Amahl S. Azwar, Jakarta – The individuals who eventually brought down oil and gas regulator BPMigas through the Constitutional Court may have been enflaming nationalistic sentiment to gain popularity in an attempt to raise their profile ahead of the 2014 presidential election.
The University of Indonesia's political observer Iberamsjah said on Thursday that judging from their profiles, the organizations and the individuals filing the judicial review "obviously" had political motives.
"Of course their actions are politically motivated [...] most of the public figures among the plaintiffs are notorious for their opposition stance against the government," he said.
International investors were in shock upon learning on Tuesday that the court disbanded BPMigas on the basis that the agency's existence was against Article 33 of the Constitution, which stipulates the state should make the most benefits from the country's natural resources for the people's welfare. The article has been often loosely interpreted to fuel nationalistic sentiment.
It was through such arguments that leaders of Nahdlatul Ulama (NU) and Muhammadiyah, the country's biggest and second biggest Muslim organizations took the opportunity to file a case with the Constitutional Court whose chief justice Mahfud MD is a notable NU member.
Mahfud, a former defense minister during the administration of president Abdurrahman Wahid in 2000 and 2001, was a politician for the National Awakening Party (PKB) founded by NU elites.
His recent criticism of President Susilo Bambang Yudhoyono's administration has raised his profile, and he has been touted by many as a potential presidential or vice presidential candidate for the 2014 election.
According to a poll by the Soegeng Sarjadi Syndicate (SSS) in June, Mahfud was among the favorites to run for president behind Great Indonesia Movement (Gerindra) chief Prabowo Subianto, Golkar politician Jusuf Kalla and Indonesian Democratic Party of Struggle (PDI-P) chairwoman Megawati Soekarnoputri.
Other political figures in the panel of judges include Akil Mochtar, former senior politician of the Golkar Party, and former Moon and Crescent Party politician Hamdan Zoelva.
These politicians teamed up with high-profile figures behind the judicial review, including Muhammadiyah chairman Din Syamsuddin, who once called Yudhoyono "a liar" over poverty statistics.
Din has also been touted to run for the 2014 presidential election, although he has constantly denied any intention to run.
Other Muslim scholars opposing BPMigas include Hasyim Muzadi, former NU chairman and Salahuddin Wahid, also a notable NU member.
Other notable plaintiffs also include former spokesman for president Abdurrahman and Clean Indonesia Movement (GIB) chairman Adhie Massardi, and Indonesian Resources Studies (IRESS) director Marwan Batubara who has affiliations with the Islamic-based Prosperous Justice Party (PKS).
Senior Golkar Party politician and former industry minister Fahmi Idris, who served in Yudhoyono's Cabinet between 2004 and 2009, also joined the club.
The plaintiffs in June requested energy analyst Kurtubi, who is associated with state oil and gas company PT Pertamina, to become their expert witness before the panel of seven judges.
Pertamina is obviously the beneficiary of the court's decision as the company once had the BPMigas function before the agency was formed in 2002. Kurtubi expected Pertamina to have its authority as regulator returned.
Kurtubi has also constantly considered BPMigas to have favored foreign companies over Pertamina. International energy companies, such as Chevron, ExxonMobil and Total SA, account for around 70 percent of Indonesia's oil output. Around 40 percent alone comes from Chevron.
Economist Fauzi Ichsan of Standard Chartered Bank said if similar complaints from such opposition groups could be easily accepted by the Constitutional Court, it would create legal uncertainties for businesses.
He added that as long as the government could find ways to avoid violating and breaking existing commercial contracts, the risk of hampering Indonesia's investment climate could be minimized.
Excerpts of the verdict:
1. All of the aspects in relation to the upstream oil and gas regulator BPMigas as stipulated in Law No. 22/2001 on oil and gas are against Article 33 in the Constitution, which stipulates that the government must manage the natural resources directly for the sake of people's welfare
2. BPMigas is a state legal agency while, according to the panel of judges, a state-owned enterprise is more suitable to handle the regulation of the oil and gas businesses as stipulated in Article 33 of the Constitution because legal agency has limitations
3. BPMigas has the potential to abuse its power
4. Given such provision, BPMigas does not have any legal grounds to support its existence
5. All of the functions of BPMigas will be handed over to the government until there is a formation of a new law stipulating a new supervisory body