The Roundabout Route to Agrarian Reform
The synergy in the whole process of RA policy are meant to enhance the bargaining position of the vulnerable group in enjoying justice in their access to and utilization of land to fulfill their basic needs.
“The land policy in the Job Creation Law is meant to support investment and infrastructure development”, so was the core presentation of Secretary General of the Agrarian and Spatial Layout Ministry/National Land Agency during a webinar on National Press Day, 4 February 2021.
Government Regulation (PP) No.64/2021 on the Land Bank Agency (BT) affirms this matter. The function of BT based on PP No.64/2021 concerns planning, land acquisition, land procurement, land management, land utilization and land distribution (Article 3).
BT land comes from the designation of the government concerning the state and land derived from other parties. Land utilization is done through cooperation with other parties that can be in the form of transactions, rental, business partnership, grants, exchanges and other agreed arrangements. BT is authorized to make a master plan, help provide facilities for business licenses/approvals related to land and spatial layout, procure land and determine service rates.
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In the framework of cooperation with other parties, the land designated for BT is allowed the management right (HPL). On HPL land, the leasehold right (HGU), the building right (HGB) and the right of use (HP) can be granted. As a note, the granting of HGU on HPL land is opposed to Law No.5/1960 (UUPA/Basic Agrarian Law) although the definitions of HGU, HGB and HP remain based on UUPA.
If needed to support operational activity, BT can be granted HGB or HP on HPL land in the name of BT. The utilization of part of HPL land by other parties is done through agreements. The period of HGB on HPL land is extendable and renewable if it has been used and/or utilized according to the aim of the granting of the right (Article 40 Paragraph (4)).
What is the meaning of the stipulation? With no elucidation of Article 40 Paragraph (4), it should be interpreted based on the elucidation of Article 41 Paragraph (4) of PP No.18/2021 on the HPL, the Land Right, Apartment Units and Land Registration, stating: (1) the evaluation that land has been used and/or utilized according to the aim of the granting of the right is made by the Authentication Officer from the Land Office; and (2) the registration for extension or renewal of HGB is to be done in phases.
It is stipulated in Article 40 Paragraph (6) that the extension and renewal of HGU, HGB and HP on HPL land can be granted at the same time after being utilized and agreed upon.
In the elucidation of Article 40 Paragraph (6) it is written “sufficiently clear”. The phrase “granted at the same time” has the potential to violate the Decision of the Constitutional Court (MK) No.21-22/PUU-V/2007 regarding Law No.25/2007 on Capital Investment (UUPM). Therefore, the phrase “granted at the same time” should be interpreted as the granting of extension and renewal of the land right in the form of a decision letter, but the registration for extension and renewal of the right has to be done in phases.
The phrase “after being utilized” should be interpreted as “after being inspected by the Authentication Officer”, and the words “agreed upon” should be understood that if the content of the agreement, especially related to extension and renewal of the land right, is opposed to the Decision of the MK No.21-22/PUU-V/2007 canceling the relevant provisions in UUPM, the agreement is illegitimate and automatically annulled for violating the objective requirement for the legitimacy of an agreement.
Slipping agrarian reform
The formulation of agrarian reform (RA) in the Job Creation Law originated in the RA formulation in the Land Affairs Bill (RUUP) of the version after May 2019, when the government intended to form a land management institute (LPT) with the aim of providing land for: a) public interests; b) social interests; c) development interests; d) economic equity; and e) land consolidation.
Strong criticism coming from various circles that the formation of LPT was very partial to investment interests was absorbed by adding “RA and land justice” with land availability guaranteed by LPT (Article 76 of RUUP of the September 2019 version). In its developments, the words “land justice” were not contained in the Job Creation Law for unknown reason (Article 126 Paragraph (1) letter f). It’s further affirmed in Article 126 Paragraph (2) that the availability of land for RA is at least 30 percent of the state land designated for BT.
In the PP, the availability of land for RA is stipulated in Article 2 Paragraph (1) letter f and repeated in Article 16 letter f. The definition of RA in the PP was derived from that of RA in Presidential Regulation (Perpres) No.86/ 2018 on the RA. Article 22 of the PP emphasizes that the land availability for RA is in the framework of land distribution, the rate of which is at least 30 percent of the state land designated for BT.
