185 EQUALITY GUARANTEE OF HUMAN RIGHTS IN LAND ACQUISITION FOR
DEVELOPMENT IN THE PUBLIC INTEREST AFTER THE LAW ON JOB CREATION IN INDONESIA
Sri Wahyu Handayani*, Amardyasta Galih Pratama, Abdul Aziz Nasihuddin, Supriyanto Faculty of Law, Jenderal Soedirman University - Indonesia
*(Corresponding author) email: [email protected]
ABSTRACT
Land acquisition for development for public interest ex officio requires land or land as a location for physical realization for the construction of public interest facilities and infrastructure. However, in reality land acquisition for the public interest often causes disputes which are indicated to be detrimental to the people. Empirically, there are implications related to human rights, especially in land acquisition. This study examines human rights guarantees after the issuance of Law Number 11 of 2020 concerning Job Creation by linking Article 3 of Law Number 39 of 1999 concerning Human Rights which states that everyone is born free with the same and equal human dignity and worth, has the right to protection and legal treatment that is fair and without discrimination against land acquisition for development in the public interest which is vulnerable to being violated and distorted by the government or parties who need land during the land acquisition process. The results of this normative research offer indicators of appropriate and fair compensation taking into account the perspective of human rights.
Keywords: land acquisition, public interest, compensation
INTRODUCTION
Development for the public interest would require land as a medium. However, until now many problems regarding land have not received a complete and clear regulation in Indonesian law. It was recorded that from 2014 to 2018, the number of agrarian conflicts in the infrastructure sector was 495 conflicts with the total area of conflict being ± 178,292.08 Ha (The Agrarian Reform Consortium, 2015). This is evident from the number of public complaints that are included in the Ombudsman Commission. Based on the report of the Ombudsman commission throughout 2018 to 2019, agrarian/land cases occupy the second highest position at 16.50% (Ombudsman, 2019).
This happens because the population density continues to increase, while the number and area of land do not increase. Procurement of land for development in the public interest is a demand that cannot be avoided by any government. The more advanced the community, the more land is needed for the public interest (the layman). As a consequence of living in a state and society, if individual (private) property rights are in conflict with the public interest, then the public interest must take precedence (Mahfud MD, 2006). However, the state is still obliged to respect the rights of its citizens in order to avoid human rights violations.
One of the main problems is the expropriation of land owned by community members by the government through land acquisition for the public interest. This was done because the
186 government had certain interests, such as widening roads, building places of worship, and schools which were declared as development projects for the public interest (Mukmin Zakie, 2011).
The Agrarian Reform Consortium emphasized that in the 2017 End of Year Data, there are at least 5 main things that trigger conflicts over land acquisition for the public interest, namely:
1. Project planning that does not open up public participation so that it has implications for the unilateral project determination process;
2. Determination of unfavorable compensation prices; corruption and extortion in land acquisition;
3. Involvement of thugs, police officers and soldiers in land acquisition (high process costs, suppression of land purchase prices);
Various alternative options offered by Law no. 2 of /2012 on evictions such as replacement land, resettlement, equity participation and other forms agreed by both parties were not carried out (Consortium for Agrarian Reform, 2017).
The implementation of land acquisition for development in the public interest involves 2 (two) parties, namely the government agency that requires land and the community whose land is needed for development activities or referred to as the entitled party (Maria Sumardjono, 2001).
Article 6 of the Basic Agrarian Law of Indonesia states that all land rights have a social function.
In this case, land acquisition for development in the public interest is included in the category of public interest. Thus, the state has the right to revoke the rights to community land ownership, but at the same time it must also respect the rights of land owners by referring to the laws and regulations. Land ownership rights are one of the civil statuses attached to land, so the process of releasing it must also respect the rights of the land owner concerned. One form of respect for these rights is to conduct a fair and proper assessment of the value of compensation.
Agrarian conflicts that occur as a result of land acquisition for infrastructure development, especially regarding compensation, are the most complained of, especially the compensation value factor and the assessment is carried out without regard to the feasibility of ensuring the survival of the affected victims or the people whose land is used for infrastructure development. Victims find it difficult to buy land with the same area and fertility level as the location affected by the land acquisition so that their economic life does not quickly recover. In addition, the assessment and determination of compensation factors is considered to be less transparent and the payment of compensation to victims is protracted even though the land has been used for infrastructure development.
The problem of compensation which is considered not fair and appropriate is related to Article 17, Declaration of Human rights which states: “No one shall be arbitrarily deprived of his property”. This study explains the need for a fair and proper guarantee in terms of compensation that respects human rights on the issue of land acquisition for the public interest after the issuance of the Job Creation Law in Indonesia.
