The positive fictitious approach is considered quite effective in encouraging control of mining permits due to the fast legal process and final and binding decisions. This was conveyed in a discussion on the PWYP Knowledge Forum (PKF) 8/12. Wendra Rona, Coordinator of the Human Rights Division HAM Legal Aid Service LBH Padang shared about LBH Padang’s lessons in using a positive fictitious approach to regulate mining permits in West Sumatra Province. This positive fictitious approach is considered fast because it only requires 21 working days, and no further legal action can be filed against the court’s decision.
The positive fictitious argument is contained in Article 53 of Law number 30/2014 concerning Government Administration; that is, if the government or public officials are silent or do not issue a decision or decision (beschikking) against the community’s request, then it is considered legally granted. Wendra explained that this law is a form of change that encourages the government to be more proactive in following up on public requests.
Wendra emphasized the importance of thoroughness and careful preparation in compiling a positive fictitious application to the Civil Court of Justice (PTUN), especially in preparing legal standing arguments in the petition. In his application to the Civil Court of Justice (PTUN), Legal Aid Service (LBH) Padang, must clearly explain the applicant’s position and interests.
The legal standing argument in the petition must also be proven through the applicant’s identity document. Also, collecting evidence must be carefully prepared from the beginning. This is because the trial process is only 21 days, which is different from civil and criminal cases.
“One of the conveniences in the Civil Court of Justice (PTUN) trial, applicants are allowed not to attach original documentary evidence. This aims to balance and equalize the position of the applicant and the respondent, “added Wendra.
Also, the applicant needs to build a framing from the beginning of the trial. According to Wendra, it is necessary to present expert witnesses who explain the most basic mining sector matters to provide a basis for understanding for judges.
This applies to the Civil Court of Justice (PTUN) by Legal Aid Service (LBH) Padang does not stand alone. Previously, Legal Aid Service (LBH) Padang had made several efforts to control mining permits. Starting from sending letters requesting information/mining permit data, campaigns in the media, and discussions with academics. The Governor of West Sumatra has implemented part from the application of the Legal Aid Service (LBH) at the Civil Court of Justice (PTUN) with verdict number 2 / P / FP / 2017 / PTUN-PDG of the decision, namely only revoking 21 Mining Licenses out of 26 Licenses with non-CnC status. Therefore, supervision of court decisions needs to be monitored.