---

Albertus Magnus Putut Prabantoro as Petitioner accompanied by his attorney after panel judicial review hearing of the Law on State-Owned Enterprises (BUMN Law) on Monday (5/3) at the Constitutional Court. Photo by Humas MK/Ganie.

Transfer of shares of three State-Owned Enterprises (BUMN) is the reason for two social economy and social justice observers to file a judicial review of Article 2 paragraph (1) letter a and b and Article 4 paragraph (4) of Law No. 19/2003 on State-Owned Enterprises (BUMN Law). Albertus Magnus Putut Prabantoro and Kiki Syahnakri were registered as Petitioners of case No. 14/PUU-XVI/2018.

In the hearing held by the Constitutional Court (MK) on Monday (5/3) afternoon, the Petitioners argue that both articles impair their constitutional rights as citizens. Article 2 paragraph (1) letter a and b of the BUMN Law reads, "The objectives and purposes of the establishment of State-Owned Enterprise (BUMN) shall be to: a. make contribution to national economic development in general and state revenues in particular; b. make profit." Meanwhile, Article 4 paragraph (4) of the BUMN Law reads,"Any change in the participation of state capital as intended by paragraph (2), either in the form of addition or reduction thereof, including change in the composition of ownership by the state in shares of a State-Owned Limited Liability Company (Persero) or limited liability company, shall be governed by Government Regulation." 

In their petition, the Petitioners claimed that the articles were normatively abused and it led to the issuance of derivative regulation, namely Government Regulation No. 47 of 2017 on the Equity Participation of the State of the Republic of Indonesia in State-Owned Limited Liability Company. In the government regulation, also known as PP Holding BUMN Tambang, shares of three SOEs are transferred to PT Indonesia Asahan Aluminum Persero (Inalum). The three SOEs are PT Aneka Tambang Tbk (Persero), PT Timah Tbk (Persero), and PT Bukit Asam Tbk (Persero). 

Ius Liona N. Syupriatna as one of the attorneys said the transfer of shares had been done without the mechanism of the state budget and the approval of the House of Representatives. "In addition, the transfer was not done openly and responsibly for the greatest prosperity of the people," Albertus explained. 

In addition, Ius continued that the implementation of Article 4 paragraph (4) of the BUMN Law shows the effect of state equity participation in other SOEs, so the SOE becomes a subsidiary of the other SOEs. This provision, Ius added, has eliminated the SOE and can be categorized as a new privatization model due to the transformation of SOE into SOE subsidiary without the mechanism of the state budget and House approval. "So, with the transformation of SOEs into subsidiaries, the Government’s authority is also transferred, affecting shares ownership, formerly by the Government to the recipient SOE," said Ius. 

Revising Legal Standing 

Responding to the petition, Constitutional Justice I Dewa Gede Palguna stressed the importance of legal standing. According to him, although in the petition Petitioners declared themselves taxpayers, he stressed that not every taxpaying citizen has legal standing. In the Constitutional Court Law, Justice Palguna explained, a Petitioner shall be a party who can file [a petition] because they consider their constitutional rights impaired by the enactment of a norm. "So it must be clear in advance the legal standing of the Petitioners. What are the constitutional rights of the Petitioners against the articles petitioned in this review? So, this is still too short,” he explained. 

In addition, Palguna also requested that the Petitioners understand the nature of their petition to the Constitutional Court. He said the Petitioners\' petition questioned the implementation of the regulation and not elaborate the constitutional impairment due to the enactment of the a quo norm. 

Meanwhile, Constitutional Justice Wahiduddin Adams noted that in the petition, the Petitioners tend to elaborate more on the weaknesses of the BUMN Law. "It mostly observes the weaknesses of the law, while the constitutional impairment is not seen. Whether potential or actual or significantly impaired by the a quo article to qualify for the Petitioners’ legal standing," he advised. 

Meanwhile, Constitutional Justice Manahan Sitompul asked the Petitioners to describe the legal standing related to their profession as an observer of the economy and social condition. This is to see the causal relationship due to their constitutional impairment. 

The Panel of Justices gave 14 working days to the Petitioners to revise the petition. Before ending the hearing, Palguna reminded the Petitioners to submit the revised petition no later than Monday, March 19, 2018 at 10.00 Western Indonesia Time. (Sri Pujianti/LA/Yuniar Widiastuti)

---