The discussion begins with a historical explanation of the arrangement for compensation for land acquisition in the public interest for development in Indonesia. Then, it is continued with the problematic of several cases regarding compensation that occurred in Indonesia. The results of this normative research offer indicators of appropriate and fair compensation taking into account the perspective of human rights.
RESEARCH METHOD
This normative research employed a historical and conceptual approach. The historical approach makes it possible to understand the law more deeply about a particular system or environment so that there can be a limit, both in understanding and applying certain legal regulations or provisions
187 (Johnny Ibrahim, 2007 ). Conceptual approach was used to explain the indicators of appropriate and fair compensation by considering the perspective of human rights.
RESULT AND DISCUSSION
A. Compensation Arrangements for Land Acquisition for Development in the Public Interest
Article 1 number 2 of Law Number 2 of 2012 concerning Land Acquisition for development in the public interest stipulates that the method of providing compensation is carried out properly and fairly to the entitled party. The provision of compensation is based on the principles of justice and certainty as stated in Article 2 letters b and d. Decent and fair what is meant by the principle of justice is the provision of guarantees of replacement to those who are entitled to the land acquisition process so that they get the opportunity to be able to carry out a better life. Meanwhile, proper and fair what is meant by the principle of certainty is to provide legal certainty of the availability of land in the process of land acquisition for development and to provide guarantees to parties entitled to compensation. From this explanation, proper and fair in Law Number 2 of 2012 can only be interpreted in two aspects, namely: (a) getting the opportunity to live a better life, and (b) providing added value.
However, there are no technical/advanced instructions, especially related to the complexity of issues in land acquisition for the public interest (Suntoro, 2019).
Prior to the enactment of Law Number 2 of 2012, compensation for land acquisition for development in the public interest was regulated in Law Number 20 of 1961 concerning Revocation of Land Rights and Objects On It, “For the public interest, including the interests of the Nation and the State as well as the common interests of the people, as well as the interests of development. Therefore, the President in a state of coercion after hearing the Minister of Agrarian Affairs, the Minister of Justice and the Minister concerned may revoke the rights to the land and the objects on it." Then, the procedure or procedure for implementing compensation as regulated in Article 3 of Law Number 20 of 1961 through the Appraisal Committee conducts an assessment of compensation regarding land and/or objects whose rights will be revoked and then the Appraisal Committee must have submitted an estimated compensation. the intended loss to the Head of Agrarian Inspection. After the Head of Agrarian Inspection receives the considerations of the Regional Heads and the estimated compensation, he immediately submits a request to revoke the right to the Minister of Agrarian Affairs, accompanied by his considerations. If the consideration and/or compensation estimate has not been received by the Head of Agrarian Inspection, then a request for revocation of such rights shall be submitted to the Minister of Agrarian Affairs, without waiting for the consideration of the Regional Head and/or the estimated compensation for the Appraisal Committee.
The application of the criteria for the form of an activity for the public interest that has qualifications as an activity for the public interest must meet one of the requirements for the form of public interest as listed in the Presidential Instruction Number 9 of 1973, and compensation payments must be given to people who entitled to the land and must be made in cash and paid directly to the rightful. In addition, those whose land rights are revoked must be sought to be transferred properly so that they can continue to carry out their business activities / earn a living a more decent life as before (Sahnan, 2015).
It can be seen that Law Number 2 of 2012 has a spirit of renewal and is very good at respecting human rights by avoiding the term "revocation of land rights" as stipulated in Law Number 20 of 1961 concerning Revocation of Land and/or Property Rights above, by replacing it with the term “waiver of rights”. In fact, it is actually easier to implement. Only the Head of the Regency/City Land Office can release a person's legal relationship with their land compared
188 to Law Number 20 of 1961 which is actually very careful starting from the proposal process by the land acquisition committee, reporting to the Governor, then the Governor forwards the proposal to the Governor. The Minister of Agrarian Affairs/Head of the National Land Agency for further meetings and coordination with 3 (three) ministers, namely the Minister of Home Affairs, the Minister of Agrarian Affairs and the Minister of Justice. The results of the meeting of these three institutions are used as material for proposals to the President to decide whether or not to revoke rights to objects proposed from below (Articles 2 and 3 of Law Number 20 of 1961). Therefore, it is necessary to rearrange regulations that protect and avoid arbitrary actions in the context of taking community land rights (Suntoro, 2018).
