DECISION
Number 45/PUU-IX/2011
FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Hearing constitutional cases at the first and final levels has passed a decision in the case of petition for Judicial Review of Law Number 41 Year
1999 concerning Forestry as amended by Law Number 19 Year 2004 concerning the Stipulation of Government Regulation in Lieu of Law Number 1
Year 2004 concerning Amendment to Law Number 41 Year 1999 concerning
Forestry to become a Law under the 1945 Constitution of the Republic of
Indonesia, filed by:
[1.2] 1. Regional Government of Kapuas Regency represented by:
Name : Ir. H. Muhammad Mawardi, MM.
Place/date of birth : Amuntai, June 5, 1962
Occupancy : Regent of Kapuas, Central
Kalimantan Province
Address : Jalan Pemuda KM. 55 Kuala Kapuas
referred to as ------Petitioner I;
2. Name : Drs. Hambit Bintih, MM.
Place/date of birth : Kapuas, February 12, 1958
Occupation : Regent of Gunung Mas, Central
Kalimantan Province 2
Address : Jalan Cilik Riwut KM 3,
Neighborhood Ward 011,
Neighborhood Block 003, Kuala
Kurun Village, Kuala Kurun District,
Gunung Mas Regency
referred to as ------Petitioner II;
3. Name : Drs. Duwel Rawing
Place/date of birth : Tumbang Tarusan, July 25, 1950
Occupation : Regent of Katingan, Central
Kalimantan Province
Address : Jalan Katunen, Neighborhood Ward
008, Neighborhood Block 002,
Kasongan Baru Village, Katingan
Hilir District, Katingan Regency
referred to as ------Petitioner III;
4. Name : Drs. H. Zain Alkim
Place/date of birth : Tampa, July 11, 1947
Occupation : Regent of Barito Timur, Central
Kalimantan Province
Address : Jalan Ahmad Yani, Number 97,
Neighborhood Ward 006,
Neighborhood Block 001, Mayabu
Village, Dusun Timur District, Barito
Timur Regency 3
referred to as ------Petitioner IV;
5. Name : H. Ahmad Dirman
Place/date of birth : Sukamara, October 20, 1960
Occupation : Regent of Sukamara, the Central
Kalimantan Province
Address : Jalan M. Shaleh, Neighborhood
Ward 005, Neighborhood Block 002,
Padang Village, Sukamara District,
Sukamara Regency
referred to as ------Petitioner V;
6. Name : Drs. Akhmad Taufik, M.Pd.
Place/date of birth : Tanjung Karang, February 19, 1962
Occupation : Entrepreneur
Address : Jalan G. Obos IX/Perum Charita
Permai, Number 25, Neighborhood
Ward 003, Neighborhood Block 006,
Menteng Sub-District, Jekan Raya
District, Palangka Raya;
referred to as ------Petitioner VI;
By virtue of Special Powers of Attorney dated May 23, 2011 and dated May
30, 2011, granting power to M.E. Manurung, S.H., Teddy Turangga, S.H.,
LL.M., Dr. Agus Surono, S.H., M.H., Rio Riyadi, S.H. and Imron Halimi, S.H., advocates associated in Triple M Law Firm, having its address at Jalan 4
Swadarma Utara II, Number 1, South Jakarta, acting for and on behalf of the authorizers;
Hereinafter referred to as ------Petitioners;
[1.3] Having read the petition of the Petitioners;
Having heard the statements of the Petitioners;
Having heard the statements of experts and witnesses of the
Petitioners;
Having heard and read the written statement of the Government;
Having heard the statement of expert of the Government;
Having read the written statement of the Related Party;
Having examined the evidence of the Petitioners, the Government and the Related Party;
Having read the conclusions of the Petitioners and the Government
2. FACTS OF THE CASE
[2.1] Whereas the Petitioners have filed the petition dated July 14, 2011 which was received in the Registrar's Office of the Constitutional Court
(hereinafter referred to as the “Registrar's Office of the Court”) on July 14,
2011 under Deed of Petition Dossier Receipt Number 255/PAN.MK/2011 and was registered on July 22, 2011 under Case Registration Number 45/PUU- 5
IX/2011, having been revised and received by the Registrar's Office of the
Court on August 22, 2011, explaining the following matters:
I. Authority of the Constitutional Court
1. Whereas with reference to the provision of Article 24C
paragraph (1) of the 1945 Constitution (hereinafter referred to as
the “1945 Constitution”), under which one of the authorities of
the Constitutional Court is to conduct judicial review of laws
under the 1945 Constitution.
Article 24C paragraph (1) of the 1945 Constitution states:
“The Constitutional Court shall have authority to hear at the first
and final levels the decision of which shall be final, to conduct
judicial review of laws under the 1945 Constitution …”
2. Whereas under the provisions of Article 10 paragraph (1) sub-
paragraph a of Law Number 24 Year 2003 concerning the
Constitutional Court as amended by Law Number 8 Year 2011
concerning Amendment to Law Number 24 Year 2003
concerning the Constitutional Court (hereinafter referred to as
the “the Constitutional Court Law”) states that, “The
Constitutional Court shall have authority to hear at the first and
final levels, the decision of which shall be final, a. to review laws
under the 1945 Constitution of the State of the Republic of
Indonesia”;
6
3. Whereas pursuant to Article 7 of Law Number 10 year 2004
concerning the Formation of Laws and Regulations, the 1945
Constitution is hierarchically higher than Laws. Therefore, any
provisions of Law shall not be inconsistent with the 1945
Constitution;
4. Under the aforementioned authority of the Constitutional Court,
the Petitioners have filed a petition for that the Constitutional
Court (hereinafter referred to as the “Court”) to review Article 1
sub-article 3 of Law Number 41 Year 1999 concerning Forestry
as amended by Law Number 19 Year 2004 concerning the
Stipulation of Government Regulation in Lieu of Law Number 1
Year 2004 concerning Amendment to Law Number 41 Year
2009 concerning Forestry to Become Law (hereinafter referred
to as “Forestry Law”);
5. Whereas since the object of the petition of the Petitioners is
Article 1 sub-article 3 of the Forestry Law, based on the matters
above, the Court has authority has authority to examine and
decide upon the petition for review of the Forestry Law.
II. Legal Standing and Constitutional Impairments of the Petitioners
2.1. Capacity of Petitioner I as a Regional Government
1. Whereas Article 51 paragraph (1) of the Constitutional
Court Law provides that: “The petitioners shall be the
parties considering that their constitutional rights and/or 7
authority are impaired by the coming into effect of a Law,
namely:
a. individual Indonesian citizens;
b. customary law community units insofar as they are
still in existence and in line with the development
of the communities and the principle of the Unitary
State of the Republic of Indonesia as regulated in
law;
c. public or private legal entities; or
d. state institution.
Subsequently, the elucidation of Article 51 paragraph (1)
states that:
“Referred to as “constitutional rights” shall be the rights
regulated in the 1945 Constitution of the Republic of
Indonesia.”
2. Whereas under Law 51 paragraph (1) sub-paragraph d of
the Constitutional Court Law, a state institution may file a
petition for Judicial Review under the 1945 Constitution;
3. Whereas the existence of Petitioner I as a Regional
Government in this petition is based on Emergency Law
of the Republic of Indonesia Number 3 Year 1953 8
concerning the (Official) Establishment of Autonomous
Region of Regency/Special Region of Regency and Big
City Levels within the Environment of Kalimantan
Province which was later stipulated as Law with the
enactment of Law Number 27 Year 1959 concerning the
Stipulation of Emergency Law Number 3 Year 1953
concerning the Extension of Establishment of Level II
Regions in Kalimantan (State Gazette Year 1953 Number
9) as Law;
4. Whereas Petitioner I acts in his capacity as the Regent of
Kapuas pursuant to the Minister of Home Affairs Decree
Number 131.62-170 Year 2008 concerning the
Ratification of Discharge and the Ratification of
Appointment of Kapuas Regent of the Central Kalimantan
Province dated March 10, 2008;
5. Whereas in addition to the foregoing, in filing this petition,
Petitioner I also received Special Power of Attorney
Number 183.1/35/DPRD.2011 and Assignment Letter
Number 183.1/34/DPRD.2011 from the Regional
People’s Legislative Assembly of Kapuas Regency on
May 13, 2011;
6. Whereas Petitioner I as the Regent of Kapuas Regency,
pursuant to Article 25 sub-article f of Law Number 32
Year 2004 concerning Regional Government (hereinafter 9
referred to as the “Regional Government Law” states: “A
regional head has the duty and authority to represent
his/her region inside and outside a court and may appoint
an attorney at law to represent him/her pursuant to laws
and regulations”;
7. Whereas, therefore, Petitioner I has the capacity as a
state institution to act as a Petitioner in this petition.
2.2. Capacities of Petitioner II, Petitioner III, Petitioner IV,
Petitioner V and Petitioner VI as Private Persons
1. Whereas pursuant to Article 51 paragraph (1) sub-
paragraph a of the Constitutional Court Law, an
Indonesian citizen may file a petition for Judicial Review
under the 1945 Constitution;
2. Whereas Petitioner II, Petitioner III, Petitioner IV,
Petitioner V and Petitioner VI are Indonesian citizens as
proven by their identities, whose constitutional rights have
been impaired by the coming into effect of Article 1 sub-
article 3 of the Forestry Law;
3. Whereas, therefore, Petitioner II, Petitioner III, Petitioner
IV, Petitioner V and Petitioner VI have the capacities as
individual persons to act as Petitioners in this petition;
10
2.3. Constitutional Impairments of Petitioner I as a Regional
Government
1. Whereas with reference to the Court’s Decision, since
Decision Number 006/PUU-III/2005 dated May 31, 2005,
Decision Number 11/PUU-V/2007 dated September 20,
2007 and the subsequent decisions, the Court has been
of the opinion that the impairment of constitutional rights
and/or authorities referred to in Article 51 paragraph (1) of
the Constitutional Court Law must meet 5 (five)
requirements, namely:
a. Existence of constitutional rights and/or authority
of the Petitioners granted by the 1945 Constitution;
b. The Petitioners consider that such constitutional
rights and/or authority have been impaired by the
coming into effect of the law petitioned for review;
c. The impairment of such constitutional rights and/or
authority must be specific and actual or at least
potential in nature which, pursuant to logical
reasoning, can be assured of occurring;
d. There is a causal relationship (causal verband)
between the impairment of constitutional rights
and/or authority of the Petitioners and the law
petitioned for review; 11
e. The possibility that with the granting of the
Petitioners’ petition, the impairment of such
constitutional rights and/or authority argued by the
Petitioners will not or will no longer occur;
2. Whereas Petitioner I as a Regional Government has
constitutional rights and/or authorities as regulated in
Article 1 paragraph (3), Article 18 paragraph (2), Article
18 paragraph (5), Article 18 paragraph (6), Article 18A
paragraph (2) and Article 28D paragraph (1) of the 1945
Constitution;
Article 1 paragraph (3)
“The State of Indonesia is a rule of law state”
Article 18 paragraph (2)
“The provincial, regency, and municipal governments
shall regulate and administer their own governmental
affairs in accordance with the principle of autonomy and
duty of assistance.”
Article 18 paragraph (5)
“The regional governments shall exercise autonomy to
the broadest possible extent, with the exception of 12
governmental affairs determined by law as affairs of the
Central Government.”
Article 18 paragraph (6)
“The regional governments shall have the right to
stipulate regional regulations and other regulations to
implement autonomy and duty of assistance”
Article 18A paragraph (2)
“Relations of finance, public services, utilization of natural
resources and other resources between the central
government and the regional government shall be
stipulated and implemented in a just and harmonious
manner based on law”
Article 28D paragraph (1)
“Everyone shall be entitled to the recognition, the
guarantee, the protection and the legal certainty of just
laws as well as equal treatment before the law”
3. Whereas Article 27 paragraph (1) sub-paragraphs b and
c of the Regional Government Law states, “A Regional
Head shall have obligations to increase the people’s
welfare; and to keep public harmony and order” and also
Article 25 sub-article f of the Regional Government Law
states, “A regional head has the duty and authority to 13 represent his/her region inside and outside a court and may appoint an attorney at law to represent him/her pursuant to laws and regulations”; therefore, Petitioner I hereby argues that the community living in Kapuas
Regency have constitutional rights as regulated in Article
1 paragraph (3), Article 28D paragraph (1), Article 28G paragraph (1), Article 28H paragraph (1) and Article 28H paragraph (4) of the 1945 Constitution.
Article 28G paragraph (1)
“Every person shall have the right to protect him/herself, his/her family, honor, dignity and property under his/her control, and shall have the right to feel secure and be protected from the threat of fear to do, or not to do something which constitutes human right”
Article 28H paragraph (1)
“Every person shall have the right to live a physically and mentally prosperous life, to have residence, and to obtain a proper and healthy living environment as well as to obtain health services”
Article 28H paragraph (4)
14
“Every person shall have the right to possess personal
property rights and such property rights shall not be taken
over arbitrarily by anybody”
4. Whereas the constitutional rights and authorities of either
Petitioner I or the community of Kapuas Regency have
been impaired by the provision of Article 1 sub-article 3 of
the Forestry Law stating that “Forest area shall be a
certain area designated and or stipulated by the
Government to be preserved as a permanent forest”,
especially with regard to phrase “designated and or”;
5. Whereas the constitutional rights and authorities of either
Petitioner I or the community of Kapuas Regency are
impaired by the provision of Article 1 sub-article 3 of the
Forestry Law with the following backgrounds and
descriptions:
a. Whereas Kapuas Regency has been established
since 1960 based on the Minister of Home Affairs
Decree Number C.17/15/3 dated June 29, 1950
and has become an autonomous region since
1953 with the enactment of Emergency Law
Number 3 Year 1953 concerning the (Official)
Establishment of Autonomous Region of
Regency/Special Region at Regency and Big City
Levels within the Environment of Kalimantan 15
Province which was later stipulated as a Law with
the enactment of Law Number 27 Year 1959
concerning the Stipulation of Emergency Law
Number 3 Year 1953 concerning the Extension of
Establishment of Level II Regions in Kalimantan as
Law;
b. Whereas since 2002 Kapuas Regency has been
split into 3 regencies, namely Kapuas Regency (as
the Original Regency), Pulang Pisau Regency and
Gunung Mas Regency (Newly Established
Regencies) established under Law Number 5 Year
2002 concerning the Establishment of Katingan
Regency, Seruyan Regency, Sukamara Regency,
Lamandau Regency, Gunung Mas Regency, Pulau
Pisang Regency, Murung Raya Regency and
Barito Timur Regency in the Central Kalimantan
Province;
c. Whereas Kapuas Regency is geographically
located at Latitude 00 8’ 48” – 30 27’ 00” South and
Longitude 1130 2’ 36” – 1140 44’ 00” East covering
an area of 1,499,900 ha or equal to 9.77% of the
area of the Central Kalimantan Province;
d. Whereas the borders of Kapuas Regency are as
follows: to the North bordering Gunung Mas 16
Regency, Murung Raya Regency and Barito Utara
Regency; to the South bordering Java Sea and
Barito Kuala Regency of the South Kalimantan
Province; to the West bordering Pulang Pisau
Regency; and to the East bordering Barito Selatan
Regency of the Central Kalimantan Province and
Barito Kuala Regency of the South Kalimantan
Province;
e. Whereas Kapuas Regency consists of 17 districts
and based on Indonesian Population Census in
2010 conducted by the Central Bureau of
Statistics, its total population was 329,440
classified into 167,937 males and 161,503 females
with population density of 21.96 people/km2;
f. Whereas under Emergency Law Number 3 Year
1953 juncto Law Number 27 Year 1959, the
Regional Government of Kapuas Regency is given
the following authorities:
Article 5
In view of the related regulations, a region shall
organize anything necessary to perform its duties,
authorities, rights and obligations, namely among
other things: 17
a. to arrange and organize Regional
Secretariat as well as its divisions as
required;
b. to organize anything in connection with the
affairs of employment, treasury,
maintenance of assets and properties, as
well as other matters for uninterrupted
implementation of the works of Regional
Government.
Article 6
(1) A region shall build and operate a public
hospital and medication clinic for the health
purposes within the region.
(2) The public hospital and medication clinic as
referred to in paragraph (1) shall be used
for medication and treatment of patients,
especially the relatively poor or the poor.
(3) If deemed necessary, a Region may build
and operate a special hospital and clinic.
Article 16
18
(1) Region: a. to build, repair, maintain and
control public roads within the region along
with the expansion buildings relevant
constructions. and all which are necessary
for safe traffic on the roads; b. to construct,
repair, maintain and control health
buildings, such as drinking water pipe,
drainage pipe, etc. unless the relevant Level
I Region performs the intended duties,
authorities, rights and obligations pursuant
to the provisions of Article 16 paragraph (1)
sub-paragraph b juncto Article 9 sub b of
Law Number 25 Year 1958; c. to build,
acquire, rent, maintain and control
constructions for the purposes of internal
affairs of the Region; d. to manage and
supervise the construction, demolition,
repair and/or expansion of a house,
building, construction, etc. pursuant to
regulations stipulated by the Region; e. to
manage and regulate other matters as
follows: 1. public squares and parks; 2.
public bathing place; 3. public graveyard; 4.
markets and stands; 5. rest house; 6. 19
transportation; 7. fire prevention; 8. road
lighting; 9. other local public works.
(2) Public roads within the Regional area which
pursuant to paragraph (1) sub a are under
the control of the Regional Government at
the scheduled time shall be determined by
the relevant Council of Level I Region and
promulgated in the Regional gazette of the
intended Level I Region.
Article 47
(1) Land, buildings, constructions and other
immovable properties of the Government
which are required by the Regional
Government to organize its internal affairs
and obligations pursuant to the provisions in
this Law, shall be assigned by the
authorities to the Regional Government to
be used and taken care of and maintained
with utilization right, except for land,
buildings, constructions, etc. controlled by
the Ministry of Defense.
(2) Inventories and other movable properties
which are required to organize Regional 20
affairs and obligations shall be assigned to
the Regional Government with title.
(3) All debts and receivables related to internal
affairs assigned to the Regional
Government shall, at the time of
assignment, be borne by the Regional
Government, provided that the resolution of
problems arising with respect such matters
may be requested from the Central
Government.
(4) For the implementation of Regional affairs
and obligations referred to in this Law, the
relevant Ministry or Level I Regional
Government shall provide to the Regional
Government an amount of money specified
in a stipulation of the relevant Minister or
Level I Regional Government, solely for the
expenditure of the intended affairs before
being organized by the Regional
Government, being included in the budget
of the relevant Ministry or Level I Regional
Government, in view of the applicable
regulations concerning balanced finances
between the State and Regions as referred 21
to in Law Number 32 Year 1956 and its
implementing provisions.
g. Whereas since its establishment in 1950,
government center, offices, villages, residential
homes, places of worship, hospitals or other vital
facilities have been built in Kapuas Regency;
h. Whereas on October 12, 1982, Decree of the
Minister of Agriculture Number
759/Kpts/Um/10/1982 concerning the Designation
of Forest Areas in Level I Region of the Central
Kalimantan Province covering an area of
15,300,000 hectares (hereinafter referred to as
“Decree of the Minister of Agriculture Number 759
Year 1982”) was issued, which designates forest
areas in Kapuas Regency;
i. Whereas based on the Map Attached to Decree of
the Minister of Agriculture Number 759 Year 1982,
all areas of Kapuas Regency are forest areas with
the following composition:
No. Function of Area Area (ha)
1. Protected Forest (HL) 5,395
2. Limited Production Forest (HPT) 823,904
3. Production Forest (HP) 499,684 22
No. Function of Area Area (ha)
4. Convertible Production Forest 170,917
(HPK)
Total 1,499,900
j. Whereas the second Dictum of Decree of the
Minister of Agriculture Number 759 Year 1982
states that, “The temporary boundaries for such
forest areas on the First verdict are shown on the
map Attached to this Letter while the permanent
boundaries will be stipulated upon the boundaries
have been measured and arranged in the field”;
k. Whereas the Third Dictum of Decree of the
Minister of Agriculture Number 759 Year 1982
states, “To instruct the Director General of Forestry
to perform measurement and arrangement of
Forest Area boundaries in the field”;
l. Whereas the Report on the Results of Audit by the
Audit Board (BPK) for Semester II Year 2008 on
Forestry Management by the Department of
Forestry (currently the Ministry of Forestry) in the
Central Kalimantan Province states that the
designation of forest areas in the Central
Kalimantan Province has only been made to 2 out
of 75 forest categories recorded which cover an 23
area of 6,215.10 ha or 0.06% of the permanent
forest areas;
m. Whereas on September 30, 1999, Law Number 41
Year 1999 concerning Forestry was enacted and
included into State Gazette Year 1999 Number
167 and Supplement to State Gazette Number
3888;
n. Whereas Article 1 sub-article 3 of the Forestry Law
states that “Forest Area shall be a certain area
designated and or stipulated by the Government to
be maintained as Permanent Forest”;
o. Whereas the definition of Forest Area as regulated
in Article 1 sub-article 3 of the Forestry Law is
different from Law Number 5 Year 1967
concerning Principal Provisions of Forestry in
which Article 1 point 4 provides that “Forest Area”
shall be certain areas stipulated by the Minister to
be maintained as Permanent Forest;
p. Whereas with the presence of the phrase
“designated and or stipulated” as set out in Article
1 sub-article 3 of the Forestry Law, the designation
of forest areas has been misinterpreted by the
Central Government considering that it has the 24
same legal standing as in the determination of
forest areas, Quod Non, while Article 15 paragraph
(1) of the Forestry Law states that, “The stipulation
of forest areas as referred to in Article 14 shall
involve the following processes:
a. designation of forest areas,
b. arrangement of forest area boundaries,
c. mapping of forest areas, and
d. stipulation of forest areas”
and paragraph (2) states, “The forest areas as
referred to in paragraph (1) shall be confirmed by
taking account of the regional spatial layout plan”
q. Whereas based on the description above, a forest
area will only have legal certainty after going
through the confirmation process as regulated in
Article 15 paragraph (1) of the Forestry Law;
r. Whereas several Decrees and Regulations stating
that the designation equals to the stipulation of
forest areas, are: Letter of the Minister of Forestry
Number S.426/Menhut-VII/2006 dated July 12,
2006 regarding the Explanation of the Minister of
Forestry concerning Forest Area Status addressed 25 to the Chief of the National Police of the Republic of Indonesia with carbon copies sent to the
President of the Republic of Indonesia, the Vice
President of the Republic of Indonesia, the
Minister of Law and Human Rights of the Republic of Indonesia, the State Minister for the
Environment of the Republic of Indonesia, Attorney
General of the Republic of Indonesia and Echelon
I of the Department of Forestry, with the following excerpt:
“5. Article 1 sub-article 3 of Law Number 41
Year 1999 explains that Forest Area shall
be a certain area designated and or
stipulated by the Government to be
preserved as a permanent forest.
6. Based on the definition above, it can be
concluded that although a forest area and
its boundaries have not been arranged and
stipulated by the government, it status
remains as a forest area.
9. In response to the matter in item 6 above,
we hereby convey that:
26
a. Certain areas having been
designated by the Minister of
Forestry as forest areas and whose
existence has maintained as
permanent forest are legally forest
areas.
b. Although the boundaries of the area
have not been arranged, the use of
the area has had legal consequence
bound by the applicable laws and
regulations.
In connection with the foregoing, the ranks
and files of the National Police of the
Republic of Indonesia shall have the same
understanding of the status of forest areas
so that violations in the forestry sector may
be covered by the existing provisions
although the status has only been at the
designation stage.”
s. Whereas the interpretation of the Ministry of
Forestry stating that the designation of
forest areas has legal force can also be
seen in Regulation of the Minister of
Forestry Number P.50/Menhut-II/2009 27 concerning Confirmation of the Status and
Functions of Forest Areas:
Article 2
(1) A forest area shall have legal force in
the event that:
a. it has been designated by a
Ministerial decree; or
b. its boundaries have been
arranged by the Committee for
Boundary Arrangement; or
c. Minutes of Forest Area
Boundary Arrangement has
been ratified by the Minister;
or
d. The forest area has been
stipulated by a Ministerial
Decree.
(2) In the event that an area has been
designated by a Ministerial decree,
or the boundaries of an area have
been arranged by the Committee for
Boundary Arrangement, or the 28
minutes of forest area boundary
determination has been ratified by
the Minister, or boundary
arrangement has been stipulated by
a Ministerial decree, reference to
forest area used shall be the most
recent status.
t. Whereas if seen from the forest area
confirmation stage, the designation of forest
areas is a preparatory activity for the
confirmation of the stipulation of forest area
[Elucidation of Article 15 paragraph (1) of
the Forestry Law] while Stipulation is the
final stage activity in which there has been
legal certainty concerning the status,
boundaries and area of a forest area as a
permanent forest;
u. Whereas the phrase “designated and or” in
Article 1 sub-article 3 of the Forestry Law
gives the Government (in this case the
Ministry of Forestry and law enforcement
apparatuses) the opportunity to construe
designation and the determination of forest
areas as equal, while under Articles 14 and 29
15 of the Forestry Law, designation and
determination are two different matters;
v. Whereas since Indonesia is a rule of law
state, there must be consistency and
coherence between one article to another.
Therefore, inconsistency between Article 1
sub-article 3 of the Forestry Law and
Articles 14 and 15 of the Forestry Law has
violated the principles of rule of law state as
regulated in Article 1 paragraph (3) of the
1945 Constitution;
w. Whereas on July 10, 2003, the Minister of
Forestry, at that time being Muhammad
Prakosa, issued Circular Letter Number
404/Menhut-II/03 containing information that
“Each province for which no Decree of the
Minister of Forestry concerning the re-
designation of forest areas has been issued
based on the results of harmonization
between Provincial Spatial Layout Plan
(RTRWP) and Forest Land Use Agreement
(TGHK), forest areas within the province
shall refer to and be guided by, Decree of 30
the Minister of Forestry concerning Forest
Land Use Agreement (TGHK)”;
x. Whereas since the Central Kalimantan
Province has not had Decree of the Minister
of Forestry concerning the re-designation of
forest areas based on the results of
harmonization between Provincial Spatial
Layout Plan (RTRWP) and Forest Land Use
Agreement (TGHK), forest areas shall refer
to Decree of the Minister of Agriculture,
namely Decree of the Minister of Forestry
Number 759 Year 1982;
y. Whereas since Article 1 sub-article 3 of the
Forestry Law gives the opportunity to the
Ministry of Forestry to interpret that the
designation has the same legal status with
the stipulation of forest areas, thus the
Government (in this case the Ministry of
Forestry) always states that the designation
of forest areas has the same legal status as
the stipulation of forest areas in each of its
policies so that Decree of the Minister of
Forestry concerning the Designation of 31
Forest Areas is used as reference in the
enforcement of forestry law;
z. Whereas due to opportunity given by Article
1 sub-article 3 of the Forestry Law to
interpret the designation and the stipulation
of forest areas as equal with the legal
consequence that all areas of Kapuas
Regency are identified as forest areas;
buildings, governmental constructions,
roads, public facilities, hospitals, school
buildings or facilities are included in forest
areas;
aa. Whereas since pursuant to Article 1 sub-
article 3 of the Forestry Law, the
designation may be construed to have had
legal force and all areas of Kapuas
Regency are included in forest areas,
Petitioner I is unable to perform its
authorities to implement autonomy to the
broadest possible extent in granting new
business licenses and extension of existing
licenses related to the business licenses of
plantation, mining, farming, etc. to other
parties. 32
bb. Whereas in addition to that, in granting
business licenses to implement autonomy
to the broadest possible extent, Petitioner I
is also threatened by the imposition of
criminal sanctions by law enforcement
apparatus and the Ministry of Forestry for
alleged granting of new licenses or
extension licenses because they are
included in forest areas;
cc. Whereas under Decree of the Minister of
Agriculture Number 759 Year 1982, all
areas of Kapuas Regency are included in
forest areas so that in performing its
activities and authorities as well as in
governing its region, Petitioner I must first
request for the consent from the Minister of
Forestry.
dd. Whereas Article 18 paragraph (5) of the
1945 Constitution states, “The regional
governments shall exercise autonomy to the
broadest possible extent, with the exception
of governmental affairs determined by law
as affairs of the Central Government”.
Meanwhile, Article 18 paragraph (6) states, 33
“The regional governments shall have the
right to stipulate regional regulations and
other regulations to implement autonomy
and duty of assistance”;
ee. Whereas with the existence of Article 1 sub-
article 3 of the Forestry Law, Petitioner I is
unable to implement autonomy to the
broadest possible extent as regulated in
Article 18 paragraph (5) of the 1945
Constitution and also unable to govern its
region by stipulating regional regulations
and other regulations as protected under
Article 18 paragraph (6) of the 1945
Constitution because all areas of Petitioner I
are identified as forest areas only based on
the designation as regulated in Article 1
sub-article 3 of the Forestry Law rather than
based on the confirmation as regulated in
Article 15 paragraph (1) of the Forestry
Law.
ff. Whereas in addition to that, the regional
assets existing since the establishment of
Kapuas Regency will potentially be missing 34
as all areas of Kapuas Regency (Petitioner
I) are included in forest areas;
gg. Whereas with the existence of Article 1 sub-
article 3 of the Forestry Law and Decree of
the Minister of Agriculture Number 759 Year
1982, homes and lands of the People of
Kapuas Regency, according to the Map
Attached to Decree of the Minister of
Agriculture Number 759 Year 1982, within
forest areas will be potentially taken by the
state to be made as forest areas. Therefore,
with the existence of Article 1 sub-article 3
of the Forestry Law, the constitutional rights
of the People of Kapuas Regency,
particularly in relation to right of property
under their control as protected by Article
28G paragraph (1) of the 1945 Constitution;
the right to reside as protected by Article
28H paragraph (1); and the title as
protected by Article 28H paragraph (4) of
the 1945 Constitution are impaired and/or
will potentially be missing;
hh. Whereas since pursuant to Decree of the
Minister of Agriculture Number 759 Year 35
1982, all areas of Kapuas Regency are designated as forest areas, Petitioner I along with 329,440 people of Kapuas
Regency may be criminalized under Article
50 paragraph (3) sub-paragraphs a and b juncto Article 78 paragraph (2) of the
Forestry Law:
Article 50 paragraph (3) sub-paragraphs a and b:
“Every person is prohibited from:
a. working on and/or use and/or
occupying forest areas illegally.
b. cutting down trees in forest areas”.
Article 78 paragraph (2):
“Whoever deliberately violating the provisions as referred to in Article 50 paragraph (3) sub-paragraphs a, b or c shall be imposed with a maximum criminal sanction of imprisonment of 10 (ten) years and a maximum pecuniary sanction of
Rp5,000,000,000.00 (five billion Rupiah)”
36
Therefore, provision of Article 1 sub-article 3 of the
Forestry Law, especially in relation to the phrase
“designated and or” is inconsistent with the
principles of just legal certainty as protected under
Article 28D paragraph (1) of the 1945 Constitution
because it has caused Petitioner I and the people
of Kapuas Regency to be potentially imposed with
criminal sanction under the Forestry Law because
all its areas are designated as forest areas.
6. Whereas by taking the aforementioned background into
account, the constitutional impairments of Petitioner I as
Regional Government are as follows:
a. There is no guaranteed legal certainty in
performing its authorities, particularly in relation to
the granting of new licenses or extension of the
existing licenses in the fields of plantation, mining,
housing and settlement or other facilities and
infrastructure;
b. It is unable to implement autonomy to the broadest
possible extent as the areas to be utilized in
various fields such as plantation, mining, housing
and settlement or other facilities and infrastructure
are included in forest areas in the absence of
confirmation of forest areas. 37
c. It is unable to implement Regional Regulations
concerning Regency Spatial Layout Plan
(RTRWK) and Regional Regulations of the Central
Kalimantan Province concerning Provincial Spatial
Layout Plan (RTRWP) since all its areas are
included in forest areas in the absence of
confirmation forest areas;
d. It may be criminalized for alleged trespassing and
occupation of forest areas without consent or for
granting licenses in the fields of plantation, mining,
housing and settlement or other facilities and
infrastructure within forest areas;
e. The property right and title of the community of
Kapuas Regency to land and buildings will be
potentially seized by the state as deemed for being
considered to have trespassed forest areas.
7. Whereas with reference to the Court's Decisions following
Decision Number 006/PUU-III/2005 dated May 31, 2005,
Decision Number 11/PUU-V/2007 dated September 20,
2007 and the subsequent decisions, Petitioner I has met
the first and second requirements because the rights
and/or authorities of Petitioner I as a state institution are
protected by the 1945 Constitution as regulated in Article 38
1 paragraph (3), Article 18 paragraph (2), Article 18 paragraph (5), Article 18 paragraph (6), Article 18A paragraph (2) and Article 28D paragraph (1) of the 1945
Constitution as well as the constitutional rights of the community of Kapuas Regency as regulated in Article 1 paragraph (3), Article 28D paragraph (1), Article 28G paragraph (1), Article 28H paragraph (1) and Article 28H paragraph (4) of the 1945 Constitution which are violated by the existence of the Provision of Article 1 sub-article 3 of the Forestry Law, specifically in relation to the phrase
“designated and or”. Petitioner I has also met the third and fourth requirements, as described in Item 6.
Petitioner I meets the fifth requirement, where if the phrase “designated and or” in Article 1 sub-article 3 of the
Forestry Law is deemed to have no legal force or if forest area is construed as a certain area having gone through the process of confirmation, either designation, boundary arrangement, mapping or stipulation by the Government, the existence of which is to be maintained as permanent forest, the constitutional impairments of the Petitioners will not or no longer occur, because with the mechanism confirmation of forest areas, particularly boundary arrangement, mapping and stipulation, the rights of third party, the community of Kapuas Regency and Petitioner I will be protected; 39
8. Therefore, the legal standing requirements of Petitioner I
have been consistent and have met the applicable
provisions.
