Writing The Constitutional Court's Efforts To Remove Jokowi's Policy At IKN

A photo by Luthfiah VOI

JAKARTA - The Constitutional Court issued Decision Number 185/PUU-XXII/2024 to annull a number of provisions of Article 16A of Law Number 3 of 2022 as amended in Law Number 21 of 2023 concerning the State Capital (IKN) which regulates the time limit for the use of land rights (HAT).

The Constitutional Court emphasized that a number of provisions of Article 6A of the IKN Law which is the legacy of the 7th President of the Republic of Indonesia, Joko Widodo (Jokowi) contradicts the 1945 Constitution. As is known, the deadline for using HAT in the IKN Law aims to attract the maximum investment to the Nusantara Capital project in East Kalimantan. The concession scheme in the form of Cultivation Rights (HGU), Use Rights, and Building Use Rights (HGB) is given a maximum of two cycles, each of which is 95 years, so that the total can reach 190 years if it passes the evaluation in each period.

The application for a judicial review of the IKN Law was submitted by the Chairman of the West Kalimantan Dayak Customary Council, Stephanus Febyan Babaro, who questioned the potential for the meaning of HAT arrangements in the IKN region. This is because he said that the implementation of the 190-year-old HGU has the potential to cause prolonged conflicts in the future and there will often be land grabbing owned by indigenous peoples, thus causing the loss of customary rights and the loss of customary community land.

In fact, before being disallowed by the Constitutional Court, the provisions in Article 6A of the IKN Law had received sharp criticism. The Minister of National Development Planning/Head of the National Development Planning Agency (Bappenas) for the period of October 2014 August 2015, Andrinof Chaniago assessed that the government's decision to give HAT 190 years was a wrong step.

He said the government's strategy to bring investors to IKN through the provision of HGU, HGB to Hak Using with a very long period of time was considered critical. He assessed that investors would come by themselves in line with the more mature IKN development. On this basis, what should be the government's focus is how to complete the Central Government Core Area (KIPP) first.

Now, through Decision 185/2024, the Constitutional Court provides a new interpretation of the timeframe settings for the Right to Use (HGU), Building Use Rights (HGB), and Use Rights (HP). This interpretation confirms that the mechanism for using HAT must follow the stages of giving, extending, and updating, not being given at once in two cycles as stated in the IKN Law.

Stating that Article 16A paragraph (1) of Law Number 3 of 2022 concerning the State Capital [...] is contrary to the 1945 Constitution of the Republic of Indonesia and does not have conditionally binding legal force as long as it is not interpreted In the event of the rights promised [...] in the form of rights to use the business, given the rights, no later than 35 (twenty five) years; extension of rights, no later than 25 (twenty five) years; and renewal of rights, no later than 35 (twenty five) years based on the criteria and stages of evaluation," explained the Chief Justice of the Constitutional Court, Suhartoyo, quoted from the MK website, Friday, November 14.

The same verdict is also aimed at HGB and HP, each with a maximum period of 30 years for giving, 20 years for extension, and 30 years for renewal. Declare the Explanation of Article 16A paragraph (1), paragraph (2), and paragraph (3) of Law Number 3 of 2022 [...] is contrary to the 1945 Constitution of the Republic of Indonesia and does not have binding legal force, "said Suhartoyo.

Constitutional Justice Enny Nurbaningsih revealed the reasons behind the verdict. According to him, the provisions of Article 16A paragraph (1) of Law 21/2023 cause ambiguity because it states that the HGU is given through one cycle and can be given back for one second cycle, which if added up to 190 years. "So this creates ambiguous norms that are likely to be misinterpreted," he added.

This provision is considered similar to the previously canceled regulation in the Constitutional Court Decision Number 21-22/PUU-V/2007. Enny emphasized that the norm of two cycles weakens the state's position in land tenure as mandated by Article 33 paragraph (3) of the 1945 Constitution. In fact, the amendment to the IKN Law is intended to create a competitive period of HAT in order to attract investment.

He stated that special arrangements that apply only in IKN also have the potential to cause discrimination against other regions in terms of investment. Enny emphasized that the Constitutional Court still recognizes the three-stage mechanism, namely giving, extending, and updating which has been the practice of national land and has been emphasized in the previous Constitutional Court's decision.

