Corresponding
Author: Veronica Kinanthi Sihutami
E-mail:
[email protected]
INTRODUCTION
In the life of the nation and state, the
government has an obligation to ensure the fulfillment of basic rights for its
citizens such as housing, decent work, clothing, adequate food and an adequate
environment, so that the State is required to empower every inch of land in the
territory of the State. Unitary Republic of Indonesia. Land is one of the most
important and main factors in human life, because in reality humans cannot be
separated from the soil at all. Humans live on land (residence) and obtain food
by empowering the land, moreover land has a very emotional relationship with
humans. Everyone definitely needs land, not only in life, even when humans die,
they still need land as a place to rest.
The complicated land
acquisition then makes the rights of other parties, namely the government or
the private sector more in need and able to take advantage of the land parcels
immediately to be unfulfilled so that the potential for welfare that will be
obtained cannot be realized.
The problem in the complex land sector
is the availability of land for development needs, whether for infrastructure
development, public facilities, food security, national defense, natural
disaster mitigation or investment. Law Number 2 of 2012 concerning Land
Procurement for Development in the Public Interest and its derivative
regulations are considered ineffective in solving various problems related to
the increasing land prices and the availability of land for various development
purposes.
Judging from the history of human
civilization, land has not only high economic value, but also philosophical,
political, social, and cultural values. Land also has a very strategic function
of its natural resources or is used as a space for development. In addition to
meeting the basic needs of citizens, the government also needs land to fulfill
strategic/priority programs such as housing and settlements, business and
tourism development, energy and food security, infrastructure, connectivity,
and maritime affairs as well as regional development in general (Suyudi
& Suhattanto, 2018). However, in this vast country of Indonesia,
there is still a lot of abandoned land whose use is not clear. The abandoned
lands tend to be used only as objects of speculation. In addition, the problem
of land acquisition is a problem that always arises in development activities.
The problem is that land speculators often take advantage of infrastructure
development projects (Kafrawi
& Kafrawi, 2022).
No wonder land is a special treasure
that constantly provokes various complicated and complicated social problems.
The land includes immovable property whose ownership must be based on a deed
ratified by a Notary/PPAT so that its validity can be guaranteed. Regarding the
status of ownership, land and natural resources attached to it are vulnerable
to conflict or dispute, or what is known as Agrarian Conflict. Conflicts occur
within the scope of the region, the parties involved and the impact is getting
wider and deeper. This condition is caused by the unequal distribution of land.
These disputes and or conflicts have even occurred decades ago. This agrarian
conflict can occur between individuals and individuals and groups or business
entities.
Currently, the Government
needs to look at the infrastructure development that is most needed by the
community, related to guaranteeing the availability of development land,
especially with the community's need for land which continues to increase with
the increase in population. The establishment of an institution that handles
land acquisition is very important to avoid inequality in land availability
with the Government's efforts to carry out development.
Land procurement for the public interest aims to provide land for the
implementation of development in order to improve the welfare and prosperity of
the nation, state and society while still guaranteeing the legal interests of
the land owners who are entitled to the land.
The transformation of land management
institutions from the National Land Agency to the Ministry of Agrarian Affairs
and Spatial Planning/National Land Agency in the Joko Widodo Government Working
Cabinet, has made the duties and authorities become even greater, to carry out
President Joko Widodo's vision and mission, namely food sovereignty and
economic independence, which are currently This will be achieved through priority
programs for agrarian reform, land acquisition and asset legalization. Even at
the beginning of the formation of this ministry, the Minister of Agrarian
Affairs and Spatial Planning/Head of the National Land Agency stated that some
of the ministry's work focuses were related to handling land disputes,
improving services to the community, establishing a land bank, providing land
for development and structuring the ministry's organizational structure(Suyudi
& Suhattanto, 2018).
Secretary General of the Agrarian Reform
Consortium (KPA), Dewi Kartika revealed, throughout 2020 there were 241 (two
hundred and forty-one) cases of Agrarian Conflict. -nine) regions in Indonesia
with135,332
(one hundred thirty five thousand three hundred and thirty two) heads of
household (KK). Conflict is associated with discord, disharmony, or conflict,
the most extreme condition of conflict is violence. The conflict involves
opposing parties. Regarding Agrarian Conflicts, Agrarian Conflicts are land
conflicts. In the context of land law, agrarian is defined as the surface of
the earth as referred to in Article 4 paragraph 1 of Law Number 5 of 1960
concerning the Basic Regulations of Agrarian Principles. Based on this, it can
be interpreted that the notion of agrarian has a broad meaning, namely earth,
water, and the natural resources contained therein (Ardiansyah,
2020).
Kurniawan,
(2018),
explained that one of the objectives of the enactment of the UUPA was to
provide legal certainty. This goal can be realized through 2 efforts, namely:
(1) Availability of written, complete and clear legal instruments that are
carried out consistently in accordance with the spirit and provisions, and (2)
Implementation of land registration that allows land rights holders to easily
prove the rights to the land they control and for interested parties such as prospective
buyers and potential creditors, to obtain the necessary information regarding
the land which is the object of legal actions carried out and for the
government to implement land policies.
