CONSTITUTIONAL LAW VIEWED FROM NATURAL RESOURCE, ENVIRONMENT AND MINING MANAGEMENT SYSTEM IN INDONESIA IN GLOBALIZATION ERA

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1 CONSTITUTIONAL LAW VIEWED FROM NATURAL RESOURCE, ENVIRONMENT AND MINING MANAGEMENT SYSTEM IN INDONESIA IN GLOBALIZATION ERA Karim Merua Hartiwiningsih Agus Riwanto Abstract Indonesian constitutional law has natural resource, living environment, and mining management system through legal and philosophical approaches with human right concept. Article 33 clause (2) of 1945 Constitution confirmed it by stating that people s life are under the power of state and clause (3) land, waters and natural resources within shall be under the power of State and used to the greatest benefit of people. That statement is a part of legal codification; scholars explain constitution as resultante of political, economic, social and cultural conditions when Constitution is developed. Constitution aims to limit the ruler s power, and to protect human rights; the ruler should respect it as law protection. Constitution constitutes material and formal law sources within which, particularly Article 33, the system of managing natural resource, living environment, and mining, and people s welfare prosperity are guaranteed.but in its implementation, social-economic gap occurs within society. The problems of research were: 1. Can constitutional and human rights serve as fundamental law in implementing state governance and ensuring Indonesian citizens right, 2. How is constitutional law sfunction and human rights in managing natural resource, living environment, and mining to ensure Indonesian citizens life rights? Natural resource, living environment, and mining belong to people used to ensure their life, prosperity and welfare. To realize people welfare, State s manifestation should be present with the concept of mastering and mastered to manage its life sources through constitutional law approach and other legislations managing and organizing community life through kinship and sustainability principles. Keywords: Constitutional Law, Management, Natural Resource, Environment A. Background Indonesian constitution legal system has fundamental function of managing natural resource, environment, mining, and etc. The approach used starts with philosophical approach, constituting a constitutional foundation of human rights. 1 1 SeeUndang-Undang Dasar 1945, Article 33clause(1) stating that he economy shall be organized as a common endeavor based upon the principles of the family system, (2) Sectors of 405

2 Its philosophical foundation is included in the fourth paragraph of Preamble of UUD 1945 (1945 Constitution) or the fifth principle of Pancasila stating that Social justice for all the people of Indonesia. Furthermore, Article 33 clause (3) of UUD 1945 states that the land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people. The two statements above are inseparable from the law codification related to natural resource, environment, and mining management, and from the socialpolitical contribution. Constitution is generally codification of document containing the rules of operating public (state) organization, but in its definition, it is not always in written (formal) document form. Jurists and political scientists argue that constitution should be translated into political agreement, state, power, decision making, policy, and distribution and location. Constitution for governmental organization or state sometimes is embodied into many forms and has complex structure, as indicated in political or legal constitution, and contains the definition of economic constitution. Moh. Mahfud MD explains this in constitutional theory that constitution is the resultante of political, economic, social, and cultural condition when the constitution is developed. 2 The term constitution is identical with codification or written document, for example in United Kingdom constitution is not in codification form, but based on jurisprudence. In UK s state structure, the term constitution is used, deriving from Dutch word constitutieandgrondwet, from Latin words constitutio, andconstituere related to the word jus or ius meaning law or production which are important for the country and affect the life ofthe people shall be under the powers of the State, (3) The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people, (4) The organization of the national economy shall be conducted on the basis of economic democracy upholding the principles of togetherness, efficiency withjustice, continuity, environmental perspective, selfsufficiency, and keeping a balance in the progress and unity of the national economy (5) Further provisions relating to the implementation of this article shall be regulated by law. 2 See the term constitution often used in the same meaning just like that in UUD despite broader scope of constitution definition theoretically. Moh.Mahfud.MD, 2010.Perdebatan Hukum Tata Negara Pasca Amandemen Konstitusi.Cetakan ke-1 PT RajaGrafindo Persada, Jakarta.p

