Is 60-year-old UUPA Still Relevant?

Kompas

Students from various universities and farmers in the East Java Farmers Alliance held a demonstration to commemorate National Farmers Day in front of the East Java DPRD Building, Surabaya, Tuesday (9/24/2019).

Law is dynamic. It may be amended depending on space and time. The fundamental question is: how should it be amended?

Law No. 5/1960 on basic provisions on agrarian principles (UUPA; Basic Agrarian Law) was founded on the National Land Law (HTN), the basis for all policies and regulations in the land sector. The aim and principles of the HTN are the main characteristics of the UUPA, distinguishing it from other regulatory systems. If the aim and principles are changed or amended, the regulatory system also changes into a system that is not based on the HTN.

The UUPA strives to establish an organized structure to realize justice, legal certainty and utility to meet the various aspects of societal needs. Therefore, any amendments that are introduced should be consistent with its aim and principles. The UUPA aims to create social justice as stipulated in Article 33, paragraph 3 of the 1945 Constitution.

The basic principles of the UUPA cannot be eliminated but they can be developed, refined in their orientation through interpretation or analogized based on critical and constructive thinking. For instance, the principle of the state’s right to land management has been expanded to cover five state functions or areas of authority (policymaking, regulation, implementation, management and supervision) in the relationship between the state on the one hand and the people and land on the other.

Also read: 150 Years of Shackles on Land Rights

The social function attached to all land rights is coupled with an ecological function, in line with the principle of sustainability. The principle of land reform has developed into agrarian reform, the subject and object expanded and supplemented through managing access. The interpretations are meant to “revive” these principles instead of changing their implications. Legal principles constitute the basis or the direction in guiding the formulation of positive law; they are the spirit or soul of the particular law that gives it life and is freely obeyed by society.

The HTN was formulated based on the concept, institution and principles of customary law, which is also dynamic. For example, the principle of horizontal partitioning is applied in Law No. 4/1996, which stipulates that the object of mortgage rights (HT) refers to the right to land, with or without any structures that stand on it.

Law is dynamic. It may be amended depending on space and time. The fundamental question is: how should it be amended?

KOMPAS/WILIBRORDUS MEGANDIKA WICAKSONO

A number of farmers and local residents held a flag ceremony celebrating the 75th Anniversary of the Republic of Indonesia in the rice fields in Grumbul Kalibacin, Mandirancan Village, Kebasen District, Banyumas Regency, Central Java, Monday (17/8/2020).

Through the extensive interpretation of UUPA Article 4, paragraph 2, the principle of horizontal partitioning can also be applied in granting land rights to any objects underground, underwater or in the airspace over that land.

An individual can gain the right to land they have managed for a period of 20 years or more in good faith and freely, to which no other party lays claim. Conversely, an individual can also lose their right to land they manage if they take no legal action (rechtsverwerking, or legal process) in relation to that land within a certain time frame.

The principle of rights transfer (clear, cash, real) has been adopted in the provision that the legal action for transferring land ownership must be done through a land deed official (PPAT).

In 60 years, have the land laws been consistent with the aim and principles of the UUPA?

Constructive or destructive?

Observing the land laws over the last six decades has shown interesting tendencies. Analyses on the approach to legal formulation (proactive-reflective or reactive-pragmatic) and on the application of the UUPA principles show that legislation compiled using a proactive-reflective approach tended to be positive, meaning that they were consistent with the UUPA’s aim and principles. On the other hand, when legislation was compiled in a reactive manner for pragmatic purposes, they leaned toward the negative, meaning they paid less heed to the UUPA’s aim and principles. Whether positive or negative, the legislation may have either some notes or none.

Also read: Land is a ”Soulmate”

Broadly speaking, the land laws of 1960-1974 tended to be produced in a proactive-reflective fashion. This is noticeable in the related land reform regulations on revoking land rights and the initial concept of the right to manage (HPL) as a public function. The laws from 1975 to 2010 shifted from the proactive to a more reactive approach to legislation, and were formulated primarily to meet short-term (pragmatic) legal needs. However, the laws during this period were predominantly positive.

KOMPAS/P RADITYA MAHENDRA YASA

A fishing boat with a background in Tambaklorok Gas and Steam Power Plant, Semarang City, Central Java, Friday (4/9/2020). The area grew as a northern coastal fishing village and developed into a dense industrial area.

Land clearing regulations were issued in the 1970s to provide a basis for increasingly widespread development to serve the public interest, in consultation with land rights-holders, with a note that the legal form of a regulation was inappropriate. The legislation of the period were marked by regulations on the supply of land for business, industrial zones and housing developments, including specific regulations on apartment developments.

The financial deregulation of October 1993 prompted publishing rules to facilitate investment that used a constructive approach through the issuance of decrees on granting, extending and renewing land rights for business purposes.

Various regulations appeared to meet the needs of ongoing developments. Law No. 4/1996 on mortgage rights was followed by regulations on leasehold, the right to build and the right to land use and land registration, as well as foreign ownership of residential property.