Agrarian Law does not only regulate one
area of law but alsois a group of legal fields that are
interrelated with the control of natural resources, including land, forestry,
plantations, water, and natural resources, including their control. The
regulation regarding the resolution of this agrarian conflict began with the
presence of the People's Consultative Assembly Decree Number IX/MPR/2001
concerning Agrarian Reform and Natural Resource Management, which marked a new
chapter in the resolution of agrarian conflicts. Agrarian Conflict Resolution
is one of the directions of Agrarian policy (Article 5 letter f). Agrarian
reform in the management of natural resources is carried out with the principle
of "realizing justice in the control, ownership, use, utilization, and
maintenance of agrarian resources and natural resources".
Based on the TAP MPR, a coalition of
civil society togetherTogether with Komnas HAM initiated the
National Committee for the Settlement of Agrarian Conflicts (KNuPKA), but
unfortunately this proposal was only answered by President Megawati by issuing
Presidential Decree (Keppres) Number 34 of 2003 concerning the National Policy
for the Land Sector which gave the provincial government the authority to
resolve arable land disputes. Regency/City. The KNuPKA was again proposed in
the era of President Susilo Bambang Yudhoyono (SBY), but the SBY government did
not want the establishment of a special institution for conflict resolution,
but proposed a revision of the UUPA (UU Principal Agrarian Law) and the
strengthening of the UUPA. National Land Agency. Through Presidential
Regulation Number 10 of 2006 concerning the National Land Agency, a special
decree was formed to handle Agrarian Disputes and Conflicts with
operationalization through the Regulation of the Head of the BPN-RI Number 3 of
2011 concerning Procedures for the Assessment and Handling of Land Cases. So
far, there are several institutions that handle Agrarian Conflict separately
and can also be said to be uncoordinated.
It should be noted that the House of
Representatives of the Republic of Indonesia (DPR-RI) has formed a Land Working
Team (timja) which is tasked with receiving case complaints and providing
recommendations for resolution to the relevant agencies. Meanwhile, at the
Ministry of Environment and Forestry, there is a Team for Handling
Environmental and Forestry Case Complaints and a special directorate regarding
tenure conflicts. Komnas HAM receives case complaints and provides
recommendations for resolution. The Ministry of Agrarian Affairs and Spatial
Planning establishes a directorate that handles Agrarian issues. However, all
conflict handling processes in each of these institutions have limitations and
have not been able to resolve Agrarian Conflicts fairly (Priyono,
2019).
Finally, in 2020 the DPR and the Government passed a law which in the process
of drafting caused a contradiction, namely the Employment Creation Law (Omnibus
Law) which was made by the Central Government and poured into the Prolegnas,
which on October 5, 2020, was ratified by the DPR. Republic of Indonesia and
has been promulgated as "Law Number 11 of 2020 concerning Job
Creation" or often referred to as "Law on Job Creation" on 2
November 2020. Judging from the law, one of the legal arrangements regulated is
the existence of a Land Bank (Failasufa
& Lukman, 2022).
In Sumardjono,
(2008)
it is mentioned that the idea of establishing a land bank had already emerged
in the 80s. In Indonesia, activities that can be called embryonic land banks
include JIEP (Jakarta Industrial Estate Pulo Gadung) in Jakarta and SIER
(Surabaya Industrial Estate Rungkut) in Surabaya. The purpose of establishing a
Land Bank is "to ensure the realization of the provisions formulated in
Article 33 paragraph (3) of the 1945 Constitution and its amendments, to
support sustainable, just and equitable national development for the benefit of
the people." also expected to be able to control regional development
efficiently and effectively, as well as to control the control and use of land
in a fair and reasonable manner in carrying out development.According to
Professor Maria SW "Land Bank is every government activity to provide land
that will be allocated for future use" (Sumardjono,
2008).
Simply put, the Land Bank is "a bank that was built to address the
phenomenon of the problem of abandoned vacant properties and accelerate
environmental redevelopment, and strive to provide affordable housing for the
community." The definition of Land Bank which is used as a solution to
Agrarian problems has indeed been widely discussed in several studies and has
even been applied in several countries. According to Suyudi
& Suhattanto, (2018), explained that the importance of the
existence of a Land Bank in the State of Indonesia and its relation to land
acquisition, land management and land development, it is necessary to study
more deeply the need to immediately establish a Land Bank. Institutions,
available land resources, required regulations and potential land banks must be
in accordance with the social conditions of the community, the needs of the
government in carrying out development and the rules of land law that apply in
the State of Indonesia.
If viewed based on Law Number 11 of 2020
concerning Job Creation, "The Land Bank functions to carry out planning,
procurement, procurement, management, utilization, and distribution of
land." In the provisions of Article 127 of the Job Creation Law it is
stated that "the Land Bank in carrying out its duties and authorities is
transparent, accountable, and not looking for profit", meaning that the
government in this case does not give authority to the Land Bank to seek
profit, while in the process of land acquisition the development and other land
disputes require large funds, and these are transferred to the private sector,
of course, can provide benefits for the private sector. One year after the
ratification of Law Number 11 of 2020, The government has officially issued
Government Regulation (PP) Number 64 of 2021 concerning Land Bank Institutions.
