Criminalization of Indigenous People

Annotations of the Muara Taweh District Court Decision

No. 126/Pid.Sus/2020/PN Mtw concerning Criminalization of Mining

By: Sonia Celinda Asmi

017201800017

A. Introduction

Muara Taweh District Court on November 2020 issued a verdict on the first level
examination of Roby bin Mahyuni (Alm), which stated that the defendant had violated Article 162
paragraph 1 of Law No. 4 of 2009 concerning Mineral and Coal Mining.

Roby bin Mahyuni is an entrepreneur who became the defendant in this case. Roby is
alleged to have obstructed or disrupted IUP or IUPK holders' mining business activities, for which
Roby was charged with Article 162 paragraph 1 of Law No. 4 of 2009 on Mineral and Coal Mining
and was sentenced to four months imprisonment. Roby is considered to have disturbed the business
activities of PT. Maruwai Coal by stretching rattan ropes and building huts that could harm PT.
Maruwai Coal1 because work in the area has become obstructed.

In this paper, the author will analyze the problems in the decision of the Muara Taweh
District Court decision This problems consist of: first, regarding whether the verdict of the Panel
of Judges is correct, Second, regarding whether there is a problem missing in the judge's
consideration.

B. Case Position

This court decision (126/Pid.Sus/2020/Pn Mtw) is a criminal case that talked about Mineral
and Coal Mining. The plaintiff filed this case to Muara Taweh District Court. Parties involved in
this case started with Pujiarto, S.H.,M.H. as Public Prosecutor or plaintiff, Roby Bin Mahyuni
(Alm) as a defendant, and PT. Maruwai Coal is the party who gets losses for the defendant’s
actions or can be said as an applicant. Both parties (the public prosecutor and the defendant) also
bring the witnesses to prove their indictment.

The witnesses that the public prosecutor bring are Erwin Sundoro, S.H. alias Erwin Bin
Suparmo (Alm), Maudin Bin Rasban (Alm) (is the supervisor of security members in DKP A5
1
PT. Maruwai Coal itself is a company engaged in coal mining that has received an IPPKH or Borrow-to-Use Forest
Area Permit from the Indonesian Ministry of Forestry and the Indonesian Ministry of Forestry, the Decree of the
Indonesian Minister of Forestry No. SK.99 / Menhut-II / 2013 dated 6 February 2013 which was extended by the
Investment Coordinating Board with Number 4/1 / IPPKH / PMA / 2018 concerning the Extension of Borrowing and
Use of Forest Areas for Coal Production Operations and Decree of the Minister of Energy and Mineral Resources
Number 426.K / 30 / DJB / 2017 concerning Adjustments to the Stage of Coal Mining Exploitation Work Agreement
Activities of PT. Maruwai Coal became the Operational Activity Stage. PT Maruwai Coal has also been operating in
the area of Murung Raya Regency since 2017 until now.
Maruwai Coal and PT. Maruwai Coal), Muksin Bin Imar (is a headman in Penda Siron since 2017-
now), Bukmanto Bin Singir (is a headman of Penda Siron in 2002-2008, now he is a farmer) and
the last one is H. Budiman, SE Bin Munghadi (is a Head of PBBP2 (Rural and Urban Land and
Building Tax) and BPHTB (Fees for Acquisition of Land and Building Rights) at the Regional
Revenue Agency Office of Mura Regency). However, the defendant also brings witnesses that
might help him to lighten his charges. Ipong I. Pambuk, Badian (he is one of Roby’s family
members), Ahmad Muso (he is Roby’s friend but doesn’t have any relation with Roby). The last
one is Junaidi Akh. (he is one of Roby’s friend but doesn’t have any connection in work with
Roby).

The legal issue of this case is about a person who legally guilty of committing a criminal
act “has obstructed or disturbed the mining business activities of an IUP or IUPK holder who has
fulfilled the requirements as referred to in Article 136 paragraph 2.” as regulated and threatened
with punishment in Article 162 paragraph 12 of Law of the Republic of Indonesia Number 04 2009
concerning Mineral and Coal Mining. It started on May 1st, 2019 at 15:16 WIB in IPPKH PT.
Maruwai Coal, Camp Bau-bau Jalan Koridor PT. SRP KM.68 Penda Siron Village, Laung Tuhup,
Murung Raya areal.

