Wednesday, March 26, 2014, | 18:49 WIB
The People’s Advocacy Team for Mining Sovereignty which consists of several Non-Governmental Organizations considers that judicial review of Law Number 4 Year 2009 on Mineral and Coal Mining (Minerba Law) Article 102 and Article 103 is mistaken. The team that became the party involved judicial review with case number 10/PUU-XII/2014 considered that the law was constitutional.
The legal counsel of the People’s Advocacy Team for Mining Sovereignty Ridwan Darmawan asked the Indonesian Mineral Entrepreneurs Association (Apemindo) as the Petitioner to pay close attention to the provisions contained in the article that were tested in-depth. Based on Article 103 paragraph 1 of the Mineral and Coal Law, the government through Regulation of the Minister of Energy and Mineral Resources Number 1 Year 2014 on Increasing Mineral Value Added Through Domestic Mineral Management and Refining Activities, the Government mandates that holders of Mining Business License (IUP) and Special Mining Business (IUPK) Production Operations must carry out processing and refining mining results in the country.
“The government carries out the mandate contained in the constitution through the enactment of laws and ensures that the Minerba Law can be understood, implemented and fulfilled by all elements through government regulations, relevant ministerial regulations, and other implementing regulations,” Ridwan explained in a follow-up session chaired by Deputy Chairman of the Constitutional Court Arief Hidayat in the plenary courtroom of the Constitutional Court, Jakarta, Wednesday (26/3).
Furthermore, Ridwan explained that Articles 102 and 103 of the Law have provided legal certainty. If the Petitioner is concerned about the existence of legal uncertainty by arguing in Government Regulation Number 23 Year 2010, Ministry of Energy and Mineral Resources (ESDM) Regulation Number 7 Year 2012, Ministry of Energy and Mineral Resources Regulation Number 20 Year 2013, Government Regulation Number 1 Year 2014, and ESDM Regulation Number 1 Year 2014, this is not the authority of the Constitutional Court to test the contradiction of these regulations.
These articles are also considered by the Related Party to be very clear and firm so that they do not need to be interpreted again. “In the opinion of Related Parties, Article 102 and Article 103 of the a quo law are clear and expressly regulating added value by processing and refining domestic mining products,” he said.
Previously, Apemindo represented by Refly Harun as the attorney considered that the government was inconsistent in implementing Article 102 and Article 103 of the Minerba Law. Both articles are interpreted by the government as a direct ban on the export of raw material (raw material) which took effect since January 12, 2014. However, the government’s interpretation is considered by the petitioner to conflict with several articles in the 1945 Constitution. In addition, the Government’s inconsistency in issuing regulations under the Act raises legal uncertainty.
“The essence of the government regulation does not prohibit exports, but there is the latest government regulation Number 1 Year 2014 on point 59, for example, it is said that the holders of Mining Business License (IUP) of production operations as referred to in number 2 who carry out metal mineral addition activities and have carried out processing activities can sell a certain amount. So, one can export, this is only a certain amount, then that particular amount is elaborated again in the Minister of Energy and Mineral Resources regulation which causes some to sell, some cannot,” he said.
In other words, Government Regulation Number 23 Year 2010 does not prohibit the export of raw material, while Minister of Energy and Mineral Resources Regulation Number 7 Year 2012 prohibits three months since the candy was issued. Then the amendment says that there can be export as long as it fulfills certain conditions. The next amendment, namely Ministerial Regulation Number 1 Year 2014 may not export after 5 years, but after being protested may export with certain conditions.
In addition, although the petitioner questions the regulations under the Act, Refly emphasized that issues related to the regulations under the Act could be constitutional issues if the application was repeated and exhausted. “We consider this matter is no longer a matter of regulation under the law, but a constutional problem, which raises legal uncertainty regarding the interpretation of Article 102 and Article 103 that we are concerned about,” he said. (Lulu Hanifah / mh)
Source: www.mahkamahkonstitusi.go.id