The Secretary-General of the Constitutional Court opened the Focus Group Discussion (FGD) on Monitoring and Evaluating the Implementation of Constitutional Court Decisions in Samarinda. / Photo by Humas Yuwandi.

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SAMARINDA, MKRI – The Constitutional Court (MK), in collaboration with the Constitutional Law Study Center of the Faculty of Law at Mulawarman University (Unmul), held a Focus Group Discussion (FGD) on the Monitoring and Evaluation of Constitutional Court Decisions for 2024 from Thursday to Saturday, August 29-31, 2024, at the Fugo Hotel in Samarinda, East Kalimantan. MK conducted monitoring and evaluation (monev) of the following decisions: No. 45/PUU-IX/2011, No. 35/PUU-X/2012, No. 95/PUU-XII/2014, No. 24/PUU-XXII/2024, and No. 37/PUU-XIX/2021.

MK invited several stakeholders to discuss these five decisions, including plaintiffs, lawmakers, regulators, policymakers, academics, and the public affected directly or indirectly by the MK's decisions. The five MK decisions addressed different issues; Decision No. 45/PUU-IX/2011 concerns the status of forest areas designated and/or established by the government; Decision No. 35/PUU-X/2012 relates to customary law community lands and forests as state forests; Decision No. 95/PUU-XII/2014 addresses the rights of customary law communities and the arrangement, regulation, and management of forests by the state or government; Decision No. 24/PUU-XXII/2024 prohibits the filing of judicial reviews by State Administrative Bodies/Officials in post-MK decision State Administrative disputes; Decision No. 37/PUU-XIX/2021 concerns the issuance of Mining Business Permits (IUP) by the central and regional governments and their correlation with environmental damage and the criminalization of communities advocating for their rights.

On the second day of the FGD, Friday, August 30, 2024, participants were divided into five clusters, each with source persons and relevant parties. The activities began with presentations on the background of the judicial review, MK's rulings, the regulations, policies, and actions for implementing the decisions, the dynamics and challenges of implementation, and the formulation of FGD results.

Constitutional Justice Enny Nurbaningsih delivered a keynote speech on the final and binding nature of MK decisions. The FGD was officially closed by Constitutional Justice Arsul Sani.

Before the closure, MK Secretary-General Heru Setiawan on Saturday, August 31, 2024, presented the results of the FGD. Heru stated that MK had received support from the National Medium-Term Development Plan (RPJMN) for law and constitution supremacy until 2024 and its transition to a new government. The program included case handling and enhancing legal and constitutional understanding, accompanied by the publication and dissemination of information, and the monitoring and evaluation (monev) of MK decision implementations.

“This monitoring and evaluation are crucial because MK decisions are final and binding, and they must be implemented. However, the Secretariat General and Registrar's Office are holding this event as part of a program to support the RPJMN, and we want to identify any technical difficulties in implementing MK decisions,” said Heru.

Cluster I  

Cluster I: Decision No. 45/PUU-IX/2011 concerns the review of Law No. 41 of 1999 on Forestry, as amended by Law No. 19 of 2004. The petitioners include the Regional Governments (Pemda) of Kapuas, Gunung Mas, Katingan, Barito Timur, Sukamara, and a private individual. The decision fully granted the petitioners' request, ruling that the phrase “designated and/or” in Article 1, paragraph 3 of Law No. 41/1999 is in conflict with the 1945 Constitution and has no binding legal force.

Heru explained that the source persons and participants in Cluster I generally considered the review of Law No. 41 of 1999 on Forestry to be a correct action in providing legal certainty regarding the designation of forest areas. The MK decision has been followed up at the implementation level with several legislative products related to forest areas, including the Job Creation Law, Government Regulation No. 23 of 2021 on Forestry Administration, and Minister of Environment and Forestry Regulation No. 7 of 2021 on Forestry Planning, Forest Area Allocation and Function Changes, and Forest Area Use.

However, the source persons and participants generally identified several issues in the designation of forest areas related to the MK Decision. These issues include inaccuracies in the source maps for forest area designation and the existing conditions of the areas; control by capital owners/powerholders compared to community control and even state apparatus; inconsistencies in the allocation and function of areas; and the dichotomy of area status.

Cluster II  

Cluster II: Decision No. 35/PUU-X/2012 concerns the review of Law No. 41 of 1999 on Forestry, filed by the Indigenous Community Alliance (AMAN), the Kenegerian Kuntu Indigenous Community Union, and the Kasepuhan Cisitu Indigenous Community Union. The decision partially granted the petitioners' request. The Court declared that the word “state” in Article 1, paragraph 6 of Law No. 41/1999 is in conflict with the 1945 Constitution; reinterpreted Article 4, paragraph (3) and Article 5, paragraph (1); and stated that Article 5, paragraph (2) and the phrase “and paragraph (2)” in Article 5, paragraph (3) are in conflict with the 1945 Constitution and have no binding legal force.

Heru stated that source persons and participants generally welcomed the decision on the review of Law No. 41 of 1999 on Forestry as it opened a door for recognition and protection of indigenous communities. Participants believed that the Court should have issued a more progressive and comprehensive ruling rather than leaving some issues unresolved.

