The Petitioners’ legal counsels at the pronouncement of Decision No. 39/PUU-XXI/2023, Friday (11/29/2024). Photo by MKRI/Bayu.
JAKARTA (MKRI) — The Constitutional Court (MK) has a clear, firm stance on the unbundling system because it is unconstitutional to cause the loss of the state’s control rights. This stance is shown in the legal considerations of Decision No. 39/PUU-XXI/2023, delivered by Deputy Chief Justice Saldi Isra at a ruling hearing on Friday, November 29, 2024 in the plenary courtroom. The petition was filed by 10 workers’ unions 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 deputy chief justice added that the Court affirmed its stance relating to the Petitioners’ argument regarding the constitutionality of Article 10 paragraph (2) of Law No. 30 of 2009 and to eliminate any doubt and unify interpretation and understanding in order to ensure legal certainty. It ruled that said article is unconstitutional if interpreted as justification of the practice of unbundling in providing electricity for the public.
“That is, if the norm of Article 10 paragraph (2) of Law No. 30 of 2009 is interpreted to justify the practice of unbundling in the business of supplying electricity for the public in such a way as to eliminate state control in accordance with the principle of ‘controlled by the state,’ it must be declared unconstitutional,” Justice Saldi explained at the hearing chaired by Chief Justice Suhartoyo.
He revealed that the Petitioners’ argument that Article 42 point 6 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 had blatantly revived the word “may” in Article 10 paragraph (2) of Law No. 30 of 2009, which is the spirit of the unbundling system that has been declared unconstitutional by the Court, was justifiable.
“Therefore, the word ‘may’ in the a quo norm must be declared unconstitutional and not legally binding. Thus, the a quo Petitioners’ arguments are well-founded according to law,” said Justice Saldi.
House’s Involvement
The Petitioners wished for Article 7 paragraph (1) in Article 42 point 5 of Law No. 6 of 2023 be declared unconstitutional and not legally binding if not interpreted as “The National Electricity General Plan (RUKN) shall be prepared based on national energy policy and determined by the Central Government through the approval of the DPR RI.” Justice Saldi added that the Constitutional Court stated that as a manifestation of people’s sovereignty in the management of electricity as one of the branches of production that controls the lives of many people that must be controlled by the state, the need for the House’s involvement is increasingly inevitable because Law No. 6 of 2023 seems to only rely on the House’s involvement in national energy policy. In this case, Article 11 paragraph (2) of Law No. 30 of 2007 on Energy essentially states that the national energy policy is determined by the Government with the House’s approval. As stipulated in Article 11 paragraph (1) of Law No. 30 of 2007, national energy policy includes, among others, the availability of energy for national needs; energy development priorities; utilization of national energy resources; and national energy buffer reserves.
“Within the limits of reasonable reasoning, the regulation in Article 11 paragraph (1) of Law No. 30 of 2007 can be said to be very general and relies on the House’s involvement in matters that are more general in the RUKN, potentially ignoring the position of electricity as a branch of production that controls the lives of many people. This means that the House’s approval in the general national energy policy cannot be used as a basis to abolish the obligation to involve the House in the preparation of the RUKN,” Justice Saldi explained.
The Court holds that although the House’s role or involvement in the RUKN is required, it believes that the House’s DPR involvement cannot be in the form of “approval.” In this case, because the determination of national energy policy, which also relates to electricity, has been carried out through the House’s approval, in the RUKN the House is only required to give “consideration.”
“The Court’s opinion is based on the view that the process to obtain ‘consideration’ is simpler than that to obtain ‘approval.’ The consideration is needed to ensure the conformity of RUKN with national energy policy because the national energy policy—which also includes electricity—requires ‘approval of the House,’ the preparation of the RUKN, which is the essence of the national electricity policy as referred to in Article 1 point 9 in Article 42 point 1 of Law No. 6 of 2023, which is no less important because it is one of the important branches of production that controls the lives of many people, must still require ‘consideration of the House of Representatives,’” Justice Saldi said when delivering the Court’s legal considerations.
Thus, he said, based on the legal considerations, the Petitioners’ argument that Article 7 paragraph (1) in Article 42 point 5 of Law No. 6 of 2023 has eliminated the House’s authority of the DPR as the people’s representation in the management of electricity as one of the important branches of production that controls the lives of many people controlled by the state is an acceptable and justified argument.
“However, because the Court’s interpretation is not as requested in the petition, the a quo Petitioners’ arguments re reasonable according to the law in part,” he said.
In its verdict, the Court stated that a number of articles in the Job Creation Law, especially those related to electricity, are unconstitutional and not legally binding.
“[The Court] grants the Petitioners’ petition in part; declares Article 7 paragraph (1) in Article 42 point 5 of the Appendix to Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law is unconstitutional and not legally binding as long as it is not interpreted, ‘The National Electricity General Plan is prepared based on national energy policy and stipulated by the Central Government after receiving consideration from the DPR;’ declares the word ‘may’ in Article 10 paragraph (2) in Article 42 point 6 of the Appendix to Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law unconstitutional and not legally binding,” said Chief Justice Suhartoyo reading out the ruling.
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The Petitioners argued that the Job Creation Law regulated 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 believed the substance of Article 10 paragraph (2) of the Job Creation Law was 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 argued 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). 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.
In addition, they believed that the unbundling system would mean 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 requested that the two articles be declared unconstitutional.
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.
Friday, November 29, 2024 | 14:29 WIB 75