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Preliminary judicial review hearing of Law on Mineral and Coal Mining, Thursday (23/7) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a judicial review hearing of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining on Thursday, July 23, 2020 in the Plenary Courtroom. The hearing had been scheduled to examine three cases on mineral and coal mining: No. 58/PUU-XVIII/2020, No. 59/PUU-XVIII/2020, and No. 60/PUU-XVIII/2020.

The case No. 58/PUU-XVIII/2020 was filed by the Constitutional Advocate Association (AAK), Bahrul Ilmi Yakup, Dhabi K. Gumayra, Yuseva, Iwan Kurniawan, Mustika Yanto, and Rosalina Pertiwi Gultom. They requested a material review of Article 35 paragraphs (1) and (4) of the PMB Law that they consider in violation of Article 18 paragraphs (1), (2), and (5) and Article 28D paragraph (1) of the 1945 Constitution.

Article 35 paragraph (1) of the Mineral and Coal Mining Law reads, “Mining business shall be carried out based on a Business Permit granted by the Central Government.” Article 35 paragraph (4) reads, “The Central Government may delegate the authority to grant Business Permits as referred to in paragraph (2) to the Provincial Government in accordance with the provisions of legislation.”

The Petitioners argued that Article 35 paragraph (1) of the Mineral and Coal Mining Law made of the issuance of mining business permits the authority of the central government. It negates the provincial or regency/city’s territorial and functional autonomy, hence in violation of Article 18 paragraphs (1), (2), and (5) and Article 28D paragraph (1) of the 1945 Constitution. Article 18 paragraph (5) of the 1945 Constitution and Article 9 paragraph (2) of the Regional Government Law regulates the authorities of the central government, including the issuance of mining business permits.

In the hearing led by Constitutional Justice Suhartoyo, Bahrul said that the provision of Article 35 paragraph (4) of the Mineral and Coal Mining Law is similarly unconstitutional, mutatis mutandis, as Article 35 paragraph (1). "The authority to grant mining permits should not negate the authority of the governor or the province in spatial, environmental, and forestry matters. If this happens, it will definitely cause legal uncertainty," he said.

In the petitum, the Petitioners requested that the Constitutional Court declare Article 35 paragraph (1) of the Mineral and Coal Mining Law unconstitutional and not legally binding insofar as it is not interpreted as "The Mining Business shall be carried out based on a Business Permit granted by the Central or Provincial Government in accordance with its authority.” They requested the same thing with Article 35 paragraph (4) insofar as it is not interpreted as “The Central Government may delegate the authority to grant Business Permits as referred to in paragraph (2) to the Provincial Government in accordance with its authority, which is regulated by the legislation.”

The justices then examined petition No. 59/PUU-XVIII/2020, which was filed by Kurniawan, a researcher at Sinergi Kawal BUMN, an organization focusing on monitoring, responding to, and providing input to SOEs in mining and coal. The Petitioner requested a formal review of the Mineral and Coal Mining Law. Through attorney Abdul Rohim, Kurniawan stressed that the Mineral and Coal Mining Law regulates the relationship between the central and regional government as well as the exploration of natural resources. This means that the discussion of the Mineral and Coal Mining bill required the involvement of the Regional Representatives Council (DPD) as the people entrusted the DPD to represent regional interests in the formation of the law.

"The Petitioner as a voter in the general election and as a researcher who focuses on mining has experienced constitutional damage because his constitutional rights were realized because the DPD wasn’t involved in forming the law," Rohim explained. In the petitum, the Petitioner requested that the Court declare the Mineral and Coal Mining Law unconstitutional and not legally binding.

The case No. 60/PUU-XVIII/2020 was filed by H. Alirman Sori, Tamsil Linrung, H. Erzaldi Rosman Djohan, the Muslim group Syarikat Islam, Marwan Batubara, Budi Santoso, Ilham Rifki Nurfajar, and M. Andrean Saefudin. They requested a formal review of the Mineral and Coal Mining Law. They claimed that their constitutional rights were violated because the formation of the law was discussed exclusively and privately without transparency as stipulated by existing laws and regulations.

The discussion of the bill didn’t involve the DPD when it has the authority mandated by the Constitution in discussing bills relating to the relationship between the central and regional government as well as the exploration of natural resources and other economic resources. Therefore, in the petitum, the Petitioners requested that the Court declare the Mineral and Coal Mining Law not meeting formal requirements of lawmaking based on the 1945 Constitution, hence not applicable, null and void, and not legally binding.

Constitutional Justice Arief Hidayat advised the Petitioners to elaborate on their actual and potential constitutional damage and revise the format of the petition. Constitutional Justice Suhartoyo advised the Petitioners of case No. 58PUU-XVIII/2020 to make the petition concise.

Writer: Utami Argawati
Editor: Nur R.
PR: Lambang T. S.
Photographer: Ifa D. S.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 7/24/2020 16:37 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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