1. Introduction
    Illegal Mining (PETI) is the activity of producing minerals or coal carried out by the community or companies without having a permit, not using good mining principles, and having negative impacts on the environment, economy, and society.In general, PETI perpetrators will ignore the obligations and responsibilities of miners as they should, both towards the state and the surrounding community, because PETI perpetrators do not have permits, so they are not subject to the obligations as holders of Mining License (IUP), including to prepare community development and empowerment programs.

    Until now, PETI is still a very serious problem in Indonesia. According to data from the Ministry of Energy and Mineral Resources (ESDM), as of the third quarter of 2021, there were more than 2,700 PETI locations spread across Indonesia, consisting of 96 PETI Coal locations and 2,645 PETI minerals.1

    In 2023, based on police reports and expert statements, there were 128 reports of PETI cases spread across 24 provinces in Indonesia, the most in South Sumatra with 26 reports.2

    The Government of the Republic of Indonesia (Indonesia) has a strong commitment to preventing and eradicating PETI, and all criminal acts in the energy sector and mineral commodity management.3

    For this purpose, on 5 November 2024, the President of Indonesia promulgated Presidential Regulation No. 169 of 2024 on the Ministry of Energy and Mineral Resources (Presidential Regulation No. 169/2024). Through Article 7 letter f of Presidential Regulation No. 169/2024, the President of Indonesia established a new Directorate General in the organizational structure of ESDM Ministry under the name of “Directorate General of Law Enforcement for Energy and Mineral Resources“.4

  2. Discussion
    1. Violation of the Provisions of the Law and the Negative Impact of PETI
      Article 158 of Law No. 3 of 2020 which amends Law No. 4 of 2009 concerning Mineral and Coal Mining (Minerba Law) stipulates that “any person who carries out Mining without a permit as referred to in Article 35 shall be punished with imprisonment of a maximum of 5 (five) years and a maximum fine of IDR 100,000,000,000.00 (one hundred billion rupiah).5In fact, Article 161 of the Minerba Law clearly stipulates that anyone who accommodates, utilizes, processes and/or refines, develops and/or utilizes transportation, sells minerals and/or coal that do not originate from holders of IUP, IUPK, IPR, SIPB or other permits will be subject to imprisonment.6

      Thus, it is clear that the act of PETI violates the law and has legal consequences in the form of criminal penalties.
      Furthermore, the act of PETI has negative impacts on social, economic and environmental life, including:

      • Hindering regional development;
      • Causes health problems to the surrounding community;
      • Reduce the amount of Non-Tax State Revenue (PNBP) and Taxes;
      • Causes environmental damage and destroys forests;
      • Disrupts the productivity of agricultural land and plantations;
      • Causes river water turbidity and water pollution;
      • Ignoring occupational safety and health (K3).

      Based on these reasons, the Indonesian Government is committed to preventing and eradicating PETI, which then became the background for the establishment of the Directorate General of Law Enforcement for Energy and Mineral Resources, in Presidential Regulation No. 169/2024.

    2. About The Directorate General of Law Enforcement for Energy and Mineral Resources
      Article 23 of Presidential Regulation No. 169/ 2024 stipulates that the Directorate General of Law Enforcement for Energy and Mineral Resources is led by a Director General who is under and responsible to the ESDM Minister.7Article 24 of Presidential Regulation No. 169/ 2024 stipulates that the Directorate General of Law Enforcement for Energy and Mineral Resources has the task of formulating and implementing policies in the field of energy and mineral resources law enforcement.8In carrying out its duties, the Directorate General of Law Enforcement for Energy and Mineral Resources carries out 8 functions, namely as follows:9

      1. Formulation of policies in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      2. Implementation of policies in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      3. Coordination and synchronization of policy implementation in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      4. Preparation of norms, standards, procedures, and criteria in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      5. Provision of technical guidance and supervision in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      6. Implementation of monitoring, analysis, evaluation, and reporting in the areas of prevention, complaint handling, supervision of legal compliance, investigation, imposition of administrative sanctions, and application of criminal law, as well as support for energy and mineral resources law enforcement operations;
      7. Implementation of the administration of the Directorate General;
      8. Implementation of other functions assigned by the Minister of Energy and Mineral Resources.

      Presidential Regulation No. 169/2024 does not yet regulate the duties and functions of the Directorate General of Law Enforcement for Energy and Mineral Resources in more detail. Therefore, the ESDM Minister must issue a Ministerial Regulation that regulates this, considering that the ESDM Minister is currently in the process of establishing the organization of the Directorate General of Law Enforcement for Energy and Mineral Resources.10

      The ESDM Minister himself has the stance that the spirit of the Directorate General of Law Enforcement for Energy and Mineral Resources will focus on overcoming illegal mining and oil drilling activities,11 with the authority to carry out order and law enforcement.

