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08/887606_1 1
SAMARINDA STATE ADMINISTRATIVE COURT
OFFICIAL COPY OF DECISION
CASE : LICENCE
NUMBER : 32/G/2010/PTUN.SMD
Between
PLAINTIFF : PT RIDLATAMA TRADE POWERINDO
And
DEFENDANT : REGENT OF KUTAI TIMUR
and PT NUSANTARA WAHAU COAL
PROVIDED TO : THE PLAINTIFF
ON : 18 March 2011
Samarinda, 18 March 2011
Samarinda State Administrative Court
Clerk of the court,
Murjami, S.H
NIP: 19590514 1991 01003
08/887606_1 2
DECISION
NUMBER: 32/G/2010/PTUN.SMD
“FOR JUSTICE BY VIRTUE OF THE ALMIGHTY GOD”
The Samarinda State Administrative Court who examines, decides, and adjudicates the
administrative dispute at first instance with regular hearing process has rendered a decision, as
set out herein below, in the case between:
PT RIDLATAMA TRADE POWERINDO, represented by Ir. Anang Mujiantoro,
Indonesian Citizen, as the Director of PT
RIDLATAMA TRADE POWERINDO, according to
the Deed of Meeting Resolution No. 98 of PT
RIDLATAMA TRADE POWERINDO dated 30 June
2010 and Deed of Meeting Resolution which has been
reinstated in Deed No. 12 dated 4 October 2010, which
was drawn up before RUSNALDY, SH Notary in
Jakarta, having its office in Grand Bintaro No. C 8/9,
Jl. Bintaro Permai Raya 1, South Jakarta
In this case grants authority to:
1. ARIS AFFANDI LUBIS, SH
2. M. FATARURACHMAN, SH
All of them are Indonesian Citizens, Advocates of the
Law Offices of BASREWAN, LUBIS,
REKSONEGORO & PARTNERS having its office at
The Bellezza Permata Hijau Building, Office Tower
No. 9, 21st Floor, Jl. Letjen Soepono No. 34, South
Jakarta, by virtue of the specific power of attorney
dated 24 August 2010.
Hereinafter …….... “THE PLAINTIFF”;
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AND
1. REGENT OF KUTAI TIMUR domiciled at Jalan Soekarno Hatta No. 1, Bukit Pelangi
Sangatta Office Area of Kutai Timur Regency, East
Kalimantan;
In this matter grants authorities to:
1. HAMZAH DAHLAN, SH
Indonesian Citizen, advocate/ attorney, having its
office at Jl. Jend. Sudirman, Bandar Balikpapan
Complex, Block F No. 10, Balikpapan.
2. AYU ASTRINI, SH
Indonesian Citizen, advocate/attorney, having its
office at Jl. Jend. Sudirman, Bandar Balikpapan
Complex, Block F No. 10, Balikpapan;
3. H. ZAINUDDIN ASPAN, SH., M.Si
Indonesian Citizen, Head of Legal Division of the
Kutai Timur Regency.
4. NORA RAMADANI, SH.,MH
Indonesian Citizen, Staff of the Legal Aid
Department at the Legal Division of the Kutai
Timur Regency;
5. ARDIANSYAH, SH
Indonesian Citizenship, Staff of the Legal Aid
Department at the Legal Division of the Kutai
Timur Regency;
6. SYAMSUL ALAM, SH
Indonesian Citizenship, Staff of the Legal Aid
Department at the Legal Division of the Kutai
Timur Regency.
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By virtue of the special power of attorney Number:
180/183.5/HK/97/IX/2010 dated 20 September 2010,
and special Power of attorney Number:
180/A.183.5/HK/97/X/2010 dated 20 October 2010;
Hereinafter ………….”THE DEFENDANT”;
2. PT. NUSANTARA WAHAU COAL, represented by Sugiono, Indonesian Citizen,
as the Director of PT. NUSANTARA WAHAU COAL
by virtue of the Notarial Deed of 24 August 2009
Number 26, having its office at Menara Bidakara, 9th
Floor, Jl. Gatot Subroto Kav. 71-73, South Jakarta.
In this case grants authority to:
1. HOTMAN PARIS HUTAPEA, SH.,M.Hum.
2. ANTHONY L.P.HUTAPEA, SH.,MH.
3. SUBAGIO ARIDARMO, SH
4. MIEN HERMINI, SH
5. RYAN AMALBEAN, SH
6. DONALD R.O. PARDOSI, SH
7. Ir. NURBAINI JANAH, SH
8. IMMANUEL SIANIPAR, SH
9. IDA AYU TRISNAMUKTI, SH,
All of whom are Indonesian Citizens, Advocates and
Legal Consultants at the law offices of HOTMAN
PARIS & PARTNERS, domiciled at Summitmas I
Building, 18th Floor, Jalan Jenderal Sudirman Kav. 61-
62 Jakarta, by virtue of specific power of attorney dated
19 October 2010.
Hereinafter INTERVENING DEFENDANT II;
The State Administrative Court:
08/887606_1 5
• Has read the injunction of Head of Samarinda State Administrative Court Number:
32/PEN/2010/PTUN.SMD dated 30 August 2010 on the Appointment of Panel of
Judges;
• Has read the injunction of Head of Panel of Judges Number: 32/PEN-
PP/2010/PTUN.SMD dated 31 August 2010 on the preliminary examination;
• Has read the injunction of Head of Panel of Judges Number: 32/PEN-
HS/2010/PTUN.SMD dated 7 October 2010 on the First day of the Hearing;
• Has read Interim Decision Number: 32/G/2010/PTUN.SMD dated 2 December 2010 on
the third party joining in as a party [to the litigation] (Intervention);
• Has read and reviewed the case dossier and pieces of evidence submitted in the hearing;
• Has heard the testimonies of the witnesses which presented by both parties;
ON THE BACKGROUND OF THE CASE
Considering that the Plaintiff has filed a Lawsuit dated 25 August 2010, which has been
registered at the Clerk Office of Samarinda State Administrative Court on 27 August 2010,
under case registration number: 32/G/2010/PTUN-SMD, as amended during the Preliminary
Examination Session on 7 October 2010, which in essence argues as follows:
I. Regarding the object of dispute :
Whereas the object of dispute is the Decree of the Kutai Timur Regent (Bupati) Number:
540.1/K.444/HK/V/2010 dated 4 May 2010, regarding the revocation of Decree of the Kutai
Timur Regent (Bupati), Number 188.4.45/119/HK/III/2009 on the Exploitation Mining
Licences (IUP) granted to PT. Ridlatama Trade Powerindo, with 5.386 Ha width located in the
Sub-district of Busang of Kutai Timur Regency.
II. Regarding the basis and reason of the claim
1. Whereas the Defendant’s Decree, is an administrative decision which is concrete,
individual and final in nature, which has caused legal implication so that it fulfills the
provision of Article 1 point 9 of the Law of the Republic of Indonesia No. 51 of 2009
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concerning the second amendment of Law Number 5 of 1986 on The State
Administrative Courts.
[Whereas] Administrative Decision is a written stipulation issued by an organisation or
official of the state administrative which contains state administrative legal action that
is based on the prevailing laws and regulations, having concrete, individual and final
nature that causes legal implication individuals or private legal entities.
2. [Whereas] the above Defendant’s decree harms the Plaintiff because the letter of
licence revocation from the Defendant was related with the Exploitation Mining
License (IUP) of PT Ridlatama Trade Powerindo.
Whereas because the Defendant’s Decree has harmed the Plaintiff, therefore according
to Article 53 paragraph (1) of Law No. 51 of 2009 on the second amendment of Law
No. 5 of 1986 on the State Administrative Courts which state that:
“Any individual or private legal entity whose interest is being harmed by an administrative decision
may file a written claim with the relevant court containing a request that the decree in question is
declared null and void, with or without a claim for compensation and/or rehabilitation”.
3. The lawsuit was filed within the prescribed timeline:
Whereas the Plaintiff received the above letter from the Defendant through a PT/CV
TIKI courier service in Cengkareng, West Jakarta on Saturday 29 May 2010 at 15:42:12
Western Indonesia Time. On 4 June 2010 the letter was opened and it was then found
out by the Plaintiff that there was a revocation of licence. The Plaintiff only became
aware of the existence of the revocation letter on Friday 4 June 2010 because the letter
was opened then.
Whereas according to Article 55 of Law of the Republic of Indonesia No. 51 of 2009
on the second amendment to Law Number 5 of 1986 on the State Administrative
Court in conjunction with Law of Republic of Indonesia Number 9 of 2004 on the
amendment to Law Number 5 of 1986 on the State Administrative Court: the claim
can only be filed within 90 days as from the date of receipt or announcement of the
decision of the State organisation or official.
4. Whereas the Defendant’s Decree contravenes the Law of the Republic of Indonesia
No. 4 of 2009 on Mineral and Coal Mine because it does not comply with the procedural
requirement and exceeds the authority [of the Defendant].
08/887606_1 7
5. Whereas Article 119 of Law of the Republic of Indonesia No. 4 of 2009 on Mineral and
Coal Mine, states that:
IUP or IUPK can be revoked by the Minister, Governor, or Regent/Mayor, in
accordance with their respective authority if:
a. The IUP or IUPK failed to fulfill their obligations set out in the IUP or IUPK
as well as laws and regulations.
b. The IUP or IUPK committed a criminal action as meant by this Law or
c. The IUP or IUPK holder has been declared bankrupt.
6. Whereas the Plaintiff has fully complied with all obligations in accordance with the
Law on Mineral and Coal Mine, which is why the Letter of Decree of the Regent of East
Kutai No. 188.4.45/119/HK/2009 dated 27 March 2009 on Exploitation Mining
Licence (IUP) to PT Ridlatama Trade Powerindo, with width of 5.386 Ha located in
the Sub-district of Busang, the Regency of Kutai Timur was issued.
7. Whereas therefore all evidence on the obligations of the Plaintiff to the Defendant will
be provided in the hearing.
8. Whereas the revocation of licence was not carried out in accordance with the
procedure because there were no notifications (whether in a form of invitation letter or
warning letter) prior to the issuance of the revocation letter to the Plaintiff. The
Plaintiff should have been given a chance to defend its interest so that the Plaintiff is
of the view that the revocation letter was issued unilaterally and silently but sent
through the PT/CV TIKI courier service in West Jakarta, in Cengkareng.
9. Whereas the revocation of the licence from the Defendant was based on the Letter of
the Ministry of Forestry of the Republic of Indonesia and because of that the burden
of prove of the alleged violation committed by Plaintiff lies in the hands of the
Defendant, it is therefore appropriate for the Defendant to prove the existence of the
letter from the Ministry of Forestry of the Republic of Indonesia in this hearing
process.
10. Whereas any decree issued by the Defendant, be it intended to any person or legal
entity within the regional Government must comply with the Regulation of Minister of
Domestic Affairs Number 54 of 2009 on the Official Papers for the Regional
Government.
08/887606_1 8
11. Whereas Article 1 point 26 of the Regulation of the Minister of Domestic Affairs No.
54 of 2009 on the Official Papers / Scripts for Regional Governments states that:
The Decree of the Regent/Mayor is the official script in the form and format of legal
product which is concrete, individual and final.
12. Whereas the letter / decree becomes the reason for the Plaintiff to file a claim against
the Defendant, letter of which was received by the Plaintiff on a copy letterhead because
the letterhead logo (the Garuda logo) was black and white, and this contravenes the
regulation of Minister of Domestic Affairs No. 54 of 2009 on the Official Papers /
Scripts for Regional Governments. Article 62 paragraph (1) provides that the
letterhead for official letters as meant by Article 61 (a) of the regulation, the
governor/vice governor, regent/vice regent and major/vice of major shall use:
a. For official scripts in the form and format of legal product, the State emblem
must be in golden yellow color and placed in the upper center part [of the letter].
b. For official scripts in the form of letter, the golden yellow State emblem is
placed in the upper center part of the letter while the address, phone number,
facsimile number, website, e-mail address and post code are placed in the
center below part [of the letter].
13. Whereas the revocation letter which becomes the basis of the Plaintiff’s claim, should
contain initials before it is signed; [the letter] received by the Plaintiff does not contain
such initials. This violates the Regulation of Minister of Domestic Affairs No. 54 of
2009 on the Official Papers / Scripts for Regional Governments, which its Article 20
of Chapter V part 1 on the name initials, signing, and usage of the ink for official
scripts states that:
(1) Every official script shall be initialed prior to signing.
(2) Official scripts in the form and formation of legal product prior to the signing
should contain initials on every page.
(3) Initials as referred to in paragraphs (1) and (2) is given by the related officials
horizontally, and vertically.
(4) Initials as referred to in paragraph (1) and (2) are brief signatures to indicate
responsibility over the content, substance, editing and typing of the script.
(5) Initials as referred to in paragraph (4) consist of:
a. Hierarchical initials; and
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b. Initials indicating coordination.
14. Whereas the procedure for issuing revocation of licence (that was issued by the
Defendant to the Plaintiff) must comply with the Regulation of Minister of Domestic
Affairs No. 54 of 2009 on Official Papers / Scripts for Regional Governments.
Therefore it is appropriate correct if the burden of proof for the official scripts lies
within the hands of the Defendant and should be proven in this hearing.
15. Whereas the Plaintiff has been investigated by an investigator as a result of a report
from a third party (separate party from the Defendant); the report was a police report
regarding the overlapping mining area of the Plaintiff. Having investigated, the Police
investigator of the East Kutai regency issued a letter/order to stop investigation [the
“SP3 Order”], with police reference Number: B/2276/XII/2009/Reskrim dated 28
December 2009.
16. Whereas in accordance with above regulations and provision of the minister, it has
been proven that there were no sufficient grounds for the Defendant to issue the letter
of revocation. This is proven by the fact that the Defendant issued a letter of
revocation which clearly exceeds the authority given to the Defendant.
17. Whereas the Defendant’s decree is not in line with the procedure so it violates the Law
and Minister Regulation, therefore the Plaintiff’s claim (against the Defendant) is very
reasonable and in line with Article 53 paragraph (2) letters a and b of Law No. 51 of
2009 on the second amendment to Law No. 5 of 1986 on the State Administrative
Court in conjunction with Law No. 9 of 2004 on the amendment to Law No. 5 of
1986 on the State Administrative Court which states that:
(2) The reasons that can be used in the claim as referred to in paragraph (1) are:
a. The Administrative Decision being claimed violates the applicable laws.
b. The Administrative Decision being contravenes the Good Governance
Principle.
18. The above decree from the Defendant disregarded the Good Governance Principle,
because the Defendant, in taking the decision, did not [use] the said regulations and
minister regulation as guidelines and guidance to craft the letter of decree to the proper
format, [[and follow] the process and formatting procedure as mentioned above1].
1 The source (Bahasa Indonesian version) of the yellow highlighted section is unclear. It has to be clarified
with the drafter of the source whether the translation reflects the actual meaning of the Indonesian version.
08/887606_1 10
19. Whereas therefore the Panel of Judges would have sufficient grounds to accept the
Plaintiff’s claim, and declare the letter of revocation void or invalid.
20. Whereas by not following the correct procedure in issuing revocation letter of the
Plaintiff’s mining licence (letter of which was issued by the Defendant), it is
appropriate for the Panel of Judges to order the Defendant to revoke the above letter
meant in this lawsuit.
In light of the foregoing, the Plaintiff requests the Panel of Judges of the Samarinda
Administrative Court to adjudge and declare that:
1. To grant the Plaintiff’s claim in its entirety.
2. To declare the Letter of Decree of the Defendant Number 540.1/K.444/HK/V/2010
dated 4 May 2010 on the revocation of Decree of Regent (Bupati) of East Kutai
Number: 188.4.45/119/HK/III/2009, regarding Exploitation Mining Licence (IUP)
to PT. Ridlatama Trade Powerindo, with width of 5.386 Ha located in the Busang Su-
District, Regency of East Kutai null and void.
3. To order the Defendant to revoke the Letter of Decree Number:
540.1/K.444/HK/V/2010 dated 4 May 2010 on the revocation of Decree of Regent
of East Kutai Number 188.4.45/119/HK/III/2009, regarding the Exploitation Mining
Licence (IUP) to PT. Ridlatama Trade Powerindo, with width of 5.386 Ha located in
the Busang Sub-district, Regency of East Kutai.
4. To punish the Defendant to pay the cost of the proceedings.
Whereas the Defendant has, against the Plaintiff’s lawsuit, filed its Response on 21
October 2010 and argued as follows:
A. IN EXCEPTION
1. Whereas the Plaintiff, in point 4 (four) of the lawsuit argues that the decree that was
issued by the Defendant violated the Law No. 4 of 2009 on Mineral and Coal Mine,
because it did not follow the procedure and acted beyond its authority.
2. Whereas having reviewed Article 53 paragraph (2) sub (a) of Law Number 51 of 2009
on the Second Amendment to Law No. 5 of 1986 on the State Administrative Court,
in particular the elucidation of that Article, an Administrative Decision can be
considered as violating the applicable laws and regulations if the administrative
decision:
08/887606_1 11
a. Contravenes the formality / procedural provisions of laws.
b. Contravenes the material / substantive provisions of laws.
c. Issued by an unauthorised State organisation or official.
3. Whereas by linking the elucidation of Article 53 paragraph (2) sub (a) with the
plaintiff’s argument in point 4 of the lawsuit, especially the argument on “exceeding
authority”, such a concept is unknown; under the concept of administrative law, the
term “not authorised” (onbevoegdheid) is not the same as “exceeding authority” (exces de
pouvoir/abus de droa).
4. Whereas when the Plaintiff argues that the object of dispute that was issued by the
Defendant is not in line with the procedure and that it exceeds its authority (as
provided for in point 4 of the lawsuit), that argument should be elaborated further in
the next pleadings by describing as to which procedural laws and regulations have been
violated by the Defendant in issuing the object of dispute.
5. Whereas as regards the Plaintiff’s argument as provided for in point 5 of the lawsuit
which describes the norm of Article 119 points (a), (b), and (c) of Law No. 4 of 2009,
that norm does not regulate the formality for the revocation of the object of the
dispute. From the “norm theory” perspective, ie [consisting of] the aspects of addressant
norm, subject norm, object norm and operating norm, it can be found out that the
norm indicated in Article 119 letters (a), (b), and (c) deals with the issue of competent
official (bovoegdheid) to revoke IUP and IUPK and material/substantial terms that must
be fulfilled by the official who will revoke the IUP and IUK, and does not deal with
the issue of exceeding authority (exces de pouvoir/abus de droa).