2.4 Constitutional Impairments of Petitioner II, Petitioner III,
Petitioner IV and Petitioner V as Individual Persons
1. Whereas Petitioner II, Petitioner III, Petitioner IV and
Petitioner V are Indonesian citizens having constitutional
rights guaranteed by the constitution to obtain the
recognition, guarantee, protection and legal certainty of
just laws under the aegis of the Rule of Law State as
referred to in Article 1 paragraph (3) and Article 28D
paragraph (2) of the 1945 Constitution.
2. Whereas during the submission of this Petition, the
Petitioners whose occupancy are Regents in their
respective areas are personally imposed with criminal
sanctions as regulated in the provision of Article 50 juncto
Article 78 of the Forestry Law for granting new licenses or
extending the existing licenses within forest areas. The
criminal sanctions are due to Letter of the Minister of
Forestry Number S.193/Menhut-IV/2011 dated April 18,
2011 regarding the Inquiry and Investigation Team on
Non-Procedural Use of Forest Areas in the Central
Kalimantan Province. 40
3. Whereas while assuming the position of Regents,
Petitioner II, Petitioner III, Petitioner IV and Petitioner V
have issued and/or extended business licenses of
plantation, mining and the other business licenses within
their areas;
4. Whereas the reference of the Map Attached to Decree of
the Minister of Agriculture Number 759 Year 1982 states
that all areas of Gunung Mas Regency, Katingan
Regency, Sukamara Regency and Barito Timur Regency
are within forest areas, and therefore each license must
obtain the consent from the Minister of Forestry;
5. Whereas in granting the business licenses of plantation,
mining and other businesses within their areas, Petitioner
II, Petitioner III, Petitioner IV and Petitioner V do not need
any consent from the Minister of Forestry since the
Minister of Forestry has not confirmed the forest areas
until today;
6. Whereas based on Circular Letter of the Minister of
Forestry Number S.95/Menhut-IV/2010 dated February
25, 2010 concerning Report on Non-Procedural Use of
Forest Areas and Results of the Exposure of the Handling
of Non-Procedural Use of Forest Areas for Plantation and
Mining dated October 27, 2010 in Palangka Raya, it is 41
alleged that violations in the form of forestry criminal acts
in the use of forest areas for plantation and mining
without consent from the Minister of forestry have
occurred. This has given rise to the threat to Petitioner II,
Petitioner III, Petitioner IV and Petitioner V who are
Regents in their respective areas because of uncertainty
in the determination of areas by the Ministry of Forestry
due to unclear interpretation of the provision of Article 1
sub-article 3 of the Forestry Law.
7. Whereas on April 18, 2011, the Minister of Forestry
issued Letter Number S. 193/Menhut-IV/2011 concerning
the Inquiry and Investigation Team on Non-Procedural
Use of Forest Areas in the Central Kalimantan Province
addressed to the Central Kalimantan Governor and
Regents/Mayors in the Central Kalimantan Province. The
letter states that, “Based on the results of exposure of all
Regents/Mayors in the Central Kalimantan Province, data
and information that we have obtained from the related
agencies and public report, violations in the form of
forestry criminal acts in the use of forest areas for
plantation and mining without consent from the Minister of
Forestry are alleged to have occurred. In addition to that,
violations in the form of other criminal acts such as the
cases of corruption, environment and abuse of authority
by the officials are also alleged to have occurred. To 42
respond to the conditions, we have formed a team to
conduct inquiry and investigation on non-procedural use
of forest areas”;
8. Whereas under Article 1 sub-article 3 of the Forestry Law,
it can be interpreted that “designation” of forest areas is
equal to “stipulation” of forest areas if referring to the Map
Attached to Decree of the Minister of Agriculture Number
759 Year 1982 including all areas of Gunung Mas
Regency, Katingan Regency, Sukamara Regency and
Barito Timur Regency into forest areas, and then the
licenses issued by Petitioner II, Petitioner III, Petitioner IV
and Petitioner V are deemed to be non-procedural and
included in forestry criminal acts for participating in
working on and/or using and/or occupying forest areas
legally; participating in cutting down trees in forest areas
and participating in conducting activities of general
inquiry, exploration or exploitation of minerals in the forest
areas without the consent from the Minister of Forestry;
9. Whereas the Minister of Forestry has also issued a
statement as follows, “Regional heads must immediately
revoke business licenses in forest areas for businesses
which are still in operation although they have not
obtained the consent from the Minister of Forestry. If they
do not immediately revoke the licenses, the regional 43
heads are reasonably alleged to be involved in cutting
down trees in forest areas” (Kompas, June 25, 2010);
10. Whereas as good citizens, Petitioner II, Petitioner III,
Petitioner IV and Petitioner V comply with the law to the
extent that the implementation and legal norms used are
not inconsistent with the law itself and they are consistent
with the principles of rule of law state as well as the
principle of legal certainty and justice. In fact, the
application of Article 1 sub-article 3 of the Forestry Law
which can be proven to be contradictory to the provisions
of Articles 14 and 15 of the Forestry Law is not in line with
the principles of Rule of Law State and does not give
legal protection and certainty, and therefore, the
constitutional rights of Petitioner II, Petitioner III,
Petitioner IV and Petitioner V have been impaired.
11. Whereas the definition of forest area as regulated in
Article 1 sub-article 3 of the Forestry Law and
Explanation of the Minister of Forestry concerning Forest
Area Status Number 426/Menhut-VII/2006 dated July 12,
2006 gives rise to uncertainty in its interpretation as it is
inconsistent with the definition of forest area in the
provisions of Articles 14 and 15 of the Forestry Law,
resulting in legal uncertainty due to multiple 44
interpretations of the provision of Article 1 sub-article 3 of
the Forestry Law;
12. Whereas Letter Number S.575/Menhut-II/2006 dated
September 11, 2006 regarding the Revocation of Letter of
Head of Forestry and Plantation Planning Agency
Number 773/VIII-KP/2000 dated September 12, 2000
states, “The results of harmonization between Provincial
Spatial Layout Plan (RTRWP) and Forest Land Use
Agreement (TGHK) of the Central Kalimantan Province
stipulated by the Governor of Central Kalimantan by
Decision Number 008/965/4/BAPP dated May 14, 1999
cannot be made reference and guideline in determining
the forest area status because it has not been followed
up by Decree of the Minister of Forestry concerning
Designation of Forest Areas.”
13. Whereas Letter Number S.255/Menhut-II/07 dated April
11, 2007 regarding Utilization of forest areas which
provides that “The use of forest areas based on Regional
Regulation as Production Development Area (KPP) and
Areas for Settlement and Other Uses (KPPL) not
requiring the release of forest area from the Minister of
Forestry may result in violations of law and may be
imposed with criminal sanctions,” indicates that there is
legal uncertainty due to the application of a unilateral 45
interpretation by the Ministry of Forestry on the definition
of forest area of the provision of Article 1 sub-article 3 of
the Forestry Law.
14. Whereas by taking account of the aforementioned facts
on items 2 through 13, the constitutional impairments of
Petitioner II, Petitioner III, Petitioner IV and Petitioner V
as individual persons are as follows:
a. They can be criminalized for entering and
occupying forest areas without the consent from
the competent authorities;
b. They can be criminalized for granting new licenses
and/or extending existing licenses for businesses
in the fields of mining, plantation and other
businesses within the Regencies of Petitioner II,
Petitioner III, Petitioner IV and Petitioner V since
all these areas are included in forest areas.
15. Whereas in reference to the Court’s Decision, since
Decision Number 006/PUU-III/2005 dated May 31, 2005,
Decision Number 11/PUU-V/2007 dated September 20,
2007 and the subsequent decisions, Petitioner II,
Petitioner III, Petitioner IV and Petitioner V have met the
first and second requirements because the rights and/or
authorities of Petitioner II, Petitioner III, Petitioner IV and 46
Petitioner V as individual persons protected by the 1945
Constitution as regulated in Article 1 paragraph (3) and
Article 28D paragraph (1) of the 1945 Constitution are
violated by the existence of the Provision of Article 1 sub-
article 3 of the Forestry Law, particularly in relation the
phrase “designated and or”. Petitioner II, Petitioner III,
Petitioner IV and Petitioner V have also met the third and
fourth requirements as described in Item 14. The fifth
requirement is also met, where if the phrase “designated
and or” in Article 1 sub-article 3 of the Forestry Law
deemed to have no binding legal force or if forest area is
construed as a certain area having gone through the
process of confirmation, either designation, boundary
arrangement, mapping or stipulation by the Government,
in order to maintain its existence as permanent forest, the
constitutional impairments of the Petitioners will not or will
no longer occur because with a mechanism of
confirmation of forest areas, particularly boundary
arrangement, mapping and stipulation, there will be legal
certainty and clarity related to the areas of Petitioner II,
Petitioner III, Petitioner IV and Petitioner V;
16. Therefore, the legal standing requirements for Petitioner
II, Petitioner III, Petitioner IV and Petitioner V have been
appropriate and have met the applicable provisions.
47
2.5. Constitutional Impairments of Petitioner VI as an Individual
Person
1. Whereas constitutional impairment experienced by
Petitioner VI is are the absence of legal certainty related
to property right protected under Article 28D paragraph
(1) of the 1945 Constitution, the loss of property right
protected by Article 28G paragraph (1) of the 1945
Constitution and title protected by Article 28H paragraph
(4) of the 1945 Constitution;
2. Whereas Petitioner VI has 2 plots of land located (a) at
jalan Yakut I covering an area of 200 m2 bought from
Saidul Abror with Land Ownership Certificate, (b) at jalan
G. Obos IX bought from Abdul Manan covering an area of
619 m2 with Land Ownership Certificate;
3. Whereas to support the evidence of ownership, Petitioner
VI filed an application for title to the National Land
Agency (BPN) of Palangka Raya City on May 2, 2008.
The dossiers of the application for title of Petitioner VI
were declared complete on July 2, 2008 and Petitioner VI
was also asked to pay the measurement fee and right
registration fee as specified;
4. Whereas on March 31, 2011, the application for title of
Petitioner VI was rejected by the National Land Agency 48
(BPN) of Palangka Raya by Letter of the Head of Land
Office of Palangka Raya City Number
226/300.5.62.71/III/2011 stating that after an examination
of the plotting of the area map of the Strategic
Environmental Assessment (SEA) within Palangka Raya
City according to Letter of the Minister of Forestry of the
Republic of Indonesia Number S.486/Menhut-VII/2010
dated September 20, 2010, the application for Title to the
intended land is located within the Strategic
Environmental Assessment (SEA) area. Subsequently,
the application for Title on behalf of Petitioner VI
temporarily cannot be processed further because the
location being applied for is located within the Strategic
Environmental Assessment (SEA) area, the land
conversion of which requires approval from the People’s
Legislative Assembly of the Republic of Indonesia (DPR
RI);
5. Whereas by defining “designation” of forest areas and
“stipulation” of forest areas as equal which means that
the designation of forest areas has a value of legal
certainty, the land of Petitioner VI is potentially taken by
the state to be made as a forest area. Therefore, the
existence of Article 1 sub-article 3 of the Forestry Law
results in the loss of constitutional rights of Petitioner VI,
particularly in relation to the rights to property under his 49
control as protected by Article 28G paragraph (1) of the
1945 Constitution and title as protected under Article 28H
paragraph (4) of the 1945 Constitution are threatened to
be missing;
6. Whereas based on juridical descriptions and facts as
described in items 2 up to 5 above, the constitutional
impairments of Petitioner VI as an individual person are
as follows:
a. there is no guaranteed legal certainty in the
administration of the Property Right and Title
because the land applied for is deemed to be in
forest areas.
b. there is no guarantee for the Right to property due
to the threat that the property/land is deemed to be
in forest areas;
c. there is no guarantee for the title to property
because it may be potentially taken by the State at
any time as the land is deemed to be in forest
areas;
7. Whereas with reference to the Court’s Decisions following
Decision Number 006/PUU-III/2005 dated May 31, 2005,
Decision Number 11/PUU-V/2007 dated September 20,
2007 and subsequent decisions, Petitioner VI has met the 50
first and second requirements because the rights and/or
authorities of Petitioner VI as an individual person
protected by the 1945 Constitution as regulated in Article
1 paragraph (3), Article 28G paragraph (1) and Article
28H paragraph (4) of the 1945 Constitution are violated
by the existence of the Provision of Article 1 sub-article 3
of the Forestry Law, particularly in relation to the phrase
“designated and or”. Petitioner VI has also met the third
and fourth requirements, as described in Item 6.
Petitioner VI meets the fifth requirement, where if the
phrase “designated and or” under Article 1 sub-article 3 of
the Forestry Law is deemed to have no legal force or if
the forest area is construed as a certain area having gone
through the process of confirmation, either designation,
boundary arrangement, mapping or stipulation by the
Government in order to maintain its existence as
permanent forest, the constitutional impairments of the
Petitioners will not or will no longer occur, because with
the mechanism of confirmation of forest areas,
particularly boundary arrangement, mapping and
stipulation, the rights of Petitioner VI will be protected;
8. Therefore, legal standing requirements of Petitioner VI
have been appropriate and have met the applicable
provisions.
51
III. Reasons for the Petitioners’ Filing the Petition for Judicial Review
of Article 1 sub-article 3 of the Forestry Law
A. General Reason
This petition for judicial review has been filed because the
coming into effect of the provision of Article 1 sub-article 3 of the
Forestry Law is inconsistent with several provisions in the 1945
Constitution, namely Article 1 paragraph (3), Article 18
paragraph (2), Article 18 paragraph (5), Article 18 paragraph (6),
Article 18A paragraph (2), Article 28D paragraph (1), Article 28G
paragraph (1), Article 28H paragraph (1), Article 28H paragraph
(4) of the 1945 Constitution, which results in the impairment of
constitutional rights of the Petitioners, to be specifically
described below.
B. Special Reasons
3.1. The Petitioners Are Entitled to the Recognition, the
Guarantee, the Protection and the Legal Certainty of
Just Laws
1. Whereas following the amendments to the 1945
Constitution, there has been a fundamental
change in the state administration of the Republic
of Indonesia, as regulated in Article 1 paragraph
(3) of the 1945 Constitution, namely that Indonesia
is a rule of law state. The characteristics of a rule 52
of law state are the recognition of human rights,
including equality before the law and government,
rights to the recognition, the guarantee, the
protection and the legal certainty of just laws;
2. Whereas juridically, the 1945 Constitution provides
a strong guarantee for the recognition of human
rights. Article 28D paragraph (1) of the 1945
Constitution provides instruments in the form of
rights to the recognition, the guarantee, the
protection and the legal certainty of just laws as
well as equal treatment before the law, under
states: “Everyone shall be entitled to the
recognition, the guarantee, the protection and the
legal certainty of just laws as well as equal
treatment before the law”.
3. The constitutional norms above reflect the
principles of rule of law state for all humans
universally. In the same qualification, the
Petitioners are not entitled to the recognition, the
guarantee, the protection and the legal certainty of
just laws as well as equal treatment before the law
due to the coming into effect of the provision of
Article 1 sub-article 3 of the Forestry Law;
53
3.2. Article 1 Sub-Article 3 of the Forestry Law Results in
Legal Uncertainty with respect to Forest Area Status
1. Whereas Article 1 sub-article 3 of the Forestry Law
provides that “Forest area shall be a certain area
designated and or stipulated by the Government to
be preserved as a permanent forest.”;
2. Whereas to determine an area as a forest area,
the activities of confirmation of a forest area must
be conducted pursuant to the provision of Article
14 paragraph (1) of the Forestry Law stating:
“Based on forest inventory as referred to in Article
13, the Government shall organize the
confirmation of forest areas.” Subsequently, to give
legal certainty for a forest area, the activities of
confirmation of a forest area must be conducted
rather than the activities of the designation and/or
stipulation of a forest area as referred to in Article
14 paragraph (2) of the Forestry Law stating: “The
activities of confirmation of a forest area as
referred to in paragraph (1) shall be conducted to
provide legal certainty for forest areas.”
3. Whereas the activities of designation of a forest
area are part of the activities of confirmation of a 54
forest area as regulated in the provision of Article
15 of the Forestry Law stating as follows:
(1) The confirmation of forest areas as referred
to in Article 14 shall be conducted through
the following processes:
a. Designation of forest areas
b. Arrangement of forest area
boundaries
c. mapping of forest areas, and
d. stipulation of forest areas
(2) The confirmation of forest areas referred to
in paragraph (1) shall be conducted by
taking account of the regional spatial layout
plan.
4. Whereas the Elucidation of the provision of Article
15 paragraph (1) of the Forestry Law states that:
“The designation of forest areas shall be the
preparatory activities for the confirmation of a
forest area, among other things, in the following
forms:
55
a. The making of designation map which is
instructional on outer boundaries;
b. Erection temporary boundaries equipped
with boundary paths;
c. The making of boundary channels at
vulnerable areas;
d. Announcement about the plan of forest area
boundaries, especially in locations adjacent
to land with title.
5. Whereas under provision of Article 1 sub-
paragraph 3, Article 14, Article 15 and the
Elucidation of Article 15 paragraph (1) of the
Forestry Law, the definition of forest area being
only interpreted as designation activities not
including activities of confirmation of a forest area
results in legal certainty for forest areas. The
designation of a forest area shall be the initial
activity in the confirmation of a forest area
coverage, in order, the activities of designation of
forest area, arrangement of area boundaries, the
mapping of forest area, and the stipulation of forest
area. In other words, the stipulation of a forest 56
area is the closing activity of the confirmation of a
forest area.
6. Whereas the unilateral interpretation by the
Ministry of Forestry of the definition of forest area
as regulated in Article 1 sub-article 3 of the
Forestry Law stating that the designation has had
legal force, has an impact on law enforcement in
the field of forestry which is unfair and in violation
of the constitutional rights of the Petitioners;
7. Whereas the definition of forest area being
interpreted only as its designation creates legal
uncertainty in determining an area as a forest area
and overlaps in the granting of forest area
licenses;
8. Whereas the unclear definition of forest area was
also found by the Audit Board of the Republic of
Indonesia (BPK RI), where during the audit in the
second semester of 2009, it conducted
performance audit over activities of the
confirmation of forest areas in Fiscal Years 2005
up to 2009 in the Department of Forestry,
Provincial Forestry Service Office and other
related Agencies in the North Sumatra Province,
the West Kalimantan Province, the East 57
Kalimantan Province and the Special Capital City
Region of Jakarta. The Audit results of the Audit
Board of the Republic of Indonesia concluded that
the implementation of activities of confirmation of
forest areas had not been economic and effective
yet due to weak policies and activity
implementation;
9. Whereas based on the audit activities of the Audit
Board of the Republic of Indonesia, it can be
concluded that the activities in the context of
providing legal certainty with respect to forest
areas are conducted through the activities of area
confirmation as regulated in the provision of Article
14 paragraph (2) of the Forestry Law, rather than
by designation and/or stipulation of forest areas as
regulated in accordance with the provision of
Article 1 sub-article 3 of the Forestry Law which
provides erroneous/incorrect definition of forest
area;
10. Whereas there has been incorrect implementation
of forest area definition as regulated in the
provision of Article 1 sub-article 3 of the Forestry
Law, namely the policy adopted by the Ministry of
Forest in determining the size of forest areas in 58 several Provinces based on the audit results of the performance of the stipulation of forest area in the second semester of 2009 by the Audit Board of the
Republic of Indonesia. The aforementioned several Provinces can be illustrated in more detail as follows:
a. North Sumatra Province
The development of the determination of forest areas in North Sumatra is categorized into four stages, namely as follows:
The first stage, the era of registry was commenced during Dutch administration period of
1916 up to 1944 with the total definitive size of forest area of 1,121,500.22 ha spread out on the basis of administration of forest management in eight working areas of Branch of Forestry Service
Office (CDK).
The second stage, the era of Forest Land Use
Agreement commenced with the issuance of
Decree of the Minister of Agriculture Number
923/Kpts/Um/12/1982 dated December 27, 1982 concerning the Designation of Forest Area in Level
I Region of North Sumatra Province covering an 59 area of 3,780,132.02 Ha as forest areas supplemented with an attachment of Forest Land
Use Agreement map with a scale of 1:500,000.
The third stage, the era of Provincial Spatial
Layout Plan (RTRWP) which commenced with the issuance of Regional Regulation of North Sumatra
Province Number 7 Year 2003 dated August 28,
2003 concerning Provincial Spatial Layout Plan of
North Sumatra in 2003-2008, under which the size of forest areas is 3,679,338.48 Ha.
The fourth stage, the era of designation commenced with the issuance of Decree of
Minister of Forestry Number SK44/Menhut-II/2005 dated February 16, 2005 concerning the designation of Forest Areas in Sumatra Provinces in the approximate area of 3,742,120 Ha with an attachment of Map of Forest Area of North
Sumatra Province with the scale of 1:250,000.
The fifth stage is this era commencing with the issuance of Decree of Minister of Forestry Number
201/Menhut-II/2006 dated June 5, 2006 concerning amendment to Decree of Minister of
Forestry Number 44/Menhut-II/2005 and Changes 60 to the Purposes of Forest Areas in the North
Sumatra Province.
Based on the five stages of the development of the determination of forest areas in the North Sumatra
Province, it can be concluded that there has been incorrect implementation of policy adopted by the
Government due to misunderstanding about the definition of forest area as regulated in the provision of Article 1 sub-article 3 of the Forestry
Law.
b. East Kalimantan Province
As to forest areas in the East Kalimantan Province several stages can be found, as follows:
The first stage, the era of the designation of forest areas according to Forest Land Use Agreement
(TGHK) pursuant to Decree of the Minister of
Agriculture Number 024/Kpts/Um/1/1983, with the size of forest areas in the East Kalimantan
Province of 21,144,000 Ha.
The second stage, the era of Provincial Spatial
Layout Plan (RTRWP) pursuant to Regional
Regulation Number 12 Year 1983 formulated based on the Provincial Spatial Layout Plan 61
(RTRWP) of each regency referring to the Forest
Land Use Agreement (TGHK) with due observance of regional development and expansion plan.
The third stage, the era of designation of harmonized forest areas of 14,651,553 Ha as set out in Decree of the Minister of Forestry No.
79/Kpts-II/2001 along with an attachment of map of the forest areas. The designation of harmonized forest areas divides forest areas into Conservation
Forest area of 2,165,198 Ha, Protected Area of
2,751,702 Ha and Production Forest of 9,734,653
Ha.
Based on data on the land size, further activities are still required so that the areas can be confirmed as forest areas, namely by arranging the boundaries and joined ring, to be subsequently stipulated by the Minister of Forestry. Based on the audit results of the Audit Board of the Republic of
Indonesia, the size of forest areas in the East
Kalimantan Province stipulated as forest areas is
139,859.36 Ha or 0.95%. It can be concluded that the definition of forest area as regulated in Article 1 sub-article 3 of the Forestry Law must be 62 interpreted by the definition of the activities of confirmation of forest areas rather than designation and/or stipulation of forest areas in order to make it consistent with the provision of
Article 14 paragraph (2) of the Forestry Law.
c. West Kalimantan Province
Development of Forest areas in the West
Kalimantan Province can be described in several stages, as follows:
The first stage, the era of the designation of forest areas according to Forest Land Use Agreement pursuant to Decree of the Minister of Agriculture
Number 757/Kpts/Um/10/1982, in which the size of forest areas in the West Kalimantan Province is
9,204,375 Ha.
The second stage, the era of Provincial Spatial
Layout Plan (RTRWP) pursuant to Regional
Regulation Number 1 Year 1995 concerning
Provincial Spatial Layout Plan (RTRWP) of West
Kalimantan formulated based on Provincial Spatial
Layout Plan (RTRWP) of each Regency referring to Forest Land Use Agreement (TGHK) with due 63 observance of regional development and expansion plan.
The third stage, the era of the designation of harmonized forest areas in the size of 14,651,553
Ha set out in Decree of the Minister of Forestry and Plantation No. 259/Kpts-II/2000 along with an attachment of map of the forest areas. The designation of harmonized forest areas divides forest areas into Conservation Forest area of
1,645,580 Ha, Protected Area of 2,307,045 Ha and
Production Forest of 5,226,135 Ha.
Based on the data on the land size, further activities are still required so that the areas can be confirmed as forest areas, namely by arranging the boundaries and joined ring, to be subsequently stipulated by the Minister of Forestry. Based on the results of the arrangement of boundaries by the
Ministry of Forestry, there is a difference between
Forest Land Use Agreement and Decision on
Designation causing plenty of results of the arrangement of boundaries to be no longer usable, however, the Ministry of Forestry recognizes that the arrangement of boundaries carries an implication of non-designated forest areas to be 64
recognized as forest areas, leading to uncertainty
in determining an area as a forest area. Based on
the audit results of the Audit Board of the Republic
of Indonesia, the size of forest areas in the West
Kalimantan Province stipulated as forest areas up
to September 2009 was 979,798.47 Ha or 10.67%
of the total size of forest areas in the West
Kalimantan Province. It can be concluded that the
definition of a forest area as regulated in Article 1
sub-article 3 of the Forestry Law must be
interpreted by the definition of the activities of
confirmation of forest areas rather than
designation and/or stipulation of forest areas to
make it consistent with provision of Article 14
paragraph (2) of the Forestry Law. In practice, this
creates legal uncertainty in determining an area as
a forest area.
11. Whereas the Corruption Eradication Commission
(KPK) has conducted a Review on Corruption
Spots Policy in the Weakness of Legal Certainty in
Forest Areas and Forest Area Planning and
Management system within the Directorate
General of Forestry Planning of the Ministry of
Forestry, as described by the Vice Chairperson of
the Corruption Eradication Commission, 65
Mochammad Jasin before the Minister of Forestry
on December 3, 2010;
12. Whereas based on the Review on Corruption
Spots Policy in the Weakness of Legal Certainty in
Forest Areas, the Corruption Eradication
Commission has found the uncertainty of the
definition of forest area as regulated in Article 1
sub-article 3 of the Forestry Law;
13. Whereas based on the Review of the Corruption
Eradication Commission, the process of forest
area designation by the Ministry of Forestry has
been conducted unfairly or inconsistent with the
principles of fair procedure with respect to the
implementing rules of the Forestry Law so as to
weaken the legality and legitimacy of 88.2% of
forest areas which have not been already
stipulated until today.
14. Whereas based on the Review by the Corruption
Eradication Commission (KPK), there is no legal
certainty for the designation map of forest areas
because, in fact, there are at least 4 versions of
forest area maps with different scales causing
different size of forest areas from 4 up to 16 million
ha; 66
15. Whereas based on the Review by the Corruption
Eradication Commission (KPK), because the
designation has not been confirmed, there are 119
potential conflicts in the Provincial areas and newly
established regencies/cities included in the forest
areas in part or wholly, among other things, Nduga
Regency, Papua (216,800 ha) in a protected forest
area and Raja Ampat Regency (6,084,500 ha) in a
conservation forest area. With regard to the
Harmonization of Regional Spatial Layout with
forest areas, there are potential conflicts at least in
10 newly established regencies/cities in the
Lampung Province and 4 newly established
regencies/cities in the South Sulawesi Province for
not proposing for conversion of forest areas;
16. Whereas based on the aforementioned juridical
descriptions and facts, Article 1 sub-article 3 of the
Forestry Law, particularly in relation to the phrase
“designated and or” causes legal uncertainty in
relation to the status of forest areas and it is
inconsistent with the principles of rule of law state
as regulated in Article 1 paragraph (3) of the 1945
Constitution.
67
3.3. Article 1 Point 3 of the Forestry Law Results in Legal
Uncertainty in the Petitioners’ Areas
1. Whereas the Central Kalimantan Province in which
the Petitioners live has been established by
Emergency Law Number 10 Year 1957 juncto Law
Number 21 Year 1958. This Law has not provided
a clear distinction between forest areas and non-
forest areas. However, administratively its
governance has run in all areas of the Central
Kalimantan Province and has run until today,
including the determination of administrative
boundaries covering regencies in Central
Kalimantan;
2. Whereas on October 12, 1982, Decree of the
Minister of Agriculture Number 759 Year 1982 was
issued. The substance of Decree of the Minister of
Agriculture Number 759 Year 1982 is as follows:
Has decided.
To stipulate
First: To designate forest areas in Level I Region
of Central Kalimantan Province of ±15,300 ha as
forest areas with the function and size as detailed
as follows: 68
1. Natural Preservation Forest/Recreational
Forest of 729,919 ha
2. Protected Forest of 800,000 ha
3. Limited Production Forest of 3,400,000 ha
4. Regular Production Forest of 6,000,000 ha
5. Convertible Production Forest of 4,302,101
ha
Second: The temporary boundaries of the forest areas in the First verdict are drawn on a map attached hereto while the permanent boundaries will be determined after the measurement and determination of boundaries in the field.
Third: To order the Director General of Forestry to measure and arrange the boundaries of the Forest
Areas in the field.
Fourth: Forest areas designated/stipulated prior to the issuance of this Decision Letter, which are located outside forest areas as referred to in the
First dictum of this Decision Letter shall not be changed insofar as there is no further stipulation.
69
Fifth: This decision letter is effective as from the
date of stipulation provided that all matters will be
amended and re-regulated in the future days if
there is any error found in this stipulation.
3. Whereas the temporary boundaries of the forest
areas in the First verdict are set out on the Map
Attached to Decree of the Minister of Agriculture
Number 759 Year 1982 while the permanent
boundaries will be determined after the
measurement and arrangement of boundaries in
the field. This indicates that the designation of the
size of forest areas in the Central Kalimantan
Province as detailed in Decree of the Minister of
Agriculture Number 759 Year 1982 indicates that it
has not been final since it is still temporary and
needs further activities, namely measurement and
arrangement of boundaries in the field;
4. Whereas based on the Map Attached to Decree
of the Minister of Agriculture Number 759 Year
1982 and Article 1 sub-article 3 of the Forestry
Law, all areas of Central Kalimantan in which the
Petitioners live are in forest areas.
5. Whereas to measure and arrange the boundaries
of forest the areas in the field, the Director General 70
of Forestry has been ordered to perform such
activities. However, in practice, such activities
have not been performed completely until this
petition is filed which has caused several problems
until today in the determination of forest areas in
the Central Kalimantan Province, particularly in the
areas of the Petitioners;
6. Whereas since 1993, the Central Kalimantan
Province has had Provincial Spatial Layout Plan
(RTRWP) with the existence of Regional
Regulation of Level I Region of Central Kalimantan
Number 5 Year 1993 concerning Provincial Spatial
Layout Plan (RTRWP) of Central Kalimantan. The
Regional Regulation was then amended by
Regional Regulation of the Central Kalimantan
Province Number 8 Year 2003;
7. Whereas the Introduction of Regional Government
Number 5 Year 1993 was a response to the
issuance of Law Number 24 Year 1992 concerning
Spatial Layout instructing Provincial Government
to prepare Provincial Spatial Layout Plan.
Provincial Spatial Layout Plan (RTRWP) which
contains directives on spatial layout which includes
directives on forest areas. Subsequently, in 71
addition to the formulation of Regional Regulation,
Provincial Spatial Layout Plan (RTRWP) of Central
Kalimantan was also improved by coordination
with the Central Team of National Spatial Layout
Coordinating Board (BKTRN) on June 4, 1994,
signed by Regional Planning and Development
Agency of the Central Kalimantan Province, the
Directorate General of Regional Development of
the Department of Home Affairs and the Director
General of Forest Inventory and Exploitation of the
Department of Forestry at that time. The
Improvement of the Provincial Spatial Layout Plan
(RTRWP) of the Central Kalimantan Province was
validated by Letter of the Minister of Home Affairs
Number 68 Year 1994 dated June 20, 1994.
Therefore, since 1993, the size of the Central
Kalimantan Province is 15,356,400 ha, with the
following details: non-forest area of 4,207,225 ha
and remaining forest area of 11,149,145 ha;
8. Whereas the Provincial Spatial Layout Plan
(RTRWP) of the Central Kalimantan Province and
Decree of the Minister of Agriculture Number 759
Year 1982 were harmonized with Decision of
Decision of the Governor of Level I Region of
Central Kalimantan Number 008/054/IV/BAPP 72 dated March 16, 1999 concerning Results of
Harmonious Consolidation between Protected and
Cultivated Area Map of the Provincial Spatial
Layout Plan and Forest Land Use Agreement
(TGHK) of Level I Region of Central Kalimantan.
