JRSSEM 2023, Vol. 02 No. 8, 1852 – 1867

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.59141/jrssem.v2i08.413 https://jrssem.publikasiindonesia.id/index.php/jrssem

MEASURING THE LEGAL CONSISTENCY OF SPECIAL

RENTAL TRANSPORT LICENSING

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

1,2,3,4

Faculty of Law, Tadulako University, Indonesia

Email: syamsuddinba[email protected], nurhayatisutannokoe@gmail.com,

pusadansulwan5@gmail.com, datupalingesuarlan@gmail.com, darwatipakki99@gmail.com

*Correspondence: syamsuddinbaco@gmail.com

Submitted

: Febryary 24

2023

Revised

: March 17

2023

Accepted

: March 27

2023

Abstract: Special Rental Transport Arrangements, as one type of transportation of people with

public motor vehicles on the road, are a response to the use of information technology as a medium

of liaison between transporters and prospective passengers of public motor vehicles. But the

arrangement does not place ASK complementary to other types of public transport services. The

results showed that there was a different permit treatment between special rental transportation

and transportation of people with public motorized vehicles not on other routes. The difference

makes it easier for special rental transportation, compared to other types of transportation services.

The difference is, first, the requirements for obtaining a license for a special rental transportation

operator company, second, the condition that the vehicle must have proof of passing periodic tests,

and third, the driver must have a General Driver's License. The norm of PM 118 of 2018 which

provides the convenience (privilege) of licensing, is contrary to the norms of UULLAJ, PP Number

74 of 2014, and PM Number 117 of 2018. So that in fact, the norms of PM 118 of 2018 are void and

non-binding because they conflict with legal norms that have a higher position, namely the norms

of UULLAJ and PP Number 74 of 2014.

Keywords: Transport Law; Special Freight Rental; consistency of permit arrangements.

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1853

INTRODUCTION

That the urgency of regulating Special

Rental Transportation (hereinafter referred

to as ASK), explained in consideration

considering the Regulation of the Minister

of Transportation Number 118 of 2018

concerning the Implementation of Special

Rental Transportation (hereinafter referred

to as PM 118 of 2018), is, "The

implementation of special rental

transportation has a strategic role in

supporting development to realize general

welfare as mandated in the Constitution of

the Republic of Indonesia Year 1945 and the

community in need Hukum certainty on

aspects of safety, security, comfort, equality,

affordability and regularity for the

implementation of special rental

transportation".

Definition of ASK according to Article

1 number 7 PM 118 of 2018:

"Special Rental Transport is a

door-to-door transportation service with

drivers, having an operating area in urban

areas, from and to airports, ports, or other

transportation nodes and booking using

information technology-based

applications, with the number of rates listed

in the application".

That the presence of ASK, as a

response to the involvement of information

technology (application), in providing

services to the community that is faster,

easier, cheaper, and more convenient. The

presence of the application as a medium of

liaison between people transportation

service providers (carriers) and service

users (passengers), has provided ease of

accessibility, comfort, and real

effectiveness. Although the presence of

applications in the implementation of

transportation of people by Public Motor

Vehicles, has contributed tangibly, but its

presence, needs to be regulated and

controlled through laws and regulations so

that the principles and objectives of its

implementation do not deviate from laws

and regulations.

The presence of ASK, as an organizer of

public transportation of people in urban

areas, should not be a predator for other

types of people transportation services,

both transportation on the route and

transportation of people not on the route.

This is affirmed in Article 197 paragraph (1)

point b of Law Number 22 of 2009

concerning Road Traffic and Transportation

(hereinafter referred to as UULLAJ) as

amended by Law Number 11 of 2020

concerning Job Creation (hereinafter

referred to as Job Creation Law), which

stipulates: "The Government and Regional

Governments as transportation operators,

are obliged to protect Public

Transportation companies by maintaining a

balance between the supply and demand of

public transportation".

To prevent ASK from becoming a

predator against other types of

transportation services, PM 118 of 2018

stipulates several legal requirements that

must be met, for example, the company has

an ASK implementation permit, the vehicle

operated has proof of passing the Periodic

Test and the driver has a General Driver's

License (SIM). These requirements are

made with the intention that asks is

complementary to other types of people

transport and ensures the security and

safety of passengers, other road users, and

other third parties.

Laws are made not for h u kum but

hukum for man. The presence of PM 118 in

2018 is not for display or just a shield for

parties who intend to practice culpably in

carrying out ASK activities. Ideally, if PM

118 of 2018, has run well and effectively,

then it certainly will not turn off other types

of transportation that serve urban areas,

such as taxis and others. But the fact is,

since ASK appeared and operated

massively, taxi transport companies

"staggered" until most "fell unconscious"

1854 | Measuring The Legal Consistency of Special Rental Transport

Licensing

and finally closed (Satjipto Rahardjo, 2009).

"Chairman of Organda DKI Jakarta,

Syafruan Sinungan, claims that only 8

(eight) taxi companies in Jakarta survived

the online taxi invasion. Even though in

2016 the number of taxi companies still

reached 34 companies. But in two years, 26

companies have collapsed." Furthermore,

he said that online taxis had an impact on

the number of taxi fleets operating in

Jakarta, which reduced from 25,550 units to

less than 9,700 units today. "This is because

information technology companies (online

taxis) operate like transportation

companies and determine their fares."