This regulation provides great authority and functions related to land in the
Land Bank, from planning to land distribution in the agrarian reform program.
Gunawan, an agrarian observer who is also a Senior Advisor to the Indonesian
Human Rights Committee for Social Justice (IHCS) criticized the regulation.
(Law, 2021). According to Gunawan, "The Land Bank Agency's Master Plan
must not conflict with spatial planning and regional development plans."
In addition, the Land Bank Agency may not take the authority of the Ministry of
ATR/BPN in providing land objects for agrarian reform and land acquisition for
the public interest and control of abandoned land. Then in carrying out its
duties and functions, the land use plan of the Land Bank Agency must be in
accordance with the regional spatial plan, this is to prevent environmental
damage and reduce overlapping rules for establishing a land bank, as stated in
Article 2 paragraph (2) of Law Number 11 of 2020 concerning Job Creation that
"The Land Bank is given special authority to guarantee the availability of
land in the context of economic equity for the public interest, social
interest, national development interest, economic equity, land consolidation,
and agrarian reform." Furthermore, Law Number 11 of 2020 and Government
Regulation Number 64 of 2021 also received sharp criticism from the Agrarian
Reform Consortium (KPA), including "The Land Bank is considered impartial
in fulfilling the rights of small communities to land but investment as
regulated in Article 19 of the Land Bank Regulation, namely “The Land Bank
guarantees and supports the availability of land for central and regional
development in order to support economic improvement and investment”. Unfortunately,
the source of land controlled by the Land Bank is the government's
determination through state land claims. This state land is regulated in
another PP, namely Government Regulation No. 18 of 2021 concerning Management
Rights, where one of the state lands is the land of farmers, fishermen,
customary law communities that have not been certified, whose ownership cannot
be proven. Obviously, the social function of land and the prohibition of
monopoly on land by the private sector as mandated by the 1960 LoGA has been
labeled pp land bank. namely "The Land Bank guarantees and supports the
availability of land for central and regional development in order to support
economic improvement and investment". Unfortunately, the source of land
controlled by the Land Bank is the government's determination through state
land claims. This state land is regulated in another PP, namely Government
Regulation Number 18 of 2021 concerning Management Rights, where one of the
state lands is the land of farmers, fishermen, customary law communities that
have not been certified, whose ownership cannot be proven. Obviously, the
social function of land and the prohibition of monopoly on land by the private
sector as mandated by the 1960 LoGA has been labeled pp land bank. namely "The
Land Bank guarantees and supports the availability of land for central and
regional development in order to support economic improvement and
investment". Unfortunately, the source of land controlled by the Land Bank
is the government's determination through state land claims. This state land is
regulated in another PP, namely Government Regulation Number 18 of 2021
concerning Management Rights, where one of the state lands is the land of
farmers, fishermen, customary law communities that have not been certified,
whose ownership cannot be proven. Obviously, the social function of land and
the prohibition of monopoly on land by the private sector as mandated by the
1960 LoGA has been labeled pp land bank. This state land is regulated in
another PP, namely Government Regulation No. 18 of 2021 concerning Management
Rights, where one of the state lands is the land of farmers, fishermen,
customary law communities that have not been certified, whose ownership cannot
be proven. Obviously, the social function of land and the prohibition of
monopoly on land by the private sector as mandated by the 1960 LoGA has been
labeled pp land bank. This state land is regulated in another PP, namely
Government Regulation Number 18 of 2021 concerning Management Rights, where one
of the state lands is the land of farmers, fishermen, customary law communities
that have not been certified, whose ownership cannot be proven. Obviously, the
social function of land and the prohibition of monopoly on land by the private
sector as mandated by the 1960 LoGA has been labeled pp land bank.
The market logic of the Land Bank is
more clearly demonstrated in the use of the word 'competitive' as stated in
Article 40 paragraph (8) of PP Land Bank. The role of the state which should
guarantee land rights for the poor and prevent private monopolies in accordance
with the mandate of the Constitution and the LoGA has been distorted by the
Omnibus Law and its supporting regulations. The Land Bank will exacerbate the
practice of land liberalization, speculators, and land monopolies by a handful
of groups, including the self-governing elite. The workings of this institution
have great potential to legalize land grabbing and eviction of people's
residences, exacerbate structural poverty in rural and urban areas, criminalize
farmers, cultivators, indigenous peoples, and or the poor in the name of
investment and development, whereas the social function principles and the
people's constitutional agrarian rights to land are becoming increasingly
relevant and urgent in the midst of unequal land tenure and chronic structural
agrarian conflicts. The enforcement of the social function of land is supposed
to be the basis of land policy in Indonesia, not just an economic function, let
alone a liberal economy, which is then considered the Land Bank to have not
resolved the problem of Agrarian Conflicts that have not been resolved so far.
resolved. which is then deemed the Land Bank has not resolved the issue of the
Agrarian Conflict which has not been resolved so far. resolved. which is then
deemed the Land Bank has not resolved the issue of the Agrarian Conflict which
has not been resolved so far. resolved.
