The Constitutional Court conducted a trial on Act No. 36 Tahun 2003 on the Forming of Samosir Regency and Serdang Bedagai Regency in North Sumatra Province (Act on Samosir) on Wednesday (13/2), with the agenda of Initial Examination.

The case No. 4/PUU-VI/2008 was filed by O.K. Dirhamsyah Tousa as the legal counsel acting for and in the name of Garang Damanik dkk. As a member of Union of East Batak Customary People in Serdang Hulu. In this case the Petitioners was filing a request both formally and materlially of the Act a quo by considering that the existence of Act No. 36 Tahun 2003 had damaged their constitutional rights because it violated the Article 1 Paragraph (3), Article 18 Paragraph (1), Article 27 paragraph (1), Article 28 paragraph (4), Article 32 paragraph (1) of the 1945 Constitution.

According to the Petitioners, formally the making process of the Act a quo was law defect by disregarding people’s aspiration. The Petitioners considered that in the expansion process of Deli Serdang Regency to be Deli Serdang Regency (core) and Serdang Bedagai Regency, people’s aspiration wanted to have 10 sub-districts and not including Kotarih Sub-district and Galang Sub-district (partial) and Bangun Purba Sub-district (partial). Nevertheless the Provincial Parliament of North Sumatra issued a Decree No. 26/K/DPRD/2003 among other contained the stipulation to include the other three Sub-districts. This thing, according to the Petitioners, was considered as an arbitrary action and as showing Governmental arrogance.

Besides that, materially especially in Article 4 letter k, l, m and Article 6 paragraph (2d) also appendix II of the Act No. 36 Year 2003 had also caused damages in many aspects. Economically, according to the Petitioners, they had to go further to reach the capital of Serdang Bedagai than it used to when it was still in Deli Serdang. “Ironically to go to Sri Rampah (capital of Serdang Bedagai ed.) we have to go to Lubuk Pakam (capital of Deli Serdang ed.) first” explained Dirhamsyah.

Besides that the Petitioners felt some loss in the educational aspect because the elementary school graduates from that area had to compete with students from Serdang Bedagai Regency to study in a school with good quality which were not many.

In the Petitum the Petitioners asked the Constitution Justice Board to state that the making process of the Act a quo and also materially Article 4 letter k, l, m and Article 6 paragraph (2d) also appendix II of Act a quo violated the 1945 Constitution and did not have a binding legal power.

After listening to the Petitioners, Justice Panel Board chaired by Constitution Justice I Dewa Gede Palguna, S.H M.H. gave some advices related to the Petitions. First thing that should be explained further by the Petitioners were the legal standing. The Petitioners should define whether they were a Customary Law Community or a group of individuals because the constitutional rights of an individual were different from the constitutional rights of The Customary Law Community. ”Does a Customary Law Community have a right on education? For instance” explained Palguna.

Furthermore, Palguna explained that the constitutional rights were the rights included in the 1945 Constitution. Meanwhile the reason of the Petitioners related with the distance to the capital of Serdang Bedagai was not considered as one of the constitutional rights by the youngest Justice in the Constitutional Court. ”For example, in the expansion of Singkawang City, people’s loss from the distance matter could not be used as reason because even though the area was closer to Sabah, it was still a part of West Kalimantan.” He explained.

While the Constitution Justice Prof. H.A.S. Natabaya, S.H., LLM. said that the 1945 Constitution did not recognise the words Union of Customary People like the Petitioners mentioned in the file. Hence, the Petitioners could be recognized as a group of individuals not Customary Law Community.

To overcome the problem on the use of legal terms and the meaning, Constitution Justice H. Achmad Roestandi, S.H. suggested that the Petitioners to be accompanied by a legal counsel. “It is better that you try to be accompanied by a lawyer, especially (the one) that understands constitutional laws because not all lawyers understand that,” he advised.

In the second trial which is going to be held in 14 days later, the Constitutional Justice Board expected the file had been fixed. (Yogi Djatnika)