The design of the implementation of

transportation of people by public motor

vehicles regulated in the UULLAJ, along

with its implementing rules, does not

provide room for free competition between

business actors, because there is an

obligation of the government to maintain a

balance between the number of vehicles

and the demands of service user demand.

These government obligations are

implemented through licensing and tariff

instruments. Therefore, the issue of the

substance of PM 118 of 2018, becomes very

important to be studied through scientific

research, because it is closely related to

economic development and national

resilience as well as the security and safety

of public transportation service users and

drivers as a whole. Therefore, the study and

research of the fulfillment of the company's

permit requirements, ASK vehicles, and

drivers are very important and urgent.

MATERIALS AND METHODS

This research uses normative legal

research methods because it focuses on the

consistency of statutory norms, using a

statutory approach (statute approach),

conceptual approach, and analytical

approach. The technique of collecting legal

materials uses document study techniques,

as well as study analysis using qualitative

analysis.

RESULTS AND DISCUSSION

Consistency of Business Entity

Requirements for ASK organizers.

Article 11 paragraph (1) stipulates that

Special Rental Transport companies must

have a permit to operate Special Rental

Transportation. This provision is a follow-up

to Article 173 of the UULLAJ, which was

later amended in Article 55 number 18 of

Law Number 11 of 2020 concerning Job

Creation, which states: "The provisions of

Article 173 are amended so that the

contents of the article are as follows:

(1) Public Transport Companies that carry

out the transportation of people

and/or goods must fulfill Business

Permits from the Central Government

or Local Government by norms,

standards, procedures, and criteria set

by the Central Government.

(2) The obligation to fulfill the Business

License as referred to in paragraph (1)

does not apply to:

a. Transport of the sick by ambulance; or

b. Transportation of bodies.

(3) Further provisions regarding Business

Licensing as referred to in paragraph

(1) are regulated in Government

Regulations."

Further arrangements based on the

provisions of paragraph (3) are regulated in

Government Regulation Number 5 of 2021

concerning the Implementation of Risk-

Based Business Licensing (hereinafter

referred to as Business Licensing PP).

In Annex I.9.A.15, number 22, Business

Licensing PP, ASK with KBLI Code 49426,

has a Medium High risk, Business Licensing

includes NIB and Standard Certificates,

which have a validity period as long as

business actors run their business and

licenses are issued by the Minister and

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1855

Governor as a deconcentration task.

Technically, the ASK permit application

follows the mechanism stipulated in the

laws and regulations regarding

electronically integrated business licensing

services or Online Single Submission (OSS).

Special Rental Transport License consists of:

a. A special Rental Transport license

decree is a permit given to the head of

the company and attached to the

company; and

b. Electronic Card Service Standard

(KESP), is a permit attached to the

vehicle.

The requirements for the ASK

permit should be the same as the

conditions for the permit to transport

people not on other routes because

ASK is part of the transportation of

people not on the route, as stipulated

in Article 13 of the Regulation of the

Minister of Transportation of the

Republic of Indonesia Number 117 of

2018 concerning the Implementation

of Transportation of People Not in

Treayek (hereinafter referred to as PM

117 of 2018), which states:

"Transportation of People with Certain

Destinations as referred to in Article 4

letter b is Transportation that serves:

a. Shuttle transportation;

b. Settlement transport;

c. Employee transport;

d. School transport;

e. Chartered transport;

f. Public rental transport; and

g. Special rental shuttles.

In the Article... paragraph (3) UULLAJ,

jo Article........ Government Regulation

Number 74 of 2014, jo PM 117 of 2017,

stipulates that companies that carry out the

transportation of people by Public Motor

Vehicles, must be Indonesian legal entities,

in the form of State-Owned Enterprises,

Regional-Owned Enterprises, Limited

Liability Companies, or Cooperatives. This

provision is strengthened in line with the

decision of the Constitutional Court

Number....... which in its legal judgment

states:

"In legal consideration of the decision

of the Constitutional Court Number

78/PUU-XIV/2016, paragraph [3.13] states:

"Considering that after carefully examining

the arguments of the Petitioners in their

application, the Court thinks that the losses

suffered by the Petitioners are not caused

by the unconstitutionality of the legal

norms requested for testing so that they do

not constitute a loss of constitutional rights

as referred to in Article 51 paragraph (1) of

the Constitutional Court Law. This can be

seen from the reasoning where there will be

legal uncertainty if the legal norms

requested by the test do not exist or are

interpreted differently. Conversely, the

formulation of article a quo which

emphasizes the necessity of a legal entity

for online transportation service providers

has not only provided legal certainty, but

also protected various aspects, both to

service providers, drivers, and users of

online transportation services. In addition,

the norm of law a quo also has no conflict

with the idea of the rule of law. Moreover,

with the regulation of provisions on online

transportation service providers who must

be legal entities, it further guarantees the

constitutional rights of the Petitioners to

decent work and the right to work and get

proper remuneration in employment

relations as stipulated in Article 27

paragraph (2) and Article 28D paragraph (2)

of the 1945 Constitution. Because, with the

necessity of such a legal entity in the event

of a dispute, the resolution mechanism

becomes clearer. Similarly, for users of

online transportation services, it will be

more certain if some complaints or

demands must be filed when they feel

aggrieved. Thus, it is clear to the Court that

the harm postulated to have been suffered

by the Petitioners was not caused by the

1856 | Measuring The Legal Consistency of Special Rental Transport

Licensing

unconstitutionality of the statutory norm

for which the test was invoked, but rather

by the application or implementation of the

norm in practice. Thus, through Decision

Number 78/PUU-XIV/2016, the Court has

affirmed that Article 139 paragraph (4) of

the LLAJ Law which requires

online transportation to be a legal entity is

constitutional. While about the

implementation by lower regulations of the

law, it is not the authority of the Court to

judge it and compliance with it is in no way

related to Article 55 of the Constitutional

Court Law."

