Aceh LPJK Challenges Construction Service Law
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Andi Muhammad Asrun, legal counsel of the Petitioners, reading out the main points of the petition in the preliminary hearing of the judicial review of the Law on Construction Services, Thursday (6/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The preliminary hearing of the judicial review of Law No. 2/2017 on Construction Services was held by the Constitutional Court (MK) on Thursday afternoon (6/9). The petition registered as case No. 70/PUU-XVI/2018 was filed by the Aceh Construction Development Agency (LPJK) and Azhari A. Gani as its administrator.

The Petitioners review seven articles in the Construction Services Law, including Article 30 paragraphs (2), (4), and (5) that reads, “(2) Corporate Certificate as referred to in paragraph (1) is issued through a certification process and registration by the Minister. (4) To obtain a corporate certificate as referred to in paragraph (1), a construction service company submits an application to the Minister through a corporate certification body established by an accredited corporate association. (5) Accreditation as referred to in paragraph (4) is given by the Minister to corporate associations that fulfill the following requirements: a. number and distribution of members; b. empowerment of members; c. democratic election of administrators; d. facilities and infrastructure at the central and regional levels; and e. implementation of obligations in accordance with the provisions of the legislation.

The Petitioners, who are members of the Aceh Provincial Construction Services Development Board (LPJKP), are representatives of the construction service community in the region who have worked for around 17 years in developing construction services supported by complete infrastructure and human resources. 

"LPJKP is located in 34 provinces. It was formed in 2001 based on the Government Regulation No. 28 of 2000 on the Role of Construction Service Communities, that implement Law No. 18 of 1999 on Construction Services," legal counsel Andi Muhammad Asrun said. 

Asrun explained, LPJKP was formed to channel the construction service community at the provincial level. The LPJKP Board of Directors was confirmed by the Governor through the Governor\'s Decree as the implementation of Government Regulation (PP) No. 28/2000 juncto PP No. 30/2000. The names of LPJKP board members are proposed by the Minister of Public Works and Public Housing based on a fit and proper test implemented by the Selection Committee of the Ministry of Public Works and Public Housing. Thus, LPJKP is a public legal entity. 

"With the provisions of Article 30 paragraph (2), paragraph (4), and paragraph (5) of Law Number 2 of 2017, the Minister has taken the constitutional right of Petitioners I to XLVII who had been carrying out professional, transparent, and accountable construction service business certification. Thus, there is centralization and bureaucratization of the implementation of registration and certification of construction service companies," Asrun said. 

Legal Standing 

On the arguments of the petition, Constitutional Justice Enny Nurbaningsih highlighted the Petitioners\' legal standing. She questioned the Petitioners\' legal standing, as an institution or individual citizens. 

"One, [the petitioners] seem to be representing the institution. However, down the line, it seems as if they are representing individuals, but on behalf of the institution. Whereas this LPJKP was actually established based on Law Number 18 of 1999 and the derivative implementing regulations. There needs to be confirmation whether the terms of the establishment is the same, because the basis is the same," she suggested. 

In addition, Justice Enny explained that the Constitutional Courtdoes not have the capacity to review the application of norms, but to review the norm or the constitutionality of the norm. "After listening to the explanation (of the Petitioners), is this not related to the subject matter further? [It is] as if we were talking about the implementation of norms. Moreover, what is being reviewed is Law Number 2 of 2017," she said. 

Meanwhile, Deputy Chief Justice of the Constitutional Court Aswanto as Chairperson of the Panel commented on the violation of the Petitioners\' constitutional rights by the enactment of the a quo law. He requested that the Petitioners further elaborate on the constitutional impairment.

"Is the existence of LPJK threatened by Law Number 2 of 2017, compared to the guarantee in Law Number 18 of 1999. Is the existence that was deemed to be undermined immediately considered a constitutional loss? Although there are parts that you have explained, I think this still needs to be explored, what is the comparison between the articles that you stated earlier have lost their existence and the article in the 1945 Constitution that is used as reference. I think it still needs more elaboration, so that the Court can be more confident that this is not a matter of implementation but [of norm constitutionality]," he said. (Nano Tresna Arfana/LA/Yuniar Widiastuti)


Thursday, September 06, 2018 | 18:14 WIB 169