Teguh Pamuji, Expert Staff of the Ministry of Energy and Mineral Resources (ESDM), during the Hearing for Judicial Review of Law Number 4 Year 2009 regarding Mineral and Coal Mining (Minerba Law) on Wednesday (27/10).
Jakarta, MKOnline – The hearing for judicial review of Law Number 4 Year 2009 regarding Mineral and Coal Mining (the Minerba Law) was once again held by the Constitutional Court (The Court) on Wednesday (27/10) morning in the Plenary Session room of the Constitutional Court. The agenda of the hearing was to hear the statements of the Government and the House of Representatives (DPR). However, this time DPR was not present in the hearing.
In the Special Panel chaired by Constitutional Court Justice Achmad Sodiki, the Petitioners were represented by their attorneys. There were three Petitioners each with a different case number namely: Petitioners in case number 25/PUU-VIII/2010, case number 30/PUU-VIII/2010, as well as case number 32/PUU-VIII/2010. Some of the Petitioners were miners, mining organizations as well as Non-Government Organizations (NGOs). They were, among others: Fatriansyah Aria, Fahrizah, APTI, ASTRADA of Bangka Belitung Islands, WALHI, PBHI, KPA, KIARA, Women’s Solidarity, Nur Wenda cs.
In their petition, the Petitioners in substance stated that several articles of the Minerba Law tend to benefit foreign investors as well as big investors. Meanwhile, community miners or small capital miners were less or even not guaranteed or protected by the Minerba Law in order to be able to run their business in a fair manner. Therefore, the Petitioners considered the Minerba Law discriminatory.
Dharma Sutomo, one of the Petitioners’ attorneys (case no. 30), conveyed that the Minerba Law contained requirements which were impossible for the miners (with small capital) to meet. “Such requirements are not realistic or rational,” he ended. One of the stipulated requirements was the ownership of a minimum of 5 thousand hectares. In practice, these provisions were very hard for the miners with small capital to fulfill.
According to the Petitioners, at least Article 6 paragraph 1 sub-paragraph e jo Article 9 paragraph (2); Article 10 sub-article b; Article 22 sub-article f; Article 38; Article 52 paragraph (1); Article 55 paragraph (1); Article 58 paragraph (1); Article 61 paragraph (1); Article 75 paragraph (4); Article 172; as well as Article 173 paragraph (2) of the Minerba Law had contradicted the Constitution, especially the articles related to the protection of Human Rights and (HR) and economic justice.
The other attorney of the Petitioners (case no. 32), Asep Yunan Firdaus, stated that the articles of the Minerba Law had allowed for the elimination of constitutional rights of the citizens. “Such articles potentially impair the rights which the constitution has guaranteed,” asserted Asep who was the Head of the Advocacy Team for Environmental Right.
Principle of Participation
On the contrary, in its statement, the Government stated that the regulation in the Minerba Law were in fact included to protect small/people’s businesses as well as to guarantee legal certainty. According to the Government, in terms of business competition, the Minerba Law had provided an equal and fair position for both small and big entrepreneurs. “One of the principles in the Minerba Law is participation,” stated the Government. The Government also stated that “It has been opened to the greatest extent in accordance with the stipulated requirements.”
Similarly, the issue is also related to tender in mining area management. According to the Government, the tender system was not at all intended for preventing or positioning small entrepreneurs face to face with big entrepreneurs. In addition, it was worth noting, continued the Government, that mining business was a highly risky business requiring no small capital. “One of the solutions is that small business entities can merge their businesses “against’ big businesses,” conveyed one of the spokespersons of the Government. “Mining business indeed involves high risk and high technology,” he asserted.
On that occasion, the government received many questions from the Panel of Justices. The Constitutional Court Justices highlighted several provisions in the Minerba Law considered to have more benefited foreign entrepreneurs and big investors. “It tends to be neoliberal,” conveyed Constitutional Court Justice Arsyad Sanusi when asking for an explanation from the Government. (Dodi/mh).
Wednesday, October 27, 2010 | 12:26 WIB 211