Petitioners Counsels after the decision reading session for case number 232/PUU-VII/2009 concerning the review of Article 172 of Act 4/2009 about the Mineral and Coal Mining (Act on Mining) on Wednesday (9/3/2011) at the Plenary Courtroom of the Constitutional Court.
Jakarta, MKOnline - The Petitioners failed to prove the injury on their constitutional rights so long as the phrase pleaded by the Petitioners. Thus the Petitioners’ lawsuit was unproven and unreasonable legally.
That was the decision of the Constitutional Court (The Court) in a decision reading session for case number 121/PUU-VII/2009 about the review of Article 172 of Act 4/2009 about Mineral and Coal Mining (Act on Mining) on Wednesday (9/3/2011) at The Court’s Plenary Courtroom. In the verdict, The Court stated to reject the Petitioners’ petition in its entirety.
The Petitioners for this case were Nunik Elizabeth, Yusuf Merukh, Pukuafu Indah Company, Bintang Purna Manggala Company, Lebong Tandai Company, Merukh Ama Coal Company and Merukh Lores Coal Company. The Petitioners gave a mandate to Hamdan Zoelva, Januardi S. Hariwibowo, R.A. Made Damayanti Zoelva, Wisye Hendrarwati, Abdullah and Erni Rasyid who were all advocates in Zoelva & Januardi Law Firm.
The Petitioners, as individuals and legal entities, argued that Article 172 of Act 4/2009 was against Article 1 Paragraph (3), Article 22A and Article 28D Paragraph (1) of the 1945 Constitution. Article 172 of the aforementioned Act stated that “the request for working contract and working agreement on coal mining that has been submitted to the minister at the latest 1 (one) year prior to the enactment of the Act and has attained approval on principle or license for initial investigation are still respected and the license can still be processed without undergoing a tender based on this act.” What the Petitioners questioned was the phrase “to the minister at the latest of 1 (one) year” and “have attained an approval letter of principle or a license for initial investigation”.
According to The Court, the change in the Act could not crete a legal uncertainty. Therefore, based on the stipulation in Article 1 (Paragraph) 3 in conjunction with Article 22A of the 1945 Constitution, lawmakers in Act on mining had made the stipulation of transfer as an adjustment to the existing regulation at the time the new Legislation product enacted.
In that case, continued The Court, should there not have been a stipulation of transfer it was indeed caused some loss to the Petitioners because on the Petitioners a tender process would be imposed. In fact, the Petitioners had submitted a request for working contract and working agreement for the coal mining production (KK/PKP2B) before the Act on Mining was formulated. Besides, the request had been responded by the Government. Therefore Petitioners’ argument stating Article 172 of the Act had been in contrary to Article 1 paragraph (3) of the 1945 Constitution was legally unreasonable.
Dissenting Opinion
The Plenary Session which was open to public was conducted by seven constitutional justices, Moh. Mahfud MD, as Chief Justice also a member, Achmad Sodiki, Maria Farida Indrati, Ahmad Fadlil Sumadi, Muhammad Alim, Harjono and Akil Mochtar each as member.
Of the eight justices deciding on the case in a Justice Deliberation Meeting, one justice took a different position (dissenting opinion) who is Constitutional Justice Akil Mochtar.
According to Akil, as a intermediary stipulation, Article 172 of Act on Mining did not guarantee a legal certainty for the continuation of the Petitioners’ rights who had submitted a request. Further Akil stated that Article 172 of Act on Mining so long as the phrase “at the latest of 1 (one) year…” had been retroactive in nature. Actually an implementation of a positive law to realize a principle of constitutional state should have been non-retroactive in nature according to Article 28I Paragraph (1) of the 1945 Constitution.
“Therefore, all legislation only applies prospectively. Thus, in my opinion, the stipulation in Article 172 of the Act a quo has to be announced as against the 1945 Constitution and stated not to have a binding legal force,” concluded Akil (Nur Rosihin Ana/mh/YDJ)
Wednesday, March 09, 2011 | 21:50 WIB 322