6. Whereas based on the reason of the Defendant’s response as mentioned in point 5, it
shows that the argument of the Plaintiff in points 4 and 5 of the lawsuit does not have
any correlation whatsoever, therefore the argument of the Plaintiff’s lawsuit can be
qualified as an vague / unclear lawsuit (obscuur libel).
7. Whereas although the purpose of the preliminary examination is to review the lawsuit
and to make a lawsuit perfect, the Panel of Judges has decided to continue the case to
the regular hearing process. However, please also pay attention to point III.4 of the
Circular Letter of the Supreme Court (SEMA) No. 2 of 1991 which provides that a
Panel of Judges is authorised to declare that the a claim is not acceptable (niet
onvankelijk verklaard).
08/887606_1 12
8. Whereas the argument of the Plaintiff’s as provided for in point 8 (eight) of the lawsuit
does mention in a concrete manner as to which procedural regulations have been
violated, [an argument cannot2] only comment that there was no notification, invitation
and warning, etc.
Whereas, if we were to review and analise Article 1 through to 175 of Law No. 4 of
2009 on the Mineral and Coal Mine, none of those articles contains any procedure [that
must be followed] before issuing an IUP or IUPK revocation. Therefore, free authority
(and not binding authority) is applied in revoking the licence because the norm does
not exist.
9. Whereas the argument of the Plaintiff as provided for in point18 of the lawsuit states
that: the decision of the Defendant disregarded the Good Governance Principle
because the Defendant, in making that decision, did not rely on laws and regulations
and the Minister regulation. If the argument of the Plaintiff was reviewed, from the of
legal logic perspective, there is no correlation between the premise and conclusion. To
be clear, the Defendant will describe as follows: the phrase which says that the
Defendant’s decision ignored / disregarded the Good Governance Principle (as the
premise); and then that sentence is followed by the words “because (as a copula), in making
the decision the Defendant has not relied on the prevailing laws and regulations and the Minister
regulation (as the conclusion)”. Disregarding the Good Governance Principle is not
governed by [does not have anything to do with] laws and regulations and the Minister
regulation. If the premise is “ignoring the Good Governance Principle”, then the
conclusion should have been violating a specific species of the Good Governance
Principle itself.
10. Whereas the reasons of the Defendant as outlined in points (8) and (9) above show
that the Plaintiff’s lawsuit as provided for in point 18 is vague (obscuur libel), therefore
should be declared unacceptable
11. Whereas the prayer for relief section does not show a direct examination (direct weking)
from the Judge of the State Administrative Court. Whereas based on point 6 of section
(U) of the Administrative and State Administrative Court Technical Guidance book,
2 The source Bahasa version states “tidak bias”. However, if the overall sentence were reviewed the word
“tidak bias” should have been written and read as “tidak bisa”, which means “cannot”.
08/887606_1 13
2nd edition which was enacted by virtue of the decision of the Head of the Supreme
Court of Republic of Indonesia dated 4 April 2006 Number: KMA/032/SK/IV/2006,
it provides guidance on the uniformity of prayer for relief/verdict section of a
judgment as follows:
� To grant the lawsuit of the Plaintiff
� To declare that the action of the Defendant in issuing the administrative decision
in question violates the law (it must include the Articles/paragraphs of the laws
that have been violated) or the Good Governance Principles (including
information on which principle has been violated).
� Etc.
12. Whereas the prayer for relief section of the Plaintiff’s lawsuit does not comply with the
guidance that has been set out by the highest judicial authority in Indonesia. Therefore
the Plaintiff’s lawsuit is not in accordance with the provision of Article 56 paragraph
(1) point c, in particular their requests violate the decision of the Head of the Supreme
Court of Republic of Indonesia as mentioned in point 11 of the Defendant’s response.
B IN THE MERITS OF THE CASE
By relying on the provision of Article 53 paragraphs (1) and (2) of Law No. 51 of 2009
on the second amendment to Law No. 5 of 1986 on the State Administrative Court,
the elaboration in the merits of the case section of this Response deals with the
following subject matters:
a. Authority aspect;
b. Formality / procedural aspect;
c. Material/substantial aspect; and
d. Good Governance Principles aspect.
1. As to the authority aspect (bevoegdheid); pursuant to Article 8 paragraph (1) point (c),
linked with Article 117 point (b) and Article 119, the Defendant is entitled to
(bevoegdheid) to revoke the disputed object.
2. Whereas the disputed object is located in the jurisdiction of the Defendant,
therefore no onbevoegdheid ratione loci has occurred, likewise in terms of timeframe
08/887606_1 14
there is no limitation as to when the disputed object can be revoked; therefore no
onbevoegdheid ratione temporis has occurred. In terms of authority restriction, since the
content [of the Defendant’s decision] does not violate anything because it is in line with
the provision of Article 119; the Defendant, as a Regent (Bupati) is entitled to
revoke the IUP. Therefore, no onbevoegdheid ratione materiae has occurred.
3. Whereas Article 20 paragraph (1) point c of Regional Regulation of East Kutai
Regency Number 13 of 2004 on Regional IUP states that:
The IUP [can be] declared expired for the following reasons:
It is revoked by the Regent (Bupati) and/or other authorised officials because:
� It violates the applicable laws as set out in other laws and regulations on
mining and does not fulfill the obligations set out in the relevant IUP.
� Etc.
4. Whereas based on point 3 of the response above, it shows that the Defendant as
the East Kutai Regent has authority to revoke the disputed object.
5. Whereas there is no provision procedure in Law No. 4 of 2009 and the Regional
Regulation of East Kutai Regency No. 13 of 2004 on how should the Defendant
revoke the disputed object. Therefore, from the norm point of view there is no
assessment can be made. This matter constitutes “free authority” (friejs bestuur),
although the Defendant has also considered the facts, which have been included
in points b and c of the preamble section (consideration part) of the disputed
object. This will be proven further by the Defendant in the (written) evidentiary
stage. The facts considered in points b and c of the consideration part of the
preamble section show that there is no arbitrary action (willekeur) committed by the
Defendant and they also show that the disputed object was issued in a careful
manner.
6. Whereas from the material / substance point of view, based Article 119 point (a)
of Law No. 4 of 2009 on Mineral and Coal Mine the norm formulation is of
alternative nature. One of the alternative reasons to revoke an IUP is failure to
fulfill obligations set out in the laws and regulations3. Likewise in Article 20
paragraph (1) letter c of the Regional Regulation of East Kutai Regency Number
3 The Bahasa version of this sentence is unclear. The essence of the sentence, however, is as set out in the
translation.
08/887606_1 15
13 of 2004, the norm [under that law] is also of alternative nature, whereas one of
the alternative reasons for the Regent (Bupati) or other authorised officials to
revoke an IUP is violation of laws and regulation in field of mining.
Whereas there is a fact that the plaintiff’s IUP permit is in the forest area, and in
such case the IUP permit can only be issued if there is a permit from the Minister
of Forestry as set out in the Article 50 paragraph (3) letter (g) of Law No. 41 of
1999 on Forestry as follows:
Everyone is prohibited from carrying out general survey or exploration of mineral
activities in forest area without permission from the Minister.
Any violation of the material / substantive laws and regulation would give
sufficient grounds to revoke the disputed object.
7. Whereas based on the spontane vernietging principle, an institution or a State
administrative official could revoke a decree that it has issued even in the absence
of any request from any other party if the decree that it has issued contains legal
defect.
8. Whereas in relation to the reason of the Plaintiff’s lawsuit as set out in points 10,
11, 12, 13, 14 the Defendant submits a rebuttal as follows:
� Whereas the elucidation of Article 1 point 3 of Law Number 5 of 1986 (now
Article 1 point 9 according to the Law No. 51 of 2009 provides that an
administrative decision is not seen from its form but from its substance, what
is required to be in writing is not its formality form, but what matters is
whether or not it is clear as to which institution or official issues the decision,
and the objective and the content of the decision and to whom the decision is
addressed.
� Whereas by the elucidation of Article 1 point 3, the argument on the logo,
initials and ink as meant in the Minister of Domestic Affairs Regulation No. 54
of 2009 is not an issue that can affect or cancel the object of the dispute. Law
No. 51 of 2009 has a higher position than the Minister of Domestic Affairs
Regulation No. 54 of 2009 (lex superior derogate legi inferiori).
� Is the Minister of Domestic Affairs Regulation No. 54 of 2009 a law?
Article 7 paragraph (1) of Law Number 10 of 2004 on Legislation provides as
follows:
08/887606_1 16
The types and hierarchy of laws are as follows:
a. Constitution of the Republic of Indonesia of 1945;
b. Laws/Government Regulations in lieu of Law;
c. Government Regulations;
d. Presidential Regulations;
e. Regional Regulations.
From the above provision it is obvious that the Minister of Domestic Affairs
Regulation Number 54 of 2009 is not included in the category of laws and
regulations therefore its binding nature does not extend to the [public].
9. Whereas the fact that the Plaintiff did not mention which Principle of Good
Governance has been violated in its lawsuit has made it difficult for the Defendant
to provide a response and defend itself. However, the Defendant has acted in line
with the Good Governance Principles.
In light of the foregoing, the Defendant request to be given decision as follows:
A. IN EXCEPTION :
� To accept reasons of the Defendant’s exception;
� To declare that the Plaintiff’s lawsuit is not acceptable;
B. IN THE MERITS OF THE CASE :
� To accept the response of the Defendant;
� To reject the Plaintiff’s claim;
� Etc
Whereas against the Plaintiff’s claim, Intervening Defendant II has also submitted its
Response on 9 December 2010 and argued as follows:
A. DISPUTE OBJECT
The dispute object in this court hearing is the Decree of East Kutai Regent Number
540.1/K.444/HK/V/2010 on the Revocation of Decree of East Kutai Regent Number
188.4.45/119/HK/III/2009 regarding exploitation Mining Business License (IUP) to PT
Ridlatama Trade Powerindo in area with width 10,000 hectare located in Long Lees,
Busang District, East Kutai Regency dated 4 May 2010 (hereinafter referred to as
08/887606_1 17
“DEFENDANT DECREE NO. 540.1/2010” or the “Dispute Object” (see Evidence
T.II.Int.-1).
In principle, the Defendant has issued an exploitation mining business license (IUP) to the
Plaintiff (PT Ridiatama Trade Powerindo) through the Decree of Regent (Bupati) No.
188.4.45/119/HK/III/2009 dated 27 March 2009 regarding exploitation Mining Business
License (IUP) to PT Ridlatama Trade Powerindo with width of 5,386 hectare located in
the Busang District, East Kutai Regency (hereinafter referred to as “Defendant Decree
No. 188.4.45/119/HK/III/2009 for the Plaintiff (See evidence T.II.Int.2) through
DEFENDANT DECREE NO. 540.1/2010 or (the OBJECT OF THE DISPUTE),
but then the Defendant revoked the IUP of the Plaintiff.
B. REASONS AND GROUNDS OF THE PLAINTIFF’S CLAIM
The reason and ground for the Plaintiff’s Claim are:
1. The DEFENDANT DECREE NO. 540.1/2010 (Object of the Dispute) was issued in
contrary to Article 119 of Law Number 4 of 2009 concerning Mineral and Coal Mining
(“Law No. 4/2009”) because it did not conform the procedural requirement and
exceeds authority (see points 4 and 5 of page 3 of the Lawsuit);
2. The DEFENDANT DECREE NO. 540.1/2010 (Object of the Dispute) was not
issued in accordance with the procedural requirements because there was no
notification letter, either in the form of invitation letter or warning letter prior to
issuing the revocation letter. The Plaintiff should have been given a chance to defend
its interest. Therefore, the DEFENDANT DECREE NO. 540.1/2010 constitutes
Defendant’s unilateral and undercover decision and not sent through a mail service
available in the East Kutai Regency but sent through a private mail service, ie PT/CV
Tiki in Cengkareng, West Jakarta (see point 8 page 3 of the claim);
3. DEFENDANT DECREE NO. 540.1/2010 (Dispute Object) was not issued in
accordance with the procedural requirements because violates the Minister of
Domestic Affairs Regulation No. 54 of 2009 on the Official Scripts for Regional
Governments (“MHA Regulation No. 54/2009”) and therefore the DEFENDANT
DECREE NO. 540.1/2010 (Object of the Dispute) was issued in contrary to the
Good Governance Principles and therefore it is reasonable for the DEFENDANT
08/887606_1 18
DECREE NO. 540.1/2010 (Object of the Dispute) to be annulled / cancelled as set
out in Article 53 paragraph (2) letter b of Law No. 51 of 2009 on the second
amendment to Law No. 5 of 1986 on the State Administrative Court in conjunction
with Law No. 9 of 2004 concerning the amendment to Law No. 5 of 1986 on State
Administrative Courts (“State Administrative Law”) (see points 11, 12 and 13 of page 4
and point 17 of page 5 of the lawsuit).
The rebuttal/response of the Intervening Defendant II against the Plaintiff’s claim
is as follows:
IN THE MERITS OF THE CASE
A. The Intervening Defendant II explicitly rejects the argument of the Plaintiff as
provided for in points 4 and 5 on page 3 and point 17 on page 5 of the Lawsuit which
states that the DEFENDANT DECREE NO. 540.1/2010 (Object of the Dispute)
was issued in contrary to Article 119 of Law No. 4/2009 because it was NOT issued
in accordance with the PROCEDURAL requirement and EXCEEDS THE
AUTHORITY, therefore the issuance violates the aplicable laws and regulation as set
out in Article 53 paragraph (2) letter (a) of the State Administrative Law.
The reasons of the Intervening Defendent II in rejecting the argument of the Plaintiff
as mentioned above are as follows:
1. The Issuance of the DEFENDANT DECREE NO. 540.1/2010 (Object
of the Dispute) which revokes the IUP of the Plaintiff (namely the
Defendant Decree No. 188.4.45/119/HK/III/2009 for the Plaintiff) is
not in violation of laws and regulations, because the DEFENDANT
DECREE NO. 540.1/2010 (Object of the Dispute) was issued in
accordance with the authority of the Defendant and based on the valid
reasons as provided for in Law No. 4/2009 and the Regional Regulation
of the East Kutai Regency No. 13 Year 2004 concerning General Mining
Business Licence in the Region (“RR No. 13/2004”) which are:
1.1 The Plaintiff has carried out exploration or general survey activity
while the Plaintiff has not had a borrow and use permit in forest
08/887606_1 19
area from the Minister of Forestry, activity of which constitutes a
serious violation by the Plaintiff of the Plaintiff’s legal obligations
as the holder of IUP as outlined in the Defendant Decree No.
188.4.45/119/HK/III/2009 (addressed to the Plaintiff) in its point
(f) of the second point of the the “Stipulation” section, (see
evidence T.II.Int-2);
1.2 DEFENDANT DECREE NO. 540.1/2010 (Dispute Object) was
issued based on the fact that there is an overlapping licence
between the (i) IUP of the intervening Defendant II (ie
Defendant Decree No. 188.4.45//HK/III/2005 dated 10 March
2005 regarding Mining Business License for Exploitation Stage
to PT. Nusantara Wahau Coal in area of 14,980 hectare located in
Busang Muara Ancalong District, East Kutai Regency (see
evidence T.II.Int-3) and Defendant Decree No.
188.4.45/358/HK/VH/2008 dated 17 July 2008 regarding Mining
Business License on the Extension of Stage I Exploration to PT.
Nusantara Wahau Coal in area of 14,890 hectare in Busang Muara
Ancalong District, East Kutai Regency (see evidence T.II.Int-4)
that was ISSUED FIRST and (ii) the IUP of the Plaintiff
(Defendant Decree No. 188.4.45/119/HK/III/2009 dated 27
March 2009 addressed to the Plaintiff (see Evidence T.II.Int-2);
Further elaboration is as follows:
Ad.1.1. THE DEFENDANT’S DECREE NO. 540.1/2010 (Object of the Dispute)
was issued in accordance with the authority of the Defendant and based on
valid reasons as set out by the Law No. 4/2009 and RR East Kutai No.
13/2004 that the Plaintiff has carried out exploration or general survey
activities, while the Plaintiff did not have a borrow and use permit [to carry out
activities] in forest area from the Minister of Forestry, activities of which
constitute a serious violation by the Plaintiff of the Plaintiff’s legal obligation
as the holder of IUP as set out in the Defendant’s Decree No.
188.4.45/119/HK/III/2009 (addressed) in its point (f) of the second point of
the “Stipulation” section (see evidence T.II.Int-2).
08/887606_1 20
1.1.1 The fact is that the DEFENDANT’S DECREE NO. 540.1/2010 (Object of
the Dispute) (see evidence T.II.Int-1) was issued by the Defendant due to the
fact that the Plaintiff has carried out exploration or general survey
activity while the Plaintiff did not have a borrow and use permit [to carry
out activities] from the Minister of Forestry, and such activities constitute
a serious violation by the Plaintiff of the legal obligation of the Plaintiff
as the holder of IUP as set out in the Defendant’s Decree No.
188.4.45/119/HK/III/2009 (addressed to the Plaintiff) in its point (f) of
the second point of the “Stipulation” section (vide evidence T.II.Int-
2):
To be clear, the Intervening Defendant II hereby cites the content of the
Defendant’s Decree No. 188.4.45/119/HK/III/2009 addressed to the
Plaintiff, particularly its point (f) of the “Stipulation” section (see
evidence T.II.Int-2):
“The holder of IUP having location within the Production Forest,
Limited Production Forest and Protected Forest areas must
organise the borrow and use of the forest area to the Minister of
Forestry after receiving the IUP and must report the development
of the borrow and use process of the area to the Regional
Government of East Kutai before extending or upgrading the
IUP.”
1.1.2. The said obligations of the Plaintiff are based on the Defendant’s Decree
No. 188.4.45/119/HK/III/2009 on the name of the Plaintiff in its point
(f) of the second point of the “Stipulation” section (see evidence
T.II.Int-2) which HAS BEEN VIOLATED BY THE PLAINTIFF, as
proven from the findings of the Minister of Forestry as outlined in the
Minister of Forestry Letter No. S.10/Menhut/III/1Rhs/2010 dated 21 April
2010 that was addressed to the East Kutai Regent.
