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Preliminary panel hearing of judicial review of the Road Law on Wednesday (7/3) at the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The provision of concession permit for toll road management for private parties as stated in Law No. 38/2004 on Roads is reviewed materially at the Constitutional Court (MK). Two civil servants (PNS) Moh. Taufik Makarao and Abdul Rahman Sabara requested a review of Article 50 paragraph (6) of the Road Law to the Constitutional Court (MK), Wednesday (7/3).

Article 50 paragraph (6) of the Road Law reads, "Toll road concession is granted within a certain period of time to fulfill the return on investment and fair profits for toll road business."

According to the Petitioners, the phrase "a certain period of time" in the article causes legal uncertainty because it results in no time limit for toll road concession management by private parties when in fact toll management should be controlled by the state as regulated in Article 33 paragraph (2) of the 1945 Constitution.

"The toll road is a branch of production that should be controlled by the state, but it is as if it is not controlled by the state because we see that the phrase "a certain period of time" results in the management falling not to the state but rather to the private sector or the toll road managers," said Arifudin as the attorney of the Petitioners.

In the petition No. 15/PUU-XVI/2018, the Petitioners also explained that the uncertainty of the concession period arrangement is not a reflection of good governance in managing business activities. In addition, unclear concession period may potentially cause harm to the state.

Therefore, in their petitum, the Petitioners requested that the Court declare that Article 50 paragraph 6 of the Road Law contrary with the 1945 Constitution as long as it is not interpreted that toll road management concession be granted within a maximum period of 20 years to fulfill the return on investment and fair profits for toll road managers. Subsequently, the Petitioners also requested that Article 50 paragraph 6 of the Road Law be declared not having binding legal force as long as it is not interpreted that toll road management concession be granted for a maximum of 20 years to fulfill the return on investment and fair profits for toll road managers.

Revise Legal Standing

Responding to the petition, Constitutional Justice Saldi Isra asked the Petitioners to revise their legal standing. According to him, the Petitioners’ constitutional impairment is not obvious. "If it can be clarified, how to actually make it clear that there is indeed constitutional impairment. If there is factual [impairment] it is better," he advised.

Meanwhile, Constitutional Justice Aswanto stated that the concession referred to in Article 50 paragraph 6 of the Road Law is explained in the elucidation to the article. In the elucidation, the concession is set in an agreement, meaning there is no time limit. "It is stated in the elucidation that this in his elucidation is affirmed that the particular purpose of it is stated in the covenant. Thus, the concession to toll roads held by certain companies is not without time, "he said.

Justice Aswanto observed no loss was suffered by the Petitioners because the concession period has been set in the agreement. To that end, he requested that the Petitioners reconsider their petition. (ARS/LA/Yuniar Widiastuti)

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