Court legalizes mining in protected forests

Muninggar Sri Saraswati The Jakarta Post/Jakarta

The Constitutional Court has cleared the way for 13 mining companies to resume mining in protected forests, citing the government's need to improve the investment climate in the country.

Departing from common practice, the nine-strong panel of judges voted unanimously on Thursday for the enactment of Law No. 19/2004 to revise Law No. 41/1999 on forestry that banned open pit mining in protected forests, saying it did not violate the Constitution.

A Constitutional Court verdict cannot be contested.

The ruling put an end to efforts by a group of non- governmental organizations and environmentalists to demand the revocation of the 2004 law, which they said was passed for the benefit of the 13 companies. The new forestry law took effect after the House approved the government regulation in lieu of law which justified the operation of the mining companies.

"We can understand the government's argument that the regulation should be issued otherwise it would face difficulties in developing a favorable investment climate," Constitutional Court president Jimly Asshidiqie said while reading the verdict.

The judges rejected the plaintiffs' argument about the issuance of the government regulation in lieu of law, which they said did not meet the criteria for an emergency.

"The President has the discretion to define emergency conditions for the issuance a government regulation in lieu of law, and the House will decide whether it can be passed into law or not," Jimly said.

A government regulation in lieu of law is as powerful as a law, although its enactment does not require the House's approval due to its emergency nature. The government must notify the House of the regulation, and the lawmakers must respond within one month.

The government claimed that the regulation was issued to prevent legal repercussions if Indonesia failed to honor mining contracts. It said the 13 mining firms were allowed to resume their operations in protected forests because they had proven reserves and were economically viable.

Responding to the verdict, Siti Maemunah, the coordinator for the Network for Mining Advocacy (Jatam), one of the plaintiffs, said the ruling proved the government's failure to protect the people.

"The government has failed to prevent corporations from controlling the environment at the expense of the people," Siti said.

She expressed the fear that the court ruling would lead to deforestation and other environmental destruction causing the Indonesian people to suffer.