---

Constitutional Law expert Refly Harun, presented by the Petitioner, lent his expertise in the judicial review hearing of the Law on Regional Taxes and Levies, Thursday (27/7) in the Plenary Hall of the Constitutional Court Building. Photo by Humas/Ganie.

The Constitutional Court held a follow-up hearing of the judicial review of Law Number 28 Year 2009 on Regional Tax and Regional Retribution (PDRD Law), Thursday (27/7). The agenda of hearing of case Number 15/PUU-XV/2017 was to listen to the information from the expert presented by the Petitioner.

Governance Law expert Refly Harun shared his views on the constitutionality of “heavy equipment,” both in the PDRD Law, Traffic and Land Transportation (LLAJ), as well as the Constitutional Court\\'s Verdict. Prior to elaborating the correlation between those three things, Refly emphasized that the Constitutional Court’s Verdict is final and generally binding so that any legal norms that are contradictory to the 1945 Constitution can no longer be used as legal basis for policies or actions by state actors and citizens.

Refly stated that, in principle, the meaning of “heavy equipment” in the PDRD Law is not different from that in the LLAJ Law although the verdict of the Constitutional Court Number 3/PUU-XIII/2015 stated heavy equipment is categorized as special vehicles. "Therefore, in understanding this interpretation, two perspectives are used. First, the constitutional approach that is dynamic following developments in society. Second, the approach based on the verdict of the Constitutional Court that is erga omnes," he explained as expert presented by the Petitioner.

Differing Interpretations

The case on heavy equipment has indeed been proposed and decided by the Constitutional Court through Verdict Number 1/PUU-VIII/2012 and Number 3/PUU-XIII/2015. Refly acknowledged that there were differing interpretations between the two verdicts. In Verdict Number 1/2012, the Court rejected the petition so there was no difference between the PDRD Law and the LLAJ Law. The Verdict stipulated that heavy equipment is classified as motor vehicles. Meanwhile, in Verdict Number 3/2015, the Court granted the petition by giving emphasis to the equipment’s operation on highways. The Constitutional Court stated that heavy equipment had significant differences and was not designed for travel.

"Therefore, based on those definitions, heavy equipment is excluded from traffic and land transportation and conditions for motor vehicles are not imposed on it," he added.

However, Refly noticed the differences between the two verdicts. Logically, he argued, if the Court produced a new verdict for a subject matter, the previous verdict on the same subject matter could not be used as a valid legal basis. "This means, heavy equipment in the verdict No3/PUU-XIII/2015 should be interpreted in general, both in terms of the subject and object, so the ruling of the previous verdict is no longer valid," said Refly during the hearing led by the Constitutional Court Chief Justice Arief Hidayat.

Legal Culture in Indonesia

In relation to the constitutionality of heavy equipment, Refly saw a correlation with legal culture, namely the adherence to the law in Indonesia, which is sometimes weak. Although the object of the Constitutional Court\\'s verdict concerns the interests of all people, it is necessary to have explicit affirmation in the verdict because, some verdicts of the Constitutional Court which has been made have been reopened.

“In Indonesia, judicial review of the law is abstract in nature. Therefore, affirmation of erga omnes on the verdict of the Constitutional Court should be explicitly stated so that all rules that have been decided should not be used or no longer apply to the filing of other cases," Refly explained.

After listening to the explanation, Constitutional Justice I Dewa Gede Palguna asked for an explanation of the nature of erga omnes associated with legal culture. "Academically, does the nature of erga omnes result in another norm, whether equal or not, losing its binding nature?" asked Palguna.

Similarly, Constitutional Justice Saldi Isra also asked for the same explanation. "Please explain the context of erga omnes. From the perspective of Indonesia\\'s positive law, our law narrows the meaning of erga omnes by referring to the part being reviewed; in terms of positive law, there is space that limits it. Hence, previously the LLAJ Law was the law being reviewed, and then the PDRD Law. How should the idea be restricted?" Saldi asked.

In response, Refly stressed that the return of the Petitioner to the Constitutional Court was due to doubts he found in the parties that implemented the law. Therefore, according to him, it was necessary to affirm heavy equipment as a motor vehicle in the LLAJ Law after the Court’s Verdict and in relation to legal culture.

"Therefore, there needs to be a statement from the Constitutional Court that cancels the existence of heavy equipment in the PDRD Law and LLAJ Law in order to avoid conflict in the community. So, the Court needs to narrow it down, so that erga omnes becomes a lesson learned," said Refly.

At the end of the hearing, Arief stated that the next trial would be held on August 21, 2017 with the agenda of listening to information from two experts, one presented by the Petitioner and the other by the Government.

(Sri Pujianti/lul/Yuniar Widiastuti)

---