Case Summary

The criminalization of mining is committed by Roby bin Mahyuni (alm) on May 1, 2019
till May 11 2019 at 15:16 WIB in IPPKH PT Maruwai Coal Camp Bau Bau Jalan Koridor PT.
SRP KM. 68 Penda Siron Village, Laung Tuhup District, Murungraya Sub-district Areal. This
case started because there was no response from the coal mining company, PT. Maruwai Coal
regarding the settlement of the problem of compensation for land cultivated around KM. 68 then
the defendant Roby bin Mahyuni (Alm), took the initiative to close road access that is usually
passed by heavy equipment and transportation vehicles of PT. Maruwai Coal.

Roby bin Mahyuni closed road access without permission from the Management of PT.
Maruwai Coal by establishing/making huts on Jalan KM. 68, which are still included in the IPPKH
area from PT. Maruwai Coal using some wood and tarpaulin, then after the shed was finished, the
defendant unfolded a rattan rope hung with sawang leaves and made a banner with the words
“Hinting Adat Sign of Prohibition, banners Please Attention and Defend Rights Banners3”
intended for heavy equipment means of transportation that enters or leaves the mining area of PT.
Maruwai Coal did not pass through the access road corridor, which resulted in disruption of the
mining business activities of PT. Maruwai Coal, including the employees and foodstuffs, were
transported by transferring unit changes with the permission of the defendant Roby bin Mahyuni
to break through the rope under the rattan rope stretched by the defendant. Besides that, employees
were also prohibited from carrying work tools such as small generators to support work. In the
field, let alone other support such as fuel delivery; Whereas the consequences of building a hut
and installing rattan and installing banners by the defendant Roby bin Mahyuni (Alm) caused PT.
Maruwai Coal suffered a loss of approximately IDR 234,300,012.00 (Two hundred thirty-four

2
“Setiap, orang yang merintangi atau mengganggu kegiatan usaha pertambangan dari pemegang IUP atau IUPK
yang telah memenuhi syarat-syarat sebagaimana dimaksud dalam Pasal 136 ayat (2) dipidana dengan pidana
kurungan paling lama 1 (satu) tahun atau denda paling banyak Rpl00.000.000,00 (seratus juta rupiah)” Article 162
Paragraph 1 Law No 4 of 2009
3
“Hinting Adat Tanda Larangan, spanduk Mohon Perhatian dan Spanduk Mempertahankan Hak”
million three hundred thousand and twelve rupiahs) as Invoice No.JKT-12688. As a result of Roby
bin Mahyuni (Alm) for a maximum period of 1 (one) year or a maximum fine of Rp. 100,000,000
(one hundred million Rupiah)”.

Legal Facts4
With the statements made by witnesses, which are witnesses from the public prosecutor as
well as witnesses from the defendant, also from the evidence, the researcher can obtain the
following legal facts:
Started on May 1 2019, at 15:16 WIB, Roby bin Wahyuni began closing the road using
rattan ropes and building a tarpaulin for shelter beside a yarn stretch. The action ended on May 11,
2019. The banner stretched out by Roby bin Mahyuni reads, " Please pay attention to all companies
in this area, for the time being, do not force the will to pass by carrying goods other than logistics
following the coordination results of the regent team "to prohibit the employees of PT. Maruwai
Coal crosses the area. Roby bin Mahyuni asked Ipong I Pambuk and other friends to help Roby
put up the traditional hinting rope by blocking the corridor road at Camp Baubau PT. SRP KM 68
Penda Siron Village, Laung Tuhup District, Kab. Murung Raya by spreading the rattan rope.
The District Murung Raya, the Regent, and Deputy Regent Muspida came to Roby bin
Wahyuni and his friends at the road closure location on May 5, 2019. With the local government's
aim asking Roby bin Mahyuni and his friends to remove the rope that was installed, but the effort
failed. Until May 11, 2019, Roby bin Mahyuni just opened the road closures he had previously
done. Roby bin Mahyuni said that his goal was to close the corridor road so that PT. Maruwai Coal
listened to the defendant's request.
In addition to installing rattan ropes to close the road, the defendant Roby bin Mahyuni
also built and erected a tarp hut on February 14, 2020, which made part of the area closed and
disturbed the company's activities in mining activities. As a result of the road closure by Roby bin
Mahyuni, all mobilization activities and employees of PT Maruwai Coal were blocked because
they had to go through a unit change. In addition to hampered mobilization activities, PT. Maruwai
Coal, amounting to IDR 234,300,012.00 (two hundred thirty-four million three hundred thousand
and twelve rupiah) due to the non-operation of mining activities.
PT. Maruwai Coal had asked Roby bin Mahyuni to dismantle the portal and hut built by
the defendant. Still, the defendant Roby bin Mahyuni instead asked for an amount of
Rp.50,000,000.00 (fifty million rupiahs), which he said verbally as a condition for the portal's
dismantling.
All the witnesses and the defendant agreed about the ornery documentation activity on May
1, 2019 till May 11, 2019 and February 14, 2020 just as it is written on the case files.