1.1.3. Based on the finding of the fact above, the defendant then issued the
Defendant’s Decree No.540.1/2010 (object of the dispute) which revokes
08/887606_1 21
the Defendant’s Decree No.188.4/45/119/HK/III/2009 which was
addressed to the Plaintiff (see evidence T.II.Int-2), and such legal fact on the
infringement of the Plaintiff’s obligation becomes the consideration for the
Defendant’s Decree No.540.1/2010 (object of the dispute); see point (b) of
the consideration section (see evidence T.II.Int-1). For further details,
Intervening Defendant II quotes the sentence of point (b) of the
“consideration” section of the Defendant’s Decree No.540.1/2010 (object of
the dispute) (see evidence T.II.Int-1) as follows:
“whereas pursuant to the special identification report from the special inspectorate of the
Inspectorate General of Departement of Forestry of March 2010, the Minister of Forestry
of the Republic of Indonesia has issued a Letter Number S.10/Menhut/III/Rhs/2010
dated 21 April 2010 addressed to Regent of East Kutai, which in principle asked the
regional government of East Kutai Regency to cancel Mining Business License (IUP) on
behalf of PT Ridlatama Trade Powerindo due to an indication that the [Plaintiff]4 has
conducted general survey and/or mining exploration activities in forest area without
obtaining licence from the Minister of Forestry. Therefore it is appropriate to allege that a
criminal act in the field of forestry has occurred as meant in article 50 paragraph (3) letter
(g) in conjunction with Article 78 paragraph (6) of Law Number 41 of 1999 regarding
forestry.”
1.1.4 The above legal fact proves that the Plaintiff has committed a violation of its
legal obligations as set out in the IUP of the Plaintiff itself (Defendant’s Decree
No.188.4/45/119/HK/III/2009 addressed to the Plaintiff (see evidence
T.II.Int-2) which is quoted as follows:
“The holder of IUP having location within the Production Forest,
Limited Production Forest and Protected Forest areas must organise
the borrow and use of the forest area to the Minister of Forestry after
receiving the IUP and must report the development of the borrow and
4 The source (Bahasa version) says “Tergugat” or “Defendant”. For this context, however, the word
“Tergugat” should read “Penggugat” or the “Plaintiff”.
08/887606_1 22
use process of the area to the Regional Government of East Kutai
before extending or upgrading the IUP.”
1.1.5 Point (j) of the “consideration” section of the Defendant’s Decree
No.188.4/45/119/HK/III/2009 that was addressed to the Plaintiff (see
evidence T.II.Int-2) provides the authority to the defendant to cancel/revoke
IUP UNILATERALLY (Decree of Defendant
No.188.4/45/119/HK/III/2009 addressed to the Plaintiff) (see evidence
T.II.Int-2). Although the term of such IUP has not expired, “if the holder of the
IUP failed to comply with the provisions/obligations contained in this decree” as indicated
in point (j) of the consideration section of the Defendant’s Decree
No.188.4/45/119/HK/III/2009 addressed to the Plaintiff on “consideration”
section letter j (see evidence T.II.Int-2), then as quoted below:
“The Regent of East Kutai is authorised to unilaterally cancel/revoke the IUP unilaterally
although the term of such IUP has not expired:
- If this attempt does not give the [expected] result.
- If the holder of IUP failed to comply with the provisions/obligations set out in this
decree.
1.1.6 The above legal facts becomes valid reason for the Defendant to carry out its
authority to revoke the Plaintiff’s IUP (ie the Defendant’s Decree
No.188.4/45/119/HK/III/2009) (see evidence T.II.Int-2) through the
Defendant’s Decree No.540.1/2010 (object of the dispute) (see evidence
T.II.Int-1) and such reason for revocation and the authority are provided for in
Article 119 of Law No.4 of 2009 and Article 20 paragraph (1) of Regional
Regulation of East Kutai No.13 of 2004 and the Defendant’s Decree
No.188.4/45/119/HK/III/2009 addressed to the Plaintiff itself (see evidence
T.II.Int-2) whereby the Defendant’s Decree No.188.4/45/119/HK/III/2009
which was addressed to the Plaintiff itself (see evidence T.II.Int-2) makes
reference to the Regional Regulation of East Kutai No.13 of 2004 (see point 18
of the “Consideration” section of the Defendant’s Decree
08/887606_1 23
No.188.4/45/119/HK/III/2009 that was issued to the Plaintiff itself (see
evidence T.II.Int-2).
1.1.7 Intervening Defendant II hereby quotes the provision of Article 119 of Law
No.4 of 2009 as follows:
“IUP or IUPK can be revoked by Menteri, Governor or Regent/Mayor in accordance with
its authority if:
a. The Holder of the IUP or IUPK failed to fulfil its obligations as set out in the IUP or
IUPK and regulation;
b. The Holder of IUP or IUPK commits criminal act as meant this Law; or
c. The Holder of IUP or IUPK is declared bankrupt.”
1.1.8 The above provision of Article 119 of Law No.4 of 2009 provides the basis for
the Defendant’s authority as the Regent (Bupati) of East Kutai to revoke IUP,
with the following reasons:
a. The holder of IUP failed to perform the obligation stipulated in IUP and
regulation;
b. The Holder of IUP committed a criminal act as meant by the Law No.4 of
2009; or
c. The Holder of IUP is declared bankcrupt
The above revocation of IUP reasons are of alternative nature, therefore if one
of the above three reasons are fulfilled, it would be sufficient for a regent to
revoke IUPs.
1.1.9 In line with Article 119 of Law No.4 of 2009 above, Article 20 paragraph (1)
letter (c) of the Regional Regulation of East Kutai No.13 of 2004 provides that
an IUP expires because it is revoked by a regent and/or other authorised
officials because [the holder] has violated the applicable provisions set out in the
applicable laws in mining sector; or the holder of IUP failed to perform its
obligations as set out in the IUP.
08/887606_1 24
1.1.10 Therefore, it has been proven that the Defendant’s Decree No.540.1/2010 (the
object of the dispute) (see evidence T.II.Int-1) was issued pursuant to the
authority of the Defendant and based on valid reasons as set out in the Law
No.4 of 2009 and Regional Regulation of East Kutai No.13 of 2004.
Ad.1.2 THE DEFENDANT’S DECREE ON THE EXPLORATION IUP
ADDRESSED TO THE INTERVENING DEFENDANT WAS ISSUED
IN 2005, WHILE THE DECREE ON THE EXPLORATION IUP FOR
THE PLAINTIFF WAS ISSUED IN 2008. THUS THE LETTER OF THE
DEFENDANT THAT WAS ADDRESSED TO THE PLAINTIFF WAS
ISSUED 3 YEARS AFTER THE DEFENDANT’S DECREE ON THE
EXPLORATION IUP FOR THE INTERVENING DEFENDANT II WAS
ISSUED
The DEFENDANT’S DECREE NO.540.1/2010 (the object of the dispute) was
issued based on the fact that there is an overlapping of licence between the IUP of the
Intervening Defendant II (Decree No.80/02.188.45/HK/III/2005 dated 10 March
2005 addressed to the Intervening Defendant II (see evidence T.II.Int-3), Decree
No.188.4.45/358/HK/VH/2008 dated 17 July 2008 addressed to the Intervening
Defendant II (see evidence T.II.Int-4) which were ISSUED AHEAD OF the
Plaintiff’s IUP (ie Decree No.188.4/45/119/HK/2009 dated 27 March 2009 addressed
to the Plaintiff (see evidence T.II.Int-2) which was issued after the issuance of the
decree for the intervening defendant II.
1.2.1 By referring to the DEFENDANT’S DECREE NO.540.1/2010 (the object of
the dispute) (see evidence T.II.Int-1) which revokes the IUP of the plaintiff
(Decree No.188.4/45/119/HK/2009 addressed to the Plaintiff) (see evidence
T.II.Int-2), there is a LEGAL FACT which becomes the reason and basis for
the Defendant to revoke the IUP of the Plaintiff (ie Decree
No.188.4/45/119/HK/2009 which was addressed to the Plaintiff) (see
evidence T.II.Int-2) via the Defendant’s Decree No.540.1/2010 (object of the
dispute) (see evidence T.II.Int-1), due to the fact that the Defendant’s Decree
08/887606_1 25
No.540.1/2010 (object of the dispute) (see evidence T.II.Int-1) was issued on
the basis of overlapping between the IUP of the Intervening Defendant II (ie
the Defendant’s Decree No.80/02.188.45/HK/III/2005 dated 10 March 2005
addressed to the Intervening Defendant II (see evidence T.II.Int-3), Decree
No.188.4.45/358/HK/VH/2008 dated 17 July 2008 (see evidence T.II.Int-4)
which was issued earlier and the Plaintiff’s IUP (ie Defendant’s Decree
No.188.4/45/119/HK/2009 dated 27 March 2009) (see evidence T.II.Int-2
and Defendant’s Decree No.36/02.188.45/HK/IV/2008 dated 9 April 2008
(see evidence T.II.Int-5) which was issued three (3) years after that.
1.2.2 The fact on the overlapping licence between the one owned by the Intervening
Defendant II and the licence owned by the Plaintiff can be elaborated as
follows:
a. On 10 March 2005 Exploration IUP was issued for the Intervening Defendant
(see evidence T.II.Int-3)
The Intervening Defendant II obtained exploration IUP from the Defendant
based on the Decree of the Regent of East Kutai
No.80/02.188.45/HK/III/2005 dated 10 March 2005 regarding Exploration
Stage Mining Business License to PT Nusantara Wahau Coal with an area of
14,980 ha located at Busang Muara Ancalong district, East Kutai Regency (see
evidence T.II.Int-3);
b. On 9 April 2008 Exploration IUP was issued for the Plaintiff, which is 3
(three) years after the exploration IUP for the Intervening Defendant II was
issued (see evidence T.II.Int-5):
The Plaintiff obtained the exploration IUP from the Defendant based on the
Decree of Regent of East Kutai No.36/02.188.45/HK/IV/2008 dated 9 April
2008 regarding the Grant of Exploration Mining Concession for PT Ridlatama
Trade Powerindo (see evidence T.II.Int-5);
c. On 17 July 2008, an extension of exploration for the Intervening Defendant II
was issued (see evidence T.II.Int-4):
Thereafter, the Intervening Defendant II obtained an extension of IUP for 1st
exploration stage from the Defendant, based on the Decree of Regent of East
08/887606_1 26
Kutai No.188.4.45/358/HK/II/2008 dated 17 July 2008 (see evidence
T.II.Int-4);
d. On 27 March 2009, an Exploration IUP was issued to the Plaintiff (see
evidence T.II.Int-2):
The Plaintiff obtained Exploitation IUP from the Defendant based on the
Decree of the Regent of East Kutai No.188.4.45/119/HK/III/2009 dated 27
March 2009 [to] Ridlatama Trade Powerindo with an area of 5,386 ha located at
the Busang District, East Kutai Regency (see evidence T.II.Int-2);
e. On 18 February 2010 an IUP Exploration was issued to the Intervening
Defendant II based on the Defendant’s Decree No.540.1/K/148/2010 (see
evidence T.II.Int-6);
1.2.3 Based on the chronology of obtaining IUP as described above, it has been
proven that the Intervening Defendant II obtained IUP exploration in advance
of the Plaintiff; the Defendant issued an exploration IUP to the Intervening
Defendant II on 10 March 2005 (pursuant to the Decree of Regent of East
Kutai No.80/02.188.45/HK/III/2005) (see evidence T.II.int-3) and only 3
years after that; ie on 9 April 2008, the Defendant issued an exploration IUP to
the Plaintiff (pursuant to the Decree of the Regent of East Kutai
No.36/02.188.45/HK/IV/2008) (see evidence T.II.Int-5).
1.2.4 Due to the overlapping licence between the licences of the Intervening
Defendant II and the licenses of the Plaintiff over the same mining area,
therefore to avoid further or greater legal implication and in order to uphold
the legal certainty [principle], the Plaintiff’s exploration IUP (ie the Defendant’s
Decree No.188.4/45/119/HK/III/2009 addressed to the Plaintiff) (see
evidence T.II.Int-2) is revoked by the Defendant pursuant to the Defendant’s
Decree No.540.1/2010 (object of the dispute) (see evidence T.II.Int-1).
2. With respect to the administrative decision which was issued in contrary to the
applicable laws and regulations, Indroharto in his book entitled “Effort to Understand
The State Administrative Law” Book II of How to Appear Before State Administrative
08/887606_1 27
Court, Pustaka Sinar Harapan Jakarta Publisher, 1994, fifth edition, pp 172 - 174,
opines that a written stipulation is DEEMED IN VIOLATION OF the laws and
regulations because:
a. The relevant state administrative official or organisation thought that it had the
authority to issue or refuse to issue an [administrative] decision, whereas in fact it
does not have the authority to do so.
b. Based on the relevant regulation, it is true that there is an authority to issue an
[administrative] decision, however such authority was not vested in the
institution that issued the administrative decision being disputed. This kind of
event can occur if the relevant institution was exercising the action based on a
delegation, but such delegation was not based on the decision from delegator
or not allowed due to the lack of basis under the relevant regulation.
c. There is a legal basis for such authority under the laws and regulations.
However, the [administrative] decision itself violates the laws and regulations
which provide the basis or violates any other laws and regulations.
d. The laws and regulations which become the basis for issuing the relevant
stipulation violates the higher regulations (regulations having higher hierarchy).
In this case, the hierarchy of the prevailing legal principles/norms must be
considered.
e. The stipulation being disputed was issued in a manner which is not in line with
the procedural requirements. For example, a holder or the licence, under the
relevant regulation/requirement must first be heard prior to revoking that
licence or [if the requirement] specifies that an opportunity to express opinion
must be provided within a prescribed timeline.
3. Based on the above elaboration and by linking [that elaboration] with the
teaching/doctrine from Indroharto on the conditions for a written decision
(stipulation) to be deemed in violation of the laws and regulations, it has been proven
that:
a. The Defendant as a Regent (Bupati)/state administrative official has the
authority to issue the Defendant’s Decree No.540.1/2010 (object of the
dispute) (see evidence T.II.Int-1) pursuant to Article 119 of Law No.4 of 2009
08/887606_1 28
and Article 20 paragraph (1) of the Regional Regulation of East Kutai No.13 of
2004;
b. Pursuant to Article 119 of Law No.4 of 2009 and Article 20 paragraph (1) of
the Regional Regulation of East Kutai No.13 of 2004, it is true that there is an
authority for the Defendant to issue the Defendant’s Decree No.540.1/2010
(object of the dispute) (see evidence T.II.Int-1), and such authority is provided
to the Defendant as an official of an organisation who has issued the disputed
decree [administrative decision]. (ie Defendant’s Decree No.540.1/2010 / object of
the dispute) (see evidence T.II.Int-1);
c. The authority of the Defendant to issue the Defendant’s Decree
No.540.1/2010 (the object of the dispute) (see evidence T.II.Int-1) is based on
the Law No.4 of 2009 and Article 20 paragraph (1) of Regional Regulation of
East Kutai No.13 of 2004 and the Defendant’s Decree No.540.1/2010 (object
of the dispute) (see evidence T.II.Int-1) does not violate any other laws and
regulations.
d. Law No.4 of 2009 and Article 20 paragraph (1) of Regional Regulation of East
Kutai No.13 of 2004 which become the basis of the issuance of the
Defendant’s Decree No.540.1/2010 (object of the dispute) (see evidence
T.II.Int-1) does not contravene the regulations with higher hierarchy.
e. The Defendant’s Decree No.540.1/2010 (object of the dispute) (see evidence
T.II.Int-1) does not deviate from the procedural requirements because Law
No.4 of 2009 does not set out any procedure such as the license holder must
be heard first prior to revoking its licence.
4. Therefore, the Plaintiff’s argument which states that the Defendant’s Decree
No.540.1/2010 (ie object of the dispute) (see evidence T.II.Int-1) was issued in
contrary to Article 119 of Law No.4/2009 so that it exceeds authority [of the Defendant]
and contrary to the applicable laws and regulations, must be rejected.
B. Intervening Defendant II expressly reject the Plaintiff’s argument as provided for in
point 17 of page 5 of the Lawsuit which states that the Defendant’s Decree
No.540.1/2010 (object of the dispute) (see evidence T.II.Int-1) was not issued in
08/887606_1 29
accordance with the procedural requirements because it violates the laws and minister
regulation; and therefore the Defendant’s Decree No.540.1/2010 (object of the
dispute) was issued in contrary to the good governance principle and therefore it is
reasonable for the Defendant’s Decree No.540.1/2010 (object of the dispute) to be
revoked as provided for in Article 53 paragraph (2) letter b of Law on State
Administration Court.
The Reason for the Intervening Defendant II to refuse the Plaintiff’s argument above is as follows:
1. The issuance of the Defendant’s Decree No.540.1/2010 (object of the dispute) by the
Defendant did not violate the good governance principle because the issuance of the
Defendant’s Decree No.540.1/2010 (object of the dispute) by the Defendant is in line
with the principle of legal certainty, because:
There is a legal fact that the Defendant’s Decree No.540.1/2010 (object of the
dispute) was issued on the basis of licence overlapping, ie between IUP of the
Intervening Defendant II (Defendant’s Decree
No.80/02.188.45/HK/III/2005 dated 10 March 2005 issued to the
Intervening Defendant II (see evidence T.II.Int-3), Decree
No.188.4.45/358/HK/VH/2008 dated 17 July 2008 issued to the Intervening
Defendant II (see evidence T.II.Int-4) which was issued before the IUP of
Plaintiff (ie Decree No.188.4/45/119/HK/2009 dated 27 March 2009) (see
evidence T.II.Int-2) and Decree No.36/02.188.45/HK/IV/2008 dated 9 April
2008 (see evidence T.II.Int-5) was issued afterwards.
