Foretell Implementation of Land Acquisition for Public Interest Development in Indonesia*
President Susilo Bambang Yudoyhono has issued Presidential Regulation No. 71 of 2012 on the Implementation of Land Acquisition for Public Interest Development (Peraturan Presiden No. 71 tahun 2012 tentang Penyelenggaraan Pengadaan Tanah Bagi Pembangunan Untuk Kepentingan Umum) last year, on August 2012, to implement Law No. 2 of 2012 on Land Acquisition for Public Interest Development (Undang-undang No. 2 tahun 2012 tentang Pengadaan Tanah Bagi Pembangunan Untuk Kepentingan Umum). The Regulation repeals and replaces Presidential Regulation No. 36 of 2005, as amended by No. 65 of 2006, on the same subject matter, as well as its implementing regulations, thereby heralding an era of a completely revised legislative framework underlying land acquisition. The signing of The Regulation was what Indonesian people and investor had been waiting for since the Law on Land Acquisition for Public Interest Development was passed by the House of Representatives (DPR – Dewan Perwakilan Rakyat) in December 2011.
In the last few years, disputes over land ownership and acquisitions had forced investors to delay major projects for years at a time, until the disputes and compensation claims could be ironed out. It would have been a Pyrrhic victory for government if government to push landowner to release their rights of the land – just like ever happened in Soeharto era, also become national issue recently in Mesuji. In the other hand, those problems take a lot of time and money to resolve for investors, so there was always a lack of certainty in land-law enforcement. That’s why this Regulation was a very much-awaited implementing regulation for the Law on Land Acquisition for Public Development, which believed will accelerate infrastructure development in Indonesia, for instance The MRT construction works in Jakarta province will include land procurement and road widening in 2013 – both needs land procurements.
This Regulation is the implementation of the mandate of Article 53 and Article 59 of Law on Land Acquisition for Public Interest Development. It divided Land procurement into 4 stages: Planning, Preparation, Implementation and Delivery of The Results (Article 2 of Regulation).
- The planning stage, which mainly consists of the documents that have to be prepared by the acquiring institution (Article 5 through 7);
- Preparation, which includes the site information collection and the public consultation (Article 8 through 48);
- Implementation, which sets out the steps to be completed by the National Land Agency (BPN – Badan Pertanahan Nasional) in acquiring the land (Articles 49 through 111); and
- Delivery of The Results (Article 112 through 114).
Pertinent to Ministry of Public Works and other technical institutions
The Regulation calls for further implementing regulation by the Minister of Finance, Minister of Home Affairs, and the National Land Agency (BPN) to be issued within a period of 3 months (Article 124 jo 111 jo 120) – related to operational and proponent funding, and technical procedure of land procurements.
However, the Regulation also requires all government institutions seeking to acquire land for infrastructure development to submit land procurement plans that include a description of the project and its consistency with Local Spatial Zoning Laws (RTRW Provinsi/Kabupaten/Kota), the land location and the total area needed, as well as information on its status and a price estimate, to the local governors. The governors will set up teams to inform the public of the plans for development, conduct initial data gathering at the location and carry out public consultation about the development plan. They will also form teams to study any public objections lodged in relation to a development plan. The land needed will then be purchased by the National Land Agency through its regional offices. Besides, institutions that existed before the Regulation for instance Land Procurement Team (TPT – Tim Pengadaan Tanah), Land Procurement Comittee (P2T – Panitia Pengadaan Tanah) under National Land Agency and Toll Road Authority Board (BPJT) for toll road prijects should stick together to foster land procurements process.
It is notable about Local Spatial Zoning Laws, which is agree with or not, should be in concordance with National Spatial Zoning Planning Laws (RTRWN – Rencana Tata Ruang Wilayah Nasional). Other technical institutions related to RTRWN i.e. Ministry of Public Works cq Directorate General of Spatial Planning, National Spatial Plan Coordination Board (BKPRN – Badan Koordinasi Penataan Ruang Nasional), National Development Planning Agency (BAPPENAS), Ministry of Home Affairs, etc. should be involved in making the proposal at the planning stage. This is important to make sure that land needed by the institutions is supporting, not against, national spatial policy. So, the Regulation is not only talking about giving the landowners their rights, but also make sure that land procurements is not violating National Spatial Zoning Planning Law.