4
Can be seen in Muara Taweh Court Decision, case Number 126/Pid.Sus/2020/PN. Mtw, page 21-23
The Public Prosecutor’s Indictment and Charges 5
In this case, the defendant were tried at the Muara Taweh District Court with the case
register number: 126/Pid.Sus/2020/PN. Mtw. The public prosecutor in the case charged with the
following charges, First claimed that the defendant, Roby bin Mahyuni was legally guilty of
committing a criminal act of "obstructing or disturbing the mining business of an IUP or IUPK
holder who has fulfilled the requirements as referred to in Article 136 paragraph 2. The threat of
sanction is regulated in Article 162, section 1 of the Law. No. 4 of 2009 concerning Minerals and
Coal; Roby bin Mahyuni was sentenced to imprisonment for 4 (four) months; Declare that all
attached evidence items will be confiscated to be destroyed, while the public prosecutors will still
attach other evidence in the form of letters and documents to the former case; Determined that the
defendant Roby bin Mahyuni pay a court fee of Rp. 2000.00 (two thousand rupiahs).
Court’s Verdict6
In the verdict, the Panel of Judges at the Muara Taweh District Court stated that the
defendants were proven to be proven by the public prosecutor. In the verdict of the Muara Taweh
District Court Panel of Judges, it is written as follows: First, the Panel of Judges declaring the
defendant (Roby bin Wahyuni) has been legally and convincingly proven guilty of committing a
criminal act of hindering mining business activities. Second verdict, the panel of judges sentenced
the defendant to three months imprisonment and the panel of judges command the defendant to be
arrested. Other than that, the panel of judges also deciding to confiscated all evidence to be
destroyed but for the letter and written evidence still be confiscated and will be attached to the case
file. And last verdict, the panel of judges charge the defendant to pay court fee of an amount Rp.
2000,00 (two thousand rupiahs). Regarding the decision of the Muara Taweh District Court, the
defendants did not object to the verdict. Therefore, the defendant stated that he accepted the
verdict. Furthermore, on the other hand, the Public Prosecutor charged the defendants for four
months, but the Panel of Judges gave a lighter sentence for three months. Thus, it can be said that
the verdict in the case of criminal act of hindering mining business activities on behalf of the
defendant Roby bin Mahyuni has been declared legally binding (inkracht). Extremely, the panel
of Judges grant all the public prosecutor’s indictment and charges for this case.

C. Analysis
The indictment given to the defendant, in this case, was considered at Muara Taweh
District Court where the indictment was filed by the Public Prosecutor, namely Roby Bin Mahyuni,
was charged with a single indictment in Article 162 paragraph 1 of Law No. 4 of 2009 concerning
Mineral and Coal Mining, which reads "Anyone who obstructs or interferes with mining business
activities from IUP or IUPK holders who have met the requirements referred to in Article 136

5
Can be seen in Muara Taweh Court Decision, case Number 126/Pid.Sus/2020/PN. Mtw, page 1-3
6
Can be seen in Muara Taweh Court Decision, case Number 126/Pid.Sus/2020/PN. Mtw, page 32-34
paragraph (2) shall be subject to imprisonment for a maximum of 1 (one) year or a maximum fine
of Rp. 100,000,000.00. (one hundred million rupiahs)".
In Law No. 4 of 2009 contains a number of articles that regulate law enforcement for
violations of criminal provisions in mining business activities, namely Article 158, Article 159,
Article 160, Article 161, Article 162, Article 163, Article 164, Article 165. But in this case, the
panel of judges use Article 162 to accuse the defendant.
Based on the indictment, some elements must be proven by the Panel of Judges in
considering this case, namely:
1. The Element of Everyone;
2. Elements Obstructing or Interfering with Mining Business Activities of Qualifying
IUP or IUPK Holders.
The Panel of Judges at the Muara Taweh District Court in its decision decided that the
defendant Roby Bin Mahyuni (late) was guilty because the defendant was proven to have
committed the actions charged by the Public Prosecutor because the elements of "Everyone" and
"Which Hinder or Interrupt Mining Business Activities of IUP Holders or IUPK that has met the
requirements ". Because in the testimony of the witnesses brought by the Public Prosecutor, the
defendant did not object to the testimony of the witnesses, then the consequence of the defendant
confirming a statement was that the testimony was true. Then, the witness brought by the
defendant, who was deemed able to mitigate the defendant's charges, actually strengthened the
defendant's claim regarding the act of closing the corridor road that had been committed by the
defendant.
So the Panel of Judges' decision in making a verdict for the defendant was correct and
precise because the Panel of Judges can explain the elements that must be proven in Article 162
paragraph (1) of Law no. 4 of 2009 concerning Mineral and Coal Mining. The form of coal mining
concessions can vary, not only concerning people who have rights to the land but also that local
people are directly or indirectly affected. Even though the company is given the obligation to
reclaim and carry out post-mining environmental improvements and carry out community
empowerment activities, the community does not feel these activities. The community usually
expresses its opinions through actions that might be considered obstructing coal mining activities
to criminalize the community. 7
In the element "Everyone" refers to the legal subject as the perpetrator of a criminal
act/matter of offense, for which he can be held accountable juridically; At trial, the public
prosecutor presents a defendant who has been charged with committing a criminal act following
the identity stated in the indictment. So, because there is already a correlation between the
defendant himself's identity and confession, in the element of "Everyone" in this case, there is no
mistake about the person as the subject of the offense presented as the defendant.

