JUDICIAL REVIEW OF THE INVESTMENT LAW
Image


The Constitutional Court held a hearing for case No. 21/PUU-V/2007 for the judicial review of Law No. 25 Year 2007 concerning Capital Investment (Investment Law) against the 1945 Constitution on Thursday (2/8) at the Courtroom of the Constitutional Court, which was scheduled for preliminary examination.

 

The petition was filed by eleven non-government organizations, including the Legal Aid and Human Rights Association (PBHI), the National Farmers' Union (STN), Jabotabek Labor Union Federation (FSBJ), the Indonesian Farmers' Alliance (API), Sadawija Village Development Foundation (YBDS), Women Solidarity Union (PSP), Indonesian Farmers' Union Federation (FSPI), the Indonesian Forum for the Environment Foundation (WALHI), the Agrarian Reform Consortium (KPA), the Indonesian Voice for Human Rights (SHMI) and the Small Business Woman Assistance Association (ASPPUK).

 

In the petitum, the Petitioners request the Panel of Constitutional Court Justices to declare that Article 2, Article 3 Paragraph (2), Article 4 Paragraph (2), Article 12 Paragraph (1), Article 8 Paragraph (1), Article 10 Paragraph (2), Article 18 Paragraph (4) and Article 22 of the Investment Law are contradictory to Article 33 Paragraph (2) and Paragraph (3), Article 27 Paragraph (2) and Article 28C of the 1945 Constitution, as well as to declare that they have no binding legal effect.

 

In the explanation of their petition, the Petitioners who are represented by their Attorneys, Ecoline Situmorang, S.H., cs., stated that in order to attract investors, various privileges have been given by the Investment Law, including various tax facilities, the granting of Right of Cultivation for 95 years period at one time, unrestricted capital flow regardless of time and place, as well as the freedom from the threat of nationalization. Meanwhile, capital investment has also incurred external costs in the forms of thousands of on-going land-related conflicts, Human Rights violations, environmental degradation and impoverishment, which have not been at the least considered in the formulation of the Investment Law by the Government and the People's Legislative Assembly of the Republic of Indonesia.

 

In this Investment Law, the Petitioners added, investment as a support for the development has been merely treated as a process of economic growth, and it bears many flaws since it ignores equal distribution of income so as to increasingly widen the gap between the rich and the poor. On the other hand, the majority of Indonesian people is still poor and has no access to natural resources, health, education and other public services. These issues are deemed by the Petitioners as contradictory to the constitution and a digression from the goals of the national economic development, which is based on democratic values or Pancasila-based economy.

 

With respect to this petition, the Chairman of the Panel of Justices, Dr. H. Harjono, S.H., MCL. said that the Petitioners' petition still lacks of focus since in their petition the Petitioners also question and compare the existence of the Investment Law with the Agrarian Law as well as the Forestry Law. Mr. Harjono hoped that the Petitioners would focus on the judicial review of the Investment Law against the 1945 Constitution. "Otherwise, it would mean that the Constitutional Court must also review the Agrarian Law and the Forestry Law while the petition has been filed for judicial review of the Investment Law," remarked Harjono.

 

Meanwhile, Panel Member Prof. Dr. H. M. Laica Marzuki, S. H. thought that the petition is loaded with academic drafts, while the Petitioners' legal standing is still absurd. The Petitioners failed to provide a detailed explanation about constitutional impairments that they have suffered due to the enactment of the Investment Law. "Without any constitutional impairment, there will be no petition," explained Laica Marzuki.

 

Panel Member I Dewa Gede Palguna, S.H., added that the Petitioners are required to provide a detailed explanation of their respective constitutional impairment because according to the characteristics of their institutions, each of the Petitioners would certainly have different constitutional impairments. Palguna also added that that the Petitioners must refer to Article 51 of the Constitutional Court Law which sets forth the criteria for the parties to qualify as petitioners filing a petition for judicial review to the Constitutional Court.

 

As to the focus of the petition, Palguna suggested that the Petitioners elaborate more on their petition for judicial review based on Article 33 of the 1945 Constitution and not to refer to too many facts, since the Constitutional Court is supposed to review norms, not facts. "For further examination, we give a maximum time frame of 14 days for the Petitioners' revised petition to be submitted to the Registry Office of the Constitutional Court," said Palguna.

 

In response to the suggestions from the Panel of Justices, the Attorney of the Petitioners, E. Sihaloho, S.H. agreed to revise the petition. During the hearing, students staged a demonstration at the front yard of the Constitutional Court, rejecting the application of the Investment Law. (Wiwik Budi Wasito).


Thursday, August 02, 2007 | 12:40 WIB 283