Judicial review hearing of Road Traffic and Land Transportation (LLAJ) Law, Thursday (29/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.
The prohibition of the use of phone while driving is a trending topic in community, prompting the Toyota Soluna Community (TSC) to file a judicial review of the provisions of the ban to the Constitutional Court. Represented by Adi Putra as General Chairman, Naldi Zen as Secretary General (Petitioner I), and Reza Aditya an online transport driver, the Petitioners review the enforcement of the provisions stated in Article 106 paragraph (1) and Article 283 of Law No. 22/2009 on Road Traffic and Land Transportation (LLAJ Law).
The Petitioners claimed constitutional rights with the coming into effect of Article 106 paragraph (1) and Article 283 of the LLAJ Law. Elucidation to Article 106 paragraph (1) of the LLAJ Law reads, "In full concentration shall mean any person driving the Motorized Vehicle with full attention and is not disturbed due to sickness, being tired, sleepy, using telephone or watching television or video installed in the Vehicle, or drinking alcoholic or drugs thereby affecting the ability in driving the Vehicle."
Meanwhile, Article 283 of the LLAJ Law reads, “Anyone who drives a motorized vehicle abnormally on the road and commits other activities or being affected by a circumstance which causes a disturbance to driving concentration on road as referred to in article 106 paragraph (1) shall be punished with imprisonment at the maximum period of 3 (three) months or penalty at the maximum amount of Rp750,000 (seven hundred and fifty thousand rupiah).”
The Petitioners consider the provisions conditionally contradictory to the 1945 Constitution, especially Article 1 paragraph (3) and Article 28D paragraph (1). The Petitioners reason that the phrase "using telephone" in the Elucidation to Article 106 paragraph (1) of the LLAJ Law is one of the reasons causing disturbance do driving concentration of motorists should have a clear purpose. Thus, there will be no multiple interpretations in its enforcement.
"That is, we need to clarify the purpose of the phrase, whether the telephone user is communicating so there is an interaction between the driver and the person being contacted? So it certainly can be categorized as activities that can cause disturbance to driving concentration. Or, whether the phone is only used for GPS (Global Positioning System) as a guide to the designated location?" Ade Manansyah, the attorney, explained.
Ade added that if the phone use is with the intention of using GPS, then of course it does not interfere with the concentration of the driver. Thus, he added, there is no two-way communication over the phone that can affect the concentration of the driver. With regard to the provisions of the a quo norm formulated in 2009, Ade said lawmakers certainly had not yet thought there would be professions that work by using GPS such as Petitioner II who utilizes such technology as an online transport driver.
"If the provisions of the a quo norms applies to online drivers and if the provisions of the a quo norms are also interpreted in accordance with the intents of law enforcement officers, then drivers of online transport doing their jobs will always be subject to criminal sanctions as provided in Article 283 of the LLAJ Law. So they won’t be able to fulfill their needs," Ade said.
On Article 283 of the LLAJ Law, Ade explained that the elucidation to the a quo norms mention that the intent of the phrase " commits other activities or being affected by a circumstance which causes a disturbance to driving concentration on road" is "sufficiently clear," including on using telephone. That is, the norm also does not provide a detailed explanation of phone use that could cause disturbance to driving concentration on road.
Therefore, through their petitum the Petitioners requested that the provisions of the norms be declared contradictory to the 1945 Constitution and having no binding legal force as long as they are not interpreted as "excluding for users of navigation systems based on satellite or GPS contained in the smartphone."
Philosophy of Norms
In response to the elaboration by the Petitioners, the panel of justices led by Constitutional Justice Aswanto accompanied by Constitutional Court Justices Wahiduddin Adams and Manahan M. P. Sitompul provided suggestions for revisions. Justice Wahiduddin observed the importance of the Petitioners looking closely at the articles being reviewed, especially Article 106, which is contained in Part 4 of the LLAJ Law. The section contains traffic principles for order and safety.
"It is necessary for the Petitioners to interpret the philosophy of the norms, that is, to provide traffic principles so that the norms reviewed are in the framework of norms on traffic order and safety. Meanwhile, the law that you described about phone use needs to be [declared] conditionally constitutional," Justice Wahiduddin explained.
Meanwhile, Constitutional Justice Manahan Sitompul asked the Petitioners to strengthen their legal standing not only to relate to the interests of the organization or drivers of online transport. "How will it concern the interests of consumers? Because, later this decision is erga omnes that not only applies to certain parties only. So, look again for the common good. Describe the connections more clearly," he advised.
Next, Constitutional Justice Aswanto observed the petition in terms of the need for comparison between the provisions existing in Indonesia with those in other countries that are also experiencing the development of the use of GPS technology as an inevitable part of the community’s needs of transportation
"Comparison with norms from other countries is needed, for example about phone mounted on the vehicle, in high technology such a device is specified and even attached to the car so that we do not need to hold the phone. Is that also considered as a problem in other countries?" Justice Aswanto asked.
Before ending the hearing, Justice Aswanto reminded the Petitioners to revise the petition to be submitted to the Court\'s Registrar no later than Wednesday, April 11, 2018 at 10.00 a.m. in order to be scheduled for the next hearing. (Sri Pujianti/LA/Yuniar Widiastuti)
Thursday, March 29, 2018 | 18:01 WIB 146