7
Arif Firmansyah & Euis D. Suhardiman, MEMBANGUN POLITIK KRIMINAL PADA PERTAMBANGAN
BATUBARA YANG MENYEJAHTERAKAN MASYARAKAT MELALUI SARANA NON-PENAL, Fiat Justisia
Jurnal Ilmu Hukum Volume 9 No. 3, Juli-September 2015. ISSN 1978-5186, pg 303
 In the element "Obstructing or Interfering with the Mining Business Activities of a
Qualified IUP or IUPK Holder," that the meaning of the word disturbing or obstructing according
to the Big Indonesian Dictionary is included in the purpose of causing it not to work correctly;
Mining business activities referred to here are activities in the framework of mineral or coal
exploitation which include the stages of activities of general investigation, exploration, feasibility
study, construction, mining, processing and refining, transportation and sales and the company in
question is PT. Maruwai Coal and the company have obtained permission from the Indonesian
Ministry of Forestry.
In Article 162, this article shows that community participation in expressing opinions or
forms of supervision of companies is inhibited, this regulation should better accommodate the
rights of the community to fight for their lives. 8
However, according to Mahrus Ali, the formulation of Article 162 in conjunction with
Article 136 paragraph (2) of the Law No 4 of 2009 does not comply with the lex certa9 principle
because the subject of offense in the provisions of the article above is not limited to business actors,
but also the communities around which mining companies operate, including customary law
communities. The prohibited act is “obstructing or disturbing the mining business activities of an
IUP or IUPIK holder who has met the requirements.” It is not clear what is meant by the act of
'obstructing or disturbing mining business activities' because the Law on Mineral and Coal Mining
does not explain this. 10
According to Douglas N. Husak, The appointment of Article 136 paragraph (2) means that
IUP or IUPK holders can carry out mining activities without waiting for land problems to be 100%
resolved. This article can carry out the phrase 'settlement of land rights in stages according to the
IUP or IUPK holder's needs. This indicates that the IUP controls the community around the mining
company or land voters whose land rights, or IUPK holder can be said to have committed a
criminal offense if they refuse mining companies to operate on the pretext that land disputes have
not been resolved. This is because there is no obligation for IUP or IUPK holders to complete it
100%, but it is sufficient to do it in stages. Because they have held a permit, these community
actions can already be considered criminal acts even though their actions are rational. 11

