Formal and material judicial review hearing of Law No. 8 of 2022 on the South Kalimantan Province to hear an expert and a witness for the Petitioners, Tuesday (9/13/2022). Photo by MKRI/Ifa.
Tuesday, September 13, 2022 | 15:47 WIB
JAKARTA (MKRI)—The changes in name of region, region naming, including the relocation of the capital city and the change of the name of the capital city, are stipulated through government regulations. Thus, the legal instrument for relocating the capital city is determined by a government regulation, said Ichsan Anwary, an expert for the Petitioners of cases No. 58/PUU-XX/2022 and 59/PUU-XX/2022. The law lecturer of Lambung Mangkurat University of Banjarmasin at the judicial review of Law No. 8 of 2022 on the South Kalimantan Province on Tuesday, September 13, 2022.
At the hearing, the Court heard cases No. 58/PUU-XX/2022 and No. 59/PUU-XX/2022 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-V), as well as case No. 60/PUU-XX/2022 petitioned by Banjarmasin mayor Ibnu Sina and the South Kalimantan DPRD (Regional Legislative Council) chairman Harry Wijaya.
Ichsan further explained that Law No. 23 of 2014 on Regional Government, which regulates regional administration, has seven main objectives of regional structuring, including realizing the effectiveness of regional administration; accelerating the improvement of community welfare; accelerating the improvement of the quality of public services; improving the quality of governance; improve national and regional competitiveness; and maintaining the uniqueness of customs, traditions, and culture.
Furthermore, the formation and adjustment of the region may be based on national strategic interest as referred to in Article 31 paragraph (4) as changes to the regional boundaries determined by law, while the relocation of the capital city is determined by a government regulation.
“Thus, the material or arrangement of Article 4 of Law No. 8 of 2022 (South Kalimantan Law), which changes the provincial capital from Banjarmasin to Banjarbaru City, is included in the arrangements that must be stipulated by legal instruments in the form of government regulations, not by or regulated in the Law,” Ichsan explained before Chief Justice Anwar Usman and the other eight constitutional justices.
Ichsan also explained that the previous law (Article 2 paragraph (1) of Law No. 25 of 1956 on the Establishment of Autonomous Regions for the West Kalimantan, South Kalimantan, and East Kalimantan Provinces) essentially stipulated that Banjarmasin was the capital city of South Kalimantan Province. In other words, he added, the South Kalimantan Law still cannot be implemented because the norm does not regulate technical matters such as the transition period for the relocation of the capital city, including its funding.
“This is the ratio legis behind the stipulation of relocation of capital city with a government regulation (PP). In this perspective, the South Kalimantan Province Law does not fulfill the principle of implementation as affirmed by the Lawmaking Law. This is because lawmaking must take into account the effectiveness of laws and regulations in society philosophically, sociologically, and juridically,” he explained.
No Discussion of Relocation
The Petitioners presented Syahmardian, chairman of CSO Sasangga Banua, as witness. Syahmardian revealed the CSO’s participation in the discussion on the amendment to the South Kalimantan Law, which took place online and on-site in Banjarmasin. In November 2020, he was also involved in the planning meeting for the amendment to the South Kalimantan Law, including its benefits for the community. The meeting also discussed the history of the formation of South Kalimantan Province and the changes in the area.
“Sesangga Banua once submitted a recommendation to amend the South Kalimantan Law, but what emerged was a conclusion that scheduled a public review of amendment that would not be realized until the (new) law was passed. In fact, we were very surprised that there was a new South Kalimantan Law, and an amendment. In every discussion of the amendment to the law, the relocation of the capital city from Banjarmasin to Banjarbaru was not discussed,” he said.
At the preliminary hearing, the Petitioners for case No. 58/PUU-XX/2022 explained that they had been harmed by the South Kalimantan Law since its formation had not involved the community. They alleged that the Law had harmed the entrepreneurs within the Banjarmasin City Kadin (Petitioner I) 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, 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 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. Therefore, the Petitioners appealed 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.”
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.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/15/2022 08:57 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.