Legal fact on the licence overlap between the licence of the Plaintiff and the
licence of the Intervening Defendant II whereby the licences of the
Intervening Defendant II was issued earlier than the licence of the Plaintiff
becomes one of the reasons for issuing the Defendant’s Decree
No.540.1/2010 (object of the dispute) (see evidence T.II.Int-1) which revokes
the Plaintiff’s IUP (ie Decree No.188.4.45/119/HK/III/2009) (see evidence
T.II.Int-2), with a consideration of legal certainty as to who is entitled to hold
the licence at the same area. The implementation of such legal certainty
principle is based on the applicable laws, as the meaning of the legal certainty
principle itself is set forth in the elucidation of Article 53 paragraph (2) letter
(b) of the State Administrative Court Law junction conjunction with Law
08/887606_1 30
No.28 of 1999 on the Implementation of Governance which is Free From
Corruption and Nepotism, that is the legal certainty principle, a principle of
which is followed by state of law that gives priority to laws and
appropriateness and fairness in every policy of State governance.
Pursuant to the elucidation of Article 53 paragraph (2) letter b of State
Administrative Court Law, “good governance principle” includes the principle
of :
- Legal Certainty
- State Orderliness in Governance
- Transparency
- Proportionality
- Professionalism
- Accountability
As meant in Law Number 28 of 1999 on the Implementation of Governance
which is Free from Corruption and Nepotism. The meaning of legal certainty
principle is a principle in the state of law that gives priority to laws,
appropriateness and fairness in every policy of State governance.
1.4.1 As described by the Intervening Defendant II in point (a) of the Merits of the
Case section above, the issuance of the DEFENDANT’S DECREE No.
540.1/2010 (Object of the Dispute) (see Evidence T.II.Int-1) by the Defendant
is based on the authority vested in the Defendant as per Article 119 Law No. 4
of 2009 and valid reasons as per Article 119 of Law No. 4 of 2009. Whereas
the reason for issuing THE DEFENDANT’S DECREE No. 540.1/2010
(Object of the Dispute) (see Evidence T.II.Int-1) is the fact that the Defendant
had violated its obligations as provided for in the Plaintiff’s licence
(DEFENDANT’S DECREE No. 188.4.45/119/HK/III/2009 in point (f) of
the “stipulation” section (see Evidence T.II.Int-2), where the Plaintiff should
have obtained a borrow use permit of forest area from the Minister of Forestry
prior to carrying out a general survey and/or mining exploration in the forest
area prior to obtaining a permit from the Minister of Forestry, however in
08/887606_1 31
reality prior to obtaining the permit from the Minister of Forestry, the Plaintiff
has carried out a general survey and/or mining exploration in forest areas.
1.5 To be clear, the Intervening Defendant II hereby quotes letter (f) of the second
point of the “stipulation” section of the Defendant’s Decree
No.188.4.45/119/HK/III/2009 (see evidence T.II.Int-2):
"The holder of IUP having location within the Production Forest,
Limited Production Forest and Protected Forest areas must organise
the borrow and use of the forest area to the Minister of Forestry after
receiving the IUP and must report the development of the borrow and
use process of the area to the Regional Government of East Kutai
before extending or upgrading the IUP"
1.6 The reason of the Defendant to revoke the Plaintiff’s IUP (the Defendant’s
Decree No.188.4.45/119/HK/III/2009) (see evidence T.II.Int-2) via the
DEFENDANT’S DECREE No. 540.1/2010 (Object of the Dispute) (see
evidence T.II.Int-1) is a valid reason based on the authority of the Defendant
under the Law, ie Article 119 of Law No.4 of 2009 and Article 20 paragraph
(1) of the Regional Regulation of East Kutai No. 13 of 2004. These reasons
clearly reflect the implementation of the legal certainty principle by the
Defendant.
2. Therefore it is proven that the issuance of DEFENDANT’S DECREE
No.540.1/2010 (object of the dispute) (see evidence T.II.Int-1) was based on laws
and regulations (ie Law No.4 of 2009 and Regional Regulation of East Kutai No.13 of
2004). Therefore, it is clear that the issuance of DECREE OF THE DEFENDANT
No.540.1/2010 (object of the dispute) (Vide evidence T.II.Int-1) constitutes an
implementation of the legal certainty principle which is a principle of State of law
which gives priority to laws in every implementation of State policy (in this case the
Regent/Defendant).
3. Based on the description above, therefore the issuance of the Defendant’s Decree No.
540.1/2010 (object of the dispute) (see evidence T.II.Int-1) has been in line with the
principle of legal certainty and therefore the Defendant’s Decree No.540.1/2010
(object of the dispute) (Vide evidence T.II.Int-1) is not inconsistent with the Good
08/887606_1 32
Governance Principles. Therefore the Plaintiff’s argument which states that the
DEFENDANT’S DECREE No.540.1/2010 SK (object of the dispute) (Vide
evidence T.II.Int-1) was issued in violation of the General Principles of Good
Governance must be rejected.
C. Defendant II Intervention expressly reject the argument of the Plaintiffs in points 11,
12 and 13 of page 4 and point 17 of page 5 of the Lawsuit which in principle state
that the DEFENDANT’S DECREE No.540.1/2010 (object of the dispute) (see
evidence T.II.Int-1) is not issued in accordance with the procedural requirements
because it is in violation of the Regulation of the Minister of Domestic Affairs No. 54
of 2009 on the Official Papers / Scripts for Regional Governments (Regulation of
the Minister No.54 of 2009) and therefore the DEFENDANT’S DECREE
No.540.1/2010(Object dispute) (see evidence T . II.Int-1) was issued in contrary to
the Good Governance Principles and therefore it is reasonable for the
DEFENDANT’S DECREE No.540.1/2010(object of the dispute) (see evidence
T.II.Int-1) to be cancelled/revoked as provided in Article 53 paragraph (2) letter (b)
Law of the State Administrative Court Law.
Whereas the reason of the Intervening Defendant II to reject the argument of
the Plaintiff above is as follows:
1. The purpose of issuing the Regulation of the Minister No.54/2009 is
for the purpose of administration efficiency and effectiveness of
regional governments therefore it is necessary to unify the official
scripts of the regional government as can be seen in letter (a) of the
"Consideration" part of the Regulation of the Minister of Domestic
Affairs No.54/2009 namely:
"For the purpose of administration efficiency and effectiveness in
regional governments, it is necessary to unify the official scripts
the regional governments."
2. Furthermore, based on Article 78 paragraph (1) of the Regulation of
the Minister of Domestic Affairs No.54/2009 it has been decided that
the implementation of scripts for Provincial and Municipal
governments will be further regulated in Governor and/or
08/887606_1 33
Regent/Mayor regulations, as quoted from Article 78 paragraph (1) of
the Regulation of the Minister of Domestic Affairs No. 54/2009 as
follows:
"The administration of official scripts in Provincial and Municiap
Governments shall be further regulated by the Governor and/or
Regent/Mayor Regulations"
3. To date, the Regulation of Regent as meant by Article 78 paragraph (1)
of the Regulation of the Minister of Domestic Affairs No.54/2009 has
not been enacted because the implementing regulations of the
Regulation of Minister of Domestic Affairs No.54/2009 has not yet
been formed or does not exist. Therefore, implementation of official
scripts pursuant to the Regulation of the Minister of Domestic Affairs
No.54/2009 cannot be applied in this case or cannot be applied to
the DEFENDANT’S DECREE No.540.1/2010 (object of the
dispute) (see evidence T.II.Int-1).
4. Accordingly, the arguments of the Plaintiff in numbers 11, 12 and 13
of page 4 and number 17 of page 5 of the lawsuit that essentially
state that the Decree of THE DEFENDANT No.540.1/2010
(disputed object) (See evidence T.II.Int-1) has not been issued
according to procedures due to its contradicting with Regulation of the
Minister of Domestic Affairs No.54/2009 and that the Decree of THE
DEFENDANT No.540.1/2010 (dispute object) (See evidence
T.II.Int-1) has therefore been issued against the General Principles of
Good Governance ARE GROUNDLESS AND MUST BE
REJECTED.
Based on the above explanations of Intervening Defendant II, it is only legally reasonable if Intervening Defendant II requests the Panel of Judges to be willing to render the following decisions: 1. To reject the lawsuit of the Plaintiff in its entirety; 2. To sentence the Plaintiff to pay all case costs;
That on the response of the Defendant, the Plaintiff has filed its Counter
Plea dated 03 November 2010 and on the response of the Intervening Defendant II,
08/887606_1 34
the Plaintiff has filed its Counter Plea dated 13 December 2010 and against the
Counter Plea of the Plaintiff, the Defendant has also filed its Rejoinder dated 23
December 2010 with the contents as attached to the briefs of this case;--------------------
---------------------------------------------------------------------
That in order to strengthen the arguments of its lawsuit, the Plaintiff has filed
evidential letters in the form of duly stamped photocopies which, when matched, do
accord to their originals with the exception of Exhibits P-6, P-14, P-15, P-17. The
Photocopies of these Photocopies can therefore be formally used as evidence and are
marked as P-1 up to P-18 with details as follows:
P-1.a: True and correct photocopy of Deed of Establishment of PT. Ridlatama
Trade Powerindo No.80 dated 14 December 2006, made before Notary
Ingrid Lannywaty, SH, Notary in Jakarta;
P-1.b: True and correct photocopy of Decree of the Minister of Human Rights and
Law of the Republic of Indonesia, No: W7-01846 HT.01.01-TH.2007 dated
23 February 2007;
P-2.a: True and correct photocopy of Deed of Establishment of Branch Office
No.30 dated 05 January 2007, made before Notary Ingrid Lannywaty, SH
Notary in Jakarta, having its offices at Jalan Tiung III.15, Teluk Lingga Sub-
district, Sengata Utara District, East Kutai Regency;
P-2.b: True and correct photocopy of Nuisance Permit (Surat Izin Undang-Undang
Gangguan (HO)) No.570/BP2T-2.2/VIII/2010 dated 3 August 2010;
P-3.a: True and correct photocopy of Deed on the Restatement of Meeting
Resolutions of PT. Ridlatama Trade Powerindo No.98 dated 30 June 2010,
made before Notary Rusnaldy, SH, Notary in Jakarta;
P-3.b: True and correct photocopy of Deed on Approval of Confirmation of
Meeting Resolutions No.12 dated 04 October 2010, made before Notary
Rusnaldy, SH, Notary in Jakarta;
P-3.c: True and correct photocopy of Decree of the Minister of Human Rights and
Law of the Republic of Indonesia No.AHU-AH.01.10-25444 dated 07
October 2010;
P-4: True and correct photocopy of Decree of the East Kutai Regent
No.188.4.45/119/HK/III/2009 dated 27 March 2009 on the Exploitation
08/887606_1 35
Mining Business Licence to PT. Ridlatama Trade Powerindo for an area of
5,386 HA located at Busang District, East Kutai Regency;
P-5: True and correct photocopy of Decree of the East Kutai Regent
No.540.1/K.444/HK/V/2010 dated 4 May 2010 regarding the revocation of
Decree of the East Kutai Regent Number: 188.4.45/119/HK/III/2009
dated 27 March 2009 on the Exploitation Mining Business Licence to PT.
Ridlatama Trade Powerindo for an area of 5,386 HA located at Busang
District, East Kutai Regency, without map;
P-6: Photocopy of Photocopy of acknowledgment of receipt from CV. Tiki mail
delivery service company of West Jakarta Municipality, Cengkareng area, as
addressed to PT Ridlatama Group dated 27 March 2009 and sent by the
Legal Secretary of the East Kutai Regency, East Kalimantan Province on 29
May 2010 at 16.42.12 hours WIB ;
P-7: True and correct photocopy of AIRMAIL Envelope containing Letter of
Revocation of Exploitation Mining Business Licence, as addressed to PT.
Ridlatama Group and delivered by the Legal Secretary of the East Kutai
Regency;
P-8: True and correct photocopy of Law Number 4 of 2009 Regarding Mineral
and Coal Mining, whereby the legal basis behind the revocation of the
Exploitation Mining Business Licences has contradicted with Articles 117,
118, 119, 120 and Article 121 thereof;
P-9: True and correct photocopy of Law of the Republic of Indonesia No.41 of
1999 Regarding Forestry, namely of Article 38 jo Article 50 jo Article 51,
Article 77 jo Article 78;
P-10: True and correct photocopy of Regulation of the Minister of Domestic
Affairs Number 54 of 2009 Regarding Official Papers/Scripts for Regional
Governments according to Article 1 paragraph (26), paragraph (45), jo
Article 3 paragraph (2), paragraph (3) jo Article 4 jo Articles 7, 8, 9, 11 letter
c jo Article 20 paragraph (1) jo Articles 37, 38 Article 62 paragraph (1) jo
Articles 66, 67, 68;
P-11: True and correct photocopy of Sample Cover of Official Papers/Scripts of
Governors and Regents/Mayors, Regulation of the Minister of Domestic
08/887606_1 36
Affairs Number 54 of 2009 Regarding the Official Papers/Scripts for
Regional Governments;
P-12: Photocopy in accordance with the Legalized Report on Results of Special
Investigation (Regent’s Instruction) to follow up on results of investigation
of BPK-RI on coal management for years 2006 and 2007 regarding
indications of forgery of 5 (five) Decrees of the Regent regarding coal mining
business licences of PT. Ridlatama Group Number: 700/29/
ITWILKAB/III/2010 dated 18 March 2010;
P-13: True and correct photocopy of Letter of Instruction on the Termination of
Investigation (Surat Perintah Penghentian Penyidikan, SP3) from East Kutai
Police No.SP3/35/V/2009/Reskrim dated 4 May 2009;
P-14: Photocopy of Photocopy of Location Map on Space Utilization of Regional
Spatial Layout Plan of East Kutai Regency for 2004, as signed by East Kutai
Regent and Chairman of Regional People’s Legislative Assembly (DPRD) of
East Kutai in 2004;
P-15: Photocopy of Photocopy of Map on the Plotting of Coordinates of the
Plaintiff for the KBNI (RT.RW) area of the East Kutai Regency for 2004;
P-16: True and correct photocopy of Letter from East Kutai Regional
Government, Regency Inspectorate Number: 700/115/ITWILKAB-
TU/III/2010 dated 18 March 2010 Regarding : Report on Results of Special
Investigation (Regent’s Instruction) to follow up on results of investigation
of BPK-RI on coal mining management for budget years 2006 and 2007
regarding indications of forgery of 5 (five) Decrees of the Regent regarding
coal mining business licences of PT. Ridlatama Group, along with
attachments therefor in accordance with evidence P-12 ;
P-17: Photocopy of photocopy of Regional Government Regulation of East Kutai
Regency Number 06 of 2004 regarding regional spatial layout plan of the
East Kutai Regency for years 2001-2005 and map on allocation of spatial
plan of regional spatial layout plan of East Kutai Regency, as signed by East
Kutai Regent H. MAHYUDIN, ST, MM and a map in accordance with
evidence P-14 ;
08/887606_1 37
P-18: True and correct photocopy of leaflet presentation on promotion of regional
Government of East Kutai Regency, namely on the Economic Potential of
the East Kutai Regency;
That in addition to filing evidence in the form of letters, the plaintiff has also
forwarded 2 (Two) witnesses in the court hearings, each of whom, under oath, has
basically explained the following:
1. First Witness, FADLI IBRAHIM, SH, has given testimony under oath and basically
states the following:
- That the witness has been working at the Directorate General Mineral and Coal
Mining (Dirjen Minerba) since 1 March 1985.
- That the witness served as Head of the Legal Division at the Directorate General of
Mineral and Coal since 2009;
- That the witness is aware that PT. Ridlatama Trade Powerindo has Mining Business
Licences, due to the party submitting the applications being the company itself, in this
case PT. Ridlatama Trade Powerindo;
- That the witness is aware of the disputed object in this case, namely Revocation of
Decree of the East Kutai Regency Number: 188.4.45/119/HK/III/2009 regarding
Exploitation Mining Business Licence to PT. Ridlatama Trade Powerindo, for an area
of 5,386 HA located at Busang District, East Kutai Regency;
- That according to procedures, when such application is filed there should be an
introduction letter from the Regent;
- That as regards the exploitation licences issued by the East Kutai Regent to PT
Ridlatama Trade Powerindo, copies thereof have been conveyed to the Director
General of Mineral and Coal while the revocations thereof are not copied;
- That according to procedures, a copy of revocation of a Mining Business Licence must
be conveyed to the Director General of Mineral and Coal;
08/887606_1 38
- That as the party authorised to revoke a licence is a party who issued a decree (on the
issuing of such licence) in the first place, the party authorised to revoke the licences in
this case is the East Kutai Regent;
- That with the issuance of Law No.4 of 2009, the duties of the Director General of
Mineral and Coal is merely to carry out supervision on licences issued by the Heads of
Regions;
- That before making their decisions, in this case the Issuance of Mining Business
Licences, Regents do not always coordinate with the Director General of Mineral and
Coal;
- That the witness is not aware that the Mining Business Licences of PT. Ridlatama
Trade Powerindo cover a forest area;
- That the witness has never visited the location of the disputed object ;
- That the witness is aware that the disputed object in this case has been revoked by the
East Kutai Regent upon the processing of the lawsuit filed by PT. Ridlatama Trade
Powerindo;
2. Second Witness, SONY HERU PRASETYO, has given testimony under oath and
basically states the following:
- That the witness has been working at Dirjen Mineral and Coal since 2009;
- That the witness is aware of the disputed object in this case, namely revocation of
Decree of the Regent of East Kutai Number: 188.4.45/119/HK/III/2009 regarding
the Exploitation Mining Business Licences to PT Ridlatama Trade Powerindo;
- That the witness knows about the procedures for the issuance of Exploitation Mining
Business Licences;
- That the witness has not followed procedures for the issuance of Exploitation Mining
Business Licences of PT Ridlatama Trade Powerindo;
08/887606_1 39
- That before the East Kutai Regent revoked the Exploitation Mining Business Licences
of PT. Ridlatama Trade Powerindo, the witness is not aware whether the Regent has
ever come to Dirjen Minerba or not;
- That although, after regional autonomy, relations no longer exist between the Regional
Governments and Dirjen Minerba, since the issuance of Law No.4 of 2009 Dirjen
Minerba has carried out supervision on licences issued by the Heads of Regions;
- That the witness is aware that the East Kutai Regent has revoked the Exploitation
Mining Business Licences of PT. Ridlatama Trade Powerindo;
- That the witness is aware that the East Kutai Regent has revoked the Exploitation
Mining Business Licences of PT. Ridlatama Trade Powerindo due to the witness
having read the decree thereon himself;
- That the witness has never visited the location of the disputed object;
That in order to strengthen the arguments of his rebuttal, Defendant has filed
evidential letters in the form of duly stamped photocopies which, when matched, do
accord with their originals. They therefore may formally be used as evidence and are
marked as T-1 up to T-8 with details as follows:
T-1: True and correct photocopy of Report on Special Identification from the
Inspectorate General of the Ministry of Forestry for the Month of March
2010;
T-2 True and correct photocopy of Letter of the Ministry of Forestry of RI No.
