summarized by Rahma Mary

Applicant:

The Government of Kapuas Regency, represented by: Ir. H. Muhammad Mawardi, MM. (Regent of Kapuas), Drs. Hambit Bintih, MM (Individual), Drs. Duwel Rawing (Individual), Drs. H. Zain Alkim (Individual), H. Ahmad Dirman (Individual), Drs. Akhmad TAufik, M.Pd. (Individual).

Reasons for the Application:

1. The Constitutional Court is requested to test Article 1 number 3 of Law No. 41 of 1999 concerning Forestry as amended by Law No. 19 of 2004 concerning the Determination of Government Regulation Substitute Law Number 1 of 2004 concerning Amendments to Law No. 41 of 2009 concerning Forestry Into Law.
2. The constitutional rights and/or authorities of Applicant I as well as the community of Kapuas Regency have been harmed by the provision of Article 1 number 3 of the Forestry Law, which states: “Forest area is a certain area designated and/or determined by the Government to be maintained as a permanent forest.”
3. The constitutional rights and/or authorities of Applicant I as well as the community of Kapuas Regency are harmed because Kapuas has been an autonomous region since 1953.
4. On October 12, 1982, Minister of Agriculture issued Decree No. 759/Kpts/Um/10/1982 concerning the Designation of Forest Areas in the Province of Central Kalimantan covering 15,300,000 hectares, which included forest areas in Kapuas Regency.
5. The Applicant concludes from the understanding of Article 1 number 3 that even though a forest area has not been demarcated and determined by the government, its status is a forest area.
6. The Applicant interprets that the phrase “designated and/or” in Article 1 number 3 of the Forestry Law provides an opportunity for the government to interpret designation as the establishment of a forest area, whereas based on Article 14 and 15 of the Forestry Law, designation and establishment are different matters.
7. On July 10, 2003, the Minister of Forestry issued Circular Letter No. 404/Menhut-II/03 which stated that “For each province that does not have a Minister of Forestry Decree on the re-designation of forest areas based on the results of harmonization between the Provincial Spatial Plan (RTRWP) and the Forest Land Use Plan (TGHK), then the forest area in that province refers to and is based on the Minister of Forestry’s Decree on the Agreement Forest Land Use Plan (TGHK). However, because Central Kalimantan does not have a harmonization between RTRWP and TGHK, the TGHK used refers to Ministerial Decree No. 759 of 1982.
8. As a result of the government’s interpretation of Article 1 number 3, the entire territory of Kapuas Regency is included in the forest area, thus Applicant I cannot exercise its autonomy authority to the fullest extent, especially in granting new business permits and extending existing permits related to plantation, mining, animal husbandry, and so on.
9. Furthermore, Applicant I is also facing criminalization threats from law enforcement officials and the Ministry of Forestry for granting new permits or extensions of permits as they are considered to be within forest areas.
10. Article 1 number 3 causes the constitutional rights of the people of Kapuas to be harmed or potentially lost.
11. Based on Ministerial Decree No. 759 of 1982, the entire area of Kapuas is designated as a forest area, therefore Applicant I and 329,440 residents of Kapuas can be prosecuted under Article 50 paragraph (3) letter a and b jo Article 78 paragraph (2) of the Forestry Law.{{PLACE