Controversy, Legality and Constitutionality of Online Public
Transportation in Indonesia
Hani Adhani
PhD Student, Faculty of Law, International Islamic University Malaysia (IIUM)
Substitute Registrar, The Constitutional Court of Republic Indonesia (Mahkamah Konstitusi RI)
Keywords: Online Transportation, Grab Car, Go-Jek, Constitutional Court, Indonesia Constitution.
Abstract: In this research, the researcher will tell about the phenomenon of online transportation that is currently
sweeping the world which in turn has led to the legal need to regulate this online transportation. Indonesia as
a country with a population of nearly 260 million is a potential market to use the online transportation
application. However, the Indonesian Government has not made maximum efforts to regulate this online
transportation so that this has resulted in many online transport drivers filing claims to the Constitutional
Court to submit applications for review traffic laws and road transport. In this study, researchers sought to
find solutions related to the problem of online transportation in Indonesia so that the Indonesian people,
especially drivers of online transportation or consumers of online transportation, are protected by law and
constitution so that online transportation can be accepted as viable and safe transportation for Indonesian
people.
1 INTRODUCTION
The sad story of clashes between drivers of online
transportation and conventional transportation that
occurred in several cities in Indonesia is very
worrying for all of us as a community. The
phenomenon of online transportation raises the pros
and cons of the community. For people who use
public transport services, the existence of online
transportation applications is very profitable. With a
price rate that is below conventional public transport
and a high level of trust, ultimately online
transportation dominates and causes many non-online
regular public transport to go bankrupt.
(thejakartapost.com, 2016)
Also, the existence of online transportation
policies developed by online transportation network
providers such as those provided by Uber, GrabCar,
and Go-Jek that are similar to those traditionally
offered by taxi companies has led to competition
between a regular taxi and online transportation
companies. (Wahyuningtias, 2016)
We still remember how the demonstrations
carried out by taxi drivers and non-online public
transport in Jakarta were carried out in March 2016
which eventually ended in clashes and caused
significant casualties and losses.(Ichwan Wijayanto,
Imam Sasami, Rino Nugroho, 2018) Of course, this
raises anxiety for people using online public transport
services. After the tragedy, there was a feeling of
worry and fear when using online transportation
services, both online cars, and online motorcycle
taxis. (thejakartapost.com, 2016)
Now online transportation provider companies are
starting to expand to other cities in Indonesia. It is
clear on the one hand that there will be a lot of
employment opportunities for the community, but on
the other hand, it will make conventional
transportation such as bus city transportation, taxis,
and conventional motorcycle taxis not selling well.
Not to mention the chance of clashes that will occur
as happened in the City of Bogor and the City of
Tangerang between online motorcycle taxi drivers
and bus city transportation drivers. The state must
anticipate this case, the Government, both the Central
Government and the Regional Government.
(thejakartapost.com, 2018).
2 RESEARCH METHODOLOGY
This study uses the qualitative method to accumulate
and analyze data. Primary and secondary legal
Adhani, H.
Controversy, Legality and Constitutionality of Online Public Transportation in Indonesia.
DOI: 10.5220/0008432204310437
In Proceedings of the 2nd International Conference on Inclusive Business in the Changing World (ICIB 2019), pages 431-437
ISBN: 978-989-758-408-4
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
431

materials are referred to assist the research. For
primary sources, the study analyses relevant some
Indonesia constitutions, laws, Indonesia
constitutional court decision relating to the regulation
of online public transportation in Indonesia. It also
refers to secondary resources where analysis is made
from academic journals, newspaper articles as well as
legal textbooks.
Moreover, to enrich to the current development
of the notion the study refers to web pages and other
online resources where relevant data have been
analyzed to find out problem encountered and
challenges faced in implementing the rules as well as
to propose any possible solution and improvement to
solve the online public transportation issue in
Indonesia.
