In decision No. 32/PII-VIII/2010, the Constitutional Court of the Republic of Indonesia heard a case regarding the judicial review of Law No. 4/2009 on Mineral and Coal Mining petitioned by the Indonesian Environmental Watch (WALHI), the Indonesian Legal Aid and Human Rights Association (PBHI) and 19 other petitioners. There were several material review requests submitted – namely, Article 6 paragraph (1) letter juncto, Article 9 paragraph (2) juncto, Article 10 letter b, and Article 162, Article 136 paragraph (2) of Law Number 4 Year 2009 on Mineral and Coal Mining against the 1945 Constitution. The petition for judicial review questioned the constitutionality of the determination of the mining area, which involved the Regional Government, Central Government, and the House of Representatives of the Republic of Indonesia without involving the community. The community can only be subject to criminal sanctions because they are considered to have obstructed or disrupted the implementation of mining business activities that have obtained a mining permit.
The Court stated in its consideration that the constitutional issue to be answered by it was whether the control by the State over the earth, water and natural resources contained therein, which is used for the greatest prosperity of the people through the government’s authority to determine the mining area after coordinating with the local government and consulting with the House of Representatives, is contrary to the constitutional rights of citizens to obtain guarantees, protection, and legal certainty to reside, own property, and obtain a good and healthy environment. In addition, the Court also referred to Constitutional Court Decision No. 21-22/PUU-V/2007 on the review of Law No. 25/2007 on Capital Investment, dated March 25, 2008, which stated that
“… in Article 33 of the 1945 Constitution there are economic and social rights of citizens as interests protected by the Constitution through the involvement or role of the State. In other words, Article 33 of the 1945 Constitution is a provision regulating the involvement or active role of the State to take action in the context of respect, protection, and fulfillment of citizens’ economic and social rights. Therefore, to carry out the mandate of the 1945 Constitution in determining the mining area, the government cannot act arbitrarily, so it must first coordinate with the local government, consult with the People’s Representatives Council (Parliament), and take into account the opinions of the community.”
The implementation of the obligation to include public opinion must be concretely proven and facilitated by the government. This concrete evidence can prevent conflicts between mining business actors, the community and the state, c.q., the government, in the mining area. In addition, further mechanisms regarding the obligation to include community opinion, who is included in the community group whose territory or land will be included in the mining area, and the community that will be affected are fully under the authority of the government to regulate in accordance with applicable laws and regulations by referring to the legal considerations stated by the Court in Case Decision Number 25/PUU-VIII/2010 dated June 4, 2012, Case Decision Number 30/PUU-VIII/2010 dated June 4, 2012, and the decision in this case, while respecting and upholding human rights.
Another case was submitted by the Alliance of Indigenous Peoples (AMAN), the Indigenous People of Kenegerian Kuntu, Kampar, Riau, the Indigenous People of Masyarakat Hukum Adat Kasepuhan Cisitu, Lebak, Banten through case No. 35/PUU-X/2012. This case challenged the provisions of: Article 1 number 6; Article 4 paragraph (3); Article 5 paragraph (1), paragraph (2), paragraph (4); and Article 67 paragraph (1), paragraph (2), paragraph (3) of Law No. 41/1999 on Forestry (hereinafter referred to as the Forestry Law), which essentially questioned the constitutionality of the existence of customary forests and the conditional recognition of the existence of indigenous peoples.
The applicant argued that the enactment of provisions in the Forestry Law that place customary forests as part of state forests and the existence of provisions regarding conditional recognition of the existence of indigenous peoples have caused constitutional losses to the applicant in the form of loss of access to promote, assist and struggle for the rights of indigenous peoples, along with the loss of customary rights to forests, access to the use and management of customary forest areas, and criminalization for entering forest areas.
The phrase “pay attention” in Article 4 paragraph (3) of the Forestry Law must be interpreted more firmly, namely to suggest that the State recognizes and respects the unity of customary law communities and their traditional rights, in line with the intent of Article 18B paragraph (2) of the 1945 Constitution. As for the terms of recognition and respect for customary law communities, the phrase “as long as in reality they still exist and are recognized for their existence” must be interpreted to suggest “as long as they are still alive and in accordance with the development of society,” because customary law is generally unwritten law and is a living law, meaning that it is a law that is accepted, observed and obeyed by the community concerned because it fulfils a sense of justice for them and is in accordance with and recognized by the Constitution.
With regard to the condition that as long as in reality it still exists and its existence is recognized, in reality the status and function of forests in customary law communities depend on the status of the existence of customary law communities. Thus, the possibilities are: (1) the reality still exists, but its existence is not recognized; or (2) the reality does not exist, but its existence is recognized. If the reality is that it still exists but is not recognized, then this can cause harm to the community concerned. For example, their customary land/forest may be used for other purposes without their permission through evictions, thus indigenous peoples can no longer benefit from the customary forests they control.
From the two decisions of the Constitutional Court of the Republic of Indonesia reviewed in this paper, the issue of community involvement, especially indigenous peoples, in government decision-making involves a central issue, namely the recognition of subjects in the participation process, which means the existence of indigenous peoples.
