Aan Eko Widiarto testifying as an expert at a judicial review hearing of the Law on the Management of Coastal Zone and Small Islands, Wednesday (11/1/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Coastal zones and small islands are intended for the greatest prosperity of the people in accordance with the development and legal needs of the community. They are not intended to be neglected without producing any benefit, but are to be utilized while maintaining sustainability and a global perspective, as well as paying attention to community aspirations and participation and national values based on national legal norms. This was conveyed by Aan Eko Widiarto as the Petitioner’s expert at a material judicial review hearing of 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/PWP3K Law) on Wednesday, November 1, 2023 in the plenary courtroom.
Aan said that the legal politics of the formation of the Coastal Management Law does not prohibit the utilization of small islands and surrounding waters. This is in line with the Court’s stance in Decision No. 3/PUU-VIII/2010, in which the Court held that to avoid transferring state control over the management of coastal waters and small islands to private parties, the state can grant management rights through licenses. The granting of licenses to private parties cannot be interpreted as reducing the state’s authority to make policies (beleid), regulate (regelendaad), manage (bestuursdaad), operate (beheersdaad), and supervise (toezichthoudensdaad) for the purpose of the greatest prosperity of the people.
“Additionally, it is still possible for the state to fully control and supervise all management of coastal waters and small islands. Through the licensing mechanism, the granting of management rights to the private sector is not a provision that transfers full state control to the private sector within a certain period of time. Thus, coastal waters and small islands can still be managed in an integrated manner and synergy can be built in various sectors, overlapping management and conflicts of use and authority solved, and legal certainty provided,” he explained.
The Court also emphasized that in order to prevent misunderstandings and doubts that cause the lack of legal certainty over the regulation of coastal zones and small islands, it needs to be emphasized that in accordance with Article 58 of the Constitutional Court Law, the Constitutional Court Decision has legal consequences since it was pronounced and applies prospectively and not retroactively. Thus, all agreements or contracts and business licenses in the field of management of coastal zones and small islands that have been signed and issued under the Coastal Management Law remain valid until they expire or are no longer valid.
He also said that the norms of the law should be free from vagueness, conflict, and/or vacuum in order to ensure legal certainty and a sense of justice. However, if due to limitations, either technically in drafting or non-legal influences in the formulation, this is where the Court as the guardian and the interpreter of the Constitution will solve the issue according to the 1945 Constitution through its decision.
Aan asserted that Article 23 paragraph (2) of the Coastal Management Law needs to be declared unconstitutional and not legally binding, insofar as it is not interpreted that the utilization of small islands and surrounding waters is not prohibited for other than prioritized utilization. Article 35 letter (k) of the Coastal Management Law also needs to be declared unconstitutional and not legally binding, insofar as it is not interpreted to prohibit mineral mining in areas that are technically and/or ecologically and/or socially and/or culturally not causing environmental damage and/or environmental pollution and/or harm to the surrounding community.
Petitioner’s Witnesses’ Testimonies
At the hearing, the Petitioner presented two witnesses, Abarudin and Marlion. Abarudin explained that in the past, he and some residents rejected PT GKP’s mining activities on Wawoni Island because the Konawe Islands Regency Government initially did not provide a firm decision regarding whether or not PT GKP could operate on the island. On December 31, 2019 a meeting took place between parties for and against the company’s mining operation at the house of resident Lagumba in Sukarela Jaya Village, Southeast Wawonii Subdistrict.
“As a result, the parties for and against [mining] agreed that if the Konawe Islands Regency Government determined whether to support or reject PT GKP’s investment, both parties would follow all decisions by the Konawe Islands Regency Government,” he explained.
He asserted that as a Wawonii community he felt positive impacts of PT GKP’s operation on the island. The Konawe Islands Regency Government also supports the mining. PT GKP has had a positive impact on the surrounding villages which can be seen from the increase in the number of household industries, stalls/shops, and retail traders in surrounding villages. In addition to CSR programs, the company also employs Wawonii locals, reducing unemployment in the villages.
“I personally heard accusations from rejectionists in the community that PT GKP was polluting the environment, resulting in the turbid river water, which is used for drinking by the community. On this occasion, I would like to say that these accusations are not true,” said Abarudin.
Provisions on Ban on Mineral Mining in Coasts and Isles Challenged
PT Gema Kreasi Perdana Revises Petition on Mineral Mining in Coasts and Isles
Provisions on Management of Small Islands Serve to Protect and Conserve
Customary Community’s Rights in Coastal and Small Island Areas
Govt Has Good Control over Small-Island Mining
The case No. 35/PUU-XXI/2023 on the judicial review of Article 23 paragraph (2) and Article 35 letter k of the PWP3K Law was filed by PT Gema Kreasi Perdana, represented by executive director Rasnius Pasaribu. The Petitioner is a limited liability company (PT) with a mining business permit for small islands. It 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 small islands, while the Petitioner has a valid permit by the mining authority to mine nickel in the area. Its permit has undergone changes from the initial permit No. 26 of 2007, issued prior to the enactment of Law No. 27 of 2007.
The Petitioner asserted that if Article 23 paragraph (2) and Article 35 letter k of Law No. 1 of 2014 be interpreted as an unconditional ban on mining activities, all spatial planning for coastal zones and small islands regulated in regional regulations would conflict with the a quo Law and must be revised. As a consequence, all activities by mining companies in those areas must be ceased. This would be detrimental to those companies, including the Petitioner, who had paid their dues to the state.
Author : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Tahlitha Laela/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.
Wednesday, November 01, 2023 | 16:04 WIB 300