The Governor Decision was made as a follow-up to the Agreement of Team Meeting dated
December 23, 1998 signed by the Team of Level I
Regional Government of the central Kalimantan
Province and the Team of the Department of
Forestry and Plantation at that time represented by the Director of Program Development of the
Directorate General of Forest Inventory and
Exploitation. By the harmonization, the size of
Central Kalimantan Province increased to
15,759,594.45 ha with the composition of non- forest area of 5,325,233.27 ha and forest area of
10,434,361.18 ha. Article 5 of Decision of the
Governor of Level I Region of Central Kalimantan
Number 008/054/IV/BAPP states that “With the issuance of the Map as referred to in Article 3, the
Map of Forest Land Use Agreement (TGHK) shall be declared no longer applicable as directives on land use in the Central Kalimantan Province.”;
73
9. Whereas on September 12, 2000, the Head of
Forestry and Plantation Planning Agency issued
Letter Number 778/VIII-KP/2000 concerning the
consideration for the Release of Forest Area for
Plantation, which essentially states that “With
respect to area reservation for plantation
cultivation business development in the Production
Development Area (KPP) and the Settlement and
Other Use Area (KPPL) based on the
harmonization between the Provincial Spatial
Layout Plan (RTRWP) and the Forest Land Use
Agreement (TGHK) of Central Kalimantan
(Decision of the Governor of Central Kalimantan
Number 008/965/IV/BAPP dated May 14, 1999,
the process of release of forest areas is no longer
required”;
10. Whereas the issue of uncertainty of forest areas in
the areas of the Petitioners was initiated by the
issuance of Circular Letter of the Minister of
Forestry Number 404/Menhut-II/03 dated July 10,
2003 giving unilateral instructions to the Provinces
having no Harmonious Consolidation Map
between Forest Land Use Agreement (TGHK) and
Provincial Spatial Layout Plan (RTRWP) by using
the reference of Forest Land Use Agreement 74
(TGHK). It seems as though the issuance of the
circular letter eliminated the process of
harmonization previously performed by the Central
Government and Regional Government for 4 years
starting from 1999 until 1998;
11. Whereas on September 20, 2003, Regional
Regulation of the Central Kalimantan Province
Number 8 Year 2003 concerning Regional Spatial
Layout Plan of the Central Kalimantan Province
was formulated which states that the size of the
Central Kalimantan Province becomes 15,356,700
ha with the composition of forest area of
5,061,846.46 ha and forest area of 10,294,853.52
ha. The formulation of Regional Regulation
Number 8 Year 2003 was a mandate of Law
Number 24 Year 1992 and Law Number 22 Year
1999. Regional Regulation Number 8 Year 2003
was stipulated on September 20 and was enacted
in Palangka Raya on October 13, 2003 in Regional
Gazette of the Central Kalimantan Province Year
2003 Number 28 E Series.
12. Whereas with reference to Provision of Article 1
sub-article 3 of Law Forestry and Circular Letter of
the Minister of Forestry Number 404/Menhut-II/03, 75
the Ministry of Forestry has taken legal actions
based on the definition of forest area which
actually has not had legal certainty. The basis for
forest area, in practice, still refers to Decree of the
Minister of Agriculture Number 759 Year 1982
stating that all areas of the Central Kalimantan
Province are included in forest areas.
13. Whereas on September 11, 2006, the Minister of
Forestry issued Letter of the Minister of Forestry
Number S.575/Menhut-II/2006 regarding
Revocation of Letter of the Head of Forestry and
Plantation Planning Agency Number 778/VII-
KP/2000 dated September 12, 2000, stating that
the application for the use of Production
Development Area (KPP) and Settlement and
Other Use Area (KPPL) shall be followed up by the
Release of Forest Area by the Minister of Forestry.
This condition has created legal uncertainty in the
utilization of forest areas in the Central Kalimantan
Province and particularly in the areas of the
Petitioners;
14. Whereas the Minister of Forestry also issued
Letter Number S.255/Menhut-II/07 dated April 11,
2007 regarding the Utilization of forest areas which 76
provides that, “The use of forest area based on
Regional Regulation (PERDA) as Production
Development Area (KPP) and Settlement and
Other Use Area (KPPL) not requiring the release
of forest area from the Minister of Forestry may
result in violations of law and may be imposed with
criminal sanctions”;
15. Whereas based on the Map of Provincial Spatial
Layout Plan (RTRWP) of the Central Kalimantan
Province Year 2003, it can be concluded that the
Capital city of Kuala Kapuas (government offices,
public settlement) is located in the Settlement and
Other Use Area (KPPL) and Production
Development Area (KPL). If referring to Letter of
the Head of Forestry and Plantation Planning
Agency Number 778/VII-KP/2000 dated
September 12, 2000, Production Development
Area (KPL) and Settlement and Other Use Area
(KPPL) do not require the release of forest area.
Subsequently, if referring to Letter of the Minister
of Forestry Number S.575/Menhut-II/2006
regarding Revocation of Letter of the Head of
Forestry and Plantation Planning Agency Number
778/VII-KP/2000 dated September 12, 2000,
Production Development Area (KPL) and 77
Settlement and Other Use Area (KPPL) shall be
followed up by the Release of Forest Area by the
Minister of Forestry. Such condition creates legal
uncertainty in the utilization of forest areas in the
Central Kalimantan Province and particularly in the
areas of the Petitioners;
16. Whereas based on Circular Letter of the Minister
of Forestry Number 404/Menhut-II/03 and in view
of the fact that the Provincial Spatial Layout Plan
(RTRWP) of the Central Kalimantan Province had
not been validated, on February 28, 2011, followed
up by Mutual Agreement between Regents/Mayors
and the Chairpersons of Regional People’s
Legislative Assembly (DPRD) throughout Central
Kalimantan with the following substance:
a. Whereas to guarantee the stability of areas
and legal certainty, Regional Regulation of
the Central Kalimantan Province Number 8
Year 2003 concerning Regional Spatial
Layout Plan of the Central Kalimantan
Province shall continue to be used as the
legal basis for policy adoption in the context
of utilization of space and the use of areas
for people’s welfare, development purposes 78
and investment in the Central Kalimantan
Province.
b. Matters related to legal and administrative
aspects in the context of reinforcement of
Regional Regulation of the Central
Kalimantan Province Number 8 Year 2003
concerning Regional Spatial Layout Plan of
the Central Kalimantan Province are
coordinated by the Governor of Central
Kalimantan and all Regents/Mayors and the
Chairpersons of Regency/Municipal
Peoples’ Legislative Assembly throughout
Central Kalimantan shall agree to support
the policy adopted by the Governor of
Central Kalimantan.
17. Whereas subsequently upon the mutual
agreement, the Governor of Central Kalimantan
followed it up by submitting a Report to the
President of the Republic of Indonesia, according
to Letter Number 126/151/III.1/ADPUM dated April
27, 2011 regarding Report on mutual agreement
between Regents/Mayors and the Chairpersons of
Regency/Municipal People’s Legislative Assembly
throughout Central Kalimantan. The report, 79
conveyed that “The Proposal for the Stipulation of
Provincial Spatial Layout Plan (RTRWP) has been
implemented for 4 (four) years ago but has not
been completed until today, it is hereby reported
that all Regents/Mayors throughout Central
Kalimantan and the Chairpersons of
Regent/Municipal People’s Legislative Assembly
(DPRD) throughout Central Kalimantan on April 5,
2011 agreed that Regional Regulation (PERDA)
Number 8 Year 2003 concerning Regional Spatial
Layout Plan of the Central Kalimantan Province
shall continue to be used as the basis for policy
adoption”;
18. Whereas the definition of forest area as regulated
in Article 1 sub-article 3 of the Forestry Law, while
in fact, in determining forest areas, the Ministry of
Forestry still refers to Decree of the Minister of
Agriculture Number 759 Year 1982 which is of
beschikking nature temporarily rather than laws
and regulations as regulated in Law Number 10
Year 2004 concerning the Formulation of Laws
and Regulations, in order to give legal certainty in
determining forest areas, the provision of Article 1
sub-article 3 of the Forestry Law must be
interpreted in such a way that forest area is a 80
certain area stipulated as forest area by the
Government to be preserved as a permanent
forest, rather than being literally interpreted to be
designated as provided for in Article 1 sub-article 3
of the Forestry Law.
19. Whereas based on the juridical descriptions and
facts described above, Article 1 sub-article 3 of the
Forestry Law creates legal uncertainty in the areas
of the Petitioners, particularly in relation to the
status of forest areas and it is inconsistent with the
principles of rule of law state as regulated in Article
1 paragraph (3) of the 1945 Constitution.
3.4. Constitutional rights of the Petitioners to the
Recognition, the Guarantee, the Protection and the
Legal Certainty Become Uncertain since at Any Time
the Petitioners Can Be Criminalized If the Provision
of Article 1 sub-article 3 of the Forestry Law Still
Becomes the Reference to Determine Forest Areas
1. Whereas in the Forestry Law regulating forestry
criminal acts as regulated under Article 50 juncto
Article 78 of the Forestry Law, forest area is made
as one of main elements of forestry criminal acts.
Article 50 paragraph (3) of the Forestry Law states:
Every person is prohibited from: 81
a. working on and/or use and/or occupy forest
areas illegally.
b. cutting down trees in forest areas;
c. cutting down trees in forest areas within the
radius or up to a distance of:
1. 500 (five hundred) meters from the
banks of reservoir or lake;
2. 200 (two hundred) meters from the
banks of spring water and the sides
of rivers in swamp areas;
3. 100 (one hundred) meters from the
sides of rivers;
4. 40 (fifty) meters from the sides of
tributaries;
5. 2 (two) times the depth of ravine from
the toe line;
6. 130 (one hundred and thirty) times
the difference between the highest
and lowest tide from the costal line.
d. burning forest;
e. cutting down trees, harvesting or collecting
forest products within a forest without rights
or consents from the competent officials; 82
f. receiving, purchasing or sell, bartering,
receiving depositing, storing or possessing
forest products identified or reasonably
alleged to have been obtained from forest
areas or collected illegally;
g. performing the activities of general inquiry
or mining exploration or exploitation within
forest areas without consent from the
Minister;
h. transporting, controlling or possessing
forest products without any statement of
validity of the forest products;
i. rearing livestock within forest areas not
specifically designated for such purpose by
the competent officials;
j. bringing heavy-duty equipments and/or
other equipments common or reasonably
alleged to be used to transport forest
products within forest areas without consent
from the competent officials;
k. bringing equipments commonly used to
chop down, cutting, splitting trees within 83
forest areas without consent from the
competent officials;
l. disposing of objects which may cause fire
and damages or endanger the existence or
continuity of forest functions into forest
areas; and;
m. taking out, taking away and transporting
wild plants and animals not protected by law
from forest areas without consent from the
competent officials.
2. Whereas the interpretation of “designation of forest
areas” in Article 1 sub-article 3 of the Forestry Law
as having the same status with “stipulation of
forest areas” has created legal uncertainty in
determining the elements of forest areas in forestry
criminal acts;
3. Whereas law enforcement in Central Kalimantan
has been referring to Article 1 sub-article 3 of the
Forestry Law and Decree of the Minister of
Agriculture Number 759 Year 1982 rather than the
provision of Articles 14 and 15 of the Forestry Law
to determine whether or not an area is a forest
area; 84
4. Whereas based on Decree of the Minister of
Agriculture Number 759 Year 1982, all areas of the
Petitioners are within forest areas, and therefore,
the Petitioners are threatened with criminal
sanctions under Article 50 paragraph (3) sub-
paragraph a juncto Article 78 paragraph (2) of the
Forestry Law for working on and/or using and/or
occupying forest areas illegally with maximum
imprisonment of 10 (ten) years and a maximum
pecuniary sanction of Rp5,000,000,000.00 (five
billion Rupiah);
5. Whereas the Map Attached to Decree of the
Minister of Agriculture Number 759 Year 1982
cannot be made as a reference to determine forest
areas since it is only temporary and it does not
view the factual condition in the field. This can also
be seen in the second item of Decree of the
Minister of Agriculture Number 759 Year 1982
stating that “The temporary boundaries of the
forest areas in the First verdict are drawn on a
map attached hereto while the permanent
boundaries will be determined after the
measurement and determination of boundaries in
the field”; 85
6. Whereas in criminal law, there must be legal
certainty related to the elements of criminal acts so
that the perpetrator can be asked for criminal
responsibility. To prevent legal uncertainty, the
element of “forest area” in a forestry criminal act as
regulated in Article 50 juncto Article 78 of the
Forestry Law must be clear and shall not cause
multiple interpretation and also it shall not refer to
temporary boundaries but permanent boundaries
determined in the field as a part of the process of
forest area confirmation.
7. Whereas legal uncertainty in the definition of forest
area as regulated in Article 1 sub-article 3 of the
Forestry Law is inconsistent with the principles of
nullum crimen sine lege stricta (there shall be no
action can be criminalized without any clear and
express rules). Another consequence of such
interpretation is that the formulation of criminal act
must be clear in order to avoid multiple
interpretations that can result in legal uncertainty;
8. Whereas under the provision of Article 14
paragraph (2) of the Forestry Law, an area can be
said to be a forest area with certain legal force if it
has undergone the process of forest area 86
confirmation not only the process of forest area
designation;
9. Whereas the licenses issued by Petitioner I,
Petitioner II, Petitioner III, Petitioner IV, Petitioner
V in forest areas based on the Map Attached to
Decree of the Minister of Agriculture Number 759
Year 1982 has become non-procedural and are
categorized as forestry criminal acts;
10. Whereas Letter of the Minister of Forestry Number
S.255/Menhut-II/07 dated April 11, 2007 regarding
Utilization of forest areas determines that “The use
of forest area based on Regional Regulation
(PERDA) as Production Development Area (KPP)
and Settlement and Other Use Area (KPPL) not
requiring the release of forest area from the
Minister of Forestry may result in violations of law
and may be imposed with criminal sanctions”
11. Whereas based on Circular Letter of the Minister
of Forestry Number S.95/Menhut-IV/2010 dated
February 25, 2010 concerning Report on Non-
Procedural Use of Forest Areas and Results of the
Exposure of the Handling of Non-Procedural Use
of Forest Areas for Plantation and Mining dated
October 27, 2010 in Palangka Raya, it is alleged 87
that a violation in the form of forestry criminal act in
the use of forest areas for plantation and mining
without consent from the Minister of forestry has
been found. This gives rise to a threat to Petitioner
I, Petitioner II, Petitioner III, Petitioner IV and
Petitioner V who are Regents in their respective
areas because of uncertainty in the determination
of areas by the Ministry of Forestry due to unclear
interpretation of the provision of Article 1 sub-
article 3 of the Forestry Law.
12. Whereas on April 18, 2011, the Minister of
Forestry issued Letter Number S.193/Menhut-
IV/2011 concerning the Inquiry and Investigation
Team on Non-Procedural Use of Forest Areas in
the Central Kalimantan Province addressed to the
Governor of Central Kalimantan and
Regents/Mayors in the Central Kalimantan
Province. Letter Number S.193/Menhut-IV/2011
states that, “Based on the results of exposure of all
Regents/Mayors in the Central Kalimantan
Province, data and information that we have
obtained from the related agencies and public
report, violations in the form of forestry criminal
acts in the use of forest areas for plantation and
mining without consent from the Minister of 88
Forestry are alleged to have occurred. In addition
to that, violations in the form of other criminal acts
such as the cases of corruption, environment and
abuse of authority by the officials are also alleged
to have occurred. To respond to the conditions, we
have formed a team to conduct inquiry and
investigation on non-procedural use of forest
areas”
13. Whereas the Minister of Forestry has also issued a
statement that “Regional heads must immediately
revoke business licenses in forest areas for
businesses which are still in operation although
they have not obtained the consent from the
Minister of Forestry. If they do not immediately
revoke the licenses, the regional heads are
reasonably alleged to be involved in cutting down
trees in forest areas” (Kompas, June 25, 2010);
14. Whereas Article 28D paragraph (1) recognizes and
protects the constitutional rights of a citizen to
obtain certain legal guarantee and protection
translated in the field of criminal law as the legality
principle as set out in Article 1 paragraph (1) of the
Criminal Code (KUHP) stating that “An act cannot 89
be criminalized unless based on the force of the
provisions of the existing criminal legislation”;
15. Whereas the juridical grounds and factual
evidence referred to in items 1 through 4 indicate
that the provision of Article 1 sub-article 3 of the
Forestry Law has impaired the constitutional rights
of the Petitioners to the recognition, the guarantee,
the protection and the legal certainty since the
Petitioners may at any time be criminalized if the
provision of Article 1 sub-article 3 of the Forestry
Law still becomes the reference to determine
forest areas which is inconsistent with provision of
Article 28D paragraph (1) of the 1945 Constitution.
3.5 The Phrase “and or” in Article 1 sub-article 3 of the
Forestry Law Is Not Common in the Writing of An
Article in Laws and Regulations
1. Whereas Article 1 sub-article 3 of the Forestry Law
stated that Forest area shall be a certain area
designated and or stipulated by the Government to
be preserved as a permanent forest;
2. Whereas Article 1 sub-article 3 of the Forestry Law
contains the phrase “and or”;
90
3. Whereas good formulation of laws and regulations
must refer to Attachment to Law No. 10 Year 2004
concerning Formulation of Laws and Regulations;
4. Whereas item 68 of the Attachment to Law No. 10
Year 2004 states that if an element or detail in the
tabulation is intended to be a cumulative detail, the
word “and” shall be added placed after the second
detail from the last detail. Item 69 of the
Attachment to Law Number 10 Year 2004 states
that if a detail in the tabulation is intended as an
alternative detail, the word “or” shall be added and
placed after the second detail from the last detail.
Item 70 of the Attachment to Law Number 10 Year
2004 states that if a detail in the tabulation is
intended as cumulative and alternative details, the
word “and/or” shall be added and placed after the
second detail from the last detail;
5. Whereas referring to the Attachment to Law No. 10
Year 2004, the phrase “and or” is not recognized.
However, the phrase “and/or” is used to show
cumulative and alternative details.
6. Whereas therefore, the phrase “and or” in Article 1
sub-article 3 of the Forestry Law violates the
provision stipulated in Law No. 10 Year 2004 91
concerning the Formulation of Laws and
Regulations and it is uncommon in the writing of
laws and regulations.
3.6 The Provision of Article 1 sub-article 3 of the Forestry
Law Is Inconsistent With the Provisions of Article 14
and Article 15 of the Forestry Law
1. Whereas Article 1 sub-article 3 of the Forestry Law
gives allows the Government to interpret
“designation” to have the same legal status with
the stipulation of forest area. Thus, in each of its
policies, the Government (in this case the Ministry
of Forestry) has stated that the designation of
forest areas shall have the same legal status as
the stipulation of forest areas so that the Decision
of the Ministry of Forestry on Designation of Forest
Areas shall be used as a reference to enforce law
in the forestry sector;
2. Whereas several Decisions and Regulations
stating that designation is equal to the stipulation
of forest areas are: Letter of the Minister of
Forestry Number S.426/Menhut-VII/2006 dated
July 12, 2006 concerning Explanation of the
Minister of Forestry on the Status of Forest Area
Status addressed to the Chief of the National 92
Police of the Republic of Indonesia with carbon copies to the President of the Republic of
Indonesia, the Vice-President of the Republic of
Indonesia, the Minister of Law and Human Rights of the Republic of Indonesia, the State Minister for the Environment of the Republic of Indonesia, the
Attorney General of the Republic of Indonesia and
Echelon I of the Department of Forestry, with the following excerpt:
“Point 5. Article 1 sub-article 3 of Law Number 41
Year 1999 explains that Forest area shall be a certain area designated and or stipulated by the
Government to be preserved as a permanent forest.
Point 6. Based on the definition above, it can be concluded that although a forest area and its boundaries have not been arranged and stipulated by the Government, its status remains as a forest area.
Point 9. In response to the matter mentioned in item 6 above, we hereby convey that:
a. Certain areas having been designated by
the Minister of Forestry as forest areas and 93
whose existence has been preserved as
permanent forests are legally forest areas.
b. Although the boundaries of the area have
not been arranged, the utilization and use of
the area have had legal consequences
bound by the applicable laws and
regulations.
In connection with the foregoing, it is hoped that
the ranks and files of the National Police of the
Republic of Indonesia shall have the same
understanding of the status of forest areas so that
violations in the forestry sector may be indicted by
the existing provisions although the status has only
been at the designation stage”;
3. Whereas the interpretation of the Ministry of
Forestry stating that the designation of forest areas
has legal force can also be seen in Regulation of
the Minister of Forestry Number P.50/Menhut-
II/2009 concerning the Confirmation of the Status
and Functions of Forest Area:
Article 2
(1) A forest area shall have legal force in the
event that: 94
a. it has been designated by a Ministerial
Decree; or
b. its boundaries have been arranged by the
Committee for Boundary Arrangement; or
c. Minutes on the Forest Area Boundary
Arrangement has been ratified by the
Minister; or
d. The Forest Area has been stipulated by a
Ministerial Decree.
(2) In the event that an area designated by a
Ministerial decree, or the boundaries of an
area have been arranged by the Committee
for Boundary Arrangement, or the minutes
of forest area boundary arrangement has
been ratified by the Minister of Forestry, the
reference to forest area used shall be the
most recent status.
4. Whereas provision of Article 1 sub-article 3 of the
Forestry Law, particularly in relation to the phrase
“designated and or” and also the interpretation of
the Ministry of Forestry stating that “Certain areas
designated by the Minister of Forestry as forest 95
areas and preserved as permanent forests are
legally forest areas,” are inconsistent with Article
14 paragraph (2) of the Forestry Law stating that
“The activities of confirmation of a forest area as
referred to in paragraph (1) shall be conducted to
provide legal certainty for forest areas”;
5. Whereas Article 15 paragraph (1) of the Forestry
Law states that “The confirmation of forest areas
as referred to in Article 14 shall be conducted
through the following processes:
a. designation of forest areas,
b. arrangement of forest area boundaries,
c. mapping of forest areas, and
d. stipulation of forest areas”
and paragraph (2) states that “The confirmation of
forest areas referred to in paragraph (1) shall be
conducted by taking account of the regional spatial
layout plan”
6. Whereas if seen from the stages of forest area
confirmation, designation of forest areas is a
preparatory activity for forest area confirmation
[Elucidation of Article 15 paragraph (1) of the 96
Forestry Law], while Stipulation is the final stage
activity of forest area confirmation in which there is
legal certainty with respect to the status,
boundaries, and size of a forest area to become a
permanent forest area;
7. Whereas referring to Article 14 and Article 15 of
the Forestry Law, designation and stipulation are
different things and an area shall have legal
certainty as a forest area in the event that it has
undergone the whole confirmation process,
starting from designation, boundary arrangement,
mapping and stipulation;
8. Whereas in the previous Decision, namely
Decision Number 123/PUU-VII/2009 dated
February 2, 2010, Page 100, the Court stated that
“Whereas there must be consistency and
coherency among articles, as well as in the
explanations of the articles in a Law, so that the
said Law may have no contradiction”.
9. Whereas because Indonesia is a rule of law state
and in accordance with Decision Number
123/PUU-VIII/2009, there must be consistency and
coherency among articles of a Law. Therefore,
inconsistency between Article 1 sub-article 3 of the 97
Forestry Law and Article 14 and Article 15 of the
Forestry Law has violated the principle of rule of
law state as regulated in Article 1 paragraph (3) of
the 1945 Constitution;
3.7 Locations in Kapuas Regency are Factually not
Forests While They Are Declared to be Forest Areas
Due to the Provisions of Article 1 Sub-article 3 of the
Forestry Law
1. Whereas Kapuas Regency has been existing since
1950, autonomously established by Emergency
Law Number 3 Year 1953 juncto Law Number 27
Year 1959 and hospitals, schools, roads, bridges,
government offices, housing and settlements, etc.
have been built;
2. Whereas based on the US Army Map Service Year
1962, several locations in Regency are rice fields,
bushes, roads, etc.;
3. Whereas based on Land-Covering Map of the
Central Kalimantan Province produced from Image
of Landsat 7 ETM+ Year 2002-2003, Kapuas
Regency consists of not only forests but also
bushes, swamp bushes, dry-land farm, rice fields,
and settlements. 98
4. Whereas a hospital named Hanggulan Sinta
Hospital was built in 1930 by Zending Basle in
Barimba village, Kapuas Hilir District, Kapuas
Regency. Whereas in 1966, the Regional
Government moved the hospital from Barimba to
Jalan Kapten Pierre Tendean in Selat Hilir Sub-
District, Selat District, on a land area of 60,000 m2.
Whereas on February 6, 1993 Hanggulan Sinta
Hospital had its name changed into Dr. H.
Soemarno Sosroatmodjo Regional Public Hospital
(RSUD Soemarno Sosroatmodjo), occupying a
new building at Jalan Tambun Bungai Number 16,
Kuala Kapuas.
5. Whereas RSUD dr. H. Soemarno Sosroatmodjo
located at the coordinate of Latitude 03000’34.8”
South and Longitude 114023’20.0 East based on
Decree of the Ministry of Forestry Number 759
Year 1982 is located within the Convertible
Production Forest (Hutan Produksi yang Dapat
Dikonversikan/HPK) although in reality it is a
hospital building;
6. Whereas in Kapuas Regency on August 1, 1961,
State Senior High-School (SMAN) 1 of Kuala
Kapuas was established. In the beginning it was 99
located in the area of Jalan Pelajar constituting
students’ complex, but along with the city’s
development and expansion it is now located at
Jalan Letjen Soeprapto Number 66, Kuala Kapuas;
7. Whereas based on Decree of the Minister of
Forestry Number 759 Year 1982, the location of
SMAN 1 of Kuala Kapuas at the coordinate of
Latitude 03001’18.7” South and Longitude
114023’29.0 East is within a Convertible
Production Forest (HPK), while in reality, it is a
school building;
8. Whereas several locations in Kapuas Regency,
particularly in Kapuas District which, according to
Decree of the Minister of Forestry Number 759
Year 1982, are within a forest area, in reality are
not forest areas. It can be proven by field evidence
as follows:
Table
Real Conditions of Kapuas Regency
Based on Map of
Decree of the Minister No. Coordinate Real Conditions of Forestry Number
759 Year 1982 100
Based on Map of
Decree of the Minister No. Coordinate Real Conditions of Forestry Number
759 Year 1982
1. Latitude Convertible Production Kuala Kapuas District
03000’43.4” South Forest Court
Longitude
114023’16.6” East
2. Latitude Convertible Production Kapuas Regional
03000’45.7” South Forest People’s Legislative
Longitude Assembly (DPRD)
114023’14.6” East Office
3. Latitude Convertible Production Kuala Kapuas District
03001’04.1” South Forest Prosecutor’s Office
Longitude
114023’05.0” East
4. Latitude Convertible Production Darul Muttaqin
03001’09.3” South Forest Mosque
Longitude
114023’20.2” East
5. Latitude Convertible Production Sinta Church
03001’06.6” South Forest
Longitude
114023’13.9” East
6. Latitude Convertible Production Kapuas District Police 101
Based on Map of
Decree of the Minister No. Coordinate Real Conditions of Forestry Number
759 Year 1982
03001’29.2” South Forest
Longitude
114023’23.2” East
7. Latitude Convertible Production Kapuas Regent’s
02057’56.2” South Forest Office
Longitude
114025’00.7” East
8. Latitude Convertible Production Land Office of Kapuas
03000’47.2” South Forest Regency
Longitude
114023’16.3” East
9. Latitude Convertible Production Pemuda Permai
02059’56.3” South Forest Housing
Longitude
114023’37.1” East
10. Latitude Convertible Production Pulau Petak Rice
02059’11.0” South Forest Fields
Longitude
114024’50.4” East
11. Latitude Convertible Production Danaumare Shopping
03001’17.1” South Forest Center 102
Based on Map of
Decree of the Minister No. Coordinate Real Conditions of Forestry Number
759 Year 1982
Longitude
114023’34.4” East
9. Whereas based on “forest area designation”, the
all the aforementioned locations are within the
forest areas. On the contrary, in the event that the
forest areas are determined through the process of
forest area confirmation, the said areas are not
forest areas.
3.8 Petitioner I’s Regional Assets as well as Other
Facilities Built Since 1950 are within Forest Areas
Due to the Provisions of Article 1 sub-article (3) of the
Forestry Law and Decree of the Minister of Forestry
Number 759 Year 1982
1. Whereas Petitioner I has assets and other facilities
located in forest areas, namely, among other
things:
a. buildings and land used as office as well as
other supporting facilities of the Regional
Government of Kapuas Regency; 103
b. roads in Kapuas Regency consisting of
459.90 km of state road, 463.35 km of
provincial road and 1,722.04 km of regency
road;
c. school buildings, namely among other
things: 132 Kindergarten buildings, 845
Primary School buildings 64 Junior High-
School buildings, 20 Senior High-School
buildings, and 2 University buildings;
d. places of worship, namely among other
things: 308 mosques, 530 langgar; 22
musholla, 169 churches and 54 temples;
e. health facilities, namely among other things:
23 Community Health Centers, 120
Auxiliary Community Health Centers, 31
Village Health Posts, 97 Village Clinics, 1
hospital, 3 private maternity clinics and 21
private medication clinics;
2. Whereas Petitioner I is potentially losing the
aforementioned Regional assets as well as other
facilities in the event that Article 1 sub-article (3) of
the Forestry Law is made as reference to
determine forest areas because regional assets as 104
well as other supporting facilities developed since
1950 are considered to be located in forest areas.
