State administrative law expert Susi Dwi Harijanti delivering her expertise at the judicial review hearing of the Mineral and Coal Mining Law, Wednesday (18/11/2020) virtually. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—Even though lawmaking organs have legitimacy from the people, they cannot form laws of their own accord. Instead, there are procedures to follow in order for the law to have legality and quality, and reflect the will of the public, said state administrative law expert Susi Dwi Harijanti for H. Alirman Sori and seven other petitioners in case No. 60/PUU-XVIII/2020. The judicial review hearing of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining was held by the Constitutional Court (MK) on Wednesday, November 18, 2020 for cases No. 59/PUU-XVIII/2020, No. 60/PUU-XVIII/2020, and No. 64/PUU-XVIII/2020.
Susi quoted Hans Kelsen that in the procedural due process, the lawmaking function is a total function that comprises several partial functions. This means the lawmaking procedure is a chain of legal acts to produce laws as a full state action in a lawful manner. “As a chain of legal acts, the procedure is a series of stages that will slow down and complicate the legislative process,” she said.
The slowdown is important, she said, to ensure that the laws have been through sufficient deliberation so that citizens are well informed about laws that will be formed or amended. From a democratic perspective, it is important that citizens are informed about plans to create or amend laws because it will provide opportunities for public discourse. In fact, while a demonstration is needed to reject a bill of law that potentially harm the public, procedural due process correlates with substantive due process, i.e. procedural due process aimed at ensuring the substantive due process where a quality law is produced. Therefore, the lawmaking is basically transforming what Bodenheimer calls a source of informal law into a source of formal law.
“Therefore, the [lawmaking] procedure basically aims to ensure that the legislature actually carries out their duties to discover and weigh these various sources of non-formal law in order to produce the most rational laws,” Susi said virtually before Chief Justice Anwar Usman and the other eight constitutional justices.
Also read:
Court Adjudicates Three Cases on Mineral and Coal Mining
Three Petitions on Mineral and Coal Mining Law Revised
Null and Void
Susi then explained the Petitioners’ statement regarding the legal implications that would arise if the legislature didn’t comply with the provisions on the procedure of plenary session approval as stipulated in Article 152 paragraph (2) of the DPR’s (House) rules of procedure. From a constitutional perspective, she observed, violations of such regulations can be categorized as violations of democratic agreements. The House’s rules of procedure are recognized statutory regulations. Therefore, they are a source of formal law in lawmaking and have legal force.
“Therefore, if the legislature didn’t comply with the existing procedures, from the very beginning since their [development], propositions that [do not have legal force] are null and void,” she explained.
Also read: Mineral and Coal Mining Law Challenged
DPD’s Involvement
Next, Susi talked about regional autonomy and the absence of the Regional Representatives Council’s (DPD) in the formation of the a quo law, whose involvement is regulated in Article 22D paragraph (2) of the 1945 Constitution. Quoting former Chief Justice of the Supreme Court Bagir Manan, she said DPD’s involvement was based on the idea to improve the regions’ involvement in state politics and administration. As a regional representative, DPD membership is individual and doesn’t represent any political force.
“Thus, with regards to the formation of the [Mineral and Coal Mining Law], which has major implications for the regions, both from the environmental and regional income aspects, it is bound by the provision of Article 22D paragraph (2) of the 1945 Constitution. In other words, Article 22D paragraph (2) of the 1945 Constitution is the source of the validity of the law. By not implementing these provisions, it can have a legal implication on the validity of the a quo law, which in turn can make it null and void if it doesn’t comply with the provision,” Susi explained.
Also read: Petitioners of Mineral and Coal Mining Law Revise Petition
Usability
State administrative law expert Wicipto Setiadi, presented by the Petitioners of case No. 60/PUU-XVIII/2020 also highlighted the creation of the Mineral and Coal Mining Law. He believes the law didn’t fulfill the principles of usability and applicability because its formation ignored resistance from various stakeholders and didn’t fulfil the principle of transparency by not involving stakeholders.
He said, pursuant to Article 96 paragraph (1) of Law No. 12 of 2011 on the Formation of Statutory Laws, the people have the right to provide inputs, both orally and in writing, in lawmaking. “So, if the provision in that norm wasn’t implemented, formally there is a defect in its formulation,” he added.
Also read: Hearing on Mineral and Coal Mining Law: House and DPD Absent, Govt Asks for Delay
Carryover System
Wicipto said the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining was in the National Legislative Program (Prolegnas) of 2014-2019. However, because the term of the House in 2014-2019 had ended, the bill hadn’t been discussed then. This means that the carryover system exists due to the amendment to Law No. 12 of 2011 on the Formation of Statutory Laws through Law No. 15 of 2019. “Therefore, it can be said that the formation of [the Mineral and Coal Mining Law] had a formal defect as it didn’t meet the requirements for priority carryover in the House in the 2014-2019 period,” he stressed.
The petition No. 59/PUU-XVIII/2020 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. He believes 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 case No. 60/PUU-XVIII/2020 was filed by H. Alirman Sori and seven other petitioners. 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.
The petition of case No. 64/PUU-XVIII/2020 was filed by by Helvis, an advocate specializing on mining, and Muhammad Kholid Syeirazi, the secretary of Nahdlatul Ulama’s Scholars Association (ISNU). They challenge Article 169A, which they believe has granted the minister too broad an authority to guarantee the extension to extend special mining business license (IUPK) and reduced the role of BUMN (SOEs) and BUMD (Regional Government-Owned Enterprises). They believe it to be against Article 75 of the Mineral and Coal Mining Law.
Before concluding the session, Chief Justice Anwar reminded that the hearing would resume on December 8, 2020 at 11:00 WIB to hear two experts for the Petitioner of case No. 64/PUU-XVIII/2020.
Writer: Sri Pujianti
Editor: Nur R.
PR: Raisa Ayudhita
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 11/24/2020 18:03 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Monday, November 23, 2020 | 15:51 WIB 250