Administrative Law Aspects in Agrarian Affairs Lecture in Sectoral Administrative Law Universitas Indonesia Law School

Legal Basis  National agrarian/ natural resources management policy is set out in the 1945 Constitution Art as follows. “Land, water and all natural resources contained therein shall be controlled by the State and used for the greatest prosperity of the People.”  The policy is based on the belief that all land and water belong to the Indonesian Nation as a Blessing from Almighty God, whose management is tasked to the State to be used for the greatest prosperity of the People.  As an implementation of this constitutional imperative, Law No. 5/1960 on Basic Rules of the Essentials of Agrarian Affairs (Basic Agrarian Law; BAL) is enacted.

Authority  State's Right to Control (BAL Art. 2.2) gives the authority to the State to (i) arrange and conduct designation, use, supply and maintenance of land, water and space; (ii) determine and regulate legal relations between people and land, water and space; and, (iii) determine and regulate legal relations between persons and legal deeds pertaining land, water and space.  The Article is an authentic interpretation of the word "dikuasai" in Art 33.3 of the 1945 Const. It is an implementation of the public aspect of Nation's Right that is tasked to the State as the Nation's highest power organization.

Institutions  Agrarian affair is essentially the authority of (central) Government, in order to ensure that the integrity of State's territory and land's function as the source of prosperity for the People as well be properly managed. (1945 Const jo. BAL 2.2)  However, its implementation may be authorized to autonomous regions and jural communities, where necessary and not contradict national interest, based on Government Regulation.

Joint-administration (medebewind)  Authorization of agrarian affairs to autonomous regions shall be in the form of medebewind. (joint administration)  Agrarian affairs, in nature and principle, is the authority of Central Government. In order to implement the State's Right to Control over land, authorization to autonomous regions, therefore, shall constitute medebewind. Everything shall be implemented according to necessities and must never contradict National Interest.  This authorization of agrarian affairs can be a source of financial income for regions.

Principles in Regional Gov’ce  With regard to regional governance, there are 3 (three) principles that govern agrarian affairs i.e.  Deconcentration, if agrarian affairs are administered by central gov't apparatus in regions.  by Ministry of Agrarian Affairs/National Agrarian Agency (Kementerian Agraria/Badan Pertanahan Nasional; BPN)  Decentralization/devolution, if agrarian affairs are delegated to regional gov'ts.  issue a general plan on reservation, allocation and use of land, water, air space and natural resources i.e. spatial planning, vide BAL Art. 14. Spatial planning inst. are Central BKTRN, Prov. BKTRP, Reg./Mun. BKTRKab/Kota.  Joint-administration, if agrarian affairs are implemented by reg. gov't apparatus.

National Agrarian Agency NameWorking AreaChairperson Badan Pertanahan Nasional (BPN) IndonesiaHead of BPN Badan Pertanahan Nasional Regional Office ProvinceHead of Regional Office Kantor Pertanahan/ Bureau of Agrarian Affairs Regency/ Municipality Head of Bureau

Administrative Acts — Regulation  (property) rights to land and apartment unit i.e. Law 5/60 BAL, 41/04 Wakaf, 1/11 Housing and Residential Areas, 20/11 Tenements/Apartments, GR 40/96 Cultivation Right, Building Right, Use Right, Min.Agra.Reg 5/99 Guidelines to Settle Ulayat Land;  land acquisition for development purposes i.e. Law 20/61 Revoc. of Rights to Land and attached Properties, 2/12 Land Acquisition for Dev’t and Public Purposes, GR 24/97 Land Registration, PR 71/12 Impl. of Land Acquisition for Dev't Purposes, Min.Agra.Reg 3/97 Impl. of GR 24/97, 2/99 Location Permit, 9/99 Proc. on Granting and Cancellation of Rights to Land, HeadBPN.Reg 5/12 Tech. GL Land Acquisition for Public Purposes, 2/13 Delegation of Granting of Right to Land and Impl. of Land Registration;  land as collateral i.e. Law 4/96 Land as Collateral, Min.Agra.Reg 3/96 SKMHT, APHT, BTHT, SHT, 4/96 SKMHT deadline to guarantee the repayment of certain credits;  landreform i.e. Law 56/60 Determination of Agricultural Land, 2/60 jo. Pres.Instr. 13/80 Sharecropping Agree. GR 224/61 jo. 41/64 Impl. of Land Division with Compensation, 4/77 Absentee Ownership by Retired Public Servants. Law 1/58 jo. 18/58 Abolition of Private Lands and Eigendom. HeadBPN.Reg 3/91 Reg. of Landreform Object Land Indep. Tenure.

Administrative Acts — Decision  Permit. Location Permit, Building Permit, Cert. of Habitability.  Decision. Pres. Decree of Right Cancellation, Decree on Land Granting (SKPH), Decree on Land Redistribution.  Certificate. Rights to Land, Mortgage, Apartment Units.

Apparatus  Agrarian Adm. Head of BPN, Head of BPN Prov. Regional Office, Head of Reg./Mun. Bureau of Agrarian Affairs.  Spatial Planning. President, Governor, Regent/ Mayor.  Housing. Min. of People's Housing.

Assets  Cent. and Loc. Gov'ts may possess lands as holders of Use Right (HP) and/or Management Right (HPL), based on Gov't Decree through Right Application.  Use Right (BAL 41-43, GR 40/ ) is for special purposes. cannot be transfered/alienated, used as collateral, burden of mortgage.  Holder of HPL is authorized to (i) plan the alloc. and use of specified land; (ii) use the land as appropriate to business impl.; (iii) transfer parts of the land to third parties with requirements as set out by the holder, that include alloc. use, terms and finances where the granting is done by authorized officials. (i) and (iii) is public authority, (ii) is private competence, as long as relevant to the purposes of the public authority.

Parts of Land Transfered to Third Parties Vide PMDN 1/77 Proc. to Apply and Complete Granting of Right to Parts of HPL Land and its Regist. jo. PMNA/KaBPN 9/99 Proc. of Granting/Cancel. of Right to HPL Land.  Parts of HPL Land may be granted to third parties with the status of Use Right, Building Right and Use Right.  Granting of right is done by authorized BPN official based on a recomm. from HPL holder, to be stipulated in Agreement on Transfer of Use and Management of Right to Land.  After the term of right to land is expired, possession of the specified land is back to the holder of HPL completely.

History of HP and HPL  Originally was beheersrecht i.e. State's Management Right, which was regulated in GR 8/53 Control over State Land pertaining to lands used by departments and autonomous regions.  After BAL, vide PMA 9/65 Conversion of Right to Lands under State Control and Subsequent Policies, Beheersrechts was converted into (i) HP, if used for gov't instances own needs as long as used; and, (ii) HPL, if there are parts of the land used by third parties as long as used. (implicitly in BAL 2.4 jo. Gen. Eluc. II.2.  HPL is not Right to Land, but State's Right to Control whose impl. is partially transfered to other parties (HPL holder). HPL therefore cannot be transferes/alienated by its holder and cannot be burdened with mortgage.