The Petitioner and her legal counsels at the preliminary judicial review hearing of Law No. 2 of 2022 on Roads, Wednesday (8/20/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Article 48 paragraph (1), Article 50 paragraph (4), Article 50 paragraph (10) letters a and b, and Article 50 paragraph (11) of Law No. 2 of 2022 on the Second Amendment to Law No. 38 of 2004 on Roads against the 1945 Constitution on Wednesday, August 21, 2024 in one of the panel courtrooms. The petition No. 104/PUU-XXII/2024 was filed by Armyn Rustam Effendy and Rahayu Ahadiyati.

Legal counsel Nurwakhidin argued that Article 48 paragraph (1) of the Road Law is against Article 27 paragraph (2), Article 28D paragraph (1), and Article 33 paragraphs (2) and (3) of the 1945 Constitution. “Therefore, we appeal to the Excellencies Constitutional Justices who examine and adjudicate this case to declare Article 48 paragraph (1) of Law No. 2 of 2022 on the Second Amendment to Law No. 38 of 2004 on Roads along the phrase ‘Toll tariffs shall be calculated based on the ability of road users to pay, the profitability of vehicle operating costs, and the feasibility of investment’ conditionally unconstitutional and not legally binding if not interpreted as ‘Toll tariffs shall be calculated based on the ability of road users to pay, the profitability of vehicle operating costs, and the feasibility of investment by referring to the national unit price calculated in distance units,’” he stressed before Constitutional Justice Asrul Sani and the other members of the panel.

Nurwakhidin also added that Indonesia has a precedent on toll road whose concession period had expired and its tariff abolished, such as in the case of the Suramadu Bridge toll road. Therefore, there is a strong legal basis to make expired paid toll roads into freeways. He proposed that the central government use the state budget (APBN) for the maintenance of such toll roads.

Furthermore, he explained that the Petitioners felt aggrieved by the enforcement of Article 50 paragraph (11) of the Road Law, which regulates the toll tariff of a new concession after the old concession period ends and is not extended, which is lower than the toll tariff applicable at the end of the concession period. He asserted that this regulation is a follow-up to Article 50 paragraph (10) letter b of the Road Law, where after obtaining an expired toll road concession, the Central Government can choose to make the toll road a non-toll expressway or grant the new concession to a state-owned enterprise (BUMN) for toll road operation and preservation. If the Central Government chooses to assign the SOE to operate the toll road, the toll tariff set must be lower than the toll tariff applicable at the end of the concession period.

“Therefore, the enforcement of Article 50 paragraph (11) of the Road Law, which reads, ‘The initial toll tariff of the new concession as referred to in paragraph (10) letter b shall be set lower than the toll tariff applicable at the end of the concession period,’ is contrary to Article 27 paragraph (2), Article 28D paragraph (1), Article 33 paragraph (2), and Article 33 paragraph (3) of the 1945 Constitution. We request the Excellencies Panel of Justices of the Constitutional Court to declare Article 50 paragraph (11) not have binding legal force,” Nurwakhidin emphasized.

Based on that elaboration, the Petitioners requested the Court to examine and adjudicate the case to grant the entire petition.

Justices’ Advice

In response to the Petitioners, Constitutional Justice Arief Hidayat stated that while the petition’s structure was good, the elaboration of legal standing should be revised.

“The revision, such as this in the legal standing part, please explain the legal subjects, these two [petitioners]. What are their legal statuses? As citizens, what are their positions? Also explain why have their constitutional rights be harmed. The loss must be factual, be connected to the causality of the articles petitioned,” he explained.

He also asked the Petitioners to complete the subject of the petition. “The subject should be completed as in other petitions. Please revise it first. Meanwhile, the explanation on jurisdiction is good enough,” he added.

Constitutional Justice Enny Nurbaningsih advised the Petitioners to explain their qualifications. “In principle, the Petitioners are toll road users who feel aggrieved by high, inconsistent toll tariffs. Next, explain the Petitioners’ legal standing by ensuring that the qualifications you explained earlier following the conditions for the loss of constitutional rights,” she said.

Before adjourning the session, the constitutional justices announced that the Petitioners would have 14 days to revise the petition until Tuesday, September 3 at 08:30 WIB.

Author              : Utami Argawati
Editor               : Lulu Anjarsari P.
PR                   : Raisa Ayuditha Marsaulina
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.

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