Also read: 90-Year HGU Right Provision Deemed Nonsensical

To facilitate the availability of land for public use, Presidential Decree No. 55/1993 was issued to replace Home Ministerial Regulation No. 15/1975. The decree was incorrect in terms of legal arrangement, but it conceptually recognized two methods of land acquisition by including the revocation of land rights as an alternative.

Following the 1998 reform movement, positive laws were found in a series of regulations that were drafted on the basis of corrective justice, in view of the difficult economic conditions ordinary people faced at the time. This was noticeable in the regulations on granting right of ownership for houses categorized as sangat sederhana (“very modest”) and sederhana (“modest”), on granting the right of ownership to civil servants who purchased government-owned property, and on the use of vacant land for food crop cultivation.

Kompas/AGUS SUSANTO

Aerial photo of residential cluster in the middle of rice fields in North Tambun District, Bekasi Regency, West Java, Thursday (16/7/2020).

Government Regulation No. 36/1998 on restructuring and efficient use of idle lands was issued to uphold the principle of the social function of land rights. For the first time since it was stipulated in UUPA Article 3, the communal right of the Customary Law Community (MHA) was legislated in Regulation No. 5/1999 of the Agrarian Affairs Minister/National Land Agency (BPN) Head.

The legislation of 2001-2010 demonstrated a reactive-pragmatic tendency but still remained predominantly positive. As an impact of decentralization, Presidential Regulation (Perpres) No. 34/2003 was issued to define the duties and authority of the BPN. The Infrastructure

Summit led to the issuance of the land procurement regulation, Perpres No. 36/2005, which was later amended in Perpres No. 35/2006. The Perpres sustained the provision on the revocation of land rights. Also for the first time, the BPN published a tax object rule in the Land Services Standard Operating Procedures (SPOPP) through BPN Head Decision No. 1/2005.

Also read: Gambling on Agrarian Bill

Since 2011, land laws have more frequently tended to be negative or positive as per their notes. Law No. 2/2012 was appropriate in terms of form, but this law took a pragmatic approach to minimize objections from affected residents by inclusion of the compensation and damages institute and the exclusion of the provision on land rights revocation.

While on the one hand, those parties whose land right had expired was compensated, on the other, compensation for MHA was not based on that community’s views on their living space. The public had limited access to land information and the regulation on the administration of MHA rights was no better than the prior regulation. Land registration was expedited by the Complete Systematic Land Registration (PTSL).

Also read: Downstreaming Natural Resources

KOMPAS/P RADITYA MAHENDRA YASA

The poster "Land is not for sale" was installed in a rice field area in Kaliwungu, Kendal Regency, Central Java, Thursday (31/1/2013). Its strategic location in the north coast line threatens to convert agricultural land.

The peak came with the daftar inventarisasi masalah (DIM, or list of issues) on the Land Bill on 23 Sept. 2019 that elicited no further discussion, and the land provision in the Job Creation Omnibus Bill, which were more apparently negative in their destructive tendency. These obscured the aim of social justice, abandoned the UUPA’s principles, violated the decision of the Constitutional Court, and did not accommodate the principles of Agrarian Reform and Natural Resources Management in People’s Consultative Assembly Decree No. IX/2001 (Maria Sumardjono, Kompas, 22/2/2020, 6/6/2020).

The omnibus bill, which is biased towards the interests of a small group of people with political and economic access under liberal capitalism, has impacted the decreasing role of the state. If this continues, the privileged minority will hold considerable sway over important decisions concerning economic, social and political affairs. As a consequence, the rights of the majority, who have a weak bargaining position, will be further sidelined.

Just, democratic, sustainable

The legislative drafting process should be guided by ethics rather than power. The power lies within the law and upholds it.

To realize social justice, the land policy should be reoriented so it is just, democratic and sustainable. First, which kind of justice is to be translated into the land policy? This choice is not always easy, because the regulation’s focus is limited human resources that are sought after by parties that have different bargaining powers.

So, if the regulation’s aim is equal access for all societal groups, the choice is none other than commutative justice.

But two alternatives are available if the policy relates to the distribution of land access. Distributive justice can be the basis for regulations that refer to parties with the same bargaining power.

Yet, if the regulation on the access to and distribution of benefits involves parties with unequal bargaining powers, corrective justice should be prioritized. This type of justice requires balancing factors that are not always equal.

DOK. PRIBADI

Maria SW Sumardjono

Second, the land policy should reflect democracy both in its formulation and in offering public involvement in overseeing its implementation. Third, justice and democracy in the policy must be supplemented with sustainability to realize just and fair access to intergenerational human resources. Finally, the legislative drafting process should be guided by ethics rather than power. The power lies within the law and upholds it.

Maria S.W. Sumardjono, Professor, Gadjah Mada University law school; Member, Indonesian Academy of Sciences (AIPI).