The compensation in the form of money in land acquisition, based on Presidential Regulation Number 148 of 2015 concerning the Fourth Amendment to Presidential Regulation Number 71 of 2012 concerning the Implementation of Land Procurement for Development in the Public Interest, is carried out by the agency that requires land based on validation from the head of the land procurement executive or appointed official. The validation is carried out within a maximum of three working days from the minute of the agreement on the form of compensation. Provision of compensation is carried out within a maximum of seven working days from the determination of the form of compensation by the land acquisition operator (Subekti, 2016). Then, the amount or value of compensation becomes the basis for determining the results of the assessment through deliberation to determine compensation as regulated in Article 68 Paragraph 3 of Presidential Regulation Number 71 of 2012 which states that the consultation in question is carried out directly to determine the form of compensation based on the compensation assessment.
As described above, Presidential Regulation Number 71 of 2012 limits the implementation of deliberation for compensation to be limited to determining the form of compensation which is different from the regulation in Law Number 2 of 2012 concerning Land Procurement which states that deliberation is carried out to determine the form and / or the amount of compensation. This causes the absence of legal certainty regarding the determination of the amount of compensation. Moreover, in Article 74 paragraph (2) of Presidential Regulation Number 71 of 2012 it is stated that the form of compensation as referred to in paragraph (1), either stand-alone or a combination of several forms of compensation, is given in accordance with the compensation value whose nominal value is equal to the value set by the Appraiser.
This further emphasizes that it is the Appraiser's assessment that is ultimately used to determine the amount of compensation (Wibowo, 2021).
There are provisions in Law Number 2 of 2012 concerning Land Procurement for Development in the Public Interest which are then redefined in several articles in Law Number 11 of 2020 concerning Job Creation. The elaboration of the provisions is intended to accelerate development projects in a short time. However, the payment of compensation in land acquisition as regulated in the Job Creation Act does not guarantee its implementation in the field. The ideal development context makes society as a spectrum for progress in sustainable development, able to reduce the impact of poverty, develop working conditions and ethos, and other positive impacts are the creation of integration and social justice.
Therefore, it is not justified in the name of development including in the infrastructure sector that the state through the government has the right to take land arbitrarily or provide improper compensation. The state must be placed as the holder of the obligation of human rights for development so that it has the responsibility to ensure participation, contribution, and accountability.
Regarding the amendment of the substance provisions in the Job Creation Law in Article 34 Number (3), originally, Article 34 Number (3) in the Law on Land Procurement for Development in the Public Interest stated that the compensation value based on the results
189 of the Appraiser's assessment became the basis for deliberation on the determination of Compensation. However, Article 34 Number (3) of the Job Creation Law and Article 69 of Government Regulation Number 19 of 2021 changed to the amount of Compensation value based on the results of the assessment. The appraiser is final and binding, and the amount of compensation is used as the basis for determining the form of compensation. The various forms of Compensation are determined by the Job Creation Act which revises Article 36 of the Law on Land Procurement for Development in the Public Interest and Article 76 of Government Regulation Number 19 of 2021 which includes:
1) money;
2) replacement land;
3) resettlement;
4) share ownership; or
5) other forms agreed by both parties
The regulation regarding the amount of compensation determined is revised by Article 123 of the Job Creation Law which revises Article 34 of the Law on Land Procurement for Development in the Public Interest, which is described in detail in Government Regulation No. 19 of 2021 concerning Implementation of Land Procurement for Development. Public Interest, which states:
1) Compensation assessed by the Appraiser or Public Appraiser is the value at the time of the announcement of the Determination of Development Locations for the public interest by considering the waiting period at the time of payment of Compensation.
2) The amount of Compensation value is a single value for parcels per plot of land.
3) The amount of Compensation based on the results of the Appraiser's assessment is final and binding.
4) The amount of Compensation value based on the results of the Appraiser's assessment is submitted to the head of the Land Procurement executive with the Minutes of the submission of the appraisal results.
5) The amount of the compensation value is used as the basis for deliberation to determine the form of compensation.
B. Compensation from a Human Rights Perspective
The 2015-2019 Medium Term Development Plan as stated in the attachment of Presidential Decree No. 2 of 2015 has set targets for infrastructure development, namely the addition of 15 new airports, expanded roads and toll roads by 2,650 km and 1,000 km, 24 ports, 49 new reservoirs, 33 hydropower plants, 3,258 km of new railway lines, and 1 million hectares of irrigation network. The consequence of the large number of targets for infrastructure development is that land needs are crucial. Due to the limited availability of government- owned land, one way out is to carry out public land acquisition. The implication of land acquisition that is not running smoothly and is felt to be detrimental to the community is what later becomes an agrarian conflict. There are various reasons behind this agrarian conflict.
