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Transparency in Plantation Sector: Access of Cultivation Rights Title Document
Herry M. Polontoh1
1Universitas Cenderawasih, Indonesia, E-mail: 88mherry@gmail.com
Submitted: January 27, 2023; Reviewed: March 15, 2023; Accepted: April 06, 2023.
Article Info Abstract
Keywords:
Cultivation Rights, Information Disclosure, Land Right, Plantation, Transparency.
DOI:
10.25041/fiatjustisia.v17no2.2896
The research aimed to analyze the implementation of the principle of transparency by the National Land Agency to access cultivation rights title documents in the plantation sector. It is empirical legal research. It was conducted at the Office of the National Land Agency of Gorontalo district, Gorontalo province, Indonesia. The results show that the principle of transparency of cultivation right title by the National Land Agency had yet to be implemented as instructed by the judge in the Decision of Supreme Court No. 121 K/TUN/2017.
It is caused by the consideration of the National Land Agency that the document of right cultivation title is included in an undisclosed document;
hence, if it is public, it violates the company's privacy provisions and applicable regulations. The implementation of the principle of transparency by the National Land Agency to access cultivation right title documents in the plantation sector have yet to be effective because it is influenced by the attitude of professionalism of the National Land Agency, which exercises its duties as applicable regulations.
A. Introduction
Land plays an important role in human life.1 Land utilization encompasses almost all aspects of life, such as land needed to construct the house on it, as a source of income in the agriculture, plantation, and animal husbandry sectors, even needed for burial purposes. Recognizing that almost all human needs depend on the land, it can be said that land plays an important role in human life. The great role of land in the life of the
1 Li, Tania Murray. "What is land? Assembling a resource for global investment." Transactions of the institute of British Geographers 39, no. 4 (2014): 589-602.
ISSN: 1978-5186 | e-ISSN: 2477-6238.
http://jurnal.fh.unila.ac.id/index.php/fiat
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Indonesian people and the implementation of national development is based on the principle of sustainable development.2 Arrangements for possession, ownership, and land use must be directed towards ensuring orderliness in land law, land administration, land use or land maintenance and the environment to realize legal certainty in the land sector.3
In 1960 the Government issued Act No. 5 of 1960 concerning Basic Regulations and Principles of Agrarian Affairs (UUPA) as a regulation of land possession, ownership and use. It shows that UUPA applies as a tool for achieving prosperity, happiness, and justice, eliminating the dualism of land law and realizing legal certainty for the Indonesian people of land rights.4 Legal certainty for land rights regarding land possession and control will provide certainty about the person or legal entity as the holder of land rights and certainty on the location, boundaries, extent, etc. Concerning this clarity, it has a very large meaning, especially concerning regional development planning and land possession and use supervision.
Beginning to realize legal certainty is land registration. Land registration includes the collection, processing, bookkeeping, presentation, and maintenance of physical and juridical data in maps and lists of land plots.
Furthermore, as the land registration, the National Land Agency (BPN), a government agency authorized in the land sector, keeps all physical and juridical data collected from the land registration. For interested parties who need information on a land object to the National Land Agency, the National Land Agency responds openly and provides information relating to a land object. It embodies the principle of open land registration, intended so the community can obtain information on correct physical and judicial data anytime.
Emphasis on transparency becomes urgent for the Indonesian government in today's reform era that aspires to good and accountable governance.5 To realize this, it is necessary to have openness and
2Winata, Muhammad Reza, and Erlina Maria Christin Sinaga. "Transparansi Hak Guna Usaha Mendukung Redistribusi Lahan Berdasarkan Hak Konstitusional Mendapatkan Informasi." Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 8, no. 3 (2019): 421.
3 Sutedi, A. (2018). Peralihan Hak Atas Tanah dan Pendaftarannya. Sinar Grafika, Jakarta. p. 112.; Ali, A., and Heryani, W. (2012). Menjelajahi Kajian Empiris Tehadap hukum, Prenadamedia Group, Jakarta, p. 31
4 Ilyas, Anshori, Muhammad Ilham Arisaputra, Mustafa Bola, and Dian Utami Mas Bakar. 2017. Kontrak Publik. Makassar: UPT Unhas Press, pp.3-4.
5Zamil, Yusuf Saepul. "Pengendalian Pemberian Hak Guna Usaha atas Tanah sebagai Upaya Pencegahan Kerusakan Hutan karena Perambahan Kawasan Hutan yang Dilakukan oleh Perkebunan." Padjadjaran Jurnal Ilmu Hukum (Journal of Law) 2, no. 2 (2015): 332- 350.