The requirements for legal entities are

classified as imperative requirements, but

in PM 118 of 2018, Article 1 number 8 and

Article 12 paragraph (3) are changed to

facultative requirements (optional), each of

which reads:

Article 1 number 8 and Article

12 paragraph (3) respectively read:

The definition of a Special Rental

Transport Company has regulated in Article

1 point 8: "Special Rental Transport

Company is a legal entity or micro business

actor or small business actor that organizes

Special Rental Transportation services."

Then the meaning of Article 1 number

8 is described in Article 12 which reads:

"(1). The Special Rental Transport Company

must be an Indonesian legal entity by

the provisions of laws and regulations;

(2). Indonesian legal entities as referred to

in paragraph (1) in the form of:

a) State-Owned Enterprises;

b) Regionally Owned Enterprises;

c) Limited Liability Company; or

d) Cooperation.

(3). In addition to legal entities as referred to

in paragraph (2), the implementation

of ASK can be carried out by micro

business actors or small business

actors by the provisions of laws and

regulations".

Changes in the requirements of legal

entities are carried out by providing

legal entity options or not legal

entities, for micro business actors or

small business actors as referred to in

Law Number 20 of 2008 concerning

Micro, Small, and Medium Enterprises

(MSMEs).

The change in the requirements of the

legal entity, carried out through the

separation of the arrangement of

transportation of people, not on the route

with ASK (even though ASK is part of the

transportation of people not on the route),

is a discriminatory legal policy and has no

juridical, sociological and philosophical

basis. The conditions that must be met to

obtain a permit for transportation of

people not on the route (taxi

transportation, residential transportation,

employee transportation, school

transportation, charter transportation, and

public rental transportation) are strictly

regulated and limited in Article 36 and

Article 37, PM 117 of 2018, while the

conditions for obtaining an ASK permit, are

not regulated in PM 118 of 2018, as or

similar to the conditions stipulated in

Article 37 PM 117 of 2018. When using the

principle of law lex specialis derogate lex

generalis, the special law takes

precedence over the general law, or if there

is nothing provided for in the special law,

the general law applies. Based on this

principle, if PM 118 of 2018 as a special law,

does not regulate the conditions for ASK

permits, then the conditions for people

transportation permits are not on the route

as a general law that applies.

In practice, this legal principle does not

apply, because what is treated is, because

there are no ASK permit requirements

regulated in a special law, namely PM 118

of 2018, it is considered that ASK does not

apply the permit conditions regulated in

the general law, namely Article 37 PM 117

of 2018. The practical consequence is that

the business entity that organizes ASK for a

permit, does not need to meet the

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1857

requirements to own at least five units of

motor vehicles, as stipulated in Article 37

letter a and Article 38 PM 117 of 2018. The

same applies to individuals who have an

ASK permit.

Table 1. about the differences in the conditions for transportation permits for people

not on other routes with the conditions for ASK permits.

Requirements for

Transportation Permits for

People Not on the Route

in PM 117 of 2018.

ASK Permit Requirements in PM

118 of 2018.

Article 35

(1) Public Transport Companies

are required to have a

permit for the operation of

Transportation of People

with Public Motor Vehicles

Not on the Route.

Article 11

(1) Special Rental Transport

Companies are required to have

a Special Rental Transport

operating permit.

Article 36

(1) Public Transport Companies

as referred to in Article 35

paragraph (1) must be

Indonesian legal entities in

accordance with the

provisions of laws and

regulations;

(2) Indonesian legal entities as

referred to in paragraph (1),

in the form of:

a. State-Owned

Enterprises;

b. Regionally Owned

Enterprises;

c. Limited Liability

Company; or

d. Cooperation.

Note:

There are no exceptions to the

legal entity requirement for

transportation companies of

people not on the route, as

stipulated in paragraph (3) PM

118 of 2018.

Article 12

(1) Special Rental Transport

Company as referred to in Article

11 paragraph (1) must be an

Indonesian legal entity in

accordance with the provisions

of laws and regulations;

(2) Indonesian legal entities as

referred to in paragraph (1) in

the form of:

a. State-Owned Enterprises;

b. Regionally Owned

Enterprises;

c. Limited Liability Company; or

d. Cooperation.

(3) In addition to legal entities as

referred to in paragraph (2), the

operator of Special Rental

Transport can be carried out by

micro business actors or small

business actors in accordance

with the provisions of laws and

regulations.

1858 | Measuring The Legal Consistency of Special Rental Transport

Licensing

Article 37

To obtain a permit as referred to

in Article 35 paragraph (1), the

Public Transport Company must

meet the following

requirements:

a. Own at least 5 (five) vehicles;

b. Own/master a vehicle

storage area that can

accommodate the number of

vehicles owned;

c. Provide vehicle maintenance

facilities (workshops) as

evidenced by ownership

documents or cooperation

agreements with other

parties.

