View of Land Management Rights Before and After the Government Regulation in Lieu of Job Creation Law

Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.

http://jurnal.fh.unila.ac.id/index.php/aelr P-ISSN: 2723-2484

E-ISSN: 2745-9330

Land Management Rights Before and After the Government Regulation in Lieu of Job Creation Law

Penta Peturun¹

1Ikatan Advokat Indonesia (IKADIN) Lampung, Indonesia E-mail: penta.peturun@gmail.com

Article’s Information Abstract

keywords:

Government Regulation in Lieu of Job Creation, Land, Land Management Rights, State Control Rights.

DOI :

https://doi.org/10.25041/aelr.v4i1.2947

There are regulations regarding land management rights (HPL) in Law Number 11 of 2020 concerning Job Creation in Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation.

The background is the birth of the Investment policy made by President Joko Widodo's Government. HPL is regulated separately as a “right”, whereas in the Basic Regulations on Agrarian Principles (UUPA) which is the source of law, there is no mention of

“rights”. Related to the authority of the State's Right to Control (HMN). The Government Regulation transfers HPL as a whole to certain parties. There should be a role for regulators and operators participating in planning, implementation and supervision. Therefore, there must be clarity on the position of the authority “controlled by the state” for HMN constitutionally against HPL in Government Regulations that refer to the constitution. In a normative legal approach, Article 33 of the 1945 Constitution mandates the state to conduct beleid, bestuursdaad, regelendaad, beheersdaad, tezichthoudensdaad. Philosophically, the government functions as a regulator and operator. As an operator, the Government carries out its duties as a coach and supervisor by directly implementing activities. This is confirmed in the Decision of the Constitutional Court of the Republic of Indonesia Number 001-21-22-PUUI 2003 on HMN. Suppose HPL in the Government Regulation is released. In that case, it is not much different from embracing the concept of nachtwachternstaat Submitted: Mar 07, 2023; Reviewed: Mar 20, 2023; Accepted: Mar 28, 2023

or night watchman state, not the principle of welvaarstaat which fully utilizes the control of wealth sources for the greatest prosperity of the people. As it should be, HPL in HMN can provide direction for law enforcers and stakeholders with a role and authority in the land acquisition process.

A. Introduction

The principle of the rule of law is the “principle of legality”. “The Indonesian state is based on the law (rechtstaat), not based on mere power (machtstaat)”. Indonesia is a constitutional state aiming to realize general welfare and form a just and prosperous society based on Pancasila (a rule of law and a welfare state).¹ The basis for acquiring this authority in State Administrative Law is “attribution”.² The purpose of the State is for the general welfare. The state is seen as only a tool to achieve the common goal of prosperity and social justice for all people. The concept of a welfare state, according to Bagir Manan, is a state or government that is not solely a guard for security or public order but also the main bearer of responsibility in realizing social justice, general welfare, and the greatest prosperity of the people. In line with Bagir Manan's opinion, Sjahran Basah believes that the government's goals are not solely in the field of government but also must carry out social welfare to achieve the State's goals through national development.³

As emphasized in the preamble of the 1945 Constitution paragraph four. State control over natural resources (SDA) gains legitimacy based on Article 33, paragraph (3) of the 1945 Constitution. Orders from the constitution, the state makes land, water and natural resources contained therein as State Controlling Rights (HMN). It is used for the most incredible realization of the prosperity of all Indonesian people. Realization of the implementation of HMN on natural resources, contained in Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles (UUPA). Aims to ensure legal certainty, benefit and justice. By not ignoring the elements that rely on religious law, said the mandate. HMN is regulated in article 2 of the UUPA. For the sake of achieving the functions of earth, water and space, including the wealth contained therein. The state, as an organization of power for all the people has an HMN which is authorized to:⁴

1. Regulate and administer the allotment, use, supply and maintenance of earth, water and space;

2. Determine and regulate legal relations between people and earth, water and space and;

3. Determine and regulate legal relations between people and legal actions concerning earth, water and space.⁵

The authority that originates from the right to control must be used to achieve the greatest prosperity for the people. In the sense of nationality, the welfare and independence of the people and the legal state of Indonesia which is independent, sovereign, just and prosperous (Article 2 Paragraph (2) and (3) of the UUPA). To achieve the goal of the need for land use planning, emphasized in Articles 14 and 15 of the UUPA. Article 14 stipulates that the

1 CST Kansil dan Christine ST Kansil, Hukum Tata Negara Republik Indonesia (1), Jakarta: Rineka Cipta, (1997), hlm. 20.

2 Ridwan HR, Hukum Administrasi Negara, Jakarta, Raja Grafindo Persada, , (2008), hlm. 104.

3 Ida Nurlinda, Prinsip-prinsip Pembaruan Agraria, Perspektif Hukum, Jakarta: Rajawali Pers, (2009), hlm. 14-18.

4 Wardhani, Dwi Kusumo. “Disharmoni Antara RUU Cipta Kerja Bab Pertanahan Dengan Prinsip-Prinsip UU Nomor 5 Tahun 1960 Tentang Peraturan Dasar Pokok-Pokok Agraria (UUPA)”. Jurnal Komunikasi Hukum (JKH) Vol. 6, No. 2 (2020): 440-455.