Based on the description of the
background, researchers are interested infind legal facts related to
the object of this research then the researcher will discuss in depth about the
establishment of a land bank through the juridical level.
METHOD
This type of research is normative research, which is
carried out by examining various formal regulations such as laws and literature
which are theoretical concepts which are then linked to the problems that are
the subject of discussion. The nature and source of the data used are primary
legal materials, namely all legal rules whose enforcement or coercion is
carried out by the state. Primary legal materials consist of statutory
regulations, official records or minutes in making laws and judge decisions, and
Secondary Legal Materials are legal sources obtained from official documents,
legal publications or which include: law books, legal magazines, journals law,
or court decisions. The technique of collecting legal materials is done by
means of a literature study (Marzuki,
2014).[3] In
analyzing the data that has been collected, qualitative analysis techniques
will be used on the data obtained both from primary and secondary materials
that are naturalistic and consist of words that are not processed into numbers.
After all the data obtained are put together, then the data is processed and
analyzed so that the data is arranged systematically and included in the
appropriate group. After all the data is processed and compiled systematically,
then based on qualitative research conclusions will be drawn to answer the existing
problems.
Analysis
with this qualitative approach is carried out on data that cannot be counted in
monographic or real cases that cannot be compiled into a classification
structure. namely by collecting material, qualifying then linking theories
related to the problem, and drawing conclusions to determine results. In order
for this analysis to be carried out for a small number of documents, the
qualitative analysis does not use statistical tools.
RESULTS
AND DISCUSSION
Land problems in
Indonesia have been accommodated using Law No. 5 of 1960 concerning the Basic
Agrarian Regulations, in this law the problem of land has been accommodated,
and is actually an implementation of Article 33 of the Constitution of the
Republic of Indonesia. The nature of the Basic Agrarian Law can be seen based
on its preamble which explains the ugliness and ugliness of the previously
applicable agrarian law. The shortcomings contained in the previous law caused
Indonesia to have a double view of the enactment of agrarian law, this could lead
to legal uncertainty that occurred in the community, so it was necessary to
reform the law dealing with problems related to land, considering that land
issues are a crucial problem (Urip,
2015).
The need for development which is increasing
every time while the required land is getting narrower has resulted in smaller
efforts to optimize the utilization of land use, especially in development for
the benefit of each party on a piece of land. It is undeniable that land or
land is a medium that is important for a development process for the public
interest, especially that requires a very large amount of land. The problem
that most often occurs is when the government wants to start a development, the
desired land is not available or not yet available. The practical consequence
is that the government has difficulty in carrying out the land acquisition
process, especially related to the execution of land acquisition and its
financing which is very expensive (Raffli,
2014).
On Monday, October 5, 2020, the House of Representatives
of the Republic of Indonesia (DPR-RI) passed the Employment Creation Law (UU)
in a Plenary Meeting. The Job Creation Law is one of four bills that are a
priority for the government in the 2020-2024 National Legislation Program which
will be passed, with the hope of spurring economic growth and investment in Indonesia.
27 paragraph (2) of the 1945 Constitution (UUD 1945) as the only article in the
1945 Constitution as its philosophical foundation. This has the potential to
cause incomplete meaning of the 1945 Constitution. The role and obligations of
the state, when referring to the entire contents of the 1945 Constitution, do
not only regulate the 'right to work and a decent living for humanity':
1.
Definition
and Authority of land bank
Land Bank is one of the important tools in resource
management to increase land use productivity. The methods promoted in the Land
Bank are market control and local market land stabilization. Land Bank
guarantees the availability of land for various development needs in the
future, efficiency in APBN/APBD, reduces conflicts in the land acquisition
process and reduces the negative impact of land liberalization. Land Bank
management is related to how to plan, organize, carry out activities and
supervise Land Bank activities in realizing the objectives of the Land Bank.
Supported by adequate regulations and strong institutions, the management of
the Land Bank can finally realize the six functions of the Land Bank, namely
land collectors (land guards); land guarantee (guarantee land); land
acquisition supervisor (land purchase); as land management (land management);
as land appraisal; and as a land distributor. Conceptually, Land Bank
activities must contain policies and strategies for optimizing land use and utilization
(Bernhard,
2013).
The general purpose of establishing a Land Bank is to
provide land for the development of public interests so that development plans
by the government and the private sector are not hampered. In addition, the
objectives of the Land Bank in terms of governance are to (i) shape the growth
of community areas; (ii) regulate urban development; (iii) Reducing land
speculation; (iv) Lowering community repair costs; and (v) Lowering the cost of
public services due to the pattern of development (Miya,
2015).
