Constitutional justices entering the courtroom for the plenary judicial review hearing of the Mineral and Coal Mining Law and the Job Creation Law, Tuesday (4/19/2022). Photo by Humas MK/Ilham W. M.

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Tuesday, April 19, 2022 | 13:39 WIB

JAKARTA, Public Relations—In the process to obtain spatial assurance, especially for mining activities, a fairly comprehensive step involving all stakeholders is carried out. This step covers the environmental aspect as well as community and local government participation. This is in line with the issuance of any permits for organizers of spatial planning, in relation to revision of spatial planning or issuance of the Space Utilization Conformity (KKPR).

“So, these two things go together and don’t contradict each other,” said Director-General for Spatial Planning of the Ministry of Agrarian and Spatial Planning/National Land Agency Abdul Kamarzuki at the material judicial review hearing of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining (Minerba) and Law No. 11 of 2020 on Job Creation. The tenth hearing for case No. 37/PUU-XIX/2021 took place virtually on Tuesday, April 19, 2022 in the plenary courtroom.

As an expert for the Government, Kamarzuki emphasized that the guarantee of space in the Minerba Law does not conflict with laws and regulations that regulate spatial planning.

“This is because the regional business certainty has been determined and the permit issued through a very strict and comprehensive process so, based on the law, the area and the permit should be respected at least until the expiration of the permit,” he explained before the bench chaired by Chief Justice Anwar Usman.

At the end of his testimony, Kamarzuki stressed that the provisions on the guarantee of the use of space and areas within the Minerba Law do not contradict and violate Article 28H paragraph (1), Article 28C paragraph (2), and Article 28B paragraph (1) of the 1945 Constitution.

Also read:

Regional Government’s Role in Mineral and Coal Mining Law Questioned

Petitioners of Mineral and Coal Mining Law and Job Creation Law Revise Petition 

Govt Requests Hearing on Mineral and Coal Mining Law and Job Creation Law Be Postponed 

Legal Protection

The next Government expert was Ferdinand T. Andi Lolo, a member of the Public Prosecution Commission. He emphasized that every citizen has the basic right to fulfill their needs, including in the mining sector. He believed hundreds of thousands of people in the mining sector would be hindered by disturbances in the business sector.

“If there is no legal protection, their constitutional rights could potentially be violated,” he explained in his testimony virtually.

In addition, Lolo explained, Article 162 would be contradictory if there were restrictions on anyone who has received compensation for their land that had been converted into a mineral and coal mine.

“This certainly creates legal uncertainty because the perpetrators, outside of those who have received compensation, cannot be punished (not included in the group of people who receive the compensation),” he said.

He further said that Article 162 did not require a new meaning because a new interpretation could potentially violate basic constitutional rights, the right to equality before the law, the right to justice, and other rights.he believed the a quo article came from the Constitution and Pancasila, thus impossible to be made to violate the citizens’ constitutional rights. Thus, no constitutional rights are violated.

Also read:

House Denies Reduction of Regional Govt Authority on Mining Business 

Govt: Mineral and Coal Mining Law Amended to Rehabilitate Mining Sector

Expert: Mineral and Coal Mining Law Criminalizes Human Rights Activists 

Ease and Certainty of Permit

The government also presented a witness, Alwin Albar, Director of Business Development of PT Timah, to give testimony as a business actor, especially in a state-owned enterprise (BUMN) that has responsibilities to the community and the state. Albar believed that Article 17 of the Minerba Law had provided legal certainty to the regulations set by the government and in terms of obtaining permits in the event of overlapping permits.

He asserted that permits often overlap, such as approval for lease-to-use forestry (PPKH) permit in the forestry sector and approval of marine utilization conformity in the marine and fishery sector.

Albar emphasized that PT Timah Tbk felt positive impacts on the change in licensing authority from the regional government to the central government. Since 2015, it no longer requests licensing from the regions but directly from the central government as mandated by the Circular Letter of the Minister of Energy and Mineral Resources on Mining Business Permits for State-Owned Enterprises.

“For us, the change of the permit [issuance from] to the [central government] has provided convenience and certainty in licensing,” he said. 

Also read:

Expert: Mining Control by Central Govt a Setback 

Witnesses Explain Impacts of Loss of Regional Govt’s Authority in Mineral and Coal Mining Law

Public Participation Accessible in Mineral and Coal Mining Authority

The case No. 37/PUU-XIX/2021 was filed by four petitioners—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).

They challenge the provisions of the Minerba Law and the Job Creation Law: 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 Minerba Law. They believe the articles to be multi-interpretive and harmful to their constitutional rights. Therefore, they requested that the Court repeal those articles. 

They believe the articles to be multi-interpretive and harmful to their constitutional rights. Therefore, they requested that the Court repeal those articles. 

They also believe the removal of the phrase “and/or the regional government” in the provision of Article 4 paragraph (2) of the a quo law has 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. 

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 4/20/2022 08:41 WIB

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

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