5 Hermawan., Dedy, Yusdianto, Purba Darmawan., Konfik Lahan Perkebunan:Mengungkap Perjuangan Rakyat Melawan Kooptasi Tanah HGU Sugar Group Companies, Integensia Media, (2017), hlm. 15

Government makes a general plan regarding the supply, allotment and use of earth, water, space and natural resources for the purposes of:⁶

1. of a political nature, for example government interests such as the location of defense offices, and others;

2. of an economic nature, for example land for the development of agriculture, livestock, defense, plantations, industry, mining, forestry transmigration and others;

3. social and religious, for example, land for worship, education, recreation, etc.⁷

In the UUPA which in Article 2 paragraph (1) states that “Based on the provisions of Article 33 paragraph (2) of the 1945 Constitution and the matters referred to in Article 1, earth, water and space including the natural wealth contained therein shall the highest level is controlled by the state”. Called HMN, it is an instrument that is used for the prosperity of the people, which is the goal (objectives). HMN in the Decision of the Constitutional Court of the Republic of Indonesia 001-021-022 PUU-I 2003 (in the petition for review of Law Number 20 of 2002 concerning Electricity) as follows: “Considering that based on the series of opinions and descriptions above, it is thus, the word “controlled by the state” must be interpreted to include the meaning of control by the state in a broad sense that originates from and originates from the conception of the sovereignty of the Indonesian people over all sources of wealth “earth and water and the natural resources contained therein”, including the notion of public ownership, by the collectivity of the people over the said sources of wealth.

The need for land is not only for individual human beings but also for the state/government and private investment. The people collectively, constructed by the 1945 Constitution, gives a mandate to the state to carry out policies (beleid) and management actions (bestuursdaad), regulation (regelendaad), management (beheersdaad) and supervision (toezichthoudensdaad) for the greatest possible goal of people's prosperity. The management function (bestuursdaad) by the state is carried out by the government with authority to issue and revoke permits (vergunning), licenses (licentie), and concessions (concessie). In principle, the land is a very important facility in implementing development.

Therefore, the position of the land, which is important, is often not balanced with efforts to overcome various problems that arise in the land sector. Undeniably, unrest in the land sector has had a negative impact on the social sector and the political and economic fields.

This often clashes between the needs of the people/individuals and the needs of the state/government and private investment in fulfilling development activities. Considering that the land the government will require is already owned or controlled by the people, the government, in fulfilling development activities to obtain land, is pursued land acquisition.⁸ This situation prompted the birth of the People's Consultative Assembly (MPR) Decree Number IV/MPR/1978 stipulates that development in the land sector is directed at reorganizing land use, control and ownership. Based on MPR Decree Number IV/MPR/1978, the President issued a policy in the land sector known as Orderly Catur in the Land Sector as contained in Presidential Decree (Keppres) Number 7 of 1979. This Orderly Land Chess includes:

1. Orderly land law.

2. Orderly administration of land.

6Sari, Ni Luh Ariningsih. “Konsep Hak Menguasai Negara Terhadap Tanah Dalam Hukum Tanah (UUPA) Dan Konstitusi”.

Ganec Swara Vol. 15, No. 1 (2021): 991-998.

7Sumarja, FX., Hukum Tata Guna Tanah di Indonesia, Univesitas Lampung, (2008), hlm. 2

8 Sumarja, FX., “Larangan Pengasingan Tanah dan Peluang Investasi Asing di Indonesia”, Media Hukum, Vol. 21, No. 1 Juni 2014, hlm. 138-150.

3. Orderly land use.

4. Orderly maintenance of land and environment.⁹

Seeing the condition of HMN and its arrangements for public and private interests in the sustainability of natural resources and the environmental sector. Where environmental events and phenomena occur in parts of the world at the international, regional and national levels to respond to policies for the future. Based on the conception and theory of facing the challenges of environmental and ecosystem sustainability. The basic concept of environmental policy is the state or government policy in the environmental sector.¹⁰ As part of the goal for order in land affairs which is called Catur Orderly Land.