1. Land Acquisition Practice
Infrastructure Development Agrarian conflicts that occur as a result of land acquisition for infrastructure development, especially regarding compensation, are the most complained of, especially the compensation value factor and the assessment is carried out without regard to the feasibility of ensuring the survival of the affected victims or the people whose land is used for infrastructure development. Infrastructure development through land acquisition has become one of the government's strategic plans and is currently a major concern. Since the enactment of the Land Procurement Law in January 2012 until the end
190 of 2016, at least 382 development activities for the public interest have been carried out.
In addition, there are also, during the administration of President Joko Widodo, at least a total of 226 national strategic projects that will be planned to be carried out by the government. A total of 101 of them are infrastructure development projects in the transportation sector, which consists of 47 toll road construction projects along 1,755.43 kilometers, 5 non-toll road construction projects, 19 railway network projects, 17 airport projects and 13 harbor projects.
One of the cases of community rejection of the land acquisition was the issue of airport construction in Temon District, Kulon Progo Regency which received rejection reactions from several communities, students, Non-Governmental Organizations (NGOs) and certain communities who are members of the Solidarity Movement Reject Airports (GESTOB).
Initially, there were 7 areas in DIY that were studied as locations for the construction of new airports, namely Adisutjipto Airport, Gading-Gunungkidul Airport, Selomartani- Sleman, Gadingharjo-Bantul and Bugel, Bulak Khayangan and Temon in Kulon Progo. Of the 7 prospective airport locations that are considered to meet the technical and operational requirements for the construction of the new airport, only the Gadingharjo and Temon areas.
Compensation problems that occur simultaneously with the implementation of land acquisition for the construction of Kulon Progo Airport include: First, the position of the community on Pakualaman Grond (PAG) land as the party entitled to land acquisition. Of the total 645.63 hectares of land acquisition area for Kulon Progo airport, 161 hectares is Pakualaman land which is actively cultivated by the community. PAG land belongs to the Duchy of Pakualaman. Second, compensation for assets of the Kulon Progo Regency Government in the form of public roads whose compensation payments are still pending because between the Kulon Progo Regency Government and the Land Procurement Implementer, in this case the Regional Office of the DIY Province National Land Agency adheres to the their own respective rules (Kompas Newspaper, 2017). Third, there are ±300 plots of community-owned land for which compensation cannot be paid due to a number of problems, for example, because the land is still in dispute, the administrative requirements for payment of compensation are not complete and there are still residents who refuse to use their land for airport construction (Kompas Newspaper, 2016).
Another case of rejection of land acquisition is the implementation of the construction of the Medan - Kuala Namu - Tebing Tinggi Toll Road which was carried out by two district governments, namely the Deli Serdang Regency and Serdang Bedagai Regency governments. The Deli Serdang Regency Government implements the 30,305 kilometer section of Medan - Kuala Namu Airport, with a land requirement of 197.94 hectares and an investment value of around Rp 1.75 trillion. Meanwhile, access from Kwala Namu Airport to Tebing Tinggi is 41,727 kilometers long with a land requirement of 243.66 Ha and an investment value of IDR 2.6 trillion by the Serdang Bedagai Regency government.
This toll road aims to facilitate traffic to Kuala Namu Airport, which will become the second largest international airport after Soekarno Hatta Airport in Jakarta.
Both cases are related to the principle of human rights, that every right is inter-related and interdependence, where the fulfillment of one right often depends on the fulfillment of other rights, either in whole or only in part. If the land acquisition process for development is carried out arbitrarily and is unable to provide justice/proper compensation, the action will not only result in a violation of the right to ownership, but will also affect the fulfillment of various other rights such as welfare, loss of legitimacy of ownership, survival of his family, and loss of housing, education, social, and various other significant impacts.
191 Based on the principle of state responsibility, the state is obliged to make reparations for human rights violations that have occurred to victims, including if they were committed by state government organs/agencies/entities. They are still obliged to carry out legal proceedings against those responsible for the occurrence of human rights violations.
Meanwhile, for victims, the state is obliged to provide compensation, restitution, rehabilitation, and guarantees not to repeat similar events (Sujatmiko, 2016).
In the legal conception, a fair and proper compensation assessment must be able to take into account the actual losses suffered (scaheden), costs that have been incurred (konsten), lost profits (interressen), and the income that will be obtained by the victim in the future (winstanderving).
Internationally, the United Nations (United Nation, 2007) has published Basic Principles and Guidelines on Development-Based Evictions and Displacement, Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living A/HRC/4/18, especially the numbers 60, 61, and 63 related to the provision of compensation. Number 60 in this Principle, emphasizes that compensation must be given for any damage that can be economically assessed, commensurate with the severity of the violation and the special circumstances. In fact, when land is taken and evicted, compensation must be given to land that is commensurate in quality and size( United Nation Human Rights Office of The High Commissioner, 2007).