He explained that the provision of HAT at once in two cycles is not in accordance with the periodic evaluation principles that must be carried out by the state. Therefore, the phrase about the 'first cycle' and the 'second cycle' must be canceled. This means that the maximum time limit of 95 years in question can be obtained as long as it meets the requirements as long as it meets the criteria and stages of evaluation," continued Enny.

With the new meaning, the Explanation of Article 16A paragraph (1) of Law 21/2023 is declared no longer necessary and automatically does not apply. In the context of investment, Enny assessed that the correct reference is Law 25/2007 on Investment which has been interpreted by the Constitutional Court. This provision underscores that the extension or renewal of rights must go through an evaluation of the use of land.

Regulations that provide easy investment must remain in line with the constitution and not weaken the state's position. The Substance of Explanation of Article 16A paragraph (1) of Law 21/2023 and the practice applied in the provision of HGU must follow the Constitutional Court Decision Number 21-22/PUU-V/2007," said Enny.

Momentum Pembentukan BPRA

Meanwhile, the government of the era of President Prabowo Subianto, through the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (ATR/BPN), Nusron Wahid promised the government to comply with the Constitutional Court's Decision 185/2024. This is because the government considers that the decision actually strengthens the legal provisions regarding HAT regulations and will not hinder investors in IKN.

He revealed that the Ministry of ATR/BPN together with the IKN Authority and related ministries will immediately coordinate for the alignment of technical regulations, so that the implementation in the field runs according to the provisions of the Constitutional Court.

The Constitutional Court's decision actually strengthens the state's position, as well as provides legal certainty for IKN investment and development. This is also in line with President Prabowo Subianto's policy direction which emphasizes the development of IKN which is fair, transparent, modern, and remains based on the constitution," said Nusron.

Member of Commission II of the Indonesian House of Representatives, Indrajaya, also welcomed the Constitutional Court's decision which cut the validity period of HAT at IKN from 190 years to 95 years. He said the decision emphasized the importance of justice in land management in national strategic areas.

"We welcome the Constitutional Court's decision which aims to increase legal certainty and justice in land management at IKN. However, it is also necessary to consider the impact of this decision on investment and development in IKN. This Constitutional Court decision must be followed immediately by the preparation of clear and transparent derivative regulations," he said.

On the other hand, the Head of the Great Institute Political Decree, Hanief Adrian, assessed that the Constitutional Court's Decision 185/2024 should be a momentum for President Prabowo Subianto to immediately realize the formation of the Agrarian Reform Implementing Agency (BPRA) which was previously proposed by the Deputy Speaker of the DPR, Sufmi Dasco Ahmad.

According to him, BPRA can become an effective institution in realizing three things, first, all regulations related to land control, including the SBY-era Investment Law, the Job Creation Law and the Jokowi-era IKN Law, must be adjusted to the 1945 Constitution Articles 33 paragraphs 1, 2 and 3, as well as the Agrarian Principles Law.

"If it cannot be adjusted, then it should be canceled in its entirety. There should no longer be regulations that allow the application of the principle of 'state land'. So there is only one main rule regarding the management of land rights," he said.

Second, all state administrators related to land tenure, as well as state-owned and private companies that have HGU, need to be evaluated. Land owned by state officials, state companies and private companies in abandoned status need to be used as land for agrarian reform objects (TORA), to then be handed over to the people, especially indigenous peoples for them to manage in order to achieve justice and prosperity.

Third, BPRA needs to have a Firm Interpretation Deputy who determines exactly and carefully about who is entitled to land to end a prolonged agrarian conflict. Instead of being resolved by a general justice mechanism whose judges do not necessarily understand the basic principles of Agrarian Reform, it is better to leave it to the Government through the Deputy for Taxive Firmness of BPRA.

"So, if there is a land conflict between small people and big businessmen, the government will quickly resolve it. Don't let it happen because big people like Jusuf Kalla who are vice presidents of the SBY and Jokowi era have the land taken by the general and the case goes viral, then the public will pay attention," concluded Hanief.