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Panel judicial review hearing of Law on Mineral and Coal Mining, Tuesday (11/8) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Although it was only promulgated on June 10, 2020, the material of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining was already challenged in the Constitutional Court (MK). The preliminary hearing of cases No. 64/PUU-XVIII/2020 and 65/PUU-XVIII/2020 on the law took place on Tuesday, August 11, 2020 in the Plenary Courtroom.

The petition No. 64/PUU-XVIII/2020 was filed by Helvis, an advocate specializing on mining, and Muhammad Kholid Syeirazi, the secretary of Nahdlatul Ulama’s Scholars Association (ISNU). They challenge the material of Article 169A of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining, which they deem contrary to Article 18A paragraph (2), Article 27, and Article 33 paragraphs (2) and (3) of the 1945 Constitution.

The Petitioners argue that the implication of the a quo articles is in violation of Article 27 of the 1945 Constitution due to unequal treatment for holders of contracts of work (COW) and coal mining work agreements (PKP2B) as well as private enterprises in obtaining special mining business license (IUPK). In fact, the Petitioners consider COW and PKP2B holders to be in the same position as other private business entities as stipulated in Article 75 paragraph (4) of the Mineral and Coal Mining Law. 

In the hearing chaired by Constitutional Justice Suhartoyo, attorney Victor Santoso Tandiasa said the addition of the a quo articles in the Mineral and Coal Mining Law didn’t have clear legal reasoning because there is no legal reason for the legislators to amend the law to regulate the rights of COW and PKP2B holders and that the two types of contracts are for private business entities.

In addition, the a quo articles show the legislators’ impartiality towards the role (of state organs) through BUMN (SOEs) and BUMD (regional government-owned enterprises) that are prioritized in obtaining IUPK. However, COW and PKP2B holders are guaranteed an extension to IUPK as a continuation of operation contracts/agreements without having to follow the various mechanisms regulated in Article 75 of the Mineral and Coal Mining Law. The article, which prioritizes BUMN and BUMD in obtaining IUPK, has become a political law chosen by the legislators from the beginning. This means the a quo articles contradict Article 33 paragraph (2) of the 1945 Constitution.

Tandiasa also said that the a quo articles granted the minister too broad an authority to guarantee the extension to IUPK to COW and PKP2B holders without involving the regional government as the party directly affected by the activities in the COW and PKP2B. Therefore, the a quo articles contradict Article 18A paragraph (2) of the 1945 Constitution.

In their petitum, the Petitioners requested that the Court declare Article 169A of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining (State Gazette No. 147 of 2020 and Supplement No. 6525 to the State Gazette) unconstitutional and not legally binding.

Regional Government’s Authority Eliminated

Bangka Belitung Islands Governor Erzaldi Rosman as Petitioner of case No. 65/PUU-XVIII/2020 requested a material review of Article 4 paragraph (2), Article 6, Article 7, Article 8, Article 21, Article 48 letters a and b, Article 67, Article 173B, and the entire contents of the articles that revoke the authority of the provincial government and the governor in the Mineral and Coal Mining Law.

Through attorney Dharma Sutomo, he emphasized that the a quo articles contradict Article 18A of the 1945 Constitution, for not considering the characteristics of the regions and the principle of fairness and harmony. This directly eliminates the right to regional autonomy, particularly regarding energy and mineral resources.

"Tin mining in Bangka Belitung Islands Province is proven to have a great influence on economic growth and equality in the province. [The opposite occurred due to] the enactment of Law No. 11 of 1967 on the Basic Provisions of Mining," he explained.

In the petitum, the Petitioner requested that the Court declare the Mineral and Coal Mining Law unconstitutional and not legally binding.

Constitutional Justice Arief Hidayat advised the Petitioner of case No. 65/PUU-XVIII/2020 to follow the Constitutional Court Regulation (PMK) regarding petition format and to revise his legal standing. Meanwhile, Constitutional Justice Suhartoyo advised the Petitioners of case No. 64/PUU-XVIII/2020 to revise their legal standing. (*)

Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Raisa Ayudhita
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 8/12/2020 16:32 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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