The focus of this paper is to look at the emergence of HPL, which is used in various applicable laws and regulations. Associated with HMN based on the rules that have been in force. The term HPL is not explicitly contained in the UUPA. However, there is only general explanation II number 2 where the term “management” reads in full: “the state in the form of giving such land to a person or legal entity with a right according to its designation and needs, for example, property rights (HM), usufructuary rights (HGU), Right to Use (HP) or give it in management to a governing body to be used for the implementation of their respective tasks”

Definition of Management Right according to experts;

1. According to Maria S.W Sumardjono, management rights are state control rights whose implementation authority is partially delegated to the rights holders.¹¹

2. Budi Harsono said that the Management Right is the epitome of the state's right to control.

3. R. Atang Ranoemiharja Management rights are land rights controlled by the state and can only be granted to legal entities or regional governments.

The legal basis for HPL for land is not explicitly stated in the UUPA, and its existence is an interpretation of the provisions of Article 2 Paragraph (2) and Article 2 Paragraph (4) of the UUPA, the right to control from the state. The first regulation was found in the Regulation of the Minister of Agrarian Affairs Number 9 of 1965 concerning the Implementation of Conversion of Tenure Rights over State Land and Subsequent Policy Provisions (PMA 9/1965), which continues to be controversial regarding the issue of HPL. Controversy also continues in Government Regulations (PP) 40/1996 concerning HGU, HGB, and HP on Land, Government Regulation 41/1996 concerning Ownership of Residential Houses or Residential by Foreigners. Right-to-use can stand on HPL land, while foreigners can own houses on HPL land. However, it is not regulated whether foreigners may own a house with usufructuary rights above the HPL.

In the rules concerning the implementation of the conversion of tenure rights over state land in the Minister of Agrarian Regulation Number 9 of 1999 concerning Procedures for Granting and Canceling State Land Rights and Management Rights (PMA 9/1999) concerning procedures for granting and canceling rights to state land and its management.¹² The authority of HPL holders based on (Permendagri 1/1977) states that the holders of management rights are; (1) planning the allotment and use of the land in question; (2) using the land to carry out its business; (3) surrendering parts of the land to a third party according to conditions determined by the company holding the right. The first appearance of HPL was from Article 1 and Article 2, PMA 9/1965;

9 Sumarja, FX., Hukum Tata Guna Tanah di Indonesia, Univesitas Lampung, (2008), hlm. 46

10 Akib .Muhammad., Teori dan Konsep Dalam Pengembangan Hukum Lingkungan, FH-MIH Unila. Lampung, 2021, hlm 7.

11Sumardjono, Maria SW, Tanah Dalam Perspektif Hak Ekonomi, Sosial Dan Budaya, Jakarta: Kompas, (2009), hlm. 213

12 Sadono, Bambang, Politisasi Hak Pengelolaan (HPL) Dalam Sistem Hukum Pertanahan Nasional, (MMH, Jilid 39. No.

4), (2010), hlm. 373

1. If the control of state land rights is given to the departments of the directorates and autonomous areas only used for the agency itself, it is converted into usufructuary rights.

2. If control over state land rights is used for the agency's benefit and can also be given to a third party, the said right of ownership becomes HPL.

Then the problem is that HPL is not explicitly stated in the BAL. The provisions of Article 2 paragraph (1) of the UUPA state that “Based on the provisions of Article 33 paragraph (2) of the 1945 Constitution and the matters referred to in Article 1, earth, water and space including the natural wealth contained therein are at the highest level controlled by the state”. That is, this right is an interpretation or interpretation of the provisions of Article 2, paragraph (2) and paragraph (4) of the UUPA, namely the right to control from the state.

Even so, in General Explanation II number 2, there is the term “management” in full which reads: “the state in the form of giving such land to a person or legal entity with a right according to its designation and needs, for example, Property Rights (HM), Cultivation Rights (HGU). Right to Use (HP) or give it in management to a governing body to implement their respective tasks. Even so, the HPL in the UUPA determines the types of land rights that are not closed, meaning that the UUPA still opens up opportunities for additional land rights other than those specified in Article 16, paragraph (1). This can be known implicitly from Article 16, paragraph (1) letter h of the UUPA which basically states that other rights will be determined by law. Then the emergence of the HPL was contained in Law Number 11 of 2020 concerning Job Creation (Job Creation Law), which had a background in the birth of an investment policy. The emergence of Management Rights in the Government Regulation in Lieu of Job Creation is regulated separately as a “right”, even though in the UUPA which is the main clause, there is no mention of “rights”.

