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Ruling hearing of the judicial review of the Construction Services Law, Tuesday (30/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—The judicial review petition of Law No. 2/2017 on Construction Services filed by the Aceh Construction Development Agency (LPJK) and several other Petitioners was rejected by the Constitutional Court.

"The ruling heard, rejects the petition of Petitioner I, Petitioner IV, Petitioner VI, and Petitioner VII concerning Article 30 paragraph (2), paragraph (4), and paragraph (5), Article 68 paragraph (4), Article 70 paragraph ( 4), Article 71 paragraph (3) and paragraph (4), Article 77, Article 84 paragraph (2) and Explanation to Law Number 2 of 2017 concerning Construction Services," said plenary chairperson Anwar Usman in the presence of the other constitutional justices in the ruling hearing of Decision Number 70/PUU-XVI/2018 on Tuesday (30/4/2019). 

In addition, the Court declared the petition of Petitioners I, IV, VI, and VII concerning Article 84 paragraph (5) of Law Number 2 of 2017 concerning Construction Services and that of Petitioners II, III, V, VIII, IX, XLVII cannot be accepted.

In its opinion, the Court had considered the concerns of the Petitioners regarding the authority of the minister determined in the norms of Article 70 paragraph (4) and Article 71 paragraphs (3) and (4) of the Construction Services Law contrary to Article 18 paragraphs (2) and (5) of the Constitution 1945, which according to the Petitioners would eliminate the sub-affairs of construction services that have been delegated to the regions. 

After carefully reading the provisions regarding the authority of the governor and that of regent or mayor related to the implementation of construction services, according to the Court, the argument was irrelevant because the Construction Services Law does not eliminate the regional authority to regulate and manage sub-construction services as stipulated in Law Number 23 of 2014. 

"On the contrary, as already considered above, Law Number 2 of 2017 actually strengthens regional authority related to the implementation of construction services. Therefore, the arguments of the Petitioners who deemed Article 70 paragraph (4) and Article 71 paragraph (3) and paragraph (4) of Law Number 2 of 2017 contrary to Article 18 paragraph (2) and paragraph (5) of the 1945 Constitution are legally groundless," said Constitutional Justice Suhartoyo who read out the opinion of the Court. 

According to the Court, the formulation of the word "can" in Article 77 of Construction Services Law does not cause uncertainty for the construction service community in conducting construction services, which the Petitioners had argued is contrary to Article 28D paragraph (1) of the 1945 Constitution. 

The Court is of the opinion that the word "can" in Article 77 of the Construction Services Law does not contain legal uncertainty because norms can contain order, prohibition, and permission. Therefore, in the context of the a quo norm, the norm signifies permission. The problem is, then, why in the context of assistance is regulated by the norm of permission. This is because the assistance is within government authority, so that in certain cases the Government sees the need for the involvement of the construction services community. This is stipulated in Article 77 of the Construction Services Law. Based on the aforementioned legal considerations, according to the Court, the arguments of the a quo Petitioners have no legal grounds. 

In addition, the Court considered the arguments of the Petitioners who questioned the constitutionality of the norm of Article 84 paragraph (5) of the Construction Services Law for being bureaucratic and decentralized in establishing institutions, in casu, the LPJK that it is contrary to the principle of broad autonomy. 

The Court is of the opinion that the norm contained in Article 84 paragraph (5) of the Construction Services Law regulate the procedure for the establishment of central level management for construction services organizations whose emphasis is on community participation, not on the procedures for forming their institutions. This can be seen in the Elucidation to Article 84 paragraph (5) of the Construction Services Law that reads, "In the process of obtaining approval from the House of Representatives of the Republic of Indonesia, the Minister shall nominate twice the number of institution administrators to be determined by the Minister." The elucidation emphasizes that the tenancy of central level management members, is not on the formation of national level construction services institutions as argued by the Petitioners. Moreover, the Petitioners did not provide clear reasons as foundation for the question of the unconstitutionality of the norm of the article. Therefore, according to the Court, the arguments of the a quo Petitioners\' petition were vague.

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