Petitioners’ legal counsels Muhammad Zuhal Qolbu Lathof and Danies Kurniatha during Decision Pronouncement Hearing of judicial review of Road Law, Thursday (26/09) at the Pleanary Courtroom. Photo by MKRI/Ifa.
JAKARTA, MKRI - The Constitutional Court (MK) rejected the petition for judicial review of Article 48 paragraph (1), Article 50 paragraph (4), Article 50 paragraph (10) letters a and b, and Article 50 paragraph (11) of Law Number 2 of 2022 on the Second Amendment to Law Number 38 of 2004 on Roads (Road Law) against the 1945 Constitution of the Republic of Indonesia (UUD 1945), on Thursday, September 26, 2024, in the Plenary Courtroom. Case Number 104/PUU-XXII/2024 was filed by Armyn Rustam Effendy and Rahayu Ahadiyati.
On the legal consideration delivered by Justice Arsul Sani, the Court opined that the additional documents submitted by the Petitioners through legal counsels with a letter of authorization to the Court on September 5, 2024, did not necessarily correct the error in submitting the petition along with the letter of authorization. In addition, the retraction of the letter of authorization did not resolve the issue with the signature validity of the petition and letter of authorization dated July 21, 2024. Moreover, the retraction letter of the letter of authorization was only signed by one legal counsel. Meanwhile, the letter stated the Petitioners give a mandate to 73 legal counsels.
Furthermore, the letter mentioned that “there is no clear agreement on the handling of the case as referred to in the letter of authorization,” which strengthens the Court’s argument that there is an issue in the authorization of legal counsels and the writing of the letter a quo. Hence, based on the hearing facts, the basis for Case Number 104/PUU-XXII/2024 is an invalid and unjustified letter of authorization.
“Moreover, the Petitioners re-submitted a revised petition dated September 5, 2024, with a new legal counsel after the preliminary hearing with the agenda of Petition Revision. Such petition revision is something that is not known/common in procedural law so that it cannot be justified, and therefore it is not considered further,” Justice Arsul said.
According to Justice Arsul, the validity of the signature on the letter of authorization from a petitioner and the signature of the petitioner's legal counsel on the petition for judicial review of the law or other case is part of the regulation and procedural law in filing a petition in the Court, in this case the petition for judicial review of the law submitted by the Petitioners.
Arsul said, the meaning of the phrase “signed by the Applicant” in Article 11 paragraph (2) of the Constitutional Court Regulation Number 2 of 2021 and the phrase “signed by the Petitioner or legal counsel” in Article 12 paragraph (2) is signed directly by the original petitioner (principal) or legal counsel authorized and cannot be interpreted to be signed by other people, including those who represent the Petitioner or the Petitioner's legal counsel. With regard to this matter, the Court must and will always ensure the validity and orderliness of signatures on documents submitted to the Court, including the petition and letter of authorization, so that the judicial process at the Court is based on legally valid documents. The Court considers this important because if the Court grants a petition for judicial review of a law, the Court's decision not only causes changes to the enactment of a statutory norm, but the decision has a binding force on every citizen and state institution (erga omnes).
“With the consequences of the Court's decision, it is legally unacceptable if the Court's decision comes from a petition in which there are problems with the validity of the documents that constitute the case process. Based on these matters, because there is a problem with the validity of the letter of authorization of the Petitioners, which is the basis for filing the petition a quo, which was admitted by the legal counsel in the hearing, the petition of the Petitioners must be declared to have failed to meet the formal requirements for filing the petition,” he said.
Based on all the legal considerations above, although the Court has the authority to hear the Petitioners' petition, it does not meet the formal requirements for filing a petition, so the legal position and subject matter of the petition are not considered further.
During the preliminary hearing, the Petitioner conveyed that the articles being reviewed contradict Article 27 paragraph (2), Article 28D paragraph (1), Article 33 paragraph (2), and Article 33 paragraph (3) of the 1945 Constitution. The petitioners also argued that there is a precedent in Indonesia for toll roads in which concessions have expired, and then they are made free, for example, the Suramadu Bridge Toll. The Petitioner also argued that in Indonesia, there is already a precedent related to toll roads that have expired their concession period and are then made free, such as in the case of the Suramadu Bridge Toll. Therefore, there is a strong legal basis to make a toll road that is charged, has expired its concession period, and is no longer extended, transferred to a freeway that can be accessed by the public for free. Regarding the maintenance of the road, the Petitioner proposed that the central government use the allocation of funds from the State Budget (APBN).
Furthermore, the Petitioners felt disadvantaged by the enactment of Article 50 paragraph (11) of the Road Law, which regulates the toll tariff of the new concession after the concession period ends and is not extended, which is set lower than the toll tariff applicable at the end of the concession period. According to him, this regulation is a follow-up to Article 50 paragraph (10) letter b of the Road Law, where the Central Government, after obtaining a toll road concession again due to the expiration of the concession period, can choose to make the toll road a non-toll expressway or assign 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 manage the toll road, the toll tariff set must be lower than the toll tariff that applies at the end of the concession period.
Therefore, the enactment 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 is 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. The Petitioners requested the Court to declare that Article 50 paragraph (11) does not have legally binding force. Based on the entire description, the Petitioners requested the Panel of Justices of the Constitutional Court examining and adjudicating this case to accept and/or grant all of the Petitioners' requests.(*)
Author: Utami Argawati
Editor: Lulu Anjarsari P.
PR: Raisa Ayuditha Marsaulina
Translators: Rizky Kurnia Chaesario (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.
Thursday, September 26, 2024 | 14:13 WIB 39