Land Bill and Basic Agrarian Law
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Deliberations on the Land Bill that was initiated by the House of Representatives in 2013 to complement the 1960 Basic Agrarian Law (UUPA) remained unfinished at the end of the 2009-2014 term. Until now, there are no signs as to when deliberations on the bill will continue. How did the government respond to this situation?
It is interesting to observe the government’s response to the issue, as was evident from a July 17, 2017, version of the issues inventory (DIM). It reflects the government’s ambiguous stance, namely wishing to both maintain and replace the Basic Agrarian Law. Apparently, the government has been hesitant since the Land Bill was first compiled to complement the UUPA with more detailed stipulations to fulfill people’s demands in line with the changing times.
On the one hand, the government – in this case, the National Land Agency under Joyo Winoto’s leadership – was bound by its commitment to the House Commission II to not amend the UUPA, but merely to prepare the Land Bill (public hearing, Jan. 29, 2007). On the other hand, there are a variety of land issues that cannot be resolved by existing regulations – or the attempts to resolve them have been counterproductive and ineffective. Therefore, there seems to be a strong push for the government to try to resolve these problems through the Land Bill.
The proposed changes generally have pragmatic reasons, including providing access to the people, attracting investors, resolving conflicts, resolving the dominant occupation of people with right-to-cultivate certificates (HGU) on state-owned-enterprises (SOE) land assets, and other issues. Without deep and comprehensive research, these changes will only bring about new problems.
However, several positive things need to be noted, including the abolition of conversion rules, as this is no longer necessary. Also worth citing is the openness of public information and efforts to establish a positive publication system in land registration. The “misplaced” stipulation of a property court in the Land Bill has been reformulated as a Special Land Justice Agency. Stipulations on the maximum size of land with right-to-cultivate (HGU), right-to-build (HGB) and right-to-use (HP) certificates in the Land Bill are abolished and are to be included later in an implementation regulation. It is also reaffirmed that the use of underground space can be included in the provision of land rights.
Problematic
Furthering the misguided view of right-to-manage (HPL) as a public “function” and declaring it a civil “right” is a risky move. First, it creates a new legal construction that the HPL can be issued “under” the HGU or concurrently with an HGU. Even though it aims to resolve the occupation of people with HGU certificates on SOE lands, this violates the concept of “waiving rights”,which is based on the principle of the state’s right to control in line with Article 2 of the Basic Agrarian Law and its explanations. The legal construction is unclear in cases where portions of land with double statuses are given to a third party. In terms of assets, how should it be recorded when a plot of land is owned by a party holding two land right certificates?
Second, the issues inventory cites that an HGU can be applied to state lands, lands with HPL certificates and land with ownership certificates (HM). This clearly violates UUPA Article 28, which stipulates that an HGU can only be applied to state lands. Juridically and conceptually, state lands, HPL lands and lands with ownership certificates are different by nature.
Third, there are inconsistencies in the stipulation of a land’s status after it is released of its forest area status. One stipulation says that a forest area can be turned into anHPL land given to the central government, regional administrations or land banks. An HGU certificate can be provided after a written agreement from the HPL holder. According to prevailing regulations, if the HPL certificate is held by the central or regional governments, the HPL becomes state property (BMN) or regional property (BMD). The question is whether the provision of HGU certificates issued on the HPL of government assets are included in stipulations on BMN/BMD use, in line with Law No. 1/2004 on the State Treasury and Government Regulation No. 27/2014 on BMN/BMD Management and relevant regulations.
In another section of the DIM list, it is mentioned that state forests that have been turned into state lands are managed by the Agrarian and Spatial Planning Ministry. This is in line with prevailing regulations, and the concept of issuing land rights on state lands is in accordance to spatial planning (RTRW) and other relevant regulations. Specifically in the agrarian reform (RA) program, former forests that have been turned into state lands can be redistributed to eligible program beneficiaries. Explanations are necessary on the establishment of a legal framework for releasing forest areas into HPL lands with its several legal implications.
The fourth issue relates to the stipulation in the DIM that HPL certificates can be provided for customary communities (MHA). Requirements for HPL certificate holders include the arrangement of land use plans to support their duties and functions as reaffirmed in the decree on HPL provision. The question is, does a customary community, as an entity, have the same duty and function in the sense of central/regional government and state-owned/region-owned enterprises, so that they fulfill the requirement under the HPL decree? Besides, the Land Bill cites that, through an agreement with the MHA made under certain procedures, rights to customary lands can be provided to a third party without the need of turning them into state lands. Combined with the fair and beneficial cooperation scheme between the MHA and the land right holder, this second option makes more sense.
