The Substance of the Land Bill Has Not Answered the Agrarian Problem, Ratification Must Be Postponed!

The Land Bill which is currently being discussed by the Indonesian Parliament and the Government has the aim to target the three main issues listed in the “considering” section of the draft bill, namely to overcome imbalances in the structure of control, ownership, and use of land; overlapping laws and regulations; and land conflicts and disputes. However, it is very unfortunate, that the substance of the Land Bill in the draft per 22nd of June 2019 has not been able to answer the three main issues.

 

The current Land Bill hasn’t been able to answer the problem of structural imbalances in land tenure. This bill regulates restrictions on control of land, but also opens opportunities for deviations from these restrictions.[1] This bill in no way regulates the overhaul of land tenure and redistribution of excess land tenure. In fact, this bill has the potential to provide bleaching for violations of physical control over land that exceeds Land Cultivation Rights (HGU) or control over land that does not yet have an HGU.[2]

 

This bill also seems to revive the concept of domein verklaring, which was used by the Dutch to seize land from the community, by regulating that land which cannot be proven for its land rights will automatically become state land. This will certainly have a negative impact on indigenous peoples who are still struggling to gain recognition of their customary territories.

Instead of answering the problem of structural inequality, this Land Bill will instead give the government the authority to revoke Land Rights in urgent situations and in the name of the public interest.[3] While the criteria of “urgency” and “public interest” are not clearly regulated. Besides, the existence of the Land Bank introduced by this bill needs to be anticipated so that this institution will not become a tool for the commodification of land which will only exacerbate the structural imbalance of land tenure.

 

Overlapping regulations and sectoral management issues are classic problems in improving agrarian governance. Although it has been mentioned as one of the objectives of the establishment of the bill, as well as mandated in TAP MPR No. XI of 2001, there is not a single article in the Land Bill that regulates the harmonisation of this regulation.

 

This bill tries to regulate cross-sectoral management by also including regulation of forest areas and agricultural land, but only by strengthening the authority of the Ministry of Land and Spatial Planning/National Land Agency, without regulating the roles and responsibilities of other relevant ministries. Sectoral management issues should be answered through integrated land administration (single land administration) through this bill, but this single land administration should be placed not only as a record, but as a part in improving national land governance.

 

In order to improve national land governance, there is one thing that is not regulated in this Land Bill, which is the guarantee of disclosure of important information related to land. The lack of transparency of information in the land sector has resulted in many problems of overlapping land rights and weakening public control over land use. Even though there has been a decision of the Supreme Court which has legal force, important information on land such as HGU has not been made public by the Ministry of Land and Spatial Planning/National Land Agency.

 

Seeing how chronic this problem of information closure, the Land Bill should provide strict and solvable regulation related to information disclosure guarantees. It not only embeds a general article that states that the public has the right to obtain public information in the land sector, but also mandates what information must be proactively published to the public.

 

In resolving agrarian conflicts, the land court is one of the instruments to be proud of in this bill. However, the concept of a land court is not in accordance with the Indonesian justice system. This land court is given the authority to resolve criminal, civil and administrative land matters.[4]

 

Whereas, the land court is under a general court that is not authorised to adjudicate administrative disputes. Moreover, this land court is regulated only at the provincial level, which will complicate community access in remote areas. Resolving agrarian conflicts requires mechanisms from upstream to downstream, from de facto and de jure land tenure inventories, land conflicts, land abandonment, settlement of overlapping land rights to land redistribution mechanisms. Settlement of agrarian conflicts that prioritise formal legal approaches will not satisfy the sense of justice in the field.

 

One thing that is completely missed in the discussion of this Land Bill is the regulation of land use by taking into account the protection of ecosystems. It cannot be denied that land is part of an ecosystem that has a certain function. Land management that only sees land as a plot of land that can become a commodity will result in land policy misalignment with environmental protection policies.

 

The Land Bill has not yet talked about land inventory based on the condition or function of the land which will affect its management. For example, peat soils with a depth of more than three metres of which use is limited to their protection functions. The issue of revocation of land rights should not be merely an issue of procedural violations of permits, but also violations of land use that are not in accordance with their designation and function, such as land clearing with fires.

 

Seeing that there are still many weaknesses in the substance of the current Land Bill, the Government and the Indonesian Parliament should not force the ratification of this bill hastily. Postponement of ratification must be carried out until the substance of the Land Bill is amended together in a participatory manner. The Civil Society Group also agreed that the Land Law is needed to complement the Basic Agrarian Law which cannot answer the actual agrarian problem. However, this Land Law will not be useful if it is merely “there” without being able to solve problems in the field. (Rika)

 

 

[1] Article 18 of the Land Bill, the text of the Land Committee Meeting on 21st – 22nd June 2019

 

[2] Article 154 of the Land Bill, the text of the Land Committee Meeting on 21st – 22nd June 2019

 

[3] Article 74 of the Land Bill, the text of the Land Committee Meeting on 21st – 22nd June 2019

 

[4] Article 92, the text of the Land Committee Meeting 21st – 22nd June 2019