PUBLIC POLICY REGARDING LAND ACQUISITION FOR PUBLIC INTEREST BY THE GOVERNMENT

By:   Adv. Ida Bagus Made Utama, S.E., S.H., M.H, BKP., CPCLE

Land, as a commodity, is often held and managed by individuals who may not be fully willing to surrender their land to the government for the purpose of constructing a project that benefits the public interest on said land. The matter of land in relation to land acquisition for public interest between the government on behalf of the state and citizens or individuals holding property rights to land is a fascinating subject to explore. This concerns the transfer of property rights that were previously held by citizens/individuals on land to government/state property, based on the rationale that it serves the public interest, specifically the advancement of public facilities and infrastructure. In fact, the transfer of property rights to land has been regulated by law, so that all of the matters concerning the consequences of the transfer of property rights, such as: the procedures and the purpose of the transfer of property rights, the form of the losses that will be charged to Party I (government) against Party II (community/individual), is complete and legally valid.

One of these regulations is embodied in Presidential Decree No. 55 of 1993 in connection with Presidential Regulation No. 36 of 2005 and Presidential Regulation No. 65 of 2006 regarding Land Acquisition for the Implementation of Development in the Public Interest. This regulation not only serves as the implementing provision of UUPA (Undang-Undang Pokok Agraria), but it also correlates with other implementing regulations:

• Law No. 51 of 1960 prohibits the use of land without the permission of the rightful owner or their proxy.
• Law No. 20 of l961 on the Revocation of Rights to Land and the Objects Thereon.
• Law No. 26 of 2007 on Spatial Planning
• Government Regulation No. 8 of 1953 on the Control of State Lands
• Law No. 2 of 2012 on Land Acquisition for Development in the Public Interest.

Although the land sector is regulated by legislation, the implementation of it is often contradictory in practice. Ironically, the government – as the first party when applying for land rights – often goes against what is specified in the land legislation, including the original purpose of transferring land rights. As the respondents (owners of land rights), the community or individuals frequently become victims of this situation.

In the case of land, the term land is used in the legal sense of the term, which is formally limited by the UUPA. Article 4 stipulates that, based on the state’s right to control, individuals can be granted various land rights. Therefore, it is evident that, in a juridical context, “land” refers to the surface of the earth (as stated in Article 4, paragraph 1). Meanwhile, a land right refers to the right over a specific portion of the earth’s surface with two dimensions of length and width. Therefore, the term ‘pertanahan’, which derives from the prefix ‘per’ and the suffix ‘an’, pertains to activities related to the surface or land as a tax object in the field of land.

Land acquisition for development in the public interest must adhere to or embody the central policy directives outlined in Presidential Decree No. 55 of 1993, in conjunction with Presidential Regulation No. 36 of 2005 and Presidential Regulation No. 65 of 2006 regarding the acquisition of land for the purpose of advancing public interest initiatives.

The definition for land procurement is stated in Article 1, Paragraph 1 as the act of acquiring land by compensating those who are entitled to it. The procedures to be followed for land acquisition are regulated in Article 2, Paragraph 2, which involves releasing or surrendering land rights for implementation. The definition for relinquishing or surrendering land rights is detailed in Article 1, Paragraph 2. The definition of relinquishment or surrender of land rights is stated in paragraph 2 of Article 1. Namely, it is an activity to release the legal relationship between the holders of land rights by providing compensation on the basis of deliberation. Article 2, paragraph 1, also outlines the regulations for land acquisition aimed at implementing development in the public interest.

In such circumstances, our concerns are twofold: firstly, what are the legal remedies available for victims of land acquisition carried out for public interest, specifically in this case the community? Secondly, how does the government ensure legal protection for victims of land acquisition, as it is one of their policies for the public interest?

The author is a Registered Tax Consultant at the Directorate General of Taxes, Managing Partner at IBU Consulting Denpasar and Lawyer at World Prime Law Firm, and also a lecturer at many Universities in Bali.