3 principle 3. In France it is called constiture, Germanverfassung andgrundgesetz, and Dutchgrundgesetz,grundrecht andgrondwet. 4 In Republic of Indonesia s state structure, constitution is defined as undangundang dasar; therefore constitution is basic regulation, containing the basic stipulations serving as a source of legislation. For that reason, there is an analog of Indonesian s constitution as whole regulations, either written or non-written, governing and binding, and it is the government s way of organizing a state society referring to the definition of constitution. In their arguments, 1) K.C. Wheare explains that constitution is entire state structure system of a country, constituting a collection of regulations in the form of governing/reigning a state s government; 2) H. Heller states that constitution has a broader definition than UUD, because constitution is not only juridical but also sociological and political; 3) Lasalle understands that constitution is the relationship between power existing within society such as the class having real position within society, for example the head of state, head of army, head of political party, and etc; 4) L.j Van Apeldoorn argues that constitution contains written and non-written regulation; 5) Koernimanto S suggests that the term constitution come from Latin word cisme meaning together and statute meaning making something standing. So constitution means establishing collectively or together; and 6) Carl Schmidt divides constitution into 4 definitions: a) constitution in absolute meaning having 4 definitions: (1) constitution as an organization unity including law and all organizations in the state, (2) constitution as the form of state, (3) constitution as the integration factor, and (4) constitution as a closed system of the supreme legal norm in the state; b). Constitution in relative meaning divided into: constitution as the demand for the rights guaranteed by the ruler and constitution as the law in formal (written) sense, and law in material sense; c) constitution in positive sense is the supreme political decision 3 See Brian Thompson, Textbook on Constitutional and Administrative Law, Third edition, (London: Blackstone Press, Ltd., 1997), p. 3. In Jimly Asshiddiqie, 2011.Pengantar Ilmu Hukum Tata Negara, Third edition. PT RajaGrafindo Persada, Jakarta. p In Jimly Asshiddiqie, Ibid.p

4 that can change the state structure life order; and d) constitution in ideal sense is the constitution containing the guarantee of human rights and protection 5. Thus, the objectives of research are: (1) to limit the ruler s power in order not to act arbitrarily, as without limiting the authority of ruler, the constitution will not run well and it can harm the people, (2) to protect human rights to make every rulers respect human rights and the right to get law protection in implementing their rights; and (3) to be guideline in organizing a state. In relation to the explanation above, the concept of constitution (UUD 1945) is the sources of material law and formal law, in managing natural resource, environment, mining, and etc, as mentioned in UUD 1945, Article 33 clauses (1) stating that he economy shall be organized as a common endeavor based upon the principles of the family system, (2) Sectors of production which are important for the country and affect the life ofthe people shall be under the powers of the State, (3) The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people, (4) The organization of the national economy shall be conducted on the basis of economic democracy upholding the principles of togetherness, efficiency withjustice, continuity, environmental perspective, self-sufficiency, and keeping a balance in the progress and unity of the national economy (5) Further provisions relating to the implementation of this article shall be regulated by law 6 The statement of Article 33 actually means that the state ensure the welfare and prosperity for its entire people, but in reality there is an inadequate synchrony between the real implementation and the expectation, and this potentially results in the gap between the rich and the poor, the strong and the weak. This affects prosperity and welfare constituting the part of implementation of rule of law and constitution in the management and utilization of natural resource, living environment, mining, and etc, some of which deviates from the principle of environmental law including balance and sustainability. In addition, inadequate analysis is often conducted in both implementation and utilization, and justice and 5 I. Dewa Gede Atmadja, Membangun Negara Hukum yang Bermartabat, Setara Press.Malang Jawa Timur 2013.p I. Dewa Gede.Ibid. p

5 certainty of natural source management, in addition to other factors triggering the achievement of constitution objective. It can be seen from some concepts of constitutional often undertaking judicial review by Constitution Supreme, for example legislation in living environment, natural resource and coal, and etc. besides, the concepts of constitution is often less relevant due to the rapid change of society, so that constitution and legislation should be adjusted with the change. Considering this, a problem arises about the expectation and reality or how are das sein and das solen, so that it is formulated in the problem statement below. B. Problem Statement 1. Can constitutional law function in natural resource, environment, and mining management system in Indonesia in globalization era? 2. How is the implementation of constitutional law in natural resource, environment, and mining management system in Indonesia in globalization era? C. Method This study was a normative law research studying the constitutional law in natural resource, environment, and mining management system in Indonesia in globalization era. This research method was the process to find out legal norm in order to address the legal issue in the problem of research. The approach used was juridical normative (legal research), focusing on the application of legal norm. This study emphasized more on the implementation of constitutional law by studying literature containing theoretical concept related to the problem of research. This research method was intended to obtain information about the issue for which the answer is looked for, with statute approach (UUD 1945). 409

