Court: Forest Control by the State Also Protect the Rights of Land
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Article 4 paragraph (3) of Law No. 41/2009 on Forestry simply ignores the rights of indigenous people, when they should also pay attention to the rights of land owned by the community. Therefore, the provision is constitutional on parole.

Thus, at least the core of the decision of the Constitutional Court in case No. 34/PUU-IX/2011, spoken, Monday (16/7) at the Plenary Meeting Room of the Constitutional Court by a seven constitutional judges. "To grant the petition partly," said Chief Justice of the Constitutional Court, Moh. Mahfud MD. The case was filed by Maskur Anang bin Kemas Anang Muhamad.

According to the Court, beyond the concrete case faced by the applicant as described in the petition, the Court can justify the substance of the argument of the petition. Because, in certain areas may be encumbered with rights that have been affixed to land, such as property rights, right to build, lease rights and other rights over land.

"Such rights should receive constitutional protection under Article 28G Paragraph (1) and Article 28H paragraph (4) of the 1945 Constitution," said Court. "Therefore, control of forests by the state must also pay attention to such rights than the rights of indigenous people that have been published in the norm of a quo."

Court’s view, Article 4 paragraph (3) of the Forestry Law does not include the norms of other rights which are granted under the provisions of the legislation. "So the article is contrary to the 1945 Constitution does not contain all the rights which are granted under the provisions of the legislation."

In this case, the Court, it can specify conditional constitutional norms. Although, in its decision the Court recognizes no authority to change the wording in the Act, because the authority is only owned by the former Act that the House of Representatives and the President.

Therefore, the Court concluded, Article 4 paragraph (3) Forestry Act 1945 contrary to the Constitution to the extent not understood "Forest control by the state shall protect, respect, and fulfill the rights of indigenous people, as long as it exists and its existence is recognized, the right of people granted under the provisions of the legislation, and does not conflict with national interests".

The sound of the provisions that were tested by the applicant in this case is, "Forest control by the State shall respect the customary law, as long as it exists and its existence is recognized and does not conflict with national interests." (Dodi / mh/Yazid.tr)


Monday, July 16, 2012 | 19:13 WIB 120