Article 11 Sub-Article (2) of Law Number 22 Year 2001 on Oil and Gas (Oil and Gas Law) which provides that “Every Production Sharing Contract which has been signed must be notified in writing to the People’s Legislative Assembly of the Republic of Indonesia” is considered to be contradictory to the 1945 Constitution. As a consequence of the aforementioned provision, the Government, in this case BP Migas, is only obligated to notify the House of every Production Sharing Contract (KKS) with regard to the profit sharing from natural resources exploration and exploitation made with the contractors, particularly foreign contractors. 

The abovementioned statement was conveyed by Januardi S. Haribowo, S.H., the Petitioners' attorney while reading out the petition for the judicial review of Article 11 (2) of the Oil and Gas Law against the 1945 Constitution on Wednesday (1/8) in the courtroom of the Constitutional Court (MK), Jakarta. The petitioners for this judicial review are several members of the House, namely Zainal Arifin, Sonny Keraf, Alvin Lie, Ismayatun, Hendarso Hadiparmono, Bambang Wuryanto, Dradjad Wibowo, and Tjatur Sapto Edy.

The petitioners consider that the 1945 Constitution requires the Government to ask for the House’s approval for making an international agreement insofar as such international agreement has extensive and fundamental consequences for the life of the people which are related to burden of the state finance. According to the Petitioners, Production Sharing Contracts for natural resources exploration and exploitation are within the category of other international agreements as intended in Article 11 Sub Article (2) of the 1945 Constitution. According to the Petitioners, the absence of the House’s approval has caused the loss and the impairment of the Petitioners’ constitutional rights as members of the People’s Legislative Assembly for supervising the implementation of Indonesian natural resources management.

“Since it is only a notification, the House cannot supervise Production Sharing Contracts from the beginning of its drawing up so that the House cannot monitor the natural resources management controlled by the state. As a consequence, Production Sharing Contracts fail to give the maximum benefits for the people’s prosperity and welfare,” said Januardi.

Responding to the abovementioned petition, Constitutional Justice Prof. Dr. H.M. Laica Marzuki, S.H. who chaired the panel session raised a question as to why the Petitioners as members of the House argued about the Oil and Gas Law which is actually a product of the House. “If they intend to continue the filing of the petition, it is better for them not to use their status as members of the House,” Laica advised.

Meanwhile, Constitutional Justice Dr. Harjono, S.H. asked the Petitioners to maintain a consolidation with the House as an institution considering that in the judicial review of a law, the House as the law making body will certainly be presented in the court. According to Harjono, it must be done to avoid different perceptions among members of the House when they are being presented in the court. He also gave the Petitioners an advice to pay attention to Law Number 24 Year 2004 on International Agreement to obtain uniform definition of “other international agreements” as intended in Article 11 Sub Article (2) of the 1945 Constitution.

Another member of the Panel of the Constitutional Justices, Lieutenant General (Ret.) A. Roestandi, S.H., also asked the Petitioners to clarify their status in this petition for judicial review whether as members of the House or as individuals. Justice Roestandi also reminded that the 1945 Constitution also recognizes the difference between the rights of the House as an institution and the rights of the members of the House. Meanwhile, Article 11 Sub-Article (2) of the 1945 Constitution used by the Petitioners as the basis of their arguments provides for the rights of the House as an institution, not the rights of the House members. Roestandi also give the Petitioners an advice to reconsider their petition. Because if the petition is granted, it will imply that every Production Sharing Contract (KKS) must be approved by the House. “Wouldn’t it be a hindrance? We know how complicated the House is,” he concluded. [ardli]