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