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Procedures on Disputes of Location Determination for Development of Public Interest

By February 27, 2019 No Comments

One of the stages in the land procurement for development of public interest is the issuance of location determination by the Governor or Regent/Mayor if they receive delegation from the Governor. The location determination is used as a permit for land procurement, change of land use, and transfer of land rights towards the land procurement for the development of public interest. The location determination must be in accordance with the spatial planning. Under Article 23 of Law No. 2 of 2012 on Land Procurement for Development of Public Interest (“Law No. 2/2012”), the State Administrative Court (“State Administrative Court”) has authority to adjudicate claims related to the location determination. The procedures of dispute on location determination in the State Administrative Court are regulated under the Supreme Court Regulation No. 2 of 2016 (“SC Regulation No. 2/2016”).

Claim by Claimant

The claim towards the location determination is submitted to the State Administrative Court at the domicile of administrative officers that issues the location determination. In the claim, the claimant must describe:

  1. identity of claimant;
  2. identity of defendant;
  3. information on the location determination that is claimed;
  4. basis of the claim that consists of (i) authority of the State Administrative Court where the claim is submitted, (ii) legal standing of the claimant, (iii) information that the claim is submitted within the permitted period, (iv) reasons of the claim that consists facts that the issuance of location determination violates the law, and/or general principles of good governance;
  5. requests by the claimant to the judges for (i) accepting the claim in its entirety, (ii) stating that the location determination is cancelled or not valid, and (iii) requiring the defendant to revoke the location determination.
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The claimant is the rightful party, which is individual, legal entity, government agency or customary law society. While the defendant is the Governor or Regent/Mayor that issues the location determination.

The claim must be submitted no later than 30 business days from the announcement of location determination (must be made in Indonesia language, and submitted with 5 copies of claim). The claim must also be submitted with preliminary evidences, as follows:

  1. Evidences related the identity of the claimant, as follows:
    • If individual: identity card;
    • If legal entity: articles of association, decree from the Minister of Law and Human Rights on the legal entity legalization, and deeds with regards to the appointment of regarding appointment of person that represent the legal entities in court, along with the copy of identity card or other valid identity;
    • If government institution: the prevailing laws and regulations with regards to its establishment;
    • If customary law community: proof that the customary law community is still alive.
  2. Copy of the location determination.
  3. Copy of land ownership.
  4. List of prospective witness and/or expert (if the claimant will submit witness or expert).

Examination Process

The examination process of the location determination dispute under the SC Regulation No. 2/2016 is different with the provisions in Law No. 5 of 1986 on State Administrative Judiciary as amended lastly by Law No. 51 of 2009 (“State Administrative Law”). The examination of disputes is conducted through several stages, such as (i) examination of claim, (ii) examination of reply, (iii) examination of evidences, (iv) examination of witnesses, (v) examination of experts, (vi) examination of other evidences in the form of electronic information and document, and (vii) issuance of decision.

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The State Administrative Court must issue the decision at the latest 30 business days from the receipt date of the claim (registered in the case register).

Cassation

There is no appeal process on the dispute of location determination. The objections toward the decision of the State Administrative Court may only subject to cassation to the Supreme Court. The cassation application must be submitted no later than 7 business days from the date when the decision is read by the judges of State Administrative Court. The memory of cassation must be submitted no later than 7 business days from the statement of cassation. Further, the respondent may submit the contra memory of cassation at the latest 7 business days from the delivery date of the memory of cassation to the respondent. The Supreme Court must issue the decision within 30 business days from the registration date of the cassation. The decision by the Supreme Court Decision is categorized as legally binding decision, and is not available for judicial review.


Adrian Fernando Simangunsong