Chairman of the Association of Indonesian Customary Law Teachers Laksanto Utomo attending the preliminary hearing for the judicial review of Law No. 39 of 2008 on State Ministries, Monday (7/22/2024). Photo by MKRI/Ifa.

---

JAKARTA (MKRI) — The Association of Indonesian Customary Law Teachers (APHA), represented by chairman Laksanto Utomo and secretary-general Rina Yulianti, has filed a material judicial review petition of Article 5 paragraph (2) of Law No. 39 of 2008 on State Ministries. The preliminary hearing for case No. 67/PUU-XXII/2024 in one of the Court’s panel courtrooms on Monday, July 22, 2024 was presided over by Deputy Chief Justice Saldi Isra and Constitutional Justices Enny Nurbaningsih and Asrul Sani.

Article 5 paragraph (2) of the State Ministry Law reads, “Government affairs as referred to in Article 4 paragraph (2) letter (b) include matters relating to religion, law, finance, security, human rights, education, culture, health, social affairs, employment, industry, trade, mining, energy, public works, transmigration, transportation, information, communication, agriculture, plantation, forestry, animal husbandry, marine, and fisheries.”

One of the Petitioner’s legal counsels, Aditya Ramadhan Harahap, said the article is in violation of Article 1 paragraph (2), Article 1 paragraph (3), Article 18B paragraph (2), and Article 28D paragraph (1) of the 1945 Constitution because government only recognizes indigenous communities as a formality. They are made into the objects rules but are not given the opportunity to be the subjects of rules. They are even marginalized in development process, especially in terms of customary land. In addition, customary laws and national laws often clash when it comes to solving problems related to indigenous communities.

“Observed from a comparative approach, government affairs related to indigenous peoples in several countries have been institutionalized through special ministries that deal with the issues of indigenous peoples. Thus, this special ministry can then accommodate the aspirations and complaints of indigenous peoples who have limited direct access to the central government,” said legal counsel Viktor Santoso Tandiasa before the panel of justices.

In the petitum, the Petitioner requests that the Court grant the entire petition and declare Article 5 paragraph (2) of the State Ministry Law unconstitutional and not legally binding if not interpreted as “Government affairs as referred to in Article 4 paragraph (2) letter (b) include matters relating to religion, law, finance, security, human rights, indigenous peoples, education, culture, health, social affairs, manpower, industry, trade, mining, energy, public works, transmigration, transportation, information, communication, agriculture, plantation, forestry, animal husbandry, marine, and fisheries.”

Constitutional Impairment

Constitutional Justice Enny Nurbaningsih said that the Petitioner’s constitutional impairment should be connected to the norm and elaborated clearly. She also advised them to explain the special ministry on indigenous peoples in the eight countries mentioned in the petition.

“Do these indigenous peoples belong to the concept and category of indigenous peoples in the eight countries that have a state ministry on these peoples?” she asked.

Meanwhile, Constitutional Justice Asrul Sani said the Petitioner should explain the constitutional rights of indigenous peoples that are discriminated against, which led to injustice.

Next, Deputy Chief Justice Saldi Isra highlighted that the history of indigenous peoples in Indonesia and those in said eight countries must be explained.

“Are the indigenous peoples being regulated as subjects or objects? Explain in relation to the existing articles,” he said.

At the end of the session, Deputy Chief Justice Saldi Isra said the Petitioner would have 14 days to revise the petition and must submit it by Monday, August 5 at 09:00 WIB to the Registrar’s Office.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Fauzan Febriyan
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.

---