Chief Justice Suhartoyo and Deputy Chief Justice Saldi Isra presiding over the hearing to pronounce the decision on the judicial review of Law No. 39 of 2008 on the Ministry of State, Tuesday (20/08) in the Courtroom. Photo PR/Ifa.

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JAKARTA, HUMAS MKRI - The Constitutional Court (MK) rejected the judicial review of Article 5 paragraph (2) of Law No. 39 of 2008 on the Ministry of State (State Ministry Law) in its entirety. The Decision Pronunciation Hearing No. 67/PUU-XXII/2024 was held in the Plenary Courtroom of the Constitutional Court on Tuesday, August 20, 2024. This petition was filed by the Association of Customary Law Teachers (APHA).

In the legal considerations delivered by Constitutional Justice Enny Nurbaningsih, relating to the state's obligation to recognize and respect customary law communities, cannot be separated from each of the government affairs contained in Article 5 paragraph (2) of Law No. 39 of 2008. The absence of a ministry specifically established in charge of “customary affairs” does not mean that the state ignores efforts to recognize and respect the unity of indigenous peoples.

The establishment of a ministry of customary affairs that specifically takes care of the interests of indigenous peoples could complicate coordination and lead to overlapping authorities. This is because, in practice, there are a number of government affairs that intersect with the interests of indigenous peoples or even have “customary affairs” attached to them.

Improved Coordination Between Ministries

While the issue argued by the Petitioners regarding the perceived lack of attention and protection of the rights of Indigenous peoples, the Court is of the opinion that it should be resolved by improving coordination between ministries whose government affairs intersect with the interests of Indigenous peoples. Indeed, the protection of indigenous peoples in the coordination of government administration requires the support of a strong legal basis in the form of legislation.

For this reason, lawmakers must prioritize the establishment and enactment of laws that specifically regulate indigenous peoples. Moreover, the Bill on Indigenous Peoples has been included several times in the list of the National Legislation Program (Prolegnas). This is in line with the mention of customary law communities and their traditional rights in Article 18B paragraph (2) of the 1945 Constitution, which needs to be regulated by law.

Establishing a law on indigenous peoples should be addressed as a constitutional command. Thus, a number of concrete issues and problems expressed by the Petitioners in their arguments can be overcome and addressed if there is a law specifically regulating indigenous peoples. Therefore, issues of government affairs relating to indigenous peoples that have been implemented by various ministries can be coordinated properly.

“The existence of a number of such issues cannot be the basis for interpreting or including the word ‘customary ’ in government affairs in the norms of Article 5 paragraph (2) of Law No. 39 of 2008. Thus, the Petitioners' argument regarding Article 5 paragraph (2) of Law No. 39 of 2008 is contrary to Article 18B paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia has no basis in law,” Enny explained.

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APHA Reaffirms Customary Communities Marginalization

In the Preliminary Hearing held on Monday, July 22, 2024, the Petitioners stated that the article was contrary to Article 1 paragraph (2), Article 1 paragraph (3), Article 18B paragraph (2), and Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia. Because in government affairs, recognition of indigenous peoples is still limited to formality. They are only used as objects of regulation but are not given the opportunity to become the subject of a regulation. In fact, indigenous peoples are marginalized in the development process, especially regarding the existence of customary or ulayat land belonging to these indigenous peoples. In addition, in resolving issues related to indigenous peoples, the Petitioners recognize that there is a clash between customary law and Indonesian national law.

In its petitum, the Petitioners request that the Court grant the Petitioners' petition in its entirety. The Petitioners also requested that Article 5 paragraph (2) of the State Ministry Law be contrary to the 1945 Constitution and have no binding legal force, as long as it is not interpreted: “Government affairs as referred to in Article 4 paragraph (2) letter b include religion, law, finance, security, human rights, indigenous peoples, education, culture, health, social affairs, labor, industry, trade, mining, energy, public works, transmigration, transportation, information, communication, agriculture, plantation, forestry, animal husbandry, marine, and fisheries.” (*)

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

Translators: Rizky Kurnia Chaesario/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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