Government reply delivered by the Secretary General of the Ministry of Public Housing and Public Works (PUPR) Anita Firmanti Eko Susetyowati in the judicial review hearing of the Road Law on Thursday (5/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The determination of the deadline for toll road concession granted by the government to a business entity as stipulated in the provision of Article 51 paragraph (1) of Law No. 38/2004 on Roads was conducted through a transparent and open auction. This was affirmed by the Secretary General of the Ministry of Public Housing and Public Works (PUPR) Anita Firmanti Eko Susetyowati in a follow-up judicial review hearing of the Road Law held by the Constitutional Court (MK) on Thursday (5/4).

In her statement on behalf of the Government, Anita said the Petitioners\' argument stating that Article 50 paragraph (6) of the Road Law related to the deadline of toll road concession having no precise and clear time provision is not true and unfounded. This is because the time limitation on toll road concession period has been clearly regulated in the Road Law and Toll Road Regulation No. 30/2017 on Toll Roads that mandates that the provision be contained in PPJT. Anita also denied the Petitioners’ argument that the imposition of toll road cost without any deadline clarity have resulted in cost uncertainty.

"The Petitioners\' argument is clearly incorrect and unfounded. Since the determination of the toll road concession period granted by the government to a business entity as stipulated in the provision of Article 51 paragraph (1) of the Road Law is conducted through a transparent and open auction. Therefore, a quo article already contains the values ​​of legal certainty that is fair and not contradictory to Article 28D paragraph (1) of the 1945 Constitution," she stressed in the session presided over by Chief Justice Anwar Usman.

On the Petitioners’ argument that Article 50 paragraph (6) of the Road Law has the potential for misuse and embezzlement of state assets, Anita said the argument was unfounded. She explained that the state did not suffer losses because in toll road concession, the ownership of toll road assets was not handed over to the Toll Road Enterprise (BUJT). The State, she added, only surrendered its concession rights in the form of a concession period.

"Thus, it is clear that in toll road concession, asset ownership of toll roads is fully in the state. After the concession period is completed, the toll road concession rights will be returned to the state," Anita said in response to petition No. 15/PUU-XVI/2018.

In their petition, Moh. Taufik Makarao and Abdul Rahman Sabar as Petitioners argued that their constitutional rights were violated due to the enactment of the provision on toll road concessions stipulated by Article 50 paragraph (6) of the Road Law. The Petitioners explained that concession, according to Article 1 paragraph (20) of Law No. 30/2014 on Government Administration, means transfer of power from government to parties other than the government to manage public facilities. The Petitioners consider the phrase "within a certain period of time" in Article 50 paragraph (6) of the Road Law not having a precise and clear time frame, which could result in harm to the state and society. 

The Petitioners consider their evaluation of the article is supported by Article 39 paragraph (6) of the Administrative Government Law that reads "Permit, Dispensation, or Concession shall not cause any loss to the State." Therefore, the Petitioners request the Constitutional Court declare the article contrary to the 1945 Constitution if the phrase "within a certain period of time" is not interpreted "within a period of maximum 20 years" to meet investment and profit funds for toll road managers. (ARS/LA/Yuniar Widiastuti)