GOVERNMENT: A COOPERATION CONTRACT (KKS) IS NOT AN INTERNATIONAL TREATY
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The Cooperation Contract (KKS) for the production sharing of exploration and exploitation results of natural resources entered into by the government through the Executive Agency for Upstream Oil and Natural Gas Activities (BP Migas) with foreign contractors constitutes a contract within the domain of civil law. Although entered into between the government and international companies, such contract constitutes a form of commercial relationship between the government and foreign companies. Therefore, such KKS does not belong to the category of international treaties as referred to in Article 11 of the 1945 Constitution, so that the Government does not have the obligation to request for the approval of the People’s Legislative Assembly (DPR) in entering into the KKS.

 

The foregoing statement was conveyed by the Minister of Energy and Mineral Resources, Purnomo Yusgiantoro, when presenting the written statement of the Government during the hearing for judicial review of Law Number 22 Year 2001 concerning Oil and Natural Gas (the Oil and Gas Law), on Wednesday (19/9) in the courtroom of the Constitutional Court (the Court). According to Purnomo, the term “International Treaty” as intended by Article 11 of the 1945 Constitution refers to international treaties as intended in the Vienna Convention of 1969 and 1986 on International Treaties with the legal subjects being states and international organizations. “Such International Treaty must be interpreted as the authority of the President as the head of state in connection with the foreign politics and other countries,” explained Purnomo.

 

Previously, the Petitioners for judicial review requested the Panel of Constitutional Court Justices to declare Article 11 Paragraph (2) of the Oil and Gas Law contrary to Article 11 Paragraph (2), Article 20A Paragraph (1) as well as Article 33 Paragraph (3) and Paragraph (4) of the 1945 Constitution and to declare the substantive content of such provisions as having no binding legal effect with all legal consequences thereof.

 

The Petitioners for judicial review of Oil and Gas Law who are also members of the People’s Legislative Assembly of the Republic of Indonesia (DPR RI), consider that Article 11 Paragraph (2) the Oil and Gas Law which provides, “Every Cooperation Contract which has been signed must be notified in writing to the People’s Legislative Assembly of the Republic of Indonesia” contrary to the 1945 Constitution, because such provision has caused the Government c.q. BP Migas to only have the obligation of notifying the DPR of every KKS for the production sharing of exploration and exploitation of natural resources entered into with contractors, especially foreign contractors. According to the Petitioners, the application of such provision has caused them, as Members and/or part of DPR-RI, to lose the constitutional right to give an approval or not to give an approval on any such KKS.

 

In relation to the position of the Petitioners as DPR members, Purnomo considers that the Petitioners have indicated inconsistent and ambiguous actions. On the one hand, the Petitioners are a part of a body authorized to make and ratify laws, the legislative function, while on the other hand, they question their own legislation products. “The Petitioners’ filing the petition for the cancellation of the a quo provision is just like intending to cancel their own decision,” he affirmed.

 

Furthermore, in view of the status of the Petitioners as DPR members, Purnomo also considers that the legislative review mechanism is more appropriate for the Petitioners to pursue instead of a judicial review or constitutional review. "Of course, this would have been significantly different if the status of the Petitioners had been as common citizens or Indonesian Citizen Individuals," he added.

 

In addition, Purnomo stated that the Government considers that the aforementioned provision in the Oil and Gas Law does not in any way impede or impair the supervisory or controlling function of DPR since it can still exercise control through the mechanism of work meetings, and the right of inquiry or the right of interpellation in the event it considers that the Government has made any mistake in the KKS arrangement.

 

Closing his explanation, Purnomo requested that the Chief Justice and the Panel of Constitutional Court Justices to reject the Petitioners’ petition or at least to declare that it can not be accepted. “However, in the event that the Chairman of the Panel of the Constitutional Court Justices is of a different opinion, the decision is requested to be made as wisely and fairly as possible,” he concluded.

 

Something Fairer

Responding to the Government’s statement which recommends the Petitioners to pursue a legislative review instead of a judicial review, Zainal Arifin, one of the Principal Petitioners, considers that the legislative review process is time consuming and will ultimately be determined by majority votes. “We pursue a judicial review to seek something which fairer,” he added.

 

Meanwhile with respect to the question of the Constitutional Court Justice Achmad Roestandi who considers that the 1945 Constitution has specifically distinguish the right of DPR as an institution and the individual right of DPR members, the other Principal Petitioner, Hendarso Hadiparmono considers that the existence of an institution will function only if it has members, without which it will be impossible for the institution to function. Therefore, according to Hendarso, if the rights of its members are reduced, DPR itself will not have any authority that it should have.

 

Before closing the hearing, Chief Justice of the Constitutional Court, Jimly Asshiddiqie as the Chairman of the Panel of Constitutional Court Justices reminded the Petitioners and the Government to present experts, if any, who really understand the law on international treaties. The Chief Justice also asked the Petitioners and the Government to present experts that can explain the issue of legal standing, particularly as practiced in other countries. According to the Chief Justice, this is due to the fact that this case has been the first of its kind to be filed with the Constitutional Court of the Republic of Indonesia by individual citizens that are also DPR members. [ardli]


Wednesday, September 19, 2007 | 18:42 WIB 331