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Land Procurement Law Post Job Creation Law

By August 16, 2021 No Comments

Infrastructure is one of the central government’s most important programs. Infrastructure has also been officially designated as the second priority program in President Jokowi’s second administration, after the development of human resources. Therefore, of course, the construction project is expected to continue even in the midst of a pandemic that is still ongoing.

Of course, many regulations that are related to infrastructure projects for the public interest. But the most basic is the land procurement law for the public interest (Land Procurement Law) which was promulgated in 2012. Through the Job Creation Law there have been several key changes to the Land Procurement Law.

First, to solve the problem of land status affected in the land acquisition plan, it is regulated that when the land object is in the forest area, village cash land, waqf land, ulayat/customary land, and/or land assets of the central government, local government, state-owned enterprises (SOE)/regional-owned enterprises (ROE), the settlement of its status must be resolved until the determination of the location (location determination). Only the mechanism of clearing forest area is regulated, namely through the relinquishment or borrow-use of forest area.

Second, there are an additional 6 development projects related to land procurement for the public interest, namely upstream and downstream oil and gas industrial areas, special economic zone, industrial areas, tourism areas, food security areas, and technology development areas, all with the conditions that they are initiated and/or controlled by the central government, regional, or SOE/ROE. This addition shows the scope of land procurement project becomes wider than before.

Third, in the framework of efficiency and effectiveness, the land procurement covering no more than 5 hectares can be made directly by an institute requiring the land with the rightful party (owner or possessor of land). This provision is not an entirely new provision since it was previously stipulated in the implementing regulations. This provision is an option, a party who requires the land can choose whether to submit themselves to land procurement regulations or simply refer to the ordinary agreement in accordance with civil law. If the party who requires the land still subjects themselves to the rules of land procurement, then the regent/mayor will issue a location determination.

Fourth, after the location determination is carried out, there are five conditions that are no longer needed, namely the suitability of space utilization activity, technical considerations, analysis of environmental impact, outside forest and mining area, and outside peat areas/coastal borders. These five conditions show the sturdiness of the ‘strength’ of the location determination that has been issued. The location determination is already considered to include those 5 conditions so that the fulfillment of separate requirements is no longer required other than the issuance of location determination. One of these exceptions can also be seen in the provision of housing law that requires the location determination or suitability of space utilization activity if they want to procure land for the public interest.

Fifth, the land procurement period is changed to 3 years and can be extended for 1 year. Previously the allowed term was 2 years and can be extended to 1 year. The application for an extension of the location determination time is submitted at least 6 months before the validity period of the location determination ends.

Sixth, data collection of land from the rightful parties over land no longer refers to land office but can also be done by licensed surveyor. This provision can be positive but can also be negative considering the role of the land office is very large in the land procurement process. The role of licensed surveyors should be limited to data collection (inventory and identification) but the role of data processing should still be carried out by the land office.

Seventh, there is astipulation that the value of indemnity assessed by the appraiser is final and binding. This provision is strict so that the land procurement process can still be carried out without negotiation or objection to the determined value, without negating the right of the rightful party to submit legal remedy through a public court.

Eighth, the change in the explanation of legal norm governing who can be referred to as the ‘rightful party’, namely one of them is ‘party who posseses the state land in good faith’. A party is said to possess a state land in good faith if (i) land possession is acknowledged by the laws and regulations (ii) there is no objection from indigenous people, sub-district /village or other so-called names, or other party over possessed land whether before and during the announcement, and (iii) possession is proven by testimony from 2 trustworthy witnesses.

Ninth, the stipulation of the maximum limit for the consignment of compensation  by the district court, which is 14 days after it is filed, if the rightful party declines the form and/or value of damages. This provision provides clarity of time on when the relinquishment of land right is considered to have occurred and the return of the status of the procured land to become the land directly-possessed by the state.

The change of the Land Procurement Law appears to be the result of what the government has learned and the various problems faced over the past 9 years related to land procurement. Through the Job Creation Law, the various problems found are translated into provisions that amend the old legal norms. That amendment is certainly implemented so that the land procurement process will later run smoother, quicker, and without any significant obstacles. The amendment of the Land Procurement Law also clearly shows that the central government focuses on infrastructure projects, as the President’s second priority program.

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Eddy Leks