Nothing is regulated in PM 118 of

2018.

Article 38

The vehicle as referred to in

Article 37 letter a is evidenced by

a Motor Vehicle Owner's Book

(BPKB) or Vehicle Number

Certificate (STNK) on behalf of a

legal entity.

Nothing is regulated in PM 118 of

2018

The difference in legal treatment is

increasingly evident in its implications,

because generally the ASK vehicles that

operate, are not part of the assets of legal

entities, but remain private property.

ASK vehicles that use Cooperative

permits, but the vehicles remain in the

personal name of the partner, not in the

name of the cooperative. Then the driver-

partner in question, pays a monthly fee to

the Cooperative, in exchange for utilizing

the cooperative's ASK permit. Most of the

Cooperative partners do not have a KESP,

as one of the permit requirements that

every ASK vehicle must have.

The use of the Cooperative as a

business entity organizing ASK, is only as a

camouflage, because in practice what

happens is that ASK drivers who use the

Cooperative ASK Permit, only like "permit

rental", because all the risks that befall ASK

drivers as Cooperative Partners are fully

borne by ASK drivers who are concerned

and not related to the Cooperative. This

practice deviates from the purpose and

purpose of the legal entity requirements of

the ASK company itself.

Both at the normative level and the

practical level, ASK companies obtain

privileges, and privileges are legitimized

through PM 118 of 2018 and it is a form

of conflict between the norms in UULLAJ,

PP Number 74 of 2014, PM 117 of 2018

with the norms in PM 118 of 2018. The

conflict of norms gives birth to legal

injustice framed with a narrative that seems

to protect the interests of the community

while accommodating the use of

information technology developments in

the transportation of people on the road.

What has happened is that traffic laws have

been manipulated in such a way that they

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1859

have lost their distinctive identity as

instruments that ensure security, safety,

and healthy business competition in the

road transport industry. Such a

phenomenon is described by Kuntoro

Mangkusubroto, we are also increasingly

made aware that criminal prosecution or

mere conviction has proven to fail to

eradicate crime. The source is not only bad

(Surowidjojo, 2021) laws, says Chinese

reformer An Shih (1021-1086), but also bad

men. In fact, according to him, this bad

man factor is greater in his work and

influence than bad laws.

Similarly, the desire for a more

responsive system can depend on the

extent to which a society or institution

needs to sacrifice other values, such as

achieving a high culture to achieve justice.

For those who may find the picture of

"development" misleading, the model can

be reshaped by showing two ways in which

the law can die, namely when the law loses

its distinctive identity. Historically, the idea

of law is closely related to specific ideals

and schools of thought, as well as

institutional details in the (Nonet &

Selznick, 2003)rule of law model. In both

its repressive and responsive complexion,

the legal order loses the protection of its

firm institutional boundaries and becomes

an integral part of government and politics.

Then there was a weakening of ideas and

ways of thinking that were peculiar to the

law. Legal death, in such a sense, is a sign

that exists at both stages of development.

In both repressive and responsive law, the

regulatory authority is weakened,

discretion is expanded, instrumental

perspectives undermine the formalism of

artificial reasoning, legal arguments

become less distinguishable for policy

analysis, and legal institutions become

more accessible and more fragile.

Consistency of Vehicle Permit

Requirements

The definition of General Motor

Vehicles according to UULLAJ, Article 1

number 10 is "Every vehicle used for the

transportation of goods and/or people for

a fee". The characteristics of motorized

vehicles in the ASK service are regulated in

Article 4 PM 118 of 2018 which stipulates

that Special Rental Transport services use

General Motor Vehicles with a cylinder

capacity limit of at least 1,000 cubic

centimeters.

When viewed from a cylinder

capacity of at least 1,000 cubic centimeters,

then all types of vehicles that have been

known such as Agya, Alya, Calya, Avansa,

and others, are eligible to become ASK

vehicles. Furthermore, Article 5 stipulates

the requirements for General Motor

Vehicles used in ASK services, namely:

1. Common Motor Vehicles used include:

a. Sedan passenger cars; and/or

b. Passenger Cars Are Not Sedans

2. Use motor vehicle number signs with a

basic color of black and white writing

by application data or by the

provisions of laws and regulations;

3. Meet the requirements of the

Minimum Service Standard;

4. Equipped with an application that

shows the amount of fare charged to

passengers and the identity of the

driver and vehicle listed in the

application;

5. Equipped with a driver performance

monitoring device that can record

vehicle speed and driver behavior in

operating the vehicle;

6. Equipped with Motor Vehicle Number

Certificate and ASK operating permit;

and

7. Include the electronic mail address and

telephone number of the public

complaint service placed in the vehicle

and easily readable by Service Users.

1860 | Measuring The Legal Consistency of Special Rental Transport

Licensing

The first and second terms are not

elaborated at length, because they have

been described on other pages, so they will

only be described in the third condition,

namely General Motor Vehicles. In UULLAJ

Article 47 paragraph (3) classifies Motor

Vehicles based on functions, namely:

a. Individual Motor Vehicles; and

b. General Motor Vehicles.

