This Article has been published Import Export Indonesia on January 9, 2010
By: Sulistiono Kertawacana
Legal practitioner in Jakarta
Regulation of the Minister of Trade No. 33/M-DAG/PER/7/2009 tanggal 28 Juli 2009 (”the Regulation of the Minister of Trade No.33/2009”) which revised the Regulation of the Minister of Trade No.12/M-DAG/PER/6/2005 June 30, 2005 on Export Rattan ("the Regulation of the Minister of Trade No.12/2005"). Unfortunately, government policy has been only amended. In fact, entrepreneurs’ rattan industry expects exports of rattan raw material are prohibited at all to meet domestic needs.
Association of Furniture and Handicraft Rattan Indonesia (Asosiasi Mebel dan Kerajinan Rotan Indonesia – ”AMKRI”) estimates that if the export of rattan are still allowed, then in 2011 estimated the rattan industry will die. If expectations AMKRI and other business uses of rattan raw materials are not met expectations over the amendment the Regulation of the Minister of Trade No.12/2005, what legal steps could be done AMKRI and/or members?
Indeed, AMKRI disappointment over the government's policy the only change the Regulation of the Minister of Trade No.12/2005, and not revoke the Regulation of the Minister of Trade No.12/2005 and all amendments, still have hope through the judicial review.
Article 24A Third Amendment of the 1945 Constitution authorizes the Supreme Court to examine the laws and regulations under the law against the law.
Article 31 of Law No.5/2004 that amended Law No. 14/1985 as lastly amended by Law No.3/2009 on the Supreme Court asserted that the Supreme Court has the authority to examine the laws and regulations under the law against the law. Furthermore, the Supreme Court will declare invalid the laws and regulations under the law for reasons contrary to the laws of higher or foundation does not meet the applicable provisions (Article 31 paragraph 2 of the Law No.5/2004).
Article 31A Paragraph (2) of the Law No.3/2009 that amended the Law No.14/1985 states that is able to petition for judicial review are (a) individual Indonesian citizens, (b) customary law community unit all still alive and in accordance with the development of society and the principles of the Unitary Republic of Indonesia regulated in law, or (c) a public legal entity or a private legal entity.
The rule is more extensive than those stipulated in Article 1 number 4 of the Supreme Court Regulation No.1 of 2004 on the Rights to Judicial Review ("the Supreme Court Regulation No.1/2004") which provides that the Petitioner Objections can be made by community groups or individuals.
Objection application is an application that contains an objection to the application of laws and regulations allegedly violated by legislation a higher level of submission to the Supreme Court to get the decision (Article 1 number 3 the Supreme Court Regulation No.1/2004). Objection application is also called a judicial review terms.
For the record, although referring to Article 2 paragraph (4) the Supreme Court Regulation No.1/2004 stated that objection filed within a period of 180 days from the stipulated laws and regulations concerned, the Supreme Court has accepted the petition for judicial review (judicial review) filed more than 180 days as stated in the Supreme Court Award Number: 41 P/HUM/2006 November 21, 2006. In consideration of such Award, the judges consider the 5 things.
First, in terms of comparative law in various countries, both in the Continental European legal system and Anglo-Saxon legal system are not known a time limit explicitly in a regulation to submit the Material Test Rights (Judicial Review) of the regulations applicable in general.
Second, in terms of analogy with the practices and procedures in the Constitutional Court of Indonesia, it is no time restrictions apply to file a judicial review against the Law and other regulations petitioned for judicial review. Therefore, there is the decision on the cancellation or unauthorized statements to the certain provisions of the Act into force actually since a few years ago.
Third, in terms of philosophical legal protection, the existence of a limitation on a person’s right to sue by limits filing period, in fact it s a form of reducing or limiting the actions of Human Rights in carrying out its right to file suit. If It is deemed necessary to be held, then the limit should be put into the Law or Law of Procedure, it is not in a form of legal products which is lower than the Law, including not in a the Supreme Court Regulation.
Fourth, in terms of the applicable positive law, ie by tracing the source of the law on judicial review of agency acknowledged that its jurisdiction is given to the judiciary, the Article 11 paragraph (2) of Law No.4/2004 on Judicial Power (which continues the same provisions of the Law before ), and also in Article 31 and 31A Law No.5/2004 concerning Amendment to Law No.14/2005 regarding the Supreme Court, it did not include any explicit time limitation to apply for the objections.
