The Petitioners’ legal counsels delivering the petition’s subject matter at the preliminary hearing of the judicial review of Law No. 32 of 2024 on Biodiversity and Ecosystems Conservation, Monday (10/7/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a formal judicial review hearing of Law No. 32 of 2024 on the Amendment to Law No. 5 of 1990 on the Conservation of Biodiversity and Their Ecosystems on Monday, October 7, 2024. The case No. 132/PUU-XXII/2024 was filed by the Indigenous Peoples of the Archipelago (AMAN), the Indonesian Forum for Living Environment (WALHI), the People’s Coalition for Fisheries Justice (Kiara), and Bernama Mikael Ane, a farmer.

Before Deputy Chief Justice Saldi Isra and members of the panel, legal counsel Gregorius Bruno Djako stated that the Petitioners believe Law No. 32 of 2024 is neither beneficial, effective, nor useful, especially for indigenous peoples and local communities as legal subjects in its implementation. This is because substantive problems will certainly arise and be experienced by indigenous peoples or local communities living in and around conservation areas.

He argued that the exclusion of affected parties and parties concerned with Indonesia’s biodiversity and their ecosystems has caused Law No. 32 of 2024 to not have any clear objectives, such as an understanding of ecosystems that does not touch the level of legal subjects closely related to the ecosystem of Indonesia's biological natural resources in the case of indigenous peoples and local communities living in and around conservation areas designated by the state.

In fact, because it does not involve affected parties and concerned parties in Law No. 32 of 2024, it opens more loopholes for potential criminalization, deprivation of rights, discrimination, and neglect of the rights of indigenous peoples and local communities living in and around conservation areas. Therefore, it is clear that the clarity of purpose of the formation of Law No. 32 of 2024 is flawed.

Gregorius also explained that Law No. 32 of 2024 does not realize the transformation of conservation policies that are fair, inclusive, cultured, and characterized by the archipelago. It further confirms the centralization of the authority of the administrators as in Law No. 5 of 1990 amended by Law No. 32 of 2024, and neglects the fulfillment of human rights, especially of indigenous peoples and local communities as those most impacted by conservation policies, and could potentially create conflicts between the community and the Government.

“This means that it is clear and obvious and sufficient to prove that the formation of Law No. 32 of 2024 is contrary to the principles of utilization and usefulness,” explained Gregorius.

He also argued that the formation of Law No. 32 of 2024 should have accommodated more inputs from indigenous and local communities who would be directly affected by it, and not ignored inputs from concerned and affected parties. In other words, the lawmaking process should be based on empirical practices and experiences faced by indigenous and local communities, both those excluded due to the existence of conservation areas designated by the government, and those who have been actively carrying out conservation activities outside the conservation areas designated by the government.

As per the Lawmaking Law that mandates meaningful public participation, the House of Representatives (DPR) and the Government should have involved indigenous and local communities as well as civil society organizations to sit together to formulate provisions in Law No. 32 of 2024 that do not discriminate against indigenous peoples, so that this law can truly improve the effectiveness of conservation activities while achieving social and ecological justice that provides benefits to the community and the environment.

In addition, the Petitioners believe Law No. 32 of 2024 have discriminatory articles and could potentially eliminate the rights of indigenous peoples to customary forests guaranteed under Article 18B paragraph (2) of the 1945 Constitution and Constitutional Court Decision No. 35/PUU-X/2012. In fact, several civil societies in their policy papers have encouraged the elimination of provisions on customary forest in the a-quo Law.

In their petitums, the Petitioners request the Court to declare Law No. 32 of 2024 unconstitutional and not legally binding. They also asked the Court to declare Law No. 5 of 1990 as well as Article 33 and Article 69 letter c of Law No. 17 of 2019 on Water Resources valid. 

Justices’ Advice

In response, Constitutional Justice Arief Hidayat advised the Petitioners to revise the posita by pointing out the flaws of the formulation of Law No. 32 of 2024. “Was there no academic paper at the time of the first drafting? Has the academic paper been discussed or not, has it been disseminated yet, and so on? It should also be discussed in the posita so that it shows that each process has stages,” he said.

The panel gave the Petitioners 14 days to revise the petition and submit it to the Registrar’s Office by Monday, October 21 at 15:00 WIB.

Author            : Utami Argawati
Editor             : N. Rosi
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.

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