3.9 Petitioner I Cannot Develop the Potentials of the
Region Because Its Region is Wholly Designated as
Forest Areas
1. Whereas based on Decree of the Minister of
Forestry Number 759 Year 1982, the entire region
of Kapuas Regency is designated as forest areas:
No. Function of Areas Size (ha)
1. Protected Forest (Hutan Lindung/HL) 5,395
2. Limited Production Forest (Hutan 823,904
Produksi Terbatas/HPT)
3. Production Forest (Hutan Produksi/HP) 499,684
4. Convertible Production Forest (Hutan 170,917
Produksi yang dapat dikonversi/HPK)
Total 1,499,900
2. Whereas according to Regional Regulation of
Central Kalimantan Province Number 8 Year 2003,
the area of Kapuas Regency is divided as follows:
Protected Forest : 14,400 ha
Mangrove Conservation : 8,000 ha
Conservation of Black Water
Ecosystem : 9,200 ha 105
Flora and Fauna
Conservation : 48,800 ha
Hydrology Conservation : 120,000 ha
Thick Peat Conservation : 73,200 ha
Limited Production Forest : 339,600 ha
Production Forest : 322,850 ha
Production Development Area : 340,250 ha
Settlement and Other Use
Area : 142,000 ha
Transmigration Area : 6,800 ha
People’s Ditch (Handil) Area : 74,800 ha
3. Whereas in the event that one refers to Decree of
the Minister of Forestry Number 759 Year 1982,
Petitioner I cannot develop the potentials of its
region because it has to request for the permission
of the Minister of Forestry to perform its activities
and authority in Kapuas Regency;
4. Whereas the Mainstay potentials of Kapuas
Regency come from the agricultural sector,
plantation sector, mining sector and other sectors
which constitute the driving motor of the economy
to improve people’s welfare;
5. Whereas the mainstay economic potentials of the
people of Kapuas Regency from the management 106
of natural resources are entirely located in the
forest areas;
6. Whereas Kapuas Regency is known as the
granary of the Central Kalimantan Province for its
great contribution of the agricultural sector to the
Gross Regional Domestic Product (GRDP) of
Kapuas Regency and the significant number of
manpower absorbed by the agricultural sector
which constitute the characteristics of Kapuas
Regency. In tidal areas and non-tidal areas, it is
recorded that the area of land potential is 109,373
ha consisting of rice fields and dry land with
opened area of 161,343 ha, and the remaining
development area of 115,939 ha. Meanwhile, land
actively used for irrigated rice fields, upland rice,
secondary crop, and horticulture covers an area of
222,181 ha. Based on the data of Food Crop and
Horticulture of Kapuas Regency, the diversity of
food crop and horticulture developed in Kapuas
Regency can be seen in the following table:
Table
Development of Food Crops and Horticulture
No. Type of Commodity Year 107
2008 2009 2010
Realization Realization Realization
1 2 3 4 5
1. Rice:
- Planted Area 106,284 113,319 93,831
- Harvested Area 99,053 105,601 109,295
- Production (Ku/Ha) 27.99 30.12 29.75
- Production (Ton) 277,279 318,117 325,148
2. Corn:
- Planted Area 1,035 480 655
- Harvested Area 436 510 305
- Production (Ku/Ha) 36.75 37.41 34.58
- Production (Ton) 1,072 1,908 1,055
3. Soy Bean:
- Planted Area 322 660 589
- Harvested Area 418 612 285
- Production (Ku/Ha) 11.53 11.31 11.37
- Production (Ton) 482 518 331
4. Peanut:
- Planted Area 165 251 56
- Harvested Area 112 395 54
- Production (Ku/Ha) 11.25 11.49 11.37
- Production (Ton) 351 424 61
5. Mung Bean: 108
Year
No. Type of Commodity 2008 2009 2010
Realization Realization Realization
1 2 3 4 5
- Planted Area 23 30 11
- Harvested Area 48 53 12
- Production (Ku/Ha) 8.38 8.46 8.20
- Production (Ton) 57 69 10
6. Cassava:
- Planted Area 1,386 1,573 1,075
- Harvested Area 1,225 1,324 1,622
- Production (Ku/Ha) 116.40 118.44 119.45
- Production (Ton) 14,402 15,681 19,375
7. Sweet Potato:
- Planted Area 177 326 192
- Harvested Area 117 366 197
- Production (Ku/Ha) 61.44 71.01 72.73
- Production (Ton) 2,408 2,599 1,413
Data source: Food Crop and Horticulture Service Office of Kapuas
Regency Year 2010
7. Whereas Kapuas Regency has potential coastal
areas with a coastal line of 37 km and waters as
area of 333,780.04 ha consisting of rivers covering
an area of 151,720 ha, swamps covering an area 109
of 156,362.04 ha, lakes covering an area of 98 ha,
and sea waters for sea fisheries covering an area
of 25,600 ha. The total area of potential land is
6,065 ha with potentials for aquaculture business
including carp, freshwater carp (betutu), shark
catfish, shrimp, snakehead murrel, pomfret, catfish
etc. The potential for sea water catch production
includes shrimps, snappers, mangrove etc. The
total production of in-land fishery and marine
fishery for the last 4 (four) years has been
continuously increasing. In 2007 in-land fishery
production reached 3,292.78 tons in sales value of
Rp3,292,786,000, meanwhile marine fishery
production reached 6,573,09 tons in sales value of
Rp6,573,092,000. In 2010 in-land fishery
production reached 7,729.07 tons in sales value of
Rp154,581,400,000, meanwhile marine fishery
production reached 6,546.4 tons, sales value of
Rp114,770,600,000. For more details on marine
fishery and in-land fishery production for the last 4
(four) years, see the table below:
Table
Fishery Production
Year Year 110
In-Land Fishery Marine Fishery
Production Value (Rp) Production Value (Rp)
(Tons) (Tons)
2007 3,292.78 3,292,786,000 6,573.09 6,573,092,000
2008 4,586.35 77,967,950,000 6,504.43 81,955,818,000
2009 6,216.54 105,681,180,000 6,546.34 98,195,100,000
2010 7,729.07 154,581,400,000 6,546.34 114,770,600,000
Data Source: Fisheries and Marine Affairs Service Office of
Kapuas Regency Year 2010
8. Whereas Development of Plantation in Kapuas
Regency is concentrated on 4 (four) types of
commodities including rubber, palm oil, coconut,
and coffee with rubber being at the first place in
the context of area and level of production. The
distribution of such commodities are relatively
even in 12 districts in Kapuas Regency. In general,
rubber is more concentrated in Matangai District,
while coconut is more concentrated in Kapuas
Kuala District, palm oil is more concentrated in
Kapuas Hulu District, Kapuas Tengah District and
Matangai District which currently are still in the
phase of opening the plantation and some of them
are in the phase of planting. More details on the
development of plantation in Kapuas Regency can
be seen in the following Table: 111
Table
Total Plantation Area and Production
Type of Plant and Year No. Production 2008 2009 2010
1. Rubber Plant:
a. Total area (Ha) 28,171 28,681 30,261
b. Total production (Ton):
1.Degree of Dry Rubber 16,504 16,519 16,310
2.Slab 55,345 55,027 55,027
2. Coconut Plant:
a. Total area (Ha) 10,519 10,659 10,659
b. Total production (Ton) 10,321 10,342 10,864
3. Coffee Plant:
a. Total area (Ha) 601 652 652
b. Total production (Ton) 51 51 40
Data source: Plantation and Forestry Service Office of Kapuas
Regency Year 2010
9. Whereas the existence of Major Private Plantation
investing in Kapuas Regency is able to open work
opportunities for the people and to contribute
revenues for the state. It is recorded that 6 (six)
PBS have submitted the report on Income Tax
(PPh) based on Article 21, Article 23 and Value
Added Tax (PPn) totaling Rp42,556,733,377.58. 112
Meanwhile, Investment Plan in the Plantation
sector in Kapuas Regency is divided into 2 (two)
areas namely: tidal area or wet-land area and dry-
land area or non-tidal area. More details on the
development of investment in Kapuas Regency
can be seen in the following table:
Table
Investment Plan in the Plantation Sector
In Kapuas Regency Year 2010
Total Investment Realization District No. Company Name Area Amount Notes (Rp/Billion) Location (Ha) (Rp/Billion)
1 2 3 4 5 6 7
PT. Rezeki Alam Matangai in 1. 20,000 450,000,000,000 154,329,000,000 Semesta Raya District operation
Matangai in 2. PT. Graha Inti Jaya 12,100 298,000,000,000 123,804,090,013 District operation
PT. Fajar Mas Kapuas in 3. 12,000 365,000,000,000 21,082,000,000 Indah Plantations Barat District operation
Selat and PT. Sepalar Yasa in 4. 14,000 690,000,000,000 25,200,000,000 Basarang Kartika operation Districts
PT. Dian Agro Matangai in 5. 20,310 250,000,000,000 22,000,000,000 Mandiri and Kapuas operation 113
Total Investment Realization District No. Company Name Area Amount Notes (Rp/Billion) Location (Ha) (Rp/Billion)
1 2 3 4 5 6 7
Murung
Districts
Matangai
PT. Globalindo and Kapuas in 6. 24,000 369,000,000,000 200,500,000,000 Agung Lestari Murung operation
Districts
PT. Kahayan Agro Timpah in 7. 20,000 574,201,000,000 2,500,000,000 Lestari District operation
Kapuas PT. Hijau Pertiwi in 8. 17,200 350,911,000,000 100,306,046,869 Kuala Indah Plantation operation District
Matangai PT. Sakti Mait Jaya in 9. 10,000 867,160,000,000 20,764,500,000 and Timpah Langit operation Districts
Kapuas PT. Kalimantan Ria in 10. 17,000 361,730,000,000 142,764,500,000 Tengah Sejahtera operation District
Kapuas PT. Wana Catur in 11. 12,500 450,000,000,000 90,000,000,000 Tengah Jaya Utama operation District
12. PT. Kapuas Maju 17,500 365,000,000,000 232,635,909,352 Kapuas in 114
Total Investment Realization District No. Company Name Area Amount Notes (Rp/Billion) Location (Ha) (Rp/Billion)
1 2 3 4 5 6 7
Jaya Tengah operation
District
Kapuas PT. Agro Subur in 13. 16,500 690,000,000,000 19,813,478,745 Tengah Permai operation District
PT. Dwi Warna Kapuas Hulu in 14. 12,500 369,000,000,000 214,397,569,477 Karya District Area operation
Kapuas Hulu in 15. PT. Susanti Permai 15,000 442,800,000,000 139,855,036,362 District Area operation
Kapuas
Tengah and not PT. Fliet Green 16. 15,831 339,033,638,181 - Timpah operated Power Districts yet
Area
Kapuas not PT. Bawan Indah 17. 17,000 350,360,000,000 - Tengah operated Perkasa District yet
Kapuas not PT. Kalimantan Tengah and 18. 12,500 304,341,766,000 - operated Agung Lestari Timpah yet Districts 115
Total Investment Realization District No. Company Name Area Amount Notes (Rp/Billion) Location (Ha) (Rp/Billion)
1 2 3 4 5 6 7
Area
Kapuas not PT. Bumi Sampana 19. 16,500 433,584,000,000 - Tengah operated Plantation District Area yet
not Kapuas Hulu 20. Pt. Eko Lestari 7,000 339,033,638,181 - operated District Area yet
PT. Hamparan Kapuas Hulu licensing 21. 14,000 350,976,228,000 - Mitra Abadi District process
Kapuas not PT. Makmur Tengah and 22. 15,000 418,236,000,000 - operated Bersama Asia Timpah yet Districts
Kapuas not PT. Bina Sarana Tengah and 23. 20,000 441,336,000,000 - operated Sawit Timpah yet Districts
Kapuas not PT. Mitra Sawit Tengah and 24. 6,500 166,219,728,000 - operated Sejahtera Timpah yet Districts 116
Total Investment Realization District No. Company Name Area Amount Notes (Rp/Billion) Location (Ha) (Rp/Billion)
1 2 3 4 5 6 7
Kapuas not PT. Mitra Sawit Tengah and 25. 13,500 313,900,000,000 - operated Sejahtera Timpah yet Districts
Data source: Plantation and Forestry Service Office of Kapuas
Regency Year2010
10. Whereas Kapuas Regency is adequately rich with
mineral resources and potentials to increase
Regional Original Revenues. In general, mining is
managed by the private sector and the people.
Types of mining resources in Kapuas Region are
coal, gold, limestone, clay, kaolin, quartz sand,
zircon sand, river and peat sand distributed in the
Area of Kapuas Hulu District, Kapuas Tengah
District, Timpah District, and Matangai District, with
the composition levels as seen in the table below:
Table
Types of Mineral and Coal Mining Resources
in Kapuas Regency 117
Hypothetic Presumed Estimated Measured No. Mineral Resources (Ton) (Ton) (Ton) (Ton)
1 2 3 4 5 6 7
1 Coal 913,575,066.47 0.00 136,299,713.15 436,611,243.49 340,664,109.83
2 Gold 8,875,000.00 0.00 8,875,000.00 0.00 0.00
3 Limestone 207,572,600.00 0.00 207,572,600.00 0.00 0.00
4 Clay 156,450,000.00 0.00 156,450,000.00 0.00 0.00
5 Kaolin 86,452,500.00 0.00 86,452,500.00 0.00 0.00
6 Quartz 409,968,005.00 0.00 342,108,750.00 67,859,255.00 0.00
Sand
7 Zircon 23,297,644.41 81,231.16 11,052,682.00 5,627,950.25 6,535,781.00
Sand
8 River 795,000.00 0.00 0.00 0.00 795,000.00
Sand
9 Peat 1,800,000.00 0.00 0.00 0.00 1,800,000.00
Data source: Mining and Energy Service Office of Kapuas
Regency Year 2010
11. Whereas with the existence of Article 1 sub-article
3 of the Forestry Law, Petitioner I cannot develop
the area optimally, cannot implement regional
autonomy to the greatest possible extent and
cannot implement Regional Regulation on
Provincial Spatial Layout Plan (RTRWP) and
Regency Spatial Layout Plan (RTRWK) because 118
the entire Kapuas Regency constitutes a forest
area;
12. Whereas based on the juridical basis and factual
evidence referred to in point 1 up to point 11
above, the provision of Article 1 sub-article 3 of the
Forestry Law is inconsistent with the provisions of
Article 18 paragraph (2), Article 18 paragraph (5)
and Article 18 paragraph (6) of the 1945
Constitution.
3.10 Article 1 Sub-article 3 of the Forestry Law Allows the
Central Government to Arbitrarily Give the Forest
Area Status to the Areas of the Petitioners
1. Whereas Article 1 sub-article 3 of the Forestry Law
legitimizes the practice of domein verklaring
application by the Central Government in
designating forest areas;
2. Whereas historically, domein verklaring was
implemented for the first time by the Dutch East
Indies Government when stipulating land status in
Indonesia. The application of domein verklaring
can be seen in Article 1 of Koninklijk Besluit
promulgated in S. 1870-118 stating that
“Behoudens opvolging van de tweede en derde 119
bepaling der voormelde wet, blijft het beginsel
gehandhaafd, dat alle grond, waarop niet door
anderen regt van eigendom wordt bewezen
domein van de Staat is”. It is translated into:
“Without prejudice to the applicability of the
provisions in Article 2 and Article 3 of the
Agrarische Wet, the principle that all lands
belonging to any other parties whose rights of
property cannot be proven shall be the domain
(property) of the state shall be maintained”;
3. Whereas in a book entitled De Indonesier en zijn
grond, on pages 58-59, Van Vollenhoven strongly
criticized the practice of domein verklaring by
stating that “At least there is an indisputable
conclusion, namely that the formulations of domain
claimed to affirm and strengthen customary rights
to land used for business only cause confusion;
statement of domain which claiming to create
order and certainty, at least to the extent related to
the land used for business, constitutes the greatest
known source of doubt and uncertainty in the laws
and regulations of the Dutch East Indies”;
4. Whereas historically, the principle of domein
verklaring as the legal basis to enable the state to 120
grant land rights to other parties as land owners is
not the concept of a modern state, but rather, it is
a feudal concept originating from the Middle Ages,
similar to the basis for land act in England and its
ex-colonies. In such concept, all the land belongs
to the King;
5. Whereas although domein verklaring constitutes a
legacy of a feudal concept and is inconsistent with
the legal awareness of the Indonesian people as
well as the principle of independent and modern
State referred to in Section II Point 2 of the
General Elucidation of Law Number 5 Year 1960
on Basic Agrarian Provisions, the Central
Government still uses the concept in designating
forest areas in the areas of the Petitioners as
evident in Decree of the Minister of Forestry
Number 759 Year 1982 stating that “the entire
area of the Central Kalimantan Province shall
constitute forest area, but in the event that there
are other legal rights, the area shall be excluded at
the time of boundary measurement and
arrangement”;
6. Whereas Article 1 sub-article 3 of the Forestry Law
leads to arbitrary designation of forest areas by the 121
Central Government which creates unfair
implementation of the relationship between the
Central Government and the Regional
Government in utilizing natural resources;
7. Whereas based on the aforementioned juridical
basis and factual evidence, the provision of Article
1 sub-article 3 of the Forestry Law is inconsistent
with the provision of Article 18A paragraph (2) of
the 1945 Constitution;
3.11 Authority of Petitioner I to be Involved in the Process
of Forest Area Stipulation is Gone Because Forest
Area Designation is Treated Equally to Forest Area
Stipulation
1. Whereas Article 18A paragraph (2) of the 1945
Constitution provides that the relationship between
the central government and the regional
government in exploiting natural resources and
other resources shall be regulated and conducted
in a just and harmonious manner based on laws;
2. Whereas Article 66 paragraph (1) of the Forestry
Law states that “In the context of forestry
management, the Government shall delegate part
of its authority to the Regional Government”. 122
Meanwhile paragraph (2) states that “Delegation of
part of its authority as intended in paragraph (1)
shall be intended to increase the effectiveness of
forest management in the context of regional
autonomy development”;
3. Whereas in the process of forest area
confirmation, Petitioner I is given authority to
manage the arrangement of forest area
boundaries in its area as regulated in Article 19
paragraph (4), Article 19 paragraph (5) and Article
20 of Government Regulation Number 44 Year
2004 on Forestry Planning.
Article 19
Paragraph (4): Based on the guideline on the
implementation of boundary arrangement as
intended in paragraph (3), the Regent/Mayor shall
stipulate the instructions for the implementation of
boundary arrangement.
Paragraph (5): The Regent/Mayor shall be
responsible for the implementation of forest area
boundary arrangement in his/her area.
Article 20
123
(1) The forest area boundary arrangement as
intended in Article 19 paragraph (3) shall be
implemented by the Committee for Forest
Area Boundary Arrangement.
(2) The Committee for Forest Area Boundary
Arrangement as intended in paragraph (1)
shall be established by Regent/Mayor.
(3) The elements of membership, duties and
functions, procedures and operational
system of the Committee for Forest Area
Boundary Arrangement shall be regulated
by a Ministerial Decree.
(4) The Committee for Forest Area Boundary
Arrangement as intended in paragraph (3)
shall have, among other things, the
following duties:
a. making preparations for the
implementation of boundary
arrangement and implementation
works in the field;
b. resolving problems on:
124
1. rights to land along the
boundary route;
2. rights to land in forest areas;
c. monitoring works and examining the
results of implementation of
boundary arrangement works in the
field;
d. preparing and signing the Minutes of
Forest Area Boundary Arrangement and
Map of Forest Area Boundary
Arrangement.
(5) The results of forest area boundary
arrangement as intended in paragraph (4)
shall be set out in the Minutes of Forest
Area Boundary Arrangement and Map of
Forest Area Boundary Arrangement signed
by the Committee for Forest Area Boundary
Arrangement acknowledged by the
Regent/Mayor.
4. Whereas with the authority to determine forest
area boundaries constituting a part of the stages of
forest area confirmation, Petitioner I shall have 125
authority in the process of arranging forest area
boundaries in the field;
5. Whereas with the interpretation of “forest area
designation” being treated equally to “forest area
stipulation” as referred to in Article 1 sub-article 3
of the Forestry Law, Petitioner I does not have
authority the arrangement of forest area
boundaries.
6. Whereas therefore, Article 1 sub-article 3 of the
Forestry Law creates an unfair relationship
between the Central Government and the Regional
Government in utilizing natural resources because
it tends to accommodate arbitrariness of the
Central Government in designating forest areas
without involving Petitioner I in the process of
forest area confirmation;
7. Whereas based on the juridical basis as described
in point 1 up to point 6, Article 1 paragraph (3) of
the Forestry Law proves to be inconsistent with
Article 18A paragraph (2) of the 1945 Constitution.
3.12 Constitutional Rights of the People of Kapuas
Regency and Petitioner VI in the form of Property
Rights and Rights to Have Residence are Impaired 126 by the Existence of Article 1 Sub-Article 3 of the
Forestry Law
1. Whereas Article 28G paragraph (1) of the 1945
Constitution acknowledges the existence of
constitutional rights to individual property which, in
detail, states “Every person shall have the right to
protect him/herself, his/her family, honor, dignity,
and property under his/her control, and shall have
the right to feel secure and be protected from the
threat of fear to do, or not to do something which
constitutes human rights”;
2. Whereas Article 28H paragraph (1) of the 1945
Constitution also acknowledges the rights to have
residence ”Every person shall have the right to live
a physically and mentally prosperous life, to have
residence, and to obtain a proper and healthy
living environment as well as to obtain health
services”;
3. Whereas based on the Data of Integrated
Licensing Service Agency of Kapuas Regency
Year 2010, the number of houses owned by the
residents are 87,863 units with the following
composition:
127
Table
Houses in Kapuas Regency
Number of No. District Classification of House Houses
1 2 3 4
1 Kapuas Barat Classification of houses includes:
District 1. Residences = 4,073 units 4,421 2. Combination = 197 units
3. Non-Residences = 151 units
2 Pulau Petak Classification of houses includes:
District 1. Residences = 4,656 units 5,055 2. Combination = 303 units
3. Non-Residences = 96 units
3 Kapuas Kuala Classification of houses includes:
District 1. Residential = 8,536 units 9,201 2. Combination = 519 units
3. Non-Residential = 146 units
4 Kapuas Hulu Classification of houses includes:
District 1. Residential = 2,699 units 3,000 2. Combination = 249 units
3. Non- Residential = 82 units
5 Selat District Classification of houses includes:
1. Residential = 22,878 units 26,025 2. Combination = 1,585 units
3. Non- Residential = 1,562 units 128
Number of No. District Classification of House Houses
1 2 3 4
6 Kapuas Hilir Classification of houses includes:
District 1. Residential = 2,887 units 3,255 2. Combination = 253 units
3. Non- Residential = 115 units
7 Kapuas Timur Classification of houses includes:
District 1. Residential = 5,901 units 6,290 2. Combination = 294 units
3. Non- Residential = 95 units
8 Basarang Classification of houses includes:
District 1. Residential = 4,169 units 4,546 2. Combination = 268 units
3. Non- Residential = 109 units
9 Mantangai Classification of houses includes:
District 1. Residential = 7,412 units 8,073 2. Combination = 505 units
3. Non- Residential = 156 units
10 Kapuas Tengah Classification of houses includes:
District 1. Residential = 4,468 units 5,103 2. Combination = 476 units
3. Non- Residential = 159 units
11 Kapuas Murung Classification of houses includes: 10,512 District 1. Residential = 9,838 units 129
Number of No. District Classification of House Houses
1 2 3 4
2. Combination = 505 units
3. Non- Residential = 169 units
12 Timpah District Classification of houses includes:
1. Residential = 2,023 units 2,388 2. Combination = 282 units
3. Non- Residential = 83 units
1. Residential = 79,540 units Total Number of 2. Combination = 5,436 units 87,863 Houses 3. Non- Residential = 2,887 units
Data Source: Integrated Licensing Service Agency of Kapuas
District Year 2010
4. Whereas referring to Decree of the Minister of
Forestry Number 759 Year 1982 and Article 1 sub-
article 3 of the Forestry Law, the residential
houses in the total of 87,863 units are also
included in the forest area;
5. Whereas by the stipulation of the area as forest
area, 87,863 units of houses controlled and owned
by the residents and 79,540 units of residential
houses may also be taken by the state for the
reason of being within the forest area; 130
6. Whereas the land owned by Petitioner IV may also
be taken by the state because based on Letter of
the minister of Forestry of the Republic of
Indonesia Number S.486/Menhut-VII/2010 dated
September 20, 2010 the land is located in the area
of Strategic Environmental Assessment (SEA);
7. Whereas in the event that the forest area is
determined through the process of forest area
confirmation which includes the stages of
designation, boundary arrangement, mapping and
stipulation, then the property rights of the people of
Kapuas Regency and Petitioner IV shall have the
potential to be seized by the state for the reason of
being within the forest area;
8. Whereas based on the juridical basis and factual
evidence as arranged out in point 1 up to point 7
above, it is proven that Article 1 sub-article 3 of the
Forestry Law is inconsistent with the provision of
Article 28G paragraph (1) and Article 28H
paragraph (1) of the 1945 Constitution.
3.13 Constitutional Rights of the People of Kapuas
Regency and Petitioner IV in the form of Property 131
Rights are Impaired by the Existence of Article 1 Sub-
Article 3 of the Forestry Law
1. Whereas Article 28H paragraph (4) of the 1945
Constitution states that “Every person shall have
the right to possess personal property rights and
such property rights shall not be taken over
arbitrarily by anybody”;
2. Whereas based on the Data of the National Land
Agency of Kapuas Regency, it has issued 454
certificates of Building Use Rights for a total land
area of 27.24 ha, 71,235 Title Certificates for a
total land area of 13,752.7152 ha, 1 Land Use
Right Certificate for a total land area of 9.063 ha,
775 Rights to Use for a total land area of 401.4776
ha and 5 Rights to Manage for a total land area of
5 ha;
3. Whereas with reference to Decree of the Minister
of Forestry Number 759 Year 1982 and Article 1
sub-article 3 of the 1945 Constitution, the entire
area of Kapuas Regency constitutes Forest Area
directly affecting the land with respect to which the
certificates have been given by the National Land
Agency of the Kapuas Regency for being located
in the forest area; 132
4. Whereas with the declaration of forest area, the
land having legal certificates issued by the
National Land Agency (Badan Pertanahan
Nasional/BPN) will be potentially taken by the state
without any compensation due to being located in
the forest area;
5. Whereas Petitioner VI who has 2 plots of land
located at (a) Jalan Yakut I covering an area of
200m2, bought from Saidu Abror as evidenced by
the Land Title Certificate (Surat Kepemilikan
Tanah/SKT), (b) Jalan G. Obos IX bought from
Abdul Manan covering an area of 619m2 as
evidenced by the Land Title Certificate (Surat
Kepemilikan Tanah/SKT), is unable to administer
certificates of title;
6. Whereas Petitioner IV’s application for certificate
of titled was rejected by the National Land Agency
in Palangka Raya by Letter of the Head of
Palangka Raya City Land Office Number
226/300.5.62.71/III/2011 stating that upon
examination on the plotting on the map of Strategic
Environmental Area (SEA) in the area of Palangka
Raya City in accordance with Letter of the Minister
of Forestry of the Republic of Indonesia Number 133
S.486/Menhut-VII/2010 dated September 20,
2010, the land intended in the application for Land
Title Ownership is located in the area of Strategic
Environmental Assessment (SEA). Subsequently,
the application for Land Title Certificate in the
name of Petitioner IV for the time being for the
time being cannot be processed further because
the land applied for certification is located in the
area of Strategic Environmental Assessment
(SEA) the conversion of which requires the
approval of the People’s Legislative Assembly of
the Republic of Indonesia (DPR RI);
7. Whereas with the forest area designation being
considered equal to forest area stipulation, it
means that forest area designation has the value
of legal certainty, and therefore, the land owned by
Petitioner VI will be potentially taken by the state to
be made as forest area;
8. Whereas in the event that forest areas are
determined through the process of forest area
confirmation which includes the stages of
designation, boundary arrangement, mapping and
stipulation, the certificated land must be excluded
from the forest area. This is because in the 134 confirmation process, particularly boundary arrangement and stipulation, third party’s rights are settled. Article 20 paragraph (4) of Government
Regulation Number 44 Year 2004 states that “The
Committee for Forest Area Boundary Arrangement as intended in paragraph (3) shall have, among other things, the following duties:
a. making preparations for the implementation
of boundary arrangement and
implementation works in the field
b. resolving problems on:
1. rights to land along the boundary
route;
2. rights to land in forest areas;
c. monitoring works and examining the results
of implementation of boundary arrangement
works in the field;
d. preparing and signing the Minutes of Forest
Area Boundary Arrangement and Map of
Forest Area Boundary Arrangement.”
Subsequently Article 22 paragraph (2) states that
“In the event of forest area boundary arrangement 135
of joined ring, while there are unsettled third party
rights, the forest area shall be stipulated by the
Minister by including explanations on the rights
therein to be settled by the relevant Committee for
Boundary Arrangement”;
9. Whereas therefore, in the event that forest area is
defined as designated area, Petitioner IV also
cannot administer certificate of land title to the land
it owns.
10. Whereas in the event that forest area is
determined through the process of forest area
confirmation which includes designation, boundary
determination, mapping and stipulation, the
constitutional rights in the form of title to the land
belonging to the Residents of Kapuas Regency
and Petitioner IV are not impaired;
11. Whereas based on the juridical basis and factual
evidence as described in point 1 up to point 10, it
is proven that Article 1 sub-article 3 of the Forestry
Law is inconsistent with the provision of Article
28H paragraph (4) of the 1945 Constitution.
3.14 Interpretation of Forest Area Designation as being
Equal to Forest Area Stipulation Causes the Ministry 136 of Forestry to Merely Pursue the Targeted Total
Forest Area While Ignoring the Efforts to Maintain the
Forest
1. Whereas the existence of provision in Article 1
sub-article 3 of the Forestry Law tends to lead to
the paradigm viewing the success of performance
of the Ministry of Forestry simply from the size of
designated forest area without taking account of
the factual condition of the forest;
2. Whereas in a book entitled “Strengthening Forest
Management in Indonesia through Land Tenure
Reform” written by Arnold Contreas Hermosilla
and Chip Fay it is stated that “There is an anomaly
in forest area designation in Indonesia. Important
areas designated as forest areas in reality only
have a few forests or even no forest at all. An area
in the size of approximately 10 times the size of
Belgium has been classified as a forest area but it
does not have any forest growing on it. There is
also about 8 million hectares of forest not
classified as part of a forest area although a part of
it is an old tropical forest”. The source of this chaos
and confusion is because forest area designation 137
is not followed up by the next stage of forest area
stipulation;
3. Whereas the paradigm of the Ministry of Forestry
which pursue the forest area target without taking
account of the factual condition of the said area
has caused the Ministry of Forestry not to
emphasize the success of its performance in
preserving the forest. The impact was
deforestation of 3.52 million hectares of forest area
all over Indonesia during the period 2003-2006 or
in the annual average deforestation level of 1.17
million ha/year;
4. Whereas due to the paradigm of the Ministry of
Forestry in determining its performance simply
based on the total of the designated forest area,
until now the designation of forest area in Central
Kalimantan Province still refers to Decree of the
Minister of Forestry Number 759 Year 1982 under
which the entire Central Kalimantan Province is
included in the forest area;
5. Whereas quoting the Third Dictum of the Decree of
the Minister of Forestry Number 759 Year 1982
stating: To order the Director General of Forestry
to measure and arrange the boundaries the Forest 138
Areas in the field and also the provisions of Article
14 and Article 15 of the Forestry Law, and
therefore, the stages of forest area should not be
confirmed only by designation but also by
boundary arrangement, mapping and forest area
stipulation;
6. Whereas Report on the Audit Result of the Audit
Board (Badan Pemeriksa Keuangan/BPK) for
Semester II Year 2008 on Forest Management
conducted by the Department of Forestry of
Central Kalimantan Province states that forest
area stipulation in Central Kalimantan Province
during the period 1982-2008 had only been
conducted for 2 forest groups out of 75 registered
forest groups namely in an area of 6,215.10 ha or
merely 0.06% of the permanent forest area;
7. Whereas the interpretation of forest area
designation as being equal to forest area
stipulation by the Ministry of Forestry deviates from
the philosophy of the Forestry Law itself because
the forest areas are confirmed not merely by forest
area designation. As a consequence, the Ministry
of Forestry has only pursued the target of the 139
designated forest area without taking account of
the factual condition of the forest.
IV. Conclusion
1. Whereas Petitioner I has legal standing as Regional
Government, meanwhile Petitioner II, Petitioner III, Petitioner IV,
Petitioner V and Petitioner VI have legal standing as individual
Indonesian citizens in the case of this petition;
2. Whereas the constitutional rights and/or authority of the
Petitioners as regulated in Article 1 paragraph (3), Article 18
paragraph (2), Article 18 paragraph (5), Article 18 paragraph (6),
Article 18A paragraph (2), Article 28D paragraph (1), Article 28G
paragraph (1), Article 28H paragraph (1), Article 28H paragraph
(4) of the 1945 Constitution are impaired by the existence of the
phrase “designated and or” in Article 1 sub-article 3 of the
Forestry Law;
3. Whereas the constitutional impairments of Petitioner I as
Regional Government are:
a. There is no legal certainty in performing its authority,
particularly in relation to granting licenses in the sectors
of plantation, mining, housing and settlement, or other
facilities and infrastructures;
140
b. It cannot perform autonomy to the greatest possible
extent because the area to be utilized in various sectors
such as plantation, mining, housing and settlements, or
other facilities and infrastructures, is included in forest
area in the event that forest area is confirmed;
c. It cannot implement Regional Regulation on Regency
Spatial Layout Plan (RTRWK) and Provincial Spatial
Layout Plan (RTRWP) because its entire area constitutes
forest area in the event that forest area is not confirmed;
d. It can be criminalized for being deemed to have entered
and occupied forest area without consent as well as
granting other business licenses in forest areas in the
event that forest area in Kapuas Regency is not
confirmed;
e. Property rights and title of the people of Kapuas Regency
to land and buildings will be potentially seized by the
state because they are deemed to have lived in forest
areas in the event that forest area is not confirmed;
4. Whereas the constitutional impairments of Petitioner II,
Petitioner III, Petitioner IV, and Petitioner V as individual
persons are as follows:
141
a. They can be criminalized for entering and occupying
forest areas without consent from the competent
authorities;
b. They can be penalized for granting business licenses in
the mining, plantation, and other sectors in the Regency
areas of Petitioners II, III, IV, and V which are designated
to be included in the forest area.
5. Whereas the constitutional impairments of Petitioner VI as an
individual person are as follows:
a. There is no legal certainty in administering Property
Rights and Title because the land with respect to which
such rights are applied for is deemed to be located in the
forest area;
b. There is no guarantee of property rights because there is
a threat that the property/land is deemed to be in the
forest area;
c. There is no guarantee of title because at any time it is
potentially seized by the State because the land is
deemed to be in the forest area;
6. Whereas the Petitioners have the right to the recognition, the
guarantee, the protection, and the legal certainty of just laws;
142
7. Whereas Article 1 sub-article 3 of the Forestry Law creates legal
uncertainty with respect to the status of forest area;
8. Whereas Article 1 sub-article 3 of the Forestry Law creates legal
uncertainty in the Areas of the Petitioners;
9. Whereas the constitutional rights of the Petitioners to the
recognition, guarantee, protection, and legal certainty of just
laws in the rule of law state, particularly with regards to criminal
proceedings, have become uncertain because at any time the
Petitioners can be criminalized in the event that the provision of
Article 1 sub-article 3 of the Forestry Law still becomes a
reference;
10. Whereas the phrase “and or” in Article 1 sub-article 3 of the
Forestry Law is unusual in the writing of an article in the laws
and regulations;
11. Whereas the provision of Article 1 sub-article 3 of the Forestry
Law is inconsistent with Article 14 and Article 15 of the Forestry
Law;
12. Whereas the locations in Kapuas Regency, the area of
Petitioner I, are factually not in a Forest, while they are declared
as forest area due to the provision of Article 1 sub-article 3 of
the Forestry Law;
143
13. Whereas the assets in the Region of Petitioner I as well as other
facilities built since 1950 shall be stated as forest area due to
the provision of Article 1 sub-article 3 of the Forestry Law and
Decree of the Minister of Forestry Number 759 Year 1982;
14. Whereas Petitioner I cannot develop regional potentials because
its entire area is designated as forest area;
15. Whereas the authority of Petitioner I to be involved in the
process of forest area confirmation shall be gone in the event
that forest area designation is considered equal to forest area
stipulation;
16. Whereas Article 1 sub-article 3 of the Forestry Law allows the
Central Government to arbitrarily give the forest area status to
the areas of the Petitioners;
17. Whereas the constitutional rights of the people of Kapuas
Regency and Petitioner VI in the form of property rights are
impaired due to the existence of Article 1 sub-article 3 of the
Forestry Law;
18. Whereas the constitutional rights of the people of Kapuas
Regency and Petitioner VI in the form of title are impaired due to
the existence of Article 1 sub-article 3 of the Forestry Law;
19. Whereas the interpretation of forest area designation as being
equal to the forest area stipulation causes the Ministry of 144
Forestry to only pursue the targeted forest area without taking
account of the effort to maintain the forest.
V. Petitum
Whereas Based on all the arguments described above and the attached evidences, the Petitioners hereby submit a petition to the Honorable Panel of
Justices of the Constitutional Court to pass the following decisions:
1. Accepting and granting the petition of the Petitioners in its entirety;
2. Declaring Article 1 sub-article 3 of the Forestry Law to the extent of the
phrase of “designated and or” inconsistent with the 1945 Constitution of
the Republic of Indonesia;
3. Declaring that Article 1 sub-article 3 of the Forestry Law along the
phrase of “designated and or” has no binding legal force;
4. Or in the event that the Panel of Constitutional Justice is of a different
opinion, the Panel of Justices is kindly requested to declare Article 1
sub-article 3 of the Forestry Law conditionally constitutional under the
1945 Constitution of the Republic of Indonesia, namely it is
constitutional as long as it is interpreted that “forest area shall be a
certain area confirmed as forest area by the Government to be
preserved as a permanent forest through designation, boundary
arrangement, mapping and stipulation of forest area”;
5. Ordering this decision to be properly included in the Official Gazette of
the Republic of Indonesia. 145
Or in the event that the Panel of Justices of the Constitutional Court is of a different opinion, the decision is requested to be passed according to what is equitable and good (ex aequo et bono)
[2.2] Whereas to prove their arguments, the Petitioners have submitted written evidence marked as Exhibit P-1 up to Exhibit P-48, as follows:
1. Exhibit P-1 : Photocopy of Law Number 41 Year 1999 on
Forestry;
2. Exhibit P-2 : Photocopy of Law Number 19 Year 2004
concerning the Stipulation of Government
Regulation in lieu of Law Number 1 Year
2004 concerning the Amendment to Law
Number 41 Year 1999 on Forestry to
Become Law
3. Exhibit P-3 : Photocopy of Law Number 27 Year 1959
concerning Stipulation of Emergency Law
Number 3 Year 1953 concerning the
Extension of the Establishment of Level II
Regions in Kalimantan (State Gazette Year
1953 Number 9) as Law
4. Exhibit P-4 : Photocopy of Emergency Law Number 3
Year 1953 concerning the (Official)
Establishment of Autonomous Area of 146
Regency/Special Region of Regency and
Big City Levels Within Kalimantan Province
5. Exhibit P-5 : Photocopy of Law of the Republic of
Indonesia Number 5 Year 1967 concerning
Basic Provisions on Forestry
6. Exhibit P-6 : Photocopy of Decree of the Minister of
Home Affairs Number 131.62-170 Year
2008 concerning the Ratification of
Discharge and the Ratification of
Appointment of Kapuas Regent of the
Central Kalimantan Province dated March
10, 2008
7. Exhibit P-7 : Photocopy of Special Power of Attorney
Number 183.1/35/DPRD.2011 of the
Regional People’s Legislative Assembly of
Kapuas Regency dated May 13, 2011
8. Exhibit P-8 : Photocopy of Assignment Letter Number
183.1/34/DPRD.2011 of the Regional
People’s Legislative Assembly of Kapuas
Regency dated May 13, 2011
9. Exhibit P-9 : Photocopy of Resident Identity Card in the
Name of Drs. Hambit Bintih, M.M.