3 DISCUSSION AND RESULTS
3.1 State Role in General Transport
Management
This matter concerning public transportation has been
regulated in Law Number 22 of 2009 concerning
Road Traffic and Transportation which was
promulgated on June 22, 2009. If we read the Traffic
Law carefully, it is obvious that the state must play an
active role in providing decent public transportation
for the community. Strive to realize security, safety,
order, and smooth traffic and road transport to support
economic development and regional development
and demand the implementation of traffic and road
transportation by the development of science and
technology, autonomy regions, as well as
accountability for state administration.
Also, related to public transportation, the state, in
this case, the Government is obliged to provide public
transportation needs that are safe, comfortable and
affordable. In the Traffic Law, it does not explicitly
regulate the procedure of public transportation online,
but it does not mean that the Law is out of date, so it
is not feasible to use. To further clarify and specify
the regulation of online transportation, the
Government should make rules under the law that
specifically regulate this online public
transportation.(Supriono, n.d.)
The stipulation of the Minister of Transportation
Regulation Number 32 of 2016 concerning the
Implementation of Persons with Non-Route Public
Motor Vehicles on April 1, 2016, which was revised
again on March 31, 2017, with Minister of
Transportation Regulation Number 26 of 2017, to
help the public transport polemic more or less this
online. The ministerial regulations has been regulated
how the technical procedure of online transportation
is the existence of cooperation obligations between
public transport companies and companies using
information system applications. Especially related to
technical matters such as payment mechanisms,
prohibitions and requirements for both companies,
the use of mandatory digital dashboard facilities
reported to the Minister of Transportation,
Governors, Regents and Mayors as part of efforts to
supervise the use of online transportation.
(thejakartapost.com, 2018)
In the Ministerial Regulation, it is not yet detailed
about what transportation can work with companies
using online applications. Is it only a four-wheeled
vehicle? Then how to transport online two-wheeled
motorized vehicles (motorcycle taxis) which
incidentally do not join in transport companies as
required and regulated in the Traffic Law and
Minister of Transportation Regulation Number 26 of
2017, namely State-Owned Business Entities,
Regionally Owned Enterprises, Limited Liability
Companies, and Cooperatives. (Indonesia, 2017)
If we look at the number of online transportation
currently in Indonesia, online transportation using
two-wheeled motorized vehicles (ojek) online is the
most, and most of them are people who use their
motorbikes to reap a fortune on the road by becoming
a driver two-wheeled motorized vehicle (motorcycle
taxi) online. The number of clashes between drivers
of city public transportation (Angkot) and online
motorcycle taxi drivers that occurred in several big
cities such as Bogor and Tangerang which caused
casualties indeed became a problem that must be
resolved immediately by the Government, in this
case, the Ministry of Transportation and also the
Regional Government.
The Minister of Transportation Regulation which
is still dull and not rigid must indeed be specified in
the form of a Regional Regulation that can be issued
by the Governor, Regent and or Mayor by referring to
the Traffic Law and Minister of Transportation
Regulation Number 32 Year 2016 in conjunction with
Minister of Transportation Regulation Number 26 In
2017.
3.2 Decision of the Constitutional
Court on Online Public Transport
That related to the issue of online transportation, there
are already people who have submitted a judicial
review for the Road Traffic and Transportation Law,
namely:(Constitutional Court of Republic Indonesia,
n.d.)
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1. Aries Rinaldi, in case 78/PUU-XIV/2016.
2. Etty Afiyanti Hentihu, in case 97/PUU-XV/2017.
3. Yudi Arianto, in case 41/PUU-XVI/2018.
4. Irfan, in case 23/PUU-XVI/2018
The Petitioners in the three cases are Indonesian
citizens who work as Online transport drivers who
question the constitutionality of the Road Traffic and
Transport Law specifically related to the regulation of
online public transport that has not been regulated in
the law. The Constitutional Court in its decision
provided a kind of guideline for the Government to
regulate online transportation in Indonesia for both
motorized and four-wheeled vehicles.