    3. Dualism of Law Enforcement Agencies and Other Challenges
      The Directorate General of Law Enforcement for Energy and Mineral Resources will receive the delegation of authority to implement order and law enforcement, including the imposition of administrative sanctions and the application of criminal law, as stated in Chapters XXI, XXII, and XXIII of the Minerba Law.12The main issue in the delegation of authority is the potential for dualism of agencies that have authority over law enforcement in the field of energy and mineral resources, because currently the Indonesian Police are still very active and play an important role in eradicating PETI. Thus, it is very possible to disrupt the law enforcement process that is already running well, and cause confusion between institutions.

      On the other hand, with the existence of the Directorate General of Law Enforcement for Energy and Mineral Resources, the ESDM Ministry will be able to implement the authority attributed in Articles 149 and 150 of the Minerba Law13 more actively and effectively.

      Of course, this effectiveness will be achieved better if the ESDM Ministry coordinates and creates a good synergy with the Indonesian Police, the Attorney General’s Office, and other institutions, to prevent the emergence of institutional conflicts such as the conflict between the Indonesian Police with the newly established Corruption Eradication Commission as occurred in the past.14 The ESDM Ministry can learn from the Ministry of Environment and Forestry (LHK) which previously had a Directorate General of Law Enforcement, which is currently eradicating illegal logging and other environmental crimes in an active manner.

      Other challenges that arise are: (i) intervention of political interests, where the Directorate General of Law Enforcement for Energy and Mineral Resources is very vulnerable to the risk of political interference and external interests because it is under a Ministry, which will be full of politics, therefore, without a strong supervision system, it can be influenced by certain interests that can endanger its independence and integrity; and (ii) effectiveness in handling PETI, where even though the Directorate General of Law Enforcement for Energy and Mineral Resources was formed to combat PETI, its effectiveness is still questionable without a clear plan and good coordination with other institutions. To overcome these challenges effectively, an approach that involves various parties is needed.

  3. Conclusion
    The establishment of the Directorate General of Law Enforcement for Energy and Mineral Resources based on Presidential Regulation No. 169/2024 is an important step in efforts to eradicate illegal mining in Indonesia, which is still a serious problem that violates the law and has negative impacts on the environment, society, and economy, including environmental damage and decreased state revenue.

    The Directorate General of Law Enforcement for Energy and Mineral Resources has duties and functions that focus on enforcing the law in the energy and mineral resources sector, including prevention, supervision, investigation, and criminal law enforcement. However, there are challenges in its implementation, such as the potential for dualism of authority with the Indonesian National Police and the risk of political intervention.

    The effectiveness of the Directorate General of Law Enforcement for Energy and Mineral Resources will depend heavily on good coordination with related institutions, strong supervision, and independence in carrying out its duties. The government needs to ensure that this Directorate General has a clear plan and adequate support to eradicate illegal mining effectively and sustainably.

Dhimas Haris Anggara Mukti

References :

Pemerintah RI, Undang-Undang No. 4 Tahun 2009 tentang Pertambangan Mineral dan Batubara. Lembaran Negara Tahun 2009 Nomor 4, Tambahan Lembaran Negara Nomor 4959.

—————- , Undang-Undang No. 3 Tahun 2020 tentang Perubahan Atas Undang-Undang Nomor 4 Tahun 2009 tentang Pertambangan Mineral dan Batubara. Lembaran Negara Tahun 2020 Nomor 147, Tambahan Lembaran Negara Nomor 6525.

—————- , Peraturan Pemerintah No. 96 Tahun 2021 tentang Pelaksanaan Kegiatan Usaha Pertambangan Mineral dan Batubara. SK No. 097597 A.

Presiden RI. Peraturan Presiden No. 169 Tahun 2024 tentang Kementerian Energi dan Sumber Daya Mineral. SK No. 247736 A.

