Deputy Chief Justice Saldi Isra opening the panel preliminary hearing of the material judicial review of Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law, Monday (5/8/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The provisions on electricity supply in Articles 38 and 42 of Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law was challenged materially to the Constitutional Court (MK). The preliminary hearing for case No. 39/PUU-XXI/2023 took place on Monday, May 8, 2023 in the plenary courtroom. It was filed by ten workers’ unions, including the workers’ union of the state-owned electricity company PT Perusahaan Listrik Negara (Persero) or SP PLN, the workers’ union of Indonesia Power or PP IP, the workers’ union of PT Pembangkitan Jawa Bali, and 109 individuals.
On behalf of the Petitioners, legal counsel Mohammad Fandrian Hadistianto stated that the Job Creation Law regulates the supply of electricity for public interest to be unbundling. Prior to the a quo Law, Article 10 paragraph (2) and Article 11 paragraph (1) of Law No. 30 of 2009 on Electricity had been interpreted constitutionally through Constitutional Court Decision No. 111/PUU-XIII/2015 while the Electricity Law No. 20 of 2002 had been revoked by the Court on December 21, 2004 with Decisions 001-021-022/PUU-I/2003. Those Electricity Laws were ruled as such since the unbundling system in the supply of electricity was deemed unconstitutional. However, it is reenacted in the latest Job Creation Law.
“Then, Article 10 paragraph (2) of the a quo Law regulates that the aforementioned four types of business can be integrated. This means that the a quo Law has allowed the possibility of electricity supply business for public interest to be carried out either with integration or not. It is obvious that the a quo Law is intended to allow the electricity supply business to not be integrated or unbundled. Instead of following up on the Court’s decision and providing legal certainty on the constitutional interpretation of Article 10 paragraph (1), the a quo Law re-issued the same norms, which will lead to legal uncertainty [against] the mandate of Article 28D of the 1945 Constitution,” Fandrian said.
He asserted that the substance of Article 10 paragraph (2) of the Job Creation Law is the same as that of Article 10 paragraph (2) of the Electricity Law, which the Court ruled conditionally unconstitutional through Decision No. 111/PUU-XIII/2015. He also explained that electricity is a crucial branch of production for the state that affect the livelihood of many was emphasized by the legislatures in the consideration letter a and the elucidation to Article 3 paragraph (1).
The Petitioners also explained that the unbundling system means that electricity supply business be separated into generation, transmission, distribution, and sales business. This clause practically commodifies electricity. The Petitioners emphasized that electricity business activities that are carried out competitively by treating business actors equally and by separate or unbundled business entities are unconstitutional following the legal considerations of the Constitutional Court Decisions 001-021-022/PUU-I/2003. Therefore, in their petitum, they request that the two articles be declared unconstitutional.
Justices’ Advice
In response, Constitutional Justice Arief Hidayat advised the Petitioners to complete the petition. “Do not merely suggest an issue of constitutionality. The Petitioners must simulate the constitutional justices so that the petition be perfect,” he said.
Meanwhile, Constitutional Justice M. Guntur Hamzah advised the Petitioners to revise the backgrounds to the petition, since they must relate to the petitum. Not to mention, the issue is a hot one.
Next, Deputy Chief Justice Saldi Isra said that the Petitioners challenge Article 38 of the Job Creation Law, but did not mention in the arguments and the petitum. “Reconsider whether [to challenge] only Article 42 or Article 38 too,” he said.
He asserted that the Petitioners had not clearly elaborated their constitutional impairment, but rather explained their statuses.
“The constitutional impairment has not been explained well. If the constitutional justices do not see the connection between constitutional impairment in the legal standing and the potential loss, this [petition] would [be dismissed],” he added.
The constitutional justices gave the Petitioners 14 workdays to revise the petition, which should be submitted to the Registrar’s Office by Monday, May 22, 2023 at 13:30 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Monday, May 08, 2023 | 16:02 WIB 351