Director-General of Electricity Jisman P. Hutajulu representing the Government to give a statement at a judicial review hearing of the Job Creation Law, Tuesday (11/14/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — 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 and the appendix to the Law evidently consider the state’s right to control. The four functions of state control are management (bestuursdaad), regulation (regelendaad), management (beheersdaad), and supervision (toezichthoudensdaad) of business activities to supply electricity for the public interest, so the Job Creation Law is in accordance with the mandate of the Constitutional Court Decision No. 111/PUU-XIII/2015 and do not cause legal uncertainty.
The statement was made by Director-General of Electricity Jisman P. Hutajulu at another hearing for case No. 39/PUU-XXI/2023 held on Tuesday, November 14, 2023. The petition was filed by 10 workers’ union and 109 individuals, 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, and the workers’ union of PT Pembangkitan Jawa Bali.
“The Petitioners argue that Article 42 point 7 of the Job Creation Law is against Article 33 paragraph (2) of the 1945 Constitution of the Republic of Indonesia because it amends Article 11 paragraph (1) of the Electricity Law, eliminating the state’s role in interfering with people’s lives because the coordination of electricity supply and distribution by the Central Government through State-Owned Enterprises (BUMN) specifically operating in the electricity sector would be gone and it would depend stakeholders mentioned in the Job Creation Law, thus contradicting Constitutional Court Decision No. 111/PUUXIII/2015 and Article 33 paragraph (2) of the 1945 Constitution of the Republic of Indonesia,” he explained.
He said that the Government rejected the Petitioners’ argument that network lease would cause blackouts and called it inaccurate. He claimed that the blackouts that occurred on Nias Island in 2016 and in West Java, DKI Jakarta, and Banten were not caused by the practice of leasing electricity networks, but due to disturbances in open spaces of transmission network. The Government had anticipated so that it would not be repeated, by carrying out several regulatory adjustments, including those related to the addition of restrictions on the utilization of space under transmission networks, regulation of magnetic fields and electric fields, and regulation of transmission network maintenance through regulations governing the regulation of restrictions on the utilization of open spaces, i.e. the Regulation of the Minister of Energy and Mineral Resources No. 13 of 2021 on open space and minimum open space of electric power transmission networks and compensation for land, buildings, and plants located under the open space of electric power transmission networks.
Next, the Government affirmed that the holder of business license for transmission and/or distribution of electricity shall allow the opportunity for joint utilization of transmission and/or distribution networks for public interest through network lease, which shall be implemented in accordance with the capacity of transmission and/or distribution networks. Then, based on Article 42 point 4 of the appendix to the Job Creation Law (which amends Article 5 paragraph (1) letter j of the Electricity Law) and Article 42 point 23 of the appendix to the Job Creation Law (which amends Article 33 of the Electricity Law jo. Article 4 paragraph (3) and Article 5 paragraph (3) of Government Regulation No. 14 of 2012), in determining the network rental price the Government must evaluate in advance the capacity of transmission and/or distribution networks. Therefore, if lease is not feasible, the Government will not issue approval for leasing the transmission and/or distribution network. “Based on the above explanation, the Petitioners’ concerns about the vulnerability of the interconnection system are untrue and unjustified,” said Hutajulu.
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The Petitioners stated at the preliminary hearing 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.
The Petitioners 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. They 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).
In addition, the Petitioners explained that the unbundling system means that electricity supply business be separated into generation, transmission, distribution, and sales business. This clause practically commodifies electricity. They 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.
Author : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Tahlitha Laela/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.
Tuesday, November 14, 2023 | 15:43 WIB 379