3.3 The Decision on Case 78/PUU-
XIV/2016 (Mahkamah Konstitusi
RI, 2016)
In the petition for judicial review of the Road Traffic
and Transportation Act, the Petitioner tested Article
139 paragraph (4) which regulates the provision of
public transportation services carried out by state-
owned enterprises, regionally owned enterprises, and
other legal entities.
The Grab driver assumed that Article 139
paragraph (4) of the Road Traffic and Transportation
Law had not accommodated individuals to become
executors in transportation service providers who had
the potential to harm the Petitioners' constitutional
rights and authorities. Even though the Constitutional
Court rejected the case submitted by the Grab drivers,
the Constitutional Court in the 78/PUU-XIV/2016
verdict read on February 7, 2017, has given
consideration that can be a guideline for the
Government in its efforts to resolve the online
transportation problem.
In its consideration, the Constitutional Court,
among other things, argued that the Petitioners as
drivers of online transportation services were in fact
in the shade of an online transportation company that
was also a legal entity, even though the company was
not a public transportation company but only an IT
Provider company. The Road Traffic and
Transportation Law regulates the definition of a legal
entity for public transportation service providers
wherein referred to as "legal entity". In the
explanation of Article 220 paragraph (1) letter c of the
Law is a body or association that is recognized as a
subject law that can be attached to legal rights and
obligations, such as companies, foundations, and
institutions. According to the Constitutional Court, a
public transportation service provider application
company, even though it only sells online application
services for the public, of course, must also be
supported by a Public Transport Company that
provides transportation services for people and goods
with Public Motorized Vehicles.
The existence of a new phenomenon that is
currently occurring throughout the world, primarily
related to the use of public transport using online
applications is a necessity. The method of online-
based applications that are within the control of every
cell phone user, which was initially considered
impossible to realize, along with the development of
technology and information, this has now become a
reality.
According to the Constitutional Court, the public
as users of public transport services benefit from the
application. Likewise with online application service
providers and drivers who are directly recruited from
the community also feel the same benefits. The Law
on Traffic and Road Transportation actually can
accommodate this online transportation phenomenon.
This is also by the purpose of the establishment of the
law, namely as an effort to support national
development and integration as part of efforts to
advance public welfare as mandated by the
Indonesian Constitution (UUD 1945).
Also, according to the Constitutional Court, the
state must develop and advance a national
transportation system that aims to realize security,
safety, order, and smooth traffic and road transport to
support regional development and economic
development. This will follow the development of
national and international strategic environments that
demand the implementation of traffic and road
transportation by the development of science and
technology, regional autonomy, and accountability in
the administration of the state. In this context, the
country, in this case, the Government must
immediately resolve the problem of providers of
online public transport services in a fair, transparent
and coordinated manner by involving all stakeholders
to overcome the problem of online public
transportation by completing operationally and
technically into regulations implementation.
3.4 The Decision on Case 97/PUU-
XV/2017 (Mahkamah Konstitusi
RI, 2017)
In the petition for judicial review of the Road Traffic
and Transportation Act, the Petitioners who are
online transportation drivers (Grab and Gojek) review
Article 151 letter a of the Road Traffic and
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Transportation Act which states, "Public
transportation services for public motorized vehicles
not in the route referred to in Article 140 letter b
consists of: a. People transport by taxi ".
According to the Petitioners, the article has caused
the violation of the constitutional rights of the
Petitioners in particular the constitutional rights to
obtain decent work and livelihood as stipulated in
Article 28D paragraph (1) of the Indonesian
Constitution (UUD 1945) because online
transportation is not regulated as part of the existing
transportation the law. The applicant requested that in
Article 151 letters the phrase "and technology-based
application taxis or online taxis" be added.