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transparency in managing sectors that concern the public interest.6 But as the expanding public information openness, government agencies in the land sector were also inseparable from the public spotlight that needed information in the land sector.
In the lawsuit by Forest Watch Indonesia (FWI) against the National Land Agency as stipulated in the decision of the Supreme Court on 6 March 2017 No. 121/K /TUN/2017, the Supreme Court judge ordered the National Land Agency to open data on the Cultivation Right Title which is still valid until 2016, especially in Central Kalimantan, East Kalimantan, West Kalimantan, South Kalimantan, and North Kalimantan.7 These data include physical and juridical data which includes the holder name of the Cultivation Right Title, place or location, the width of the Cultivation Right Title granted, type of commodity, and map of the area of the Cultivation Right Title as complemented with coordinates.8
The decision of the Supreme Court to order the National Land Agency to open the document of the Cultivation Right Title so that the public can access it is not considered by related parties. Even the National Land Agency insisted that the decision was not accepted because it conflicted with the applicable regulations in the land sector. Certainly, it is a big problem if allowed to drag on without legal certainty. This paper focuses on implementing the principle of transparency by the National Land Agency to the document of the Cultivation Right Title that has not run optimally.
The research is empirical legal research using conceptual and case approaches.9 It was conducted in Gorontalo, Gorontalo Province, Indonesia.
Precisely the Office of the National Land Agency of Gorontalo district considers that Gorontalo district is a region that possesses oil palm plantations as one of the competencies of the National Land Agency to issue the Cultivation Right Title, particularly in the plantation sector. The data obtained in the research are primary and secondary data and it is analyzed qualitatively and presented descriptively by describing and explaining the
6 Ashari, Budi, Aminuddin Ilmar, and A. Suriyaman Mustari Pide, (2018). Fungsi Komisi Informasi dalam Mendukung Proses Informasi Pertanahan Di Kota Makassar. Amanna Gappa Vol. 26 No. 1: 39.
7 Forest Watch Indonesia, http://fwi.or.id/publikasi/mendesak-pemerintah-untuk- menjalankan-putusan-ma-tentang-keterbukaam-informasi-hgu/. Accessed on 2 May 2019.
8 Decision of the Supreme Court No. 121 K/TUN/2017.
9 Butarbutar, Elisabeth Nurhaini. 2018. “Metode Penelitian Hukum (Langkah-Langkah Untuk Menemukan Kebenaran Dalam Ilmu Hukum).” Bandung: Refika, p. 95
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implementation of the principle of transparency related to supervision in the plantation development sector.10
The novelty of this research is to analyze the fulfillment of the principle of openness by the Office of the Gorontalo District National Land Agency.
This principle is aimed at the plantation aspect Cultivation Rights document as stated in the Supreme Court Ruling No. 121 K/TUN/2017. In essence, the Cultivation Right document cannot be read to the public, so by its confidential nature, it has company privacy that no one can violate
B. Discussion
1. Principles of Transparency into Access of the Cultivation Right Title Document in Plantation Sector: Challenges and Obstacles
The decision of the National Land Agency that discloses the document information of the Cultivation Right Title to the public is still maintained until now, although based on the judge’s order in the decision of the Supreme Court No. 121 K/TUN/2017, has ordered the National Land Agency to immediately open the document of the Cultivation Right Title (the holder name of the Cultivation Right Title, place/location, width of the Cultivation Right Title granted, type of commodity, map of the Cultivation Right Title with coordinate points) as public information openly, especially the list of the Cultivation Right Title document of palm oil that are still valid until 2016 in Central Kalimantan, West Kalimantan, East Kalimantan, South Kalimantan, and North Kalimantan. The decision of the judge to order the National Land Agency to open the document of the Cultivation Right Title is based on the consideration that the document of the Cultivation Right Title is a type of public information that must be provided at any time.11
Even with the data collated by the Land Matrix project, the picture of large-scale land acquisitions remains hard to decipher. In a comparison, each land deal has its specific characteristics. In addition to the complexity of the topic, there is a huge lack of transparency on land governance matters, particularly regarding planning and decision-making processes, contractual agreements, and issues of community involvement and compensation. Little is known about the short and expected long-term effects of these investments.12
10 Sugiyono, 2011. Metode Penelitian Kombinasi (Mixed Methods). Alfabeta, Bandung. p.
297
11 Rahmi, Elita. 2010. Hukum Pertanahan dalam Sistem Hukum Indonesia. Bandung:
Unpad Press, p. 25.