In Government Regulation Number 19 of 2021 concerning
Implementation of Procurement of Development for the Public Interest, it is
stated that the Land Banking Agency, hereinafter referred to as the Land Bank,
is a special agency (sui genesis) incorporated as an Indonesian legal entity.
formed by the Central Government which is given special authority to manage
land. The regulation regarding the Land Bank is regulated in the provisions of
Chapter VIII Article 125 which states that the Land Bank Agency is a special agency
that manages land. Furthermore, Article 137 states that one of the authorities
of the Land Bank is the right to control from the state in the form of land
which can be given management rights.
Management rights are equated with rights owned by State-Owned
Enterprises/Regional-Owned Enterprises/State-Owned Legal Entities, or legal
entities appointed by the Central Government. Article 138 then states that on
land with management rights, the use of which is handed over to a third party,
either partially or wholly, a right to cultivate, right to build, and/or right
to use is granted in accordance with the provisions of the legislation. Article
180 of the Job Creation Law stipulates that another authority possessed by the
Land Bank is to own land assets and or areas that are intentionally not
cultivated or abandoned within a period of no later than 2 (two) years from the
date of granting them to be revoked and returned to the state. In the
implementation of the return to the country as referred to in paragraph (1),
2.
Legal
Arrangements and Potential Land Bank Problems
The establishment of the Land Bank is
one of the indicators of liberalization in the agrarian sector. The Land Bank
is conceptually the main instrument to accelerate the formation of the land market
and make land solely as a commodity. The meaning of land is contrary to the
mandate of the 1960 BAL which views land as having a social function and not
only an economic function. The 1960 Constitution also stipulates that state
instruments in regulating land issues must focus on the acquisition and reserve
of land for the livelihood of the people. In the Job Creation Law, the
establishment of a Land Bank is explained in several articles, namely:
i Article
125 of the Job Creation Law states that the Land Bank is a special agency that
manages land and functions to carry out planning, procurement, procurement,
management, utilization, and distribution of land;
ii Article
126 paragraph (2) of the Job Creation Law states provisions regarding land
reserves that allocate land availability for agrarian reform at least 30
(thirty) percent of state land designated for land banks;
iii
Article
129 of the Job Creation Law states that the Land Bank has a central role,
because it has the authority over management rights in the article
'Strengthening Management Rights' article 136-142) which has the potential to
be misused and only accommodates corporate and investment interests.
iv Article 180 (1)
Rights, permits, or concessions on land and areas which are intentionally not
cultivated or abandoned within a maximum period of 2 (two) years after being
granted are revoked and returned to the state. (2) In the implementation of
returns to the state as referred to in paragraph (1), the Central Government
may determine the rights, permits, or concessions as assets of the Land Bank.
(3) Further provisions regarding the revocation of rights, permits, or
concessions as well as their designation as assets of the Land Bank shall be
regulated in a Government Regulation.
Potential problems that can arise as a result
of the existence of this Land Bank include the lack of legal certainty in the
administration and authority of the Land Bank because until now the Government
Regulation concerning the existence of the Land Bank is still in the form of a
draft and has not been ratified. The establishment of a Land Bank requires
coordination between ministries such as the Ministry of Agrarian Affairs and
Spatial Planning and the Ministry of Public Works and Public Housing, this
agency will purchase land before the infrastructure development project begins.
So that it can reduce land selling agents who buy land and then it will only be
sold if there is a development project with a high and profitable land price.
In addition to,
3.
Ineffective
Land Bank Establishment as an Effort to Settle Agrarian Conflicts
a.
Benefits
for the Private Sector
The private sector gains from the existence of the Land
Bank is for the management of abandoned state land, at least 30% of the land
managed by the Land Bank must be used for agrarian reform. This land is used
for the benefit of agricultural land, public housing, gardening, and other
public interests. This means that the use rights can be given to private
parties without any element of seeking profit or seeking profit. Article 124 of
the Job Creation Law states that the Land Bank institution guarantees the
availability of land in the context of economic equity, one of which is for the
benefit of agrarian reform. It is feared that the existence of the Land Bank
institution is not in accordance with the objectives of agrarian reform, which
include reducing inequality in land ownership to realize social justice,
reducing conflicts, disputes, and agrarian cases. and realizing weak economic
access. community to maximize economic resources so that prosperity and welfare
can be achieved. The HPL which is regulated by the Land Bank institution, if
implemented, is unlikely to differ much from the land principle which contains
land rights that were enforced during the Dutch colonial period. This soil
particle itself has been removed, regulated in Law Number 1 of 1958 concerning
the Elimination of Soil Particles. It is feared that the principle of land
reform which is substantially contained in the LoGA will be erased if the Land
Bank is still implemented. It needs maximum readiness if the state is going to
establish a Land Bank institution or the like, namely by strengthening its
philosophy, and it must be clear that the most important goal of establishing a
Land Bank, and there must be a balance of land. Procurement for the national
interest through investment, and land acquisition in the context of agrarian
reform, namely providing direct access to the people/farmers of state land to
make the best use of their land, so that the land reform principle in the UUPA
is not violated. This shows that the duty of the state to provide general
welfare for its citizens includes protecting the rights of citizens to land.
