Petition of the judicial review of Law No. 33 of 2004 on the Fiscal Balance between the Central and Regional Governments (Fiscal Decentralization) requested by Yadi Supriyadi and other Petitioners could not be accepted by the Constitutional Court (MK). 

“The verdict declares the Petitioners’ petition cannot be accepted,” said Chief Justice Anwar Usman in the presence of the eight other constitutional justices in the ruling hearing No. 89/PUU-XVI/2018, Thursday (24/1/2019) afternoon.

The Petitioners are residents of Bandung District, the biggest producer of geothermal electricity in Indonesia. They were directly affected by geothermal mining in Mining Work Areas (WKP) Darajat, Kamojang, and Pangalengan. Geothermal mining in those three regions have negatively impacted the lives and livelihoods of the Petitioners and other residents of Bandung District. As Article 21 paragraph (2) letter a of Law No. 33 of 2004 that regulated the distribution of geothermal mining profits for the province at 16% still applied, the Petitioners were constitutionally harmed. The earliest actions of rapid response or preventive mitigation as well as disaster preparedness and mitigation are done by the Bandung District Government, not West Java Province.

In the legal considerations read by Constitutional Justice Manahan M.P. Sitompul, the Court was of the opinion that the norm of Article 21 paragraph (2) letter a of the Fiscal Decentralization Law requested for review by the Petitioners regulated the rights of the region, as stipulated in the a quo norm that, “Revenue Sharing Fund from Geothermal Mining distributed to the region referred to in Article 14 letter g shall be divided as follows: a. 16% (sixteen percent) for the province….” The region referred to in this norm could be the province or district/municipality. Because it is the right of the region, especially the right of the provincial government, the party that could question the constitutionality of the a quo norm is the provincial government instead of individual citizens.

Based on the elaboration, Justice Manahan Said, because the substance of the a quo petition is concerned with the right of the region, either the province or district/municipality, if in relation to the right there is a norm that is deemed contrary to the 1945 Constitution, the party that has the legal standing to file a petition is the regional government.

Justice Manahan added that the matters of the government of which authority is relegated to the region, either by way of decentralization, de-concentration, or co-administered task, cannot be implemented without fiscal balance between the central and regional governments. This can be observed from the consideration “Considering” letter c of the Fiscal Decentralization that reads, “…in support of regional autonomy through the provision of sources of financing based on the authority of the Central Government, Decentralization,  De-concentration and Co-administered Tasks, the sharing of revenues between the Central Government and the regional governments need to be clearly established in a financial system based on the sharing of authority, task, and responsibility among the government agencies.”

Therefore, according to the Court, because the substance of the a quo petition is related to the distribution of revenue sharing fund because the fund is the right of the region, it is part of the authority of the region. Therefore, Justice Manahan added, according to the above legal considerations of the Court, the party that could question the constitutionality of the norm requested for review by the Petitioners is the regional government instead of individual citizens. Therefore the Petitioners do not have the legal standing to be petitioners in the a quo petition.

“Considering that although the Court is authorized to hear the a quo petition, because the Petitioners do not have the legal standing to act as petitioners, the Court did not consider the substance of the petition,” Justice Manahan concluded. (Nano Tresna Arfana/LA/Yuniar Widiastuti)