12 Anseeuw, Ward, Mathieu Boche, Thomas Breu, Markus Giger, Jann Lay, Peter Messerli, and Kerstin Nolte. "Transnational land deals for agriculture in the Global South." Analytical report based on the Land Matrix database 1 (2012), p. 9.
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Complaints to an objection filed by Forest Watch Indonesia (FWI) against the National Land Agency in the decision of the Supreme Court No.
121 K/TUN/2017 indicate that the document of the Cultivation Right Title as declared by the judge as non-excluded information should have been open to the public. The same was stated by Representatives of the Information Commission, namely Wahidin Lukun who supported the decision of Supreme Court No. 121 K/TUN/2017, where he stated that the documents of the Cultivation Right Title could be published because it was included in the public sphere. He believes that the openness of the Cultivation Right Title can assist the community and the National Land Agency.13
Based on interviews with the representatives of Forest Watch Indonesia (FWI), explaining that Forest Watch Indonesia (FWI) has several reasons and considerations that the Cultivation Right Title should open publicly, among others:14 the first, in terms of land objects, the Cultivation Right Title is a State’ land so that it is very closely related to the public interest because State’ control over land is an embodiment of the mandate of the people of Indonesia (the right to State control).15 The second, the Cultivation Right Title is given to Indonesian citizens and legal entities that meet certain requirements based on regulations. These obligations are closely related to the public interest so that the public has the right to know and obtain information to guarantee the protection of those interests.
It shows that the National Land Agency has not implemented the judge's order as contained in the decision of Supreme Court No. 121 K/TUN/2017.
Based on the search of an author on the website of the National Land Agency www.atrbpn.go.id by choosing an area in the Gorontalo district, it is showed that the dark green color represents the land plots registered with the Cultivation Right Title. In contrast, the yellow color indicates the land plots registered with ownership rights (Figure 1). As in the map in Figure 1, the author chooses a land plot of the Cultivation Right Title to see information that the public can access regarding the plots concerned. As indicated that there is no information regarding the holder name of the Cultivation Right Title, place/ location, width of the Cultivation Right Title granted, type of commodity map of the Cultivation Right Title as equipped with coordinates,
13 Interview with Wahidin Lukun as Coordinator of the Information Dispute Resolution Section at the Information Commission in Gorontalo Province, 31 January 2020.
14 Interview with Agung Ady Setyawan as campaign staff of FWI on 21 January 2020
15Andreas, Ricco, Luthfi Kalbu Adi, and Sri Sulastuti. "The Effect of Colonialism on Implementation of Agrarian Reform in Indonesia." Fiat Justisia: Jurnal Ilmu Hukum 13, no. 2 (2019): 101-114.
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but it only indicates the area, identification number of the field, the right type and its uses.
Figure 1. Map of land plots
: Freehold title : Cultivation right title
Source: Ministry of Agrarian and Spatial Planning, 2020.
The National Land Agency is a legal entity with the authority to register land and publish documents and archives relating to the land (the archive creator) and as its duties are given exclusive rights by law to close access to the archives that are published. Based on the explanation of Abdillah Mallo, the openness of the Cultivation Right Title documents may violate company privacy and harm the holder of the Cultivation Right Title because it is directly related to protecting interests from unfair business competition, revealing Indonesia's natural wealth that is included in the confidentiality protected category, as well as revealing confidential or personal data.16 Following what is regulated in the Archives Act, KIP Act, namely Article 6 jo. Article 17, letters d and i of the KIP Act are reaffirmed as follows:
16 Hoofnagle, Chris Jay. "The Origin of Fair Information Practices: Archive of the Meetings of the Secretary's Advisory Committee on Automated Personal Data Systems (SACAPDS)." Available at SSRN 2466418 (2014).
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Article 6 of KIP Act:
(1) Public bodies can refuse to provide exempt information following the statutory provisions.
(2) Public bodies can refuse to provide information publicly if it does not follow the statutory provisions.
(3) Public information that cannot be provided by a public agency, as referred to in paragraph (1) are:
a. Information that can endanger the country;
b. Information relating to the interests of business protection from unfair business competition;
c. Information relating to personal rights;
d. Information relating to confidentiality of office; and/or
e. The requested public information has not been mastered or documented.
Article 17 of KIP Act letters d and j affirm:
Every public agency must open access for every public information requester to obtain public information, except (d) public information which if opened; (j) provided to the public information requester can reveal Indonesia natural wealth and information that may not be disclosed under the Act.