Fifth, the limitation period would be concerned about the emergence of the rules which are essentially contrary to public order, but it cannot be tested under the law simply because it is past time formally.
Reasons of Judicial Review
Member(s) of AMKRI may file an objection for the policies of the government relating to (1) the Regulation of the Minister of Trade No.12/2005 as lastly amended by the Regulation of the Minister of Trade No.33/2009 and (2) the Decree of the Minister of Industry and Trade No. 558/MPP/Kep/1 2 / 1998 as lastly amended by the Regulation of the Minister of Trade No. 07/M-DAG/PER/4/2005 on the General Provisions in the Export Sector. The General Provisions in the Export Sector classifies goods in (1) Regulated Export Goods, (2) Monitored Export Goods, (3) Prohibited Export Goods, and (4) Free Export Goods.
Regulated Export-Goods is export goods that can only be done by the Registered Exporter. Monitored Export-Goods is export goods that could only be done with the approval of the Minister of Industry and Trade (now the Minister of Trade) or a designated official. Prohibited Export-Goods is goods that could not be exported. Free Export-Goods is goods that do not include the notion of Regulated Goods exports, which Monitored Export Goods, and Prohibited Export Goods.
Important substance for application Objection to the Regulation of the Minister of Trade No.12/2005 amended by the Regulation of the Minister of Trade No.33/2009 shows that the Regulation of the Minister of Trade is deemed to have violated the laws and regulations are higher. Legislation, which is higher than the Regulation of the Minister of Trade No.12/2005 amended by the Regulation of the Minister of Trade No.33/2009 are Government Regulation, and / or the Law.
One of the provisions that could be referred as file a Judicial Review is Article 3 of Law No.5/1984 on Industry ("the Law No.5/1984") which regulates that industry development aims to (among others) enhance the prosperity and welfare in a fair and equitable to use funds, natural resources, and/or the results of cultivation and with due regard to balance and environmental sustainability.
At least, there are two alternative reasons for the cancellation of the rattan export regulations. First, the objection related to the amount of volume of raw materials that may be exported as stated in Appendix of the Regulation of the Minister of Trade No.33/2009. It means that Rattan Entrepreneurs do not object to the rattan classified policy rattan in the Regulated Export Goods, but because of the volume exported is allowed too much so that national rattan furniture producers experiencing shortages. Therefore, the Regulation of the Minister of Trade No.33/2009 is considered contrary to Law No.5/1984.
Second, the objection related to the classification of rattan in Regulated export goods, and considered more appropriate in the category Prohibited Goods Exports. Therefore, because of violation of the Law No.5/1984 is that raw rattan is allowed to export, not in the form of furniture or other crafts. Thus, it is reviewed to cancel the Minister of Industry No. Kep. 558/MPP/Kep/12/1998 as lastly amended by the Regulation of the Minister of Trade No.07/M-DAG/PER/4/2005 on General Provisions in the Export Sector. Indonesia by 85% (eighty-five percent) of rattan raw material supply of the world. Mastery of this material, it will turn the industry and rattan furniture.
Based on data obtained AMKRI, after the publication the Regulation of the Minister of Trade No.12/2005, rattan raw material industries experiencing shortages. As a result, one of the rattan industry center in Indonesia i.e. Cirebon, as of October 2008 of 426 rattan 144 companies have closed company, only 127 firms export rattan 1 container per month, 113 companies are only able to export up to 8 containers per month, only 20 companies can provide 8-15 containers per month, and only 11 companies to export 15-25 containers per month (Rattan Icon Magazine October 2008 edition).
In fact, before issuing the Regulation of the Minister of Trade No.12/2005, companies and rattan furniture in Cirebon average able to export at least 75-150 containers per month. With the number of 426 companies in Cirebon, the rattan industry in Cirebon could be exported 31950-63900 containers per month.
If the government policy actually resulted in the closure of many companies which, in turn, unemployment, contrary to the policy of industrial development, which aims to improve the prosperity and welfare as stipulated in Article Law No.5/1984. It is time for Rattan Entrepreneurs to file a Judicial Review to correct government policy.Good Luck!!!