New Land Policy

The government and the House of Representatives (DPR) are soon to discuss a bill on land. This means they are preparing a new policy in the land sector.

Who the initiator was is no longer important. Reportedly aside from the desire to improve the Agrarian Law (UUPA), several new concepts seem to have been included in it. The background and its objectives are, of course, good. Academically, it must have been reviewed intensely. Therefore, we should feel confident that there is  goodwill in the move.  Which parts need attention?

Substance and policy direction

Technical aspects in the formulation of the bill must have been available. So too the aspects related to ideology, politics and governance. Even if it becomes subject to debate, it will hopefully not lead to an uproar. However, these aspects are not the main subjects of this article. Vigilance against the possibility of problems in some of the bill\'s substances and its new policy direction will be discussed here. This is simply because  the scope and its impact will not be only in the implementation of its administration and development.

One of a number of substances and the new policy direction apparently will even examine broader aspects: the life vision of the nation and state. Which substances and  new policy direction or others need to be scrutinized?

First, the changes to land rights. Originally in the 1960 Basic Agrarian Law, there are several types of rights, such as freehold title, right to use permits, right to build permits (HGB) and cultivation rights permits (HGU).  In the new concept, the types of rights have been simplified to consist only of freehold title and the right to use permit. The idea is that the HGB and the HGU will be for the right to use for buildings and the right to use for business.

Second, the introduction (perhaps precisely the formalization of recognition) of customary society (law) and control of customary land. As the executor of the right to control state land, the government can establish, under certain conditions, the existence of certain customary society (law), in certain areas, and assign certain plots of land for customary rights that are controlled by the indigenous community in question.

The three examples illustrate the new land politics determination. Aside from the desire to simplify land administration, its introduction is apparently also intended to reflect the desire to establish order based on social base settings previously known in the customary communities. However, regardless of its best intentions and objectives, what is no less important is the readiness of the elaboration of the new policy, norms and its implementation. What is highly expected is, of course, smooth implementation, the avoidance of new problems and commotion, especially for the people and businesses.

Vigilance is badly needed for the three parts! One of the causes is that thus far not clear is how the elaboration of the conception will be, including its operationalization. Take for example the issue of the simplification of land rights. For the sake of legal certainty, there will certainly be adjustments or process changes in the transformation from HGU and HGB to the right to use permit. It not only requires treatment and a period of transition, but also the administrative process to take place.

How many HGU and HGB will be converted, including the settlement of ownership claims? The readiness of administrative aspects should not be underestimated, let alone sidelined. There are, after all, many cases of evidence of ownership or land control that have thus far not been resolved in their process and certification.

For the business community based on land use, that problem is very important. For the business world, the settlement of land rights for existing businesses have not been completely finalized even though they have been in the process of settlement for years. For the business community, a matter of adjustment/transformation of the new policy will be a new process that will not be easy in terms of time, effort and cost.

When business owners feel that it is not easy to solve land disputes, how will the government be able to lure potential investors to Indonesia? The problems of funding and technology can be dealt with. However, if it deals with issues closely related to the uncertainty aspect, including land rights, they will think twice or more.

It is usual in the implementation of  changes that the types of rights will be accommodated in the long and "plastic" technique, both legally and politically.  It is usually in the form of inserted provisions that HGU and HGB have thus far existed will still be recognized. However, this way of thinking has a consequence on the existence of duplication and this condition is not good for the development of a system. Or it will possibly be given a period of transition for its adjustment, say three years or five years or more? From a regulation technical viewpoint, the last looks like a way out. However, for the state, such an approach will require hard work by the National Land Agency. It must complete the adjustments amid the rising number of land certification applications.

The prolonged political settlement of the problems will not be beneficial for the fulfillment of the political promise to redistribute land or/and property to the customary communities in general. The situation that arises will, of course, have a negative impression among potential investors.

Several uncertainties

With regard to the political promise for land redistribution, the new policy does not give clarity in at least two things. First, what are the terms and conditions of the communities to be entitled for the land "division"? Second, which land will be distributed and how to obtain it? Agrarian reform is still simply a baseline. Its success will be determined by the accuracy and prudence of the concepts in their implementation. The absence of a land redistribution program under the UUPA, which used to include land reform, shows how land redistribution issues are closely related to the social, cultural and political aspects.