Certainty has become the main issue in legal enforcement in Indonesia, not to mention only land procurements, and the Regulation expected to answer thus. Related society or civilian who will have their land to be acquired by goverments hope that this Regulation can give them a certainty in getting an equitable compensation, where in the other side the companies working on infrastructure development projects also hope that they’ll get the legal certainty they needed to push through their projects. The compensation itself is in the form of cash, land swap, resettlement, shares or something else – be agreed by the two parties involved: goverments and landowners.
The Regulation will set clear time frames for the acquisition of land for public projects; it set a maximum time limit of 583 days for the completion of land acquisition and details of steps to be taken for the handover of land for public projects. Such maximum time limit is reached when there were any disputes or disagreements among parties. If there were non-disputed acquisition, land procurements can normally be completed within 260 days.
Notable the introducing of “konsinyasi” or deposit of compensation, that if landowners were not to agree the form or amount of compensation, they can process their objection to District Court until Supreme Court. In case Supreme Court rejected their appeal, willing or not, they have to accept Supreme Courts verdict (inracht van gewijsde) based on Article 73. In other words, after Supreme Courts verdict, landowners are not allowed to do request civil (peninjauan kembali) to review such verdict and the rights to land are terminated (Article 86 jo 100).
Even so, based on writter experiences, time limit settled on the Regulation has a potential overdue. Since everybody-secret that there are enormous case registered in Supreme Courts from all over Indonesia waiting to be ruled by supreme courts’ judge, so there will be a high potential of overdue if landowners appeal District Courts verdict. That’s the question so far, if overdue happened, how or who will handled such overdue – because the Regulation didn’t state it clear. Yet, to avoid such things, the Regulation stating the possibility of providing tax incentives to those assisting in the acquisition of land for public development by accepting and not disputing the compensation in court.
The Regulation also applies to projects where land acquisition is ongoing, but only if the process has not completed by the end of 2014 (Article 123). It applies to land acquisition for public interest projects, which can be carried out by government institutions, that is commenced after the issuance of the Regulation.
It also stipulates the formation of a preparation team by the governor, whose membership consists of the regents/mayors, Regional Government Work Unit (SKPD – Satuan Kerja Perangkat Daerah) of the relevant local government, institutions/agencies requiring the land for infrastructure development, and other relevant agencies. This is to carry out notification of the development plan, to collect initial data on the planned development site, and to carry out public consultation.
It is also notable that Article 121 allows governments for direct acquisition of land areas of less than 1 ha by the government institutions requiring the land. In this case, government institutions can directly negotiate with landowners to acquire the land, offering landowners two mechanism of acquisition: to buy and purchase or trough barter.
The Regulation calls for further implementing regulation by the Minister of Finance, Minister of Home Affairs, and the National Land Agency to be issued within a period of 3 months since it commenced – which is 3 months after August 2012. Now, in the very beginning of 2013, ready or not, actually those 3 institutions should have been completed in arranging and commencing the implementing regulation. There should be a serious commitment by the authorities to enforce the law and help landowners understand it.
Such serious commitment will be shown at the readiness of all members of central and local governments related to land acquisitions. All parties, from the central government to regional administrations, must truly understand this new regulation.
It is important that government ministries and institutions take this regulation and run with it. They must move quickly to identify land that has been earmarked for infrastructure development and take the necessary steps to sort out the legal paperwork in accordance with the presidential regulation.
Ministry of Public Works, as the regulating institutions related to National Spatial Zoning Planning Laws, needed to actively coordinating local governments to implement and adjusting Local Spatial Zoning Laws with National Spatial Zoning Planning Laws in order to make sure that infrastructure projects in all over Indonesia are not violating National Spatial Zoning Planning Laws – including land procurements.
*Source: Law No. 2 of 2012 on Land Acquisition for Public Interest Development & Presidential Regulation No. 71 of 2012 on the Implementation of Land Acquisition for Public Interest Development.