6 D. Discussion 1. Constitutional law in natural resource, environment, and mining management system in Indonesia in globalization era The society perceives that constitutional law in Indonesia is the supreme legal source and the fundamental law in the management of natural resource, environment and mining. The development of society in globalization era will impact on the shift of value, the change of political values in a country, referring to the constitutional theory in the application of state s basic rule. In reality, the application of state s basic rule is the result of political and social interaction that will affect any decision and policy making including in the system of managing natural resource, environment, and mining. As long as constitutional theory and law remain to focus on the norm prevailing commonly, that becomes the fundamental norm and legal ideal prevailing in Indonesia. To understand it through legal politic study, Indonesian constitutional law actually governs the recognition and the protection of people s right. The recognition in constitution appears along with democracy concept, and this concept reveals that the fundamental right of every citizen is equal before the law including in the right to seek and to get justice based on constitutional law. 7 In modern country, constitution is a document containing an agreement between all components existing in the state to achieve the common objective that is outlined in ideal, in which the rights should be fulfilled and it is the government s obligation to fulfill those rights. Constitution present as the reflection of social relation between members of society is called anthropological document monument that has 7 See UUD 1945 in Article 24C (1) The Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose powers are given by this Constitution, deciding over the dissolution of a political party, and deciding disputes over the results of general elections. 410

7 expressed a nation s cosmology and has embodied ideals, expectation and dream about building the state. 8 The position of constitution viewed from theoretical aspect is that it is a legal document governing all wheels of state life, the result of social contract between all components of state, as taught by Thomas Hobbes, John Locke and J.J. Rouseau. 9 Thomas Hobbes states that agreement is required to bind everyone in the state in order to minimize cruelty tending to harmful to others. Hobbes says that human s basic character becomes the enemy of other human, homo homini lupus. In relation to the existence of society s right, Hobbes s view requires the presence of constitution to avoid dispute between groups within society, including dispute between customary societies. To deal with this, there should be supra-politic construct, the existence of which surpasses and protects the existence of social-political units of society or state. 10 In contrast, John Ferejohn says that constitution should be perceived historically and culturally, in which constitution can be interpreted in the form of backwardlookingand forwardlooking.backwardlooking is to see constitution historically and culturally to find out the power of constitutional text, while forwardlooking considers the effect of legal condition on the function of political system and society life. He also argues that constitutionalism is a process of interpreting a society, the members of which participate in political power collectively and attempt to establish what the constitution allows or requires in relation to specific problems. Thus, Indonesian constitutional law is the only legal foundation in implementing natural resource, environment, and mining management. 8 Satjipto, Rahardjo, Hukum Adat dalam Negara Kesatuan RepublikIndonesia (PerspektifSosiologi Hukum),in Hilmi Rosyida dan Bisariyadi (edt), Inventarisasi dan Perlindungan Hak MasyarakatHukum Adat, Jakarta: Komnas HAM, Mahkamah Konstitusi RI, and Departemen Dalam Negeri, Lebih lanjut tentang perbedaan tiga pandangan tokoh ini (termasuk Jurgen Habermas) baca: Reza A. A.Wattimena, Melampaui Negara Hukum Klasik, (Yogyakarta: Penerbit Kanisius,). p Supra-politic construction in Hobbes view should be like Leviathan, a sea monster frightening the state so that everyone is subjected to it. 411

8 The foundation is UUD 1945 Article 33 perceived not as a dead document but the constitution functioning as the basis of organizing a state and should keep alive following the time development (the living constitution). Viewed from its position, constitution is a general consensus or common agreement of all people regarding fundamental matter related to the basic principle of life in organizing the state and the state s organizational structure. 11 It means that the stipulation of constitution has an important meaning and consequently should be implemented sincerely without exception, both through policy and legislation product. In relation to protection and management, the existence of norm or stipulation of natural resource, living environment, and mining management and protection will have significant legal effect on the concept of sustainable development in the constitution, as explained below. Firstly, the stipulation affects the development of policy in protection values and basic principle of environment at national and regional scales. Secondly, the constitutionalization of environment principles will create jurisdiction over the national law prevailing in every level of government territory, including province and regency/municipal. Thirdly, the content of constitution affects the relation established between substantive and procedural environmental laws, and whether or not the environmental law at national level is difficult to integrate and to be harmonized with environmental norm at international level. In addition, constitution contains the stipulation of environment determining the direction and scope of property rights and affecting indirectly the protection concept of private ownership. Considering Article 1 clauses (2) and (3) of UUD 1945, Indonesia is the state holding on democracy and nomocracy principle. Both of them cover its weakness in balance; more specifically, Indonesia governs the 11 For more information see Jimly Asshiddiqie, Konstitusi & Konstitusionalisme Indonesia, Jakarta: Konstitusi Press, 2005, p

