The implementation of UUPA over time shows a policy choice, among others, influenced by attitudes towards UUPA as a reflection of understanding of UUPA.
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The original article can be found inOn September 24, 2023, Law Number 5 of 1960 concerning the Basic Agrarian Principles or UUPA will be 63 years old. Understanding UUPA textually can lead to the conclusion that it is outdated and unreliable to accommodate the development of land law in line with developments in various life fields. A similar understanding of the UUPA can lead to a"gray" stance because it is aware and feels that the provisions of the UUPA are still applicable and necessary, but when faced with the needs of short-term policies whose legal constructs cannot be read in the formulation of the UUPA, then a shortcut is taken, namely changing the concept and/or principles of the UUPA. On the contrary, a contextual and comprehensive understanding of UUPA, from its formation process to its endorsement within a span of 12 years, encourages the stance that land policy transformation can be achieved through legal discoveries of UUPA concepts and principles without abandoning its philosophy. The legal construction of land rights or management rights on land for recreational parks, agricultural parks, and underwater areas is based on analogy or extensive interpretation of Article 4 Paragraph of the Agrarian Law.In general, land rights are known as objects that are tangible on the earth's surface, called land. The types of rights consist of ownership rights , rights to utilize , rights to build , and rights to use . In each right, provisions are made about obligations, rights, and prohibitions for the right holder. At the beginning of the construction of the Jakarta elevated road and MRT, the question was whether the underground space and above-ground space could be given land rights. The idea of granting land rights to both of these objects was already discussed at the 1991 national seminar"Land Rights in the Context of the Present and the Future" held by the UGM Law Faculty and BPN in Yogyakarta. The legal construction of land rights or management rights on land for recreational parks, agricultural parks, and underwater areas is based on analogy or extensive interpretation of Article 4 Paragraph of the Agrarian Law. In essence, the right to land provides the authority to use the relevant land, as well as the body of the earth and water, and the space above it,"as required" for purposes directly related to the use of the land within the limits of applicable laws and regulations. Having a right to land in principle has the authority to use the surface of the earth"plus" the body of the earth and water as well as the space above it with the limitation of"simply necessary" of the 1945 Constitution), the state's power is limited by the land rights"plus" possessed by the land rights holders"as needed". Beyond the authority of land rights holders, the state exercises its jurisdiction. According to the principle of horizontal separation adopted by the UUPA, outside the authority of land rights holders, whether it be underground, under water or in the airspace above the land, the state is authorized to make policies, regulate, manage, and supervise the use of RBT, RBA, and RAT, including but not limited to granting land rights or HPL for such objects. Through analogy, the land rights that can be given to RBT, RBA, and RAT are mutatis mutandis with the land rights regulated in UUPA, and to provide legal certainty for these three objects, it is necessary to prepare regulations regarding 3-dimensional land registration. Regulations on land rights or HPL in RBT and RAT are found in Government Regulation No. 18/2021 concerning Management Rights, Land Rights, Apartment Units, and Land Registration. Currently, the re-regulation of RBT, RBA, and RAT in more detail is being pursued in the draft presidential regulation. Currently, a more detailed regulation of RBT, RBA, and RAT is being pursued in the draft presidential regulation. Another example of policy transformation that adheres to principles is the granting of land rights in water, coastal, and small island areas based on UUPA. For example, granting HGU for aquaculture businesses, HGB for service/tourism businesses, HGB on the coast of Jayapura City, and granting 525 HGB certificates to Suku Bajo residents in Mola Village, Wakatobi, Southeast Sulawesi . Also the handover of 2,035 land certificates was carried out as part of the GTRA 2023 Summit, consisting of 1,275 certificates from the PTSL program, 390 certificates from land redistribution in the province of Riau, and 370 certificates for coastal communities. The legal basis for granting land rights for this object is Article 1 Paragraph and , Article 4 Paragraph and of the Agrarian Law; Minister of ATR/BPN Regulation No. 17 of 2016 and Government Regulation No. 18 of 2021. After Law No. 11 of 2020, which was updated by the Job Creation Law, granting land rights for the object requires permission. In this case, it is the conformity of marine spatial utilization activities from the Ministry of Marine Affairs and Fisheries . Through Constitutional Court Decision No. 3/PUU-VIII/2010, it was affirmed that sectoral agencies, in this case the Fisheries and Marine Affairs Ministry, cannot issue land ownership rights on objects, but are authorized to issue permits. The Court's decision also reinforces the distinction between"rights" and"permits". The granting of land ownership rights is the responsibility of the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency. The