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Yusril Ihza Mahendra as Applicant’s Attorney delivers petition points at preliminary session on Act of Forestry and Act of Forest Conservation, on Wednesday (26/8), at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) holds preliminary session on Act Number 41 Year 1999 of Forestry (Undang-Undang Kehutanan) and Act Number 18 Year 2013 of Forest Conservation (Undang-Undang Pencegahan dan Pemberantasan Perusakan Hutan), on Wednesday (26/8), at Plenary Room, the Constitutional Court Building. Forestry company PT. Inanta Timber Company files the petition which registered in Case Number 98/PUU-XIII/2015.

Represented by Yusril Ihza Mahendra as Applicant’s Attorney, the Applicant is concerned with Article 50 (2) Act of Forestry. The Applicant who has forest concession permit (Hak Penguasaan Hutan –HPH) argues the provision ambiguous and obscure. They admit they have been investigated by the police due to the enactment of Article 50 (2) Act a quo.

Yusril explains the Applicant has granted forest concession permit on one area for 30 years, in accordance to Annual Work Plan (Rencana Kerja Tahunan –RKT). However after several years, they conduct forest logging in area outside the area planned in Annual Work Plan, but within the concession permit area. The police investigate the case and PT. Inanta Timber Company determined guilty and charged with Article 50 Act of Forestry. According to the Applicant, forest will be ruined if a company granted concession permit. “However, the company has permit and conducts particular ways to preserve the forest,” said Yusril.

Furthermore, the Applicant says Act of Forest Conservation which enacted in 2013 clarifies the meaning of forest destruction in Act of Forestry. However, the forest destruction is allegedly committed before the enactment of Act of Forest Conservation. “Thus, the investigator uses provisions in Act Number 44 Year 1999, in which the meaning of forest destruction is very broad and ambiguous,” added Yusril.

                                                                                              

Article 50 (2) Act of Forestry stated:

“Each person who given area utilization permit, environmental utilization permit, timber and non-timber utilization permit, and timber and non-timber harvesting permit, is prohibited to conduct activities which cause forest destruction.” (“Setiap orang yang diberi izin usaha pemanfaatan kawasan, izin usaha pemanfaatan jasa lingkungan, izin usaha pemanfaatan hasil hutan kayu dan bukan kayu, serta izin pemungutan hasil hutan kayu dan bukan kayu dilarang melakukan kegiatan yang menimbulkan kerusakan hutan.”)

According to the Applicant, the meaning of the phrase ‘forest destruction’ is not explained in the Act a quo. In the context of criminal law, the Applicant argues, the norm in Article 50 (2) Act of Forestry only formulates one formal offense. “So, the activity which causes forest destruction is not described in the norm. Meanwhile the elucidation of Article 50 (2) only describes the result of forest destruction,” said him.

Therefore, the Applicant requests the Constitutional Court to declare Article 50 (2) Act of Forestry contrary to the 1945 Constitution and has no legal binding. “The reality is, that article (Article 50 (2) Act of Forestry) is used to frighten other people. Article 50 (2) could possibly implemented arbitrarily due to norm obscurity,” said Yusril.   

The Applicant also says they only focus on Article 50 (2) Act of Forestry. Whereas for Act of Forest Conservation, the Applicant assesses the Act is clear and no need to be reviewed.

Justices Input

Responding the petition, Justice Panel led by Constitutional Justice Maria Farida Indrati suggests the Applicant to revise petition arguments (posita) and petition demands (petitum). Justice Panel assesses the petition inconsistent because it still stated review on Act of Forest Conservation. Moreover, Justice Panel assesses the Applicant need to change petitum statement to ‘grants Applicant’s petition’ (‘mengabulkan permohonan Pemohon’) which previously stated ‘accepts and grants Applicant’s petition’ (‘menerima dan mengabulkan permohonan Pemohon’).  

Justice Panel also requests the Applicant to revise writing errors and elaborate Applicant’s constitutional loss. “We could understand your constitutional loss from your verbal explanation, however the loss is not elaborated in detail in the legal standing part of the petition, either factual loss or potential loss,” said Constitutional Justice Aswanto. (Lulu Hanifah/IR/Prasetyo Adi N)

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