Danang Parikesit and Nurhasan presented by the Government as an expert to give his testimony in the examination of Law on Road, on Tuesday (8/5) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The provision of Article 50 paragraph (6) of Law No. 38/2004 on Roads (Road Law) is considered to have guaranteed legal certainty. This was stated by Nurhasan Ismail as the Government expert, following Article 50 paragraph (6) of the Road Law, in the follow-up judicial review hearing of toll road concession period held by the Constitutional Court (MK) on Tuesday (8/5).

"My conclusion [is that] Article 50 paragraph (6) of Law Number 38 of 2004 already contains a guarantee of legal certainty about the terms of agreement between the government and the private sector regarding toll roads management. In addition, it is a guarantee of justice for the parties. It is unlikely that such provision is considered contrary to Article 28D paragraph (1) of the 1945 Constitution of the State of the Republic of Indonesia," he explained in the session chaired by the Chief Justice of the Constitutional Court Anwar Usman.

Nurhasan explained that legal certainty can be measured by the clarity of toll road concession period, that is, when the investment fund has broken even and gained enough profits. According to him, the a quo law cannot mention the specific length of cooperation by the government and the private sector in toll roads management because many variables must be calculated to determine tariff rates.

"With this formulation, justice for both parties, both the community as road users and for investors, will be fulfilled because a concrete count is carried out prior to toll road concession," he said in response to case No. 15/PUU-XVI/2018.

Danang Parikesit as another expert for the Government stated that agreements with business entities, State, and Government with the private sector have risks, especially in providing protection to the community. So the laws governing road development must recognize the risks that exist and are quite adaptive in accommodating various investment risks by business entities.

"Changes in risk, factor, and level of investment risk should be able to be expanded responsively by the Government as the party between the community and business entities. For me, the phrase ‘within a certain period of time’  in Article 50 paragraph (6) of Law Number 38 of 2004 has been in accordance with the needs of society and business entities, and in line with the rules of public economy or economics," he said.

In petition No. 15/PUU-XVI/2018, Moh. Taufik Makarao and Abdul Rahman Sabar as Petitioners argued that their constitutional rights were violated by the enactment of provision on toll road concession listed in Article 50 paragraph (6) of the Road Law. The Petitioners explained that the concession under Article 1 paragraph (20) of Law No. 30/2014 on Government Administration is understood as 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)