Reflection on Experts [Coal Asia magazine Vol, 52]

REFLECTION ON EXPERTS.    By Ian Wollff

The Roll of the Expert Witness.

In Exploration & Mining we are familiar with the concept of calling in an expert witness when there is a special difficulty, such as different opinions over reserve estimations. Wikipedia defines an expert witness, as a person, who by virtue of education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness’s specialized (scientific, technical or other) opinion about an evidence or issue within the scope of their expertise.

So who are these technical experts who were called upon in the recent Constitutional Court to argue the pros & cons for raw ore exports? A brief Google search revealed the following;

Experts for the petitioners are;

1. Dr. SaldiIsra, S.H., MPA. Born in West Sumatra in 1968 and completed a law degree at the university of Andalas, a MSc at the University of Malaysia and PH.D at the University of GajaMadah. In 2010, he was confirmed as the State Administration law professor at the University of Andalas. He also writes articles in various magazines. He holds a number of awards, including the Megawati Sukarnoputri Award as the young hero of the field of the eradication of corruption (2012).
2. Faisal Basri. Was born in Bandung in 1959 and has a bachelor of economics from University of Indonesia, and Master of Arts economics from the USA. He had a strong academic career before entering politics (National Mandate Party) and is active in a number of non-profit organizations. More recently he became a member of the Business Competition Supervisory Commission (KPPU).
3. Simon F. Sembiring, D is 65, has a Bachelor degree in mining engineering from ITB (1976) and PhD in mineral economics from Australia. He joined the Director General of Mines & Energy in 1998 with his last posting as Director General Geology and Mineral Resources in 2003.He is an independent commissioner of PT. Petrosea Tbk.
4. Ir. Arif Siregar graduated from ITB with a Bachelor of Science degree (Mining & Metalurgy) in 1980 and completed a PhD (metallurgy) in Australia. He served as a director in a number of prominent mining companies in Indonesia, including Rio Tinto group, Kaltim Prima Coal, International Nickel Indonesia / Vale Indonesia and undertook senior rolls in the industry bodies of IMA, KADIN and PERHAPI.

Experts for the Government are;

1. Dr. Yusril Ihza Mahendra is 58 and undertook law at University of Indonesia (UI), undertook a Masters in Pakisatn and PHD in Malaysia. He lectured at UI on constitutional law, theory of legal studies and philosophy of law to gain a Professor of Law. He has a long political history, starting with President Suharto and the Crescent Star Party. Under different cabinets has been the Minister of Law and Legislation, Minister of Justice and Human Rights and Secretary of State. He writes on constitutional law and political Islam, and is a partner in a law firm.
2. Hikmahanto Heilbron, SH, LLM., Ph.D was born in Jakarta in 1965 and gained a Bachelor of Law at UI, a Masters in Japan and Doctorate in UK. He is a professor of law and a member of a number of organizations with emphases on business and international law.
3. Siti Rochani, M.Sc was born in Cimahi in 1954. Her background is more difficult to research. She initially graduated from Gadjah Mada University. Worked at the Mineral and Coal Technology Research and Development Center as a chemical analyst and progressed to Group Coordinator for processing and utilization of minerals.
4. Ahmad Redi, S.H. was born in 1985 (South Sumatra) and completed his Doctorate in Law at UI in record time. He served as Division Head of Natural Resources (Legislation) at the Secretariat of State. He has published a book “Indonesian Mining Law” that discusses the theory and concept of mining for the greatest prosperity of the people and actual problems that currently occur.
5. A. Sonny Keraf was born in 1958 (East Flores) and earned a degree in Philosophy in Jogjakarta and Doctorate from Belgium. He was the Professor of philosophy at the University of Atma Jaya prior to becoming the Minister of the Environment. He is the chairman of the committee of experts of Law No. 4/2009 on Mineral and Coal Mining Law.
6. Tony Prasetiantono, has a Bachelor of Economics from the University of Gadjah Mada, Masters from the USA and Doctorate from Australia. He was the chief economist for Bank BRI and is presently division head at the center for economics and public policy studies at the Gadjah Mada University, and is an independent commissioner at Bank Pertama.
7. Ir. Areshman Ryad Chairil, background is more difficult to research. It appears he has an M.Sc, M.Eng and completed his PhD in Australia in 2003. In 2008 he was a director at the Indonesian Center of Resources Law and is active in the Metallurgy and Materials Association of Indonesia (AMMI).

It would seem both parties presented good expert witnesses on the constitutional law, the mining law and industry. The experts from the petitioners appear to have stronger emphases on the operation of mining business while the experts for the Government were more numerous and included specialists on one key factor – the benefit of the people. However the concept of “people” was quite different, with the petitioners clearly identifying those “people’ related to the mining industry, while the Government was trying to imply a much wider and vaguer Indonesian population.

Forewarned through agrarian experiences.

The expert witness Prof. Hikmahanto Heilbron, SH,LL.M, Ph.D. for the Government in the Constitutional Court decision 10/PUU-XII/2014 included in his argument the concept that the words “the greatest benefit for the people” has no single interpretation. He undertook research on this matter and studied a number of laws, including the agrarian law. I admit I have no experience in agrarian law, but my first hand experiences as outlined below lead me to a different outlook to this learned law outlook.