S.10/Menhut/III/Rhs/2010 dated 21 April 2010;
T-3: True and correct photocopy of Findings of staff of Head of Mining Offices
of the East Kutai Regency dated 27 April 2010 regarding: revocation of
mining business licences of PT. Rhidatama Group, as addressed to the
Regional Secretary of the East Kutai Regent;
T-4: True and correct photocopy of Findings of staff of Head of Forestry Offices
of the East Kutai Regency dated 30 April 2010 regarding: findings of the
Forestry Offices as addressed to the East Kutai Regent;
08/887606_1 40
T-5: True and correct photocopy of Register Book of outgoing letters of Mining
Offices for Year 2009;
T-6: True and correct photocopy of Register Book of Forestry Offices for Year
2009;
T-7: True and correct photocopy of Decree of East Kutai Regent Number:
540.1/K.444/HK/V/2010 dated 4 May 2010 Regarding Revocation of
Decree of East Kutai Regent Number: 188.4.45/119/HK/III/2009
Regarding the Exploitation Mining Business Licence To PT. Ridlatama Trade
Powerindo for an area of 5,386 Ha, located at Busang District and Telen
District, East Kutai Regency;
T-8: True and correct photocopy of Minutes/Report on Results of Meeting dated
22 April 2010;
That in addition to submitting evidence in the form of letters, Defendant has also
forwarded 3 (three) witnesses in court hearings, each under oath, to basically explain the
following:
1. First Witness, namely OSTEN SIANIPAR, SH., M.Si, who has given testimony
under oath and basically states the following:
- That the witness has served as Head of the Subsection on Administrative
Investigations of the Inspectorate General of the Ministry of Forestry since year
2007;
- That the main Duties and functions of the witness’ position were to follow up on
reports and complaints from the public, including on corruption, forestry criminal
acts and administrative violations;
- That the witness is aware that the object of dispute in this case is Decree of the East
Kutai Regent Number: 540.1/K.444/HK/2010 dated 4 May 2010 concerning the
revocation of Decree of East Kutai Regent Number: 188.4.45/119/HK/III/2009
concerning the Exploitation Mining Business License to PT Ridlatama Trade
Powerindo, for an area of 5.386 HA located at Busang District, East Kutai Regency;
08/887606_1 41
- That the witness is aware about the existence of report from the Head of the Dayak
Kutai Indigenous People’s Institution;
- That on 13 February 2010, a report was received from the Head of the Dayak Kutai
Indigenous People’s Institution which explains that the East Kutai Regent has issued
exploitation licenses for 4 companies, namely: PT. Ridlatama Tambang Mineral, PT.
Ridlatama Trade Powerindo, PT. Investama Resources, PT. Investmine Nusa Persada
which have conducted exploration and general survey activities without any licence
from the Minister of Forestry of RI;
- That based on such report, an investigation team has been formed to follow up on
such report, and from the investigation carried out and facts found on the field, it has
been proven that such four companies have already filed for licenses to use certain
areas for exploitation purposes. Although these applications were already in the hands
of the Minister of Forestry of RI, the investigation team found facts that the
exploration documents of PT Ridlatama Tambang Mineral Cs and the borrow and use
licence of the Minister of Forestry of RI were not found. Overlapping mining locations
between that of PT. Ridlatama Tambang Mineral (Plaintiff) and PT. Kaltim Prima
Nusantara Coal (Intervening Defendant II) were also found. According to forestry law
regulations, licenses issued by regional governments as regards exploration and general
survey licences must be permitted by the Minister of Forestry, failing which the same
will constitute a criminal act according to Law No.41/1999;
- That on the findings of such investigation team, the Minister of Forestry of RI has, on
12 April 2010, sent a letter to the East Kutai Regent to have all exploration, general
survey and exploitation activities of PT. Ridlatama Tambang Mineral Cs ceased due to
its not having any license for the borrow and use of forest areas from the Minister of
Forestry of RI and to have its licenses cancelled due to its being alleged of conducting
criminal acts in the field of forestry;
- That the license of PT. Ridlatama Trade Powerindo does not entirely cover
production forest areas;
- That after the team has carried out the investigation, PT. Ridlatama Trade Powerindo
has never been summoned;
- That most of the licences issued by the East Kutai Regent to PT. Ridlatama Trade
Powerindo covers production forest areas;
08/887606_1 42
- That the Minister of Forestry of RI is authorized to request the Regent to revoke
licenses which cover production forest areas;
- That the witness is not aware that an SP 3 from the Police has been issued as regards
the licences of PT. Ridlatama Trade Powerindo;
- That the witness does not know the results of investigation of the Regional of
Supervisory Board (Bawasda);
2. Second Witness, namely ARMIN, ST, who basically states as follows:
- That the witness has participated in the process of staff review;
- That the staff review has been conveyed to the Regional Secretary (Sekda) of the East
Kutai Regency;
- That an indication of witness’ participation in such staff review process is on 22 April
2010 when a meeting was held with relevant technical departments. Such meeting
discussed the issue of the Letter of the Minister of Forestry of RI Number: S140/
Menhu-VII/2010 dated 31 March 2010 concerning the rejection of licence on the
borrow and use of forestry areas for the exploration activities of PT. Ridlatama Trade
Powerindo, based on which results reviews have been made;
- That the findings of the State Audit Board (BPK) were also talked about and
discussed;
- That the essence of the Letter of the Minister of Forestry of RI is to request the East
Kutai Regent to cease all exploration, general survey, and exploitation activities of PT.
Ridlatama Tambang Mineral Cs due to its not having any license for the borrow and
use of forestry areas from the Minister of Forestry and to request the cancellation of its
licenses due to its being alleged of conducting criminal acts in the field of forestry;
- That the East Kutai Regent has followed up on the letter of the Minister of Forestry of
RI;
- That PT. Ridlatama has obtained an exploitation licence from the East Kutai Regent,
although PT. Ridlatama Trade Powerindo Cs has conducted exploration activities
before receiving a licence from the Minister of Forestry of RI;
- That BPK is a State Audit Board whose authorities include the conducting of audits;
- That the witness does not know whether PT. Ridlatama Trade Powerindo has fulfilled
its obligations such as to pay taxes;
08/887606_1 43
- That of all the Companies audited by the State Audit Board (BPK), the name PT.
Ridlatama Trade Powerindo appeared;
- That the witness does not know whether the audit results of the State Audit Board
(BPK) has been conveyed to the Regional Supervisory Board (Bawasda);
- That the witness does not know that the licences granted by the East Kutai Regent to
PT. Ridlatama Trade Powerindo cover production forest cultivation areas;
3. Third Witness named Ir. ORDIANSYAH M.P, who explains in the essence as follows:
- Whereas the witness was the Head of the Office of Planalogy of Kutai Timur Regency
from years 2007 to 2009 and became the Head of the Office of Spatial Layout and
Land Measurement at the Department of Land and Spatial Layout of the Kutai Timur
Regency since 2009 to 2010;
- Whereas the witness had never taken any leave of absence when he was the Head of
the Office of Planalogy of Kutai Timur Regency,;
- Whereas the witness is aware of the Decree of The Regent of Kutai Timur No.
188.4.45/119/HK/2009 dated 27 March 2009, on mining business license (IUP) of
exploitation to PT Ridlatama Trade Powerindo, in the 5.389 HA areas which located at
Busang District Kutai Timur Regency;
- Whereas the map for the Mining Business License on exploitation (IUP) of PT
Ridlatama Trade Powerindo is not the standard map, because the map which forms
part of the licence uses a map which is not for attachment to the IUP Exploitation
while the standard map uses a format which has been in place since the establishment
of the Department of Planalogy of Kutai Timur Regency in 2007 and this standard
map is annotated with other licences so where there is overlapping, it can be seen
clearly;
- Whereas the map for the Mining Business License (IUP) on exploitation of PT
Ridlatama Trade Powerindo (exhibit P-4) is not a product of the witness;
- Whereas the witness never made or issued the exploitation licence map year 2008 in
the name of PT Ridlatama Trade Powerindo;
- Whereas the Map is called “The Map of Mining Business License on Exploration” or ”
The Map of Mining Business License on Exploitation”;
08/887606_1 44
- Whereas if there is any fault in respect of the initial in the license, the Head of
Planalogy Department is not responsible, because every license that has been entered
into the database has never overlapped [with another licence];
- Whereas every letter issued by the Head of the Office of Planalogy of Kutai Timur
Regency should be initialed;
- Whereas the conditions for attaching a map to a Decree of Mining Business License
are as follows:
o The map is issued by the Department of Planalogy of Kutai Timur Regency
and initialed by an authorized officer/the Head of Planalogy Department.
o The map is titled “The Map of Mining Business License on Exploration” or
"The Map of Mining Business License on Exploitation".
o The map uses the standard format put in place by the Department Planalogy of
Kutai Timur Regency since year 2007.
- Whereas in order to affirm the objections arguments, the Intervening Defendant II
has submitted its evidence in the form of copies which were legalized (bermeterai) and
matched to the original save for the evidence of T.II.Int-8, T.II.Int-p, T.II.Int-10,
T.II.Int-11, T.II.Int-12 which were photocopies of copies therefore formally they
could be used as evidence and marked T.II.Int-1 to T.II.Int-12, which details are as
follows:
T.II.Int-1 : Photocopy in accordance with the legalised Decree of Kutai Timur
Regency Number 80/02.188.45/HK/III/2005 dated 10 March 2005
on the Mining Business License on Exploration to PT Nusantara
Wahau Coal, Muara Ancalong, Kutai Timur Regency;
T-II.Int.2 : Photocopy in accordance with the legalised Decree of Kutai Timur
Regency Number 188.4.45/358/HK/VII/2008 dated 17 July 2008 on
The Mining Business License of extension to the Exploration Stage I to
PT Nusantara Wahau Goal in 14.890HA areas which located at Busang
Subdistrict, Muara Ancalong, Kutai Timur Regency;
T-II.Int.3 : Photocopy in accordance with the legalised Decree of Kutai Timur
Regency Number 540.1/K.148.2010 dated 18 February on The
Approval of Mining Business License of Exploration to PT Nusantara
08/887606_1 45
Wahau Goal in 14.890HA areas which located at Busang Subdistrict,
Muara Ancalong, Kutai Timur Regency;
T-II.Int.4 : Photocopy in accordance with the original Defendant’s List of
Evidence in State Administrative Case Number:
33/G/2010/PTUN.SMD dated 16 December 2010 at Samarinda State
Administrative Court;
T-II.Int.5 : Photocopy in accordance with the original Defendant’s List of
Evidence in State Administrative Case Number:
34/G/2010/PTUN.SMD dated 16 December 2010 at Samarinda State
Administrative Court;
T.II-Int.6 : Photocopy in accordance with the original Law Number 41 Year 1999
on Forestry;
T.II.Int.7 : Photocopy in accordance with the original Minister of Forestry
Regulation Number P.43/Menhut-II/2008 on The Manual of Land-
Use Forestry Area;
T.II.Int.8 : Photocopy of a copy of Letter from PT Nusantara Wahau Coal to
The Regent of Kutai Timur Number: 005/I/06 dated 11 January 2006
Subject: The Application for the Extension Period of KP Exploration;
T.II.Int.9 : Photocopy of a copy of Letter from PT Nusantara Wahau Coal to
The Regent of Kutai Timur Number: 010/IX/06 dated 11 September
2006 Subject: The Application for the Extension Period of KP
Exploration;
T.II.Int.10 : Photocopy of a copy of Receipt dated 12 September 2006 signed by
Herawan Kudo Asmara as the Transferor and Kinah Wulandari as the
Treansferee (Department of Mining and Energy of Kutai Timur
Regency);
T.II.Int.11 : Photocopy of a copy of Letter from PT NUSANTARA WAHAU
COAL to The Regent of Kutai Timur Number: NKC-008/PS/XI/06
dated 20 November 2006 subject: 1. The Delivery of the Data of
Company Mining License Holders on Kutim Area, 2. The Application
for the Extension Period of KP Exploration;
08/887606_1 46
T.II.Int.12 : Photocopy of a copy of Letter from PT Nusantara Energy to The
Regent of Kutai Timur Number: NE-027/WH/IV/2007 dated 12
April 2007 Subject: The Application for the Extension Period of KP
Exploration on behalf PT Nusantara Energy Business Group;
Considering that the Defendant Intervention II did not produce any witness.
Considering that during the proceedings, Plaintiff through its attorney has filed
its conclusion dated 12 February 2011, Defendant through its attorney has filed its
conclusion dated 17 February 2011, and the Intervening Defendant II through its
attorney has filed its conclusion dated 17 February 2011.
Considering that all that transpired in the proceedings during the investigation of
the case is recorded in the Minutes of Proceedings and forms an inseparable part of
the decision.
ON THE LEGAL CONSIDERATIONS
Considering, that the aim and purpose of the claim of the Plaintiff is as above
mentioned;
Considering, that towards the claim of the Plaintiff, Defendant has filed the
response dated 21 October 2010, which contains the exception and principle case;
Considering, that towards the claim of the Plaintiff, the Intervening Defendant II
has submitted the response dated 9 December 2010 which contained the principle
case;
Considering that before considering the merits of the dispute the Panel of Judges
will first consider the Defendant’s exception;
IN THE EXCEPTION
Considering, that Defendant has filed the arguments of exception in its response
dated 21 October 2010 which are in essence as follows:
� The Claim was Obscuur Libel;
08/887606_1 47
1. Whereas the argument of Plaintiff claim number 5 which explained the
norm Article 119 letter a, b, and c Law Number 4 Year 2009, the said
norms do not regulate formal procedures relevant to the revocation.
From the perspective of the normative theory, namely the norm
adressat aspect, subject of the norm, object of the norm, and operator
of the norm, show that the norms inside Article 119 letter a, b, and c
regulate the relevant authorized official (bevoegdheid);
2. Whereas a review of Law Number 4 Year 2009 on Mineral Mining and
Coal's Article 1 to Article 175 would show that none of them regulates
the procedures before or for the revocation of the IUP or IUK,
therefore with respect to the procedure of revocation, there exists an
unfettered authority and not a restricted authority due to the absence of
such norms,
3. Whereas the petition of Plaintiff claims did not follow the guidance as
enacted in the Technical Guide on Administration and Administrative
Court Book II which enacted based on the Decree of the Head of
MARI dated 4 April 2006 Number: KMA/032/SK/IV/2006 letter U
number 6. Therefore the claim of the Plaintiff is not in accordance with
the provision under Article 56 paragraph (1) letter c;
Considering, that in response to the foregoing arguments, the Plaintiff has
stated in its Counter Plea dated 3 November 2010 that in essence it rejects all the
arguments of the exception and repeats its arguments, conversely in the Rebuttal of
Defendant dated 11 November 2010, it is stated that in essence the Defendant repeats
its arguments in the exception;
Considering, that in relation to the arguments of the Defendants exception, the
Panel of Judges is of the view that according to the law the Defendant's exceptions can
be categorized as exceptions obscuur libel, therefore the Panel of Judges takes the view
that the exceptions are considered as other exceptions and based on Article 77
paragraph (3) Law number 8 Year 1986 on State Administration Judicature, those
exceptions are to be decided together with the principal case;
08/887606_1 48
Considering, that the Panel of Judges will first consider the obscuur libel claim that
the petition of Plaintiff is not in accordance with the guidance as enacted in the
Technical Guide on Administration and Administrative Court Book II enacted based
on the Decree of Head of MARI dated 4 April 2006 Number:
KMA/032/SK/IV/2006 letter U number 6 and consequently the claim of the Plaintiff
is not in accordance with the provision on Article 56 paragraph (1) letter c;
Considering that Panel of Judges found the legal fact based on the petition of the
Plaintiff on its claim dated 25 August 2010 registered with the Samarinda State
Administrative Court Registrar Office on 27 August 2010 and amended on 7 October
2010 in the case register Number: 32/G/2010/PTUN-SMD, Plaintiff appealed to the
Panel of Judges of Samarinda State Administrative Court, who examined on this case
to decide:
1. To grant the claim of Plaintiff entirely;
2. To declare void or invalid the Decree of Regent of Kutai Timur, number:
188.4.45/119/HK/III/2009, concerning Mining Business License (IUP) of
exploitation to PT Ridlatama Trade Powerindo, on 5.386 HA areas located at
Busang Subdistrict, Kutai Timur Regency;
3. To command the Defendant to revoke the Decree of Defendant
No.540.1/K.444/HK/V/2010 dated 4 May 2010, regarding to the revocation of
the Decree of Regent of Kutai Timur, number: 188.4.45/119/HK/III/2009,
concerning Mining Business License (IUP) of exploitation to PT Ridlatama
Trade Powerindo, on 5.386 HA areas located at Busang Subdistrict, Kutai Timur
Regency;
4. To sentence the Defendant to pay the court fees;
Considering, that based on Article 56 paragraph (1) letter c Law Number 5
Year 1986 on State Administration Judicature it is stated that:
(1) The claim should contain:
c. basis of the claim that is requested to be decided by the court;
08/887606_1 49
Considering, that it also set out on Article 53 paragraph (1) Law Number 9
Year 2004 on the Amendment of Law Number 5 Year 1986 on State Administration
Judicature which stated that: “The person or the enterprise of civil law who felt their
interests harmed by the decision of the administrative state may file a written claim to
the competent court which contains the state administration's decision in the dispute
to be declared void or invalid, with or without claims of compensation and or
rehabilitation;
Considering that based on the provision under Article 56 paragraph (1) letter c
Law Number 5 Year 1986 on State Administration Judicature juncto Law Number 9
Year 2004 on the Amendment of Law Number 5 Year 1986 on State Administration
Judicature, Panel of Judges is of the view that the primary request in the claim in the
State Administrative Court is for the the state administration's decision in the dispute
to be declared void or invalid, with or without claims of compensation and or
rehabilitation;
Considering, that next in relevant to the dispute of State Administrative on aquo
cases, Panel of Judges is of the view that the petition by the Plaintiff as stated in the
Plaintiff's claim has fulfilled the provision as enacted under Article 56 paragraph (1)
letter c Law Number 5 Year 1986 on State Administration Judicature juncto Law
Number 9 Year 2004 on the Amendment of Law Number 5 Year 1986 on State
Administration Judicature, therefore Panel of Judges conclude that based on law the
Defendant exception on obscuur libel claim in connection with the Plaintiff's claim based
on the law must be rejected;
Considering, that towards the other arguments of Defendant exception which
have been categorized on the exception of obscuur libel claim, Panel of Judges is of the
view that the arguments of the Defendant is part of the arguments in the principal case
for the Panel of Judges to examine the object of the dispute, therefore the Panel of
Judges concludes based on the law that the arguments of Defendant's exception
should be set aside, for the an sich exceptions means that the arguments by the
08/887606_1 50
Defendant are outside the arguments in the principal case, therefore the Defendant's
exception must under the law be rejected.
