Analysis of the Rule of Law and the Decision of the Constitutional Court on the Governance of the Country's Electricity Business

Abstract

Indonesia's constitution related to the economy limits the practice of liberalization to essential commodities in the form of the provision of electricity. The regulatory dialectic that leads to privatization and power wheeling has been expressly canceled by the Constitutional Court through Decision Number 39/PUU-XXI/2023. However, the centralization of electricity operational authority in the hands of the state after the decision triggered a new vulnerability, namely the vulnerability of the National Strategic Projects (PSN) of electricity to contract manipulation and corruption. Based on Law Number 30 of 2009 in conjunction with Government Regulation Number 23 of 2014, the existing administrative supervision instruments have proven to be inadequate to mitigate losses in projects worth trillions of rupiah preventively. This study aims to examine in depth the operational design of the Prosecutor's Office law enforcement intelligence—based on Law Number 11 of 2021—as a framework for complementary legal rules to ensure the governance of the country's electricity business. Using normative legal research methods based on the Welfare State Theory and the Theory of Authority, this study found that to secure electricity PSN, a shift in supervision towards preventive justice is needed. The execution of the Strategic Development Safeguard (PPS) by the Prosecutor's Office is legally operating in the pre-design phase to neutralize malicious intent (mens rea), so that clean and sovereign electricity governance can be realized.