In Paragraph 2, concerning Strengthening HPL, Article 136 of the Government Regulation in Lieu of Job Creation states, “Management rights are the control rights of the state whose implementation authority is partly delegated to the rights holders”. The sentence of the article is a repetition of the HMN. The word management related to HMN has been determined by the Constitutional Court Decision Number 001-021-022/PUU-1/2003 which states that HMN means regulatory, management, management and supervision policies referring to Article 33 Paragraph (3) of the 1945 Constitution and does not mean the State owns the land. More specifically, the management function (beheersdaad) is carried out through a share-holding mechanism and/or through direct involvement in the management of State-owned enterprises (BUMN) or State Owned Legal Entity (BHMN) as an institutional instrument through which the state. The government utilizes its control over these sources of wealth to be used for the greatest prosperity of the people. ¹³

The impact of HPL uncertainty is that many disputes and cases regarding HGB over HPL reach court. This is due to the first because the developer is not transparent in selling the building, which is a collaboration between the developer and the right holder, in this case, the HPL. And the second legal issue is the disagreement with the new rental price after the expiration of the land rights which are considered too expensive or above the Selling Value of Tax Objects (NJOP).¹⁴ Therefore, there must be clarity on the position of authority “controlled by the state” for HMN constitutionally against HPL in the Government Regulation in Lieu of Job Creation referring to the constitution. The 1945 Constitution provides a mandate for the

13Pangidoan, Daniel, Wira Franciska, and Putra Hutomo. “Analisis Yuridis Dalam Penyelesaian Sengketa Sertipikat Ganda Hak Atas Tanah Di Pengadilan Negeri”. Seikat: Jurnal Ilmu Sosial, Politik dan Hukum Vol. 1, No. 2 (2022): 105-119.

14 Ana Silviana, “Pemanfaatan Tanah Diatas Hak Pengelolaan Antar Regulasi dan Implemntasi”, Diponegoro Private Law Review Vol. 1, No. 1, (2017), hlm. 43

state to beleid, bestuursdaad, regelendaad, beheersdaad, toezichthoudensdaad. In accordance with the constitutional system based on Article 33 of the 1945 Constitution.

Philosophically it can be interpreted that the Government carries out its functions as a ruler (regulator) and entrepreneur (operator). As the operator, the Government carries out its duties as supervisor and supervisor as the direct executor of the activity. In addition to the social function of land, landowners in utilizing their land may not solely prioritize their personal interests. Still, they must also comply with the law and pay attention to the interests of the community or the public interest.¹⁵ State control to protect agricultural land is important to prevent the conversion of its function to non-agriculture.

Transfer of functions occurs due to the pressing need for land for other purposes such as industry, housing, infrastructure development, etc.¹⁶ Suppose the HPL in the Government Regulation in Lieu of Job Creation is released, then in the administration of the state. In that case, it is not much different from a country that adheres to the conception of a nachtwachternstaat state or a night watchman state, not with the welfarestaat principle which utilizes its control over the sources of wealth to be used for the greatest prosperity of the people.¹⁷ HPL is a tool to exercise public authority for government agencies.¹⁸ In later developments, land regulations provide an opportunity for a shift in the character of management rights to the civil aspect.¹⁹ HPL seems to be the same as other land rights.

Especially when HPL land is also issued a certificate. This is different from the original purpose of the existence of the Management Rights. In order to answer the problems in this article, normative juridical and empirical juridical methods are used through reviewing court decisions and observing the public. The data in this article were collected through literature studies, case studies, document studies and interviews with informants.²⁰

The novelty of this research will contribute to the Land Management Rights (HPL) regulated before and after the Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation. This article will provide an overview of the clarity, position, and authority of

“controlled by the state” constitutionally against Land Management Rights (HPL) in Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation that refers to the constitution. Land Management Rights (HPL) in the Right to Control by the State (HMN) can provide direction for law enforcers and stakeholders with a role and authority in the land acquisition process.

B. Discussion

1. The Right to Control the State in the Conception of Management Rights in the Government Regulation in Lieu of Job Creation

The process of making UUPA from the beginning was very participatory. This can be seen from the people's and the government's parallel desire to enact national agrarian law since independence, resulting in a very aspirational relationship.²¹ But if we look at October 5,

15Nizammudin, Nizammudin. “Hak Menguasai Negara Dalam Sistem Tata Kelola Minyak Dan Gas Bumi: Analisis Putusan Mahkamah Konstitusi Nomor 36/PUU-X/2012”. Jurnal Hukum dan Peradilan Vol. 5, No. 3 (2016): 407-430.