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The problem arises as Article 7 states that BT’s land acquisition resulting from the government’s designation is made up of state land that originates in a) land of former rights; b) neglected land and zones; c) released forest zones; d) sand banks; e) reclaimed land; f) former mining land; g) islet land; h) land subjected to the spatial layout policy; and i) unclaimed land.
The state land mentioned in letters a, b, c, d and f turns out to be part of the type of land as the object of the agrarian reform (TORA) as regulated in Article 7 of Perpres on the RA. The question is what is intended by the formulation of RA in the PP, while the paradigms of BT and RA are clearly divergent?
Contestation or synergy?
The inclusion of RA in the PP that from the start was not intended to be regulated in the Job Creation Law, unless clarified, has the potential to distort the course of RA.
The various constraints causing the less agile activity of the Agrarian Reform Task Force (GTRA) based on field observation are among others due to the absence of a comprehensive agrarian conflict settlement policy and mechanism in the framework of RA, conflict settlements that have not yet touched on the root of the issue, the conflict settlement plan that carries no clear time limits, and the budget for RA implementation and conflict settlements that is not yet prioritized.
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The inefficient GTRA activity was responded to by the President’s commitment to accelerate agrarian conflict settlements and land redistribution by the end of 2020. The commitment was realized by the formation of the Team for Agrarian Conflict Settlement Acceleration and Strengthening of the Agrarian Reform Policy 2021 through the Decision of Chief of the Presidential Staff No.1B/T/2021. The team is headed by the Presidential Staff Chief, the Agrarian and Spatial Layout (ATR) Minister/Head of the National Land Agency (BPN) as deputy chairman I and the Environment and Forestry Minister as deputy chairman II.
It has 32 members from coordinating ministries, ministries and institutes, representatives of four nongovernmental organizations, which are the Agrarian Reform Consortium (KPA), the Indonesian Farmers Union (SPI), the Traditional Zone Registration Agency (BRWA) and the Indonesian Social Forestry Movement (Gema PS). Results of the performance of the team’s task and responsibility are to be followed up by the National Agrarian Reform Team and GTRA as regulated in Perpres on the RA and reported to the President every three months or any time needed.
The formation of this team has encouraged a bottom-up approach in RA implementation. As an illustration of the team’s initial work, 71 agrarian reform priority locations (LPRA) for TORA have been proposed by its four NGO members and four locations by other NGOs.
Of the 71 locations, three have been redistributed; 13 locations are under priority I, ready for redistribution in 2021; priority II will settle eight conflicts in 2021 for redistribution in 2022; priority III will resolve 11 disputes/conflicts in 2022 for redistribution in 2022 or 2023. The remaining 36 LPRA will be handled by the ATR Ministry/BPN.
KPA records show that the 13 redistribution locations are derived from former HGU land of private companies covering 84 hectares (2015), 1,139 hectares (2016), 444 hectares (2018) and 288 hectares (2020).
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For the purpose of accelerating RA, the state land resulting from the government’s designation as the land of BT (Article 7 of the PP) overlapping with TORA based on Article 7 of Perpres on the RA should entirely (not only 30 percent) be transferred by BT as land manager (whose committee chairman is the ATR Minister/BPN Head) to GTRA in the form of the state land in order to be followed up by redistribution. As widely known, the ATR Minister/BPN Head is concurrently GTRA chairman in the central government.
The allocation of land to RA of at least 30 percent of the land of BT can be gained from BT’s land acquired from other parties (Article 8 of the PP). In line with the task and function of the ATR Ministry/BPN as regulator and administrator of land, the land areas with the potential to become TORA need to be identified, inventoried and promptly designated as state land.
The position of the ATR Ministry/BPN as the major node of RA implementation can create synergy between the availability of TORA and its redistribution in collaboration with the team and GTRA with the full support of regional administrations. The work of the ATR Ministry/BPN as the final point of RA implementation is marked by the granting of property rights of state land resulting from TORA redistribution in the names of RA subjects. The next homework is to ascertain the rights of RA subjects to secure facilities in the framework of access arrangement.
Maria SW Sumardjono
The synergy in the whole process of RA and its acceleration and the strengthening of the RA policy are meant to enhance the bargaining position of the vulnerable group in enjoying justice in their access to and utilization of land to fulfill their basic needs, which is prone to be eroded if the land policy tends to focus merely on the promotion of investment.
Maria SW Sumardjono, Professor, School of Law, Gadjah Mada University, and Member, Indonesian Science Academy
This article was translated by Aris Prawira
