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Dian Puji N. Simatupang as the Government\'s expert after taking oath to give statement in the judicial review of the Law on Traffic and Land Transportation on Wednesday (9/5) at the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The prohibition of telephone use when driving as stated in Article 106 paragraph (1) and Article 283 of the LLAJ Law is not aimed at the device, but at the loss of concentration of motorists. This could trigger a road marks violation or cause an accident. This was conveyed by Dian Puji N. Simatupang as Government expert in the follow-up hearing of the judicial review of Law No. 22/2009 on Road Traffic and Land Transportation (LLAJ Law). The fourth trial of case No. 23/PUU-XVI/2018 was held on Wednesday (9/5) in the Plenary Courtroom of the Constitutional Court. 

Furthermore, Dian described the provisions of the a quo articles using the relevance theory to determine the consequences first, then the causes. This indicates that the use of the phone and its features including the use of GPS is not a requirement of the violation intended in the law, but rather it is the attention disruption resulting in loss of concentration in driving on the road. 

Furthermore, Dian explained that the main emphasis of the a quo norms is on the phrase “causes a disturbance to driving concentration” resulting in a violation. Thus, he continued, the norms regulate all other activities or circumstances that cause disturbance of concentration in using the vehicle resulting in a violation, which is a condition of violation that has a criminal element. On the other hand, Dian explained, due to different treatments by law enforcers in practice, law enforcers or the authorities can investigate the disturbance to concentration that occurs and not the causes of such disturbance. 

"Therefore, the use of the phone and its features, such as GPS, as long as it does not affect the ability to drive vehicles on the road and does not constitute a cause of violation or damage cannot be subjected to Article 283 of the LLAJ Law because it does not qualify the ‘abnormally’ requirement of the a quo law," explained Dian, an expert on State Administration Law of the University of Indonesia. 

Using an Active Phone 

At the same hearing, the House represented by Commission III Member Arteria Dahlan conveyed that the phrase \'using telephone\' in the Elucidation to Article 106 paragraph (1) and the phrase ‘commits other activities or being affected by a circumstance which causes a disturbance to driving concentration’ in the provision of Article 283 of the LLAJ Law is when a user actively uses the phone while he/she is driving a vehicle. "Because the activity is a two-way communication that can certainly cause disruption of motorist attention resulting in loss of concentration," Arteria explained. 

However, Arteria added that if motorists use the phone only to activate the GPS application in guiding them to a predetermined location and as long as it does not interfere with concentration in driving, the use of the phone is allowed. That is because, he added, there is no two-way communication interaction that can interfere with the concentration of the driver of the vehicle. 

In relation to the Petitioners’ argument that when the a quo norm is established, it has not occurred to the legislators that today the GPS will be integrated with smart phones which was argued by the Petitioners to have caused the a quo norm be unconstitutional. On this, Arteria argued that the Petitioners need to understand that when a legal vacuum occurs when technology development has not been regulated in the law, it does not mean that the a quo norm is unconstitutional. "If such technological developments are deemed needing to be regulated, the Petitioners should submit a legislative review to the legislators," Arteria explained. 

The Petitioners felt that their constitutional rights had been impaired by the enactment of Article 106 paragraph (1) and Article 283 of the LLAJ Law. They considered the provisions conditionally contradictory to the 1945 Constitution, especially Article 1 paragraph (3) and Article 28D paragraph (1). The Petitioners reasoned that the phrase "using telephone" in the Elucidation to Article 106 paragraph (1) of the LLAJ Law was one of the reasons causing disturbance do driving concentration of motorists should have a clear purpose. Thus, there would be no multiple interpretations in its enforcement.

Before closing the hearing, Justice Anwar reminded the parties that the hearing would resume on Wednesday, June 6, 2018 at 10:00 a.m. to hear Expert statement for the Relevant Party(Sri Pujianti/LA/Yuniar Widiastuti)

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