The Petitioner’s legal counsel listening to the ruling for case No. 35/PUU-XXI/2023 on the Coastal Management Law, Thursday (3/21/2024). Photo by MKRI/Teguh.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of provisions on ban against mineral mining in coastal areas and small islands, filed by PT Gema Kreasi Perdana. The ruling hearing for Decision No. 35/PUU-XXI/2023 was presided over by Chief Justice Suhartoyo and the other eight constitutional justices on Thursday, March 21, 2024 in the plenary courtroom.
Delivering the Court’s legal considerations, Constitutional Justice stated that the Petitioner’s argument that 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) had not fulfilled the right to recognition, guarantee, protection, and fair legal certainty was legally groundless. As a whole, Article 35 of Law No. 27 of 2007 basically regulates the prohibition against the utilization of coastal areas and small islands on every person either directly or indirectly. The prohibition is followed by punishment, as Article 73 paragraph (1) letter f of Law No. 27 of 2007 reads, “Every person shall be sentenced with imprisonment for a minimum of 2 (two) years and a maximum of 10 (ten) years and be fined for a minimum Rp2,000,000,000.00 (two billion rupiahs) and a maximum of Rp10,000,000,000.00 (ten billion rupiahs), due to: carrying out mineral mining as referred to in Article 35 letter k.”
Justice Enny explained that the prohibition and punishment is a form of control over mineral mining activities in coastal zones and small islands, which are vulnerable and limited, thus requiring special protection. Abnormally dangerous activities in environmental law must be prohibited as they threaten the lives of all creatures and ecosystems.
“All activities that are not intended to support the life of the ecosystem above them, including but not limited to interests outside those prioritized, in this case mining, can be categorized as abnormally dangerous activity that in the doctrine of environmental law must be prohibited,” Justice Enny stressed.
She explained that the word “exclusion” in Article 35 letter k of Law No. 27 of 2007, which is formulated with the requirement “which from the technical, ecological, social and/or cultural aspects resulting in the damage to the environment and/or causing pollution to the environment and/or detrimental to the local community,” cannot be separated from a comprehensive understanding of Law No. 1 of 2014, especially Article 23, which stipulates the obligation to meet cumulative requirements when utilizing small islands and surrounding waters, i.e. the obligation to meet environmental management requirements; pay attention to the ability and sustainability of the local water system, and use environmentally friendly technology and comply with statutory provisions.
Thus, Justice Enny continued, the mandatory fulfillment of the requirements means that it does not rule out other interests outside those prioritized as long as they meet the mandatory requirements. However, fulfilling this is not easy because the key is how well the local government designs spatial planning arrangements in accordance with laws and regulations so that permits issued from such arrangements do not become an inter-generationally detrimental commodity. That is, the Petitioner’s argument on alleged preference between prioritized and non-prioritized activities of interest in the utilization of small islands and surrounding waters does not mean that those activities are a form of discrimination, but rather anticipatory measures of protection and regulatory efforts aimed at ensuring the sustainability of small island ecosystems and the surrounding environment.
The Petitioner’s argument that the provisions does not guarantee the right to recognition, protection, and fair legal certainty and equal treatment before the law was inaccurate. In fact, they were established with such aim by providing balance, protecting, conserving, rehabilitating, utilizing, and enriching resources of coastal zones and small islands and their ecological systems in a sustainable manner, as is the purpose of regulating the management thereof, especially as stipulated in Article 4 letter a of Law No. 27 of 2007.
In relation to that, Justice Enny continued, Article 23 paragraph (2) of Law No. 1 of 2014, which regulates the word “prioritized,” does not violate the Petitioner’s constitutional rights as a citizen to uphold the law and government and obtain fair legal certainty and equal treatment before the law. Therefore, the argument that it reduced citizens’ constitutional rights including the Petitioner’s was inaccurate.
Moreover, the Petitioner linked the constitutionality of Article 35 letter k to discrimination. In this regard, the definition of discrimination has been affirmed in Constitutional Court Decision No. 024/PUU-III/2005, which was then reaffirmed in various decisions including No. 97/PUU-XIV/2016, which essentially states that discrimination can be said to have occurred if there is any restriction, harassment, or exclusion that is directly or indirectly based on human distinction on the basis of religion, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in the reduction, deviation, or elimination of recognition, implementation, or use of human rights and basic freedoms in individual and collective life in the political, economic, legal, social, cultural, and other aspects of life.
Based on this interpretation, after the Court carefully examined Article 35 letter k of Law No. 27 of 2007, the article does not contain elements of discrimination. Moreover, it was important for the Court to emphasize that the PWP3K Law was established to protect the sustainability and preservation of coastal zones and small islands in the Republic of Indonesia.
Therefore, the Court is of the opinion that Article 23 paragraph (2) of Law 1 No. 1 of 2014 and Article 35 letter (k) of Law No. 27 of 2007 are not contrary to fair legal certainty and equal treatment as stipulated in Article 28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution, not as argued by the Petitioner. Thus, the Petitioner’s arguments are unreasonable according to the law in their entirety.
As a result, the Constitutional Court rejected the entire petition. However, four justices—Chief Justice Suhartoyo, Constitutional Justice Anwar Usman, Constitutional Justice Daniel Yusmic P. Foekh, and Constitutional Justice M. Guntur Hamzah—had concurring opinions.
Also read:
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
Legal Politics of Coastal and Small Islands Management
Mining in Wawonii Island Damage Social Harmony and Cohesion
Witnesses Talk Effects of Mining in Wawonii Island
Experts: Mining in Small Islands Lead to Serious Harms
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 felt 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 had a valid permit by the mining authority to mine nickel in the area. Its permit had 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 : 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.
Thursday, March 21, 2024 | 16:06 WIB 202