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Constitutional Justice Saldi Isra offering advice to the Petitioner’s attorney at the judicial review hearing of the Construction Services Law, Monday (16/11/2020) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary judicial review hearing of Law No. 2 of 2017 on Construction Services on Monday, November 16, 2020. The hearing was presided over by Constitutional Justices Enny Nurbaningsih (chair), Saldi Isra, and Daniel Yusmic P. Foekh.

The case No. 93/PUU-XVIII/2020 was filed by Andi Amir Husry (of the central executive board of the Indonesian Electricity Contractors Association AKLINDO). He challenged Article 105 of the Construction Services Law, which reads, “Implementing Regulations of this Law must be stipulated no later than 2 (two) years since the promulgation of this Law.” The Petitioner believes this norm violates Article 28C paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution.

One of the Petitioner’s attorneys Arco Misen Ujung said, Article 105 of the Construction Services Law has created legal issues impacting the accreditation of a number of construction services business entities and professional associations. Arco said the Construction Services Law was manifested through the Government Regulation No. 22 of 2020 on the Implementation of Law No. 2 of 2017 on Construction Services and the Regulation of the Minister of Public Works and Housing No. 10 of 2020 on the Accreditation of Construction Services Business Entities, Construction Services Professional Associations, and Accredited Construction Services Supply Chain-Related Associations.

However, Arco added, the issuance of all of these norms exceeded the deadline stipulated in Article 105 of the Construction Services Law. As a result, Article 105 of the Construction Services Law potentially creates unfair business competition for construction service actors due to monopolistic practices. In addition, due to this norm, construction service actors are also restricted from fighting for their rights collectively along with associations.

Based on Article 103 of the Construction Services Law, institutions established under the Construction Services Law continue to carry out certification and registration of business entities and construction workers until the formation of a special agency. So, the Construction Services Development Board (LPJK) appealed to associations to immediately prepare a certification system that can be registered with the Construction Services Development Board’s Information System (SIKI LPJK). However, this process has been neglected in establishing government regulations.

"So, the legal uncertainty in the a quo article has resulted in the unclarity of the transitional role played by the National LPJK in the context of registration, accreditation, and certification," Arco said.

Justices’ Advice

In response to the petition, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to observe whether what is petitioned in the a quo case is the norm or the implementation of the norm, as it relates to the Court’s authority, where it only rules on the constitutionality of norms. He also advised the Petitioner to elaborate on his legal standing so that his constitutional impairment would be obvious.

Meanwhile, Constitutional Justice Saldi Isra said that the article of association that details who can represent the association in and out of the court should be included and that the Petitioner needed to make an argument that the article in the a quo  law is against article(s) in the 1945 Constitution so that the justices understand the Petitioner’s constitutional impairment.

Before concluding the hearing, Justice Enny Nurbaningsih asked the Petitioner to submit the petition revision by Monday, November 30, 2020 at 13:30 WIB to the Registrar’s Office so the following hearing could be scheduled.

Writer: Sri Pujianti
Editor: Nur R.
PR: Muhammad Halim
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/17/2020 16:10 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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