IN THE PRINCIPAL CASE
Considering, that the intent and purpose of the claim by the Plaintiff set out in its letter
of claim;
Considering, that the letter of claim of the Plaintiff dated August 25, 2010 registered in
Registrar’s Office of State Administrative Court Samarinda dated 27 August 2010 and
amended on 7 October 2010 with register case Number: 32/G/2010/PTUN-SMD, has raised
a claim which essentially seeks a declaration revoking or nullifying as well as ordering the
Defendant to Decree of the Defendant No. 540.1/K.444/HK/V/2010 dated 4 May 2010,
regarding the revocation decision of the East Kutai Regent Decree Number:
188.4.45/119/HK/III/2009 regarding Exploitation Mining Business Permit (IUP) to PT
Ridlatama Trade Powerindo, 5.386 Ha area, located in Busang District, East Kutai Regency
because it was issued not based on the prevailing regulations as well as contrary to General
Principles of Good Governance as contained in the court file of this case, and to shorten the
description of the decision, it shall be regarded as an inseparable part of this decision ;
Considering, whereas therefore the object of dispute in the aquo case is the Decree of
the Defendant No. 540.I/K.444/HK/V/2010 dated 4 May 2010, regarding repeal of decision
East Kutai Regent Number: 188.4.45/119/HK/III/2009, regarding Exploitation Mining
Business Permit (IUP) to PT Ridlatama Trade Powerindo, 5.386 Ha area, which located in
Busang District, East Kutai Regency (vide of evidence P-5 = T-7);
Considering, that upon the arguments of the lawsuit plaintiffs, Defendant and
Intervening Defendant II each has filed an answer dated October 21 2010 and December 9,
2010, each of which essentially stated that object of the disputes aquo is conducted and
appropriate procedural with laws and regulations as well as general principles of good
governance ;
08/887606_1 51
Considering, that to the rebuttal arguments of Defendant and Intervening Defendant
II, Plaintiff has responded with the counterplea each dated 3 November 2010 and 13
December 2010 where essentially the Plaintiff rejected all rebuttal arguments of the Defendant
and Defendant II intervention as well as on the proposition lawsuit, otherwise in the closing
argument of the defendant dated 11 November 2010 and the rejoinder of Defendant II
intervention dated 23 December 2010 states in essence remain on the arguments in the
answer;
Considering, to support the argument in the lawsuit, thePlaintiff has submitted
evidence marked as evidence P-1 until P-18 sufficiently legalised and presented two witnesses
respectively named Fadli Ibrahim, SH and Sony Heru Prasetyo, SH, while the Defendant to
support the arguments in the answer have presented evidence of documents that have been
labelled evidence T-1 untill T-8 with sufficient stamp and presented 3 (three) witnesses
respectively named Osten Sianipar, SH. Msi, Armains, ST and Ir. Ordiansyah, MD,
Intervening Defendant II to support the arguments of the answer have presented evidence of
letters that have been labelled evidence T.II Intv.-1 until T.II Intv.-12 with the sufficient stamp
further stated in the minutes of the proceedings which forms an inseparable part of this
decision;
Considering, that Panel of Judges will first consider whether the object of dispute, as
Plaintiff argue in the lawsuit, is a State Administrative decision or not?;
Considering based on Article 1 number 9 Law Number 51 Year 2009 regarding Second
Amendment of Law Number 5 Year 1986 regarding State Administrative Court states that the
state administrative decision is a written determination issued by agencies or officials of state
administration which contains legal act of the State Administration based on legislation in
force, which is concrete, individual and final and which have legal consequences for a person
or body of civil law”;
Considering, from the definition state administration decision based on Article 1
number 9 Law Number 51 Year 2009 regarding second amendment of Law Number 5 Year
1986 regarding State Administrative Court, then the elements contained therein are as follows:
08/887606_1 52
1. Written determination;
2. Issued by agencies or officials of state administration;
3. Contains a state administrative law action;
4. Based on legislation in force;
5. Concrete, Individual and final;
6. Legal consequences for a person or body of civil law;
Considering, based on the Decree of the Defendant No. 540.I/K.444/HK/V/2010
dated May 4, 2010, regarding revocation of the decision East Kutai Regent Number:
188.4.45/119/HK/III/2009, regarding Exploitation Mining Business Permit (IUP) to PT
Ridlatama Trade Powerindo, 5.386 Ha area, which located in Busang District, East Kutai
Regency (vide of evidence P-5 = T-7); the Panel of Judges found the legal fact that the object
of dispute aquo is a written determination (in casu a written determination refers to the
contents and not to the form of formal authorization letter) issued by agencies or officials of
state administration (in this case the Defendant/Regent East Kutai) contains a state
administrative law action (in casu a decision which has abolished the legal relationships that are
State administrative with the Defencant/Regent East Kutai with the Plaintiff/PT. Ridlatama
Trade Powerindo) by basing on the legislation in force as in the preamble which ;
1. Law Number 5 Year 1960 regarding basic rules of agrarian subjects (State Gazette Year
1960 Number 104, additional State Gazette Number 2043);
2. Law Number 23 Year 1997 regarding basic provisions for environmental management (State
Gazette Number 1997 Number 68, additional State Gazette Number 3699);
3. Law Number 41 Year 1999 regarding forestry (State Gazette Number 1999 Number 167,
additional State Gazette Number 3888);
4. Law Number 47 Year 1999 regarding formation of Nunukan district, Malinau district, West
Kutai district, East Kutai District and Bontang town (State Gazette Year 1999 Number 175,
additional State Gazette Number 3896) as amended by Law Number 7 Year 2000 regarding
the amended Law Number 47 Year 1999 (State Gazette Number 74, additional State Gazette
Number number 3962);
5. Law Number 32 Year 2004 regarding Local Government (State Gazette Year 2004 Number
125, additional State Gazette Number 4437) as amended by Law Number 8 Year 2005
08/887606_1 53
regarding on establishment of a replacement government regulations of Law Number 3 Year
2005 regarding local government become Law (State Gazette Year 2005 Number 108,
additional State Gazette Number 4548);
6. Law Number 26 Year 2007 regarding spatial plan (State Gazette Year 2007 Number 68,
additional State Gazette Number 4725);
7. Law Number 4 Year 2009 regarding mineral and coal mining (State Gazette Year 2009
Number 4, additional State Gazette Number 4959);
8. Government Regulation Number 27 Year 1999 regarding environmental impact
assessment/AMDAL (State Gazette Year 1999 Number 59, additional State Gazette Number
3838);
9. Government Regulation Number 45 Year 2003 regarding the rate of state revenues;
10. Regulation of forestry minister Number P.43/Menhut-II/2008 regarding guidelines on
land use of forest areas;
11. Regulation of Minister mining and energy Number 555.K/26/M/PE/1995 regarding
safety and general mining safety;
12. Minister decision of mining and energy Number 1453.K/29/MEM/2000 regarding
technical guidelines for organization of the governments duty in the field of general mining;
13. East Kutai Regency Regulation Number 13 Year 2004 regarding Mining Business Licence
(IUP) General Area;
Considering, the next object dispute of aquo have been issued by the Defendant
addressed to the specific individualswhich is PT. Ridlatama Trade Powerindo (incasu Plaintiff)
with a concrete intention namely the East Kutai Regent revocation of the Decree Number
188.4.45/119/HK/III/2009, regarding Exploitation Mining Business Permit (IUP) to PT. PT.
Ridlatama Trade Powerindo 5.386 Ha area, which located in Busang District, East Kutai
Regency so therefore the Panel of Judges are of the view that the object of the dispute aquo is
concrete and individual:
Considering, that the meaning of final element is that it is definitive and gives rise to
legal concequence. A decision that needs an agreement by a higher body or another body is
not final because it has not given rise to a right or obligation to a party;
08/887606_1 54
Considering, DR. Lintong Oloan Siahaan, SH in his book titled The Administrative
Court’s Prospect as the Administrative Dispute Resolution Institution in Indonesia, State
Printer Year 2005, page 182 provides that a final element means that the decision of the
administration immediately gives rise to legal consequences when executed without further
agreement from a higher body or another body of equivalent standing.
Considering, that the Defendant in issuing the Decree Letter No.
540.1/K.444/HK/V/2010 dated 4 May 2010, regarding the revocation decision of the East
Kutai Regent Number: 188.4.45/119/HK/III/2009, regarding Exploitation Mining Business
Permit (IUP) to PT Ridlatama Trade Powerindo, 5.386 Ha area, which located in Busang
District, East Kutai Regency (vide if evidence P-5 = T-7) can do so without prior approval
from another parallel institution or higher institution:
Considering, that furthermore, if the object of dispute aquo is implemented then it can
directly lead to legal consequences to the [Plaintiff] namely the revocation of the decision of the
East Kutai Regent Number: 188.4.45/119/HK/III/2009, regarding Exploitation Mining
Business Permit (IUP) to PT Ridlatama Trade Powerindo, 5.386 Ha area, which located in
Busang District, East Kutai Regency (vide if evidence P-4);
Considering, that based on the description of the above legal considerations Panel of
Judges finds that the object of dispute aquo Authorization letter of the Defendant No.
540.1/K.444/HK/V/2010 dated 4 May 2010, regarding the revocation decision of the East
Kutai Regent Number: 188.4.45/119/HK/III/2009, regarding Exploitation Mining Business
Permit (IUP) to PT Ridlatama Trade Powerindo, 5.386 Ha area, which located in Busang
District, East Kutai Regency (vide if evidence P-5 = T-7) has met the elements in Article
Number 9 Law Number 51 Year 2009 and second amended Law Number 5 Year 1986
regarding in State Administrative Court;
Considering, that in respect of the foregoing legal considerations in relation to the
arguments by the Plaintiff that states that the object of dispute is contrary to the Interior
Minister Rules No. 54 Year 2009 regarding texts in local government offices, the Panel of
Judges under the law is of the following views:
08/887606_1 55
Considering, based on Article 7 paragraph (1) Law Number 10 Year 2004 regarding
formation of legislation provides that the type and hierarchy of legislation are as follows:
a. Constitutional Law of the Republic of Indonesia Year 1945;
b. Law/Government Regulation Replacement Legislation;
c. Government Regulation;
d. President Regulation:
e. Local Regulations;
Considering, that it is further regulated by Article 7 paragraph 4 Law number 10 Year
2004 concerning the Formation of Legislation and Regulations which provides that “The types
of regulations other than what has been set out in paragraph (1) are recognized and have legal
binding effect as long as they are subject to higher legislation”;
Considering that the elucidation of article 7 paragraph 4 law number 10 Year 2004
concerning legalization stated: types of regulation of law besides in this provision such as
provision which is issued by People’s Consultative Assembly and House of representatives,
People legislative council, Supreme Court, Constitutional court, entity auditor, Governor of
Bank Indonesia, Minister, head field, agencies or commissions that level with the established
by law or by order of government legislation, provincial legislature, Governor, Peoples
Legislative Council, district/town, Regents, Mayors, Village Head, or equivalent;
Considering, that based on the preamble to considering the letter b in the regulation of
Minister of Home Affairs Number 54 Year 2009 concerning the manuscript department at the
local government environment, the judge found the fact of law that the regulation of Minister
of Home Affairs Number 54 Year 2009 was issued to replace the interior minister rule number
2 in 2005 concerning the manuscript department at the province government environment,
and regulation of Minister of Home Affairs Number 3 Year 2005 concerning manuscript
department at the district/town government environment as amended by regulation of interior
minister Number 9 Year 2008 regarding the amendment of the Minister of Home Affairs
Number 3 Year 2005 concerning manuscript department at the district/town;
08/887606_1 56
Considering, that based on the preamble given in the regulations of the Minister of
Home Affairs Number 54 Year 2009 concerning the manuscript department at the local
government environment, Panel of Judges:
1. Law Number 10 Year 2004 concerning the formation of the legislation (State Gazette
Republic of Indonesia Year 2004 Number 53, additional gazette Number 4389);
2. Law Number 32 Year 2004 concerning local government Year 2004 (State Gazette Year
2004 Number 125, additional Gazette of the Republic of Indonesia Number : 4437), as
amended several times, last with the law Number 12 Year 2008 concerning second amended
on the Law Number 32 Year 2004 concerning local government (State Gazette Republic of
Indonesia Year 2008 Number 59, additional State Gazette Republic of Indonesia Number
4844);
3. Law Number 39 ear 2008 concerning state ministries (State Gazette Republic of Indonesia
Year 2008 Number 166, additional State Gazette Republic of Indonesia Number 4916);
4. Government Regulation Number 66 Year 1951 concerning state symbol (State Gazette
Republic of Indonesia Year 1951 Number 111, additional State Gazette Republic of Indonesia
Number176);
5. Government Regulation Number 43 Year 1958 concerning state symbol (State Gazette
Republic of Indonesia Year 1958 Number 1971, additional State Gazette Republic of
Indonesia Number1936);
6. Government Regulation Number 38 Year 2007 concerning affair division between
government, provincial government and local government district of the city (State Gazette
Republic of Indonesia Year 2007 Number 82, additional State Gazette Republic of Indonesia
Number 4737);
7. Government Regulation Number 41 Year 2007 concerning organization of regional
government (State Gazette Republic of Indonesia Year 2007 Number 89, additional State
Gazette Republic of Indonesia Number 4741);
Considering, based on the research and examination of the legislation in force in the
preamble given the regulation of Minister of Home Affairs Number 54 Year 2009 concerning
official script in the environment of local government in higher legislation included in the
types and hierarchy of legislation those are necessary because Regulation of minister of house
08/887606_1 57
affairs Number 54 Year 2009 concerning official script in the environment of local
government is not include the type and hierarchy of legislation so the regulation of Minister of
Home Affairs Number 54 Year 2009 concerning official script in the environment of local
government in higher legislation in the science of legislation known as the delegated legislation
it means the new regulation could be created because of the orders of the legislation that
included higher types and hierarchy of legislation and could not directly regulate the
procedures that concerning official script in local government administrations with no
command of legislation that included higher of types and hierarchy of legislation;
Considering, based on the legal facts, Panel of Judges is of the view that according to
the regulation of Minister of Home Affairs Number 54 Year 2009 concerning official script in
the environment of local government the law that in the environment of local government was
issued by the Minister of Home Affairs that is not ordered and not an execution command
(there is no delegated legislation) from the higher legislation that included type and hierarchy
legislation, regulation of Minister of Home Affairs Number 54 Year 2009 concerning official
script in the environment of local government only regulate about the form and the format of
official texts (not the content of the manuscript department) and regulation of Minister of
Home Affairs Number 54 Year 2009 concerning official script in the environment of local
government was issued to replace the Minister of Home Affairs that have been there before so
the regulation of Minister of Home Affairs Number 54 Year 2009 concerning official script in
the environment of local government can not be used by the Panel of Judges in the test object
dispute of aquo guided by the provisions of Article 1 number 9 Law Number 51 Year 2009
concerning second amendment Law Number 5 Year 1986 concerning state administration
judicature juncto Article 7 paragraph (1) juncto Article 7 paragraph (4) Law Number 10 Year
2004 concerning the formation of legislation;
Concerning that the Panel of Judges will consider whether the Plaintiff has an interest
to be able to file a aquo lawsuit as required by article 53 article (1) Law Number 9 Year 2004
concerning amendment of the Law Number 5 Year 1986 concerning State Administration
Judicature;
08/887606_1 58
Concerning, that Article 53 paragraph (1) Law Number 9 Year 2004 concerning
amendment of the Law Number 5 Year 1986 concerning State Administration Judicature
mention that a subject or a civil law entity who felt that their interest has been harmed by a
state administrative decision can filed a written complaint to the competent court containing
claims for the state administrative decision that the disputed declared void or invalid, with or
without claims for compensation and or rehabilitation;
Concerning that in accordance with prevailing jurisprudence, interest in relation to the
right to sue or interest which must be protected by the court would exist only if:
1. Such interest clearly has connection with the Plaintiff itself. It means that the Plaintiff
is the one who has an interest to bring a claim, and not in relation to another party's
interest;
2. Such interest must be personal;
3. Such interest must have a direct character, which means it affects the Plaintiff itself;
4. Such interest can be objectively determined, both in relation to its scope as well as its
intensity;
(Indraharto, SH in his book “Effort to Understand Law Concerning State Administrative
Court”, Book II, Page 38, published by Pustaka Sinar Harapan Jakarta, 2005);
Considering, that in its claim, the Plaintiff has argued that it has the interest to submit a
quo claim since the revocation of consent decree which is released by the Plaintiff concerning
Exploitation Mining Business Licenses (IUP) of PT Ridlatama Trade Powerindo;
Considering, that based on evidence P-4 in the form of Authorization Letter of Bupati
Kutai Timur Number: 188.4.45/HK/III/2009, concerning Exploitation Mining Business
Licenses (IUP) toward PT Ridlatama Trade Powerindo in the area of 5.386 Ha, which is
located in District Busang, Region Kutai Timur, the Panel of Judges finds the legal fact that
Bupati Kutai Timur granted Exploitation Mining Business Licenses (IUP) towards PT
Ridlatama Trade Powerindo in the area of 5.386 Ha (five thousand three hundred eighty six
hectares) located in District Busang, East Kutai Region;
08/887606_1 59
Considering, that based on a quo dispute object which is evidence P-5 = T – 7 in the
form of Defendant's Decree Number: 540.1/K.444/HK/V/2010 dated 4 May 2010,
concerning Revocation of Decision of Bupati Kutai Timur Number:
188.4.45/119/HK/III/2009, concerning Exploitation Mining Business Licenses (IUP)
towards PT Ridlatama Trade Powerindo in the area of 5.386 Ha, located in District Busang,
Region Kutai Timur, the Panel of Judges finds the legal fact of the Revocation of the Decision
of Bupati Kutai Timur Number: 188.4.45/119/HK/III/2009, dated 27 March 2009
concerning Exploitation Mining Business Licenses (IUP) towards PT Ridlatama Trade
Powerindo in the area of 5.386 Ha, which located in District Busang, Region Kutai Timur;
Considering, that based on legal fact above the Panel of Judges is of the view that
under the law the Plaintiff has the interest towards the a quo dispute object which was issued