147
10. Exhibit P-10 : Photocopy of Resident Identity Card in the
Name of Drs. Duwel Rawing
11. Exhibit P-11 : Photocopy of Resident Identity Card in the
Name of Drs. H. Zain Alkim
12. Exhibit P-12 : Photocopy of Resident Identity Card in the
Name of H. Ahmad Dirman
13. Exhibit P-13 : Photocopy of Resident Identity Card in the
Name of Drs. Akhmad Taufik, M.Pd.
14. Exhibit P-14 : Photocopy of Letter of the Minister of
Forestry Number S.575/Menhut-II/2006
dated September 11, 2006 concerning the
Revocation of Letter of the Head of Forest
and Plantation Planning Agency Number
778/VII-KP/2000 dated September 12, 2000
15. Exhibit P-15 : Copy of the Letter of the Minister of Forestry
Number S.776/Menhut-II/2006 dated
December 22, 2006 concerning the
Response to the Revocation of the Letter of
the Head of Forestry and Plantation
Planning Agency Number 778/VII-KP/2000
dated September 12, 2000
148
16. Exhibit P-16 : Photocopy of Letter of the Head of Forestry
and Plantation Planning Agency Number
778/VII-KP/2000 dated September 12, 2000
concerning the Considerations on the
Release of Forest Area for Plantation
17. Exhibit P-17 : Photocopy of Letter of the Minister of
Forestry Number S.426/Menhut-VII/2006
dated July 12, 2006 concerning Explanation
of the Minister of Forestry concerning
Forest Area Status
18. Exhibit P-18 : Photocopy of Regulation of the Minister of
Forestry Number P.50/Menhut-II/2009
concerning the Confirmation of the Status
and Functions of Forest Areas
19. Exhibit P-19 : Photocopy of the Decree of the Minister of
Agriculture Number 759/Kpts/Um/10/1982
concerning Forest Area Designation in the
Area of the Level I Region of the Central
Kalimantan Province covering an area of
15,300,000 hectares as Forest Area
20. Exhibit P-20 : Photocopy of Circular Letter of the Minister
of Forestry Number 404/Menhut-II/03 dated
July 10, 2003 149
21. Exhibit P-21 : Photocopy of Circular Letter of the Minister
of Forestry Number S.95/Menhut-IV/2010
February 25, 2010 concerning Report on
the Non-Procedural Use of Forest Area
22. Exhibit P-22 : Photocopy of Circular Letter of the Minister
of Forestry Number S.193/Menhut-IV/2010
April 18, 2010 concerning Inquiry and
Investigation Team on Non-Procedural Use
of Forest Areas in the Central Kalimantan
Province
23. Exhibit P-23 : Photocopy of Letter of the Head of Land
Office of Palangka Raya City Number
226/300.5.62.71/III/2011 dated March 31,
2011 concerning the Application for Land
Title in the Name of Drs. Akhmad Taufik,
M.Pd
24. Exhibit P-24 : Photocopy of Letter of the Minister of
Forestry Number S.486/Menhut-VII/2010
dated September 10, 2010 concerning
Approval of the Use of the APL Area in the
Revised Provincial Spatial Layout Plan
(RTRWP) of Central Kalimantan
150
25. Exhibit P-25 : Photocopy of Submission Order of the Land
Office of Palangka Raya City Number
D.I.305/4859/2008 dated July 2, 2008 with
respect to the Application of Drs. Akhmad
Taufik, M.Pd
26. Exhibit P-26 : Photocopy of Receipt of Payment of Fees
for Land Title Processing in the name of
Drs. Akhmad Taufik, M.Pd
27. Exhibit P-27 : Photocopy of Receipt of Payment of
Transport Fees for the Processing of Land
Title in the Context of Land Examination
Service in the name of Drs. Akhmad Taufik,
M.Pd
28. Exhibit P-28 : Photocopy of State Administration Petition
Number 04/G/2011/PTUN.PLK dated May
4, 2011
29. Exhibit P-29 : Photocopy of Regulation of the Central
Kalimantan Province Number 8 Year 2003
concerning Provincial Spatial Layout Plan of
the Central Kalimantan Province;
30. Exhibit P-30 : Photocopy of an Overview of Kapuas
Regency
151
31. Exhibit P-31 : Photocopy of Profile, Investment Potentials
and Opportunities in Kapuas Regency
32. Exhibit P-32 : Photocopy of Report on Regional
Government Administration of Kapuas
Regency Year 2010
33. Exhibit P-33 : Photocopy of Report on the Census of the
Population of Kapuas Regency Year 2010
by the Central Bureau of Statistics (Badan
Pusat Statistik/BPS)
34. Exhibit P-34 : Photocopy of Data from the Kapuas
Regency National Land Agency
35. Exhibit P-35 : Photocopy of the Mutual Agreement of the
Regents/Mayors and Chairpersons of the
Regional People’s Legislative Assembly
(DPRD) of all the Regencies/Cities in
Central Kalimantan
36. Exhibit P-36 : Photocopy of the Formulation of the Results
of Coordinating Meeting of the Regency
Governments Throughout Indonesia
(Pemerintah Kabupaten Seluruh
Indonesia/APKASI) of the Central
Kalimantan Area Year 2011
152
37. Exhibit P-37 : Photocopy of Collection of Newspaper and
Mass Media Clippings on the Forest Area
Problems in Central Kalimantan
38. Exhibit P-38 : Photocopy of a Book entitled “Strengthening
Indonesian Forest Management: Through
the Renewal of Land Possession” written by
Arnold Contreas Hermosilla and Chip Fay
39. Exhibit P-39 : Photocopy of Report on the Audit Result of
the Audit Board (Badan Pemeriksa
Keuangan/BPK) for Semester II Year 2008
on the Forestry Management by the
Department of Forestry (currently Ministry of
Forestry) in Central Kalimantan Province
40. Exhibit P-40 : Photocopy of Map Attached to the Decree
of the Minister of Agriculture Number
759/Kpts/Um/10/1982 concerning Forest
Area Designation in the Area of Level I
Region of Central Kalimantan Province
covering an area of 15,300,000 hectares
41. Exhibit P-41 : Photocopy of Map of Provincial Regional
Spatial Layout Plan (RTRWP) of Central
Kalimantan Year 2003
153
42. Exhibit P-42 : Photocopy of Map on the Area of Kapuas
Regency of Central Kalimantan Province
Based on the 2003 RTRWP Map
43. Exhibit P-43 : Photocopy of Map on the Area of Kapuas
Regency of Central Kalimantan Province
Based on TGHK Map of Central Kalimantan
Province
44. Exhibit P-44 : Photocopy of Map of Land Area Coverage
of Central Kalimantan Province Year 2003
45. Exhibit P-45 : Photocopy of Amuntai Map based on the
US Army Map Service Year 1962
46. Exhibit P-46 : Photocopy of Letter of the Minister of
Forestry Number S.255/Menhut-II/07 dated
April 13, 2007 concerning Utilization of
forest areas
47. Exhibit P-47 : Photocopy of Circular Letter of the Minister
of Forestry Number SE.04/Menhut-VII/2005
dated June 7, 2005 concerning the
Proposal on the Change of Status and
Functions of Forest Area in the
Regency/City Area
154
48. Exhibit P-48 : Photocopy of 1945 Constitution of the State
of the Republic of Indonesia;
In addition, the Petitioners also submit 5 (five) Experts whose statements have been heard at the court hearings on October 4, 2011 and
November 8, 2011 principally stating as follows
1. Prof. Dr. H.M. Hadin Muhjad, S.H., M.Hum.
Whereas if we view Article 1 sub-article 3 of Law Number 41
Year 1999 with the formulation that forest area shall be a certain
area designated and/or stipulated by the government to be
preserved as a permanent forest, in the aspect of legal drafting it
shall be classified into a general provision. This general
provision contains definitions of the meanings or definitions,
abbreviations or acronyms, other general matters applicable to
the following articles, such as the principles, purposes and
objectives;
Whereas the function of a general provision shall be to explain
the meaning and definition, abbreviations or acronyms, and
other general matters on the substance regulated in the relevant
law.
Whereas if we see the definition, the intended Article 1 sub-
article 3 is intended for giving a definition of the regulated
substance, namely Article 14 and Article 15 of Law Number 41 155
Year 1999. Article 14 consists of two paragraphs, Article 15 also
consists of two paragraphs;
Whereas by observing the definition formulated in Article 1 sub-
article 3 with the substance in Article 14 and Article 15 of Law
Number 41, it is clear that the definition of Article 1 sub-article 3
is inconsistent with the Constitution, with the following
arguments:
First, concerning legal certainty, Article 14 and Article 15
explain that the one giving legal certainty in the forest
area shall be the activity of forest area confirmation.
Forest area confirmation includes four stages, namely:
a. forest area designation,
b. forest area boundary arrangement,
c. forest area mapping, and
d. forest area stipulation.
Status and forest boundary shall provide legal certainty in
the event that these four stages are implemented. Thus,
the series of activities in the four stages, namely, the
designation, boundary arrangement, mapping, and forest
area stipulation is intended for giving legal certainty with
respect to the status, location, boundary, and size of the
forest area. Therefore, in the event that only one of the 156
stages is implemented, namely forest area designation, it
cannot give legal certainty;
Whereas it can be concluded that the norm of Article 1
sub-article 3 which only uses the word “designated”,
instead of “stipulated”, as Government’s act of
determining the status and boundary of a forest area,
clearly does not provide legal certainty. It means that
Article 1 sub-article 3 is inconsistent with Article 28D
paragraph (1) of the 1945 Constitution;
Second, the aspect of administrative law. In the
administrative law, one of the Government actions in this
matter is known as Government stipulation or decision.
The term designation is not recognized in the part of
bestuurshandelingen;
Whereas in the administrative law, one of the aspects to
measure the legality of a stipulation is the making
procedures. An imperfect procedure may produce an
imperfect stipulation. Standard procedure of Government
actions consists of preparation stage, including people’s
participation, and then the last phase is decision making
or stipulation.
Whereas the preparation stage is needed to avoid flaws due to
lack of accuracy or carefulness. Accuracy and carefulness are 157
intended to determine the right facts thus it is related to the
principle of careful examination. This principle requires that
decision making by the Government must be preceded by a
careful examination of the facts;
Whereas in addition, the most important part in modern
administrative law is to guarantee the basic rights of citizens, in
order that they shall not become objects but rather, active
subjects involved in government administration. Therefore all
citizens shall be allowed to raise objections, objections related to
interests and people’s participation prior to decision-making;
Whereas in relation to this case, in the process of forest area
confirmation, if we look into the explanation of Article 15
paragraph 1, the activities related to the designation in the
process of forest area confirmation are first, map making,
directive designation on outer boundaries, second, erection of
temporary boundaries completed with boundary paths, third,
boundary channel construction in vulnerable locations, and the
last, plan announcement. Announcement of forest boundary
plan includes the locations located adjacent to property land
areas;
Whereas the designation activities in Article 17 of Government
Regulation Number 44 Year 2004 are said to be the initial
process of for certain area to become a forest area. It is also
recognized by the Government itself in Article 1 sub-article 3 of 158
the Decree of the Minister of Forestry Number 70/KPTS-II/2001
and in the Decree of the Minister of Forestry Number
48/Menhut-II/2004;
Whereas in another part of the preparation stage, the important
issue directly related to the case a quo is careful examination by
the Government of the true facts and participation of the people;
Whereas in the process of forest area confirmation, careful
examination of by the Government, accuracy, and people’s
participation only occur during the second stage, namely
boundary arrangement. This is mentioned in Article 19
paragraph (2) of Government Regulation Number 44 Year 2004.
The first activity is erection of temporary boundary markers. The
second is announcement of the result of the erection of
temporary boundary markers. The third is inventory and
settlement, inventory and settlement of third party rights along
the boundary route and in the forest area, and in the preparation
of minutes of acknowledgement by people the around the
boundary route with regard to the result of erection of temporary
boundary markers; The erection of boundary markers completed
with boundary path; Mapping of the results of boundary
arrangement; The preparation and signing of the Minutes on
Boundary Arrangement and Mapping of Boundary Arrangement;
and Report to the minister with a carbon copy to the governor;
159
Whereas following forest boundary arrangement, the third phase
is mapping and the last is stipulation.
Whereas forest area stipulation shall be as referred to in Article
1 sub-article 11 of Government Regulation Number 44 Year
2004 concerning the affirmation on legal certainty with respect to
the boundary status and size of a forest area to become a
permanent forest area. Therefore, referring to the provision of
Article 1 sub-article 3 which refers only to the designation stage
without being followed by the second and third stages, namely
boundary arrangement and mapping, it is clear that the provision
provides no legal certainty to the citizens who must be active in
government administration. Therefore, Article 1 sub-article 3 is
inconsistent with Article 27 paragraph (1), Article 28D paragraph
(3), Article 28F, and Article 28I paragraph (1) and paragraph (2)
of the 1845 Constitution;
2. Prof. Dr. I Gde Pantja Astawa, S.H., M.H.
Whereas from the perspective of positive law, written law or
laws and regulations in particular such as Law Number 41 Year
1999 do not always give a guarantee of legal certainty. Under
certain circumstances, written law can be a source of legal
uncertainty, in the event that the formulation and norms of the
written law have unclear meaning, purposes and objectives that
we know by the term ambiguous, or when the formulation is
interpretative, or even there is inconsistency in their use, 160
especially in the event of implementing policy deviating from the
formulation or intention of the relevant written law, all of which
may be the source of legal uncertainty;
Whereas to overcome the shortcomings of the laws and
regulations as mentioned by the expert above, the role of the
judge shall be increased. In this matter, the judge is not merely
the mouth or extension of the law but also as the party who
carefully considers the good, the bad, the benefits of laws and
regulations so that laws can be implemented fairly and gives the
greatest benefits for the life of society;
Whereas for the abovementioned purposes, the judge must
interpret, make an analogy, refine the law (argumentum a
contrario), and even, if necessary, the judge must create law to
decide a case. This has given rise to a new phenomena in the
continental legal system, namely the growing importance of the
role of judge’s decisions or jurisprudence as the subsystem of
law;
Whereas therefore, it is unreasonable that the Minister of
Forestry unilaterally interprets the Provision of Article 1 sub-
article 3 of Law Number 41 Year 1998, particularly the phrase
‘designated and/or’ in the formulation of the said Article 1 sub-
article 3 by stating that designation is equal to forest area
stipulation as indicated in:
161
1. Decision of the Minister of Forestry Number
5426/Menhut-VII/2006 dated July 12, 2006;
2. Regulation of the Minister of Forestry Number
P50/Menhut-II/2009 concerning the Confirmation of the
Status and Functions of Forest Areas;
3. Circular Letter of the Minister of Forestry Number
404/Menhut-II/2003 which refers to and is guided by
Decree of the Minister of Agriculture Number 759 year
2002 concerning Forest Area Designation in the Area of
Level I Region of Central Kalimantan covering an area of
15,300,000 hectares.
Whereas it is unreasonable because first, a minister, as an
assistant to the president, is the executor of law, in this case is
Law Number 41 Year 1999 because the minister is within the
executive domain or branch led by the president as the chief of
executive or chief of government in Indonesian constitutional
system according to the 1945 Constitution. Although consistent
in implementing the provision of Article 1 sub-article 3 of Law
Number 41 Year 1999, the executor should be the government
rather than the minister, because the definition of government in
Article 41 sub-article 14 is the central government, meanwhile
the definition of the central government in accordance with the
provision of Article 1 sub-article 1 of Law Number 32 Year 2004
concerning Regional Government shall be, as quoted in full, “the 162
Central Government, hereinafter referred to as government,
shall be the President of the Republic of Indonesia who holds
the executive power of the state of the Republic of Indonesia, as
intended in 1945 Constitution of the Republic of Indonesia.”
Whereas second, not to mention a minister, even the president
who appoints and discharges ministers does not have the right
to interpret the formulation of a provision in a law. Thus, the
action of the Minister of Forestry unilaterally interpreting the
provision of Article 1 sub-article 3 of Law Number 41 Year 199 is
authorized or ultra vires. Therefore, no matter what the form of
such law or ultra vires action is, it does not have any binding
legal effect and thus it shall become null and void, van
rechtwegenietig;
Third, the authority to interpret the formulation of a provision of a
law, in this matter Law Number 41 Year 1999, is with the judge;
Whereas implementing policies deviating from the formulation or
intention of the written law or laws and regulations constitute
one of the sources of law uncertainty. The deviation of the policy
made by the Minister of Forestry formulated in the form of laws
and regulations as referred to above is a real example of the
source of legal uncertainty;
Whereas in addition to the deviant implementing policy,
ambiguous formulation of written norms or laws and regulations 163
is also one of the sources of legal uncertainty. Formulation of
the norms in the provision of Article 1 sub-article 3, particularly
the phrase ‘designated and/or’, is deemed to cause legal
uncertainty by the Petitioners with an implication on the
impairment of the constitutional rights of the Petitioners;
Whereas when facing the ambiguous formulation of legal norms
on the one hand and the obligation to adjudicate on the other
hand, it is impossible for judges to be merely the mouth or
extension of law.
Whereas judges in conducting their duties are also required to
give meaning to a provision in order to cover a written legal
event, and even they must find law to settle a certain concrete
event.
Whereas for such purpose, judges must explore, follow, and
understand the living values and sense of justice in the society.
Whereas the method which can be used by judges to implement
or find law accurately for the purpose of settling a concrete legal
problems they face are by legal finding (Rechtsvinding);
Whereas there are 2 primary methods used by judges in
enforcing the implementation of law, namely interpretation and
constitution of law. In the context of the case a quo, it is more
relevant to only use the interpretation method;
164
Whereas legal interpretation is an effort to give meaning to one
or a number of legal norms so it/they can be reasonably
implemented in settling a legal problem, a difference between
norms and/or a legal dispute;
Quoting the opinion of J.A. Pointer in Rechtsvinding, various
methods of interpretation are found, among others as deemed
relevant in this case by the expert, namely interpretation based
on grammar or linguistics, interpretation based on history of the
formulation of the law, and no less important, systematic
interpretation;
Whereas interpretation based on grammar is an interpretation
which attempts to find the meaning of words or a sentence in the
text of laws and regulations by connecting the meaning of a
word or words to definitions or words to the common definition in
daily use;
Whereas Burgerlijk Wetboek or BW contains the provision on
methods to grammatically interpret an agreement. For example,
Article 1342 reads, “If the wording of an agreement is clear, one
shall not deviate from it by way of interpretation, due to a
principle in law which states that in the event that a word or
words in a law have been self-explanatory, interpretation shall
be prohibited of such words although as a whole the norm is
less good or not good.”
165
Whereas Article 1343 reads “If the wording of an agreement is
open to several interpretations, one shall ascertain the intent of
the parties involved rather than be bound by the literal sense of
the words.”
Whereas Article 1344 reads “In the event that a stipulation is
open to two interpretations, one shall interpret it in the sense in
which it produces some effect, rather than in the sense in which
it would be entirely ineffective.”
Whereas Article 1345 reads “Wording which is open to two kinds
of interpretation shall be interpreted in the sense which
corresponds most with the nature of the agreement. In laws and
regulation, a word or words shall be given a meaning according
to daily use.”
Whereas interpretation based on the history of the formulation of
laws and regulations or interpretation based on wet histories is
conducted by examining the materials in the formulation of the
draft and tracing back the discussions in the People’s Legislative
Assembly (DPR) and other materials related to the formulation
of a law or laws and regulations;
Whereas it is no less important to take account of various study
results or the academic chart or academic script prepared in the
context of formulation of the law, and most importantly the
systematic interpretation; 166
Whereas systematic interpretation originated from a principle
that law is a system. Finding the meaning of a norm or term is
conducted by connecting a provision to other provisions, both in
the same laws and other laws and regulations or legal norms;
Whereas by using a systematic interpretation, the provision of
Article 1 sub-article 3, particularly the phrase ‘designated and/or
stipulated’ correlates with provisions of Articles 14 and 15 of
Law Number 41 Year 1999. These two articles are in the third
section under the title of Forest Area Confirmation. The
provision of Article 1 sub-article 3 in full reads, “Forest area shall
be a certain area designated and/or stipulated by the
government to be preserved as a permanent forest.”
The provision of Article 14 states that:
Paragraph (1): “Based on forest inventory as referred to
in Article 13, the government shall organize the
confirmation of forest areas.”
Paragraph (2): “The activities of confirmation of a forest
area as referred to in paragraph (1) shall be conducted to
provide legal certainty for forest areas.”
Meanwhile, the provision of Article 15 states that:
167
Paragraph (1): “The confirmation of forest areas as
referred to in Article 14 shall be conducted through the
following processes:
a. Designation of forest areas,
b. Arrangement of forest area boundaries,
c. Mapping of forest areas, and
d. Stipulation of forest areas.”
Paragraph (2): “The confirmation of forest areas referred
to in paragraph (1) shall be conducted by taking account
of the regional spatial layout plan.”
Whereas the most important thing of the three provisions above
as well as to answer and clarify the meaning of the phrase
‘designated and/or stipulated’ in the formulation of the provision
of Article 1 sub-article 3 of Law Number 41 Year 1999 lies in
forest area confirmation activities as the process, method,
making, confirmation to give legality or legal certainty with
respect to forest areas;
Whereas forest area confirmation itself is conducted through the
process of:
a. Forest area designation,
b. Forest area boundary determination, 168
c. Forest area mapping, and
d. Stipulation of forest area.
Whereas forest area designation constitutes the initial activity of
forest area confirmation which must be followed by the activity of
forest area boundary determination, forest area mapping, and
finally, forest area stipulation;
Whereas therefore, it can be concluded that forest area
designation constitutes the initial activity of forest area
confirmation, while stipulation of forest area constitutes the final
activity of forest area confirmation. Both designation and
stipulation are parts of the process to confirm an area as a forest
area. The confirmation itself constitutes the legality to give legal
certainty with respect to forest areas;
Whereas on that basis, in order to guarantee legal certainty as
well as closing the possibility for other interpretations and for
showing consistency with the provisions of Articles 14 and 15,
the provision of Article 1 sub-article 3, particularly the phrase
‘designated and/or stipulated’ must be declared conditionally
constitutional, namely that it is constitutional as long as it means
that forest area is a certain area confirmed as a forest area by
the Government to be preserved as a permanent forest through
the process of designation, boundary determination, mapping,
and stipulation of forest area; 169
Whereas in the event that it is interpreted that way, the provision
of Article 1 sub-article 3 of Law Number 41 Year 1999 shall
cause legal uncertainty and inconsistency with the provisions of
Articles 14 and 15, which is inconsistent with the principle of rule
of law state, as regulated in Article 1 paragraph (3) of the 1945
Constitution and also has the implication of disturbing the
administration of regional government, which is inconsistent with
the principles of regional government as regulated in Article 18
paragraph (2), paragraph (5), and paragraph (6), as well as
Article 18A paragraph (2) of the 1945 Constitution;
Whereas last but not least, it also has the implication of violating
human rights, which is inconsistent with the provisions of Article
28D paragraph (1), Article 28G paragraph (1), as well as Article
28H paragraph (1) and paragraph (4) of the 1945 Constitution.
And no less important, it finally allows for unilateral interpretation
by the Minister of Finance, with the implication of impairing the
Petitioners’ constitutional rights;
3. Tommy Hendra Purwaka, S.H., LL.M., Ph.D.
First, the fourth paragraph of the Preamble to the 1945
Constitution states that one of the goals of the establishment of
the Unitary State of the Republic of Indonesia is to realize
general welfare. General welfare can be defined as a condition 170
in which all Indonesian citizens live without fear of tomorrow
because the living necessities of each citizen are fulfilled;
Whereas one of natural resources expected to be used to fulfill
the said living necessities is the forest. In order to be able to
fulfill the expectation, forests must be taken managed properly
to the greatest possible extent through management activities as
regulated in Article 10 to Article 65 of the Forestry Law. In this
matter, we focus on Articles 14 and 15 of the Forestry Law;
Whereas in the event that the abovementioned forest
management activities are entirely conducted in accordance
with the provisions of laws, forest as an object of management
activities can be expected to become one of the main
contributors to the realization of general welfare. However,
reality shows that the stages of the abovementioned forest
management activities have not happened according to laws in
Central Kalimantan, as they have happened in shortcuts,
namely by conducting designation and/or stipulation of forest
areas based on Article 1 sub-article 3 of the Forestry Law to
preserve a forest as a permanent forest. The shortcuts are
certainly inconsistent with forest management activities, and
thus, the implementation of Article 1 sub-article 3 of the
Forestry Law cannot realize the general welfare as stated in the
fourth paragraph of the Preamble to the 1945 Constitution;
171
From the viewpoint of forest as a natural resource, Article 18A
paragraph (2) of the 1945 Constitution explains that relationship
between the central government and the regional government in
forest utilization shall be regulated and implemented in a fair and
harmonious manner based on laws. Justice and harmony in the
relationship of forest utilization will create, for example,
efficiency in the economic sector, welfare in the social sector,
and sustainability in development activities in the region;
Implementation of relationship between the Central Government
and the Regional Government in fair and harmonious forest
utilization, as described above, apparently has never been
realized by the designation and/or stipulation of forest areas by
the Government based on Article 1 sub-article 3 of the Forestry
Law. On the contrary, the implementation of Article 1 sub-article
3 of the Forestry Law today has caused many problems,
including violations of the constitutional rights of the Regional
Government, regional head as an individual, and the people of
the region;
Whereas forest constitutes one of the types of natural resources
contained within the earth and waters of Indonesia which are
controlled, rather than owned by the state and which shall be
used to the greatest possible extent for the welfare of the
people, Article 33 paragraph (3) of the 1945 Constitution. Thus,
the use, utilization, management of forest by the Ministry of 172
Forestry for people’s welfare to the greatest possible extent will
never be achieved simply by designating and stipulating forest
areas, as well as maintaining the truth simply as permanent
forest based on Article 1 sub-article 3 of the Forestry Law,
without involving the Government and the people in the region
who have constitutional rights to the forest and other
constitutional rights with regard to the forest;
Whereas forest constitutes a natural resource owned by the
people and the Ministry of Forestry may only control it based on
the mandate of the people. From the viewpoint of law on state
property, the forest is called public domain. The state only
controls and does not own the forest. The control by the state is
performed by the Ministry of Forestry in the form of activities of
management, utilization, and use of forest for the purpose of
realizing people’s welfare to the greatest possible extent;
Whereas the activities conducted by the Ministry of Forestry
based on Article 1 sub-article 3 of the Forestry Law are more of
ownership activities rather than activities of a proxy or a
mandatory. Ownership activities will place forest as private
domain in state property. As a consequence, the activity then
violates the constitutional rights of the people who give the
mandate to it.
4. Kurnia Toha, S.H., LL.M., Ph.D.
173
Whereas the subject matter of this case is the provision of
Article 1 sub-article 3 of Law Number 41 Year 1999 stating that
“Forest area shall be a certain area designated and/or stipulated
by the government to be preserved as a permanent forest.”;
Article 1 sub-article 3 of Law Number 41 Year 1999 constitutes a
general provision and is concerned with definition. Therefore, all
words or phrases or sentences in Law Number 41 Year 1999
must have the same definition with the definition in the said
Article 1;
Subsequently Article 14 stated that, “Based on forest inventory
as referred to in Article 13, the government shall organize the
confirmation of forest areas.” Article 14 paragraph (2) reads
“The activities of confirmation of a forest area as referred to in
paragraph (1) shall be conducted to provide legal certainty for
forest areas.”;
Meanwhile the provision in Article 15 paragraph (1) stated that,
“The confirmation of forest areas as referred to in Article 14 shall
be conducted through the following processes:
a. Designation of forest areas,
b. Arrangement of forest area boundaries,
c. Mapping of forest areas, and
d. Stipulation of forest areas.” 174
Whereas the elucidation of Article 15 paragraph (1) states that,
“The designation of forest areas shall be the preparatory
activities for the confirmation of a forest area, among other
things, in the following forms:
a. The making of designation map which is instructional on
outer boundaries;
b. Erection temporary boundaries equipped with boundary
paths;
c. The making of boundary channels at vulnerable areas;
d. Announcement about the plan of forest area boundaries,
especially in locations adjacent to land with title.”
Whereas if the provisions of Article 1 sub-article 3, Articles 14
and 15 of Law Number 41 Year 1999 are studied, it is normal
that they lead to different interpretations among the government
agencies, law enforcement apparatuses and academicians. This
happens due to absence of conformity in the formulation and
meaning between the provision in Article 1 sub-article 3 and the
provisions in Articles 14 and 15 of Law Number 41 Year 1999.
Whereas Article 1 sub-article 3 states that forest area is a
certain area designated and/or stipulated. Article 14 paragraph
(1) states that, “the Government shall organize the confirmation
forest areas based on the forest inventory.” Article 15 paragraph 175
(1) states that “Confirmation of forest areas shall be conducted
through 4 stages, namely forest area designation, forest area
boundary arrangement, forest area mapping, and stipulation of
forest areas.”
Whereas based on the formulation of Article 15 paragraph (1) it
is known that the 4 stages of forest area confirmation are
cumulative. It is affirmed by the elucidation of Article 15
paragraph (1) stating that forest area designation constitutes a
preparatory activity of forest area confirmation. Therefore,
before reaching forest area stipulation, forest area designation
must be followed by the three next stages. Meanwhile, based on
the definition of Article 1 sub-article 3, forest area is an area
designated and/or stipulated, and so on. Therefore, forest area
can be stipulated in one stage, namely designated or at the
preparation stage;
Whereas from the abovementioned study, we can identify that
this provision of Article 1 sub-article 3 of Law Number 41 Year
1999 causes:
1. Legal uncertainty because it may lead to different
interpretations;
2. May lead to violations of the rights of the people, even
other government institutions because the process of
forest area stipulation is sufficiently conducted by 176
designation without the necessity to go through the
process according to the principles of rule of law state or
the principles of due process of law;
Subsequently, it will be studied whether the provision of Article 1
sub-article 3 leads to violations of Constitutional rights and
Constitutional impairments to the Petitioners;
Whereas those declaring the rights to land are, among others,
given the rights to control, rights to use, rights to manage, rights
to obtain earnings, and rights to cultivate;
Nicholas Mercuro in his book The Fundamental Interrelationship
between Government and Property, states that property rights
including rights to land, will be less meaningful if they are not
stipulated clearly and with certainty. In the event that they are
unclear, they will lead to the absence of guarantee and will lead
to conflicts in the society;
Hernando de Soto in his book The Mystery of Capital: Why
Capitalism Triumphs in the West and Falls Everywhere Else,
emphasizes the importance of guarantee of legal certainty with
respect to property for the welfare of a nation. Another expert in
property, Yoram Barzel, in his book Economic Analysis of
Property Rights, states that one of the sources of guarantee and
legal certainty with respect to property is protection in addition to 177
clear regulation as well as protection from the law enforcement
apparatuses;
Whereas from the various opinions we can identify that property
rights will have meaning and can be enforced if there are
guarantee, protection, and legal certainty. Meanwhile,
guarantee, protection, and legal certainty will exist when there is
protection from the government through clear regulation and
protection from the law enforcement apparatuses;
Whereas based on Law Number 41 Year 1999, as amended by
Law Number 19 Year 2004 concerning Stipulation of
Government Regulation in Lieu of Law Number 1 Year 2004
concerning the Amendment to Law Number 41 Year 1999
regarding Forestry to Become law and the provisions of Article 1
sub-article 3, Article 18 paragraph (2), Article 18 paragraph (5),
and Article 18 paragraph (6), Article 18A paragraph (2), Article
28D paragraph (1), Article 28G paragraph (1), Article 28H
paragraph (1), and Article 28H paragraph (4) of the 1945
Constitution, as well as doctrines or Experts’ opinions on the
nature of property rights or area including rights on land, it can
be concluded that:
1. The provision of Article 1 sub-article 3, particularly the
phrase designated and/or stipulated, causes forest area
designation to have the same legal force as forest area
stipulation, thus leading to the absence of legal certainty, 178
guarantee, protection, and violating justice which
constitute the main pillars of a rule of law state. Thus, the
provision of Article 1 sub-article 3 of Law Number 41 Year
1999 is inconsistent with Article 1 paragraph 3 of the
1945 Constitution.
2. The interpretation of forest area designation as being
equal to forest area stipulation in accordance with Article
1 sub-article 3 of Law Number 41 Year 1999 leads to the
absence of legal certainty, guarantee, protection, and
justice, thus making the regional government unable to
control and manage its own government affairs, to
exercise regional autonomy to the greatest possible
extent, to stipulate regional regulations and other
regulations, to utilize natural resources and other
resources between the central government and the
regional government to be regulated and implemented in
a fair and harmonious manner as mandated in Article 18
paragraph (2), Article 18 paragraph (5) and Article 18
paragraph (6), and Article 18A paragraph (2) of the 1945
Constitution.
3. This provision of Article 1 sub-article 3 of Law Number 41
Year 1999 has also caused violation of every person’s
rights to the recognition, the guarantee, the protection,
and the legal certainty of just laws as well as equal 179
treatment before the law because the rights to their land
cannot be registered for being designated as forest
areas, and therefore it is inconsistent with Article 28D
paragraph (1) of the 1945 Constitution.