This is the Government, then strengthened and legitimized by MPR Decree Number
IX of 2001 which mandates the government to do various good things regarding
efforts to organize, control, possess, use, designate, and provide land, all of
which are placed in the context of developing people's welfare in a sustainable
manner. Procurement for the national interest through investment, and land
acquisition in the context of agrarian reform, namely providing direct access
to the people/farmers of state land to make the best use of their land, so that
the land reform principle in the UUPA is not violated. This shows that the duty
of the state to provide general welfare for its citizens includes protecting
the rights of citizens to land. This is the Government, then strengthened and
legitimized by MPR Decree Number IX of 2001 which mandates the government to do
various good things regarding efforts to organize, control, possess, use,
designate, and provide land, all of which are placed in the context of
developing people's welfare in a sustainable manner. Procurement for the
national interest through investment, and land acquisition in the context of
agrarian reform, namely providing direct access to the people/farmers of state
land to make the best use of their land, so that the land reform principle in
the UUPA is not violated. This shows that the duty of the state to provide
general welfare for its citizens includes protecting the rights of citizens to
land. This is the Government, then strengthened and legitimized by MPR Decree
Number IX of 2001 which mandates the government to do various good things
regarding efforts to organize, control, possess, use, designate, and provide
land, all of which are placed in the context of developing people's welfare in
a sustainable manner and land acquisition in the context of agrarian reform,
namely providing direct access to the people/farmers of state land to make the
best use of their land, so that the land reform principle in the UUPA is not
violated. This shows that the duty of the state to provide general welfare for
its citizens includes protecting the rights of citizens to land. This is the
Government, then strengthened and legitimized by MPR Decree Number IX of 2001
which mandates the government to do various good things regarding efforts to
organize, control, possess, use, designate, and provide land, all of which are
placed in the context of developing people's welfare in a sustainable
manner.and land acquisition in the context of agrarian reform, namely providing
direct access to the people/farmers of state land to make the best use of their
land, so that the land reform principle in the UUPA is not violated. This shows
that the duty of the state to provide general welfare for its citizens includes
protecting the rights of citizens to land. This is the Government, then
strengthened and legitimized by MPR Decree Number IX of 2001 which mandates the
government to do various good things regarding efforts to organize, control,
possess, use, designate, and provide land, all of which are placed in the
context of developing people's welfare in a sustainable manner so that the land
reform principle in the UUPA is not violated. This shows that the duty of the
state to provide general welfare for its citizens includes protecting the
rights of citizens to land. This is the Government, then strengthened and legitimized
by MPR Decree Number IX of 2001 which mandates the government to do various
good things regarding efforts to organize, control, possess, use, designate,
and provide land, all of which are placed in the context of developing people's
welfare in a sustainable manner so that the land reform principle in the UUPA
is not violated. This shows that the duty of the state to provide general
welfare for its citizens includes protecting the rights of citizens to land.
This is the Government, then strengthened and legitimized by MPR Decree Number
IX of 2001 which mandates the government to do various good things regarding
efforts to organize, control, possess, use, designate, and provide land, all of
which are placed in the context of developing people's welfare in a sustainable
manner.
b.
Similarity
of Duties with other State Institutions
Whereas Article 180 of the Job Creation Law states that
(1) Rights, permits, or concessions on land and areas that are intentionally
not cultivated or abandoned within a period of no later than 2 (two) years from
the date of issuance are revoked. and returned to the country. (2) In the
implementation of returns to the state as referred to in paragraph (1), the
Central Government may determine the rights, permits, or concessions as assets
of the Land Bank. (3) Further provisions regarding the revocation of rights,
permits, or concessions as well as their designation as assets of the Land Bank
shall be regulated by a Government Regulation.
From the provisions of the article, it can be understood
that the permit rights to the abandoned area for a maximum of 2 years are
revoked and returned to the State and designated as assets of the Land Bank.
This means that ownership and management are in the Land Bank, while Government
Regulation (PP) Number 6 of 2006 concerning Management of State/Regional
Property regulates that the management of state assets is under the control of
the Minister of Finance as the general treasurer. state, while the head of the
state ministry/institution is the user of state property, and the official of
the work unit is the proxy for the user of state property.
Land is part of the wealth controlled by the state based
on Article 33 paragraph (3) of the 1945 Constitution which stipulates,
"Earth, water and natural resources contained therein are controlled by
the state and used for the greatest prosperity of the people. "Thus, the
highest authority holder is the Indonesian nation in an organization called the
state. As a form of state policy in terms of land management as mandated by
Article 33 of the 1945 Constitution, the state issues the UUPA to become the
legal basis for the implementation of land management policies, where the right
to control the state give birth to the authority as referred to in Article 2
paragraph (2) of Law Number 5 of 1960, namely: a) to regulate and administer
the allocation, use, and maintenance of earth, water, and space;
c.
Determine
and regulate legal relations between people and legal actions regarding earth,
water, and space.
Whereas to implement these provisions, the state has
issued regulations for institutions in charge of regulating and managing state
assets in the form of land for the survival of the nation and state, namely
Presidential Regulation Number 10 of 2006 concerning 20 National Land Agency.