9 constitutional democracy system, the implementation of which should be subjected to the provision of norm in 1945 Constitution. Although there is no absolute requirement stating that state constitution should use democratic system, according to democratic theory, constitution and democracy have been very compatible. It is because the limitative authority of state s power will give individuals and group the important opportunity of growing social interaction and making decision freely. Constitutional system gives the pro-living environment movement the large opportunity of growing. 12 Thus, Indonesia as the third largest democratic country in the world has constitutional mandate to protect and to improve environmental function, even it has been the commitment and basic consequence for the state holding on the idea of welfare being. However, the movement s success can be seen from its effectiveness in solving natural resource, environment, and mining problems, dependent on constitution, norm, and institutional regulation. 2. Function of Constitutional Law in managing natural resource, environment and mining in Indonesia in globalization era. The basic idea of constitutional Law (UUD 1945) is Indonesia s independence, because the requirement of an independent state s establishment, among other, is the presence of constitution (law). 13 The second idea is independent, united, sovereign, just, and prosperous society, 14 the third one is in order to have a free nationality life, 15 the fourth one is to establish an Indonesia State Government, in the form of NKRI (Negara Kesatuan Republik Indonesia), that is independent, for all Indonesian people 16. The statement that Indonesia is Negara Kesatuan Republik Indonesia (NKRI) shows that Indonesia is the diversity state, consisting of 810 (eight hundred and ten) ethnics, 1,100 (a thousand and 12 J. McBeath dan J Rosenberg, Comparative Environmental Politics, Dordrecht: Springer, 2006, p See Preamble ofundang-undang Dasar 1945, paragraph. 14 See the second paragraph. 15 Third paragraph. 16 See the fourth paragraph. 413

10 a hundred) cultures, and 17,000 (seventy thousands) island; it shows that Indonesian diversity is due to it consists of more than one ethnics. 17 The statement of independence for all Indonesian people in the preamble of 1945 Constitution is the fundamental function of constitutional law to govern their own nation life in independent sense. Independence is defined as implementing the management of natural resource, environment, and mining independently. The essence of management includes the implementation of legal development, aiming to protect the rights of citizens integrated into human rights, as included in the Article clause (3) stating that The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people. Because Article 33 of 1945 Constitution is the foundation to build the management of natural resource, environment, and mining in legal protection sector in Indonesia 19, aiming to realize the people welfare and prosperity, the management is done based on Indonesia economy, containing the principle of commonness and kinship. Therefore, in Indonesian economic legal development, Article 33 of UUD 1945 is compulsive in nature, so that the legislation states that economic development emphasizes more on the people s welfare than individual or group s prosperity. In the development of constitutional law and human rights, the object of legislation development in the management of natural resource integrated into Article 33 of UUD 1945 is the establishment of legislation related to the management of natural resource, living environment, mining, and etc. The position of regulation is lex specialis in nature, meaning that there is a special regulation in their own area, as confirmed in the UUD 1945 Article 33 clause (5) in which further stipulation about this article implementation is governed in the law. It indicates that it is 17 Republic of Indonesia President s Official Speech, Live broadcast, Media TV ONE August 16, See UUD 1945 in article 33, clauses (1), (2), (3), (4), and (5). 19 I. Dewa Gede Atmadja, Ibid. p

11 constitution that has the space for managing natural resource, living environment, mining, and etc. Regarding this, Taufiqurrohman Syahuri says that the relation between constitutional law norm and the norm of law below should be synchronous, because the state s constitution is contained in the constitution of various conventions. Constitution contains fundamental rule or basic rule of state becoming the source and the foundation of the establishment of lower rule of law. It is called basic rule of state because it contains only general rules that is still primary or outline in nature. 20 Referring to hierarchical theory of norm (Stufenbau theory) developed by Hans Kelsen, it can be seen that the legal norm is in tiers in a hierarchical structural order. The theory views that a lower norm prevails and originates from the higher one. It is also true for the next norm until arriving at the untraceable norm that is hypothetic and fictitious in nature, called grandnorm (basic norm). The grandnorm is the supreme norm established directly by society and becomes the source of the lower norm. Therefore, it is called presupposed. 21 Based on hierarchical theory of norm (Stufenbau theory) and constitutional authority, according to state administration law, the constitutional authority is given to Constitutional Court constituting the state institution authorized to oversee and to govern it based on Article 24c clause (1) of UUD Article 24c clause (1) determines that Constitutional Court has four constitutional authorities and constitutional obligations. Furthermore, Article 10 clause (1) letter a to d of Law No. 24 of 2003 juncto Law No.8 of 2011 about Constitutional Court confirms this and mentions the four authorities of Constitutional Court, one of which, is to try the law against the Constitution (UUD). 20 Taufiqurrohman Syahury Tafsir Konstitusi Berbagai Aspek Hukum. Prenada Media Grup. Jakarta. p Hans Kelsen, General Theory of Law and State, New York: Russel & Russel, p. 113.inTaufiqurrohman Syahury. Op. Cit. p

