DECISION Number 45/PUU-IX/2011 FOR THE SAKE OF JUSTICE ... · DECISION Number 45/PUU-IX/2011 FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD THE CONSTITUTIONAL COURT OF THE REPUBLIC

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

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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

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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

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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-

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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”;

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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

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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

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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

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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;

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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;

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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”


“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.”


“The regional governments shall exercise autonomy to

the broadest possible extent, with the exception of

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governmental affairs determined by law as affairs of the

Central Government.”


“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

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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)

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“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

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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

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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:

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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

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(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.

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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

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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

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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

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No. Function of Area Area (ha)

4. Convertible Production Forest

(HPK)

170,917

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


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

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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

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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

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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:

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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

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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

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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

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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

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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

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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



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


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



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



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


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


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


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


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


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


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


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


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


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


stated that Forest area shall be a certain area


be preserved as a permanent forest;


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


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,


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;


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

No. Coordinate

Based on Map of

Decree of the Minister

of Forestry Number

759 Year 1982

Real Conditions

100

No. Coordinate

Based on Map of


of Forestry Number

759 Year 1982

Real Conditions

1. Latitude

03000’43.4” South

Longitude

114023’16.6” East

Convertible Production

Forest

Kuala Kapuas District

Court

2. Latitude

03000’45.7” South

Longitude

114023’14.6” East


Forest

Kapuas Regional

People’s Legislative

Assembly (DPRD)

Office

3. Latitude

03001’04.1” South

Longitude

114023’05.0” East


Forest

Kuala Kapuas District

Prosecutor’s Office

4. Latitude

03001’09.3” South

Longitude

114023’20.2” East


Forest

Darul Muttaqin

Mosque

5. Latitude

03001’06.6” South

Longitude

114023’13.9” East


Forest

Sinta Church

6. Latitude Convertible Production Kapuas District Police

101

No. Coordinate

Based on Map of


of Forestry Number

759 Year 1982

Real Conditions

03001’29.2” South

Longitude

114023’23.2” East

Forest

7. Latitude

02057’56.2” South

Longitude

114025’00.7” East


Forest

Kapuas Regent’s

Office

8. Latitude

03000’47.2” South

Longitude

114023’16.3” East


Forest

Land Office of Kapuas

Regency

9. Latitude

02059’56.3” South

Longitude

114023’37.1” East


Forest

Pemuda Permai

Housing

10. Latitude

02059’11.0” South

Longitude

114024’50.4” East


Forest

Pulau Petak Rice

Fields

11. Latitude

03001’17.1” South


Forest

Danaumare Shopping

Center

102

No. Coordinate

Based on Map of


of Forestry Number

759 Year 1982

Real Conditions

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


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

Produksi Terbatas/HPT)

823,904

3. Production Forest (Hutan Produksi/HP) 499,684

4. Convertible Production Forest (Hutan

Produksi yang dapat dikonversi/HPK)

170,917

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


- Production (Ku/Ha) 11.53 11.31 11.37

- Production (Ton) 482 518 331

4. Peanut:



- Production (Ku/Ha) 11.25 11.49 11.37


5. Mung Bean:

108

No. Type of Commodity

Year

2008 2009 2010

Realization Realization Realization

1 2 3 4 5



- Production (Ku/Ha) 8.38 8.46 8.20


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:



- 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

(Tons)

Value (Rp) Production

(Tons)

Value (Rp)

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

No. Type of Plant and

Production

Year

2008 2009 2010

1. Rubber Plant:

a. Total area (Ha)

b. Total production (Ton):

1.Degree of Dry Rubber

2.Slab

28,171

16,504

55,345

28,681

16,519

55,027

30,261

16,310

55,027

2. Coconut Plant:

a. Total area (Ha)

b. Total production (Ton)

10,519

10,321

10,659

10,342

10,659

10,864

3. Coffee Plant:

a. Total area (Ha)

b. Total production (Ton)

601

51

652

51

652

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

No. Company Name

Total

Area

(Ha)

Investment

Amount

(Rp/Billion)

