Ismail Thomas, Chairman of West Kutai Regional Legislative Council (Ketua Dewan Perwakilan Rakyat Daerah Kabupaten Kutai Barat) F.X. Yapan and Chairman of West Kutai Communal Presidium (Ketua Presidium Dewan Adat Kabupaten Kutai Barat) Yustinus Dullah files petition on Act a quo.

Isra delivers that the Appendix doesn’t give legal certainty to West Kutai Government to conduct electricity management. The Applicant assesses the Appendix which only regulates central government authority and provincial government authority in electricity affairs, cause constitutional loss because it removes regional government (pemerintah daerah kabupaten/kota) authority.

The Applicant assesses Article 5 (3) Act Number 30 Year 2009 of Electricity grants authority to regional government in electricity affairs. The Applicant who intended to build power plant considers the Appendix hampers their intention. They request the Court to declare the Appendix contrary to the 1945 Constitution and has no legal binding.

Isra agrees with the Applicant and assesses the Appendix doesn’t provide legal certainty. He then explains legislation requirements which considered meet legal certainty principle.

According to Isra, the Appendix is considered contradiction in terminis with one of the intention stated in General Explanation of Act of Regional Governance, which is autonomy granted to regional government shall be used for accelerate the realization of people’s prosperity by public service improvement and public empowerment. However, he assesses the Appendix removes regional government authority.

“If read carefully on letter d Act Number 30 Year 2009 and General Explanation of Act Number 23 Year 2014 and associated with electricity problems in our State, it can be said that regional government authority loss in electricity affairs is somewhat illogical,” said Isra.

Act Substance

Citing sociology expert Oliver Wendell who saying “the life of the law is not been logic, it has been experience”, Isra asserts the substance on Act of Electricity is appropriate under recent people’s demands. The Appendix shall be obliged to people’s demands on electricity, as well as the substance on Act a quo and the substance on General Explanation of Act of Regional Governance.

“Based under overall facts, the substance on Act Number 30 Year 2009 is more appropriate with recent experience and demands. In this case, regency or city will be better if regional government has authority in electricity affairs,” said Isra.

Isra says Act Number 12 Year 2011 of Legislation Establishment (Undang-Undang Pembentukan Peraturan Perundang-Undangan –UU P3) allows appendix attached in Act. According to him, Act appendix is included in Act body (batang tubuh) as integral part.

Isra also says Act of Electricity has provided authority to regional government, but the authority then removed by CC Appendix Number 5 Sub-Electricity Affairs of Act of Regional Governance. He considers such contradiction possibly cause legal uncertainty.

“It is questionable because appendix is in the lowest position of legislation structure. Regarding Applicant’s petition, regional government authority loss is only stated in CC Appendix Number 5 Sub-Electricity Affairs of Act Number 23 Year 2014. However, regional government authority in electricity affairs is explicitly regulated in Act Number 30 Year 2009. How could the norm (on regional government authority, ed.) removed only by appendix? Removing substance of Act by only using appendix can cause legal uncertainty,” said Isra.

After hearing Expert’s testimony, some parties ask questions to Isra. In the end of the session, Chief Justice Arief Hidayat delivers that the next session will be held on Wednesday October 7, 2015 at 11 a.m. The next session will be scheduled on hearing House of Representatives’ testimony which absent at previous session. (Yusti Nurul Agustin/IR/Prasetyo Adi N)


Tuesday, September 29, 2015 | 09:43 WIB 105