Rega Felix, Petitioner, presenting the subject matters of his petition during the preliminary panel hearing reviewing Law No. 3 of 2020 on Mineral and Coal Mining, Wednesday (7/24/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — An advocate and lecturer, Rega Felix, filed a judicial review of Article I, point 4, which includes the amendment of Article 6, paragraph (1), letter j, and Article I, point 26, which includes the amendment of Article 35, paragraph (1) of Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal Mining (Minerba), against the 1945 Constitution to the Constitutional Court (MK). The first hearing of Case no. 77/PUU-XXII/2024, presided over by Justice Enny Nurbaningsih alongside Justice M. Guntur Hamzah and Justice Arsul Sani, took place in the Plenary Courtroom on Wednesday, July 24, 2024.
Rega stated that the policy of offering a concession of Special Mining Business License Areas (WIUPK) to religious organizations did not meet the parameters for being applied as an affirmative policy under the 1945 Constitution. The government could give them concessions as long as the considerations were not based on ethnicity, religion, race, and inter-group. If such priorities were given based on these considerations, it would clearly contradict Article 28I, paragraph (2), and Article 33, paragraph (3) of the 1945 Constitution. The term “priority” in the contested article's norm was unclear in its boundaries and could create a self-referential norm for the president.
“Thus, the Court, as the sole interpreter of the Constitution, based on reasonable reasoning, had legal grounds to declare that Article I, point 4, which includes the amendment of Article 6, paragraph (1), letter j, and Article I, point 26, which includes the amendment of Article 35, paragraph (1) of the Minerba Law, contradicted the 1945 Constitution and conditionally did not have binding legal force as long as it was not interpreted without considerations based on ethnicity, religion, race, and inter-group,” said Rega.
Furthermore, the Petitioner stated that he also had the constitutional right to be treated equally, even though he was not a member of a religious organization. On the one hand, the Petitioner, as a lecturer and an advocate, had a moral responsibility to advocate this issue to the Court to find a solution for the common good. The Petitioner acknowledged that this issue was complex and obscure, meaning it had positive aspects but also hidden dangers. The Petitioner feared that if this issue were not addressed by the Court, it could become a social disaster and cause academic bias. The Petitioner honestly admitted that, under any circumstances, the Court was currently the “most” appropriate forum for open academic discourse. Therefore, the Petitioner requested the implementation of Article 54 of the Constitutional Court Law because the Court was the guardian of human rights, not the guardian of the ruler.
In the petitum, the Petitioner requested that the Court declares the phrase “prioritizing the offer of WIUPK” in Article 6, Paragraph (1), letter j, as amended by Article I, point 4 of the Minerba Law, to be in conflict with the 1945 Constitution and conditionally without binding legal force as long as it is not interpreted as “prioritizing the offer of WIUPK without considerations based on ethnicity, religion, race, and inter-group.” Furthermore, the Petitioner requested that the clause “Mining businesses are carried out based on business licenses from the central government” in Article 35, Paragraph (1), as amended by Article I, point 26 of the Minerba Law, be declared in conflict with the 1945 Constitution and conditionally without binding legal force as long as it is not interpreted as “Mining businesses are carried out based on business licenses from the central government without considerations based on ethnicity, religion, race, and inter-group.”
Issues with the Norm
Justice M. Guntur Hamzah, on the advice of the Panel Hearing, provided notes on the description of the petitum included by the Petitioner. Justice Guntur suggested that the petitum be crafted according to the standard wording of a petitum filed to the Court. Justice Guntur also advised the Petitioner to be consistent in using foreign legal terms, such as “self-reference norm.”
“This petition is very interesting, but there are some inconsistencies that, in context, could change its legal meaning. Therefore, it is expected to be more consistent in using foreign/English legal terms,” said Justice Guntur.
Meanwhile, Justice Arsul provided notes on the constitutional harm claimed by the Petitioner regarding the definition of discrimination given to religious organizations. “This is given to all religious organizations. Are any of them discriminated against because of this offer? Some accept it, and some do not, and their positions are respected. In this situation, where is the discrimination? This needs to be explained more clearly as implied by the Petitioner,” stated Justice Arsul.
Moreover, Justice Enny observed that the Petitioner’s request still needed refinement regarding the review of Article 35, paragraph (1) of Law No. 3 of 2020, which is considered intertwined with the contents of the following articles. “Is there really an issue of constitutionality with this norm? Because this relates to the legal standing of the Petitioner, which is not apparent in the review of these norms,” said Justice Enny.
At the end of the hearing, Justice Enny mentioned that the Petitioner could refine the petition within the next 14 days. The revised document should be submitted no later than Tuesday, August 6, 2024, at 1:00 PM WIB to the Court’s Registrar's Office. Subsequently, the Court will schedule a second session to present and hear revisions made by the Petitioner.
Author : Sri Pujianti
Editor : N. Rosi
Translator : Naomi Andrea Zebua/Rizky Kurnia Chaesario (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, July 24, 2024 | 15:58 WIB 110