The DIM list also introduces the automatic and immediate change of rights if the rights holder does not fulfill requirements following a transfer of rights due to purchase, exchange, grant-giving and other causes. It is mentioned that, within one year, the party concerned must relinquish their land rights to others that fulfill the requirement, or have the rights changed into more suitable ones. This idea clearly violates the UUPA stipulations that, if the concerned parties do not relinquish their land rights within one year, then the exchange will be deemed legally void and the land will become state property. This stipulation must be understood as a sanction; any amendment should simplify the process of changing rights instead of violating prevailing principles.
In the past, there have been cases of changing a land use right into an ownership certificate specifically concerning transmigrant lands. Through the State Land Agency (BPN) Regulation No. 21/1989, this change of rights is done on a massive scale, without any formal application or review through a study. Changing an HP into an HM is accomplished by inserting statements into the land records and certificates of the relevant parties. This is understood as an action to appreciate the transmigrants for their positive use of land.
The DIM also opens an opportunity for the minister to extend land rights based on certain considerations. This clearly violates Constitutional Court (MK) Ruling No. 21-22/PUU-V/2007. Besides, the idea of expanding the maximum land area under land right certificates may potentially create moral hazards. In contrast, the stipulation on minimum land area in UUPA Article 17, Point 1 and in the Land Bill is not listed on the DIM.
Contradictory stipulations can also be found in the legal consequence of land neglect. In terms of control, it is mentioned that, after three consecutive warnings are issued within three months between each warning, the land’s ownership must be transferred to other qualified parties. On the other hand, it is also mentioned that, after three consecutive warnings, the lands are to be deemed neglected and their ownership transferred to the state for use in land reform, land reserve or other strategic programs. These contradictory stipulations clearly violate the principle of legal certainty.
The stipulation on the consequence of voiding an HGU in the DIM is also contradictory. On large-scale HGU lands, it is stated that the government has the right to determine their use or to conduct an open auction to determine the parties most qualified to use the lands. In another article, it is stated that lands with voided HGU rights will be turned into state lands to be objects of land reform for redistribution to land reform program beneficiaries. The question is, when does an ex-HGU land become a land reform object, and when does it become an auction object?
The latest DIM also cited new issues, such as land banks, progressive tax and asset inventories. Before these things are comprehensively understood, their stipulations in the Land Bill must be reconsidered.
UUPA still necessary?
The DIM explicitly abolishes 17 articles in the Basic Agrarian Law. Apart from five UUPA articles on conversion rules, there are eight other articles that are implicitly abolished. As the Land Bill was drafted to complement the UUPA and the direction of the UUPA amendment appears on the DIM, the government needs to be assertive to avoid any misinterpretation. If the Land Bill is to indeed complement the UUPA, will it not be more beneficial to reconsider simplifying land rights into two kinds only, namely right-to-own (HM) and right-to-use (HP)?
Apart from this move having a strong conceptual foundation – in accordance with the concept of customary law as the basis of the national agrarian law that only recognizes HM and HP – this will avoid any complications in resolving problems. For instance, when confusion arises in arranging a foreigner’s ownership of an apartment unit that typically exists on collective land with a building-use (HGB) permit, we commonly issue discriminatory regulations that violate the basic concept of apartments.
The simplification of land rights will surely require comprehensive preparations, apart from a willingness to transform the existing mindset. It is time to review the legal position of the right-to-manage (HPL)and stop using it as “one-size-fits-all”.
In the long run, if there are plans to amend the UUPA in its position as lex specialis, certain strategies are required. Considering the UUPA’s strategic position as a legal foundation that fulfills individuals’ basic rights on a limited amount of land, and the land’s function in supporting a number of interests that are often not aligned to one another, there needs to be a national-level committee to prepare a blue print of the national land policy that is monitored through extensive public consultation. Without a comprehensive blue print, partial amendments to the UUPA will only be counterproductive and have the potential to create new and even more complex problems.
MARIA SW SUMARDJONO
Professor of Agrarian Law, Faculty of Law, Gadjah Mada University; Member of Indonesian Science Academics
