Petitioners and counsels at the virtual judicial review hearing of the Mineral and Coal Mining Law No. 3 of 2020, Monday (9/8/2021). Photo by Humas MK/Bayu.
Monday, August 9, 2021 | 19:07 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining (Minerba) virtually on Monday, August 9, 2021. The case No. 37/PUU-XIX/2021 was filed by the Indonesian Forum for Living Environment (WALHI), the East Kalimantan Mining Advocacy Network (JATAM Kaltim), Nurul Aini, and farmer and fisherman Yaman (Petitioners I-IV).
At the hearing chaired by Constitutional Justice Enny Nurbaningsih, the Petitioners, represented by counsel Lasma Natalia, maintained that the provision of Article 4 paragraph (2), Article 7, Article 8, Article 11, Article 17 paragraph (2), Article 21, Article 35 paragraph (1), Article 37, Article 40 paragraphs (5) and (7), Article 48 letters a and b, Article 67, Article 72, Article 73, Article 93, Article 105, Article 113, Article 118, Article 119, Article 121, Article 122, Article 123, Article 140, Article 142, Article 151, Article 169C letter g , Article 173B, and Article 173C of the a quo Minerba Law was in violation of Article 28D paragraph (1), Article 28H paragraph (1), Article 28C paragraph (2), Article 18 paragraph (2), and Article 18A paragraph (2) of the 1945 Constitution.
Lasma said the removal of the phrase “and/or the regional government” in the provision of Article 4 paragraph (2) of the a quo law had degraded the local people’s dignity due to limited or lost chance of dignified participation in determining their future, and potentially stifled the initiative and creativity of regional governments and local communities, and weakened regional responsibilities in developing the regions and its people. In the end, it all depends on the attention and “gift” by the central government.
“The removal of the phrase ‘and/or the regional government’ in the provision of the a quo law not only affected the participation of Petitioner I but also Petitioner II and the regional government’s initiative in protecting their territories, one of which is a licensing moratorium,” she said virtually.
Lasma said licensing moratorium was crucial in curbing environmental crises and mitigating climate crisis due to uncontrolled land conversions. The East Kalimantan Provincial Government is one of the local governments that has initiated a regional moratorium policy on mining permits—the Governor Regulation No. 1 of 2018 on the Arrangement of Permits and Non-licensing in Mining, Forestry, and Oil Palm Plantations in East Kalimantan Province.
Based on the explanation, Lasma added, the provision of Article 4 paragraph (2) of the a quo law has eliminated the regional government’s authority in the control of mineral and coal and violated the Petitioners’ actual and potential constitutional rights, because it is contrary to Article 28D paragraph (1), Article 28H paragraph (1), Article 28C paragraph (2), Article 18 paragraph (2), and Article 18A paragraph (2) of the 1945 Constitution and, therefore, must be declared unconstitutional.
Lasma also said Article 17A paragraph (2), Article 22A, and Article 31A paragraph (2), and Article 172B paragraph (2) of the Minerba Law, which guarantee no change in the use of spaces and areas in mining business permit areas (WIUP), special mining permit areas (WIUPK), or people’s mining areas (WPR), had violated Article 28H paragraph (1), Article 28C paragraph (2), and Article 28D paragraph (1) of the 1945 Constitution.
The guarantee of no change in the use of spaces in WIUP, WIUPK, and WPR in those articles are against the fulfilment of the substantive aspect of the right to a good and healthy environment because if the area can no longer able to accommodate mining activities, the articles will actually guarantee that it will continue to be used for mining. Lasmi added that such guarantee was also against the fulfilment of the procedural aspect of the right to a good and healthy environment because. Community participation in realizing good and healthy spatial planning in the process of reviewing spatial planning as regulated in the Spatial Planning Law becomes meaningless because even after the community provides recommendations or on a mining area, it will still be guaranteed as WIUP, WIUPK, and WPR.
Lasma also said the guarantee led to any community inputs on the area that was made into WIUP, WIUPK, or WPR not being accommodated because the use of the area as WIUP, WIUPK, or WPR was guaranteed to remain unchanged under the Minerba Law. This way, the community lost any meaningful participation on the area that was made into a mining area, although their inputs concerned the environmental conditions of the community as well as existing economic, social, and technological developments.
Justices’ Advice
In response to the petition, Constitutional Justice Suhartoyo advised the Petitioners to make the petition more concise. “This petition needs not be this long because it essentially questions two things. However, I ask that it be confirmed whether there is loss of the regional government’s authority or of the right to a good environment, [because] it relates to legal standing,” he said.
Meanwhile, Constitutional Justice Arief Hidayat advised the Petitioners to exercise caution in formulating the petitum. “If the petitum is like so, there will no longer be any article that regulates [the issue]. If it is declared unconstitutional and not legally binding, what will become of the provision? So be careful about petitum number 3,4, and 5. Please reconsider,” he said. He also requested that the Petitioners observe the case No. 64/PUU-XVIII/2020 on the judicial review of Article 169A of the Minerba Law.
Before concluding the hearing, Constitutional Justice Enny Nurbaningsih informed the Petitioners that they had 14 workdays to revise the petition. The petition must be submitted to the Registrar’s Office at least 2 hours prior to the next hearing on Monday, August 23, 2021.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/10/2021 18:26 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.
Tuesday, August 10, 2021 | 13:13 WIB 340