Counsel Feri Wirsamulia (center) conveying the subject matter at the panel preliminary hearing of the judicial review of Law No. 1 of 2014 on the Management of Coastal Zones and Small Islands, Wednesday (4/12/2023). Photo by MKRI/Ifa

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JAKARTA (MKRI) — The provisions prohibiting the exploration of coastal zones and small islands for mineral mining activities in Article 23 paragraph (2) and Article 35 letter k of Law No. 1 of 2014 on the Amendment to Law No. 27 of 2007 on the Management of Coastal Zones and Small Islands (Coastal Management Law) on Wednesday, April 12, 2023 in the plenary courtroom of the Constitutional Court (MK). The petition No. 35/PUU-XXI/2023 filed by PT Gema Kreasi Perdana, represented by executive director Rasnius Pasaribu.

At the hearing chaired by Chief Justice Anwar Usman, Feri Wirsamulia stated that the Petitioner is a limited liability company (PT) with a mining business permit for small islands. However, the local community objected to the business and filed a material judicial review of the Konawe Islands Regency Regulation No. 2 of 2021 on the Regional Spatial Plan of Konawe Islands Regency of 2021-2041 (vide Exhibit P-74, especially Article 24 letter d, Article 28, and Article 36 letter c, which specifically regulates mining areas on Wawonii Island, to the Supreme Court.

Feri added that the Supreme Court had handed over Decision No. 57/P/HUM/2022 on December 22, 2022 and ruled those articles were not legally binding as they were in violation of the a quo Law, especially Article 23 paragraph (2) and Article 35 letter k.

The Petitioner feels its constitutional rights had been violated by the enactment of Article 23 paragraph (2) and Article 35 letter k of the Coastal Management Law, which the Supreme Court interpreted as an unconditional ban on mining activities in the area through said decision.

“It has prevented the Petitioner as the holder of the region’s mining business permit from carrying out activities as a business in mineral mining and caused restlessness among its employees since they no longer have protection and legal certainty over the interpretation of the a quo Law.

Therefore, in the petitum, the Petitioner requested that the Court declare Article 23 paragraph (2) of the Coastal Management Law in violation of Article 28D paragraph (1) of the 1945 Constitution and, thus, not legally binding if interpreted as “as a prohibition against other activities outside of priority, including prohibition against mining activities, facilities, and infrastructure” and to declare Article 35 letter k in violation of Article 28D paragraph (1) of the 1945 Constitution and, thus, not legally binding if interpreted as “as an unconditional prohibition against mining activities.”

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to refer to Constitutional Court Regulation (PMK) No. 2 of 2021 in revising the petition and to revise the legal standing. “Put the norms petitioned in the legal standing part. The part on the Court’s authority must be revised with the latest Constitutional Court Law No. 7 of 2020,” he said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to revise his profile to describe the parties authorized to represent PT Gema Kreasi Perdana as a private legal entity. “It is actually detailed in the power of attorney, but it must be mentioned in the petition. As a private legal entity, [the company] refers to the PT Law. Explain who is authorized to represent it based on the PT Law,” he said.

Chief Justice Anwar Usman also advised the Petitioner to refer to Constitutional Court decisions on similar articles so that the petition would not be ne bis in idem with previous ones. “So that the background differs from those of previous cases. The petitioners might be different, but are the backgrounds the same with that of the Petitioner?” he said.

The Petitioner was given 14 workdays to revise the petition and submit it to the Registrar’s Office on Wednesday, April 26, 2023.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

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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