16Sumardjono, M, Tanah dalam Perspektif Hak Ekonomi, Sosial dan Budaya. Jakarta: Kompas, . (2008).

17 Widodo, W., “Kajian Hukum terhadap Praktik Penyimpangan Hak Pengelolaan”. Dalam: Arena Hukum Vol. 23, No. 7, (2004): 89-99,

18 Kurniati, N. dkk., Laporan Akhir Tim Pengkajian Hukum tentang Pengelolaan Tanah Negara bagi Kesejahteraan Rakyat.

Jakarta: BPHN. (2012).

19 Kusumawati, Mustika Prabaningrum, Penyusutan Lahan Pertanian dan UU Ciptaker, Https//Penyusutan Lahan Pertanian dan UU Ciptaker – KRJOGJA, diakses 1 September 2022.

20Herlambang P. Wiratraman, “The Challenges of Teaching Comparative Law and Socio-Legal Studies at Indonesia’s Law Schools,” Asian Journal of Comparative Law 14, no. S1 (2019): S229–44, https://doi.org/10.1017/ASJCL.2019.15.

21FX.Sumarja, Hukum Agraria Nasional Sebagai Produk Politik Berbasiskan Nilai-nilai Pancasila, (Masalah-Masalah Hukum, Jilid.41 No.4). Fakultas Hukum Univeritas Diponegoro Semarang, (2012), Hlm. 526

2020, it was an important moment for the birth of Law Number 11 of 2020 concerning Job Creation which the Indonesian Parliament passed. It can reflect the birth of a participatory UUPA, which is very different from the birth of the Job Creation Law. 11 discussion clusters impact 73 other sectoral laws. Overall, the law which was drafted using the omnibus law method, consists of 15 chapters and 174 articles. The idea for this law to be born came from President Joko Widodo in 2019, based on the passion for simplifying and reducing barriers to investment in Indonesia.

To pursue Indonesia to become a developed country at 100 in 2045, namely the vision of Indonesia Gold, regulation of the land sector in Chapter VIII Part Four (Articles 125-147). In Article 126 (1), the land bank agency guarantees the availability of land in the framework of a just economy for²² a) Public interest; b) Social interests; c) National development interests; d) Economic equity; e) Land consolidation; and f) Agrarian reform. In paragraph (2), the availability of land for agrarian reform, as referred to in paragraph (1) letter f, is at least 30%

(thirty percent) of state land allocated for Agrarian Reform. In particular, the mention of Agrarian Reform as one of the goals of the Land Bank. Then the Constitutional Court (MK) sued the Job Creation Law and granted part of the request for a formal test.

The Panel of Constitutional Justices emphasized that the Job Creation Law was formally flawed. For this reason, the Court stated that the Job Creation Law was conditionally unconstitutional. Thus Decision Number 91/PUU-XVIII/2020 was read out in the decision hearing, which was held on (25/11/2021). The formation of the Job Creation Law is contrary to the 1945 Constitution and does not have conditionally binding legal force as long as it is not interpreted. Declare that the Job Creation Law will remain in effect until repairs are made in accordance with the time limit specified in the decision. The court orders the legislators to make improvements within a maximum period of 2 (two) years after the decision is pronounced. If improvements are not made within this time limit, the Job Creation Law will be declared permanently unconstitutional. In response to the Constitutional Court's decision, the Government officially issued Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation on December 30, 2022. In his statement at the Presidential Office, Jakarta, Coordinating Minister for Economic Affairs Airlangga Hartarto said that the issuance of The Government Regulation in Lieu of Job Creation is based on several urgent reasons, such as anticipation of global economic conditions.

Studying the Government Regulation in Lieu of Job Creation in Paragraph 2 concerning Strengthening Management Rights is interesting. Article 136 states, "Management rights are the right to control from the state whose implementation authority is partly delegated to the rights holders”. The sentence of the article is a repetition of the State's Controlling Rights.

The emergence of Management Rights in the Government Regulation in Lieu of Job Creation is regulated separately as a “right”, even though in the UUPA which is the main clause, there is no mention of “rights”. The General Explanation section does not mention the term

“management rights” but “management”. The word non-rights management related to HMN has been stipulated by the Constitutional Court Decision Number 001-021-022/PUU-1/2003 that HMN means regulation, management, management and supervision policy which refers to Article 33 Paragraph 3 and does not mean that the State owns the land. In practice, management rights are now a new type of right. The HPL in the Government Regulation in Lieu of Job Creation with the background of its birth is Investment.

22Arnowo, Hadi. “Peran Bank Tanah Dalam Pengaturan Penyediaan Tanah”. Jurnal Inovasi Penelitian Vol. 2, No. 9 (2022):

3077-3088.

