Land Governance after Job Creation Law

The implementation of the Agrarian Law, or the UUPA, in the land governance issue is an option, not a mandate. The benchmark is its compliance with the aims and objectives of the Job Creation Law.

Government Regulation (PP) No. 18/2021 on the right of management, land, apartment units and land registration summarizes land governance from its inception, transfer and assignment to the abolition of land rights, land rights or management rights (HPL) on land surface or underground and apartment units.

This PP provides confirmation of matters that have not been resolved in the past with regard to regulations regarding "demolished land" (Article 66: definition, process, impact); shop houses and offices that can be owned by property rights (Article 94); the settlement of problems related to land reclamation regarding the rights to land that can be granted (Article 17); and the position of swapraja (self-governing) and formerly self-governing land, except plots regulated by law, in relation to the status of the land rights thereof and their settlement (Article 48).

The implementation of the Agrarian Law, or the UUPA, in the land governance issue is an option, not a mandate.

In the future, eliminating old evidence of rights and using them as a guide in the land registration process is expected to end the chain of land disputes over former Western rights (Article 95). In line with this, various certificates of land ownership and control issued by the village head, subdistrict head or district head also serve as a reference in the land registration process (Article 97).

The regulation on land rights, or HPL, regarding land surface (RAT) and underground space (RBT) in Articles 74-83 comprehensively regulates restrictions, types of rights that can be granted and the contents of their authority, as well as their abolition. Unfortunately, this arrangement regarding spatial use resources in the future does not include regulations regarding land rights in underwater spaces, which are no less important.

Also read: The Unending Agrarian Conflicts

First, based on Article 4 Paragraph (2) of the UUPA, the scope of land rights includes land, the body of earth and water, as well as the space on it. Second, resort development under the sea is not new (eg Atlantis the Palm, Dubai; Resort Manta, Tanzania; Hilton-Conrad, the Maldives; and others). The granting of rights over the land can be pursued in line with the granting of rights to the land in water areas, which is carried out based on a permit from the relevant technical ministry (Article 65).

‘State-ization’ of ulayat land

The Job Creation Law does not regulate the position of the customary law and communities (MHA) and their rights. The mention of MHA is limited to objects when land within the customary area is needed for various activities or businesses. Because the position of ulayat (customary) lands is strategic and prone to triggering conflicts of interest, this PP regulates customary land rights through a practical rather than conceptual approach. How? By setting customary rights as HPL.

Even the determination of the HPL is claimed as a "form of recognition" to the MHA (explanation of Article 4). Is that right? The labelling of HPL on ulayat land actually emphasizes the form of denial of the position of ulayat land in the conception of the right to control the state when talking about the relationship between the state and the land that gives birth to the three land entities, namely state land, customary land and private land (Article 33 Paragraph 3 of the 1945 Constitution in conjunction with Article 2 and General Explanation II.2 of the UUPA).

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Each entity has the authority inherent in its character. Establishing customary rights to be HPL actually reduces the authority of the MHA which is inherent in itself to being "part of the state\'s authority delegated" to the MHA. The MHA does not require the delegation of state authority! To equate the MHA as a governing body is a fundamental mistake. In exercising its essential authority, MHA views ulayat land as a common interest (collective right), in contrast to HPL which is characterized by individualism!

The MHA has the authority to grant land rights over its ulayat lands, as mandated by Article 4, Paragraph (2) of the Regulation of the Minister of State for Agrarian Affairs (Permenag)/Head of National Agrarian Agency (BPN) No. 5/1999 which is followed up in the Law on Land Affairs (RUUP). The regulation shows that, without the stipulation of HPL on ulayat land, MHA has the authority to give land rights over ulayat land directly without having to release it first to become state land. However, in the discussion of the post-June 2019 RUUP, this was removed as the proposal for the establishment of a Land Bank Institution was getting stronger.

