Constitutional.Court: Article 55, 61 Mining Law 2009 ?not legally binding?

By Godang Sitompul

The Indonesian Constitutional Court has on May 4 released the Decision of the Constitutional Court No. 30/PUU-VIII/2010, stating that Article 55/(1) and Article 61/(1) of the 2009 Mining Law, concerning mining permits (IUP) to be granted with the minimum concession sizes of 500 and 5,000 hectares, respectively, could potentially reduce or even take away, the rights of people to conduct small and medium-scale mining activities, considered as not in line with the 1945 constitution and therefore declared as not legally binding.

?It?s not certain whether an exploration area with the minimum size of 500 hectares or 5000 hectares are readily available, especially in areas where plotting of People?s Mining Areas (WPR) and State Mining Areas (WPN) have been done,? Chief Justice Mahfud MD on behalf of the Constitutional Court said.

The ruling also stated that the phrase ?through auction?, stated within Article 51, Article 60 and Article 75/(4), is deemed not legally binding unless the right interpretation is adopted, which is accompanying the auction with a certain range of administrative/management, technical, environmental and financial performance qualities of bidders for each auction object to avoid undermining the position and competitiveness level of small and medium scale miners in the bidding process.

Such decisions, nevertheless, are only concerning just parts of the articles of the Mining Law that were requested for judicial review as submitted back in 2010 by Johan Murod, Zuristyo Firmadata, Nico Plamonia and Johardi on behalf of the Indonesian Tin Miners Association (APTI) and the Bangka provincial branch of the Indonesian Mining Association (Astrada), as well as The Indonesian Forum for the Environment (Walhi) and the Indonesian Legal Aid and Human Rights Association (PBHI).

Other articles proposed were Article 22/f, Article 38, Article 51/(1), Article 52/(1), Article 58/(1), Article 75/(4), Article 172 and Article 173/(2) of the 2009 Mining Law.

In the account of Article 22, the court stated that the regulation can be applied cumulatively and alternatively in accordance with the condition in each regional area, namely through mechanism stipulated in Article 21 and Article 23 of the Mining Law. ?Considering the nation?s geographical terrain, such norms are highly suitable and are not contrary to the Constitution,? Mahfud said, adding that similar view also applied to Article 38/a and Article 172 as well as the remaining articles.

Though having annulled Articles 51/(1), 55/(1), 61/(1), and 75/(4) stating them to be no longer legally binding, the Constitutional Court have come to a decision to leave the remaining articles as they are.

As the Articles 169/a and Article 173/(2) were omitted in the petition, the Constitutional Court left out the two.

Editing by Er Audy Zandri