R

ecently, a mezzanine floor inside the Indonesia Stock Exchange (IDX) Tower 2 building in Jakarta collapsed, injuring 77 people.

How could a part of such a renowned and luxurious building collapse so suddenly? What are the facts about the management or the construction of the building? Laymen normally raise these types of questions. We have to admit that only a small number of people understand how to construct and manage a building to ensure the safety of its users.

The collapse led the Indonesian Engineering Union to carry out an analysis of the building. Concurrently, the Indonesian Consumers Foundation (YLKI) called on the authorities to investigate the management of the IDX building.

They suspect that the building management has not been conducted properly (as cited in The Jakarta Post’s news portal, accessed on Jan. 23). I myself have used that mezzanine floor several times.

Questions arise, who is responsible for such a collapse? Would it be the architect, contractor, supervisor or the property manager? Would this negligence be considered a criminal offense or unlawful act?

There is a specific term used to describe an event such as a collapse of the floor of a building. It is called building failure. The term has been defined by several regulations. Under the 1999 Construction Services Law, building failure was defined as a situation where a completed building becomes non functional, either partly or wholly, or which does not comply with the provisions under the construction contract.

The latest law in 2017, which superseded the 1999 law, stipulates that building failure means a building collapse and/or a building becoming non functional, after the completion of construction. The 1999 law emphasized the non functionality, whereas the 2017 law emphasizes both non functionality and building collapse.

Despite the promulgation of the 1999 law, which strictly defined the meaning of building failure, the Civil Code (KUH Perdata) has also long regulated such provisions.

The code stipulates that if a building contracted and constructed for specific considerations, entirely or partly collapses as a result of a defect in its construction or because of the unsuitability of the land, then the architects and contractors shall be liable for a period of 10 years.

The 1999 and 2017 laws adopted this 10-year responsibility period. The KUH Perdata underlines that architects and contractors should bear the liability of building failure. Further, the law also stipulates that the owner of a building is responsible for the damage caused by an entire or partial collapse of that building, if it occurs as a result of a neglect in maintenance or as a result of a flaw in its construction or its organization.

From both provisions, one can understand that a building owner is essentially responsible for a building failure. There are limitations though.

The 10-year period commencing after the final delivery of work will be the responsibility of the service provider (e.g. architect or contractor) as long as the building owner assigns the architect and contractor to design and construct his building.

The building owner/user will then bear the liability after the lapse of the 10-year period. This provision is not interpreted strictly. One has to understand that a building failure can also be caused by neglect in maintenance, even during the 10-year period.

If this is proven, then it would be improper to seek liability from the architect or building contractor.

The 1999 and 2017 laws both stipulate that an expert appraiser is the party who has the authority to determine a building failure. These experts will have the role of, inter alia, determining the cause of building failure and determining the party responsible for a building failure.

The law further stipulates that either the service provider or building owner/user shall be liable for compensation in relation to a building failure.

Compensation for losses is not the only remedy for building failure. Under the 1999 law, building failure could be punished with five years’ imprisonment or penalties according to contract value.

The 2017 law deleted this criminal provision. Its intention is to work out the administrative sanctions and civil aspects if there is a dispute among the parties.

Despite this deletion, it does not mean that there are no criminal provisions applicable to a building failure.

They are regulated under the 2002 Building Law and the Criminal Code (KUHP).

The KUHP has even stronger provisions, namely a maximum seven-year prison sentence if a contractor is found to have cheated when constructing a building that could endanger people or property. The supervisor of a building’s construction faces the same criminal provision.

Discussion of building failure is not straightforward. Declaring that a building failure has occurred may be easy but finding the root cause is surely harder. Let us hope that the panel of experts will find this. We also expect that executives will rigorously supervise the construction and management of a building, not only in Jakarta, but especially outside the capital.
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