Realization

(Rp/Billion)

District

Location Notes

1 2 3 4 5 6 7

1. PT. Rezeki Alam

Semesta Raya 20,000 450,000,000,000 154,329,000,000

Matangai

District

in

operation

2. PT. Graha Inti Jaya 12,100 298,000,000,000 123,804,090,013 Matangai

District

in

operation

3. PT. Fajar Mas

Indah Plantations 12,000 365,000,000,000 21,082,000,000

Kapuas

Barat District

in

operation

4. PT. Sepalar Yasa

Kartika 14,000 690,000,000,000 25,200,000,000

Selat and

Basarang

Districts

in

operation

5. PT. Dian Agro

Mandiri 20,310 250,000,000,000 22,000,000,000

Matangai

and Kapuas

in

operation

113

No. Company Name

Total

Area

(Ha)

Investment

Amount

(Rp/Billion)

Realization

(Rp/Billion)

District

Location Notes

1 2 3 4 5 6 7

Murung

Districts

6. PT. Globalindo

Agung Lestari 24,000 369,000,000,000 200,500,000,000

Matangai

and Kapuas

Murung

Districts

in

operation

7. PT. Kahayan Agro

Lestari 20,000 574,201,000,000 2,500,000,000

Timpah

District

in

operation

8. PT. Hijau Pertiwi

Indah Plantation 17,200 350,911,000,000 100,306,046,869

Kapuas

Kuala

District

in

operation

9. PT. Sakti Mait Jaya

Langit 10,000 867,160,000,000 20,764,500,000

Matangai

and Timpah

Districts

in

operation

10. PT. Kalimantan Ria

Sejahtera 17,000 361,730,000,000 142,764,500,000

Kapuas

Tengah

District

in

operation

11. PT. Wana Catur

Jaya Utama 12,500 450,000,000,000 90,000,000,000

Kapuas

Tengah

District

in

operation

12. PT. Kapuas Maju 17,500 365,000,000,000 232,635,909,352 Kapuas in

114

No. Company Name

Total

Area

(Ha)

Investment

Amount

(Rp/Billion)

Realization

(Rp/Billion)

District

Location Notes

1 2 3 4 5 6 7

Jaya Tengah

District

operation

13. PT. Agro Subur

Permai 16,500 690,000,000,000 19,813,478,745

Kapuas

Tengah

District

in

operation

14. PT. Dwi Warna

Karya 12,500 369,000,000,000 214,397,569,477

Kapuas Hulu

District Area

in

operation

15. PT. Susanti Permai 15,000 442,800,000,000 139,855,036,362 Kapuas Hulu

District Area

in

operation

16. PT. Fliet Green

Power 15,831 339,033,638,181 -

Kapuas

Tengah and

Timpah

Districts

Area

not

operated

yet

17. PT. Bawan Indah

Perkasa 17,000 350,360,000,000 -

Kapuas

Tengah

District

not

operated

yet

18. PT. Kalimantan

Agung Lestari 12,500 304,341,766,000 -

Kapuas

Tengah and

Timpah

Districts

not

operated

yet

115

No. Company Name

Total

Area

(Ha)

Investment

Amount

(Rp/Billion)

Realization

(Rp/Billion)

District

Location Notes

1 2 3 4 5 6 7

Area

19. PT. Bumi Sampana

Plantation 16,500 433,584,000,000 -

Kapuas

Tengah

District Area

not

operated

yet

20. Pt. Eko Lestari 7,000 339,033,638,181 - Kapuas Hulu

District Area

not

operated

yet

21. PT. Hamparan

Mitra Abadi 14,000 350,976,228,000 -

Kapuas Hulu

District

licensing

process

22. PT. Makmur

Bersama Asia 15,000 418,236,000,000 -

Kapuas

Tengah and

Timpah

Districts

not

operated

yet

23. PT. Bina Sarana

Sawit 20,000 441,336,000,000 -

Kapuas

Tengah and

Timpah

Districts

not

operated

yet

24. PT. Mitra Sawit

Sejahtera 6,500 166,219,728,000 -

Kapuas

Tengah and

Timpah

Districts

not

operated

yet

116

No. Company Name

Total

Area

(Ha)