by the Defendant, therefore the Plaintiff has fulfilled Article 53 Paragraph (1) Law Number 9
Year 2004 concerning the Amendment on Law Number 5 Year 1986 concerning State
Administration Court and is also in accordance with jurisprudence in that the interest of the
Plaintiff is personal and direct to it and can be determined objectively;
Considering, that furthermore the Panel of Judges will consider whether the Plaintiff's
claim complies with the deadline for filing a claim as set out in the regulations?;
Considering, that according to Article 55 Law Number 5 Year 1986 concerning State
Administration Court which essentially states that a claim could only be submitted within 90
days after the acceptance and the announcement of the State Administration Court Decision;
Considering, that bases on the Plaintiff’s argument in its claim that the Plaintiff only
knew about the publication of the dispute object on 4 June 2010, based on the letter sent by
the Defendant dated 29 May 2010 through PT/CV. TIKI in Cengkareng, Jakarta Barat and
only being opened and received by the Plaintiff on 4 June 2010 while the a quo claim is dated
25 August 2010 which already being registered in the Registrar’s Office of Samarinda State
Administration Court dated 27 August 2010 with case register Number: 32/G/2010/PTUN-
SMD, hence the Judges takes the view that under the law, the a quo claim is submitted within
08/887606_1 60
the deadline of ninety (90) days as stated in Article 55 Law Number: 5 Year 1986 concerning
State Administration Court;
Considering, that having considered the foregoing matters, the Panel of Judges will
now consider the main point of the claim;
Considering, that in the a quo case, based on Article 107 Law Number 5 Year 1986
concerning State Administrative Court, the Judges will considering whether the publishing of
the a quo dispute object is in accordance with the applicable legislative regulations in the form
the authority, formal procedural, and substantial matter (vide Article 53 paragraph (2) letter a
Law Number 9 Year 2004 Concerning the Amendment on the Law Number 5 Year 1986
Concerning State Administrative Court)
Considering, that based on Article 117 Law Number 4 Year 2009 Concerning Mineral
and Coal Mining, which govern that:
IUP and IUPK ends because it is:
a. Returned,
b. Revoked, and
c. Expired;
Considering further based on Article 119 Law Number 4 Year 2009 Concerning
Mineral and Coal Mining, which govern that:
“IUP or IUPK could be revoked by the Minister, Governor, or Regent/Mayor in accordance
with his Authority if”:
a. IUP or IUPK holder does not fulfill his obligation as stated in IUP or IUPK and
legislative regulations,
b. IUP or IUPK holder conducted criminal act as intended in this Law, or
c. IUP or IUPK holder is declared bankrupt;
Considering further that it also regulated in Article 20 paragraph (1) letter c Regional
Regulation Kutai Timur Number: 13 Year 2004 Concerning Region Mining Business Licenses,
which govern that:
08/887606_1 61
“An IUP end because of revocation by the Regent and/or another authorized official, because
it against the applicable provision as set out in the other legislative regulations that apply in
Mining or the IUP holder does not fulfill his responsibility in the related IUP”;
Considering, based on the above provisions related with a quo dispute object, the
Judges have the legal opinion that IUP could be revoked by Bupati Kutai Timur (Defendant
incasu) if the IUP or IUPK holder does not fulfill the obligation stated in IUP or IUPK and
legislative regulations, IUP or IUPK holder conducted criminal act as intended in the Law,
also the IUP or IUPK holder is declared bankrupt;
Considering, the next legal issue is the basis of the Defendant in issuing the a quo
dispute object;
Considering, that based on evidence P-4 in the form of the Decree of Bupati Kutai
Timur Number: 188.4.45/119/HK/III/2009, concerning Exploitation Mining Business
Licenses (IUP) towards PT Ridlatama Trade Powerindo in the area of 5.386 Ha, located in
District Busang Region Kutai Timur, the Panel of Judges is of the view that in consideration
of the letter j which mentions that “The granting of Mining Business Licenses on Exploitation
stage subject to the following obligation:
j. Bupati Kutai Timur have authorization to revoke/cancel the IUP unilaterally even
when the validity period is not expired yet;
- if this business does not provide the proper result;
- if the IUP holder did not fulfill the provisions/obligations set out in herein;
Considering, based on the a quo dispute object which is evidence P-5 = T- 7 in the
form of Decree Number: 540.1/K.444/HK/V/2010 dated 4 May 2010, concerning
Exploitation Mining Business Licenses towards PT Ridlatama Trade Powerindo in the area of
5.386 Ha, which located in District Busang Region Kutai Timur, the Judges found as a matter
of legal fact that the reasons which are used as legal basis of the publication of the a quo
dispute, which in it consideration are as follows:
a. that based on the Decision of Bupati Kutai Timur Number:
188.4.45/119/HK/III/2009, dated 27 March 2009, the Exploitation Mining Business
08/887606_1 62
Licenses towards PT Ridlatama Trade Powerindo in the area of 5.386 Ha, which
located in District Busang Region Kutai Timur has been issued;
b. that based on Specific Identification Report from Specific Inspectorate of Inspectorate
General Department of Forestry May 2010, Minister of Forestry of the Republic of
Indonesia has published Letter Number S.10/Menhut/III/Rhs/2010 dated 21 April
2010 that addressed to Bupati Kutai Timur, which principally request to the Regional
Government of Region Kutai Timur to revoke the Mining Business Licenses (IUP) of
PT Ridlatama Trade Powerindo since there are indication that General Inspection and
or mining Exploration already taking places in the forest area before the licenses is
granted by the Minister of Forestry, therefore it safe to assume that criminal act in
forestry is exist as intended in Article 50 paragraph (3) letter g Juncto Article 78
paragraph (6) Law Number 41Year 1999 concerning Forestry;
c. that concerning the instruction of revocation/cancelation of the intended IUP, is
already being studied by Staff from Chief of Dinas Pertambangan Region Kutai Timur
dated 27 April 2010 also already being discussed in Discussion Meeting of Technical
Office/related institution in Region Kutai Timur based on minute of meeting dated 22
April 2010;
Considering, that based on evidence P-4 in the form of the Decree of Bupati Kutai
Timur Number: 188.4.45/119/HK/III/2009, concerning Exploitation Mining Business
Licenses (IUP) towards PT Ridlatama Trade Powerindo in the area of 5.386 Ha, located in
District Busang Region Kutai Timur, the Panel of Judges is of the view that in consideration
of the letter fwhich mentions that “The granting of Mining Business Licenses on Exploitation
stage subject to the following obligation
f. IUP holder which located within area of Production Forest, Limited Production
Forest, and protected forest is obligated to report the development process of the lend use
area to the Regional Government Region Kutai Timur before conducted extension or the
increasing of IUP;
Considering further that based on evidence T-2 in the form of Letter of Ministry of
Forest of the Republic of Indonesia Number: S.10/Menhut-III/Rhs/2010 concerning
allegation on the activity of coal mining exploitation within State forest area without licenses of
08/887606_1 63
lends use area in Kutai Timur Region, Kutai Timur Province which is addressed to Bupati
Kutai Timur, the Panel of Judges finds the following legal fact:
In relation to the complaint from the members of the community which was followed up
through the Special Identification in accordance with the warrant assignment of Inspectorate
General Department of Forestry Number: PT.53/III/SET.1/RHS/2009 dated 12 March 2010
on the allegation of mining activityieswithin forest area by PT Ridlatama Tambang Mineral, PT
Ridlatama Trade Powerindo, PT Investama Resources, PT Investmina Nusa Persada, PT
Swasembada Energi, PT Swasembada Bara, and PT Jayakhisma Globe Indonesia in Kutai
Timur Region, Kalimantar Timur Province, hereby we stated as follows:
1. There are company as the holder of Exploration licenses and or General Insvestigation
over 5 (five) companies that released by you, have conducted exploration and or
general investigation within forest area without licenses of Minister of Forestry,
whichare IUP of PT Trade Powerindo in accordance with SK Number:
36.02.188.45/HK/IV/2008, dated 9 April 2008; IUP of PT Investama Resources in
accordance with SK Number: 39.02.1888.45/HK/IV/2008 dated 9 April 2008; IUP of
PT Swasembada Energy in accordance with SK Number:
45.02.1888.4.45/468/HK/IV/2008 dated 9 April 2008; IUP of PT Swasembada Bara
in accordance with SK Number: 46.02.188.4.45/468/HK/IV/2008 dated 23
September 2008; PT Jayakhisma Globe Indonesia in accordance with SK Number:
188.4.45/468/HK/IX/2008.
2. IUP as intended in the above item 1, have you increased becoming IUP Exploitation
(PT Ridlatama Trade Powerindo, PT Ridlatama Tambang Mineral, PT Investama
Resources, and PT Investama Nusa Persada) which in here already submit the
application of lend use area in Ministry of Forestry. However, based on result of
specific identification conducted by Inspectorate General, it was found that
exploration and or general investigation is being conducted before obtaining licenses
from Minister of Forestry, beside there are information that such licenses have
indication to be fake licenses as the mining area also overlapping with other permit
area.
3. In relation with the above, to avoid further legal implication we hereby convey to you,
to:
08/887606_1 64
1) Cease all exploration activity or general investigation or
exploitation IUP over the name of PT Ridlatama Tambang
Mineral, PT Ridlatama Trade Powerindo, PT Investama
Resources, and PT Investmina Nusa Persada which did not posses
lend use forest area licenses from Minister of Forestry;
2) Cancel all licenses over the five Regent Decision concerning
Exploration IUP and or General Investigation over the name of
PT Ridlatama Trade Powerindo; PT Investaa Resources; PT
Swasembada Energy; PT Swasembada Bara; and PT Jayakhisma
Globe Indonesia since it suspected has conducted criminal act in
forestry sector as intended by Artilcle 50 paragraph (3) letter g jo.
Article 78 paragraph (6) Law Number 41 Year 1999 concerning
Forestry, also report it to the law enforcement;
3) Investigate and prosecute the forgery allegation over the IUP of
PT Investama Resources, an PT Swasembada Bara, PT
Swasembada Energi, and if it proved to report it to the law
enforcement;
4) Make as a requirement to the applicant to have forest area lend use
licenses if the working area is within forest area in accordance with
the applicable regulation.
Considering, that for the Letter of Minister of Forestry of Republic Indonesia
Number: S.10/Menhut-III/Rhs/2010 concerning the allegation of coal mining exploitation
activity within State forest area without lend use area licenses in Kutai Timur Region,
Kalimantan Timur Province which is addressed toward Bupati Kutai Timur (vide evidence T-
2) the Panel of Judges is of the view that there are administration measures conducted by
Chief of Mining and Energy Services Regional Government of Kutai Timur which is
addressed to Regional Secretary Kutai Timur Region by releasing Staff Studied (vide evidence
T-3)and Letter of Chief of Forestry Services Regency Government Kutai Timur which is
addressed to Bupati Kutai Timur (Defendant in casu) concerning Studied of Forestry Services
dated 30 April 2010 (vide evidence T-4):
08/887606_1 65
Considering further, that based on evidence T-3 in the form of Letter of Chief Mining
and Energy Service Regency Government of Kutai Timur which is addressed to Regional
Secretary of Kutai Timur Regency concerning Staff Study on the Revocation of Mining
Business Licenses (IUP) of PT Rhidatama Group dated 27 April 2010, the Panel of Judges
find the following legal facts:
1. Based on the finding of State Audit Board RI dated 22 August until 24 September
2008, an overlap over area IUP of PT Nusantara Group and area IUP of PT
Ridhatama Group have been found.
2. The Exploration IUP of PT Nusantara Group was published on 10 March 2005
and has been extended on 2008 while the General Investigation IUP of PT
Rhidatama was published on 9 April 2008, therefore PT Nusantara Group [licence]
came into existence earlier.
3. Based on operational standard in the implementation of licenses process, to avoid
overlapping on the area of mining business licenses, spatial study has to be
conducted through Office/Sector Planology, Kutai Timur Regency.
4. On the IUP of PT Nusantara Group spatial study was conducted and registered in
Planology Office while PT Ridhatama Group did not, therefore it was not
registered in Planology Office.
5. As the result for not conducting Spatial Study on the IUP area of PT Rhidatama
Group there is now an overlap with with PT Nusantara Group and PT Bara
Energi Makmur.
6. In relation with the above and based on the analysis of BPK Team, it is alleged that
there exists forgery over SK IUP of PT Rhidatama Group supported by
administration irregularities as follows:
- Letter numbering format of the letter is different with letter numbering
format which is used by the Regent on 2008 by the time the IUP of PT
Ridhatama is published.
- Number that is used for IUP of PT Rhidatama is not designated for
Mining IUP but for another designation and the numbering is incorrect,
also on the date by the time it release there exist no designation for
publishing IUP, as follow:
08/887606_1 66
PT Ridhatama Trade Power with Number: 36/02.188.45/HK/IV/2008
dated 9 April 2008, such number did not exist in the existing register and
the correct one is 188.4.45/36/H/K/I/2008 dated 17 January 2008, this
number on the register book is designated for Plantation Site Licenses of
Palm Oil in the plasma area of cooperatives Tunas Harapan Mitra with PT
Sawitino Plantation;
Based on Letter of Minister of Forestry Number: S.10/Menhut-III/RHS/2010, dated
21 April 2010, concerning the allegation of exploration/exploitation activity of mining
activity within State forest area without borrow use area licenses in Kutai Timur
Regency, Kalimantan Timur Province which explains that in accordance with the
Result of Specific Identification of Inspectorate General with warrant Number:
PT.53/III-SET.1/Rhs/2010 dated 12 March 2010, there are companies as the holder
of exploration licenses and General Investigation already conducting exploration
activity before obtaining licenses from Minister of Forestry, including Rhidatama
Group which is:
- PT Ridhatama Trade Powerindo (IUP No. 36/02.188.45/HK/IV/2008
dated 9 April 2008;
Considering further that based on evidence T-3 in the form of Letter of Chief of
Mining and Energy Services of the Government of Kutai Timur Regency which is addressed
to Regional Secretary Kutai Timur Regency concerning Staff Study on the Revocation of
Mining Licenses Business (IUP) PT Ridhatama Group dated 27 April 2010, the Panel of
Judges finds as a matter of legal fact within the Conclusion which mentions that:
“Based on the finding of BPK RI that up to now could not be followed up over the initial
permit of General Investigation PT Rhidatama which is alleged to be forged thereby causing
the overlap with another licenses area as PT Rhidatama also has conducted violation towards
Law Number 41 Year 1999 concerning Forestry and Minister Decision No. 43/Year 2008
concerning lend use area from Minister of Forestry. In accordance with recommendation from
Minister of Forestry, before going further and give adverse impact for everyone, it necessary to
revoke IUP of PT Rhidatama Group”;
08/887606_1 67
Considering further that based on evidence T-4 in the form of Letter of Chief of
Forestry Services, Government of Kutai Timur Regency which is addressed to Bupati Kutai
Timur concerning Study of Forestry Services dated 30 April 2010, the Panel of Judges finds
the following legal facts:
1. Forestry Services of Kutai Timur Regency already receive petition for the lend use of
forest area each from PT Ridlatama Trade Powerindo, PT Ridlatama Tambang Mineral,
PT Investama Resources and PT Investmina Nusa Persada;
2. The related company has obtained Mining Business License (IUP) Exploitation due regard
to Decree Letter of East Kutai Regent, which is :
a. PT. Ridlatama Trade Powerindo due regard to Decree Letter
No.188.4.45/119/HK/III/2009, dated 27 March 2009 ;
7. Based on the above point, we support the application of a sanction on the company which
does not meet prevailing procedures, terms and rules as well as regulations in the term of
forest area function and Borrowing and Use Permit of the forest area.
Considering, based on the above legal facts related to the evidences presented by the parties in
the Court Hearing, the Panel of Judges finds the following legal facts:
1. Whereas before the Plaintiff obtained the Mining Business License (IUP) Exploitation
which recently has been revoked due regard to the a quo dispute object, there has been
Mining Business License (IUP) Exploration No. 36.02.188.45/HK/IV/2008, dated 9
April 2008 ;
2. Whereas furthermore, the Plaintiff upgraded the Mining Business License (IUP)
Exploration to be the Mining Business License (IUP) Exploitation (vide evidence P-4);
3. Whereas the area/land over the Mining Business License (IUP) Plaintiff size at 5,386
Ha is a forest area therefore the holder of Mining Business License (IUP) must have
the Borrowing and Use Permit from Ministry of Forestry prior to undertaking its
activity ;
4. Whereas Plaintiff has undertaken exploration activity and/or General Survey prior to
obtaining the Borrowing and Use Permit from Ministry of Forestry
5. Whereas the area/land over the Mining Business License (IUP) Plaintiff overlaps with
the area/land over the Mining Business License (IUP) Exploration Intervention
08/887606_1 68
Defendant II as shown on the Report of State Audit Board (BPK) of the Republic of
Indonesia dated 22 August until 24 September 2008 ;
6. Whereas the existence of Mining Business License (IUP) Exploration of PT.
Nusantara Group comes former by the issuing of Decree Letter of East Kutai Regent
No.80/02.188.45/HK/III/2005 concerning Mining Business License (IUP)
Exploration Phase to PT. Nusantara Wahau Coal (incasu Intervention Defendant II)
sized at 14,890 Ha located in District Busang, Muara Ancalong, East Kutai Regency
issued on 10 March 2005 (vide evidence T.II.Intv-1) and is renewed in 2008 with the
Decree Letter of East Kutai Regent No.188.4.45/358/HK/VII/2008 concerning
Mining Business License (IUP) Renewal Exploration Phase I to PT. Nusantara Wahau
Coal (incasu Defendant II Intervention) sized at 14,890 Ha located in Di strict Busang,
Muara Ancalong, East Kutai Regency, issued on 17 July 2008 (Vide Evidence
T.II.Intv-2) as well as due regard to the Decree of East Kutai Regent
No.540.1/K.148/2010 concerning the Approval of Mining Business License (IUP)
Exploration Phase I to PT. Nusantara Wahau Coal (incasu Defendant II Intervention)
sized at 14,890 Ha located in Di strict Busang, Muara Ancalong, East Kutai Regency,
issued on 18 February 2010 (vide evidence T.II.Intv-3) meanwhile Mining Business
License (IUP) of General Survey of PT. Ridlatama (incasu Plaintiff) is issued on 9
April 2008 ;
7. Whereas there is administration irregularities toward Mining Business License (IUP)
Plaintiff No.36/02.188.45/HK/IV/2008 dated 9 April 2008 which such number was
not registered, the correct number is 188.4.45/36/H/K/I/2008 on 17 January 2008,
such number in the register book and is intended for Plantation Location Permit of
Crude Palm Area Plasm of Cooperative Tunas Harapan Mitra with PT. Sawitino
Plantation and in respect of this legal fact, the Panel of Judges did not find any rebuttal
argument of Plaintiff either in Counterplea or in its evidence;
8. Whereas the Minister of Forestry recommended to East Kutai Regent (incasu
Defendant) for:
- Stopping exploration activity or general survey or Mining Business License (IUP)
Exploitation under PT. Ridlatama Trade Powerindo (incasu Plaintiff) which has no
borrowing and use permit from the Minister of Forestry.