As regulations above become the basis used by the National Land Agency in supporting its decision not to open access to the Cultivation Right Title documents and also obtain support from several plantation companies, including PT. Pabrik Gula Gorontalo and PT. Argo Artha Surya. Based on the results of interviews with Idrak Daud at PT. Pabrik Gula Gorontalo and Amir Gani at PT. Argo Artha Surya both objected if the Cultivation Right Title document was opened to the public. The reason is that it will harm the company.17 The loss can be in the form of open company privacy because competitors automatically know everything that is company confidential, especially regarding the location, width of the Cultivation Right Title granted, and the map/coordinates of the Cultivation Right Title.18
Physical and juridical data on land consisting of registration maps, land registers, land certificates, and land books contain information that gives
17 Interview with Amir Gani as Public Relations of PT. Argo Artha Surya on 20 January 2020.
18 Interview with Idrak Daud as Public Relations of PT. Pabrik Gula Gorontalo on 20 January 2020.
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rights to everyone interested to know it.19 However, information about the list of names is only intended for certain government agencies for their duties. What is meant by the list of names does not contain information about the land but rather about individuals or legal entities with the land they own. Government agencies need this information to carry out their duties.20
Although the National Land Agency is given the authority to register the Cultivation Right Title land and keep all documents used as the basis for registering land rights, it does not necessarily provide consequences that all documents relating to the Cultivation Right Title must be published to the public.21 Information regarding physical data and required legal data can only be obtained by submitting written permission and obtaining approval from the minister or authorized official, namely the Information Officer.
If the Cultivation Right Title document is opened to the public, it will collide with the existing provisions. Therefore, the attitude of the National Land Agency that closed the Cultivation Right Title information was not caused by the reluctance of the National Land Agency to open the Cultivation Right Title documents, but rather the National Land Agency only carried out the applicable legal provisions. Information regarding physical and juridical data can only be opened if a dispute, case, control problem or conflict exists.22 The National Land Agency has fulfilled the ease of access to land information by placing information desk officers at each land office.
However, the Cultivation Right Title documents it is not easy to access because it is generally not permitted by PPID to be opened, except if there has been a dispute, case, problem control or conflict.
The consideration of several companies that agree that the Cultivation Right Title document is not open to the public is motivated by considerations or fears of unfair business competition among plantation entrepreneurs, which, when referring to Article 6 paragraph (1) letter b of the KIP Act, should be excluded. Information that cannot be opened publicly can raise questions about why the Cultivation Right Title document must be closed.
However, as Wahidin Lukun did not justify the statements stated above as a
19 Suhariningsih. (2011). Kebijakan Pertanahan pada Era Otonomi Daerah di Bidang Hak Guna Usaha Perkebunan. The Journal of Mimbar Hukum – Faculty of Law, Gadjah Mada University, 23(2), 263-274.
20 Elucidation of Article 34 paragraph (2) PP No. 24 of 1997 concerning Land Registration.
21 Putri, Andi Wika, Farida Patittingi, and A. Suriyaman Mustari Pide. "Legal Protection of Indigenous Communities on Cultivation Rights Title in Bulukumba Regency." International Journal of Multicultural and Multireligious Understanding 7, no. 1 (2020): 548-555.
22 Interview with Abdillah Mallo as Head of the Land Procurement and Control Section at the Office of ATR/BPN Gorontalo, 21 January 2020.
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representative of KIP, he dismissed that the information disclosure of the Cultivation Right Title did not cause losses regarding company privacy.
Refers to the arguments presented based on the existing provisions and considering the interests of the Cultivation Right Title holder companies that must be protected, stabilizing the steps of the National Land Agency not to open the Cultivation Right Title documents.23 The author views that the disclosure of the Cultivation Right Title documents in the era of public information disclosure is needed, but with the attitude of the National Land Agency refuses to open the Cultivation Right Title documents because several indicators of interest must be protected also cannot be ignored because each legal subject has the protection right to privacy.
C. Conclusion
The principle of transparency to the Cultivation Right Title documents by the National Land Agency has not been implemented as instructed by the judge in the decision of the Supreme Court No. 121 K/TUN/2017. Because of the National Land Agency’s consideration, the Cultivation Right Title document is included as a confidential document. If publicly open, it violates the company’s privacy provisions and applicable regulations. Therefore, information on the Cultivation Right Title documents can be known to the public and presented on the National Land Agency-only location/area website, including the identification number of the land plot, type of rights, type of use, and other general data. Information on the Cultivation Right Title documents can only be fully disclosed if there has been a conflict or dispute by submitting an application in advance and receiving approval from the Head of the National Land Agency.