To answer the request, the Constitutional Court in
its legal considerations states the following:
▪ The incomplete regulation of laws or the lack of
rules in dealing with the pace of social
development does not in itself cause the
government to conflict with the constitution. A
law cannot regulate everything correctly,
especially if it is a development that only exists
after the law is made. The bill is a written rule of
law, but there are still weaknesses such as not
being able to keep up with dynamic times. This
does not cause the bill to become unconstitutional
insofar as the contents of the law do not conflict
with the constitution.
▪ That related to the occurrence of conditions
assessed by the Petitioners as a legal vacuum, the
Constitutional Court is not fully authorized to fill
them if it involves positive norm formulation
which is the authority of the legislators. In this
case, the legislators should make changes through
the legislative process.
▪ According to the Constitutional Court, the
formulation of the norms of existing articles is
clear and does not contain contradictions with
other rules that have the potential to cause legal
uncertainty. According to the Court Article, 151
letter a of the Road Traffic and Transportation Act
does not at all cause a different interpretation
when implemented because the purpose of the
norm is intended for transportation of people
using taxis.
▪ Also, according to the Constitutional Court,
Article 151 does not contain any substance
provisions that prevent anyone from working or
doing business in the public transport sector. On
the contrary, the substance of the provisions of
Article 151 opens opportunities for anyone to
work and do business in the public transport
sector. According to the Constitutional Court,
something new indeed will not always be received
smoothly or quickly. There will be dynamics in
the world of transportation with the presence of
taxis with technology-based applications. In this
context, arrangements are needed in such a way
that the transportation needs of the community
can still be appropriately fulfilled and need to be
regulated so that there is a fair competition
between existing transportation. Here is the role
of the state to control that people's transport is not
allowed to run in very free space so that state
intervention is needed to regulate it. The
regulatory process is the domain or authority of
the Government and legislators while the Court
could not interfere at all regarding what became
the domain of the power of the Government and
the legislators.
▪ Based on all the arguments above, according to
the Constitutional Court the existence of Article
151 letter a which does not or does not contain the
norm regarding "technology-based application
taxis" as desired by the Petitioners, but according
to the Constitutional Court, the article does not
necessarily contradict Constitution. Because,
when a norm does not accommodate the
aspirations or development of a society that is so
dynamic, the said norms still cannot automatically
be considered contrary to the Constitution.
3.5 The Decision of Case 41/PUU-
XVI/2018 (Mahkamah Konstitusi
RI, 2018)
In this case, the Petitioners who applied were drivers
of motorized vehicles (Gojek) online, which
numbered in the thousands. The Petitioners in their
petition review Article 47 paragraph (3) of the Road
Traffic and Transportation Act which does not
regulate motorbikes as motorized vehicles, either
individual motorized vehicles or public motorized
vehicles, which are contrary to Article 27 paragraph
(1) and paragraph (2) and Article 28D paragraph (1)
of the Constitution.
Also, with the rise of online transportation where
motor vehicles become one of the transport used, has
caused motor vehicle drivers online (Gojek) not to get
legal protection and even in some provinces the
presence of online transportation, especially Gojek,
has been rejected. To answer the issue of the
constitutionality of the article in the law, the
Constitutional Court stated in its legal considerations
as follows:
▪ That the philosophical basis of traffic laws and
road transport aims to support national
development and integration to advance public
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welfare, therefore as a national transportation
system, road transport must provide security and
safety. Based on the matters above, the criteria for
the type of road transport as referred to in Article
47 paragraph (3) are stipulated, namely individual
motorized vehicles and public motorized vehicles.
According to the general provisions of the law
Article 1, number 10 gives the understanding that
a public motorized vehicle is any vehicle used to
transport goods and people with a fee. With a
basic philosophical construction of Considerancy
Considering the letter b then connected with
Article 47 paragraph (3), the type of public
motorized vehicle must realize security and
safety, especially those transported are people.