The three main functions mentioned above that must be carried out by the state
are given to BPN as a government agency authorized to handle land. However, in
reality until now the land institution has not been optimal, as can be seen
from the land management which is handled by more than one institution, but has
not been well coordinated. Land administration management has been handled by
the Ministry of Forestry for forest areas and BPN for non-forest land.16 In
addition, in terms of land management, Article 1 of Presidential Regulation
Number 10 of 2006 states that BPN is a Non-Departmental Government Institution
which is under and responsible to the President, and is led by a Head. In
carrying out its main duties and functions, the Head of BPN is assisted by the
Main Secretary and 5 (five) Deputy and Chief Inspector. The five deputies are
(Article 4) their respective deputies.
Deputy for Surveying, Measurement and Mapping, Deputy for
Land Rights and Land Registration, Deputy for Land Regulation and Management,
Deputy for Land Control and Community Empowerment, Deputy for Assessment and
Handling of Land Disputes and Conflicts. Furthermore, according to Article 2,
the National Land Agency is tasked with carrying out government duties in the land
sector nationally, regionally, and sectorally, thus the National Land Agency
institution is the Ministry of Finance, while the Ministry of Finance is in
charge of financial affairs led by a Minister. The existence of the Ministry of
Finance in land management is based on several regulations including Law Number
17 of 2003, Law Number 1 of 2004, and Government Regulation Number 6 of 2006.
The general explanation of PP No. 6 of 2006 states, "The Minister of
Finance as the general treasurer of the state is the manager of state
property". The definition of goods manager according to Article 3 of PP
Number 6 of 2006 is "An official who is authorized and responsible for
setting policies and guidelines and managing state/regional property".
Thus, the management is very closely related to the person/official as referred
to in Article 4 paragraph (1) of PP Number 6 of 2006. From this explanation, it
can be understood that the ownership of state land that is not used is used as
an asset of the Land Bank where the management of the land bank's assets is not
determined. how it is managed and what kind of system is implemented. in the
use of these assets. On the other hand, A number of regulations were found
regarding the authority of BPHN and the Ministry of Finance in managing state
assets including land, this raises the question of how state assets under the
control of the Land Bank can be enforced and used. for benefits according to
the actual procedure
d.
There
is no Time Term of Land Management Rights in the Employment Creation Law
Legal protection and legal certainty in the use and
utilization of land are contained in various laws and regulations. The
regulation of land use and utilization of government agency assets has been
regulated in Law Number I of 2004 concerning State Treasury and Government
Regulation Number 6 of 2006 concerning Management of State/Regional Property.
In order to provide legal protection for land assets, government agencies and
legal certainty in "ownership" need to be based on the basics of having
legal rights so that they can easily prove themselves as holders of rights to
the land in question. Legal protection and certainty to land rights holders can
be provided through land registration. Hereby the holder of land rights is
given a certificate as proof of his rights.
The provisions of Article 28H Paragraph (4) of the 1945
Constitution are the state's commitment to recognize and respect individual
property rights, including the rights of citizens to land. However, land rights
in force in Indonesia are not absolute, meaning they cannot be fully defended
against anyone by the right holder. In certain circumstances where the
interests of the state require, the holder of land rights must be willing to
give up their rights for the greater interest. If you look at the constitution,
the 1945 Constitution has explained that the earth's water and the natural
resources contained therein are used for the greatest prosperity of the people.
UUPA, as a basic regulation that becomes a reference for the existence of
various laws and regulations in the land sector,
With the status of ownership by the State, the state can
also give rights to other parties who want to use the land with their own
Management Rights according to Article 1 point 3 of the Regulation of the State
Minister of Agrarian Affairs/Head of Land Agency Regulation Number 9 of 1999
concerning Procedures for Granting and Cancellation State Land Rights and
Management Rights ("Permen Argaria 9 of 1999") are state control
rights whose implementation authority is partially delegated to the holder. In
the provisions of Article 137 it is stated that the Land Bank has the authority
to manage rights and can release it to other parties, but regarding its
implementation,
e.
Disagree
With Claims That Land Banks Are Solutions To Problems For Society
The constitution has provided clear
regulations regarding land in Indonesia. It is affirmed in the 1945
Constitution Article 33 paragraph (3) of the 1945 Constitution that the power
given to the earth, water and natural resources contained therein lies with the
State, and for that the State is obliged to regulate their ownership and lead
them. its use. The goal is that all land in the entire territory of the
Indonesian nation's sovereignty is used for the greatest prosperity of the
people. In the regulation of the land sector, the right to control the state is
also further regulated and reaffirmed in Article 2 paragraph (1) of Law Number
5 of 1960 concerning Basic Regulations on Agrarian Principles. Land has a very
strategic function, both as a natural resource and as a space for development.
However, in this vast country of Indonesia, there is still a lot of abandoned
land whose use is not clear. These abandoned lands tend to only be used as
objects of speculation.