Also read: New Land Policy

The discussion of the RUUP was terminated on Sept. 23, 2019. To what extent has this PP acknowledged the existence of the MHA? The elucidation of Article 5 Paragraph (2) shows that the recognition of the MHA is a conditional recognition that requires a stipulation. Thus, the claim that the designation of customary rights to become HPL is a form of recognition to the MHA is contradictory. HPL labelling is not a panacea to solve all problems of MHA and its customary rights.

Problematic policy

Recognition of land rights (rights to cultivate, HGU, rights to build, HGB, and use rights) related to the content of authority, occurrence, timeframe and elimination, in accordance with the UUPA, provided that the HGU regulations that can be given on HPL is clearly against the UUPA. The legal considerations are unknown because the idea was not compiled on the basis of a policy document.

Swiftly reading Article 13 that land rights over HPL can be encumbered with mortgage rights, transferred or released without confirming that the HPL is not an asset of the central government or regional administration, can lead to misinterpretation. Elucidation of Article 5 Paragraph (1) PP confirms this distinction. At first glance, the formulation of Article 13 appears to be aimed at the HPL given to the Land Bank Institution (BBT).

Also read: New Land Policy

This PP also implies that, in the future, state land will no longer exist in formal juridical terms. The elimination of HPL and land rights resulted in the land becoming the land of the state. If this provision is related to the existence of BBT, lands that have been designated as state land by the government, including land whose rights have been abolished, will become BBT assets granted by HPL.

Therefore, the granting of opportunity to apply for renewal of rights no later than two years after the expiration of the land rights (and when the status has become state land) should be made clear whether the renewal of rights is granted on state land or on HPL land? This needs to be emphasized because the mechanisms and legal relationships arising from the granting of new rights over state land and HPL land are different.

Also read: New Land Policy

The provisions regarding foreign ownership of a landed house are in accordance with the UUPA, namely the status of the land with usufructuary rights (Article 71 Paragraph 1a). However, with regard to ownership of a sarusun (flat), foreigners are allowed to own a flat built on HGB land (Article 71 Paragraph 1b). This clearly violates the UUPA. The legal considerations are also unclear, but it seems that practical reasons are more prevalent. Housing development companies, including flats, prefer HGB over usulfructuary rights. This PP limits this "deviation" specifically to flats built on special economic areas, free trade and free port areas, industrial areas and other economic areas.

The problem is, who can guarantee that this will not be followed outside the restricted areas? Because there are no sanctions for violating the law, even this has the potential to open up space for "negotiation".

The recognition of the MHA should be accomplished through the completion of the administration of customary lands, by making a basic map of land registration and recording it in the land register. This document clearly contains the existence of customary land and its MHA.

The designation of ulayat land as being HPL is not a solution to the problem, but rather is a denial of the MHA\'s authority over its territory.

The designation of ulayat land as being HPL is not a solution to the problem, but rather is a denial of the MHA\'s authority over its territory. The settlement of the MHA\'s claim to land rights that have been negated, which was originally granted on ulayat land of the MHA through its release to the state (and it turns out that the MHA still exists), needs to be pursued by using the concept of customary land position as an independent entity according to the conception of the legal relationship between the state and the land and by handing over the state land to the MHA to be reclaimed under customary rights.

In a situation where the MHA and its customary rights have not received protection and the fulfilment of their rights by the state, policies are needed to ensure justice during the transition period.

DOK. PRIBADI

Maria SW Sumardjono

The implementation of electronic land registration should be directed at changing the negative publication system to a positive one. The legality of electronic certificates is still the same as conventional certificates, which can lead to cancellation of rights. Juridical and physical data acquisition is a necessity for a positive publication system because the government is fully responsible for the validity of the data and the aggrieved party will receive compensation paid by the insurance agency (title insurance) specially established for that purpose. Comprehensive land registration arrangements should be immediately compiled based on a positive publication system.

Maria SW Sumardjono, Professor at the Gadjah Mada University Faculty of Law and Member of the Indonesian Academy of Sciences.

This article was translated by Kurniawan Siswoko