For the people of Indonesia, the land is about the problem of sedumuk bathuk, senyari bumi…. The land problem is closely related to their lives. Therefore, it is not an exaggeration  to express, once again, that the readiness for the conception and its elaboration as well as the  well-prepared dissemination among the people will determine the success of the policy. It is important to avoid the impression that land redistribution as promised during the presidential election is just a technical issue to redistribute land.

Amid the unresolved differences among the ministries on the boundary maps they control/manage, care must be taken to ensure there is no emergence of problems originating from the restlessness of the business community. Especially those who do business based on land utilization. Currently, there is growing fear that the government will ultimately take the easiest way out, namely by "hunting" for land in areas where there are concessions. Fear could be ignited if in the new policy, there will be introduction of an institution in charge of taking over land that is considered to be "neglected."

There is rising fear of a possible ongoing assessment mechanism on land for timber estates and plantations, which, because the business stages have not been carried out according to schedule for the utilization of the land because of certain conditions (encroachment or unresolved determination on the borders/maps and therefore certificates for the land rights have not been settled), that their concessions could declared to be "neglected" land. This is considered problematic. The business world fears it will threaten business strategies/plans and in the long term business certainty.

Still in connection with such fears, there is the possibility that the promise to abide by traditional values will be confirmed as the underlying national land law. It is the introduction of the policy to hand over the management of customary land and land for redistribution "to be managed as customary land" to the customary communities that rapidly fuels such fears. The idealism and goal of the policy, again, is obviously good. However, in relation to all the earlier worries,  it would be wise for the government not to take a shortcut by simply taking over land that is controlled or being developed (and in dispute) to be given as customary land.

Handing over certain plots of land (including forest land) to the people or transferring  its management to customary communities will not be a problem if  it applies to land that is controlled by the state. However, it will be a different matter if the land for redistribution or to be used as customary land is land that has been allocated for business activities and for which there are concessions belonging to business entities. Whatever the reason, if in the future there is a judgment that a particular plot of the land has not been utilized properly and appropriately and is therefore classified as being neglected, so that the land is earmarked for use in the implementation of a political promise, it will be the start of escalating fears among business owners.

Vigilance against such an unfavorable situation should be evaluated wisely and not  be underestimated, given the ministry in charge of forestry does not have valid forest maps. It has not accounted for collision with maps owned by other institutions. At the same time, the condition will need attention when the Peatland Restoration Agency will sooner or later work based on a peatland map, especially in Kalimantan.

No less important is the philosophical, ideological and political anticipation against the presence of a policy in connection with the introduction of the customary communities even though it also includes the intention of "insistently and as long as it is in line with the spirit of the Unitary State of the Republic of Indonesia (NKRI)". On the one hand, the implementation of the state of the Republic of Indonesia must take place by recognizing the rights of the communities that have existed since before the establishment of the state, with the authenticity of the structure, including all the unwritten rules that apply and are the basis of their lives. As a value, their rights must be respected as far as possible, even reflected and manifested in the new norms for the state. However, on the other hand, it also has to pay attention to developing assumptions, amid the determination and effort to create a modern state, there is also a "backward pull"  because we ourselves will bring back the customary communities as new entities.

Wisdom and careful anticipation is advised in the implementation and the realization of the new policy. On the contrary, the unpreparedness in elaborating and following up is feared to lead to the policy being neglected or hindered or not even implemented.  In the eyes of the nation, the challenges of inequality, poverty and the difficult provision of job opportunities are clearly evident. With the determination and all the capabilities of being focused to make programs to overcome any problems, including to improve human resources for development financing, it will be very troublesome if we still have to struggle with a policy that is not applicable or even binds our feet and hands to move the national economy. It will even create new problems in the administration of land, social affairs, culture, politics and even the fields of security and order.

BAMBANG KESOWO

Post-Graduate School lecturer at  Law Faculty at Gajah Mada University