According to the source persons and participants, the MK decision should be followed up by enacting the Draft Law on Indigenous Communities (RUU MHA) into law. However, they generally found that the challenges in the process of establishing indigenous communities include varying criteria for MHA across regulations; overlapping concessions in indigenous areas; and the Regional Regulation No. 1 of 2023 on Spatial Planning (RTRW) not mentioning indigenous areas, thus requiring responsive efforts from the government, particularly local governments, to accelerate the identification of MHA and their rights.

Cluster III  

Cluster III: Decision No. 95/PUU-XII/2014 concerns the review of Law No. 18 of 2013 on the Prevention and Eradication of Forest Destruction and Law No. 41 of 1999 on Forestry. The petitioners in this case include the Deputy Chairperson of the Guguk Malalo Nagari Customary Institution (KAN) along with other residents, and the following organizations: the Indonesian Environmental Foundation (WALHI), AMAN, the Agrarian Reform Consortium (KPA), the Palm Oil Monitor Association (Sawit Watch), Indonesia Corruption Watch, and the Silvagama Foundation. The decision partially granted the petitioners' requests concerning several articles in Law No. 18/2013.

Heru stated that source persons and participants believe that the decision on the review of Law No. 18 of 2013 on the Prevention and Eradication of Forest Destruction and Law No. 41 of 1999 on Forestry, which targets indigenous communities and/or communities living in forest areas, did not provide sufficient knowledge and information related to this decision. They noted that the decision has created exceptions to the ban on commercial interests.

In terms of regulation and enforcement of forest criminal acts, there is a principle of exception for utilizing natural resources for non-commercial purposes. Furthermore, the application of forest criminal law should be seen as an affirmative policy for indigenous communities living traditionally within the forest.

Source persons and participants generally agreed that there is still criminal activity against indigenous communities following Decision No. 95/PUU-XII/2014 up to the present. To address issues related to customary law, it is essential to view them from a comprehensive perspective based on previous MK decisions, namely Decision No. 34/2011, Decision No. 45/2011, and Decision No. 35/2012, as they form a complex unity.

Cluster IV  

Cluster IV: Decision No. 24/PUU-XXII/2024 concerns the review of Law No. 5 of 1986 on Administrative Court Procedure, requested by a housewife represented by attorney Mohammad Erzad Kasshiraghi and colleagues. The decision partially granted the petitioner’s request. Essentially, the Constitutional Court interpreted Article 132 paragraph (1) of Law No. 5/1986 to mean, “Against decisions of the Court that have obtained permanent legal force, a petition for review may be submitted to the Supreme Court, except by Administrative Bodies or Officials.” However, there were dissenting opinions from Constitutional Judge and Chairman Suhartoyo and Constitutional Judge Daniel Yusmic P Foekh.

Heru reported that source persons and several participants considered the petition to review Law No. 5 of 1986 on Administrative Court Procedure as a means to expedite the execution of final administrative court decisions and refute claims by administrative bodies/officials that delay the execution of decisions with permanent legal force, although technically a petition for review does not suspend the execution of the decision. Source persons and participants believed that the Supreme Court has not yet issued a policy to address this decision. However, in Supreme Court Decision No. 84/PK/TUN/2024, the Court used the Constitutional Court’s decision as legal consideration to reject the petitioner’s review request.

Thus, source persons and participants argued that the implementation of this decision has not yet been comprehensively observed or understood, as it was only recently decided. Nevertheless, it is anticipated that there will be many challenges in implementing the decision going forward.

Cluster V  

Cluster V: Decision No. 37/PUU-XIX/2021 concerns the review of Law No. 3 of 2020 on Amendments to Law No. 4 of 2009 on Mineral and Coal Mining, as amended by Law No. 11 of 2020 on Job Creation (UU Cipta Kerja). The petitioners are WALHI, the East Kalimantan Mining Advocacy Network (JATAM), and two individual citizens. The decision states that the petitioners' request regarding Article 4 paragraph (2) and Article 4 paragraph (3) of Law No. 3/2020 is inadmissible, and reinterprets Article 17A paragraph (2), Article 22A, Article 31A paragraph (2), and Article 172 paragraph (2) of Law No. 3/2020.

Heru explained that source persons and participants viewed the issues raised in the review of Law No. 3 of 2020 on Amendments to Law No. 4 of 2009 on Mineral and Coal Mining, as partially amended by the Job Creation Law, as matters of public interest related to environmental conservation, natural resource protection, and the criminalization of communities. They generally perceived that the decision has conceptually and practically led to a shift from decentralization to centralization of policies, with the central government following up by establishing or amending related regulations.

They further noted several challenges in implementing the Constitutional Court’s decision, including the potential for the issues to re-emerge as cases before the Court and resistance from the public, particularly from environmental activists and observers.

According to the activity report, Heru noted that the focus group discussion (FGD) was conducted successfully and with enthusiasm. He hopes that this FGD can be continued on another occasion.

Mimi Kartika 

Editor: N. Rosi.

Author          : Mimi Kartika
Editor           : N. Rosi.
Translator     : Agusweka Poltak Siregar (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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