According to UULLAJ Article 49

paragraph (1), every Motor Vehicle

operated on the road must be tested, and

Article 49 paragraph (2) stipulates that

testing includes;

a. Type test; and

b. Periodic test.

Furthermore, Article 53 paragraph (1)

stipulates that periodic tests referred to in

Article 49 paragraph (2), are required for

public passenger cars, bus cars, freight cars,

trailer trains, and outboard trains operated

on the Road. This obligation is to meet the

requirements of Article 106 paragraph (3)

which states: "Every person who drives a

Motor Vehicle on the Road must comply

with the provisions on technical and

roadworthy requirements."

Periodic Tests include physical

inspection and testing of Motor Vehicles,

and attestation of test results. Motor

Vehicle Inspection and physical testing

activities according to Article 54 paragraph

(1) include testing against technical and

roadworthy requirements.

This provision, previously further

regulated in Government Regulation

Number 55 of 2012 concerning Vehicles,

Article 143 paragraph (1) states:

"Mandatory Periodic Test for Public

Passenger Cars, Bus Cars, Freight Cars,

Trailer Trains, and Outboard Trains operated

on the road". However, based on PP

Number 30 of 2021 concerning the

Implementation of Road Traffic and

Transportation, (hereinafter referred to as

PP 30 of 2021) Article 1 paragraph (1) letter

b, Article 143 is revoked. Article 24 of PP 30

of 2021 states:

(1) "Periodic tests as referred to in

Article 121 paragraph (3) point b of

Government Regulation Number 55 of 2Ol2

concerning Vehicles are mandatory for

public passenger cars, bus cars, freight cars,

trailer trains, and outboard trains operated

on the road.

(2) Periodic testing as referred to in

paragraph (1) includes the activities of:

a. Motor Vehicle Registration must be

periodically tested;

b. First periodic test; and

c. Periodic test of validity period

renewal.

(3) Periodic tests as referred to in

paragraph (1) are carried out by:

a. The testing implementation unit of

the District/City Government by the

norms, standards, procedures, and

criteria set by the Minister;

b. The implementing unit of the sole

agent of the trademark holder who

received a Business License from the

Minister; or

c. Private testing implementation unit

that obtains Business Licensing from

the Minister.

(4) The first periodic test and periodic

test of extending the validity period as

referred to in paragraph (2) letter b and

letter c include:

a. Pemeriksaanpersyaratanteknis;

b. Roadworthiness requirements

testing; and

c. The provision of evidence passed

the test."

In Article 175 PP 55 of 2012,

administrative sanctions are threatened, for

anyone who violates the provisions of

Article 143 paragraph (1) in the form of

written warnings and administrative fines.

When the provisions of Article 143 are

repealed, then the provisions of Article 175,

lose the object of regulation.

In Article 176 paragraph (1) and

paragraph (2) it is stipulated that written

Syamsuddin Baco

Nurhayati Sutan Noko'e

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Suarlan Datupalinge

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| 1861

warnings are given three times with a

period of 30 days each. If the owner of the

Motor Vehicle does not carry out the

periodic test obligation after the expiration

of the third written warning period,

administrative sanctions shall be imposed

in the form of a maximum fine of IDR

24,000,000 (twenty-four million rupiahs). In

addition to the threat of administrative

sanctions as such, Article 288 paragraph (3)

of the UULLAJ, also threatens criminal

sanctions, which states: "(3). Every person

who drives a public passenger car, bus car,

freight car, trailer train, and outboard train

that is not equipped with a periodic test

certificate and a mark of passing the

periodic test, as referred to in Article 106

paragraph (5) point c, punishable with a

maximum imprisonment of 2 (two) months

or a maximum fine of IDR 500,000 (five

hundred thousand rupiahs)".

If we look at the provisions in PM 118

of 2018, there is no explicit regulation

about mandatory periodic tests for ASK

Motor Vehicles, but Article 5 explicitly

mentions General Motor Vehicles. Article 5

PM 118 of 2018 states:

"General Motor Vehicles used for ASK

services must meet the following

requirements:

a. Common Motor Vehicles used

include:

1. Sedan Passenger Car; and/or

2. passenger cars are not sedans;

b. Using motor vehicle number signs

with a basic color of black and white writing

by the data in the application or by the

provisions of laws and regulations;

c. Meet the requirements of Minimum

Service Standards:

d. Equipped with an application that

shows the amount of fare charged to

Passengers and the identity of the driver

and vehicle listed in the application;

e. Equipped with a driver performance

monitoring device that can record vehicle

speed and driver behavior in operating the

vehicle;

f. Equipped with STNK and ASK

implementation permit; and

g. Include the electronic mail address

and telephone number of the public

complaint service placed in the Vehicle and

easily readable by Service Users".

The provision confirms that the

Motor Vehicle used by ASK is a General

Motor Vehicle in the form of a General

Passenger Car that is a sedan and/or not a

sedan. According to Article 1 number 5 of

PP Number 55 of 2012, a Passenger Car is a

motor vehicle transporting people who

have a maximum seat of 8 people,

including the driver, or whose weight is not

more than 3,500 kg. Then Article 5

paragraph (2) stipulates that passenger cars

consist of;

a. Sedan, which has space consisting

of, an engine room, driver and passenger

room, and luggage room.

b. Not a sedan, which has an engine

room and driver's room, passenger and/or

luggage compartment.

