Indonesian Government Decree Doesn't Alter Ban On Open-cut Mining In Protected ForestsPublished by MAC on 2004-03-15
Indonesian Government Decree Doesn't Alter Ban on Open-Cut Mining in Protected Forests
15 March 2004
Jakarta On 11 March 2004, the Megawati government issued a Government Decree to Amend a Law (no.1 2004) to change the Forestry Law (1999). The decree added a new provision to the Forestry Law, as follows:
"83(a) All permits or contracts related to mining in forest areas which were in existence before Forestry Law (no.1 1999) are confirmed to remain valid until the intended end of the permit or contract."
This is very ironic remembering that not long ago, President Megawati issued a call to give some breathing space for our forests. In fact, this government decree emphasises that the Megawati government cannot produce rational policy and has no commitment to the critical condition of forests in Indonesia, which are on the verge of destruction. Indonesia experiences an annual deforestation rate of 3.8 million hectares which result in a loss of 30 trillion Rupiah per year.
Even more ironic is that this Government Decree to Amend a Law is a reflection of the weakness of the Megawati government to withstand pressure from investors and foreign governments such as Australia which push for mining in protected forests.
The Government Decree to Amend a Law is invalid and improper for the following reasons:
1. The decree is procedurally flawed The Megawati Government has violated Constitution requirements, namely clause 22 of the Indonesian Constitution (UU Dasar 1945), and the Procedural Act on the Issuance of Laws of the Indonesian People's Consultative Assembly (Tap MPR no.3 2000) which provides that: "Only in a pressing matter of utmost urgency, the President has the right to propose a Government Decree to Amend a Law, and such a decree must gain the approval of the House of Representatives in assembly". In the process of proposing Government Decree to Amend a Law (No.1 2004) the Megawati government has not given clear reasons and has not provided prior explaination of reasons to the public. Apart from this, the need for approval of the House of Representatives has been shoved aside, indeed the whole process of discussion of this issue which was already underway in the House of Representatives has been simply bypassed.
2. The content of the Government Decree is flawed The Government Decree to Amend a Law contradicts the emergency brought about by the critical condition of Indonesian forests, and furthermore contradicts the principles of sustainable development. The Government Decree directly purports to provide a justification of the operations of 150 mining companies in protected forests.
Apart from this, the Government Decree indicates that the government does not undesrtand the substance of the issue under debate, which is the ban on open-cut mining in protected forests, contained in clause 38 of the Forestry Law 1999. The Government Decree does not change the current situation, because according to Procedural Act on the Issuance of Laws of the Indonesian People's Consultative Assembly (Tap MPR no.3 2000), in accordance to standard legal practice, lower level legal instruments cannot contradict higher level laws. Therefore, clause 38 of the Forestry Law 1999 which bans open-cut mining in protected forests, still applies. Besides this, the Government Decree does not explicitly state that open-cut mining in prootected forests is to be permitted, therefore mining companies which operate open-cut mines in protected forests are still carrying out an illegal act. Rather than providing the legal certainty hoped for by investors, this Government Decree has further highlighted the inconsistencies of the government in implementing the legal system.
In a wider legal perspective, this Government Decree is a reflection of the profit-dominated ideology of the current Government, which has the following characteristics:
1. chasing taxes and income from mining
2. succumbing to pressure from mining investors
This ideology is evidenced in environmental destruction and worsening imbalance in fairness of economic distribution within the community. From the perspective of investors, there is still an absence of legal certainty because of the unconstitutionality of the Government Decree.
Considering the points above, we therefore:
1. Members of the House of Representatives to not give approval to Government Decree to Amend a Law (No.1 2004) because the Decree is flawed in both process and substance.
2. The Megawati Government to withdraw Government Decree to Amend a Law (No.1 2004) for the above reasons and because it is misleading and has the potential to cause further loss and destruction both environmentally and economically.
3. Law enforcement authorities immediately take legal action against companies which have proceeded with open-cut mining in protected forests. [ends]
Mubariq Ahmad, Exectutive Director WWF Indonesia (Telp: +62 21 576 1070)
Ismid Hadad, Exectutive Director, Indonesian Biodiversity Foundation [Kehati] (Telp: +62 21 520 8031)
Longgena Ginting, Exectutive Director, Indonesian Forum for the Environment [Friends of the Earth Indonesia / WALHI] (Telp: +62 21 794 1672 or +62 811 927 038)
Siti Maimunah, National Coordinator Indonesian Mining Advocacy Network [JATAM] (Telp: +62 811 920 462)
Rhino Subagyo/Dede Nurdin , Indonesian Center for Environmental Law (Telp: +62 815 815 4472)