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International law expert and Contract Law, Hikmahanto Juwana said that cooperation contracts (KKS) is contained in the Law on Oil and Gas (Migas) is a civil contract, not an international treaty. Therefore, the partner of Oil and Gas Implementing Body (BP Migas) in the KKS is a contracting company, both domestically and internationally, which is the subject of civil law.

This was conveyed by Hikmahanto as Professor of the University of Indonesia, as an expert in a trial testing the Government Law. 22/2001 on Oil and Gas - Number 36/PUU-X/2012 - in the Constitutional Court (MK), Wednesday (1/8) in the afternoon. "So in the field of jurisprudence KKS is an international business contracts and part of private international law, is not part of international law," he said.

Then when BP Migas in the KKS is a dispute, and BP Migas declared lost, up Hikmahanto, does not mean the defeat of the Indonesian state, nor demean people of Indonesia. "In contract law, BP Migas defeat does not mean the defeat of the country," he said.

 

Do not Need Permission Parliament

On the other hand, in implementing other international agreements contained in the provisions of Oil and Gas Law, the President must obtain approval from the House of Representatives (DPR). However, Hikmahanto’s provision has different views. According to him, other international agreements can not be applied in the context of cooperation that was signed by BP Migas with contractor companies.

"Other international agreements, which exist in the Constitution refers to international agreements with the subjects of international law such as international organizations, or an organization recognized by the international community.”So, (KKS BP Migas) do not need to seek approval from Parliament," he explained. "However, the government should know its function, because the government represents the interests of BP Migas," he added.

So it should be emphasized in this issue, according to Hikmahanto, BP Migas not as a nation. He is different institution. He is the subject of civil law. "So BP Migas was not a state," he said.

Therefore, according to civil law expert, the problem does not have to cancel his law, as is being done in the Court, but his KKS. "It was canceled as the Act in the Constitutional Court, but the contract is canceled, and it went to court," he told media. 

The government also presented other experts that Erman Rajagukguk. In his statement, Erman said that the articles being tested by the applicant that Article 1 number 19 and 23, Article 3 letter b, Article 4 paragraph (3), Article 6 paragraph (1), Article 9 paragraph (1), Article 10 paragraph (1), Article 11 paragraph (2), Article 13 paragraph (1), and Article 44 paragraph (1) Law no. 22 of 2001 on Oil and Gas does not conflict with the 1945 Constitution.

"These articles are the implementation of the 1945 Constitution mandates the state to establish policies, management, and supervision for overall prosperity of the people. Therefore, the Articles cited by the applicant is not contrary to the constitution, particularly Article 33 paragraph (2) and (3) of the 1945 Constitution, "he explained.

The petitioners in these proceedings are the PP Muhammadiyah representing several community organizations and individuals. They examine Article 1 number 19 and 23, Article 3 letter b, Article 4 paragraph (3), Article 6 paragraph (1), Article 9 paragraph (1), Article 10 paragraph (1), Article 11 paragraph (2), Article 13 paragraph (1), and Article 44 paragraph (1) Law no. 22 of 2001 on Oil and Gas.

Provisions in the Oil and Gas Law, said the petition, contrary to Article 1 paragraph (2), Article 11 paragraph (2), Article 20A paragraph (1), Article 28C Paragraph (2), Article 28D paragraph (1), Article 28H paragraph (1), and Article 33 paragraph (2) and (3) of the 1945 Constitution. "Oil and Gas Act states do not have binding legal force, because the norms contained in conflict with the opening of the 1945 Constitution and Pancasila especially the five precepts," said Saiful attorney at a preliminary hearing to the Petitioners. (Shohibul Umam / mh/Yazid.tr)

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