▪ Article 47 paragraph (3) of the traffic law is a legal
norm that functions to carry out social engineering
so that citizens use road transport that prioritizes
security and safety, both individual motorized
vehicles and public motorized vehicles. While
Article 27 paragraph (1) of the Constitution has
nothing to do with motorized vehicles because
Article 27 paragraph (1) of the Constitution is
related to the same position of every citizen when
there is a violation of law, it must be treated
equally there is no difference and equal position
for every citizen country when they will sit in
Government. So that the Petitioners' arguments
stating that motorbikes were not included in
Article 47 paragraph (3) of the law contradict
Article 27 paragraph (1) of the Constitution are
unlawful according to law. Article 47 paragraph
(3) protects every citizen when using road
transport, both road transportation with public and
individual types of motorized vehicles.
▪ Also, according to the Constitutional Court
Article 47 paragraph (3) does not prevent the
Petitioners from obtaining employment and
decent livelihoods, because motorbike motorbikes
continue to operate even though Article 47
paragraph (3) of traffic laws and road transport
does not regulate motorcycle in the article. Such
arrangements are intended to realize safe and
secure road transport for drivers, passengers, and
road users. In other words, motorbikes are not
road transport intended for transporting goods and
people in the context related to Article 47
paragraph (3) Road Traffic and Transportation
Law.
▪ The Court does not turn a blind eye to the
phenomenon of motorcycle taxis. But this has
nothing to do with constitutional or
unconstitutional norms of Article 47 paragraph
(3) Road Traffic and Transportation Law because
online applications that provide motorcycle taxi
services do not yet exist or are available as when
this, motorcycle taxis continue to run without
being disturbed by the existence of Article 47
paragraph (3).
▪ The arguments of the Petitioners which explained
the existence of different treatment between
motorbikes and other motorized vehicles were
incorrect because motorbikes were not regulated
in the law, but when talking road transport
carrying goods and people with payment, hence
criteria are needed that can provide safety and
security. Standards for motorized vehicles
destined to transport goods and people have also
been determined in the law. According to the
Constitutional Court, different treatment is when
treating different things for the same thing and
treating the same for different things. In the
context of the Petitioners' questioning it is indeed
a different matter between motorbike vehicles and
public motorized vehicles to transport goods and
people so that when the Court treats the same for
various issues, the Court violates the Constitution,
especially Article 28I paragraph (2).
3.6 The Decision on Case 23 / PUU-
XVI / 2018 (Mahkamah Konstitusi
RI, 2019)
In this case, the Applicant who works as an Online
Driver issues the phrase "using the telephone"
contained in the Elucidation of Article 106 paragraph
(1) and the phrase "doing other activities or
influenced by a situation that results in a
concentration disturbance in driving on Road"
contained in Article 283 Law 22/2009. The sound of
the article is as follows: Explanation of Article 106
paragraph (1) of Law 22/2009. "What is meant by"
full concentration "is that everyone who drives a
motorized vehicle attentively and uninterrupted
because of illness, fatigue, sleepiness, using a
telephone, or watching television or video mounted
on a vehicle or drinking drinks containing alcohol or
drugs that affect the ability to drive a vehicle. Article
283 of Law 22/2009: "Anyone who drives a
motorized vehicle on the road is improper and
conducts other activities or is influenced by a
situation that results in a concentration disturbance in
driving on the road as referred to in Article 106
paragraph (1) punished with the most imprisonment 3
(three) months old or a maximum fine of Rp.
750,000.00 (seven hundred fifty thousand rupiahs) ".
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Related to the issue of the constitutionality of the
article, the Constitutional Court in its legal
considerations stated the following:
▪ That using cellular telephones in which there are
various features including satellite-based
navigation system applications commonly called
GPS when driving, within reasonable reasoning
includes things that can interfere with traffic
concentrations that can have an impact on traffic
accidents. In other words, the use of GPS can be
justified as long as it does not disturb the driver's
concentration in traffic. That is, not every driver
who uses GPS can immediately be judged to
interfere with driving concentration which
endangers other road users who can be judged to
violate the law, so that its application must be
viewed casually. Therefore, there is no question
of unconstitutionality related to the Elucidation of
Article 106 paragraph (1) of Law 22/2009. Thus
the Petitioners' arguments have no legal grounds.