In the latter Suharto period I was conducting gold exploration in East Java, where the villages were quite wealthy, having brick houses with neat gardens. This wealth was based on clove farming, with lovely groves of neat trees. However the Central Government decided that the poor farmers could get a better price for their product and passed a regulation that the farmers would first sell to a government nominated warehouse, and from there to the end users. This was a top-down government approach to add value to the clove chain. However the clove cigarette buyers decided this was not “free enterprise” and simply stopped making clove cigarettes. Overnight the clove farming industry collapsed, and I saw farmers cutting down their magnificent clove trees. Many villages suffered.

Another time I was sitting in the Sampit airport waiting for a flight out and I started to chat to the man next to me. He told me that he was a rotan(cane) farmer and had been engaged to go far upstream to plant rotan and wait for it to grow, then the buyer would send a boat to pick up his team and the rotan. He took in enough food to last the few months, grew the rotan and prepared for the arrival of the boat. But the boat did not come. He waited for another two weeks, but still the boat did not come. Finally he and his team walked through the jungle, and in a state of severe starvation and fatigue were lucky to find a village. The villagers nursed them back into health, and from there they managed to get back to civilization. He went to the buyer’s local office and found that the Central Government had suddenly decided to ban the export of raw rotan so that it could stimulate the “value added” concept of making furniture in Java. However there were no factories ready to take on this industry, and no marketing in place, so overnight the industry collapsed. The rotan buyer simply had no money to hire the boat to fetch his men. The rotan industry was a fast growing “natural” industry, as I had often traveled on the rivers and seen entire village’s making a picnic event from the cleaning and sorting the rotan. But the sudden collapsed of the rotan industry stopped the whole village’s income, and nearly killed this man.

Speed Up is OK.

Expert witness Dr. A. Sonny Keraf (Chairman of the Committee of experts of law No. 4/2009) for the Government in the Constitutional Court decision 10/PUU-XII/2014 included in his argument the concept that some small miners new the end was coming and speeded up production before closure. Indeed the last days of the SBY government seemed to adopt a similar policy of rushing through many laws just before they were disbanded and replaced.  Dr. Sonny seems to imply this “rush while the opportunity is there” approach is a bad thing, but parallels outlined below suggests such an outlook is just a natural part of the Indonesian culture.

While reading the old book “The Religion of Java” by Clifford Geertz I came across (p100) the concept of dukun bijasa, being a person of learning or inheritance that assists in healing and such, and a dukun tiban being some person that has unexpectedly received a “gift” from God to cure people and so on. The author recites a story of one such very poor lady that dreamt of finding a magic gold ring inside a brick on her floor, and so broke open the brick and found the glowing ring. People started coming to her to ease their pain and healing, for which she provided simple blessed tea and rambling words, but did not take a fee as this was a gift from God. People came from far and wide to see this dukun tiban. Typically the special powers of the dukun tiban dissipated after a short period. In the few months when her “powers” were active she managed to save up enough to rebuild the house in brick.

This story struck a particular cord for me as a geologist, for the exploration industry may be considered the provenance of the large professional companies being comparable to dukun bijasa and also the opportunist small companies comparable to dukun tiban. It would seem the dukun tiban approach to exploration or production is much more dependent on timing, to take opportunities when God provides such circumstances.

Perhaps if we apply the Governments “value added” logic to the dukun industry, then the dukun can only practice if they open an herbal medicine (jamu) factory!

Personal Experience.

I first came to Indonesia 40 years ago in January 1975, to work as a geologist for Shell in their coal exploration program in the Tanjung Enim area for about 2 years. I returned to Indonesia in January 1985 (30 years ago) and stayed on as a geologist, manager, director in a variety of exploration focused companies. Like many who have dedicated their careers to the Indonesian exploration industry, I have a wide range of experiences that is complimented with much compassion towards the people of Indonesia, particularly those in remote areas.

The 1969 Mining Law was based on the principals of “win-win” between Government and industry wherein much good-will was developed along with outstanding policy success in bringing unquestionably “great benefit” to the Indonesian people. However the implementation of the 2009 Mining Law appears to be developed along a different philosophy of “do-what-I-say” wherein the good will has been eroded to this milestone low of a Constitutional Court challenge by the mining industry in open conflict with the Government.

On the positive side, this Constitutional Court challenge showcases the sophistication that Indonesia has reached after 40 years of exploration and mining development, with such learned and experienced expert witnesses, plus a system that allows such challenges.

Recommendation.

Exploration and mining companies are required by law to conduct an environmental impact study prior to mining. Similarly the Government needs to study & properly consult with the people most likely to be directly impacted before making regulations.

There are now more urban people than rural people in Indonesia, and the political emphasis is shifting to please urban voters. Mineral processing plants are likely to increase this urbanization trend. The politicians and policy makers are asked to not forget that rural people also need “benefit” to be brought to them, and one proven way is to stimulate the mineral exploration industry throughout Indonesia.

When the raw ore export ban came into effect (Jan 2014) I was most disappointed in that only one foreign news media went to East Kalimantan to report on the social impact of sudden stoppage of work on the local community. I was most impressed during Jokowi’s period as Governor of Jakarta that he gave an interview knee deep in water on the flooding of Jakarta. Let us hope that the new minister of Mines demonstrates a similar empathy towards the small “people” adversely affected by mining issues.