Regardless of the mandate from the preamble of the Government Regulation in Lieu of Job Creation which includes the Decree of the People's Consultative Assembly of the Republic of Indonesia Number IX/MPR/2001 concerning Agrarian Reform and Natural Resources Management (MPR TAP. No. IX/MPR/2001. The preamble of the Government Regulation in Lieu of Job Creation includes MPR TAP. No. IX/MPR/2001 did not include the decision of the TAP MPR because it was oriented towards investments with “management rights”. Inter-sectoral in realizing laws and regulations based on the principles of upholding human rights developing transparency and optimizing people's participation to accommodate diversity in legal unification, prospering the people, realizing social justice in using, utilizing and maintaining natural resources the people in constitutionalism.

Article 136 of the Government Regulation in Lieu of Job Creation states that management rights are related to HMN, but this contradicts what has been stipulated by the Constitutional Court Decision Number 001-021-022/PUU-1/2003 which basically states that HMN means regulatory, management, management and supervision policies that refer to the 1945 Constitution Article 33 Paragraph (3) and does not mean that the State owns the land.

The management function (beheersdaad) is carried out through a share-holding mechanism and/or through direct involvement in managing State-Owned Enterprises or State-Owned Legal Entities as institutional instruments through which the state. The government utilizes its control over these sources of wealth to be used for the greatest prosperity of the people.

Government Regulation in Lieu of Job Creation using HPL is attached with a new right without looking at the basis of constitutionalism as every rule is part of the concept of popular sovereignty which is formulated in the constitution as a form of constitutional democracy.

The opposite of the concept of absolutism, where the authorities make the interpretation, making and implementation of law without involving the owner of the mandate, namely the people. The word management should be related to HMN, it has been determined by the Constitutional Court Decision No.001-021-022/PUU-1/2003 that HMN means regulation, management, management and supervision policy which refers to Article 33 Paragraph (3) and does not mean the own State land. The word “controlled by the state” must be interpreted to include the meaning of control by the state in a broad sense, which originates from the conception of the sovereignty of the Indonesian people. On all sources of wealth “earth and water and the natural wealth contained therein”, including the notion of public ownership by the collectivity of the people. Based on these sources of wealth, the people are collectively constructed by the 1945 Constitution, which gives a mandate to the state to carry out policies (beleid) and management actions (bestuursdaad), regulation (regelendaad), management (beheersdaad) and supervision (toezichthoudensdaad) for the greatest possible purpose people's prosperity.

The management function (bestuursdaad) by the state is carried out by the government with authority to issue and revoke permits (vergunning), licenses (licentie), and concessions (concessie). The regulatory function by the state (regelendaad) is carried out through legislative authority by the Legislative Assembly (DPR) together with the Government and regulation by the Government (executive). The management function (beheersdaad) is carried out through a share-holding mechanism and/or through direct involvement in managing State- Owned Enterprises or State-Owned Legal Entities as institutional instruments through which the state. The government utilizes its control over these sources of wealth to be used for the greatest prosperity of the people. Likewise, the state carries out the function of supervision by the state (toezichthoudensdaad). The government in the framework of supervising and controlling so that the implementation of control by the state over important production

branches and/or those which affect the livelihood of the people at large is carried out for the greatest possible prosperity of all the people.²³

The concept of sovereignty gave birth to a rule-of-law state with a constitution in a country that is the highest law in a country. The sovereignty of the people, constitutionalism, and the rule of law (state of law) then gave birth to what is known as the rule of law based on constitutional democracy or constitutional democracy. In the Indonesian constitution, it is spelled out in HMN, inseparable from the term “authority”, describing an authority to carry out government functions. That is the right derived from the people's mandate to exercise power to make decisions to govern and delegate responsibility to parties that do not violate the constitution, with “authority” that has the support or recognition from the community.

With authority, it is called formal law which binds the rules relating to the acquisition and use of government authorities by public law subjects in public law relations. In the opinion of Hadjon, Philipus M, authority consists of at least three components, influence, legal basis, and legal conformity.²⁴ The influence component is that the use of authority is intended to control the behavior of legal subjects, the legal basis component is that the authority must be designated as a legal basis, and the legal conformity component contains a standard of authority, namely legal standards (all types of authority) and special standards (for certain types of authority).²⁵

The right to control from the state is interpreted as a duty of authority in the field of public law from the Republic of Indonesia insofar as it concerns land, including a) regulation and implementation of its allocation, use, supply and maintenance; b) determination and regulation of legal relations between people and land; and c) determination and regulation of legal relations between people and legal actions concerning land. The transfer of authority is intended so that the community participates in administering the government, especially in the regions. It is also connected with the policy of decentralization of the state of society, especially maturity in politics so that the government will grow and develop according to the legal politics of society. Regional government authority is carried out democratically, including the authority to make local regulations (zelfwetgeving) and government administration (zelfbestuur).²⁶

From various conceptions of the state, Indonesia is in the concept of a rule of law which is actively/dynamically adhered to in the 1945 Constitution. The rule of law model with the principle of an active welfare state is oriented towards fulfilling and realizing people's welfare. Not the concepts and principles of a night guard state or nachtwachternstaat.