land ownership rights that can be granted on that object cover the territorial sea boundaries which are part of Indonesia's territory. After the GTRA Summit 2023, the preparation of a presidential regulation regarding the granting of rights in maritime areas, coastal areas, and small islands becomes increasingly urgent. This is to provide legal certainty to the community, including indigenous communities who utilize these objects as their living space. Formulating regulations that are not based on legal reasoning has the potential to generate legal uncertainty. Firstly, let's talk about the duration of land rights. In PP No. 18/2021, an extension and renewal of rights are regulated after the end of the land rights as an effort to simplify administration. However, in the explanation of the PP, it is emphasized that the registration of such extension and renewal of rights"is carried out gradually." This means that the extension of land rights is registered at the end of the specified term for granting land rights, and the renewal of land rights is registered at the end of the extension of land rights. Cumulatively, the term for certificate of land rights, for example 80 years, is not registered all at once. The birth of land rights occurs when the land rights are registered. At the same time, the regulations regarding the extension and renewal of land rights above HPL land on behalf of the land bank entity , according to Government Regulation Number 64 of 2021 concerning BBT, do not provide an affirmation that the registration of the extension and renewal of its land rights must be taken gradually. Thus, it can be inferred that the extension and renewal of land rights were registered together. Such a regulation not only goes against UUPA, but also violates Constitutional Court Decision Number 21-22/PUU-V/2007. In its development, Article 16A of the Draft Law on Amendments to Law Number 3 of 2022 regarding the National Capital discussed in the First Level Discussion, which was approved in a plenary meeting on October 3, 2023, relates to the formulation of the HGU time period. It was stated that HGU is granted for a maximum period of 95 years through the first cycle. Furthermore, HGU may be granted again for a second cycle with a maximum period of 95 years based on criteria and evaluation stages. Cumulatively, the tenure of HGB, for example 80 years, is not certified all at once. The birth of the land rights occurs when the right to the land is registered. In Article 16A and its explanation, there is no phrase"gradual registration of HGU in every stage of every cycle." Without this phrase, HGU is understood to be granted and before the period of granting rights expires, its extension and renewal have been directly registered, so that the entire period of HGU is 95 years. Therefore, the period of HGU in two cycles is 190 years. However, please note that the words"PBB","PKS", and"PPP" cannot be translated. Without any restrictions through those phrases, Article 16A is vulnerable to being submitted for review to the Constitutional Court due to being contradictory with Constitutional Court Decision No. 21-22/PUU-V/2007. The IKN authority is authorized to regulate the management, use, and utilization of land in accordance with the IKN spatial plan. However, regarding land regulation, it must be subject to national land law . The second example of legal argument confusion is the regulation regarding the priority rights of former land rights holders. In the repealed PP Number 40 of 1996, it was regulated that the application for extension of land rights must be submitted no later than two years before the rights expire. Please note that the forbidden words PBB, PKS, and PPP in this article should not be translated and must be kept as they are in the original language. With the enactment of Government Regulation No. 18/2021 and Ministry of Agrarian and Spatial Planning/ National Land Agency Regulation No.18/2021, requests for and renewals of land rights can be made up to two years after the expiration of the land rights. What happens if the period of granting and extending rights expires and, within a maximum of two years, there is no request for renewal of rights? The legal consequence is that the land becomes state-owned land that is reorganized in terms of its use, utilization, and ownership by the Minister of ATR for the purpose of giving priority to former rights holders in applying for the granting of rights again.The existence of this priority right has the potential to hinder the establishment of land objects for agrarian reform which originate from the revocation of land rights, because even though the land rights have expired, they must wait for two years until there is no request for extension and renewal of the rights. After two years have passed, the former state land rights can only be declared as TORA. The question is, if RA is a priority agenda, what about the existence of priority rights that are regulated in Government Regulation No. 18/2021? If land rights are granted to BBT, redistribution cannot immediately take the form of HP because the redistribution consists of granting HGB/HP on land HPL in the name of BBT and only 10 years later can it become HM status. The question is, if RA is a prioritized agenda, what about the existence of priority rights regulated in Government Regulation No. 18/2021? Two examples above show that the drafting of regulations that neglect legal reasoning has the potential to arise legal uncertainty, and even injustice.
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