Constitutional Justice Saldi Isra reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 8 of 2022 on the South Kalimantan Province, Thursday (9/29/2022). Photo by MKRI/Ifa.
Thursday, September 29, 2022 | 13:27 WIB
JAKARTA (MKRI)—The formation of Law No. 8 of 2022 on the South Kalimantan Province had followed lawmaking provisions according to the 1945 Constitution, the Constitutional Court (MK) stated in its legal consideration for the Decision No. 58/PUU-XX/2022, read out by Constitutional Justice Saldi Isra at the ruling hearing on Thursday, September 29, 2022.
“Therefore, the argument 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) that the formation of said law was not in line with lawmaking principles was entirely legally groundless,” Justice Saldi 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.
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The Court asserted that ideally, the aspirations of all stakeholders related to any law are heard by the legislature. However, technically it might not be done optimally and might even lead to ineffective and inefficient formation. Therefore, Article 96 paragraph (3) of the Lawmaking Law limits the parties whose aspirations shall be heard during lawmaking to individuals and groups who have a stake in the substance of the bill. The elucidation to said article also limits these groups to CSOs, professional groups, NGOs, and customary law communities.
“Based on these facts, the Court saw that, formally, the activities the House have carried out—involving the provincial governments, provincial DPRDs, academics, and NGOs—were in accordance with lawmaking procedure. The Court also needs to emphasize that even though it does not form a special team involving 2 mayors and 11 regents and 13 regency/city DPRDs throughout South Kalimantan, it does not necessarily mean the formation of the South Kalimantan Law was formally flawed,” said Justice Saldi before Chief Justice Anwar Usman and the other constitutional justices in the plenary courtroom.
Also read: Relocation of Provincial Capital in Line with Banjarbaru City’s Vision
Dynamics of Democracy
Justice Saldi then asserted that the community’s rejection of the capital relocation, which the Petitioners showed in the evidence, was part of the dynamics of democracy and was irrelevant to the validity of a lawmaking process. This is because there would always be those who are for and against any law, and everyone has the freedom to express their opinion.
“Based on these legal considerations, the Court believes the Petitioners’ argument that a team of two mayors, 11 regents, and 13 DPRDs of South Kalimantan was not involved in the relocation of the center of South Kalimantan Province to Banjarbaru City and that the relocation was not done with clear concept and review nor did it hear the people’s aspirations was legally groundless,” Justice Saldi asserted.
Also read: Expert, Witness’ Written Testimonies Delayed, Hearing on S. Kalimantan Law Postponed
Granting of Legal Status
Next, the Court rejected the entire argument of the Petitioners in case No. 59/PUU-XX/2022 relating to Article 4 of the South Kalimantan Law, which they believed contradicted Article 1 paragraphs (2) and (3), Article 28D, Article 28F, Article 28H paragraph (1), Article 18B paragraphs (1) and (2) of the 1945 Constitution, following the legal considerations in the case No. 58/PUU-XX/2022. The relocation, the Court asserted, had not only just been determined based on the South Kalimantan Law.
Article 4, the Court opined, was rather a legal basis for Banjarbaru City’s status as center of government, as has been ongoing. The Court also found that based on the Report on the Data Collection Results of the Preparation of Academic Text and Bill on South Kalimantan Province, in fact, even though the capital was Banjarmasin, since August 14, 2011, some of the activities of the government had been moved to Banjarbaru City.
“Thus, based on all these legal considerations, the Petitioners’ argument that the relocation of the capital city of South Kalimantan Province from Banjarmasin City to Banjarbaru City in Article 4 of the South Kalimantan Law was unconstitutional is legally groundless,” Justice Saldi read.
Also read:
Petitioners Expert: Regional Capital City Relocation Regulated in Government Regulation
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Dismissed
For case No. 60/PUU-XX/2022 petitioned by Banjarmasin mayor Ibnu Sina and the South Kalimantan DPRD (Regional Legislative Council) chairman Harry Wijaya, the Court declared the petition dismissed. The ruling was read out by Chief Justice Anwar Usman.
In accordance with Article 34 of the Constitutional Court Law, the Court held a panel preliminary hearing on May 23 and, in accordance with Article 39 of the Constitutional Court Law and Article 41 paragraph (3) of the Constitutional Court Regulation No. 2 of 2021 on the Procedural Law for Judicial Review Cases, the panel gave advice to the Petitioners. The Court also held several hearings, the last of which was on September 19 to hear the experts and witnesses for the Petitioners as well as those for the Relevant Party, the Banjarbaru mayor.
However, on September 26, the Petitioners sent a letter requesting petition withdrawal dated September 3 because, based on the Regulation of the Minister of Home Affairs No. 30 of 2012 on Guidelines on the Naming of Region, Naming of Capital, Name Change of Region, Name Change of Capital, and Relocation of Capital in Articles 7 to 11 regulate the mechanism for provincial capital relocation, thus the effort to maintain Banjarmasin as the capital of South Kalimantan Province was not supposed to be through a judicial review but through an executive review.
Based on Article 35 paragraphs (1) and (2) of the Constitutional Court Law, a justice deliberation meeting (RPH) on September 26 had determined that the withdrawal request was legally grounded. The Petitioner would not be able to file the a quo petition again. Based on the aforementioned legal considerations, the Court ordered the Chief Registrar to record the Petitioners’ petition withdrawal in the electronic constitutional case registration book (e-BRPK) and to return the petition documents to the Petitioners.
“[The Court] ruled to grant the Petitioners’ petition withdrawal request; to declare the petition No. 60/PUU-XX/2022 on the formal and material judicial review of Law No. 8 of 2022 on the South Kalimantan Province against the 1945 Constitution withdrawn; declare the Petitioners unable to re-file the a quo petition; orders the Chief Registrar of the Constitutional Court to record the withdrawal of petition No. 60/PUU-XX/2022 in the electronic constitutional case registration book (e-BRPK) and to return the petition documents to the Petitioners,” Chief Justice Anwar read out.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/17/2022 08:34 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.
Thursday, September 29, 2022 | 13:27 WIB 119