08/887606_1 69
- Terminating the license over five decree of Regent about Mining Business License
(IUP) Exploration and/or General Survey under the name of PT. Ridlatama Trade
Powerindo ;
- Investigating and indicting allegations of forgery by PT. Ridlatama trade Powerindo
(incasu Plaintiff), and if proven right should report to the law enforcers ;
- Requiring the applicant to obtain the Borrowing and Use permit of forest area if the
activity area lies in the forest area in accordance with the prevailing regulations
9. Whereas based on the conclusion analysis from the official of the Regional Head of
Mining and Energy East Kutai Regency to the East Kutai Regent (incasu Defendant)
there should be a revocation of the Mining Business License (IUP) of PT. Ridalatama
Group (incasu Plaintiff) as per the recommendation of Minister of Forestry ;
10. Whereas based on the conclusion analyses from the official of the Regional Head of
Mining and Energy East Kutai Regency to East Kutai Regent (incasu Defendant),
there is support to apply the sanction on the company that does not comply with the
prevailing procedures, terms, and rules as well as regulations in the term of forest area
use and borrowing and use permit of forest area.
Considering that, based on the legal facts above there is a legal issue with the following
details :
1. Who has the authority to decide an area to be determined as a forest area or non forest
area?
2. Is the area determined to be a forest area to be used for mining activity?
Considering that, as set out in the Article 1 point 3 of Law No. 41 of 1999 concerning
Forest has been regulated that “Forest area is certain area chosen and/or determined by
the government to be existed as permanent forest” ;
Considering that, furthermore as set out in the article 1 point 14 of Law No. 41 of 1999
concerning Forest it is stated that “The Government is the Central Government” ;
08/887606_1 70
Considering that, furthermore as set out in the article 1 point 15 of Law No. 41 of 1999
concerning Forestry it is stated that “Minister is the minister who is obliged for duties and
responsible in forestry aspect” ;
Considering that, furthermore as set out in the article 1 (1) and (2) of Law No. 41 of 1999
concerning Forest which regulates that :
1. All forest within the territory of the Republic of Indonesia including the natural
resources contained therein shall be controlled by the state and exploited to the
greatest benefit of the people .
2. The Forest Controlled by the State as stipulated in the verse (1) gives the authorit to
the government to :
a. Regulate and manage all things related to forest, forest area, and forest products ;
b. Decide the status of certain area as forest area or forest area as not a forest area; and
c. Regulate and decide the legal relations between people and forest, as well as regulating
the legal acts regarding forestry.
Considering that, as set out in the article 1 point 3 juncto article 1 point 14 juncto article 1
point 15 juncto article 4 (1) and (2) of Law No.41 of 1999 concerning Forestry, the Panel
of Judges have found as a matter of legal fac that the central government is the state
official authorized to decide the status of certain area as forest area or as non forest area ;
Considering that, furthermore as set out in the article 38 (1) of Law No.41 of 1999
concerning Forestry which regulates that “The use of forest area for the purpose of
development out of forestry activity can only be undertaken within the productive forest
area and conservation forest” ;
Considering that, due regard to the explanation of article 38 (1) of Law No.41 of 1999
concerning Forestry explains that “Development purpose out of forestry which is
undertaken within the conservative forest area and productive forest area is determined
selectively. Activities which can cause serious damage and effect on inexistence of the
forest function, is prohibited. The development purpose out of forestry is activity for
strategic aim which cannot be denied, such as mining activity, the development of electrical
08/887606_1 71
wave, telephone, and water installation, religious affairs, as well as force and defense power
affairs” ;
Considering that, furthermore as set out in the article 38 (3) of Law No. 41 of 1999
concerning Forestry it is stated that “The use of forest area for mining purpose is
undertaken through the approval of borrowing and use permit by the Minister by
considering the limit area and the certain term as well as the environmental preservation” ;
Considering that, pursuant to the above provision, the Minister of Forestry Regulation was
made on No.P.43/Menhut-II/2008 concerning the Guide on Borrowing and Use of
Forest Area as regulated in the article 1 (1) which is “Borrowing and Use of forest area is
the use of a part of forest area by other party for the development purpose out of forestry
activity without changing status, objective, and function of the area”.
Considering that, furthermore as set out in the article 2 of Minister of Forestry Regulation
No.P.43/Menhut-II/2008 concerning the Guide of Borrowing and Use of Forest Area
which regulates that “ Borrowing and Use of Forest Area is undertaken under Minister
license”
Considering that, furthermore within the article 1 (11) of Minister of Forestry Regulation
No.P.43/Menhut-II/2008 concerning the Guide of Borrowing and Use of Forest Area
which regulates that “Minister is the Minister who is subject to duties and responsibilities
in the area of Forestry”.
Considering that, furthermore as set out in the article 7 (1) Minister of Forestry Regulation
No.P.43/Menhut-II/2008 concerning the Guide of Borrowing and Use of Forest Area
which regulates that “Forest area which can be issued the borrowing and use permit of
forest area is only productive forest area and conservative forest area”
Considering that, as set out in the article 38 point (1) juncto (3) juncto article 1 point (15)
of Law No.41 of 1999 concerning the Forestry juncto article 1 point 1 juncto article 1
point 11 juncto article 2 juncto article 7 point 1 Minister of Forestry Regulation
08/887606_1 72
No.P.43/Menhut-II/2008 concerning the Guide of Borrowing and Use of Forest Area
above, the Panel of Judges found as legal fact that the forest area can be used for mining
activity as long as IUP holder has obtained the borrowing and use permit by the Minister
of Forestry in undertaking the mining activity ;
Considering that, furthermore due regard to the above provision related to T-3 evidence in
the form of Letter of Regional Mining and Energy of East Kutai Regency to the Regional
Secretary of East Kutai Regency regarding the research from official of Revoke of Mining
Business License (IUP) of PT. Ridhatama Group dated 27 April 2010, the Panel of Judges
found legal fact as stipulated in the base preamble point 8 that there has been the letter
from Minister of Forestry No.S140/Menhut-VII/2010, dated 31 March 2010, regarding
the Rejection of the borrowing and use permit of forest area for exploration activity of PT.
Rhidatama Trade Powerindo (incasu Plaintiff) ;
Considering that, due regard to the above legal fact, the Panel of Judges have opinion
under the law that in undertaking the mining activity, the plaintiff did not have legal basis
of the borrowing and use permit from the Minister of Forestry thus the Plaintiff did not
fulfill the duties as stipulated in the Considering preamble on the second concern alphabet
f of Decree Letter of East Kutai Regent No.188.4.45/119/HK/III/2009, concerning
Mining Business License (IUP) Exploitation to PT. Ridlatama Trade Powerindo, sized at
5,386 a, located in Busang District, East Kutai (vide evidence P-4) as stipulated in the
above legal fact and Plaintiff has contravened the provision of article 50 (3) alphabet g of
Law No. 41 of 1999 concerning Forestry which regulates that “Everybody is prohibited to
undertake general survey activity and exploration or exploitation of mining substance in
the forest area without the permit from the Minister”,
Considering that, due regard to the above considerations, the Panel of Judges have opinion
under law that Defendant’s action in relation to the aquo dispute object which is the
Decree of Defendant No.540.1/K.444/HK/V/2010 dated 4 May 2010, concerning
Revocation on Decree of East Kutai Regent No.188.4.45/119/HK/III/2009, concerning
Mining Business License (IUP) Exploitation to PT. Ridlatama Trade Powerindo, sized at
08/887606_1 73
5,386 Ha, located in Busang District, East Kutai (vide evidence P-5 = T-7) has been in
compliance with the prevailing regulations ;
Considering that, furthermore the Panel of Judges will also consider whether the dispute
object released has denied the General Principles of Good Governance or not? As the
argument of Plaintiff in the claim; (vide article 53 (2) alphabet b of Law No. 9 of 2004
concerning Amendment of the Law No. 5 of 1986 concerning State Administrative Court.
Considering that, article 3 point 1 of Law No.28 of 1999 concerning the Administration of
State that is Clean and Free of Corruption, Collution, and Nepotism provides that in a
state governed by the rule of law, priority must be given to the law, compliance and
fairness in every decision concerning the administration of the State and therefore, every
policy or decision of state governance which does not have legal basis shall be declared
void.
Considering that, based on Prof. Dr. Philippus M. Hajjon, S.H and his partner in his book
“An Introduction to Administrative Indonesian Law”. Publisher : Gajah Mada University
Press Yogyakarta in 1994 page 274-277 which provides that the principle of accuracy in
the good governance principles mainly requires a decision to be taken accurately by
reviewing all the relevant facts and taking into consideration all relevant interests. In this
respect, the principle of accuracy could require a party with interest to be heard before it is
faced with a decision which caused them loss. The obligation to allow the party to be
heard is applied to the extent that it would give a benefit, if from the regulations or policies
it could be inferred how the rules should be applied as well as the facts are certain, then
the principle of accuracy does not require a party to b e heard, moreover the requirement
to give reasons in the good governance principles require that a decision must be
supported by reasons which formed the basis of the decision.
Considering that, based on the above legal facts and together with the evidence adduced
by the parties in the proceedings, the Panel of Judges in accordance of the law is of the
view that:
1. Whereas the Defendant has issued Decree Letter of East Kutai Regent
No.188.4.45/119/HK/III/2009, concerning Mining Business License (IUP)
08/887606_1 74
Exploitation to PT. Ridlatama Trade Powerindo, sized at 5,386 Ha, located in Busang
District, East Kutai Regency (vide evidence P-4) ;
2. Whereas the Defendant has issued the object of the dispute aquo (vide evidence P-
5=T-7) which was based on legal facts and considered reasons set out in:
- Letter of Minister of Forestry No.S.10/Menhut-III/Rhs/2010 regarding the allegation
of exploitation activities relating to coal mining in the state forest area without a
borrow and use permit area in East Kutai Province East Kalimantan addressed to the
East Kutai Regent (vide evidence T-2) ;
- Letter from the Head of the Mining and Energy Division of the Regional Government
of East Kutai Regency addressed to the Regional Secretary of East Kutai Regency
regarding the Staff Review on the Revocation of the Mining Business License (IUP) of
PT. Rhidatama Group dated 27 April 2010 (vide evidence T-3) ;
- Letter from Regional Forestry Government Office of East Kutai Regency addressed to
the East Kutai Regent regarding the Review of the Regional Forestry Office dated 30
April 2010 (vide evidence T-4);
3. Whereas the Defendant's act in issuing the object of the dispute aquo also means that
under the law the Defendant not only has the authority set out in the regulations but
also has an evaluative function towards the obligations in the IUP Exploitation in the
name of the Plaintiff (vide evidence P-4) which must be complied with while based on
the above legal facts the Plaintiff did not so comply, such matter under the
administrative law doctrine is known as the principle of spontane vernietiging which
means that the government body (in this case the Defendant) is authorised to evaluate
its past issued decisions and where there is a defect or a violation then a revocation or
cancellation may be carried out;
4. Whereas the Defendant has also performed a corrective function towards the
administrative decision which he has issued and in the issuance of the Mining Business
License (IUP) Exploitation in the name of the Plaintiff (vide evidence P-4)
consideration is to be had of alphabet d which mentioned that proposed location is
within the Preservation Area non Forestry (KBKN) in accordance with the Regional
Province Spatial Layout Plan (RTRWP) of East Kalimantan which has been compiled
due to the authority of Regional Government of East Kutai Regency in relation to
matters of mining licences while based on the above facts, the area of the Mining
08/887606_1 75
Business License (IUP) Exploitation in the name of the Plaintiff (vide evidence P-4) is
part of the forest area;
Considering that, based on the above considerations, the Panel of Judges is of the view
that according to the law the act of the Defendant in issuing the object of the dispute aquo
namely the Decision Letter of Defendant No.540.1/K.444/HK/V/2010 dated 4 May
2010 regarding the revocation of the Decree of East Kutai Regent
No.188.4.45/119/HK/III/2009 regarding the Mining Business License (IUP)
Exploitation to PT. Ridlatama Trade Powerindo, sized at 5,386, located in Busang District,
East Kutai Regency (vide evidence P-5 =T-7) is in accordance with the general principles
of good governance;
Considering that, based on the collection of legal considerations mentioned above, the
Panel of Jduges is of the view that under the law the act of the Defendant in issuing the
object of the dispute aquo which is Decision Letter of Defendant
No.540.1/K.444/HK/V/2010 dated 4 May 2010, regarding the revocation of Decree of
East Kutai Regent No.188.4.45/119/HK/III/2009 regarding the Mining Business License
(IUP) Exploitation to PT. Ridlatama Trade Powerindo, sized 5,386 Ha, located in Busang
District, East Kutai (Vide P-5 = T-7) is in accordance with the applicable regulations and
in accordance with the general principles of good governance thus the article 53 (2)
alphabet a and b Law No. 9 of 2004 concerning the Amendment of Law No. 5 of 1986
concerning State Administrative is not fulfilled, thus the Panel of Judges concludes that the
points of the Plaintiff’s claim have not been proven and accordingly the claim shall be
rejected;
Considering that, the Plaintiff's claim has been rejected, as required by article 110 of Law
No. 5 of 1986 concerning the State Administrative Court, the Plaintiff shall be ordered to
pay the case fee which the amount is determined in this decision;
Considering that, by reviewing all that transpired in the proceedings without relying on the
facts and matters raised by the parties, in accordance with article 107 of Law No. 5 of 1986
concerning the State Administrative Court, the Panel of Judges is free to determine what
08/887606_1 76
must be proven, the burden of proof as well as the value of the evidence. Based on this,
the various evidence raised by the parties form part of the consideration, however to
adjusdicate and decide on the dispute, only those evidence that are relevant is used and
other evidence have been attached and they form part of the case file;
Bearing in mind, the articles in the Law No. 5 of 1986 concerning State Administartive
Court jo. Law No. 9 of 2004 concerning the Amendment of Law No. 5 of 1986 jo. Law
No.51 of 2009 concerning the Second Amendment of Law No. 5 of 1986 jo. Law No.51
of 2009 concerning the Second Amendment of Law No. 5 of 1986 concerning State
Administrative Court jo. Law No. 41 of 1999 concerning Forestry jo. Law No.4 of 2009
concerning Mineral Mining and Coal as well as other relevant regulations;
A D M I N I S T E R
IN EXCEPTION
- Refuse the Defendant’s exception
IN PETITUM
1. Refuse the claim of the Plaintiff;
2. Orders the Plaintiff to pay the case fee raised therein in the amount of Rp.236,000.00
(two hundreds and thirty six thousand rupiah) ;
Thus hereby ordered in the meeting of Panel of Judges State Administrative Court of
Samarinda on Monday 28 February 2011 by NURMAN SUTRISNO, S.H., M.Hum.,
as the Presiding Judge of the Panel, HARI HARTOMO SETYO NUGROHO, S.H.,
M.H., and PENGKI NURPANJI, S.H., respectively as Member Judges, the decision has
been read out in the proceedings opened to the public on Thursday 3 March 2011 by the
Panel of Judges, assisted by SURIANSYAH, S.H., as the substitute Registrar at the State
Administrative Court of Samarinda, attended by Plaintiff’s Advocates, Defendant’s
Advocates as well as Intervening Defendant II's Advocates.
Chief of Panel of Judges
signed
NURMAN SUTRISNO, S.H., M.Hum
08/887606_1 77
MEMBER OF JUDGES
signed
1. HARI HARTOMO SETYO NUGROHO, S.H., M.H.,
signed
2. PENGKI NURPANJI, S.H.
SUBSTITUTE REGISTRAR
signed
S U R I A N S Y A H, S.H.,
COST DETAILS :
1. Claim Register Rp. 30,000.-
2. Recall Rp. 120,000.-
3. Pledge Rp. 75,000.-
4. Stamp Duty Rp. 6,000.-
5. Redaction Rp. 5,000.-
Total ---------------------------------Rp. 236,000.-
(Two hundreds thirty six thousand rupiah)
The official copy of this Case Decision No.32/G/2010/PTUN.SMD has been provided to the
PLAINTIFF on Friday 18 March 2011
R E G I S T R A R,
M U R J A N I, S.H.
NIP. 040060710
08/887606_1 78
COST DETAILS :
1. Stamp Duty Rp. 6,000.-
2. Redaction Rp. 5,000.-
3. Leges Verdict Rp. 3,000.-
4. Signature Legalization Rp. 10,000.-
5. Legalization Verdict Derivative Rp. 25,200.-
6. Copy Rp. 16,800.-
Total --------------------------------- Rp. 66,000.-
(Sixty thousand rupiah)