4. The provision of Article 1 sub-article 3 of Law Number 41
Year 1999 has led to the absence of legal protection of
individuals, honor, dignity, property, sense of security,
and protection from threat of fear because the phrase
designation and/or may cause the loss of rights to land
and/or other property, and may also allows for the people
to be blamed for committing a criminal act, and thus, it is
inconsistent with Article 28G paragraph (1) of the 1945
Constitution.
5. The provision of Article 1 sub-article 3 of Law Number 41
Year 1999 may prevent the creation of a physically and
mentally prosperous life, life in a good residence and
environment because there is no guarantee of the rights
to the land designated as forest area, and thus, it is
inconsistent with Article 28H paragraph (1) of the 1945
Constitution.
6. The provision of Article 1 sub-article 3 of Law Number 41
Year 1999 may cause the taking over of private property
rights arbitrarily because private property rights will 180
disappear by mere designation of forest area. This is
inconsistent with the principle of rule of law state in which
private property rights shall only be taken over in the
event that it is in accordance with the due process of law
and fairly indemnified.
5. DR. Sadino, S.H., M.H.
Whereas the principal issue of Petitioners’ petition is to declare
that Article 1 sub-article 3 of the Forestry Law along the phrase
designated and/or does not have any binding legal force, and
further, in the event that the Panel of Constitutional Court
Justices is of a different opinion, to request for the Panel of
Justices to declare Article 1 sub-article 3 of the Forestry Law
conditionally consistent with the 1945 Constitution, namely that it
is constitutional as long as it means that forest area is a certain
area confirmed as a forest area by the government to be
preserved as a permanent forest through designation, boundary
arrangement, mapping and stipulation of forest area;
Whereas from the viewpoint of the petition of the Petitioners, it is
certainly understandable that forestry problems nowadays are
very complex and legal certainty is needed by all parties, both
the Petitioners and the Respondents to seek justice and legal
certainty with respect to what the Petitioners, have experienced,
particularly in relation to the problem in definition of forest area
by taking account of the Province of Central Kalimantan whose 181
existence is guaranteed by the 1945 Constitution, established by
Emergency Law Number 10 Year 1957, as subsequently
stipulated into Law Number 21 Year 1959;
However, the guaranteed existence is apparently has been set
aside by Decree of the Minister of Forestry Number
759/KPTS/UM/10 Year 1982 concerning forest area designation
in the area of Level I Region of Central Kalimantan Province
covering an area of 15,300,000 hectares or equal to 99.4% of
the area of the Central Kalimantan Province, which at the time
was inhabited by approximately 350,000 residents;
Whereas the problem occurs if we refer to the said ministerial
decree, where Central Kalimantan shall be identified as an area
without government and people’s activities, even the existing
activities of the regional government and the people shall stop.
Within a relatively long period of time, the regional government,
namely Petitioner I, has established and managed a public
hospital and medication clinic for the health interests in its
region;
Whereas Petitioner I of Kapuas Region, based on Emergency
Law Number 3 Year 1953 stipulated to become Law Number 27
Year 1959 is also given the authority to build, repair, maintain,
and control public roads in its region as well as buildings and
anything necessary, including to manage and regulate public 182
fields and parks, public cemetery, markets and market booths,
rest houses, transportation, and other works.
Whereas in short, since 1950 government center, offices,
villages, settlements, places of worship, health facilities, and
other vital objects have been built in Kapuas Regency;
Whereas the Regional Government of Kapuas has also
managed its own assets based on the regional government
laws, starting from Law Number 1 Year 1957, Law Number 18
Year 1965, up to Law Number 5 Year 1974 concerning Regional
Government at the time;
Whereas historically in 1982, no one dared to oppose the very
powerful central government at that time and the purpose at the
time was to serve the economic interest by opening investments
in the field of forest exploitation, in which the entire area of
Central Kalimantan had been divided into lots in the form of
Forestry Concessions without taking account of the conditions of
the existing governance in the region;
Whereas what the regional government experienced is shared
by all the regencies in Central Kalimantan. It is a form of
structural and systemic violation of constitutional rights which up
until now has not been settled because the Ministry of Forestry
or the Respondent does not prioritize the implementation of
forest area confirmation mandated by the laws and regulations 183
and in accordance to technical principles in forestry, for example
by stating that designation and stipulation have equal legal
force;
Whereas Article 1 sub-article 3 of Law Number 41 Year 1999
and Decree of the Minister of Agriculture Number 759 Year 1982
are inconsistent with the forestry regulation itself;
Whereas although the letter of the Minister of Agriculture has
almost reached 30 years of age, apparently the letter is very
powerful because it is proven that until now it is still used as the
basis for forest management in the area of Central Kalimantan
by determining a forest area through a designation, while
according to expert, Decree of the Minister of Agriculture Year
1982 is not recognized in Law Number 5 Year 1967 concerning
Basic Provisions on Forestry because Law Number 5 Year 1967
only recognizes forest area designation;
Whereas although Law Number 5 Year 1967 has been replaced
by Law Number 41 Year 1999 on Forestry, there is no
improvement to the said decree of the Minister of Forestry;
Whereas the quick change from the new order era to the reform
era apparently has not gained attention for the change to be
made. Although according to the expert, the decree of the
minister of agriculture is internal in nature and it orders Director
General of Forestry to conduct forest area confirmation; 184
Whereas the petition of the Petitioners is very realistic because
it requests for the right implementation of forest area
confirmation in accordance with the applicable legal norms on
forestry to guarantee legal certainty so as to prevent impairment
of the constitutional rights of the Petitioners knowing that the
confirmation means the provision of legal certainty;
Whereas Law Number 5 Year 1967 and Law Number 41 Year
1999 mandate forest area confirmation;
Whereas Law Number 5 Year 1967 on Basic Provisions on
Forestry clearly and expressly defines that forest area is a
certain area stipulated by the minister to be preserved as a
permanent forest;
Whereas towards the stipulation, Article 15 paragraph (1) of Law
Number 41 Year 1999 on Forestry acknowledges forest area
confirmation which states that, “The confirmation of forest areas
as referred to in Article 14 shall be conducted through the
following processes:
a. Designation of forest areas,
b. Arrangement of forest area boundaries,
c. Mapping of forest areas, and
d. Stipulation of forest areas 185
Whereas the law instructs the confirmation to be conducted, but
the Respondent has only performed forest area designation.
This means that the Respondent has only conducted one initial
step of the confirmation itself;
Why must there be 4 stages of activities in the confirmation? It is
because the Respondent is bounded by the provision of its own
law based on laws and regulations in the forestry sector in order
not to eliminate the rights of the regional government and the
rights of the people. The said rights must be settled, both with
regards to public rights and civil private rights such as title to
have a residence, property rights, and rights of the indigenous
people in the areas designated to become forest areas;
Whereas besides forest area confirmation mechanism, the
Forestry Law does not regulate settlement of the rights of the
regional government, rights of the people, and other rights to
land designated as forest areas. On the contrary, the
Respondent instructs and gives advice so that regional
government or Petition I and other Petitioners are required to
apply for the release of forest area to the Minister of Forestry.
Certainly what the Respondent has done violates the legal
provision on forestry itself which has become its reference and
which does not provide legal certainty with respect to the land
owned by the Petitioners. On the contrary, the Petitioners are 186
threatened by the Forestry Law with criminal sanctions and so
on;
Whereas Petitioner IV also does not have legal certainty in
obtaining the right to land, although the land has been bought
and will be used for facilities in fulfilling people’s rights to have
residence and that the land will be potentially seized in the name
of the state and he is threatened by criminal sanctions;
Whereas the definition given by Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry has deviated from the
meaning of the soul and the spirit of the Forestry Law itself.
Because the designated and/or the aforementioned regime is
contained only in the general provisions while there is no further
regulation in the corpus;
Whereas from the viewpoint of the provision of Article 4
paragraph (2) of the Forestry Law, the government has no
authority to designate a forest area and the expressly granted
authority is:
a. To manage and administer everything related to forest,
forest area, and forest products.
b. To stipulate the status of a certain area as a forest area
or a forest area as a non-forest area.
187
c. To regulate and stipulate the legal relationships between
people and forest, as well as to regulate legal actions with
respect to forestry.
Whereas by taking account of the said authority, it is clear that
the regime of Law Number 41 Year 1999 is a regime for forest
area stipulation rather than designation as conducted by the
Respondent since 1985 until today. The impact the unilateral
forest area designation in the vast area of the Petitioners;
Why does the designation have a grave impact on the concept
of forestry in Indonesia nowadays and tend to violate
constitutional rights of the Petitioners? From the viewpoint of the
legal problems arising, the designation will cause subsequent
and continuous impacts throughout Indonesian Territory in
general and in Central Kalimantan Province in particular, where
the Petitioners are domiciled;
Whereas until now there have been frequent different opinions
between the Ministry of Forestry and the Regional Government
of the province of Central Kalimantan on the definition of forest
area because it has only been unilaterally designated without
being followed by forest area confirmation. Forest area
designation by the Respondent leads to multiple interpretations;
Whereas the concept of forest management frequently
conveyed by the government is a concept of forest management 188
based on the ecology, economy, and social aspects and it
forgets the concept of legal certainty with respect to forest area
itself;
Whereas the problem faced by the Petitioners is the intention to
obtain legal certainty with respect to the forest area which is
currently interpreted by laws and regulations in the Forestry
sector namely Article 1 sub-article 3 of the Forestry Law;
Whereas in the event that multiple interpretations of the
definition occur and does not give legal certainty, there will be
different interpretations of the subsequent legal regulations
which are likely to be used to justify each party;
Whereas the definition of forest area regulated in Article 1 sub-
article 3 of Law Number 41 Year 1999 regarding Forestry is
replaced by lower laws and regulations and technical provisions
on forestry. Therefore, it has caused legal uncertainty for all
parties, including the Petitioners and also the forest area itself;
Whereas a similar opinion is also given by the Corruption
Eradication Commission (Komisi Pemberantasan Korupsi/KPK).
In corruption studies in the forestry sector, the description of
study result on corruption spots policy in the weak law on forest
areas and the study on the planning and management of forest
resources in the Directorate General of Forestry Planning of the
Ministry of Forestry. 189
Whereas based on the study on corruption spots in the weak
legal certainty on forest area, KPK has found uncertainty in the
definition of forest area in Law Number 41 Year 1999 regarding
Forestry; Government Regulation Number 44 Year 2004
concerning Forest Planning; Decree of the Minister of Forestry
Number 32 Year 2001 concerning Standard Criteria for Forest
Area Confirmation, and Regulation of the Minister of Forestry
Number 50 Year 2009 concerning the Confirmation of the
Functions of Forest Areas;
Whereas the Corruption Eradication Commission also found
inconsistency in the determination of a forest area by the
reduction of the principle of pair procedure in the concept of
forest area designation in the Implementing Rules of Law
Number 41 Year 1999 regarding Forestry. The streamlining of
the standard procedure, namely the technical standard
operational procedure for forestry, weakened the legality and
legitimacy of 88.2% or 105.8 hectares of forest area which have
not been stipulated at the moment;
Whereas with regard to the aforementioned findings, the
Corruption Eradication Commission (KPK) recommended the
Minister of Forestry to revoke Regulation of the Minister of
Forestry Number 50 Year 2009 and so on;
190
Whereas it is necessary to convey that the provision of Article
14 paragraph (1) states that “The Government shall organize the
confirmation of forest areas”. Article 14 paragraph (2) states that
the activities of confirmation of a forest area as referred to in
paragraph (1) shall be conducted to provide legal certainty for
forest areas. Furthermore, in Article 15 paragraph (1) and so on;
Whereas by referring to the provisions regulated in the Forestry
Law, the designation of a forest area is only one part of the
process of forest area confirmation. Accordingly, the result of
designation of a forest area is only temporary;
Whereas a forest area will have legal certainty if it has
undergone several processes of the stages of forest area
confirmation, such as the forest area designation, arrangement
of forest area boundaries, forest area mapping and forest area
stipulation;
Whereas in order to support forestry legal norms having legal
certainty, Government Regulation Number 44 Year 2004
regarding Forestry Planning has stipulated several definitions
as follows:
- Article 1 sub-article 8, “Confirmation of a forest area shall
be a series and so on.”
191
- Article 1 sub-article 9, “Designation of a forest area shall
be the initial determination for locating a certain area as a
forest area.”
- Article 1 sub-article 10, “Arrangement of forest area
boundaries shall be an activity covering the projection of
boundaries, erection of boundary blocks, announcement,
inventory and settlement of third party rights, fixing of
boundary, measurement and mapping as well as
preparation of the Minutes of the Boundary
Arrangement”.
- Article 1 sub-article 11, “Stipulation of a forest area shall
be a confirmation of the legal certainty with respect to the
status, boundaries, size of a forest area to become a
permanent forest area.”
- Article 15 is concerned with confirmation, Article 16
paragraph (2) provides for forest area confirmation
through 4 stages. The same definition is also regulated in
Decree of the Minister of Forestry Number 70/Kpts-
II/2001 juncto Decree of the Minister of Forestry Number
48/Menhut-II/2004 regarding the Stipulation of Forest
Area, Change of Status and Functions of a Forest Area.
Whereas Article 1 sub-article 3 states that “Designation of a
forest area shall be the preliminary stipulation of a certain area 192
as a forest area.” This is similar to the provision described in
Government Regulation Number 44 Year 2004. Based on
consideration of various laws and regulations in the
aforementioned forestry sector, the expert is of the opinion that
the interpretation that designation of a forest area is equal to the
stipulation of a forest area is a violation of the forestry legal
norm itself, so that legal decision by the Constitution Court
needs to be passed on the matter filed by the Petitioners in
order to prevent the violation of constitutional rights of the
Petitioners;
With the legal basis as described above, the expert is of the
opinion that there are several letters of the Minister of Forestry
containing the interpretation of the provision of Article 1 sub-
article 3 of the Forestry Law which are inconsistent with the
forestry legal and technical norms, such as Ministerial Letter
Number S429/Menhut-VII/2006, dated July 12, 2006 regarding
the Explanation of the Minister of Forestry concerning forest
area status or through the Regulations of the Minster of
Forestry, such as Regulation of the Minister of Forestry Number
50 Year 2009 regarding the Confirmation of the Status and
Functions of Forest Areas as stated in Article 2, whereby a
forest area shall has legal force if:
a. it has been designated by a Ministerial Decree; or 193
b. its boundaries have been arranged by the Committee for
Boundary Arrangement; or
c. minutes on the Forest Area Boundary Arrangement has
been ratified by the Minister; or
d. the forest area has been stipulated by a Ministerial
Decree.
Whereas this shows different interpretations.
Constitutional impairments of the Petitioners due to the equation of designation with stipulation:
Whereas with reference to the Decisions of the Court, following
Decision Number 006/PUU-III/2005, dated May 31, 2005,
Decision Number 11/PUU-V/2007, dated September 20, 2007,
as well as subsequent decisions, the Court is of the opinion that
the impairment of the constitutional right and/or authority
intended by Article 50 paragraph (1) of the Court Law must meet
five requirements, namely:
1. The existence of constitutional rights and/or authority of
the Petitioners granted by the 1945 Constitution;
2. The Petitioners consider that such constitutional rights
and/or authority have been impaired by the coming into
effect of the law petitioned for review;
3. The impairment of such constitutional rights and/or
authority must be specific and actual or at least potential 194
in nature which, pursuant to logical reasoning, can be
assured of occurring;
4. There is a causal relationship (causal verband) between
the impairment of constitutional rights and/or authority of
the Petitioners and the law petitioned for review;
5. The possibility that with the granting of the Petitioners’
petition, the impairment of such constitutional rights
and/or authority argued by the Petitioners will not or will
no longer occur;
Whereas by taking account of the above-mentioned provision, if
the Respondent only designates without performing the legal
obligations of stipulating, a forest area, the expert is of the
opinion that the violation of the Petitioners’ constitutional rights
has occurred. On the other hand, if the stipulation of a forest
area is conducted, the expert is of the opinion that the violation
of constitutional rights is not likely to occur since legal certainty
is more likely to exist as intended by the 1945 Constitution, in
relation to Article 1 paragraph (3), Article 18 and so on.
The Equation of Designation with Stipulation Results in an Uncontrolled
Forest Destruction:
Whereas forest area designation without confirmation violates
the Laws and Regulations on Forestry as well as the
constitutional rights of the Petitioners. With due observance of 195
the time period for the designation of forest areas in the
Petitioners’ regions based on Decree of the Minister of
Agriculture Number 759/Kpts/Um/10/1982, dated October 12,
1982 regarding the Designation of Forest Areas in Level I
Region of Central Kalimantan Province covering an Area of
15,300,000 ha, no activities are conducted by the community in
the Petitioners’ regions. The regional governments of the
province, the regencies/municipalities, districts, or villages, and
the communities are all included in the forest area. Meanwhile,
the regional governments and the communities have been
legally residing first in Central Kalimantan or in the Petitioners’
region. Is it true that the aforementioned designation is granted
by the 1945 Constitution and that it may be inconsistent to the
1945 Constitution itself? Moreover, Decree of the Minister of
Defense is arbitrarily adopted as Law Number 41 Year 1999;
Whereas according to the expert, multiple interpretations of
forestry legal norms, particularly in relation to the meaning of
forest area, especially the phrase designated and/or stipulated,
has had an impact on forest destruction in Indonesia in a
systemic and structured manner and has hindered law
enforcement.
Whereas the current law enforcement is not properly and
effectively performed also due to uncertainty of legal norms on
forest area; 196
Whereas the data from ICW as from 2005 up to 2008 shows that
72% of suspects of forestry cases were decided to be acquitted.
Based on the results of its analysis, one of the reasons for that
was the absence of a certain definition of forest area. 82% of
the cases were related to farmers. The data also shows that up
to date, a certain level of forest destruction in Indonesia
continuous to exist. The Respondent itself acknowledged that
based on the book of Perhitungan Deforestasi Indonesia Tahun
2008 (Calculation of Deforestation in Indonesia Year 2008), the
Director General of Forestry Planning 2008, deforestation
throughout Indonesia during the period of 2003-2006 covered a
total area of 3.52 million hectares or at an average annual
deforestation rate of 1.1 million hectares.
Whereas based on the description given by the Expert, the
expert is of the opinion that;
1. The Petitioners have legal standing and impairment of
constitutional rights occurs if the provision of Article 1
sub-article 3 of the Forestry Law is not clearly interpreted
by the Constitutional Court.
2. As the only institution having authority, the Constitutional
Court, instead of the Minister of Forestry or other officials,
shall interpret the provision of Article 1 sub-article 3 of
Law Number 41 Year 1999 regarding Forestry. 197
3. With the granting of the Petitioner’s petition, the Expert is
and of the opinion that the constitutional rights of the
Petitioners will not occur, and that it can reduce systemic
forest destruction in the form of continuous deforestation
or destruction in almost all the regions of Indonesia and
particularly in the Petitioners’ region.
4. The mechanism of law, whether civil law or, in the form of
compensation, relocation etc. is not regulated in the
Forestry Law. Settlement with the third party is only
reached through the mechanism of forest area
confirmation at the stage of boundary arrangement. How
will third party rights be settled if boundary arrangement
which is a part of forest area stipulation is not conducted?
5. Based on both the forestry legal norms or the forestry
technical aspect intended by the Forestry Law, the final
stage is stipulation. By granting the Petitioners’ petition,
the Constitutional Court has removed the status quo of
government policies existing so far and will preserve the
remaining forest to be saved.
6. Enforcement on criminal law on forestry will fail from the
beginning without legal certainty in the policy itself,
namely at the formulation stage, which will affect the
application stage and execution stage, for instance at the 198
police station, prosecutor's office, court office, governor’s
office, regent’s office and public facilities which are also
included in the forest area.
7. The concrete example is the confirmation of forest areas
in Java and Madura Islands where the four-stage
stipulation has been conducted, being currently managed
by the Perum Perhutani (State Forestry Enterprise). The
forest area is more certain and gives legal certainty with
respect to the forest area itself. The regional government
and the community acknowledge and respect the
aforementioned forest area since it has passed forest
area confirmation. The remaining forests are more secure
and the community will even actively develop community
forest as a form of awareness of the preservation of their
environment.
8. The current forest management only pays attention to the
aspects of ecology, economy and social aspect. Thus,
with the granting of this petition by the Constitutional
Court, the aspect of legal certainty of the forest area itself
will obtain similar legal certainty.
9. With the granting of the Petitioners’ petition will allow the
Petitioners to conduct activities in their in order to realize
development of welfare at the moment. The frequently
cited Dayak’s sayings are “Ela tempon petak manana 199
sare” which means having land without being free to
plant, “Ela tempon kajang bisa puat” which means having
home while being unable to live in it safely and “Ela
tempon uyah batawah belay” which means having salt,
but the food is flavorless.
10. The determination of a forest area through the stages in
the confirmation required by the Petitioners will be more
likely to give legal certainty in the future.
In addition to the Experts, the Petitioners have also presented 2 (two) witnesses whose statements were heard at the hearing on October 4, 2011 substantially declaring as follows:
1. I Ktut Subandi
Whereas forest functions as an ecosystem playing the roles of
supporting life and balancing the environment for the
continuation of life on earth, either locally or globally.
Whereas the role of the forests in Central Kalimantan Province
has given great contribution for the development model of the
Republic of Indonesia and has contributed no less foreign
exchange for supporting development programs. However,
since the designation of Central Kalimantan region as a forest
area which nearly reaching 99.6%, until now, legal certainty has
not been given since the Central Government only relies on the
designation. 200
Whereas the issue has often given rise to conflicts in land
utilization in the field between the Government very often, either
between the Government and customary communities, with the
existence of Government’s projects utilizing land or companies
engaging in forestry, plantation, mining and other companies
and the customary communities in Central Kalimantan due to
inexistent forest area boundaries in the field;
Whereas the history of forest areas in Central Kalimantan
Province and the problems which have emerged as a result of
the inexistent forest area boundaries in the field are as follows:
Referring to Law Number 5 Year 1967 regarding the
Principal Provisions Decree of the Minister of Agriculture,
through Decree Number 759/KPTS/UM/X/1982 dated
October 12, 1982, 19,300,000 hectares of the region of
Central Kalimantan Province have been designated as a
forest area with the following functions; Natural
Preservation Forest covering an area of 729,919
hectares, Protected Forest covering an area of 800,000
hectares, Limited Production Forest covering an area of
3,400,000 hectares, Regular Production Forest covering
an area of 6,088,000 hectares, Convertible Production
Forest covering an area of 4,302,181 hectares and the
Map of Plan for the Confirmation and Utilization of Forest 201
of the Level I Region of Central Kalimantan Province
Year 1982, at a scale of 1:500,000 as its attachment.
Based on the division of the function of forest area as
mentioned above, if compared to the size of Central
Kalimantan Province covering an area of 19,356,700
hectares, it can be concluded that 99,6% of Central
Kalimantan Province area is located in the forest, and
based on the analysis of the Map of Plan for the
Confirmation and Utilization of Forest of the Level I
Region of Central Kalimantan Province Year 1982,
known as the Forest Land Use Agreement (TGHK) Map
year 1982, it is found out that office buildings of the
Government, public settlements, public facilities and
others are generally built on the Capital City of Central
Kalimantan Province and the capital cities of the
regencies throughout Central Kalimantan which are
included in the forest area. For instance, in the spatial
pattern in Kapuas Regency, if referring to TGAK map
year 1982, the percentage of its forest area is 99.06%,
while non-forest area is only 0.9% which means that all
regions in Kapuas Regency which has reached 205 years
of age are located in a forest area.
Whereas the procedure for the signing of the memorandum of
understanding has been regulated by Decree of the Minister of 202
Agriculture Number 680/KPTS/UM/1981 dated August 8, 1981
regarding the Guidelines on the Utilization of Memorandum of
Understanding whose decision has stipulated in Article 1
paragraph (1) that the utilization of the memorandum of
understanding in a region of a Province is an activity to
determine forest status in a region of the relevant province
according to its function based on the agreement between the
related agency and the land user in a region, namely in this
case, the technical forestry agency, either at the center or in the
region, which prepares for the script of the plan for the utilization
of the memorandum of understanding to be discussed between
the agency related to the land utilization in a region and the
relevant coordinating governor as the head of level 1 region in
order to reach an agreement;
However, the process of agreement signed between the Minister
of Agriculture and the Governor of Central Kalimantan which at
that time gave birth to the map of plan for the confirmation and
utilization of forest of the level I Region of Central Kalimantan
province Year 1982 could not be understood by the witness and
could not be accepted by commonsense since the fact shows
that 99.6% of the region in Central Kalimantan Province consists
of forest, and this really castrated the constitutional rights of the
witness. If the aforementioned provisions remain in effect, they
will result in legal consequences on the attempts of regional 203
development and the development conducted by the witness in
the region;
Whereas in Decree of the Minister of Agriculture Number
759/KPTS/UM/10/1982, in the third decision, the Minister of
Agriculture instructs the Director General of Forestry to measure
and arrange the boundaries of forest areas in the field. The
aforementioned Decree of the Minister of Agriculture has clearly
mandated that following forest designation, then measurement
and arrangement of area boundaries in the field should be
conducted in order to be able to guarantee legal certainty of
forest area boundaries with non-forest areas. However, Article
(1) sub-article 3 of Law Number 41 Year 1999 defines forest
area as a certain area designated and/or stipulated by the
Government to be preserved as a permanent forest.
Whereas since the designation of Central Kalimantan region as
forest area being only based on the designation without
measurement or arrangement of boundaries being conducted
until now, either the arrangement of forest area boundaries or
the arrangement of forest area function boundaries. The
functions of a forest area consist of natural preservation forest,
protected forest, limited production forest, production forest and
convertible production forest. This often results in conflicts of
land utilization in the field since when the Central Government or
the Regional Government establishes licenses of forestry, 204
mining, plantation and other licenses utilizing forest areas in
Central Kalimantan Province region, conflicts of land utilization
with customary communities of Central Kalimantan which have
already existed prior to the independence of Indonesia will
always emerge. During the settlement of problems, to the best
of the witness’ knowledge, people have always been the losing
party and their constitutional rights are neglected. On the other
hand, the people also have legal basis of right to the things that
belong to them, namely the things in the form of verklaring,
customary recommendation and so on;
Whereas due to unclear forest area boundaries, the witness, as
a government apparatus in the region, finds it hard to provide
license services to the community or the business sector related
to the licenses in the field of plantation, agriculture, fishery,
housing and settlement or other facilities and infrastructure due
to the status of the area being requested to be forest area. If the
witness gives the license, he may be subject to a criminal
sanction for being considered to have entered and occupied the
forest area without permission as well as given other business
licenses in the forest area.
2. Jaholong Simamora
Whereas based on the experience of the witness in the Land
Office of Kapuas Regency, as from July 17, 2008 up to
November 2010, the service for land certification for the first 205
time totally stopped. Since November 2010 until now, the
service can be provided, particularly for urban areas only.
Therefore, out-of-town service cannot be provided, with
postponement and cancellation of many projects, with applicants
of land certification for property right, which according to the fact
that it is indeed a customary right, while based on the Provincial
Spatial Layout Plan (RTRWP) or Forest Land Use Agreement
(TGHK) 1982, Central Kalimantan is declared to be nearly 100%
forest, the National Land Agency is afraid of being criminalized,
so that land service is not provided. Thus, many activities may
have an adverse impact on the community and the National
Land Agency cannot provide services;
[2.3] Whereas the Government at the hearing on September 21, 2011 has given its verbal statement and also its written statement to the Registrar's
Office of the Court on September 30, 2011 substantially stating as follows:
I. Substance of the Petition
a. Whereas Petitioner I as Kapuas Regent acting for and on behalf
of the Regional Government of Kapuas Regency of Central
Kalimantan Province, while Petitioner II through Petitioner VI, in
this case, acting in their capacity as individuals, filed the petition
for Constitutionality Review of Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry as amended by Law
Number 19 Year 2004 regarding the Stipulation of Government
Regulation in Lieu of Law Number 1 Year 2004 regarding 206
Amendment to Law Number 41 Year 1999 regarding Forestry to
become Law, under the 1945 Constitution;
b. Whereas Petitioner I argues that the provision of Article 1 sub-
article 3 of Law a quo has made Petitioner I unable perform his
authority to perform autonomy to the broadest possible extent in
giving new business licenses and in extending existing licenses
in relation to business licenses of plantation, mining, livestock
and so on to other parties; while Petitioner II, Petitioner III,
Petitioner IV and Petitioner V, individually, whose occupations
are as Regents in their respective regions, have been
threatened with criminal sanctions as regulated in the provision
of Article 50 juncto Article 78 of the Law a quo for giving new
licenses or extending previously existing licenses in forest
areas; and according to Petitioner VI, the provision of Article 1
sub-article 3 of the Law a quo has caused Petitioner VI to lose
his Property Rights and Title;
c. Whereas according to Petitioner I through Petitioner VI, Decree
of the Minister of Agriculture of Number 759/Kpts/UM/10/1982
dated October 12, 1982 regarding the Designation of Forest
Areas in the Level I Region of Central Kalimantan Province
covering an Area of 15,300,000 Ha is deemed to be the
domination of the Central Government over forest areas as
domain verklaring determined by the Dutch Colonial
Government in controlling and possessing land in a large scale. 207
d. In short, according to the Petitioners, Article 1 sub-article 3 of
Law a quo is inconsistent with Article 1 paragraph (3), Article 18
paragraph (2), Article 18 paragraph (5), Article 18 paragraph (6),
Article 18A paragraph (2), Article 28D paragraph (1), Article 28G
paragraph (1), Article 28H paragraph (1), Article 28H paragraph
(4) of the 1945 Constitution;
II. Legal Standing of the Petitioner
1. Based on the provision of Article 51 paragraph (1) of Law
Number 24 Year 2003 regarding the Constitutional Court as
amended by Law Number 8 Year 2011, the Petitioners shall be
those who consider that their constitutional rights and/or
authorities granted by the 1945 Constitution have been impaired
by the coming into effect of a Law namely:
a. individual Indonesian citizens;
b. customary law community units insofar as they are still in
existence and in line with the development of the
communities and the principle of the Unitary State of the
Republic of Indonesia as regulated in law;
c. public or private legal entities; or
d. state institutions;
208
The abovementioned provision is asserted in the elucidation that referred to as “constitutional rights” are the rights regulated in the 1945 Constitution.
Thus, in order that a person or party is eligible to be a Petitioner having legal standing in the petition for judicial review of a Law under the 1945 Constitution, the following must be first explained and evidenced:
a. His/her qualification in the petition a quo as referred to in
Article 51 paragraph (1) of Law Number 24 Year 2003
regarding the Constitutional Court as amended by Law
Number 8 Year 2011;
b. the constitutional right and/or authority in the intended
qualification deemed to have been impaired by the
coming into effect of the Law to be reviewed;
c. the impairment of the Petitioner’s constitutional right
and/or authority as a result of the coming into effect of the
Law petitioned for review.
Article 18 paragraph (3) of the 1945 Constitution
regulates that the regional governments of provinces,
regencies and municipalities shall have the Regional
People’s Legislative Assembly. Furthermore, Article 3
paragraph (1) sub-paragraph b of Law Number 32 Year
2004 regarding Regional Government explains that 209
regional government of regency/municipality shall consist
of regional government of regency/municipality and the
regional people’s legislative assembly of
regency/municipality, which clearly means to qualify as
Regional Government, the Regent (in this case Petitioner
I in the petition of the Law a quo) must be with the
Regional Peoples Legislative Assembly (DPRD).
The fact is that in filing the petition, Kapuas Regent did
not come with the Regional People’s Legislative
Assembly, as a Regional Government element pursuant
to Article 1 sub-article 2 of Law Number 32 Year 2004
regarding Regional Government, but rather it has been
based only on a Special Power of Attorney and an
Assignment Letter from the Regional People’s Legislative
Assembly of Kapuas Regency.
Therefore, the legal status of Petitioner I cannot be
juridically qualified as the Regional Government of
Kapuas Regency, but that his status is only as an
individual.
2. Furthermore, for Petitioner II through Petitioner V, even though
their occupations are as Regents, they expressly declare
themselves as Individuals.
Since it is proven that Petitioner I acts as an individual and
Petitioner II through Petitioner V expressly declare themselves
to be Individuals, juridically, they do not have the capacity to 210
declare that their constitutional authority has been impaired as a
result of the formulation of Article 1 sub-article 3 of the Forestry
Law since only the state official acting in his/her position and in
accordance with his/her authority has constitutional authority to
give licenses.
3. Furthermore, for Petitioner VI, acting as a citizen and declaring
himself to have been harmed due to the rejection of his
application for land certificate by the Land Office for the reason
that the relevant plot of land, including the land area not having
been released by the Minister of Forestry, is not the
Constitutional Court’s domain to investigate and hear.
Therefore, according to the Government, it is proper and
reasonable for the Chairperson/Panel of Justices of the
Constitutional Court to wisely declare that the petition of
Petitioner I, Petitioner II, Petitioner III, Petitioner IV, Petitioner V
and Petitioner VI cannot be accepted (niet ontvankelljk
verklaard).
III. Explanation by the Government on the Material Petitioned for
Review
Regarding the substantive material petitioned for review by the
Petitioners, the Government can give the following explanation:
The philosophical basis for the regulation of forest management is that
forest, as the endowment and mandate from the One Almighty God to
Indonesia, is an invaluable natural resource for which we must be 211 grateful. The endowment from Him must be considered as a mandate.
Therefore, forest must be managed and utilized with noble conscience in the context of worship as a form of gratitude to the One Almighty
God.
Forest, as a capital for National Development, has real advantages for the life and livelihood of the Indonesian nation, whether ecological, socio-cultural or economic advantages, equally and dynamically.