12 Considering the four authorities, Article 10 clause (1) letter a to d of Law No. 24 of 2003 juncto Law No.8 of 2011 about Constitutional Court in point 1 (one) confirms that the Constitutional Court s duty is to maintain and implement constitution. The duty is intended to oversee legislation in legal area including natural resource, living environment and mining, closely related to the society, nation, and state s interest. In undertaking and maintaining constitution, the legislation should remain to be compatible to basic norm of constitution, essentially to protect the living environment interest, and human rights as the source and basis of human life. Thus, the function of constitutional law and human rights in its implementation in the management of natural resource, living environment and mining should at least ensure the right of life in justice for all Indonesian citizens. Through the constitutional guarantee, the expectation to remove the gap between the rich and the poor, and between the ruler and the people 22 needs cultural, legal, political, and other approaches to manage environment and natural resource. Mardiono 23 says that the difference of legal and political approaches in other countries from that in Indonesia is due to Indonesian nation s philosophical foundation formulated operationally in UUD 1945 about the formulation of idea constituting the philosophical foundation or formulated in Preamble becoming the theme of Preamble of UUD 1945, constituting the basic values of Indonesian legal order. 24 The foundation of legal order, according to the result of seminar on National Legal Identity (1998) in UII), is the philosophical foundation of Indonesian legal order in the sense of basic values originating from the ideas of UUD 1945 essentially: Pancasila, consisting of four basic values 22 See some cases becoming the comparator of cases, Selo Awar-awar as environmental case, local government policy regarding the administration of iron ore mining license can disrupt the source of clean water for the people s need in Bima Regency. 23 Mordiono.Sekitar Politik dan Strategi Pembangunan Hukum Nasional, dalam Politik Pembangunan Hukum Nasional, UII.Press. Jogjakarta p See formulation according to Mohamad Koesmiran stating that the ideas of Preamble of UUD 1945 is basic values of Indonesian legal order in Altidjo Alkosar, ed. Identitas Hukum Nasional, Fakultas Hukum Universitas Islam Indonesia. Jogjakarta.1997.p

13 of legal order including: (1) basic value that is protective in nature; (2) basic value that should realize social justice for all Indonesian people, not merely the objective, but also the concrete principle to develop legislation in the form of both legislation and regulation 25 ; (3) Basic values that is pro-people (populist) in nature (democracy), meaning that the law comes from people; concretely, the legal product form of legislation is the legislative authority reflecting on people sovereignty; and (4) basic value based on Belief in Divinity of God, showing the recognition of the presence of God s law, and considering the moral values and noble character. 26 This basic value gives basis for legal education for academician and professional education teaching character education through legal professionalism ethics. Furthermore, in building Indonesian legal order related to the legal system, the legal order is all legal norms and principles underlying the legal orderliness. Legal orderliness builds on the four basic elements: authorized ruler, moral principle, and same time and place of enactment. For Indonesian legal order it is a part of legal orderliness constructed in UUD 1945, philosophically constituting the basic rule and functioning as constitution. For example, in the preamble of UUD 1945, the elements are Indonesian independence, there is a ruler, the ruler of Indonesian state (Government) authorized with Pancasila as the state foundation, having moral principle. The statement of independence means that there is a time unity indicating that Indonesian nation begins to be relieved from and is no longer connected to colonization, and there is Negara Kesatuan Republik Indonesia territory as the place where the norm of law prevails. In relation to the construction of Indonesian legal order in legal system, Arief Sidarta in I. D Gede Atmadja states that legal order is the formal structural construction of legal system identical with legal 25 Moh. Koesnoe in I. D Gede Atmadja explains that the meaning of being protective orprotecting, according to Javanese concept, contains the ayom (protected) or cool, safe, and peaceful circumstancefor the protected one. Two ideas underlying legal order that is protective in nature are: ides of the unity of all people and idea of social justice for all Indonesian people. I. D Gede Atmadja. Op.Cit p Artidjo Alkostar, ed., op. cit.p