8
Arif Firmansyah & Euis D. Suhardiman, MEMBANGUN POLITIK KRIMINAL PADA PERTAMBANGAN
BATUBARA YANG MENYEJAHTERAKAN MASYARAKAT MELALUI SARANA NON-PENAL, Fiat Justisia
Jurnal Ilmu Hukum Volume 9 No. 3, Juli-September 2015. ISSN 1978-5186, pg 306
9
According to Indonesian Criminal Code, The meaning of lex certa, concerning written law, legislators must
formulate clearly and detail the actions referred to as crime). This action is called the lex certa principle or
bestimmtheitsgebot. Legislators must define clearly without vague (nulum crimen sine lege stricta) so that there is no
ambiguous formulation of the prohibited and sanctioned acts. The formulation is not exact or too complicated will
only create legal uncertainty and hinder the success of (criminal) prosecution efforts because citizens will always be
able to defend themselves that such provisions are useless as guidelines behavior.
10
Mahrus Ali, Overcriminalization dalam Perundang-Undangan di Indonesia, FH UII, JH Ius Quia Iustum Vol 25
Issue 3, September 2018, ; Published: 17 Januari 2019 DOI: 10.20885/iustum.vol25.iss3.art2, pg 465
11
Douglas N. Husak, “Reasonable Risk Creation and Overinclusive Legislation”, Buffalo Criminal Law Review, 1,
1998, hlm. 604. Douglas Husak, “Social Engineering as an Infringement of the Presumption of Innocence: The Case
of Corporate Criminality”, Criminal Law and Philosophy, 8, 2014, page. 356-357
 The problem that was missing from the judge's consideration in this decision was that in
the defendant's note of defense, the reason why the defendant did what he was accused of was for
the defendant's customary rights as well as the installation of Hinting Pali Adat on the land where
the incident occurred. The judges' panel considered that the defendant's reasons did not fall into
the realm of crime but in the civil domain, and the defendant's reasons should have been resolved
civilly. According to EY Kanter and SR Sianturi, the elements of criminal acts are: Subject,
Mistakes, It is illegal (and action), an action that is prohibited or required by law / legislation and
the offender is threatened with criminal, and Time, place and state (other objective elements).12
Hence, the defendant’s note of defense can’t be accepted.
The implication of the court decision for both parties, the community, and the surrounding
environment is for the defendant, with this court decision making the defendant proven to have
committed a criminal act and must be sanctioned in the form of imprisonment for three months—
a dream for PT. Maluwai Coal was that the company was able to defend the land they owned, and
the work that was being carried out in the area closed by the defendant could be used as usual.
In this case, the court decision has provided justice, legal certainty, and benefits to both
parties. That is, the panel of judges has provided justice in passing a case verdict by convicting the
defendant for being proven guilty, and the board of judges has fairly weighed matters that could
incriminate and relieve the defendant. This decision also produces legal certainty because the
judges' panel makes decisions following articles in the law contained in the indictment.
D. Conclusion
In this Court Decision Number 126/Pid.Sus/2020/PN. Mtw can be conclude that Roby bin
Wahyuni has been legally and convincingly proven guilty of committing a criminal act of
hindering mining business activities that is regulated in Article 162 Law No 4 of 2009 concerning
Mineral and Coal Mining. But, if the defendant wants to make a note of defense, it must be
following what the public prosecutor charges. Also even though in researcher’s perspective the
panel of judges already made a correct decision, Article 162 have to be reviewing in Constitutional
Court to do a Judicial Review because this article quite ambiguous. Lesson can be learned from
this annotation to everyone who read this are before do a settlement dispute, we have to know the
right Article to impeach someone. And for those that rejected the mining, and being accused on
Article 162, Article defamation can only be used for individuals, not companies. Meanwhile,
Article 162 of Law No. 4/2009 can only be enforced if the mining business permit (IUP) or special
IUP holders have settled land rights with the rights holders before the mining production business
takes place.13

12
EY Kanter dan R Sianturi, Asas-asas Hukum Pidana Di Indonesia dan Penerapannya, Alumni AHM-PTHM,
Jakarta, 1982, page.211.
13
Masyarakat Berhak Tolak Pertambangan",
https://regional.kompas.com/read/2011/01/28/04342854/Masyarakat.Berhak.Tolak.Pertambangan, 28 January 2011,
accessed on 8 January 2021
Bibliography

Arif Firmansyah & Euis D. Suhardiman, MEMBANGUN POLITIK KRIMINAL PADA

PERTAMBANGAN BATUBARA YANG MENYEJAHTERAKAN MASYARAKAT
MELALUI SARANA NON-PENAL, Fiat Justisia Jurnal Ilmu Hukum Volume 9 No. 3, Juli-
September 2015. ISSN 1978-5186,
Mahrus Ali, Overcriminalization dalam Perundang-Undangan di Indonesia, FH UII, JH Ius Quia
Iustum Vol 25 Issue 3, September 2018, ; Published: 17 Januari 2019 DOI:
10.20885/iustum.vol25.iss3.art 2
Douglas N. Husak, “Reasonable Risk Creation and Overinclusive Legislation”, Buffalo Criminal
Law Review, 1, 1998, hlm. 604. Douglas Husak, “Social Engineering as an Infringement of the
Presumption of Innocence: The Case of Corporate Criminality”, Criminal Law and Philosophy,
8, 2014, page. 356-357
EY Kanter dan R Sianturi, Asas-asas Hukum Pidana Di Indonesia dan Penerapannya, Alumni
AHM-PTHM, Jakarta, 1982
Masyarakat Berhak Tolak Pertambangan",
https://regional.kompas.com/read/2011/01/28/04342854/Masyarakat.Berhak.Tolak.Pertambanga
n, 28 January 2011.
Law No. 4 of 2009 concerning Mineral and Coal Mining