Therefore, forest must be managed and utilized continuously for the welfare of Indonesian people, both the present and future generations
(General Elucidation of the Forestry Law, paragraph 1 through paragraph 3).
In its capacity as one of the determinants of the life support system, forest gives great advantages for human, so that its preservation of which must be maintained. Forest also plays a role as a means for global environment harmonization and balance, so that linkage with the international world becomes extremely important by consistently prioritizing the national interest (paragraph 1 through paragraph 3 of general elucidation of the Forestry Law).
The philosophical basis for the issuance of the aforementioned
Forestry Law is in line with the provision of Article 33 paragraph (3) of the 1945 Constitution as the constitutional foundation regulating that land, water and the natural resources contained therein shall be managed by the state and shall be used for the greatest prosperity of the people. Forest control by the state is not an ownership, but an 212 authority given to the Government by the State to regulate and manage all matters related to forest, forest areas and forest products as well as to regulate legal actions on forestry. (General Elucidation of the
Forestry Law, paragraph 4).
The government realizes that the need to utilize land for various interests is increasingly rising along with the increasing number population and development activities in various sectors. Based on such considerations, the Government needs to prepare the Forest
Utilization Plan in the administration and management of forest.
Therefore, pursuant to the provision of laws and regulations, prior to the issuance of the Health Law, the Government shall make a policy on preparing the Forest Utilization Plan in each region of Province through an agreement between the relevant agencies in the Region which is subsequently referred to as Forest Land Use Agreement (TGHK). The
Forest Land Use Agreement in a Province is an activity to determine forest allocation in the relevant Province which, according to the function, is based on the agreement between the agencies related to land utilization. In the preparation of the Forest Land Use Agreement
Plan, the followings constitute the basis for considerations of such
Agreement:
a. Location and condition of forest (among other things, the
potential, flora and fauna); b. Topography; c. Condition and characteristics of land; 213 d. Climate; e. Condition and Development of the community;
The aforementioned script of the Forest Land Use Agreement Plan is prepared by the Head of the Provincial Forestry Service Office and the
Head of the Forestry Planning Center, including in the determination of location of Permanent Production Forest Area in the context of meeting the size of Optimal Forest Area. The aforementioned script is discussed between the agencies related to land utilization in the
Region through coordination with the relevant Governor in order to reach an agreement. The script of the Forest Land Use Agreement
Plan having been discussed and agreed in the region, upon the recommendation of the relevant Governor, is submitted to the Director
General of Forestry for assessment and improvement to be later submitted to the Minister of Agriculture for ratification. The script of this
Forest Land Use Agreement Plan will become the basis for the
Government to designate forest areas in each Province, including in
Central Kalimantan Province.
Accordingly, Decree of the Minister of Agriculture Number
759/Kpts/UnVi0/i982 regarding the Designation of Forest Areas in the
Level I Region of Central Kalimantan Province covering an area of
15,300,000 ha as forest area has been issued pursuant to the applicable laws and regulations as well as based on the agreement between the agencies in the region.
214
The Government can convey that one of the examples of Forest Land
Use Agreement is Central Kalimantan Province, pursuant to Decree of
the Minister of Agriculture Number 759/Kpts/Um/10/1982, namely as
follows:
MAP OF PLAN FOR THE CONFIRMATION AND UTILIZATION OF FOREST
OF THE LEVEL I REGION OF CENTRAL KALIMANTAN PROVINCE
SCALE 1 : 500,000
The aforementioned example shows that forest utilization by the
Government is not performed arbitrarily since the process of
agreement between the other related agencies in the region has been
conducted.
The Government considers that had the aforementioned Decision on
Forest Land Use Agreement been no longer consistent with the
development of expansion in the region, the Region would have been
able to propose conversion of the size of forest area in casu to the
Government by determining the status (changing the allocation) of the
forest area planned for the purpose of development of another sector. 215
The aforementioned conversion of allocation must certainly be based on the provision of the applicable laws and regulations and through an assessment by the Integrated Team as regulated in Article 19 paragraph (1) of the Forestry Law.
The Government can convey that with regard to the Forest Land Use
Agreement of Central Kalimantan Province, the Petitioners, through the
Governor of Central Kalimantan, have proposed a conversion of forest area in the Revised Provincial Spatial Layout Plan of Central
Kalimantan. With regard to the aforementioned proposal, the
Government has formed an Integrated Team assigning to conduct research on the proposal for conversion of forest area submitted by the aforementioned Governor of Central Kalimantan. Based on the result of the research conducted by the aforementioned Integrated Team, the followings are recommended:
a. Conversion of allocation of forest area of ± 1,405,595 hectares; b. Change of function of forest area of + 689,666 hectares; and c. Designation of non-forest area to become forest area of +
29,672 hectares.
Out of the forest area of ± 1,405,595 hectares recommended for conversion of allocation into non-forest area by the Integrated Team, the conversion of an area of ± 236,939 has an important impact and wide scope as well as strategic value. Thus, based on the provision of
Article 19 paragraph (2) of the Health Law on Health, it needs to be approved by the People’s Legislative Assembly of the Republic of 216
Indonesia. Based on the foregoing, the Minister of Forestry issued
Decree Number SK.292/Menhut-II/2011 dated May 31, 2001 regarding
Conversion of the Allocation of Forest Area into Non-Forest Area covering an area of + 1,168,656 (one million one hundred sixty eight thousand six hundred and fifty-six) hectares, Change in the Functions of Forest Area covering an area of + 689,666 (six hundred eighty nine thousand six hundred and sixty-six) hectares and Designation of Non-
Forest Area into Forest Area covering an area of ± 29,672 (twenty nine thousand six hundred and seventy-two) hectares in Central Kalimantan
Province.
Based on the explanation above, according to the Government, constitutional impairments are longer occur to the Petitioners since all interests (the government’s office, people’s settlement, public facilities and social facilities) are included and covered in the aforementioned
Decree of the Minister of Forestry, namely in the forest area of +
1,168,565 hectares the allocation of which is converted into non-forest area. With the stipulation of the aforementioned Decree of the Minster of Forestry, the Government is expected to be able to optimize the forest area the allocation of which has been converted, so that illegal clearing, control, occupation will no longer exist, including the granting of permits by the Regent for the forest area which is inconsistent with the procedure and provisions of laws and regulations.
Furthermore, the Government will convey the philosophical basis of the meaning of forest area as intended in the provision of Article 1 sub- 217 article 3 of the Forestry Law defining a forest area as a certain area designated and/or stipulated to be preserved as a permanent forest area.
The meaning of forest area as intended in the Forestry Law is the essence of Article 33 paragraph (3) of the 1945 Constitution and also the refinement of forest area definition as intended in Law Number 5
Year 1967 regarding the Principal Provisions on Forestry which defines forest area as certain area stipulated by the Minister to be preserved as permanent forest. The definition of forest area as intended in Article 1 sub-article 3 of the Forestry Law is a form of responsibility of the
Government for logical consequence and safeguarding of natural resources as well as the area of life supporting system having been agreed to be controlled and managed by the Government for the greatest prosperity of the people. Such definition will give legal certainty to forest area, both the new forest areas at the designation stage and forest areas at the stipulation stage. Whereas if later in the aforementioned forest area designated as forest area there are rights of the third party which can be proven by the legal basis of entitlement, the settlement is to be achieved through arrangement of boundaries of the aforementioned forest area, and for the existing rights of the Third
Party prior to the designation, the status is removed from forest area.
The Government submitted the following example of the result of the
Boundary Arrangement having been finished and signed by the
Committee for the Arrangement of Forest Area Boundaries. 218
219
220
The aforementioned definition of forest area is also not intended to reduce the authority of the Regional Government to perform its autonomy affairs since all of the Government’s affairs, including the forestry sector, have been completely divided as regulated in
Government Regulation Number 38 Year 2007. In attachment AA to
Government Regulation Number 38 Year 2007 the following is regulated: designation of a forest area, role of the regional Government of regency/municipality in proposing the designation of production forest area, protected forest, natural conservation area, natural preservation area and hunting park.
Based on the aforementioned provision, forestry sector affairs include joint affairs between the Government, provincial Government and regency/municipal Government. The roles of the provincial
Government are giving technical considerations and designating production forest area, protected forest, nature conservation area, natural conservation area and game reserve. Therefore, according to the Government, based on laws and regulations (wetmatigheid) or the principle of usefulness (doelmatigheid), the formulation of forest area as intended in Article 1 sub-article 3 of the Forestry Law is accurate and correct.
The argument of the Petitioners stating that Decree of the Minister of
Agriculture Number 759/KPTS/UM/10/1982 dated October 12, 1982 regarding the Designation of a Forest Area in Level I Region of Central
Kalimantan Province covering an area of 15,300,000 ha is considered 221
to be the domination of the Central Government over forest area as the
domain verklaring determined by the Dutch Colonial Government in
determining forest areas. The Government can respond as follows:
Domain verklaring is the politics of the Dutch Colonial Government to
control/own land in a large scale to be subsequently leased to private
person for the purpose of plantation.
The essence of the domain verklaring is a statement by the
Government that the land, the right to which cannot be proved, is
owned by the state.
Meanwhile, the designation of a forest area, subsequently more known
as Forest Land Use Agreement (TGHK), is a forest area spatial
arrangement prepared based on the agreement reached by the
relevant agencies in the region pursuant to the applicable laws and
regulations, and with respect to which the approval is then applied for
to the Governor of the Level I Regional Head and the Director General
of Forestry, and subsequently ratified by the Minister of Agriculture by a
Decree.
Therefore, it is indeed incorrect to equate domain verklaring with the
designation of a forest area in the province as set out in the map of
Forest Land Use Agreement (TGHK).
IV. Conclusion
222
Based on the brief explanation above, the Government requests the
Honorable Chairperson/Panel of Justices of the Constitutional Court
hearing the petition for judicial review of the provision of Article 1 sub-
article 3 of the Forestry Law under the 1945 Constitution to pass the
following decisions:
1. Declaring that Petitioner I, Petitioner II, Petitioner III, Petitioner
IV, Petitioner V and Petitioner VI do not have legal standing;
2. Rejecting the review petition of Petitioner I, Petitioner II,
Petitioner III, Petitioner IV, Petitioner V and Petitioner VI in its
entirety or at least declaring that the review petition of the
Petitioners cannot be accepted (niet ontvankelijk);
3. Accepting the Statement of the Government in its entirety;
4. Declaring that the provision of Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry is not inconsistent with
the 1945 Constitution of the State of the Republic of Indonesia.
Nevertheless, if the Honorable Chairperson/Panel of Justices of the
Constitutional Court is of a different opinion, it is requested for the
decisions to be passed according to what is equitable and good (ex
aequo et bono).
[2.4] Whereas to prove their arguments, the Government has submitted written evidence marked as Exhibit T-1 through Exhibit T-6 as follows: 223
1. Exhibit T-1 : - Photocopy of Law Number 5 Year 1967
regarding Principal Provisions on
Forestry;
- Photocopy of Letter Number S.938/Kuh-
2/2011, dated October 20, 2011,
regarding Application for Land Enclave
of PT. Pertamina RU V Balikpapan in
Tahura Bukit Soeharo
2. Exhibit T -2 : - Photocopy of Law Number 41 Year 1999
regarding Forestry;
- Photocopy of Letter Number
S.837/KUH-2/2011, dated September
23, 2011, regarding Settlement of the
Status of Land for Industrial Location of
PT. Tri Mustika Semesta in Batu Ampar
District, Kubu Raya Regency, West
Kalimantan Province;
3. Exhibit T-3 : - Photocopy of Law Number 32 Year 2004
regarding Regional Government;
- Photocopy of Land Enclave of Grugu
Village and Bringkeng Village in Cilacap
Regency;
224
- Photocopy of Letter Number S.1233/VII-
KUH/2011, dated November 4, 2011,
regarding Clarification of Area Status;
4. Exhibit T-4 : - Photocopy of Government Regulation
Number 38 Year 2007 regarding
Division of Governance Affairs Between
the Government, Provincial Government
and Regency/Municipal Government;
- Photocopy of Letter Number
S.534/Menhut-VII/KUH/2011, dated
August 24, 2011, regarding Approval of
Map of Plan for Enclave Boundary
Route in Talang Gunung Hamlet in
Permanent Production Forest Area of
Register 45 of Sungai Buaya;
5. Exhibit T-5 : - Photocopy of Decree of the Minister of
Agriculture Number
759/Kpts/Um/10/1982 regarding the
Designation of Forest Area in the Level I
Region of Central Kalimantan Province
covering an Area of 15,300,000 (Fifteen
Million and Three Hundred Thousand
Hectares) as Forest Area; 225
- Photocopy of Government Regulation
Number 44 Year 2004 regarding
Forestry Planning;
6. Exhibit T-6 : - Photocopy of Decree of the Minister of
Forestry Number SK.292/Menhut-II/2011
regarding Conversion of the Allocation of
Forest Area into Non-Forest Area
covering an Area of +1,168,656 (one
million one hundred sixty eight thousand
six hundred and fifty-six) hectares,
Change in the Functions of Forest Area
covering an area of ± 689,666 (six
hundred eighty nine thousand six
hundred and sixty-six) Hectares and the
Designation of Non-Forest Area into
Forest Area covering an area of ±
29,672 (twenty nine thousand six
hundred and seventy-two) Hectares in
Central Kalimantan Province.
- Photocopy of Government Regulation
Number 10 Year 2010 regarding the
Procedure for Conversion of the
Allocation of Forest Areas and Change
in the Functions of Forest Areas; 226
In addition to that, the Government presented 2 (two) experts whose statements were heard before the hearing on September 21, 2011 substantially giving the following statements:
1. Prof. Dr. Asep Warlan Yusuf, S.H., M.H.
Whereas as we know it, the Government as a legal subject, can
take a real action or legal action. Real action is defined as an
action not categorized as a legal event, not incurring any legal
consequence and which cannot be legally accounted for.
Referred to as legal action or rechtshandelingen is that, it
basically is a legal event, may incur legal consequence of the
actions taken and may be legally accounted for.
With regard to the aforementioned legal action, we refer to
Article 33 paragraph (3) mandating that the state must act or
take legal actions in taking steps, managing and administering
natural resources intended for the greatest prosperity of the
people. Accordingly, the Government shall certainly, among the
aforementioned legal actions, make Laws. In law, several
matters need to be regulated, one of them being concerned with
meaning or definition.
The meanings or definitions in the chapter of general provisions
of a law and regulation have the nature of stipulation for making
a word (a term) become a legal term. If it has become a legal
term, it will become a reference and guideline for the Articles 227
related to such term. In addition to that, a definition covers a
certain scope and there is legal certainty of the definition of a
denotative legal term, so that multiple interpretations are
expected not to occur.
The from the legal perspective, the definition in Article 1 sub-
article 3 of the Forestry Law stating that forest area shall be a
certain area designated and/or stipulated by the Government to
be preserved as a forest area can be explained as follows:
- First, the term of designated and/or stipulated in the
formulation of Article 1 sub-article 3 means that a certain
area, on the basis of size, technical aspects and forestry,
needs to be given legal status as forest area by way of
designation first and then stipulation by the Government.
Thus, the aforementioned certain area, to which legal
status has been given, should also be treated as forest.
Therefore, in the event of a document related to
designation, it can be assured that such area is a forest
area, and all matters related to such forest area shall be
treated as forest as regulated in the Forestry Law. The
purpose of designation in the aforementioned Law is to
serve as the preliminary legal action performed first in a
region or certain area, so that it becomes a forest area.
- The subsequent stage following the determination of an
area as a forest area is that it must be treated as forest 228
as regulated in the Forestry Law. It is hard to imagine
how incoherent, difficult and uncertain it is going to be if a
certain existing area which is indeed a forest is not given
legal status as a forest. Such area will be wide open and
potential for free and arbitrary utilization for their interests.
Therefore, it is vitally important to determine it as a forest
even though designation is conducted first as the
preliminary basic preparation to stipulate such area as a
forest area. Accordingly, following the designation and
treatment as a forest, it is expected that the subsequent
stage of attempts to protect the forest can be conducted
as intended in the purpose of the formulation of the
Forestry Law.
In relation to the authority of designation, both conceptually and
practically, the management of forest is conducted through,
among other things, the perspective and approach to ecosystem
and eco-region, which means that the management of forest
cannot be solely based on the government’s administrative or
territorial region.
Referred to as approach to ecosystem and eco-region is that the
existence and function of forest must be considered to be based
on the character, type and characteristics of nature. It cannot be
separated and selected only based on the government’s
authority which is based only on territorial region. Therefore, in 229
understanding the administration and management of forest, the
interrelationship between one ecosystem and another
ecosystem cannot be separated.
The Forestry Law, Law Number 26 Year 2001 regarding Spatial
Planning and Law Number 32 Year 2009 regarding
Environmental Protection and Management clearly and
expressly state that the management of forest shall prioritize the
approach to eco-region or ecosystem which implies that the
management authority will be performed across government’s
administrative regions.
If the management is fully assigned to the region, particularly in
the framework of designation, it is very likely that, on the basis of
technical aspects of forestry, the management will be difficult to
be performed since the regency/municipality will be bound by
the government’s administrative region.
In addition to that, the functions of forest include conservation,
protection and production. Therefore, in order to organize and
manage forest, natural resources, human resources, technology
and adequate knowledge are required, so that the stipulation of
a forest area can be assessed in a structured, measured and
organized manner. Thus, such forest can function properly.
In substance, in Article 1 sub-article 3, the designation of a
forest must be really conducted for a certain area which can 230
technically be qualified as a forest, so that a particular indication
can be given to make sure that such certain area is included in a
forest area as stipulated in the technical assessment.
Subsequently, the map, erection of boundaries, mapping and
announcement that it is a forest area are made in the
aforementioned designation.
Therefore, in the context of determination of designation, there
is certainly a procedure which is clear, measured, well-
organized, not arbitrary, not unilaterally claimed, not sudden and
immediate, but it is performed through a process and
mechanism regulated in laws.
The designation is conducted based on the technical criteria and
measurement of forestry. The process is conducted on the basis
of aspiration, accommodation, collaboration and participation
with regional governments and other stakeholders to stipulate
such area as a forest area. Therefore, the document of
designation is signed by many parties involving authorized
officials, both at the central and regional levels.
The relationship between Article 1 sub-article 3 and Article 15 is
that Article 1 sub-article 3 is the provision containing the
meaning or definition, explanation, derivation, and the derivative
of Article 1 sub-article 3 which must be reflected in the Articles
subsequently provided for. Thus, Article 15 is a norm being the
follow-up to Article 1 sub-article 3 which is more detailed, more 231
normative, more forceful, having more organized procedure and
having clearer legal implications. Accordingly, Article 15 is
inseparable from Article 1 sub-article 3 and other Articles related
to the designation and stipulation of a forest.
Therefore, Article 15 is the parameter for the designation which
must be conducted through many subsequent stages, namely
arrangement of boundaries, mapping and stipulation. Thus,
designation is indeed a preliminary stage prior to definitive
stipulation by the Minister of Forestry.
The legal implication of designation of a forest which has been
conducted is that the forest area having been confirmed through
designation shall be come a legal product which is binding and
which constitutes the basis for the implementation of various
activities, including, in this case, licensing.
Designation has an implication on forest regulation. The first
one, as a physical form, forest can be approached, felt, seen
with senses and contains various resources. Second,
designation is concerned with the activities which can be
managed on the basis of multiple parties, multiple sectors,
multiple interests and so on with regard to the designated forest
area. Third, designation has an implication on forest as a
resource, either economic resource, social resource or
environmental resource, defense resource and so on, principally
oriented towards forests to support life as permanent forests. 232
Fourth, when there is designation, there will be
acknowledgment, respect, fulfillment of the rights attached to
forests, and it is related to the legal subject related to such
forest. Fifth, designation creates the government’s authority to
regulate, administer, manage, monitor and to bring more closely
the laws related to forestry.
Therefore, in outline, it is clear that Article 1 sub-article 3,
according to the expert, is not inconsistent with the 1945
Constitution since it is not related to the impairment of right and
authority and none of them is related to the impairment suffered
by the Petitioners.
2. Prof. Dr. Ir. Herwint Simbolon, M.Sc.
Article 1 sub-article 3 of the Forestry Law gives the definition,
“Forest area shall be a certain area designated and/or stipulated
by the government to be preserved as a permanent forest.” To
understand the term forest area in this Article, the expert
approaches it from 2 aspects, namely, first, the aspect of
function of a forest area as an ecosystem which supports life
and second, the aspect of history of a forest area in Indonesia;
The aspect of function of a forest area as an ecosystem which
supports life.
- Forest is a unit of ecosystem in the form of area
landscape of land containing biological natural resources 233
dominated by trees in its natural environment which are
inseparable between one and another. It means that
forest is in the form of land and habitat for biodiversity,
whether flora, fauna or microorganisms, with various
roles and interactive systems between one and another.
- Forest as one of ecosystems, plays a role as a
determinant of life supporting system and environment
balance which includes the livelihood of the people or
community.
- The role of forest as a means of support and balance is
not only local, but also global. The central role of forest in
environment is the fundamental reason for the need of
forest area with certain size and which is well-distributed
which must be maintained and managed. Since the role
of forest is vitally important for the state and for the
livelihood of the people at large through its function as a
means of life support and balance, according to the
expert, the Government is obligated to control, protect
and manage forest areas as mandated by the 1945
Constitution, particularly Article 33 paragraph (2) and
paragraph (3).
Aspect of history of forest area in Indonesia.
234
- The history of forest area in Indonesia may be simply
divided into; the first, one was the period during the
colonization by the Dutch East Indies. During this period,
the Government of Dutch East Indies arranged the
boundaries in the groups of forests beyond land with title.
The groups of forest whose boundaries had been
determined were recorded, registered and it was then
known as the register of forest areas. During such period,
the main purpose of land utilization was to plant teak
trees for forestry industry and for the protection of
varieties and ecosystems. During East Indies era, the
regions which had been registered were all regions of
Java and Madura islands as well as several forest groups
in Sumatra and Bali. The second one was the period
during post-independent government. During this period,
the government conducted registration following the
Government of Dutch Indies pursuant to the transitional
provisions of Article 2 of the 1945 Constitution. The third
one was Law Number 5 Year 1967 regarding Principal
Provisions on Forestry (Law Number 5/1967). This Law
was made due to the need for land for development.
Legal certainty of location, size and boundary as well as
the functions of the existing area prevented the
emergence of inter-sector conflicts and the utilization of a
forest area not in accordance with supporting capacity. 235
- Article 7 of Law Number 5/1967 provides that to
guarantee the obtainment of the greatest possible benefit
from forests in a sustainable manner, certain regions
shall be determined as forest areas with adequate size
and proper location. The aforementioned stipulation of a
forest area was conducted by a minister with due
observance of the plan for the utilization of land
determined by the Government. Article a paragraph (3)
states that “The aforementioned stipulation in paragraph
(2) shall be based on a general plan for the confirmation
of a forest area to be subsequently used as the basis for
consideration in determining protected forest, production
forest, natural preservation forest and tourism forest.”
- Based on the aforementioned consideration in Law
Number 5/1967, it was decided that a forest utilization
system was needed, involving all elements related to land
in a region. The agreement reached by the stakeholders
related to the land in this region is known as forest land
use agreement. The map was jointly signed and
submitted to the Governor of Level I Region and the
Director General of Forestry for approval. Afterwards,
following the approval, it was ratified by the Minister of
Agriculture. The aforementioned ratification by the
Minister of Agriculture was subsequently named by a 236
decree and enclosed with the map agreed by the
Governor and the Director General of Forestry.
Furthermore, the map is known as the forest area
designation or the forest land use agreement. Thus, in
this case, the participation and involvement of regional
governments were noticeable.
- Next, the fourth period was the period of provincial
spatial layout pursuant to Law Number 24 Year 1992.
During this period, the Governments of Level I Region
throughout Indonesia were obligated to prepare provincial
spatial layout plans, briefly referred to as RTRWP.
However, if later the RTRWP prepared by the provincial
governments overlapped with the aforementioned Map of
Forest Land Use Agreement made during the previous
period, the problem of area delineation would need to be
settled. Therefore, at that time, the RTRWP prepared by
the regional governments and the Forest Land Use
Agreement (TGHK) made by the Directorate General of
Forestry of the Ministry of Agriculture at that time or which
had been prepared together with regency governments
and the relevant service offices, needed to be
harmonized.
- The last period is the period of the Forestry Law. Since it
was deemed to be no longer inconsistent, Law Number 237
5/1967 was replaced by the Forestry Law. The general
provision of Article 1 sub-article 3 then defines forest area
as a certain area designated and/or stipulated by the
Government to be preserved as a permanent forest.
However, it is also necessary to consider that the
transitional Article 41 of the same Law regulates that
forest areas which were designated and/or stipulated
based on the applicable laws and regulations prior to the
Forestry Law shall be declared to remain applicable
based on the Forestry Law.
- As a derivative of the Forestry Law, Government
Regulation Number 44 Year 2004 regarding Forestry
Planning was then issued. This government regulation
regulates the aspects of the designation, the procedure
and stages of forest area designation a more detailed
manner, namely among other things, in Article 18
paragraph (3) stating that “Partial designation of a certain
area to become a forest area shall meet the following
requirements, namely that it shall be in the form of a
proposal or recommendation of the governor and/or
regent/mayor, and technically it must be able to become
a forest area”. In addition to that, Article 20 paragraph (2),
for instance, states that ”The committee for the intended
arrangement of forest area boundaries shall be formed by
the regent and mayor”. 238
Other important regulations related to forest areas following the
period of the Forestry Law are Government Regulation Number
15 Year 2010 regarding the Implementation of Spatial Layout
(Government Regulation Number 15/2010) as a derivative of
Law Number 26 Year 2007 regarding Spatial Layout;
Whereas several important principles in relation to Government
Regulation Number 15/2010 are Article 30 paragraph (1) and
paragraph (2) as well as Article 31 regarding the conversion of
the allocation and functions of forest areas as well as the
utilization of forest areas to which the provisions of laws and
regulations in forestry sector shall be applicable;
Based on the foregoing descriptions, the expert asserts as
follows:
The role of a forest as a determinant of life support and
environmental balance so important that it is necessary
for a forest area to have a certain size and to be properly
distributed as well as preserved and properly managed;
Since the roles of forest are very important for the state
and livelihood of the people at large through its function
as a determinant of life support and balance, the
Government is obligated to control, protect and manage
forest areas as mandated by the 1945 Constitution;
239
Whereas based on the history, forest areas in Indonesia
have actually been stipulated even since Dutch Indies
Rule, particularly in the provinces located in the islands of
Java and Madura Islands, Bali and with some of them
being located in Sumatra Province far prior to the
issuance of the Forestry Law;
Whereas forest areas located in other provinces outside
Java Island have also been stipulated prior to the
enactment of the Forestry Law. For instance, forest areas
in Central Kalimantan Province were based on the
designation of forest areas in 1982, namely with Letter
Number 759-KPTS-UM-10 Year 1982 dated October 12,
1982. This was is based on Law Number 5/1967 instead
of the Forestry Law;
Article 81 of the Forestry Law stating that forest areas
designated and/or stipulated based on the applicable
laws and regulations prior to Forestry Law shall remain
applicable indicates that the Forestry Law functions more
for the enforcement and regulation of the stipulation of
the management of forest areas which have been
previously stipulated;
Whereas based on Article 17 and Article 18 of
Government Regulation Number 44 Year 2004 regarding
Forest Area Planning, it can be concluded that it is 240
impossible for the minister to designate an area to
become a forest area without a proposal or
recommendation from the regent or governor. Therefore,
according to experts, the Government, in this case is the
Minister of Forestry, designates a forest area
substantially as a declaration of a process starting from
the proposal of the governor, mayor or regent;
Whereas based on the aforementioned Article 20 of
Government Regulation Number 44/2004, it can be
clearly concluded that the greatest authority actually
exists in the designation of a forest area due to the
process from the bottom, namely from the relevant regent
or mayor;
[2.5] Whereas with regard to the Petitioners’ petition, the Related
Party has given its written statement on October 18, 2011 explaining as follows:
1. Authority of The Constitutional Court
Prior to conveying the reasons for the petition to become a Related
Party, the Constitutional Court’s authority and the statements by the
related party as well as by the witnesses and experts presented by the
Related Party shall be first heard at the court hearing of Review of a
Law under the 1945 Constitution of the State of the Republic of
Indonesia for the petition to become a Related Party to be accepted. 241
1.1. Whereas Article 24C paragraph (1) of the 1945 Constitution of
the State of the Republic of Indonesia juncto Article 10 of Law
Number 24 Year 2003 regarding the Constitutional Court states
the Constitutional Court has authority to hear at the first and final
levels, whose decision shall be final, to review of a Law under
the Constitution, to decide upon disputes over state institution’s
authority granted by the Constitution, to decide upon dissolution
of political parties and to decide upon disputes over the results
of general elections [vide Exhibit PT-3 and Exhibit PT-41];
1.2. Whereas the Constitutional Court is examining the petition for
the review of Article 1 sub-article 3 of Law Number 41 Year
1999 regarding Forestry (Forestry Law) filed by Muhammad
Mawardi, Duwel Rawing, H. Zain Alkim, H. Ahmad Dirman,
Akhmad Taufik and Hambit Bintih [Case Number 45/PUU-
IX/2011]. Article 1 sub-article 3 of Law a quo states that: Forest
area shall be a certain area designated and/or stipulated by the
Government to be preserved as a permanent forest;
1.3. Whereas Article 41 paragraph (4) sub-paragraph f of Law
Number 8 Year 2011 regarding Amendment to Law Number 24
Year 2003 regarding the Constitutional Court (the Constitutional
Court Law) juncto Article 13 paragraph (1) sub-paragraph g of
Regulation of the Constitutional Court Number 06/PMK/2005
regarding Guidelines on the Proceedings in Cases of Judicial
Review (PMK Number 6/2005) states that one of the 242
examinations of the court hearing in the Constitutional Court
shall be: Hearing the statement of the Related Party [vide
Exhibit PT-6 and Exhibit PT-7]. Whereas based on the
aforementioned provision, the Related Party may give
statements in the court hearing for judicial review conducted by
the Constitutional Court;
1.4. Whereas Article 14 paragraph (1) of PMK Number 6/2005
provides that the Related Party shall be the party having a direct
or indirect interest in the substance of the petition. Furthermore,
Article 14 paragraph (2) of PMK Number 6/2005 states that the
Related Party having a direct interest shall be the party whose
right and/or authority is affected by the substance of the petition;
1.5. Whereas the provision of Article 42A paragraph (1) of the
Constitutional Court Law states that: Witnesses and experts
may be presented by the disputing parties or related parties or
by the Constitutional Court [vide Exhibit PT-6]. Whereas based
on the aforementioned provision, the Related Party may present
witnesses and experts to give statements in the hearing for
judicial review conducted by the Constitutional Court;
1.6. Whereas Article 14 paragraph (5) of PMK Number 6/2005
provides that the Related Party shall file a petition to the Court
through the Registrar. If it is approved, it shall subsequently be
stipulated by the Stipulation of the Chief Justice of the Court the
copy of which is delivered to the relevant party; 243
1.7. Whereas based on the foregoing, the Court has authority to
accept the petition filed by the related party to be stipulated as
the Related Party and to hear the statements by the Related
Party as well as by the witnesses and experts presented by the
Related Party;
2. Legal Standing of the Related Party
Legal standing of the related party is explained as follows:
2.1. Whereas Article 14 paragraph (1) of PMK Number 6/2005 provides that
the Related Party shall be the party having a direct or indirect interest
in the substance of the petition. Furthermore, Article 14 paragraph (2)
of PMK Number 6/2005 states that the Related Party having a direct
interest shall be the party whose right and/or authority is affected by
the substance of the petition;
2.2. Whereas the Related Parties have filed a petition to become Related
Parties in the case of review of Article 1 sub-article 3 of the Forestry
Law filed by Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case Number
45/PUU-IX/2011].
2.3. Whereas the provision petitioned for review to the Constitutional Court
by the Petitioners in the Case Number 45/PUU-IX/2011 is Article 1 sub-
article 3 of the Forestry Law stating that “Forest area shall be a certain 244
area designated and/or stipulated by the Government to be preserved
as a permanent forest.”
2.4. Whereas Related Party I and Related Party II, namely Ahmad Rizky
and Khotib are Indonesian citizens residing at Kampung Nyuncung,
Malasari Village, Nanggung District, Bogor Regency, West Java
Province, with their village areas having been entirely included by the
Minister of Forestry in the Halimun Salak Mountain National Park Area
(TNGHS) based on Decree of the Minister of Forestry Number
175/KptslI/2003 regarding the Designation of Halimun Mountain
National Park Area and the Change in the Functions of Protection
Forest Area, Permanent Production Forest Area, Limited Production
Forest Area in the Group of Halimun Mountain Forest and Group of
Salak Mountain Forest covering an area of ± 113.357 (one hundred
thirteen thousand three hundred and fifty-seven) Hectares in West
Java Province and Banten Province as Halimun-Salak Mountain
National Park [vide Exhibit PT-4]:
2.5. Whereas the process for the issuance of the aforementioned Decree
Number 175/Kpts-II/2003 was conducted without the involvement and
approval of the Related Parties and all the residents of Malasari
Village.