In Decision No. 32/PUU-VIII/2010, the Court emphasized that public opinion must be interpreted as genuine involvement (as it is). The mandate of “control by the state” carried out by the government and the existence of representative institutions do not necessarily replace the direct participation of communities affected by policies. Thus, in issuing a license covering a certain area, the community in that area has the right to be involved in the participation process.
In relation to the participation process, the Court also underlined the importance of a substantive rather than formalistic process. The substantive meaning is the implementation of the obligation to include a public opinion in the procedures provided by the government, not merely an administrative formality in the form of written consent that may not be given directly by the person concerned.
The issue is: Who is the community with the right to be involved? In the Forestry Law, this becomes problematic with the status of state forests that marginalize customary forests in which customary law communities exist. Therefore, the recognition and respect of customary law communities must also be explained, which in the legislation is interpreted in the phrase “as long as in reality they still exist and are recognized for their existence.”
Implementing an accountable public participation process is impossible without identifying the correct subject. When the legal construction of the existence of indigenous peoples opens an arena of choice for the implementer of regulations, there is still the possibility of not involving indigenous peoples in participation. Important decisions on natural resource management are certainly very much related to the living space of indigenous peoples. Quoting I Nyoman Nurjaya’s expert testimony, the relationship between the government and the people in natural resource management contains two important principles. First is the precautionary principle, namely, the forest as an ecological and living system. Second is free, prior, and informed consent (FPIC). Indigenous peoples are legal entities equal to the position of other legal subjects; in this case, indigenous peoples have environmental wisdom. The concept of FPIC was mentioned in the trials of decisions No. 32/PUU-VIII/2010 and No. 35/PUU-X/2012, although it was not directly the focus of the Court’s consideration.
Regarding the phrase “as long as it still exists and its existence is recognized,” in its decision, the Court still considered the need to prove the existence of indigenous peoples because customary law is generally unwritten law and is a living law, meaning that it is law that is accepted, observed and obeyed because there can be conditions where (1) it still exists, but its existence is not recognized; (2) it does not exist, but its existence is recognized. According to the Court, recognizing indigenous peoples’ existence is not intended to preserve indigenous peoples at their current level of technological development. However, they must continue to obtain facilities in achieving prosperity, ensuring fair legal certainty for both the subject and the object of the law and, if necessary, obtaining special treatment (affirmative action).
Indigenous communities have a special bond with their ancestral lands, territories, and resources; their cultural heritage, language, and traditions are integral to their identity (Saramaka v. Suriname, 2007). They have the right to maintain, develop, and pass on their cultural heritage to future generations (Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001). Therefore, freedom of conscience is crucial as it enables people to express their beliefs and values and practice their religion, customs, and traditions without external coercion (Kokkinakis v. Greece, 1993). Without freedom of conscience, people, especially indigenous people, may be compelled to adopt practices and beliefs that are incompatible with their cultural identity. Therefore, freedom of conscience is a vital aspect of indigenous peoples, allowing them to maintain their cultural heritage and make autonomous decisions for their future. As stated in Article 9 ILO Convention No. 169, it is the responsibility of states to safeguard the interests of indigenous peoples to ensure their right to self-determination and preserve their cultural heritage for future generations.
In light of such circumstances, this paper discusses the problem of how the FPIC as a legal concept should be understood in its essence and in relation to the right to freedom of conscience. The paper aims to assess the interface between FPIC and freedom of conscience. While existing literature has explored the concept of FPIC, no research has specifically addressed its interplay with freedom of conscience. This article further differs from other existing research as it provides new insights into how both concepts may connect and details the standards as well as the implementation of FPIC in real-world cases, including those that have occurred in Indonesia. It subsequently provides a unique perspective on the essential roles of FPIC and freedom of conscience in protecting the values and cultures of stakeholders concerned, especially indigenous groups.
To reach its conclusion, this research utilizes descriptive, analytical, and comparative legal methods. Primary materials encompassing international conventions and Indonesian statutory laws are analyzed, along with secondary materials such as academic publications. Case laws are also utilized, which are intended to illustrate how various courts have implemented FPIC. The aim is to provide guidance to Indonesian Courts on the application of such a concept. This research is divided into four main sections. The first section will address the concept of FPIC. Subsequently, the second section will delve into court judgements that have implemented the concept of FPIC. This is then followed by the third section, which puts into light FPIC-related problems and challenges in Indonesia by evaluating real-life cases. Lastly, the connection between FPIC and freedom of conscience is discussed.
It is argued that FPIC for indigenous people is not merely an obligatory procedure, but is closely related to freedom of conscience. The relationship between public involvement in governmental decision-making and freedom of conscience ensures that the public make choices based on their values, beliefs, and priorities. The public context in this study notably refers to parties frequently excluded from participation, such as indigenous peoples when interacting with the government and companies in natural resource regulations, particularly forests and mines.
Authors: Iman Prihandono (Universitas Airlangga, Indonesia); Ekawestri Prajwalita Widiati (Universitas Airlangga, Indonesia); and Juozas Valčiukas (Mykolas Romeris University, Lithuania)
The full version of this research article may be found at: https://ojs.mruni.eu/ojs/international-comparative-jurisprudence/article/view/7900