Investment

Amount

(Rp/Billion)

Realization

(Rp/Billion)

District

Location Notes

1 2 3 4 5 6 7

25. PT. Mitra Sawit

Sejahtera 13,500 313,900,000,000 -

Kapuas

Tengah and

Timpah

Districts

not

operated

yet

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

No. Mineral Resources Hypothetic

(Ton)

Presumed

(Ton)

Estimated

(Ton)

Measured

(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

Sand

409,968,005.00 0.00 342,108,750.00 67,859,255.00 0.00

7 Zircon

Sand

23,297,644.41 81,231.16 11,052,682.00 5,627,950.25 6,535,781.00

8 River

Sand

795,000.00 0.00 0.00 0.00 795,000.00

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


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”;


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

No. District Classification of House Number of

Houses

1 2 3 4

1 Kapuas Barat

District

Classification of houses includes:

1. Residences = 4,073 units

2. Combination = 197 units

3. Non-Residences = 151 units

4,421

2 Pulau Petak

District


1. Residences = 4,656 units


3. Non-Residences = 96 units

5,055

3 Kapuas Kuala

District


1. Residential = 8,536 units


3. Non-Residential = 146 units

9,201

4 Kapuas Hulu

District




3. Non- Residential = 82 units

3,000

5 Selat District Classification of houses includes:


2. Combination = 1,585 units

3. Non- Residential = 1,562 units

26,025

128


Houses

1 2 3 4

6 Kapuas Hilir

District





3,255

7 Kapuas Timur

District





6,290

8 Basarang

District





4,546

9 Mantangai

District





8,073

10 Kapuas Tengah

District





5,103

11 Kapuas Murung

District


1. Residential = 9,838 units 10,512

129


Houses

1 2 3 4



12 Timpah District Classification of houses includes:




2,388

Total Number of

Houses


2. Combination = 5,436 units

3. Non- Residential = 2,887 units

87,863

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;


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


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


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


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;


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




(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


Name of Drs. Duwel Rawing


Name of Drs. H. Zain Alkim


Name of H. Ahmad Dirman


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


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


of Forestry Number S.95/Menhut-IV/2010

February 25, 2010 concerning Report on

the Non-Procedural Use of Forest Area


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


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


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


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

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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


Forestry Number S.255/Menhut-II/07 dated

April 13, 2007 concerning Utilization of

forest areas


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

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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

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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

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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:

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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

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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,

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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;

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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

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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

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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:




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

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(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

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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,

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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

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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


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.


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.


Year 1999 may cause the taking over of private property

rights arbitrarily because private property rights will

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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

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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

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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

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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;

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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:




d. Stipulation of forest areas

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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

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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.

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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

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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.

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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;

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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.”

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- 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

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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

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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

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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

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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;

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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.

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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

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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

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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.

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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

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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

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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

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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,

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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

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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

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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.

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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




(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;


d. state institutions;

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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

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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

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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

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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

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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;

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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.

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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

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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-

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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.

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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

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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:

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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;

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- 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;

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- 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;

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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

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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

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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

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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.

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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

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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

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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

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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


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

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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.


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



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.


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




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;


28H paragraph (1) of the 1945 Constitution






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



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.


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



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.


Law a quo or the acceptance of the petition for review of

Article 1 sub-article 3 of the Forestry Law filed by


255


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







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


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;


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


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.

Muhammad Alim

Sgd.

Harjono

Sgd.

Anwar Usman

Sgd.

Ahmad Fadlil Sumadi

Sgd.

Hamdan Zoelva

Sgd.

M. Akil Mochtar

Sgd.

Maria Farida Indrati

276

SUBSTITUTE REGISTRAR

Sgd.

Saiful Anwar

Documents

DECISION Number 45/PUU-IX/2011 FOR THE SAKE OF JUSTICE ... · DECISION Number 45/PUU-IX/2011 FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD THE CONSTITUTIONAL COURT OF THE REPUBLIC