Requests the President of theRepublicofIndonesia Susilo Bambang Yudhoyonorelevant authority dispute of state institutions by the House and the CPC regarding the purchase of 7% stake of PT. Newmont Nusa Tenggara entirely rejected by theConstitutional Court. Decisions by Number 2/SKLN-X/2012 are read by Chief Justice of theConstitutional Court, Moh. Mahfud MD and assisted by eight constitutional judges on Tuesday (31/7).
"Petitioner against Respondent II Petition (CPC) is unacceptable. Petition to the Respondent I (DPR) is rejected in its entirety, "said Mahfud thePlenaryCourtRoom.
In the opinion of the Court, the Court considered the purchase of 7% stake of PT. Newmont Nusa Tenggara is one form of governance related to the management of state finances, which should be subject to the constitution, laws, and / or does not go beyond the authority of other state institutions, which are also given by the constitution. In such case, the Applicant intends to purchase 7% stake in PT. Newmont Nusa Tenggara in the form of long-term investment by using a non-permanent state budget that comes from the budget the Government Investment Center (PIP). According to the Court fund the purchase of 7% stake in PT. Newmont Nusa Tenggara have been included as a PIP plan that has been discussed and approved the draft budget discussion.
"President of the Court can understand the intent to buy shares of PT. Newmont Nusa Tenggara in implementation of Article 33 paragraph (3) of the 1945 Constitution, namely in the framework of state control over land and water and natural resources contained therein for the greatest welfare of the people. However, attention to form purchase intentions and 7% stake in PT. Newmont Nusa Tenggara is a long-term investments of non-permanent, according to the Court, the purchase of these shares by the applicant, not with intent to permanent tenure, so it does not mean state control to be achieved. Moreover, the wish is owned by the Government only 7% of shares does not significantly affect the company's management decisions. If the state intends to fully control the management of natural resources as a form of domination by the state, then the Petitioner and Respondent I should make a common policy for all business related to natural resource management is majority owned by the state, "said the judge constitution.
According to the Court, the form of state control not only in the form of ownership, but also can be done in the form of policies and actions of management, regulation, management, and supervision. It is most essential in the acquisition by the state is the state retains sovereignty over the earth and water and natural resources contained therein. The purpose of government as outlined in the Petitioner, it could still be done by the state based on the principle of mastery of specified state constitution. "Based on the above considerations, the Court divested the purchase of 7% stake in PT. Newmont Nusa Tenggara is a constitutional authority in governing the country that can only be done by: (i) approval of Respondent I either through the mechanism of the State Budget Law or specific consent, (ii) be open and accountable for the greatest welfare of the people; and (iii) the Respondent carried out under the supervision of I. Because of funding the purchase of 7% stake in PT. Newmont Nusa Tenggara has not been specifically mentioned in the budget and have not received specific approval from Parliament, the petition is groundless law, "he explained.
Four Constitutional CourtJustices Dissenting Opinion
In this decision, four judges filed a dissenting opinion, Deputy Chief Justice Achmad Sodiki, Constitutional Court Justice Ahmad Fadlil Sumadi and Constitutional Justice Maria Farida Indrati and Constitutional Court Justice Harjono. Sodiki believes the petition should be granted theConstitutional Court. According to Sodiki, in examining the case should be avoided textual approach of sound legislation that is stiff (rigid) can not anticipate and adjust to the demands and development of society. Dynamic interpretation, further Sodiki, then that becomes the main reference is contemporary Ideals (contemporary ideas) that state control over land, water and natural riches contained therein are used to respond / answer the needs or the needs of contemporary society at the time a law is applied, rather than referring to the legislative will of the traced at the time the law was established, namely to use the nation's assets for the maximum welfare of the people [vide Article 33 paragraph (3) of the 1945 Constitution and subsection (2) of the 1945 Constitution which mandates the branches of production that are important to the state and serving the public, many controlled by the state].
"If we follow this approach then I should issue the consent of the Respondent is not a big issue, and can be renegotiated for the sake of our sovereignty over the earth, water and natural resources contained therein. If so, in this case neither party to the winner and the looser because that should be the real winners are the nation that enjoys sovereignty over natural resources as mandated by the constitution. Based on these considerations, the Court should grant this petition," said Sodiki.
Constitutional Court Justice Ahmad Fadlil Sumadi also said Court should grant the petition. Fadlil said the purchase of 7% stake of PT. NNT in the perspective of the state financial management is state financial expenditure by the Applicant as the implementation of constitutional authority in governing the country that should be implemented, (i) by mutual agreement with the Respondent I through the mechanism of the State Budget Law, (ii) in an open and accountable to the people's prosperity, and (iii) under the supervision of the Respondent I. The applicant under certain circumstances to require an investment fund as an act of saving the country's economy, while the funds are not included in the Budget Act, required permits or approvals in accordance with the Respondent I function in the budget. It can not be categorized as an act of the Respondent I "to obstruct or reduce the implementation of the President's constitutional authority".
"Based on these considerations, the constitutional dispute related to a quo, in my opinion, the Court must impose a decision to grant the petition in part, namely that the applicant does not require the consent of Respondent I again use the budget specified in the State Budget Law for the purchase of shares divestment of PT. NNT, and rejected the petition for the addition and the rest, namely that the Applicant Respondent I need approval to use state finances that have not or are not specified in the State Budget Law for the purchase of shares divestment of PT. NNT is, "he explained.
While the Constitutional Justice Maria Farida Indrati and Harjono argue countries have a constitutional obligation to get the shares of PT. NNT is based on Article 24 of the Contract of Work between the Government of the Republic of Indonesia by PT. NNT for their intended purpose, namely for the promotion of national interests. That because the State is obliged to get the part, the Petitioner with Respondent I obliged to provide the necessary funds in making the shares of PT. NNT. That the Applicant as the holder of the financial management of state power to allocate the necessary funds from a legitimate source of state finance, and if the budget is not yet available, the applicant may use the authority under Article 27 paragraph (4) the State Finance Act which authorized the Respondent then I.
"Thus, the Court should states," Applicant as the holder of the financial management of the state power authority to make payment for the shares of PT. Newmont Nusa Tenggara from a legitimate source of state finance and the use of powers under Article 27 paragraph (4) of Law Number 17 Year 2003 regarding State Treasury without the consent of Respondent I to and approved by the Respondent I, because the state is obliged to receive the shares of PT. Newmont Nusa Tenggara in accordance with the purposes of Article 24 Contract of Work, namely the promotion of national interests, "said Maria. (Lulu Anjarsari / mh/Yazid.tr)
Tuesday, July 31, 2012 | 21:22 WIB 191