Establishing the Indonesian state is inherent in the characteristics of the rule of law in accordance with its goals. Protecting all nations and all of Indonesia's bloodshed; Promoting the general welfare; intellectual life of the nation; and participating in maintaining world order based on freedom, eternal peace and social justice.²⁷

The definition of “controlled by the State” in Article 33 of The 1945 Constitution of the Republic of Indonesia( UUD 1945), according to Prof. Dr. Mr. Soepomo, the architect of the 1945 Constitution, writes in one of his books that the definition of “controlled” is as follows:

“including the notion of regulating and/or organizing especially to improve and consider

23Putusan MKRI 001-21-22-PUUI 2003, Tentang Hak Menguasai Negara (HMN), Dalam Permohonan Pengujian Undang- undang Nomor 20 Tahun 2002 Tentang Ketenaga Listrikan., hlm. 332

24 Hadjon, Philipus M. Penataan Hukum Administrasi. Fakultas Hukum Unair : Surabaya., (1997), Hlm. 2

25 Rudy, Konstitusionalisme Indonesia, buku 1 DASAR DAN TEORI, Pusat Kajian Konstitusi dan Peraturan Perundang- Undangan (PKKPUU) Fakultas Hukum Universitas Lampung Cetakan Pertama, Agustus 2013. hlm. 4-8

26 M. Laica Marzuki, 1999, Hukum dan Pembangunan Daerah Otonom, Makasar: Kertas kerja, PSKMP – LPPM Unhas, hlm. 12.

27 Ridlwan..Zulkarnain, “Negara Hukum Indonesia Kebalikan Nachtwachterstaat”, Fiat Justitia Jurnal Ilmu Hukum Volume 5 No. 2 Mei-Agustus 2012, Hlm. 150

production”; Likewise Dr. Mohammad Hatta, the founding fathers of the State of Indonesia, who is also an Indonesian economic leader, the first former Vice President and one of the 1945 Constitution, stated: “The government is building from above, carrying out big things such as building electricity, supplying drinking water, organizing various kinds of production who dominate the lives of many people”.

The Government manages public utilities. The ownership of these large companies is best in the hands of the Government” (Writing by Dr. Mohammad Hatta in the 1977 issue of the 1977 Gema Magazine, with the title: “Implementation of the 1945 Constitution Article 33”;

again referring to the thoughts of Mohammad Hatta, stating about the notion of being controlled by the state as follows, “The ideals embedded in Article 33 of the 1945 Constitution are that the Government carries out as much production as possible with the assistance of foreign loan capital. If this strategy doesn't work, it is also necessary to give opportunities to foreign entrepreneurs to invest in Indonesia under conditions determined by the Government”.²⁸

That's how we used to think about carrying out economic development based on Article 33 of the 1945 Constitution. If the national manpower and national capital are insufficient, borrow foreign manpower and foreign capital to expedite production. If foreign nations are unwilling to lend their capital, they are allowed to invest in our homeland with conditions determined by the Government of Indonesia itself. The Seminar adopted the interpretation of Dr. Mohammad Hatta on the Explanation of Article 33 of the 1945 Constitution in 1977 in Jakarta which stated that the state business sector is to manage paragraph (2) and paragraph (3) of Article 33 of the 1945 Constitution and in the field of financing, state companies are financed by the Government, if The government does not have enough funds to finance it, can make loans from within and outside the country. It can be held jointly with foreign capital based on production sharing if it is still insufficient.²⁹

The discussion here is that the legal issues highlighted in implementing Management Rights are a shift in purpose. HPL no longer manifests as the implementation of public authority and services for the community but is more of a civil matter emphasizing fulfilling the economic interests of the implementing agency. Because of that, returning the HPL to its original purpose is the same message voiced by these two academic text documents. Despite contributing to a shift in the objective of granting management rights in terms of the subject of the rights and the temporary nature of the transfer of rights to third parties, Minister of Agrarian Regulation Number 5 of 1974 needs to be appreciated in terms of determining the criteria for the location of the lands that can be given to the company. In Article 7, paragraph (3), it is stated that the location must meet the following requirements:³⁰

