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Jhoni Boetja, principal petitioner of the Workers Union of the state-owned electricity firm PT PLN (Persero), after ruling hearing of judicial review of Law Number 19 of 2003 on State-Owned Enterprises on Thursday (31/5) in the Courtroom of the Constitutional Court. Photo by Humas/Ifa.

The Constitutional Court rejected the entire petition for judicial review of Law No. 19/2003 on State-Owned Enterprises (BUMN) filed by the Chairperson of the Worker’s Union of the State Electricity Firm PT PLN (Persero), H. Yan Herimen, and other petitioners. 

"The verdict heard, rejects the Petitioners\' petition for the whole," said Plenary Chief Anwar Usman in the presence of the other constitutional court justices in the ruling hearing on Thursday (31/5) afternoon. 

The Petitioners of case No. 12/PUU-XVI/2018 argued that the Government Regulation (PP) No. 72/2016 on the Amendment to Government Regulation No. 44/2006 on the Procedures for the Investment and Administration of State Capital in State-Owned Enterprises and Limited-Liability Companies is one of the tools to privatize State-Owned Enterprises (BUMN) without exception. According to the Petitioners, SOEs whose production concerns the public will be privatized as stipulated in Government Regulation No. 39/2014 on the List of Business Fields Closed to Investment and Business Fields Open, with Conditions, to Investment. Private power plants, power transmission, and power distribution can have up to 95-100% of the shares, which will eliminate the state function to control the production branches that are important to the state concerning the lives of the people. The Petitioners considered that Article 14 paragraph (3) letters (a), (b), (d), (g), and (h) of the BUMN Law, the government represented by the minister as the shareholder may amend the Company\'s Articles of Association, including elements of mergers, consolidation, and transfer of assets, changes in the amount of capital, changes to the articles of association, acquisition and separation, without supervision by the House. 

In the legal considerations read by Constitutional Justice Suhartoyo, the Court is of the opinion that the actions or corporate measures undertaken by SOEs Persero have no relevance to the involvement of the House of Representatives (DPR). That is because the House is not part of the General Meeting of Shareholders (GMS). In connection with SOEs, he added, even if it was said implicitly that there would be House oversight, it must be placed within the context of the political supervision function of the House of Representatives on the implementation of the government conducted by the President. 

Justice Suhartoyo added that the Court considered that in the presidential system, not all government actions are subject to House oversight. For example, he added, on matters based on the Constitution as well as the constitutional practice, which are part of or within the scope of the government\'s discretional authority or matters that are entirely the prerogative of the President. Based on all the above considerations, the Court is of the opinion that the Petitioners\' argument is groundless according to law. 

Subsequently, the Court responded to the Petitioners\' argument concerning the investment made by the government through House approval. According to the Court, establishment of a subsidiary is a corporate action related to company management. Therefore, Justice Suhartoyo added, as stipulated in Article 31 of the BUMN Law, its supervision is conducted by a commissioner, not the Parliament. Thus, by suggesting House oversight in the corporate actions of SOEs, the Petitioners indirectly put the House as commissioner of SOEs. "Based on the foregoing considerations, the Petitioners’ a quo argument is unreasonable according to law," he stated, reading the Decision No. 12/PUU-XVI/2018. 

Not a Matter of Norm Constitutionality

Meanwhile, in relation to termination of employment (PHK), the Court insists that layoff does not necessarily signify constitutionality issue. Constitutional Justice I Dewa Gede Palguna stated that layoff becomes a matter of constitutionality, especially in relation to violations of the citizens\' constitutional rights, if the norms of the law governing it are contradictory to the 1945 Constitution. 

"As long as the norms of the law regulating layoff are not contradictory to the 1945 Constitution, concrete cases in the form of termination of employment are not constitutional issues within the Court authority to examine. If in practice there is a violation of layoff terms, it is the jurisdiction of the Industrial Relations Court as part of the general courts of justice under the Supreme Court to examine it. Based on the above considerations, the argument of the a quo Petitioners is unreasonable under the law," Constitutional Justice I Dewa Gede Palguna explained while reading the legal considerations of the Court. 

Therefore, Justice Palguna added, based on all the above considerations, it is clear to the Court that the argument of the Petitioners that Article 14 paragraphs (2) and (3) of the BUMN Law is contradictory to the 1945 Constitution is unreasonable according to law. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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