“Governor policy to revoke the non-Clean and Clear (CnC) mining permits (IUP) or shrinking the overlapping IUP area, is a form of built-in control, a-posteriori monitoring which classified as a corrective action, also implementation of Local Government Law no 23/2014,” said the lecturer of the Faculty of Administrative Science, University of Indonesia in the expert discussion entitled “Legal Strategy to Address the Obstacle of the Follow Up of Korsup Minerba”, last (15/5) in South Jakarta.
PWYP Indonesia initiated this discussion to support provincial government facing a number of lawsuits from companies whose IUP has been revoked and shrunk.
In South Sumatera, 7 mining companies filed lawsuit to the Administrative Court because of the IUP revocation by the provincial government of South Sumatera. In Central Sulawesi, 6 mining companies also filed lawsuit for the issuance of Central Sulawesi Governor’s Decree related to the shrinking of the overlapping mining permit areas. In its decision, the judges of Palu Administrative Court rejected 2 of 6 lawsuits with considerations that the policy issued by the governor has suited the mandate of applicable regulation. However, due to the issuance of those regulations, the Head of Energy and Mineral Resources (EMR) Agency of Central Sulawesi designated as a suspect for violation of article 165 Mining Law related to abuse of authority.
Whereas above provincial government policy is part of the follow up of Korsup Minerba that aimed to reform mineral and coal management in Indonesia. At the same time, it’s also part of the implementation of Ministerial Regulation no 43/2015 on the Evaluation Procedure for the Issuance of Mining Permits, that ends on 2 January 2017. Based on that regulation, Minister of MEMR and governors should terminate or revoke non-CnC IUP or the expired IUP.
Placement of ‘abuse of authority’ aspect as the basis of determination of Head of EMR Agency of Central Sulawesi as a suspect is debatable because the policy taken is surely in accordance with the law and regulations. This is certainly a bad precedent for the mineral and coal governance improvement, especially for the follow up of Korsup Minerba.
Based on that criminalization, Mayasari argued, “Article 50 in Criminal Code (KUHP) stipulated that whoever commit an act to enforce the law and regulations shall not be punished. Thus, the revocation of non-CnC IUP act is the act of the enacting of law. As long as the policy didn’t exceed its authority, so the policy maker can’t be punished.”.
Head of Legal Bureau, Ministry of Home Affairs (MHA), Widodo Sigit Pudjianto, stated that the MHA has sent letter on 23 January 2017 to the Chief of the Police of Republic of Indonesia, forwarded to the Attorney General, Minister of State Secretary and Governor of Central Sulawesi, which affirmed that the provincial authority toward mining permits is accordance with the mandate of Local Government Law. Besides that, MHA also committed to support the provincial government, including served as an expert witness during trial, if needed.
La Ode Ida, the Commissioner of Ombudsman Republic of Indonesia warned the law enforcer
to not cooperate with the industry fighting state in the context of mining management. La Ode
Ida added that local government potentially conducts maladministration if they do omission for
the non-CnC IUP in their areas.
A number of recommendations resulted in the expert discussion. The forum agreed to request the MEMR to provide written statement affirmed that the revocation/shrinkage of overlapping mining area is the evaluation policy based on Ministerial Regulation no 43/2015 and not shrinkage policy based on the request from IUP owners based on Article 74 paragraph 1 Government Regulation no 77/2014 on the third change toward Government Regulation no 23/2010 on The Implementation of Mineral and Coal Business Activity. Also to request KPK to facilitate a high level meeting with the law enforcer in order to re-affirm that the follow up of Korsup Minerba, especially related to the IUP governance, shall be supported by the law enforcer, not being “criminalized”.