The House, represented by House Commission III Supriansa, testifying at a judicial review hearing of the Job Creation Law, Tuesday (11/28/2023). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a judicial review hearing of article 38 and 42 of Law No.11 of 2020 on Job Creation Law (UU Cipta Kerja) against the 1945 Constitution, on Tuesday (28/11/2023). The petition No. 39/PUU-XX/2022 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 House of Representatives (DPR), represented by Commission III member Supriansa, conveyed that the interpretation of state-owned enterprises (SOEs) to only PT PLN (Persero) would actually hinder the advancement of the electricity business and contradict the principles of economic democracy that is currently needed. Meanwhile, currently, he continued, the Government is focusing on efforts to improve the investment ecosystem and business activities through the involvement of many stakeholders. 

Control by the state does not imply a reduction in opportunities for SOEs, regionally-owned enterprises (BUMDs), private enterprises, cooperatives, and non-governmental groups working to improve economic conditions through the provision of alternative energy. So, the holder of the electricity supply business license for public use (IUPTLU) can undoubtedly be any business entity other than PT PLN Persero as long as it remains under the jurisdiction of the state (Government),” he said before Chief Justice Suhartoyo and the other eight constitutional justices.

The House also needs to explain that the legislatures still prioritize SOEs and local potential, said Supriansa. When referring to Constitutional Court Decisions No. 002/PUU-l/2003 dated December 21, 2004 and No. 36/PUU-X/2012, the phrase “controlled by the state” is also part of the concept of economic democracy as stipulated in Article 33 of the 1945 Constitution.

He argued that those decisions are in line with Bagir Manan’s opinion in Jurnal Hukum dan Pembangunan (law and development journal) of the Law Faculty of Universitas Indonesia No. 3 dated September 21, 2019, which explains that Article 33 paragraph (3) of the 1945 Constitution is the constitutional basis of the state’s right to control (HMN) over the earth, water, and natural resources contained therein. The “state’s right to control” based on the Constitution is “used for the greatest prosperity of the people.”

Supriansa added that the Government guarantees that the sale of electricity surplus is solely in the public interest, i.e. for the community’s welfare and prosperity. The public interest is still protected, particularly in the sale of electricity surplus, because it must be done with clearance from the Central or Regional Government in accordance with the Central Government’s norms, rules, procedures, and criteria.

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The Petitioners argue 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 has been interpreted constitutionally through Constitutional Court Decision No. 111/PUU-XIII/2015 while the Electricity Law No. 20 of 2002 has 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 believe 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 argue 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, they believe 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        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Nyi Mas Laras Nur Inten Kemalasari /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.

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