2.6. Whereas based on the aforementioned Decree of the Minister of
Forestry Number 175/Kpts-II/2003, the Related Parties are directly
related to the substance of the petition filed by the Petitioners in the
review of Article 1 sub-article 3 of the Forestry Law filed by Muhammad 245
Mawardi, Duwel Rawing, H. Zain Alkim, H. Ahmad Dirman, Akhmad
Taufik and Hambit Bintih [Case Number 45/PUU-IX/2011] since the
Related Parties have been directly affected by the designation of a
forest area as intended in Article 1 sub-article 3 of the Forestry Law;
2.7. Whereas Article 1 sub-article 3 of the Forestry Law impairs the
constitutional rights of the Related Parties due to the coming into effect
of the provision of Article 1 sub-article 3 of Law a quo by which the
whole area in the villages of the Related Parties are converted into a
forest area, namely forest area with the status of Halimun-Salak
Mountain National Park (TNGHS);
2.8. Whereas with the designation of the areas in the village of the Related
Party as a forest area, the Related Parties have experienced potential
or constitutional impairments in the following forms:
a. loss of access or restriction on access to the management of
forest resources;
b. loss of the sense of security of the Related Parties in managing
forest resources;
c. loss of title of the Related Parties to puspa, kisampang, huru,
kisirem, pasang and rasamala trees directly planted by the
Related Parties on the land which has now become a forest
area based on Decree of the Minister of Forestry Number
175/Kpts-II/2003;
246
d. potential for being criminalized as the perpetrators of a criminal
act as intended in Article 50 Juncto Article 78 of the Forestry
Law;
2.9. Whereas the designation of a forest area changing the regions in the
villages of the Related Parties into a forest area was based on Decree
of the Minister of Forestry Number 175/Kpts-II/2003 was issued by the
Minister of Forestry without prior information to and approval of the
Related Parties and all of the village residents in the domicile of the
Related Party;
2.10. Whereas if the Court grants the petition for review of Article 1 sub-
article 3 of Law Number 41 Year 1999 regarding Forestry filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H. Ahmad Dirman,
Akhmad Taufik and Hambit Bintih [Case Number 45/PUU-IX/2011], the
potential impairments or constitutional impairments suffered by the
Related Party will continue to occur;
2.11. Whereas based on the foregoing description, there is a causal
relationship (causal verband) between the Related Parties and the
petition for review of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H. Ahmad Dirman,
Akhmad Taufik and Hambit Bintih [Case Number 45/PUU-IX/2011]
which results in potential impairments or constitutional impairments to
by the Related Party.
3. Reasons for Filing a Petition to Become Related Parties 247
The Related Parties have filed a petition to become Related Parties for
the reasons that with the coming into effect of Article 1 sub-article 3 of
the Forestry Law or if the Court grants the petition for review of Article
1 sub-article 3 of the Forestry Law filed by Muhammad Mawardi, Duwel
Rawing, H. Zain Alkim, H. Ahmad Dirman, Akhmad Taufik and Hambit
Bintih [Case Number 45/PUU-IX/2011], constitutional impairments of
the Related Parties will continue to occur since the provision of Article
11 sub-article 3 of the Forestry Law is inconsistent with Article 28D
paragraph (1), Article 28F, Article 28G paragraph (I), Article 28H
paragraph (I), Article 28H paragraph (4), Article 32 paragraph (1) and
Article 33 paragraph (3) of the 1945 Constitution.
3.1. Article 1 sub-article 3 of the Forestry Law is inconsistent with Article
28D paragraph (1) of the 1945 Constitution.
3.1.1. Whereas with the coming into effect of Article 1 sub-article 3
of the Forestry Law or if the Court grants the petition for
review of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011], the recognition, guarantee,
protection and legal certainty of just laws are not given for
the Related Party as guaranteed by Article 28D paragraph
(1) of the 1945 Constitution stating that: Every person shall
have the right to the recognition, the guarantee, the 248
protection and the legal certainty of just laws as well as equal
treatment before the law.
3.1.2. Whereas the process of the issuance of Decree Number
175/Kpts-II/2003 did not involve and was without the
approval of the Related Parties and the residents of Malasari
Village, thus constituting a form of negation by the
government of the recognition of the existence of the Related
Parties and the community affected by the forest area
designation. This also constitutes the neglect with respect to
the guaranteed protection and legal certainty of just laws for
the Related Parties.
3.1.3. Whereas the action by the Government not involving the
Related Parties in the process of forest area designation
based on Article 1 sub-article 3 of the Forestry Law is a form
of negation and violation of Article 28D paragraph (1) of the
1945 Constitution.
3.2. Article 1 sub-article 3 of the Forestry Law is inconsistent with Article
28F of the 1945 Constitution
3.2.1 Whereas the coming into effect of Article 1 sub-article 3 of
the Forestry Law or the Court’s grating the petition for review
of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case 249
Number 45/PUU-IX/2011] has ignored the human rights of
the Related Parties to information as guaranteed by Article
28F of the 1945 Constitution stating that: Every person shall
have the right to communicate and to obtain information to
develop him/herself and his/her social environment, and shall
have the right to seek, obtain, possess, store, process and
convey information by using all available kinds of channels.
3.2.2 Whereas the communities have human rights with respect to
information on all development activities and policies to be
implemented by the Government which will affect their life
and titles.
3.2.3 Whereas the process of the issuance of Decree Number
175/Kpts-II/2003 which conducted without giving balanced
information in advance to the Related Parties on the impacts
which would result from the forest area designation is
inconsistent with Article 28F of the 1945 Constitution.
3.3. Article 1 sub-article 3 of the Forestry Law is inconsistent with Article
28G paragraph (1) of the 1945 Constitution
3.3.1. Whereas the coming into effect of Article 1 sub-article 3 of
the Forestry Law or the Court’s granting the petition for
review of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case 250
Number 45/PUU-IX/2011] has resulted in a feeling of
insecurity and interruption to the control of the property of the
Related Parties which constitutes a human right as
guaranteed by Article 28G paragraph (1) of the 1945
Constitution of the State of the Republic of Indonesia stating
that: Every person shall have the right to protect him/herself,
his/her family, honor, dignity and property under his/her
control, and shall have the right to feel secure and be
protected from the threat of fear to do, or not to do something
which constitutes human right.
3.3.2. Whereas the issuance of Decree of the Minister of Forestry
Number 175/Kpts-II/2003 based on Article 1 sub-article 3 of
Law Number 41 Year 1999 regarding Forestry has resulted
in the loss of property owned by the Related Parties and the
loss of the feeling of security since due to the
aforementioned ministerial decree, the Related Parties have
become afraid of utilizing the land, gardens and fields having
been cultivated so far.
3.3.3. Whereas the unavailability of information on and the impacts
which would result from the aforementioned forest area
designation have resulted in the forfeit of the title of the
Related Parties in form of land and the resources contained
therein constituting the most fundamental human rights
which must be protected by the state. Whereas therefore, the 251
provision of Article 1 sub-article 3 of the Forestry Law is
inconsistent with Article 28G paragraph (1) of the 1945
Constitution;
3.4. Article 1 sub-article 3 of the Forestry Law is inconsistent with Article
28H paragraph (1) of the 1945 Constitution
3.4.1. Whereas the coming into effect of Article 1 sub-article 3 of
the Forestry Law or the Court’s granting the petition for
review of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011] has had an impact on the legal
eviction of the Related Parties and the interruption of the
human right of the Related Parties to live a physically and
mentally prosperous life as well as to have residence as
guaranteed by Article 28H paragraph (1) of the 1945
Constitution stating that: Every person shall have the right to
live a physically and mentally prosperous life, to have
residence, and to obtain a proper and healthy living
environment as well as to obtain health services.
3.4.2. Whereas with the issuance of Decree of the Minister of
Forestry Number 175/Kpts-II/2003 based on Article 1 sub-
article 3 of Law Number 41 Year 1999 regarding Forestry,
the Related Parties have legally lost their residence which 252
should be protected by the state in the form of fulfillment of
economic, social and cultural rights.
3.4.3. Whereas the designation of an area through Decree of the
Minister of Forestry Number 175/Kpts-II/2003 based on
Article 1 sub-article 3 of Law Number 41 Year 1999
regarding Forestry is inconsistent with Article 28H paragraph
(1) of the 1945 Constitution of the State of the Republic of
Indonesia.
3.5. Article 1 sub-article 3 of Law Number 41 Year 1999 regarding Forestry
is inconsistent with Article 28H paragraph (4) of the 1945 Constitution
of the State of the Republic of Indonesia
3.5.1. Whereas with the coming into effect of Article 1 sub-article 3
of Law Number 41 Year 1999 regarding Forestry or if the
Court grants the petition for review of Article 1 sub-article 3
of Law Number 41 Year 1999 regarding Forestry filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011], has interrupted the fulfillment of
human rights of the Related Parties to the property right as
guaranteed by Article 28H paragraph (4) of the 1945
Constitution of the State of the Republic of Indonesia stating
that: Every person shall have the right to possess personal
property rights and such property rights shall not be taken
over arbitrarily by anybody. 253
3.5.2. Whereas a property right is the most fundamental human
right the recognition, protection and fulfillment of which must
be guaranteed by the state.
3.5.3. Whereas a property right shall not be taken over by force,
without compensation or without the approval of the citizens.
In fact, the taking over of land and a region based on the
designation by the government through Decree of the
Minister of Forestry Number 175/Kpts-II/2003 based on
Article 1 sub-article 3 of Law Number 41 Year 1999
regarding Forestry is inconsistent with Article 28H paragraph
(4) of the 1945 Constitution of the State of the Republic of
Indonesia
3.6. Article 1 sub-article 3 of Law Number 41 Year 1999 regarding Forestry
is inconsistent with Article 32 paragraph (1) of the 1945 Constitution of
the State of the Republic of Indonesia.
3.6.1. Whereas the coming into effect of Article 1 sub-article 3 of
Law Number 41 Year 1999 regarding Forestry or the Court’s
granting the petition for review of Article 1 sub-article 3 of
Law Number 41 Year 1999 regarding Forestry filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011] has interrupted the fulfillment of
human rights of the Related Parties to develop culture in the 254
management of natural resources based on traditional
patterns known as local wisdom the existence of which is
guaranteed by Article 32 paragraph (1) of the 1945
Constitution stating that: The state shall promote Indonesian
national culture amidst world civilization by guaranteeing
freedom to the society in maintaining and developing their
cultural values.
3.6.2. Whereas the Indonesian constitution is written constitution
and unwritten constitution. The unwritten constitution
consists of legal norms in Indonesian society (living law). The
norms inherited from generation to generation have become
the culture and identity of the existing community in such
area the existence of which must be respected and
guaranteed by the state.
3.6.3. Whereas the Related Parties and the community in Malasari
Village have traditionally develop cultural values in the
management of natural resources. For instance, careless
cutting down of trees is prohibited, with big trees being left
until they die and become fertilizer, and the asedekah bumi
ceremony is conducted before planting paddy and so on.
3.6.4. Whereas the coming into effect of Article 1 sub-article 3 of
Law a quo or the acceptance of the petition for review of
Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H. 255
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011] has hampered the right of the
Related Parties to develop cultural values in the
management of natural resources due to Decree of the
Minister of Forestry Number 175/Kpts-II/2003 passed without
the approval of the community.
3.6.5. Whereas based on the foregoing, Article 1 sub-article 3 of
the Forestry Law is inconsistent with Article 32 paragraph (1)
of the 1945 Constitution.
3.7. Article 1 sub-article 3 of the Forestry Law is inconsistent with Article 33
paragraph (3) of the 1945 Constitution.
3.7.1. Whereas the coming into effect of Article 1 sub-article 3 of
the Forestry Law or the Court’s granting the petition for
review of Article 1 sub-article 3 of the Forestry Law filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H.
Ahmad Dirman, Akhmad Taufik and Hambit Bintih [Case
Number 45/PUU-IX/2011] is inconsistent with Article 33
paragraph (3) of the 1945 Constitution stating that: Land and
water and the natural resources contained therein shall be
managed by the state and shall be used for the greatest
prosperity of the people.
3.7.2. Whereas the purpose of life as a nation as stated in the
preamble to the 1945 Constitution is that in order to form a 256
Government of the State of Indonesia which shall protect the
entire Indonesian nation and the entire Indonesian
motherland, and in order to promote general welfare, to
develop the intellectual life of the nation, and to partake in
implementing world order based upon independence, eternal
peace and social justice. In line with the foregoing, the
purpose of control by the state over land, water and the
natural resources contained therein, including forest area,
shall be used for the greatest prosperity of the people.
3.7.3. Whereas the decision on the review of Law Number 27 Year
2007 regarding the Management of Coastal Areas and Small
Islands which was pronounced by the Court on June 16,
2011 sets out four parameters to measure the greatest
prosperity of the people as intended in Article 33 paragraph
(3) of the 1945 Constitution, namely: (i) the benefits of the
natural resources for the people, (ii) the level of even
distribution of benefits of the natural resources for the
people, (iii) the level of participation of the people in
determining the benefits of the natural resources; and (iv) the
respect for the rights of the people who have been utilizing
the natural resources from generation to generation;
3.7.4. Whereas based on the aforementioned four parameters, the
action of the Government through Decree of the Minister of
Forestry Number 175/Kpts-II/2003 based on Article 1 sub- 257
article 3 of the Forestry Law being passed without the
participation, consideration of the benefit, level of even
distribution and respect for the existing traditional rights of
the Related Parties passed from generation to generation in
the management of forest, has rendered the Article 1 sub-
article 3 of the Law a quo inconsistent with Article 33
paragraph (3) of the 1945 Constitution.
4. Petitum
Based on the legal reasons and the evidence submitted to the
Constitutional Court, the Related Parties request for the Constitutional
Court to declare the followings:
1. Granting the petition of the Related Parties in its entirety in the
case a quo;
2. Granting the petition of the Petitioners to become Related
Parties and to present witnesses and experts in the examination
of the review of the Law a quo;
3. Rejecting the petition for review of Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry under the 1945
Constitution of the State of the Republic of Indonesia filed by
Muhammad Mawardi, Duwel Rawing, H. Zain Alkim, H. Ahmad
Dirman, Akhmad Taufik and Hambit Bintih [Case Number
45/PUU-IX/2011].
258
4. Declaring that Article 1 sub-article 3 of the Law a quo pursuant
to the 1945 Constitution of the State of the Republic of
Indonesia shall be conditionally constitutional, namely that it
shall be constitutional to the extent of the phrase “designated
and/or stipulated” defined as being designated and/or stipulated
following the obtainment of the approval of the community
affected by the designation and/or stipulation of a forest area.
Therefore, Article 1 sub-article 3 of Law Number 41 Year 1999
regarding Forestry shall be interpreted as follows: “Forest area
shall be a certain area designated and/or stipulated by the
Government to be preserved as a permanent forest following the
obtainment of the approval of the community to be affected by
it.”
5. Declaring that Article 1 sub-article 3 of the Law a quo
conditionally constitutional pursuant to the 1945 Constitution of
the State of the Republic of Indonesia, namely that it shall be
constitutional five years following the pronouncement of decision
of the Court until the government stipulates a forest area with
the approval of the community affected by the designation
and/or stipulation of the forest area.
However, if the Constitutional Court is of a different opinion, it is requested for the decisions to be passed according to what is equitable and good (ex aequo et bono).
259
[2.6] Whereas to prove their arguments, the Related Parties have submitted written evidence, namely Exhibit PT-1 through Exhibit PT-8 as follows:
1. Exhibit PT-1 : Physical evidence was not submitted
2. Exhibit PT-2 : Photocopy of Law Number 41 Year 1999
regarding Forestry (State Gazette of the
Republic of Indonesia Year 1999, Number 167,
Supplement to State Gazette of the Republic of
Indonesia Number 3888);
3. Exhibit PT-3 : Photocopy of the 1945 Constitution of the State
of the Republic of Indonesia;
4. Exhibit PT-4 : Physical evidence was not submitted;
5. Exhibit PT-5 : Photocopy of Minutes of Case Hearing Number
45/PUU-IX/2011 regarding Review of Law
Number 41 Year 1999 regarding Forestry
under the 1945 Constitution of the State of the
Republic of Indonesia. Preliminary Examination
Agenda (I). Wednesday, August 10, 2011.
6. Exhibit PT-6 : Photocopy of Law Number 8 Year 2011
regarding Amendment to Law Number 24 Year
2003 regarding the Constitutional Court (State
Gazette of the Republic of Indonesia Year 260
2011, Number 70, Supplement to State
Gazette of the Republic of Indonesia Number
5226);
7. Exhibit PT-7 : Physical evidence was not submitted;
8. Exhibit PT-8 : Photocopy of Decree of the Minister of Forestry
Number 175/KptslI/2003 regarding the
Designation of Halimun Mountain National Park
Area and the Change in the Functions of
Protection Forest Area, Permanent Production
Forest Area, Limited Production Forest Area in
the Group of Halimun Mountain Forest and
Group of Salak Mountain Forest covering an
area of ± 113.357 (one hundred thirteen
thousand three hundred and fifty-seven)
Hectares in West Java Province and Banten
Province as Halimun-Salak Mountain National
Park.
[2.7] Whereas the parties have submitted their written conclusions which were received by the Registrar’s Office of the Court on November 15,
2011 principally stating that they stick to their opinions;
[2.6] Whereas to shorten the description of this decision, all that happened at the hearing are sufficiently indicated in the hearing minutes, and shall constitute an integral and inseparable part of the decision. 261
3. LEGAL CONSIDERATIONS
[3.1] Whereas the main issue of the petition of the Petitioners is to review the constitutionality of Law Number 41 Year 1999 regarding Forestry as amended by Law Number 19 Year 2004 regarding Stipulation of
Government Regulation in Lieu of Law Number 1 Year 2004 regarding
Amendment to Law Number 41 Year 1999 regarding Forestry to become Law
(State Gazette of the Republic of Indonesia Year 2004, Number 86,
Supplement to State Gazette of the Republic of Indonesia Number 4412, hereinafter referred to as the Forestry Law) under Article 1 paragraph (3),
Article 18 paragraph (2), paragraph (5) and paragraph (6), Article 18A paragraph (2), Article 28D paragraph (1), Article 28G paragraph (1), Article
28H paragraph (1) and paragraph (4) of the 1945 Constitution of the State of the Republic of Indonesia (hereinafter referred to as the 1945 Constitution);
[3.2] Whereas before considering the substance of the petition, the
Constitutional Court (hereinafter referred to as the Court) will first consider the following matters:
a. Authority of the Court to hear the petition a quo; and
b. Legal standing of the Petitioners;
With respect to the aforementioned two matters, the Court is of the following opinion:
Authority of the Court
262
[3.3] Whereas pursuant to Article 24C paragraph (1) of the 1945
Constitution and Article 10 paragraph (1) sub-paragraph a of Law Number 24
Year 2003 regarding the Constitutional Court as amended by Law Number 8
Year 2011 regarding the Amendment to Law Number 24 Year 2003 regarding the Constitutional Court (State Gazette of the Republic of Indonesia Year
2011 Number 70, Supplement to the State Gazette of the Republic of
Indonesia Number 5226), hereinafter referred to as the Constitutional Court
Law juncto Article 29 paragraph (1) sub-paragraph a of Law Number 48 Year
2009 regarding Judicial Power (State Gazette of the Republic of Indonesia
Year 2009 Number 157, Supplement to the State Gazette of the Republic of
Indonesia Number 5076), the Constitutional Court has authority to hear at the first and final levels, whose decision shall be final, to review Laws under the
1945 Constitution;
[3.4] Whereas since the Petitioners have filed a petition for constitutionality review of law in casu Article 1 sub-article 3 of the Forestry
Law under Article 1 paragraph (3), Article 18 paragraph (2), paragraph (5) and paragraph (6), Article 18A paragraph (2), Article 28D paragraph (1), Article
28G paragraph (1), Article 28H paragraph (1) and paragraph (4) of the 1945
Constitution, the Court has authority to hear the petition a quo;
Legal Standing of the Petitioners
[3.5] Whereas based on Article 51 paragraph (1) of the Constitutional
Court Law, the parties that may file a petition for judicial review of a Law under the 1945 Constitution shall be those who consider that their constitutional rights and/or authorities granted by the 1945 Constitution have 263 been impaired by the coming into effect of a Law, namely:
a. individual Indonesian citizens (including groups of people having a
common interest);
b. customary law community units insofar as they are still in existence
and in line with the development of the communities and the principle
of the Unitary State of the Republic of Indonesia as regulated in law;
c. public or private legal entities; or
d. state institutions;
Therefore, the Petitioners in a judicial review of a Law under the 1945
Constitution must first explain and prove:
their standing as Petitioners as intended in Article 51 paragraph (1) of
the Constitutional Court Law;
existence of impairment of constitutional rights and/or authority granted
by the 1945 Constitution due to the coming into effect of the Law
petitioned for review.
[3.6] Whereas following its Decision based on Decision Number
006/PUU-III/2005, dated May 31, 2005, Decision Number 11/PUU-V/2007, dated September 20, 2007, as well as subsequent decisions, the Court is of the opinion that the impairment of the constitutional rights and/or authority intended in Article 51 paragraph (1) of the Court Law must meet five requirements, namely: 264
a. the existence of constitutional rights and/or authority of the Petitioners
granted by the 1945 Constitution;
b. the Petitioners consider that such constitutional rights and/or authority
have been impaired by the coming into effect of the law petitioned for
review;
c. the impairment of such constitutional rights and/or authority must be
specific and actual or at least potential in nature which, pursuant to
logical reasoning, can be assured of occurring;
d. there is a causal relationship (causal verband) between the impairment
of constitutional rights and/or authority of the Petitioners and law
petitioned for review;
e. it is likely that with the granting of the Petitioners' petition, the
impairment of such constitutional rights and/or authority argued by the
Petitioners will not or will argued by the Petitioners will not or will no
longer occur;
[3.7] Whereas based on Decree of the Minister of Home Affairs
Number 131.62-170 Year 2008 regarding Ratification, Dismissal and
Ratification of Appointment of the Regent of Kapuas, Central Kalimantan
Province representing the Regional Government of Kapuas Regency, based on Special Power of Attorney of the Regional People’s Legislative Assembly of Kapuas Regency Number 183.1/35/DPRD.2011 (vide exhibit P-6 and exhibit P-7), Petitioner I is the Regent of Kapuas. Meanwhile, Petitioner II 265 through Petitioner VI are Indonesian citizens directly related to the forest area in Central Kalimantan;
[3.8] Whereas based on the foregoing, according to the Court,
Petitioner I is qualified as a state institution, and Petitioner II through
Petitioner VI are qualified as individual Indonesian citizens as provided for by
Article 51 paragraph (1) of the Constitutional Court Law to file the petition a quo;
[3.9] Whereas in substance, the Petitioners argue that they have constitutional rights as regulated by Article 1 paragraph (3), Article 18 paragraph (2), paragraph (5) and paragraph (6), Article 18A paragraph (2),
Article 28D paragraph (1), Article 28G paragraph (1), Article 28H paragraph
(1) and paragraph (4) of the 1945 Constitution stating that:
Article 1
(3) The State of Indonesia shall constitute a rule of law state.
Article 18
(2) The provincial, regency and municipal government shall regulate and
administer their own governmental affairs in accordance with the
principle of autonomy and duty of assistance.
(5) The regional governments shall exercise autonomy to the broadest
possible extent, with the exception of governmental affairs determined
by law as affairs of the Central Government.
266
(6) The regional governments shall have the right to stipulate regional
regulations and other regulations to implement autonomy and duty of
assistance.
Article 18A
(2) Relations of finance, public services, utilization of natural resources
and other resources between the central government and the regional
governments shall be stipulated and implemented in a just and
harmonious manner based on law.
Article 28D
(1) Every person shall have the right to the recognition, the guarantee, the
protection and the legal certainty of just laws as well as equal treatment
before the law.
Article 28G
(1) Every person shall have the right to protect him/herself, his/her family,
honor, dignity and property under his/her control, and shall have the
right to feel secure and be protected from the threat of fear to do, or not
to do something which constitutes human right.
Article 28H
(1) Every person shall have the right to live a physically and mentally
prosperous life, to have residence, and to obtain a proper and healthy
living environment as well as to obtain health services. 267
(4) Every person shall have the right to possess personal property rights
and such property rights shall not be taken over arbitrarily by anybody.
According to the Petitioners, their constitutional rights have been impaired by the coming into effect of the provision of Article 1 sub-article 3 of the Forestry
Law stating that:
In this law, as referred to as:
3. Forest area as a certain area designated and/or stipulated by the
Government to be preserved as a permanent forest.
According to the Petitioners, the Article a quo, particularly the phrase
“designated and/or stipulated” has harmed the Petitioners for the following reasons:
1. Petitioner I:
a. There is no guarantee of legal certainty in performing his
authority, particularly in relation to the granting of licenses in the
plantation, mining, housing and settlement sectors or other
facilities and infrastructure
b. Inability to exercise autonomy to the broadest possible extent
since the area to be utilized in several sectors, such as
plantation, mining, housing and settlement sectors or other
facilities and infrastructure are categorized as a forest area if the
confirmation of a forest area is not conducted; 268
c. Inability to implement Regional Regulation on the Regency
Spatial Layout Plan (RTRWK) and the Provincial Spatial Layout
Plan (RTRWP) since the entire region is a forest area if the
confirmation of a forest area is not conducted;
d. He can be criminalized for allegedly having entered and
occupied a forest area without permission as well as for granting
other business licenses in the forest area, if the confirmation of a
forest area is not conducted in Kapuas Regency;
e. Property rights and title of the residents of Kapuas Regency to
land and buildings are potentially seized by the state for
allegedly having entered and occupied a forest area if the
confirmation of a forest area is not conducted.
2. Petitioner II through Petitioner V:
a. They can be criminalized for entering and occupying a forest
area without permission from the competent authority;
b. They can be criminalized giving business licenses in the mining
and plantation sectors as well as other in businesses in the
Regencies of Petitioner II, Petitioner III, Petitioner IV and
Petitioner V, which based on the designation, are included in the
forest area;
3. Petitioner VI:
269
a. There is no guarantee of legal certainty in administering property
rights and title since the land the right to which is applied for is
deemed to be located in a forest area;
b. There is no guarantee of property right due to the threat that
such property/land is deemed to be located in a forest area;
c. There is no guarantee of property right since it is potential to be
seized at any time by the state as the land is deemed to be
located in a forest area;
[3.10] Whereas based on the foregoing considerations, according to the Court, the Petitioners directly related to the forestry matter in their area have been harmed by the coming into effect of the Forestry Law, particularly the phrase “designated and or”. Therefore, according to the Court, the
Petitioners have legal standing to file the petition a quo;
[3.11] Whereas since the Court have authority to hear the petition a quo and the Petitioners have legal standing, the Court will subsequently consider the substance of the petition;
Substance of the Petition
Opinion of the Court
[3.12] Whereas having carefully examined the Petitioners’ petition, having read and heard the statements of the Government and the Related
Parties, having read and heard the statements of witnesses and Experts of the Petitioners and the Government, as well as having examined the written 270 evidence submitted by the Petitioners, the Government and the Related
Parties, as set out in the Case Position section, the Court gives its considerations, as follows:
[3.12.1] Whereas Article 1 sub-article 3 of the Forestry Law stating that
“Forest area shall be a certain area designated and or stipulated by the
Government to be preserved as a permanent forest.” According to the
Petitioners, the phrase “designated and or” is inconsistent with the 1945
Constitution;
[3.12.2] Whereas in a rule of law state, state administration officials shall not act at will, but they must act on the basis of law, laws and regulations as well as freies Ermessen (discretionary powers). Mere designation of an area to be made as a forest area without the process and stages involving many stakeholders in a forest area in accordance with law as well as laws and regulations is the performance of an authoritarian government. Designation of a forest area is predictable and non-immediate, and in fact, it must be planned. Therefore, freies Ermessen (discretionary power) is not required. A forest area to be preserved as a permanent forest which controls the livelihood of the people at large should not be determined only through designation.
[3.12.3] Whereas the definition described in Article 1 sub-article 3 is different from the provision of Article 15 of the Forestry Law. Article 1 sub- article 3 of the Law a quo only defines that “Forest area shall be a certain area designated and or stipulated by the Government to be preserved as a permanent forest.”, while Article 15 paragraph (1) of Law a quo expressly 271 provides for the existence of the stages in the process of the stipulation of a forest area. Article 15 paragraph (1) of Law a quo provides that “The stipulation of forest areas as intended in Article 14 shall involve the following processes: a. designation of forest areas; b. arrangement of forest area boundaries; c. mapping of forest areas; and d. stipulation of a forest area.”
Based on Article 15 paragraph (1) of Law a quo, the designation of a forest area is one of the stages in the process of the stipulation of a forest area, meanwhile, “designation” in the provision of Article 1 sub-article 3 of Law a quo may be equated with the stipulation of a forest area which does not require the stages as provided for in Article 15 paragraph (1) of the Law a quo;
[3.12.4] Whereas according to the Court, the stages in the process of the stipulation of a forest area as provided for in Article 15 paragraph (1) of the
Forestry Law above are in line with the principle of a rule of law state, namely among other things, that the government or state administration officials shall comply with the applicable laws and regulations.
Furthermore, paragraph (2) of the aforementioned article provides that
“The forest areas as referred to in paragraph (1) shall be confirmed by taking account of the regional spatial layout plan.” According to the Court, the aforementioned provision takes account of, among other things, the possibility of the individual rights or communal rights in the forest area to be stipulated as a forest area. Thus, if such condition occurs, the arrangement of boundaries and mapping of a forest area must remove it from the forest area 272 in order to prevent loss to other parties, for instance the community having interests in the area to be stipulated as a forest area;
[3.13] Whereas since the stipulation of a forest area is the last process of a series of process of the confirmation of a forest area, the phrase
“designated and or” in Article 1 sub-article 3 of the Forestry Law is inconsistent with the principle of a rule of law state as stated in Article 1 paragraph (3) of the 1945 Constitution. In addition to that, the phrase
“designated and or” is unsynchronized with Article 15 of Law a quo.
Accordingly, such unsynchronized characteristic creates legal uncertainty of just laws as intended in Article 28D paragraph (1) of the 1945 Constitution which provides that “Every person shall have the right to the recognition, the guarantee, the protection and the legal certainty of just laws as well as equal treatment before the law”.
[3.14] Whereas with respect to the transitional provisions of the
Forestry Law, particularly Article 81 stating that, “Forest areas designated and or stipulated based on the applicable laws and regulations prior to the coming into effect of this law shall be declared to remain applicable under this law’’, according to the Court, even though Article 1 sub-article 3 and Article 81 of the Law a quo uses the phrase “designated and or stipulated”, the coming into effect of the phrase “designated and or stipulated” in Article 81 of the
Law a quo shall remain valid and binding;
[3.15] Whereas based on the foregoing considerations, according to the Court, the Petitioners’ petition has legal grounds;
273
4. CONCLUSION
Based on the assessment of the facts and laws as described above, the Court concludes that:
[4.1] The Court has authority to hear the petition a quo;
[4.2] The Petitioners have legal standing to file the petition a quo;
[4.3] The Petitioners’ petition has legal grounds.
Based on the 1945 Constitution of the State of the Republic of
Indonesia and in view of Law Number 24 Year 2003 regarding the
Constitutional Court (State Gazette of the Republic of Indonesia Year 2003
Number 98, Supplement to the State Gazette of the Republic of Indonesia
Number 4316) as amended by Law Number 8 Year 2011 regarding the
Amendment to Law Number 24 Year 2003 regarding the Constitutional Court
(State Gazette of the Republic of Indonesia Year 2011 Number 70,
Supplement to the State Gazette of the Republic of Indonesia Number 5226) as well as Law Number 48 Year 2009 regarding Judicial Power (State Gazette of the Republic of Indonesia Year 2009 Number 157, Supplement to the State
Gazette of the Republic of Indonesia Number 5076).
5. DECISIONS
Passing the decision
Declaring:
To grant the Petitioners’ petition in its entirety; 274
The phrase “designated and or”, in Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry as amended by Law Number
19 Year 2004 regarding the Stipulation of Government Regulation in
Lieu of Law Number 1 Year 2004 regarding Amendment to Law
Number 41 Year 1999 regarding Forestry to Become Law (State
Gazette of the Republic of Indonesia Year 2004 Number 86,
Supplement to the State Gazette Number of the Republic of Indonesia
4412) inconsistent with the 1945 Constitution of the State of the
Republic of Indonesia;
That the phrase “designated and or”, in Article 1 sub-article 3 of Law
Number 41 Year 1999 regarding Forestry as amended by Law Number
19 Year 2004 regarding the Stipulation of Government Regulation in
Lieu of Law Number 1 Year 2004 regarding Amendment to Law
Number 41 Year 1999 regarding Forestry to Become Law (State
Gazette of the Republic of Indonesia Year 2004 Number 86,
Supplement to the State Gazette Number of the Republic of Indonesia
4412) shall have no binding legal effect;
To order the inclusion of this decision in the Official Gazette of the
Republic of Indonesia properly.
Hence this decision was made in the Consultative Meeting of
Justices attended by nine Constitutional Court Justices, namely Moh.
Mahfud MD., as Chairperson and concurrent Member, Achmad Sodiki,
Muhammad Alim, Harjono, Anwar Usman, Ahmad Fadlil Sumadi, Hamdan 275
Zoelva, Maria Farida Indrati and M. Akil Mochtar, respectively as Members, on
Thursday, February the ninth year two thousand and twelve and was pronounced in the Plenary Session of the Constitutional Court open for the public on Tuesday, February the twenty-first year two thousand and twelve, by eight Constitutional Court Justices namely Achmad Sodiki, as
Chairperson and concurrent Member, Muhammad Alim, Harjono, Anwar
Usman, Ahmad Fadlil Sumadi, Hamdan Zoelva, Maria Farida Indrati and M.
Akil Mochtar, respectively as Members, assisted by Saiful Anwar as Substitute
Registrar, in the presence of the Petitioners and/or their attorneys, the People’s
Legislative Assembly or its representative and the Government or its representative as well as the Related Parties;
CHAIRPERSON,
Sgd.
Achmad Sodiki
JUSTICES,
Sgd. Sgd.
Muhammad Alim Harjono
Sgd. Sgd.
Anwar Usman Ahmad Fadlil Sumadi
Sgd. Sgd.
Hamdan Zoelva M. Akil Mochtar
Sgd.
Maria Farida Indrati 276
SUBSTITUTE REGISTRAR
Sgd.
Saiful Anwar