Cited from the abstract of my research dissertation: "Public Private Partnership Model: Study of the Implementation of Build Operate and Transfer (BOT) Contract in Toll Road Concession Agreement in Indonesia" (Postgraduate Program Faculty of Law University of Indonesia).
ABSTRACT:
This dissertation examines how the
government of Indonesia implements the concept of build operate and transfer (BOT) contract model upon partnership
between government and private sector or public private partnership (PPP),
of which entered into the toll road concession agreement after the government
promulgated Law No. 38 year 2004 concerning the Road (Law No. 38/ 2004) as new
law which replaced the previous law. Data collected shows that total as built
section roads refer to new law only 131,35 Km long compared with previous law
which built as 610,62 Km long. Private sector was very small in participation
as well with approximately 25% (twenty five percent) only from which the remain
with approximately 75% (seventy five percent) operated by Jasa Marga as
government enterprise. Notwithstanding that government had issued the
regulations to support the development of infrastructure included toll roads,
many obstacles could be seen such as: increasing of land price, land status
which owned by government legally but of which financed by private investor, land
acquisition, and there are many toll road sections are economic worthiness but
not financial worthiness. However, the basic problem of which, the article 33
(2) of Indonesian Constitution (UUD 1945) stipulated that infrastructure as one
of part of product (goods and services) that is very important for State and
dominate the social lives are under authority of State. These could be showed
from the pattern of investments where the land acquisition financed by private
investor but then owned by the government legally. Theoretically, such patterns
bring the toll road infrastructure as public goods whilst the concept of BOT
contract model theoretically as private goods. This dissertation make an
attempt to give a solution by making the legal structure where the toll road
infrastructure contract model remain as private goods but do not release the
status as public goods, of which by giving to private investor the right of land
use (Hak Pakai) upon the management right of land (Hak Pengelolaan) authorized by
Kementerian Pekerjaan Umum Republic of Indonesia, by giving such the right of land during the
concession period to private investor,
then the toll road infrastructure status could be as private goods, of
which could be transferred, rent or put as collateral in debt
financing (Hak Tanggungan), but it keeps its public dimension, where the Government
(State) still have the right of authority through Hak Pengelolaan.
(Dr. Iwan E. Joesoef, SH., Sp.N., M.Kn).