Based on this, ASK General Motor

Vehicles, classified as vehicles are required

to be periodically tested so that the

provisions on criminal sanctions regulated

in Article 288 ULLAJ and administrative

sanctions regulated in Article 175

paragraph (1) and paragraph (2), Article

176 paragraph (1) and paragraph (2) also

apply to it. But in its implementation, all

motor vehicles operated do not have a

periodic test certificate and proof of

passing periodic tests, as one of the

requirements that must be met as a General

Motor Vehicle. Proof of passing the test is a

legal document that can be proof that the

motor vehicle meets the technical and

roadworthy requirements, so it is

considered to meet the safety requirements

to operate on the road. When using an

analogy, public motor vehicles that do not

have a periodic test certificate and proof of

1862 | Measuring The Legal Consistency of Special Rental Transport

Licensing

passing periodic tests, are considered not

to meet the requirements for technical

completeness and roadworthiness, so they

have the potential to cause road accidents.

This argument is the philosophical basis,

the need for government control or

supervision to ensure that every public

motor vehicle operated must be able to

guarantee safety. The legal instrument used

to ensure this is a legal instrument of

testing known as the Periodic Test. That is

why, the violation of such obligations is

punishable by administrative sanctions and

criminal sanctions, as outlined above. So

that opinion, which says the requirements

for non-online transportation such as kir

institutions, yellow plate institutions,

providing vehicle pools for the

implementation of non-online taxi

businesses become an obstacle when

having to compete with online

transportation services. Even though on a

practical level, the necessity does not make

public transportation safer and more

comfortable. While online vehicle check is

better, considering the personal ownership

of vehicles used as a means of online

transportation are privately owned.

Because it is privately owned, the

maintenance of his vehicle will feel different

from the property of a legal entity

(Pribadiono, 2016).

Agus Prabadiono's view, which wants

to eliminate the government's supervisory

function on the roadworthy fulfillment of

public motor vehicles and leave it entirely

to each vehicle owner, is a view that is not

pro-public safety, but the interests of online

transportation. If someday, all online

transportation business actors have

integrity and are aware of their

responsibilities to the security and safety of

service users, and other road users, the idea

may be applied in the future.

In practice, the threat of criminal and

administrative sanctions, like a "toothless

tiger" seems frightening but the biting

power is non-existent. The non-

enforcement of the Periodic Test obligation

for ASK General Motor Vehicles is because

there has never been an effort (earnestly or

insincerely), to enforce the mandatory test

rules. Although the legal substance of the

compulsory test is good, in the sense that

there is legal certainty, expediency, and

justice. It is called the legal substance of the

mandatory provisions of the Periodic Test

and is considered good, if the norms and

implementation are consistent and apply to

all, and do not choose the targeted subject.

Certainty means "provision; statute"

whereas if the word certainty is combined

with the word "law" into legal certainty, it

means "the legal instrument of a state that

can guarantee the rights and obligations of

every citizen." According to Sudikno

Mertokusumo, "Legal certainty is one of the

conditions that must be met in law

enforcement". So legal certainty is an

(E.Fernando M.Manullang, 2007) justifiable

protection against arbitrary actions which

means that a person will obtain something

expected under certain circumstances. This

is in line with the view of (E.Fernando

M.Manullang, 2007), "the existence of the

state and law (constitution) which is a

manifestation of the common will of the

sovereign people, therefore the value of

certainty which in this case is related to the

law, is a value that in principle provides

legal protection for every citizen from

arbitrary power so that the law gives

responsibility to the state to carry it out.

Here lies the relationship between the issue

of certainty (law) and the role of the state is

seen. Therefore, in understanding the value

of certainty (law), what must be considered

is that the value has a close relationship

with positive legal instruments and the role

of the state in actualizing them in positive

law. Even though the role of the state is not

only limited to that level, the state also has

the responsibility to carry it out and enforce

it.

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1863

Referring to this view, the mandatory

norm of Periodic Test for Public Motor

Vehicles, the state is responsible for

carrying out and enforcing it consistently,

because when the norm, is only imposed

on Public Transport Companies other than

ASK, it is a form of state arbitrariness to its

people.

Consistency of Driver's License

Requirements

The ASK driver, a partner of the

application company, factually acts as a

carrier. Although it factually acts as a carrier,

behind that there is a party who gives

orders to transport, namely an information

technology product called an online

application. This online application, owned

by an information technology company, is

juridically the party that gives orders to

drivers to transport prospective

passengers. Such transport orders are

carried out through information

technology called online applications. The

construction of a legal relationship

between the applicable company and the

driver, should not only be seen as an

ordinary partner but is a legal relationship

between the governing and the governed

or the relationship between the worker and

the employment. This type of construction

of legal relations is thus called the legal

relationship between employers and

workers.

The same thing was stated by Rohani

Budi Prihatin, who said that "when viewed

from the side of the relationship between

the application owner company and online-

based Transportation Drivers, mka often

their relationship is referred to as a

partnership relationship. But if you look

carefully, actually the relationship between

the two is midriff the relationship between

employer and labor, the application owner

acts as an employer in providing customer

information in need, while the driver only

executes application commands".

In PM 118 of 2018, there is no explicit

regulation regarding the construction of

the legal relationship, but only the

prohibitions and obligations of application

companies are regulated in Article 27 and

Article 28, while the position and

conditions of the driver are not regulated at

all.

