The Consitution Court conducted a trial on Act No. 31 Year 2007 on the Forming of Tual City in Maluku Province towards 1945 Constitution, Tuesday (18/12) in The Constitution Court Room. The Panel Trial for Early Examination to the petition was led by Constitution Justice I Dewa Gede Palguna altogether with H.A.S Natabaya and H. Harjono as Case Panel members. The Case registered on Friday (7/12) with the No. 31/PUU-V/2007 was filed by KEI (NUHU EVAV) CUSTOMARY LAW COMMUNITY (RAT/ORANGKAY).

Through thier Legal Counsel, H. SUPRIYANTO REFA, S.H., M.H. and partners, the petitioners considered the Act on The Forming of Tual City in terms of Its Formal or Material aspects violated Article 18 Paragraph (1), 18B Paragraph (2), Article 20 Paragraph (1) 1945 Constitution. The Petitioners felt that by the existence of the Act a quo have damaged the constitutional rights of the petitioners, because the making of the Act did not fulfill the regulation on Article 18 Paragraph (1) 1945 Constitution and Act No. 32 Year 2004 on Provincial Government. The petitioners also argued that there was no agreement from Head of Southeast Maluku Regency, the agreement from The Provincial Parliament was not based on the aspirational statement of the people of Southeast Maluku Regency, or in other words there had never been a request for people’s aspiration regarding the intention behind the expantion of Southeast Maluku Regency and the approval from Maluku Province Governor was not based on the result of a regional research conducted by a special team.

The Petitioners as The Customary Law Community claimed to have the Ulayat Right or the Traditional Right on Land Ownership and Territory in all area of Southeast Maluku Regency, hence they had their own interest in the expantion of the regency area. Th petitioners also considered that they were the customary law community who were genealogically a decendant with the traditional rights on the land ownership which was possessed communally. Because of that, it was the constitutional rights of the petitioners to preserve the ulayat right and the cultural power territory possessed by the petitioners as mandated by the Article 18B Paragraph (2) The Second Ammendment of 1945 Constitution.

Furthermore, according to the Petitioners, the State should give acknowledgement and law protection over the land, the territory and the resources possessed by the customary law community as a united form of realization of the State’s acknowledgement over the culture, tradition and the land utilization system of the customary law community that lived on the area. Such acknowledgement and law protection conducted by the State towards customary law community was the obligation of the State as arranged in 1945 Constitution that should be fulfilled.

On the petition, the Head of The Justice Panel I Dewa Gede Palguna advised the petitioners to clarify the legal standing of the Petitioners. “Is it true that the Petitioners are the customary law community as described in the Article 51 Paragraph (1) Act on Contitution Court. It should be made clear the difference between the traditional people and the customary law community. Because not all traditional people belong to the customary law community. Therefore, the Petitioners should include the qualification requirements as regulated in the Act,” explained Palguna.

Along side with that, Constitution Justice  H. Harjono advised the Petitioners to explain in more detail about the Customary Law Community of the Petitioners itself. It was due to, according to H. Harjono, convincing the Justice Board that the customary law community mentioned by the Petitioners was really exist, and not only based on the opinion in the Petition. “How can we know that they are the customary leaders without any explanations in the petition” he asked rhetorically.

Meanwhile Constitution Justice Natabaya reminded the Petitoners that the Formal exercise towards the forming process of an Act was related to the requirement of Law making process. “A formal trial of an Act was conducted if the Act mentioned did not fulfill the reqirements of the making process, for example (in the Act on regional Expantion) there should be an approval from the Provincial Parliamentand the recommendation from the Minister of Home Affairs. Nevertheless, if the requirements – apart  from whether or not there was an aspiration of the people – then the Act could not undergo a formal exercise,” he explained. In the Petition, the Petitioners claimed that the process of the forming of the Act on Tual City was law defected as it did not conider the aspiration of local customary community. Even though so, in the process, the forming of Act on Tual City had received the approval from the Provincional Parliament of Southeast Maluku Regency also had received a recommendation from the Minister of Home Affairs.

On the advices given, the Constitutional Justice Panel Board gave 14 (Fourteen) days to the Petitioners to revise the Petition. “if it is not revised, or if it goes beyond the time limit, then this request will be the one to be checked by theJustice Board,” added Palguna as he closed the trial. [sri agus monica/ardli/Yogi]