14 substance and legal cultural element. Legal system has different meaning from dogmatic legal science point of view. Usually, legal system refers to the branch of legal science, such as Criminal Law, Civil Law, Customary Law, State Administration Law, and etc. 27 Rene David in hisbook The Major Legal System In The World, categorized Indonesian legal system into mixed system combining western law, customary law, and Islam law, rather than civil law system. Furthermore, Sunaryati Hartono idealizes that National Legal system should be the supra of western law, customary law, and Islam law subsystems. However, it has been realized that historically, many different views have appeared on Indonesian legal development postindependence. Therefore she divided it into three groups: the first group wants to maintain the pluralistic customary law for each customary law environment; the second group requires Islam law or shari a law to apply to Islam adherents and more principle of Islam law becomes the principle of national law, with the establishment of Hazairin stating that marriage law should be synchronous between customary, Islam, and modern law; and the third group constitutes legal scholars particularly those occupying in governmental position and MPR (House of Representatives), requiring the national legal politics that realizes the unification of law for all territories of Republic of Indonesia and prevailing to all citizens. 28 Meanwhile, the strategy of constructing Indonesian law is conducted through macro and micro legal perspectives. Academically, there are analytical critical thinking explain that Indonesian law pertains to the paradigm of Pancasila law. Legal paradigm puts Pancasila on the supreme position on the hierarchy of legal norm. In relation to this, Pancasila serves as the foundation of state (filosofischegrondslag)or ideal of law (rehtside), grondnorms,spirit of people (volkgist) andlegal 27 I. Dewa Gede Atmadja. op. cit. p C.F.G. Surnayat Hartono. 2006, hineka Tunggal Ika Sebagai Asas Hukum Bagi Pembangunan Hukum Nadsional.PT. Citra Aditia Bakti. Bandung. pp

15 ideology. Constitutionally, Pancasila is included in Preamble of UUD 1945, the juridical consequence of which obligatorily should be sent down to the Constitution of Indonesia and all of other legislations in all legal products, either written or non-written. In developing the written legal product as the pillar of National Legal Development, it is noteworthy that law is not merely the crystallization of society s value order, but it can also be embodied in new norm or convention to change the existing value order into the new one, corresponding to the national ideal. 29 The development of law, according Roscoe Pound, is that the law functioning not merely as a tool of social control but it is also expected to maintain status quo, and atool of social engineering that is development-centered. 30 The strategy of macro perspective law building includes the theoretically very relevant law developing strategy, based on the model becoming the framework f legal product development; this moment involves: (1) ideal politic moment, the development of law based on the philosophy of Pancasila as the philosophical foundation; (2) aspirative moment, the obligation of politician as legislator to absorb people aspiration in developing the law; (3) normative moment, the juridical moment becoming the central to enable the law to reflect on certainty, benefit, and justice and to prevent the conflict repressively becoming the legal foundation in resolving dispute; and (4) technical moment, the work of legal skill and expertise, legal drafting or briefly the skill of organizing the procedure and the numbering of every article. E. Conclusion Considering the problem and discussion above, the following conclusion can be drawn: 1. Constitutional law is entire state structure system of a country, constituting a collection of regulations in the form of governing/reigning 29 Mordiono, op.cit p I. Dewa Gede Atmadja. op. cit. p

16 a state s government, one of which functions in the implementation of natural resource, environment, and mining management requiring the ruler to ensure the rights. For that reasons, according to H. Heller, constitution has a broader definition than UUD, because constitution is not only juridical but also sociological and political, so that a relation is established between rule (power) and society in the implementation of natural resource, environment, and mining management functioning as the legal reference. 2. The implementation of management is like that included in UUD In Article 33 clauses (1), (2), (3), (4), and (5). To develop the implementation of natural resource, environment, and mining management, the legislation that is specific specialis derogat lege generalis in nature is developed, that can ensure the living rights of all Indonesian citizens to achieve prosperity and welfare with sustainability principle. F. Recommendation Considering the conclusion above, the following recommendations can be given: 1. Constitutional law is the law for society orderliness as the closed system of the supreme legal norm in the state, so that every individual or group can use it well based on the principle of benefit, justice, and certainty with kinship principle to achieve the peace. 2. In utilizing natural resource and etc, constitutional law should be the guideline for everyone in order to avoid any form of law uncertainty. In addition, constitution has an important meaning and consequence to be implemented sincerely without exception, through either policy or legislative product. 420

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