If you see Special Rental Transport as

a service for transporting people with

public motor vehicles, then the provisions

regarding the requirements for drivers of

public motor vehicles are regulated in

Article 1 number 23 of the UULLAJ, which

stipulates that a driver is a person who

drives a Motor Vehicle on the Road who

already has a Driver's License. The

requirements for General Motor Vehicle

Drivers are affirmed in Article 77 of the Lalin

Law which states:

(1) Every person who drives a Motor

Vehicle on the road must have a Driving

License by the type of Motor Vehicle being

driven.

(2) Driver's License as referred to in

paragraph (1) consists of 2 (two) types:

a. Individual Motor Vehicle Driver's

License; and

b. General Motor Vehicle Driver's

License.

(2) To obtain a Driver's License,

prospective Drivers must have driving

competencies that can be acquired through

education and training or self-study.

(3) To obtain a Public Motor Vehicle

Driver's License, prospective drivers are

required to attend education and training

for public transport drivers.

(4) Education and training as referred

to in paragraph (4) are only attended by

people who already have a Driver's License

for individual Motor Vehicles.

The provisions of Article 77 stipulate

that every driver of a public motor vehicle

must have a Driver's License by attending

education and training for public transport

drivers, and previously had a Driver's

1864 | Measuring The Legal Consistency of Special Rental Transport

Licensing

License for individual Motor Vehicles. So to

obtain a General Motor Vehicle Driving

License, it is mandatory to have an

individual Motor Vehicle Driving License.

Article 82 states:

"Driving License for General Motor

Vehicles as referred to in Article 77

paragraph (2) point b is classified into:

a. General Driver's License A is valid

for driving public motor vehicles and goods

with an amount of permissible weight not

exceeding 3,500 (three thousand five

hundred) kilograms;

b. General B I Driver's License is valid

for driving passenger cars and general

goods with an allowed amount of weight of

more than 3,500 (three thousand five

hundred) kilograms; and

c. General B II, Driver's License is valid

for driving a towing Vehicle or Motor

Vehicle by pulling an outboard cart or

trailer with a permissible weight for an

outboard cart or trailer of more than 1,000

(one thousand) kilograms."

Article 83 states:

"(1) Every person applying to be able

to obtain a Driver's License for General

Motor Vehicles must meet the age

requirements and special requirements.

(2). The age requirement to obtain a

General Motor Vehicle Driver's License as

referred to in paragraph (1) shall be

determined at least as follows:

a. 20 (twenty) years old for

General Driver's License A;

b. Age of 22 (twenty-two)

years for General B I Driver's License; and

c. 23 (twenty-three) years old for

General B II Driver's License.

(3) . Specific requirements as

referred to in paragraph (1) are as follows:

a. Pass a theoretical exam that includes

knowledge regarding:

1. Public transport services;

2. Public facilities and social facilities;

3. Motor Vehicle Testing;

4. Procedures for transporting people

and/or goods;

5. An important place in the area of

domicile;

6. Types of dangerous goods; and

7. Operation of security equipment.

b. Pass a practical exam, which includes:

1. Pick up and drop off passengers

and/or goods at the Terminal and

certain other places;

2. Procedures for transporting people

and/or goods;

3. Filling out the cargo letter;

4. General Motor Vehicle Driver Ethics;

and

5. Operation of security equipment.

(4). Taking into account the age

requirement, each Motor Vehicle

Driver who will apply:

a. General Driver's License A must have a

Driver's License A for at least 12

(twelve) months;

b. For General Driver's License B I must

have a Driver's License B or General

Driver's License A for at least 12

(twelve) months; and

c. For General B II Driving License, you

must have a B II Driving License or

General B I Driving License for at least

12 (twelve) months.

(5). In addition to meeting the age

requirements and special requirements

as referred to in paragraph (2) and

paragraph (3), every person who

applies to obtain a General Motor

Vehicle Driving License must meet the

conditions as referred to in Article 81

paragraph (3) and paragraph (4)."

Article 84 states:

"A Driver's License for a Motor Vehicle

may be used as a Motor Vehicle

Driver's License whose weight is equal

to or lower, as follows:

a. A General Driver's License may apply to

driving a Motor Vehicle that is

supposed to use a Driver's License;

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1865

b. Driver's License B I can apply to drive a

Motor Vehicle that is supposed to use

Driver's License A;

c. General B I Driver's License can be valid

for driving Motor Vehicles;

b. who should use Driver's License A,

General Driver's License A, and Driver's

License B I;

a. A B II Driver's License can be valid for

driving a Motor Vehicle that is

supposed to use both Driver's License

A and Driver's License B I; or

b. A General B II Driver's License can

apply to driving a Motor Vehicle that is

supposed to use a Driver's License A, a

General Driver's License, a B I Driver's

License, a General B I Driver's License,

and a B II Driver's License."

Article 85 states:

(1) Driver's License in the form of an

electronic card or another form;

(2) Driver's License is valid for 5 (five) years

and can be extended;

(3) The Driver's License as referred to in

paragraph (1) is valid throughout the

territory of the Unitary State of the

Republic of Indonesia;

(4) If there is a bilateral or multilateral

agreement between the Unitary State

of the Republic of Indonesia and

another country, a Driver's License

issued in Indonesia may also be valid in

another country and a Driver's License

issued by another country is valid in

Indonesia.