Kementerian Energi dan Sumber Daya Mineral. Siaran Pers No. 359.Pers/04/SJI/2022. https://www.esdm.go.id/id/media-center/arsip-berita/pertambangan-tanpa-izin-perlu-menjadi-perhatian-bersama/

Rizki Yusrial. 128 Kasus Tambang Ilegal Pada 2023, ESDM Beberkan Langkah Digitalisasi, Formalisasi Izin Hingga Bikin Ditjen Baru. https://www.tempo.co/ekonomi/128-kasus-tambang-ilegal-pada-2023-esdm-beberkan-langkah-digitalisasi-formalisasi-izin-hingga-bikin-ditjen-baru-1167179/

Maulandy Rizky Bayu Kencana. Kementerian ESDM Buka Seleksi Dirjen Gakkum, Polisi dan Hakim Bisa Ikut. https://www.liputan6.com/bisnis/read/5787754/kementerian-esdm-buka-seleksi-dirjen-gakkum-polisi-dan-hakim-bisa-ikut/

Rizki Yusrial. Kementerian ESDM Akan Buka Seleksi Ditjen Penegakan Hukum, Aparat Bisa Daftar. https://www.tempo.co/ekonomi/kementerian-esdm-akan-buka-seleksi-ditjen-penegakan-hukum-aparat-bisa-daftar-1168440/

Ilyas Fadilah. Bahlil Minta Dirjen Gakkum ESDM Diisi Polri atau TNI. https://finance.detik.com/ energi/d-7637227/bahlil-minta-dirjen-gakkum-esdm-diisi-polri-atau-tni/

Tim Detikcom. Mencuat Lagi Cicak vs Buaya di Tubuh KPK, Begini Sejarahnya. https://news.detik.com/berita/d-5561874/mencuat-lagi-cicak-vs-buaya-di-tubuh-kpk-begini-sejarahnya/

Sources

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  2. M. Rizki Yusrial, 128 Kasus Tambang Ilegal Pada 2023, ESDM Beberkan Langkah Digitalisasi, Formalisasi Izin Hingga Bikin Ditjen Baru, (can be accessed in https://www.tempo.co/ekonomi/128-kasus-tambang-ilegal-pada-2023-esdm-beberkan-langkah-digitalisasi-formalisasi-izin-hingga-bikin-ditjen-baru-1167179, accessed at 15 November 2024, 10.19 WIB).
  3. Maulandy Rizky Bayu Kencana, Kementerian ESDM Buka Seleksi Dirjen Gakkum, Polisi dan Hakim Bisa Ikut, (can accessed in https://www.liputan6.com/bisnis/read/5787754/kementerian-esdm-buka-seleksi-dirjen-gakkum-polisi-dan-hakim-bisa-ikut, accessed at 15 November 2024, 10.35 WIB).
  4. President of Republic of Indonesia, Peraturan Presiden No. 169 Tahun 2024 tentang Kementerian Energi dan Sumber Daya Mineral (SK No. 247736 A), Article 7.
  5. Government of Republic of Indonesia, Law No. 3 of 2020 on the Amendment of Law No. 4 of 2009 on Mineral and Coal Mining (Le State Gazette 2020 Number 147, Supplement to State Gazette Number 6525), Article 158.
  6. Op. Cit., Article 161.
  7. President of Republic of Indonesia, Peraturan Presiden No. 169 Tahun 2024, Article 23.
  8. Op. Cit., Article 24.
  9. Op. Cit., Article 25.
  10. M. Rizki Yusrial, Kementerian ESDM Akan Buka Seleksi Ditjen Penegakan Hukum, Aparat Bisa Daftar, (can be accessed in https://www.tempo.co/ekonomi/kementerian-esdm-akan-buka-seleksi-ditjen-penegakan-hukum-aparat-bisa-daftar-1168440, accessed at 13.35 WIB).
  11. Ilyas Fadilah, Bahlil Minta Dirjen Gakkum ESDM Diisi Polri atau TNI, (can be accessed in https://finance.detik.com/energi/d-7637227/bahlil-minta-dirjen-gakkum-esdm-diisi-polri-atau-tni, accessed at 15 November 2024, 13.50 WIB).
  12. Chapter XXI of Minerba Law stipulates on Investigation, Chapter XXII of Minerba Law stipulates on Administrative Sanction, and Chapter XXIII of Minerba Law stipulates on Criminal Sanctions.
  13. Articles 149 and 150 of the Minerba Law regulate the authority of civil servant officials whose scope of duties and responsibilities are in the mining sector to conduct investigations into reports or suspected criminal acts in mining business activities.
  14. Detikcom Team, Mencuat Lagi Cicak vs Buaya di Tubuh KPK, Begini Sejarahnya, (can be accessed in https://news.detik.com/berita/d-5561874/mencuat-lagi-cicak-vs-buaya-di-tubuh-kpk-begini-sejarahnya, accessed at 18 November 2024, 09.22 WIB).
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