The existence of the Land Bank is intended to
improve the welfare of the community at every level through the use of
abandoned state land so that it can be managed properly and generate money
without any element of profit being taken by the Land Bank. Article 126 of the
Employment Creation Law states that the Land Bank Agency guarantees the
availability of land in the context of economic equity for: a. public interest;
b. social interests c. national development interests; d. economic equity; e.
land consolidation; and f. agrarian reform by drinking 30% of the land was
earmarked for the Land Bank.
Regarding the settlement of agrarian
conflicts through the Land Bank, it is considered unable to work because the
Land Bank does not have the authority and competence in resolving land rights
that are in dispute between the government and the community or legal entities.
more clearly the existence of a Land Bank that does not confuse the public,
which does not mean a bank in the financial sector that has been known to the
public for its prudential principles, the principle of respect for people's
rights, and the principle of justice. The Land Bank will actually exacerbate
the situation of inequality, agrarian conflicts, and facilitate the process of
land grabbing in the name of land acquisition for infrastructure development.
as well as fostering the practice of land mafias and land speculators and tend
to be impartial to the interests of small people, especially farmers. If the
rapid rate of land conversion of agricultural land does not stop, it is even
facilitated by the existence of a land bank, the community's agricultural land
will shrink, and the number of landowners and cultivators will decrease.
reduced in number due to the loss of the main means of production, i e. soil.
Farmers' livelihoods will be eroded. especially farmers. If the rapid rate of
conversion of agricultural land is not stopped, even facilitated by the
existence of a land bank, the community's agricultural land will shrink, and
the number of farmers who own land and cultivators will decrease due to the
loss of their main means of production, namely land. Farmers' livelihoods will
be eroded. especially farmers. If the rapid rate of conversion of agricultural
land is not stopped, even facilitated by the existence of a land bank, the
community's agricultural land will shrink, and the number of farmers who own
land and cultivators will decrease due to the loss of their main means of
production, namely land. Farmers' livelihoods will be eroded.
f.
The Urgency of Establishing Land Bank
Institutions
The government has a
national long-term development target every 25 years, one of the things it
wants to achieve is infrastructure issues to optimize state services to the
community. Currently, infrastructure development is still being carried out in
order to optimize services to the community. The increasing intensity of
development needs and the increasingly limited availability of land
simultaneously result in the increasing difficulty of optimizing the use of
land use, especially for the implementation of development for the public
interest, so that what follows is a conflict of interest between parties over
the same piece of land. The problem that occurs is the limited availability of
land. In addition, the presence of land speculators also hampers the provision
of land because land prices soar. Therefore, a management of the availability
of land is needed through a land provider institution, namely the land bank. Land bank refers to the
process of acquiring undeveloped or unproductive community land for the purpose
of future development.
The existence of the Land
Bank can carry out what has been mandated by the 1945 Constitution of the
Republic of Indonesia and the 1960 BAL. Land banks can be used as instruments
to support the implementation of various land policies and support the
achievement of development through regional development, land acquisition in a
fair manner.
At the empirical level, the
Land Bank can answer various pressing issues that have often overshadowed
infrastructure development such as the limited land stock that can be used for
development, saving on APBN and APBD funds, reducing conflicts that often occur
in land acquisition and reducing the bad impact of the practice of land
acquisition. land price speculation that is often carried out by the land
mafia. At the implementation level, the institutional concept of a Land Bank
must be based on the 1945 Constitution of the Republic of Indonesia and the
1960 BAL. Land banks must be managed by institutions that are public legal
entities, both as units and departments or in the form of BUMN. As stated
earlier, land plays a very central role, therefore the government must take
part in all its implementation activities.
CONCLUSION
Based on the discussion that has been
described, the conclusion that can be formulated is that the existence of the
Land Bank as regulated in the Job Creation Law is based on the non-profit
principle, meaning that in its implementation the Land Bank does not take any
profit at all. This tends to benefit entrepreneurs as private parties in
clearing land used on state land. Regarding the flow, the main tasks and
functions of the Land Bank itself have not been regulated in a government
regulation, only in the form of a draft government regulation that has not been
formalized, therefore the Land Bank does not have official legal guidelines in
carrying out its duties. Then the status of land rights management granted to
the Land Bank was previously the authority of other state institutions so that
it was considered ineffective. The ease of land control by the state also
limits the use of agricultural land which has been used by farmers to drive the
wheels of the economy. Regarding the settlement of agrarian conflicts through
the Land Bank, it is considered impossible because the Land Bank does not have
the authority and competence in resolving land rights which are disputes
between the government and the community or legal entities. The existence of
the Land Bank needs to be strictly controlled which is regulated in government
regulations as its implementation so that the existence of the Land Bank is
clearer, so as not to confuse the public. Regarding the settlement of agrarian
conflicts through the Land Bank, it is considered impossible because the Land
Bank does not have the authority and competence in resolving land rights which
are disputes between the government and the community or legal entities. The
existence of the Land Bank needs to be strictly controlled which is regulated
in government regulations as its implementation so that the existence of the
Land Bank is clearer, so as not to confuse the public. Regarding the settlement
of agrarian conflicts through the Land Bank, it is considered impossible
because the Land Bank does not have the authority and competence in resolving
land rights which are disputes between the government and the community or
legal entities.
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