(5) Holders of a driver's license as referred

to in paragraph (4) can obtain an

international driver's license issued by

the National Police of the Republic of

Indonesia."

Article 86 states:

(1) A driver's license serves as proof of

driving competence.

(2) The Driver's License serves as a Motor

Vehicle Driver registration containing

the Driver's complete identity

information.

(3) Data on Driver registration can be used

to support police forensic

investigation, investigation, and

identification activities."

Article 87 states:

(1) A Driver's License is issued to every

prospective Driver who passes the

driving exam;

(2) Driver's License as referred to in

paragraph (1) issued by the National

Police of the Republic of Indonesia;

(3) The National Police of the Republic of

Indonesia must organize an

information system for the issuance of

driver's licenses;

(4) Every officer of the National Police of

the Republic of Indonesia in the field of

issuance of a Driver's License as

referred to in paragraph (2) must

comply with the procedure for issuing

a Driver's License.

Article 88 states:

"Further provisions regarding the

procedures, requirements, testing, and

issuance of driver's licenses are

regulated by the regulations of the

Chief of Police of the Republic of

Indonesia."

The provisions presented above

indicate that a driver's license is proof

of a person's competence to become a

motor vehicle driver. Only measurable

competence according to the type of

driver's license obtained is normatively

seen as a condition to ensure road

safety guarantees. Even though you

already have a driver's license but

driving a motor vehicle is not by the

type of driver's license, it is considered

an act that drives a motor vehicle with

no competency requirements, so it

does not guarantee safety when

driving. From the driver's side, a

driver's license should be viewed as a

legal instrument to ensure road safety,

so allowing the driving of a motor

1866 | Measuring The Legal Consistency of Special Rental Transport

Licensing

vehicle without having a license or

having a license but not being used by

the vehicle being operated, is the same

as allowing a road safety threat to

occur. Allowing violations of the law to

occur without any consistent effort to

enforce the law, is a form of violation

of the law because it neglects the legal

obligations attached to its position.

In PM 118 of 2018 there is no

regulation on the type of driver's

license for ASK drivers, but because

ASK is public transportation for people

with public motor vehicles, the

provisions regarding the terms and

types of ASK driver's licenses are

subject to the provisions of Article 77

paragraph (1) and paragraph (2) letter

b and Article 82 letter b of UULLAJ,

each of which reads as follows:

Article 77 paragraph (1) and paragraph (2)

point b states:

"(1). Every person driving a Motor Vehicle

on the road shall have a Driving License

by the type of Motor Vehicle being

driven;

(2). Driver's License as referred to in

paragraph (1) consists of 2 (two) types:

a. Individual Motor Vehicle Driver's

License; and

b. General Motor Vehicle Driver's

License."

Article 82 letter b states:

"Driver's License for General Motor

Vehicles is classified into:

a. A General Driver's License is valid for

driving passenger cars and general

goods with an amount of permissible

weight not exceeding 3,500 kilograms.

b. General B I Driver's License is valid for

driving public motor vehicles and

goods with an amount of permissible

weight of more than 3,500 kilograms.

c. General B II, Driver's License is valid for

driving a towing vehicle or by motor

vehicle by pulling an outboard cart or

trailer with a permissible weight for an

outboard cart or trailer of more than

1,000 kilograms."

Based on these provisions, ASK drivers

should have a General A Driver's

License, or General B I, depending on

the type of vehicle operated, but in

reality, ASK drivers only have a regular

A driver's license, not a General A

driver's license. ASK drivers who do not

have a General A or General B I Driver's

License are threatened with criminal

sanctions as stipulated in Article 281 of

the LLAJ Law which states:

"Every person who drives a motor vehicle

on the road who does not have a

Driver's License as referred to in Article

77 paragraph (1) shall be punished

with a maximum imprisonment of 4

(four) months or a maximum fine of

Rp.1,000,000,-".

The observance of these sanctions is not

accompanied by consistent and fair

law enforcement efforts.

CONCLUSIONS

That the regulation of the requirements

for business entity licenses, vehicle periodic

test requirements, and ASK Driver

requirements in PM 118 of 2018, is different

from the requirements applicable to the

transportation of people not on other

routes as stipulated in PM 117 of 2018.

The difference is a form of

discriminatory legal treatment legitimized

by the law itself, resulting in inconsistencies

that result in the injury to legal certainty

and justice in the implementation of

transportation of people, not on the route

in general.

Syamsuddin Baco

Nurhayati Sutan Noko'e

Sulwan Pusadan

Suarlan Datupalinge

Darwati

| 1867

In addition, the license of the business

entity that organizes ASK, Permit or proof

of passing the Periodic Test and Driver's

License is a legal instrument that can

ensure the fulfillment of security and safety

aspects of the implementation of

transportation of people by public motor

vehicles on the road. So when this aspect of

licensing is neglected, ASK becomes a

threat to the security and safety of

passengers, drivers, other road users, and

other third parties.

Waiver of ASK licensing requirements

as public transportation of people with

public motor vehicles, as regulated in

UULLAJ and PP Number 74 of 2014, as a

form of the inconsistency of PM 118 of

2018 norms against UULLAJ norms and PP

Number 74 of 2014.

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