▪ That what is meant by "full concentration" is that
everyone who drives a motorized vehicle
attentively and uninterrupted because of illness,
fatigue, sleepiness, using a telephone or watching
television or video mounted on a vehicle, or
drinking beverages are containing alcohol or
drugs -treatment that affects the ability to drive a
vehicle. As with the Court's legal considerations
in the paragraph above, the main essence that is
intended to be explained in Article 106 paragraph
(1) of Law 22/2009 is regarding the mandatory
driver's full concentration when driving a vehicle
or driving. Therefore the driver may not carry out
other activities if other activities can interfere with
his concentration in driving. Based on the
description above. The Court believes that the
arguments of the Petitioners regarding the phrase
"doing other activities or being influenced by a
situation that results in a disruption of
concentration in driving on the Road". It's
contained in article 283 of Law 22/2009 contrary
to the 1945 Constitution as long as it is not
"excluded the use of satellite-based navigation
system applications commonly called the Global
Positioning System (GPS) contained in
smartphones (smartphones) "is unreasonable
according to law.
3.7 Government Regulation Post the
Constitutional Court Decision
After the decision of the Constitutional Court, the
Ministry of Transportation has made the Ministry of
Transportation Regulation Number 108 of 2017
which is a revision of the Ministry of Transportation
Regulation Number 32 of 2016 concerning the
Implementation of People Transportation with Public
Vehicles Not in Route.
In the regulation of the transportation ministry, the
Government is trying to equalize the rights and
obligations between conventional public transport
companies and online transportation. One of the
provisions of the department of transportation
regulation is that online transport providers cooperate
with conventional public transport companies and are
not allowed by individuals to use existing online
applications.
However, the regulation of the transportation
ministry, because it was felt to be detrimental to
individual drivers who used online applications, was
finally put on a judicial review to the Supreme Court.
The Supreme Court in its legal considerations
stated that the Ministry of Transportation Regulation
above was contrary to Article 3, Article 4, Article 5,
and Article 7 of Law Number 20 of 2008 concerning
Micro, Small and Medium Enterprises. Because it
does not grow and develop a business to build a
national economy based on just economic democracy
and the principle of empowering micro, small and
medium enterprises. (Detik.com, 2018) The
cancellation of the regulations of the transportation
ministry causes online public transport to have no
legal provisions. So the Government must re-attempt
to make rules to regulate online transportation in
Indonesia. (kompas.com, 2018) So far, the
Indonesian Central Government has not been able to
provide the best solutions to these problems related to
online transportation. This is different from what is
happening in the United States where the government
is seriously trying to find solutions to regulating the
existence of online transportation services.(Tony
Dutzik and Travis Madsen, 2013)
4 CONCLUSION
The decision of the Constitutional Court regarding the
issue of online transportation can undoubtedly be a
guideline for the Central Government and Regional
Governments in making appropriate and fair
regulations and the management of online
transportation. But unfortunately, the Government
has not made the Constitutional Court's consideration
regarding the issue of online transportation as a
benchmark in making rules under the law.
We need to wait for the Government's concrete
steps in anticipating the problem of online
transportation so that clashes between online
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motorcycle taxi drivers and public transportation
drivers do not happen again as the online
transportation company expands which is currently
incessantly opening new branches in all cities in
Indonesia.
Of course, we hope that the Government can make
regulations and regulations that are truly fair,
transparent and accountable for the community,
especially for conventional transport drivers and
online transportation drivers so that the constitutional
rights of all citizens can be fulfilled.
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