The Constitutional Court (MK) decided to Article 10 letter b along the phrase ‘... pay attention ... public opinion ...’ testing of the Law No. 4 of 2009 on Mineral and Coal Mining in conflict with the constitution is conditionally (conditionally unconstitutional). The verdict was read 32/PUU-X/2012 number by the Chief of the Court, Moh. Mahfud MD and was assisted by seven other constitutional judges on Monday (4/6). 

"Declare to grant the petition for the most part. Article 10 letter b along the phrase ‘... pay attention ... public opinion ...’ Law Number 4 Year 2009 on mineral and coal mining are conditional contrary to the Constitution of the Republic of Indonesia Year 1945 to the extent not understood, ‘shall protect, respect, and meet the interests of the region as well as his estate will be incorporated into the mining regions and communities will be affected ‘. Article 10 letter b along the phrase ‘... pay attention ... public opinion ...’ Law Number 4 Year 2009 on mineral and coal mining has no binding legal effect to the extent not understood, ‘shall protect, respect, and meet the interests of the region as well as his property will be incorporated into the mining regions and communities that will be affected, ‘"he explained at the Plenary Court Room. 

In the Court’s opinion read by Justice Anwar Usman, the Court in Decision No. 25/PUU-VIII/2010 dated June 4, 2012, which describes the setting and the determination of the mining area (WP). WP setting mechanisms of coordination activities, consulting, and attention to public opinion, as stipulated in the articles are filed by the Petitioners, the Court has the potential to violate the constitutional rights of citizens when the mechanism is made solely to comply with formal-procedural as contained in legislation and obscure the main purpose is to respect, protect, and fulfill economic and social rights of citizens should be, in the context of natural resources, use of for the benefit of the people. 

"To further strengthen the control function of the Government and also to ensure fair legal certainty both for society in general or specifically people who are in the WP and the communities affected, according to the Court, the control function is not enough just to be done through a consultative forum with House of Representatives, but also must be strengthened through the direct control functions performed by the community, especially the area and his property will be included in the WP and the people who will be affected, "he explained. Anwar went on to explain the Court emphasized the implementation of the obligation to include public opinion, not the written consent of each person as requested by the Petitioners. This is because the Court in active forms of community participation in the form of direct involvement in delivering the opinion in the WP-setting process is facilitated by the state cq Government, is the concrete form of the implementation of Article 28H Paragraph (1) and paragraph (4) of the 1945 Constitution. 

"In addition, the mechanism further includes an obligation on public opinion and anyone who was among the regions and communities that their land will be incorporated into the mining regions and communities that will be affected, the full authority of the Government to regulate in accordance with laws and law and regulations with reference to the legal considerations which have been declared by the Court in Case Number 25/PUU-VIII/2010 Decision dated June 4, 2012, Decision on Case No. 30/PUU-VIII/2010 dated June 4, 2012, and the verdict in this case, while respecting and upholding human rights. 

Based on the above legal considerations and to ensure the constitutional rights of citizens as stipulated in Article 28D paragraph (1), Article 28G Paragraph (1), Article 28H Paragraph (1) and paragraph (4) of the 1945 Constitution, the Court argued that the petition of the The applicant argued in part that all of the phrase ‘... pay attention ... public opinion ...’ in Article 10 letter b of Law 4/2009," he explained. In addition, continued Anwar, the Petitioner argues Article 162 in conjunction with Article 136 paragraph (2) of Law 4/2009 is contradictory to Article 28C Paragraph (2) and Article 28E Paragraph (3) of the 1945 Constitution. 

According to the Court, in accordance with legislation, the holder of Exploration IUP or IUPK Exploration can only carry out its activities after obtaining the approval of holders of land rights. Subsequent holders of IUP or IUPK before production operations shall be completed by holders of rights over land rights in accordance with the provisions of legislation, and settlement of land rights can be done in stages in accordance with the requirements for the land by the holders of IUP or IUPK."Prior to the process of getting the IUP Exploration and Production Operation IUP for business people in the field of mineral and coal mining, the state cq The Government should implement in advance the criteria as established in the 

Court on legal considerations, so that from the beginning, the establishment of a WP is not only through the process of coordination with local government and consultation with Parliament, but also has gone through the procedure to include the opinion of duty, one is the opinion of society, all of which are needed to ensure a fair legal certainty for government, communities in mining areas, affected communities and mining business. Based on the above legal reasoning, the Court, the argument concerning the petition of the Petitioner throughout Article 162 in conjunction with Article 136 paragraph (2) of Law 4/2009 has not been proven according to law, "said Anwar. Based on the assessment of facts and law as described above, further Anwar, the Court concluded that the applicant has a legal status (legal standing) to file a petition. Application of the Principal Applicant for addition and the remainder is not unreasonable under the law," said Anwar. (Lulu Anjarsari / mh/Yazid.tr)