The Constitutional Court Declares That The Land Rights Period Of IKN Is 190 Unconstitutional Years

BETWEEN PHOTOS/Hafidz Mubarak A/bar

JAKARTA - The Constitutional Court stated that the period of rights to land in Law Number 21 of 2023 concerning the Capital City of the Archipelago (IKN) which can be done in two cycles is contrary to the constitution or unconstitutional.

Therefore, the Constitutional Court (MK) through Decision Number 185/PUU-XXII/2024 provides a new interpretation of the cycle of land rights (HAT) which includes rights to use (HGU), building rights (HGB), and rights to use (HP) in Article 16A paragraph (1), (2), and (3) of the IKN Law.

"Granted the petitioners' petition for part," said Chief Justice of the Constitutional Court Suhartoyo in Jakarta, Thursday, when reading the verdict on the case requested by the original Dayak Tribe, Stepanus Febyan Babaro, and a resident of Sepaku, Ronggo Warsito.

With this decision, the Constitutional Court stated that Article 16A paragraph (1) of the IKN Law is interpreted as a HAT in the form of a HGU given a maximum right of 35 years, an extension of the maximum right of 25 years, and an update of the maximum right of 35 years based on the criteria and stages of evaluation.

Prior to the inauguration of the Constitutional Court, the article regulates HAT in the form of a HGU given a maximum of 95 years through the first cycle and can be given back for one second cycle for a maximum of 95 years based on the criteria and stages of evaluation.

Then, the Constitutional Court interprets Article 16A paragraph (2) of the IKN Law as a HAT in the form of HGB given a maximum right of 30 years, an extension of the right of a maximum of 20 years, and an update of the right of a maximum of 30 years based on the criteria and stages of evaluation.

The article originally regulated HAT in the form of HGB given for a maximum period of 80 years through the first cycle and can be given back for one second cycle for a maximum of 80 years based on the criteria and stages of evaluation.

Next, the Court changed Article 16A paragraph (3) to HAT in the form of a cellphone given a maximum right of 30 years, a maximum right extension of 20 years, and a maximum rights update of 30 years based on the criteria and stages of evaluation.

Initially, the article in question states that HAT in the form of a cellphone is given for a maximum period of 80 years through the first cycle and can be given back for one second cycle for a maximum of 80 years based on the criteria and stages of evaluation.

This interpretation of the Constitutional Court has its roots in the ambiguity of Article 16A paragraph (1) of the IKN Law and its explanation. Constitutional Justice Enny Nurbaningsih explained that the norm of the article determines the HAT, in this case the HGU, as if it was given directly for 95 years.

Meanwhile, the explanation of Article 16A paragraph (1) of the IKN Law states that the provision of rights is carried out in stages, namely by granting a maximum right of 35 years, extending the right to a maximum of 25 years, and updating the right to a maximum of 35 years.

According to the Court, the discrepancy between Article 16A paragraph (1) and this part of the explanation gives rise to ambiguous norms and is likely to be misinterpreted, even though there are provisions for giving it is based on the criteria and stages of evaluation.

"Because, the problem lies in the formulation of the main norm that determines or uses the phrase through one cycle and can be given back for one second cycle, which according to the Court the meaning is the same as providing a time limit at the same time," said Enny.

Moreover, he added, Article 16A paragraph (1) of the IKN Law has determined that the period of time is 95 years for the first cycle of HGU and 95 years for the second cycle. If accumulated, the two cycles will be 190 years.

"This provision is not in line or weakens the state's position in controlling the HAT, as referred to in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia," said Enny.

The Court understands the government's efforts to increase investor attractiveness by regulating a competitive HAT period. However, this kind of special regulation should not conflict with the principles set by the constitution.

After careful observing, the Court stated that the substance of the Explanation of Article 16A paragraph (1) of the IKN Law had followed the previous Constitutional Court's decision, namely Number 21-22/PUU-V/2007. The decision relates to the testing of Law Number 25 of 2007 concerning Investment.

To realize the design of harmony between the norms of the body trunk and explanation and to create legal certainty, the provision of two cycles of HAT in Article 16A paragraph (1) of the IKN Law must be declared contrary to the 1945 Constitution of the Republic of Indonesia, as long as it is not interpreted as the provisions contained in the explanation section of the article in question.

"This means that the maximum time limit of 95 years can be obtained as long as it meets the requirements as long as it meets the criteria and stages of evaluation. Therefore, the arguments of the Petitioners who question the constitutionality of the norms of Article 16A paragraph (1) of Law 21/2023 are legally reasonable," said Enny.

Because the essence of the norm of Article 16A paragraph (1) of the IKN Law which is questioned is in principle the same as the norms of Article 16A paragraph (2) and paragraph (3), then the legal considerations of the Court regarding the unconstitutionality of the norms of these articles apply equally.