Petitioners of the judicial review of Law No. 8 of 2022 on the South Kalimantan Province attending the preliminary hearing virtually, Monday (5/23/2022). Photo by Humas MK/BPE.
Monday, May 23, 2022 | 15:51 WIB
JAKARTA, Public Relations—Banjarbaru City has officially replaced Banjarmasin City as the capital city of South Kalimantan Province since the enactment of Law No. 8 of 2022 on the South Kalimantan Province on February 15, 2022. The relocation received some backlash, which led to a petition being lodged to the Constitutional Court (MK). On Monday, May 23, 2022, a panel chaired by Constitutional Justice Saldi Isra held a preliminary hearing for three cases questioning the South Kalimantan Law.
The case No. 58/PUU-XX/2022 was filed by the Banjarmasin City Chamber of Commerce and Industry (Kadin) (Petitioner I) and several individuals affiliated with the Banjarmasin City Communication Forum (Petitioner II-IV). They challenge the South Kalimantan Law formally. They also filed the case No. 59/PUU-XX/2022 to challenge Article 4 of the South Kalimantan Law materially. Meanwhile, the case No. 60/PUU-XX/2022 was filed by Banjarmasin mayor Ibnu Sina and the South Kalimantan DPRD (Regional Legislative Council) chairman Harry Wijaya.
The Petitioners of case No. 58/PUU-XX/2022, represented by legal counsel Muhammad Pazri, alleged to have been harmed by the Law since its formation had not involved the community. Pazri alleged that the Law had harmed the entrepreneurs within the Banjarmasin City Kadin because the provincial capital city relocation would impact the economy, especially those in the accommodation, culinary, and construction businesses that would hinder the development of supporting infrastructure in Banjarmasin City.
Meanwhile, Pazri added, Petitioners II-V alleged that the ambiguity of the underlying factor of the relocation could harm them because the people’s welfare wouldn’t be a priority amid the economic turbulence due to the COVID-19 pandemic, rising prices, and re-allocation of the provincial budget (APBD) to the new capital city. They believed the relocation would need substantial funding, which could be used for COVID-19 mitigation, aids for the community, and for education.
The Petitioners believed that for the relocation, there should have been a special team consisting of two mayors and eleven regents of South Kalimantan as well as 13 regency/city DPRDs. In addition, they asserted that the relocation was not urgent and there had not been any academic studies supporting the potential and great benefits of the relocation. The determination of the provincial capital city must be based on clear concepts and transparent studies that observe the spatial planning, facilities availability, socio-economic, political, and cultural aspects by taking into account the aspirations of the community as part of the democratic process as well as the capacity of the resources in the region.
Respect for History
The Petitioners of case No. 59/PUU-XX/2022 asserted that Article 4 of the South Kalimantan Law, which reads, “The capital city of South Kalimantan Province shall be located in Banjarbaru,” was against Article 1 paragraphs (2) and (3), Article 28D, Article 28F, Article 28H paragraph (1), Article 18B paragraphs (1) and (2) of the 1945 Constitution. Historically, they added, Banjarmasin City had an important role in the development of the province since the 1500s, where it first became a government center. Changing its position is the same as changing history, they declared. Therefore, the article is unconstitutional because, they alleged, there was no justice in disrespecting the history of Banjarmasin—an area full of with traditional rights of Banjarmasin that is still developing today as the capital city of South Kalimantan Province.
“The Petitioners appeal to the Court to grant the petition in its entirety and declare the South Kalimantan Province Law unconstitutional and not legally binding insofar as not interpreted to mean ‘The capital city of South Kalimantan Province shall be located in Banjarmasin City and the government shall be located in Banjarbaru City,’” said legal counsel Muhammad Mauliddin before Constitutional Justices Saldi Isra, Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh virtually.
People’s Aspirations
Meanwhile, the Petitioners of case No. 60/PUU-XX/2022 alleged through legal counsel Lukman Fadlun that the formation of the law had not involved the general public and that the House of Representatives (DPR) had not come to Banjarmasin to hear the people’s aspirations. In addition, it also had not pay attention to the harmony of the central-regional governments relations.
This, they alleged, was because the South Kalimantan DPRD at its plenary session had not decided to relocate the provincial capital and the local government of Banjarmasin City had not been involved in the harmonization, conciliation, and stabilization of the legal conception until it became a draft of the bill.
Legal Standing
Constitutional Justice Daniel Yusmic P. Foekh questioned the legal standing of the Petitioners of case No. 59/PUU-XX/2022, especially the Banjarmasin City Kadin (Petitioner I) as the representative of the organization. Based on its statute/bylaw, only the executive board is authorized to represent the organization in and outside of court and to grant power of attorney. “Therefore, the power [of attorney] must be observed, whether it has valid representation,” he said.
Meanwhile, Constitutional Justice Manahan M. P. Sitompul saw the need for Petitioner I to confirm their legal standing by affirming the legality of its chairman and executive board for the former and for Petitioners II-V by affirming their position as individuals or part of the Banjarmasin City Communication Forum.
Next, Constitutional Justice Saldi Isra stressed the formal defects of the lawmaking process of the South Kalimantan Law. Any defect, he said, must be explained so that the Court would understand it and could ask lawmakers for confirmation.
“Meanwhile, part of the arguments was focused on public participation, so it must also be explained. It is important because the formal review correlates with the proving of a concrete case. As such, the formal defect will be seen by the Court from the elaboration,” he advised.
Material Review
In relation to the material judicial review petition filed by the Petitioners of case No. 59/PUU-XX/2022, Constitutional Justice Daniel Yusmic P. Foekh questioned the touchstones. “The more the articles used as touchstones, the more the Petitioners would have to explain the relation between each of the articles of the 1945 Constitution and the norm being petitioned,” he explained.
He also advised the Petitioners of case No. 60/PUU-XX/2022 to elaborate the formation of the law from sociological and philosophical standpoints.
Next, Constitutional Justice Manahan M. P. Sitompul requested that the constitutional impairment suffered by the Banjarmasin city administration be elaborated. Meanwhile, Constitutional Justice Saldi Isra requested that the Petitioners explained the difference between the term ‘government city’ and ‘provincial capital city.’
Before concluding the hearing, Justice Saldi as the panel chair informed Petitioners that they had 14 weekdays to revise the petition until Monday, June 6. The schedule for the next hearing would be informed after the revised petition is submitted.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 5/24/2022 09:42 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.
Monday, May 23, 2022 | 15:51 WIB 486