1. Avoid reducing the area of fertile agricultural land.

2. Utilizing land that was previously unproductive or unproductive.

3. Avoiding the displacement of residents from their residences.

4. Pay attention to the requirements to prevent environmental contamination/pollution.³¹ Although location determination criteria are mentioned above, they are not much respected in practice. As a result, problems related to community rights have not been resolved. As a form of sustainable food agriculture land protection, it is a system and process

28Putusan MKRI 001-21-22-PUUI 2003, ibid, hlm. 28

29 Sumarja, FX., Rifai, Eddy, HS. Tisnanta, 2021, Problematika Perlindungan Lahan Pertanian Berkelanjutan Pasca Diterbitkannya Undang-Undang Cipta Kerja, Laporan Penelitian Dasar. FH Unila 2021. hlm.3

30Erwiningsih, W. (2011).Hak Pengelolaan atas Tanah.(Yogyakarta: Total Media), hlm. 109-112.

31 Putusan MKRI 001-21-22-PUUI 2003, ibid, hlm 331-332

for sustainable planning, establishing, developing, utilizing, fostering, controlling and supervising food agriculture land and its area. The need for land is increasing, making land scarce. Land scarcity impacts reduced agricultural land, which is used as the object of various developments.³²

C. Conclusion

Attaching new rights and releasing some rights unconstitutionally. It is clear and clear that the meaning of the authority of the right to control the state is not only total delegation to certain parties but also the role of regulators and operators in the sense of participating in the planning, implementation and supervision. The state is not only a night watchman in the HPL context in the Job Creation Law. Therefore, there must be clarity on the position of authority

“controlled by the state” for HMN constitutionally against HPL in the Government Regulation in Lieu of Job Creation referring to the constitution. The 1945 Constitution provides mandates to the state for beleid, bestuursdaad, regelendaad, beheersdaad and toezichthoudensdaad. In accordance with the constitutional system based on Article 33 of the 1945 Constitution, philosophically, the Government performs as the ruler (regulator) and entrepreneur (operator). As the operator, the Government carries out its duties as supervisor and supervisor as the direct executor of the activity. This was also confirmed by the Constitutional Court Decision 001-21-22-PUUI 2003. Suppose the HPL in the Government Regulation in Lieu of Job Creation is simply released. In that case, it is not much different from us adhering to the concept of a nachtwachternstaat state or night guard state, not with the principle of a welfare state, utilizing control over sources of wealth to be used as much as possible for the prosperity of the people.

HPL in HML can provide direction for law enforcers as it should be. In handling land acquisition cases involving land appraisal agencies, namely the extent of the land appraisal agency's role and authority in the land acquisition process, from year to year. Their role and authority depended on the regulations in effect at the time and the fact that the regulations contained a legal vacuum/unclarity. For government bureaucrats in the land acquisition process, it is permissible to assign a land appraisal agency only to those who need land, and complete information regarding land acquisition objects greatly influences the appraisal results. It was enough for the Constitutional Court's decision Number 91/PUU-XVIII/2020 to grant part of the request for a formal review. The Job Creation Law was formally flawed, contrary to the 1945 Constitution. And the government responded officially by issuing Perpu number 2/2022 concerning Job Creation on December 30, 2022, with the urgent reason of anticipation of global economic conditions. It should be more responsive to the interests of controlling natural resources for the nation's survival. To guarantee legal certainty for implementation, fairness and benefit. Not only for investment purposes, both domestic and foreign. Because the HPL listed in the Government Regulation in Lieu of Job Creation Article 136 of the Law is a repetition of HMN. Not in line with the meaning of management related to HMN which has been stipulated by the Constitutional Court Decision Number 001-021- 022/PUU-1/2003, which states that the State's Controlling Right means the regulation policy, administration, management and supervision referring to Article 33 Paragraph (3) UUD 1945.

32 Hatta, Mohammad, (2002), Kumpulan Pidato II. Disusun oleh I. Wangsa Widjaja, Mutia F. Swasono, (PT. Toko Gunung Agung Tbk. Jakarta). Hlm. 231

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Undang-Undang Dasar 1945

Undang-Undang Nomor 5 Tahun 1960 tentang Peraturan Pokok-Pokok Agraria (UUPA) Undang-Undang Nomor 11 Tahun 2020 tentang Cipta Kerja

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Kusumawati, Mustika Prabaningrum , Penyusutan Lahan Pertanian dan UU Ciptaker, Https//Penyusutan Lahan Pertanian dan UU Ciptaker – KRJOGJA,