Implementing the principle of transparency by the National Land Agency to access the Cultivation Right Title document in the plantation sector has not been effective because it is influenced by the attitude of professionalism of the National Land Agency, which carries out its duties following applicable regulations. In addition, the optimization of the implementation of the principle of transparency of the National Land Agency through the consequence test has not been successful due to the use of rules under the law where the Central Information Commission through Decision No. 057/XII/KIP-PS-MA/2015 dated 22 July 2016 canceled the consequence test conducted.
23 Karjoko, Lego. "Setting of Plantation Land Area Limitation Based on Social Function Principles of Land Cultivation Rights To Realize Social Welfare-Promoting Plantation." Jurnal Dinamika Hukum 17, no. 1 (2017): 1-7.
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References
Andreas, Ricco, Luthfi Kalbu Adi, and Sri Sulastuti. "The Effect of Colonialism on Implementation of Agrarian Reform in Indonesia." Fiat Justisia: Jurnal Ilmu Hukum 13, no. 2 (2019): 101- 114.
Anseeuw, Ward, Mathieu Boche, Thomas Breu, Markus Giger, Jann Lay, Peter Messerli, and Kerstin Nolte. "Transnational land deals for agriculture in the Global South." Analytical report based on the Land Matrix database 1 (2012).
Ashari, Budi, Aminuddin Ilmar, and A. Suriyaman Mustari Pide, (2018).
Fungsi Komisi Informasi dalam Mendukung Proses Informasi Pertanahan Di Kota Makassar. Amanna Gappa Vol. 26 No. 1: 39.
Butarbutar, Elisabeth Nurhaini. 2018. “Metode Penelitian Hukum (Langkah- Langkah Untuk Menemukan Kebenaran Dalam Ilmu Hukum).”
Bandung: Refika.
Rahmi, Elita. 2010. Hukum Pertanahan dalam Sistem Hukum Indonesia.
Bandung: Unpad Press.
Forest Watch Indonesia, http://fwi.or.id/publikasi/mendesak-pemerintah- untuk-menjalankan-putusan-ma-tentang-keterbukaam-informasi-hgu/.
Accessed on 2 May 2019.
Hoofnagle, Chris Jay. "The Origin of Fair Information Practices: Archive of the Meetings of the Secretary's Advisory Committee on Automated Personal Data Systems (SACAPDS)." Available at SSRN 2466418 (2014).
Ilyas, Anshori, Muhammad Ilham Arisaputra, Mustafa Bola, and Dian Utami Mas Bakar. 2017. Kontrak Publik. Makassar: UPT Unhas Press.
Karjoko, Lego. "Setting of Plantation Land Area Limitation Based on Social Function Principles of Land Cultivation Rights To Realize Social Welfare-Promoting Plantation." Jurnal Dinamika Hukum 17, no. 1 (2017): 1-7.
Li, Tania Murray. "What is land? Assembling a resource for global investment." Transactions of the Institute of British Geographers 39, no. 4 (2014): 589-602.
Putri, Andi Wika, Farida Patittingi, and A. Suriyaman Mustari Pide. "Legal Protection of Indigenous Communities on Cultivation Rights Title in Bulukumba Regency." International Journal of Multicultural and Multireligious Understanding 7, no. 1 (2020): 548-555.
Sugiyono, 2011. Metode Penelitian Kombinasi (Mixed Methods). Alfabeta, Bandung.
155
Suhariningsih. (2011). Kebijakan Pertanahan pada Era Otonomi Daerah di Bidang Hak Guna Usaha Perkebunan. Mimbar Hukum, 23(2), 263- 274.
Sutedi, A. (2018). Peralihan Hak Atas Tanah dan Pendaftarannya. Sinar Grafika, Jakarta. p. 112.; Ali, A., and Heryani, W. (2012). Menjelajahi Kajian Empiris Tehadap hukum, Prenadamedia Group, Jakarta.
Winata, Muhammad Reza, and Erlina Maria Christin Sinaga. "Transparansi Hak Guna Usaha Mendukung Redistribusi Lahan Berdasarkan Hak Konstitusional Mendapatkan Informasi." Jurnal Rechts Vinding:
Media Pembinaan Hukum Nasional 8, no. 3 (2019): 421.
Zamil, Yusuf Saepul. "Pengendalian Pemberian Hak Guna Usaha atas Tanah sebagai Upaya Pencegahan Kerusakan Hutan karena Perambahan Kawasan Hutan yang Dilakukan oleh Perkebunan." Padjadjaran Jurnal Ilmu Hukum (Journal of Law) 2, no. 2 (2015): 332-350.
156
