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Petition of five regents in the Province of Central Kalimantan, and a self-employed person associated with the test of Article 1 paragraph 3 of Act (Act) No. 41 of 1999 on Forestry of the 1945 Constitution, granted by the Constitutional Court (MK). "To grant the petition of the applicant for all," said Achmad Sodiki, as leader of the trial, when reading the verdict 45/PUU-IX/2011 numbers on Tuesday (21/2), at the Plenary Court Room.

The sixth applicant was Regent Kapuas H Muhammad Mawardi, Gunung Mas Hambit Bintih Regent, Regent Katingan Duwel Rawing, and Regent of the East Barito Zain Alkim H, H Ahmad Dirman Sukamara Regents, and Ahmad Taufik as the entrepreneur of Palangkaraya. 

In the Petitioners’ argument, it said state administration officials should not take its own course, but must act in accordance with the laws and regulations. "There should be a forest that will be protected as permanent forests, dominate the life of the people, by appointment only." 

Then, Article 1 number 3 of the Forestry Law states, "The forest is designated a specific area or set by the government to maintain its existence as a permanent forest". According to the Petitioners, the phrase "appointed or" contrary to the 1945 Constitution. 

While understanding the provisions of Article 1 point 3 there is a difference with the provisions of Article 15 paragraph (1) of the Act. Article 15 paragraph (1) the Act reads, "Inauguration of the forest area as referred to in Article 14, made through the process as follows: a. designation of forest areas; b. forest boundary; c. mapping of forest areas, and d. establishment of forest area ". 

In this case, the provisions of Article 15 paragraph (1) of the forest land designation is one step in the process of affirmation of the forest. The "appointment" in Article 1 number 3 of the Act can be equated with the establishment of forest areas that do not require the stages as provided for in Article 15 paragraph (1) of the Act.

Of events and rules, the Court argued that the stages of the process of defining a forest area as defined in Article 15 paragraph (1) of the Forestry Law in line with the principles of law which, among others, that the government or the state administration officials obey the laws and law and regulations.

Paragraph (2) of Article 15 of the Forestry Law said "Inauguration of the forest area as referred to in paragraph (1) performed by taking into account the regional spatial plan." According to the Court, Article include attention to the possible existence of individual rights or the rights of seigniorial ( customary) in forest areas to be designated as forest area. "So if there is such a state, then the boundary and mapping forest boundaries should be out of the forest area so as not to cause harm to others," wrote the Court.

Therefore, the Court considered that since the establishment of forest area is the final of the inaugural series of the forest area, then the phrase, "appointed or" contained in Article 1 number 3 of the Forestry Act, other than against the principle of state law, as mentioned in Article 1 paragraph (3) of the 1945 Constitution, so it does not sync with Article 15 of the Act. 

Unsynchronized, continued the Court, the uncertainty of law as prescribed in Article 28D paragraph (1) of the 1945 Constitution which determines, "Everyone has the right to recognition, security, protection and legal certainty of fair and equal treatment before the law".

Then the transitional provisions of the Forestry Law, especially Article 81 which states, "Forest areas have been designated and or stipulated by laws and regulations applicable, prior to the enactment of this law shall remain in force under this law", said the Court, although Article 1 paragraph 3 and Article 81 the Act uses the phrase "or a designated and established", but for the enactment of a "designated and or stipulated" in Article 81 of Law is still valid and binding.

Therefore, the Court in its decision granted the petition in its entirety. While the phrase "appointed or" in Article 1 number 3 of Act 41 of 1999 on Forestry, as amended by Law no. 19 of 2004 on Stipulation of Government Regulation in Lieu of Law no. 1 of 2004 on Amendment of Law no. 41 of 1999 on Forestry Becoming Law (State Gazette of the Republic of Indonesia 2004 Number 86, Additional State Gazette of the Republic of Indonesia Number 4412), contrary to the Constitution of 1945, and has no binding legal force. (Shohibul Umam / mh/Yazid.tr)

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