2. Regulating the Problem of Decent and Fair Regulation
One of the problems arising from cases in infrastructure development related to compensation is the proper and fair arrangement in Law Number 2 of 2012 concerning Land Procurement for Development in the Public Interest and its implementing regulations. Fair in Law no. 2 of 2012 is to provide appropriate compensation after the deliberation carried out by the parties related to land acquisition.
C. Equitable and Fair Indicators
This study offers an indicator of a fair and equitable compensation based on the analysis and interpretation of the data collected as follows:
1. Getting a chance to live a better life
The opportunity to live a better life is one of the best options for providing adequate and fair compensation. A better life in the future will affect the welfare level of the victim which will gradually cover the compensation experienced. The fulfillment of compensation by improving the quality of life will affect the survival of the parties concerned. Improving the quality of life will affect various other aspects in various areas of life. This opportunity in the implementation of land acquisition for the public interest is carried out by taking into account the balance between the interests of development and the interests of the community so that a fair result is achieved through its implementation that does not injure the individual rights of the community whose land is used as an object of land acquisition for the public interest. The individual interest of each community remains something that must be maintained and maintained in its fulfillment by government officials in the implementation of land acquisition for the public interest.
2. Providing added value
Land has economic value increasing year by year by the addition of quantity. As the years go by, the added value of this land will increase significantly which will be directly beneficial and profitable. The magnitude of the economic value of the land is important because often the land that is the object of land acquisition is land that is used to support work which is the object of community livelihood. Thus, it is hoped that the increase in the economic
192 value of the land can be used as capital for the owner to continue to run his business elsewhere so that the welfare of the community is guaranteed.
3. Compensation must be given directly.
Compensation must be made in cash and paid directly to those who are entitled. In addition, for those who are affected by land revocation and relocation, efforts must be made in such a way that they can continue to carry out their business activities/earn a living a more decent life as before. Replacement of places, especially places of trade or means of earning a living, it is very important to always strive for its availability. In addition, if the impact of the expropriation of the land makes the community forced to change their place of residence or place of business, any reasonable expenses arising from the change must be taken into account in the provision of compensation so that it can lighten the burden and reduce the percentage of losses experienced.
CONCLUSION
Development for the public interest would require land as a medium. However, until now many problems regarding land have not received a complete and clear regulation in Indonesian law. One of the main problems is the expropriation of land owned by residents by the government through land acquisition for the public interest. This was done because the government had certain interests, such as widening roads, building places of worship, and schools which were declared as development projects for the public interest.
Land ownership rights are one of the civil statuses attached to land, so the process of releasing them must also respect the rights of the land owner concerned. One form of respect for these rights is to conduct a fair and proper assessment of the value of compensation. The problem of compensation which is considered not fair and appropriate is related to Article 17, Declaration of Human rights which states: No one shall be arbitrarily deprived of his property. This study explains the need for a fair and proper guarantee in terms of compensation that respects human rights on the issue of land acquisition for the public interest after the issuance of the Job Creation Act in Indonesia. Compensation is needed as a solution to fulfill the human rights of the affected community on land acquisition for the public interest.
Infrastructure Development Agrarian conflicts that occur as a result of land acquisition for infrastructure development, especially regarding compensation, are the most complained of, especially the compensation value factor and the assessment is carried out without regard to the feasibility of ensuring the survival of the affected victims or the people whose land is used for infrastructure development. Cases of agrarian conflicts that occurred as a result of land acquisition include the issue of airport construction in Temon District, Kulon Regency which was carried out by two district governments, namely the Deli Serdang Regency and Serdang Bedagai Regency governments, both of which received rejection reactions from various groups. One of the problems arising from cases in infrastructure development related to compensation is the proper and fair arrangement in Law Number 2 of 2012 concerning Land Procurement for Development in the Public Interest and its implementing regulations with appropriate and fair indicators determined:
1. Get a chance to live a better life
The opportunity to live a better life is one of the best options for providing adequate and fair compensation.
2. Provide added value
The land has economic value where every year there is added value to the land with the addition of quantity.
3. Compensation must be given directly
193 Compensation must be made in cash and paid directly to those who are entitled.
SUGGESTION
Based on the explanations mentioned above, the authors provide some suggestions as follows:
1. The implementation of land acquisition for development in the public interest needs to be carried out with due regard to the rights of the community whose land was taken over.
2. The provision of compensation to the community needs to be carried out in a transparent and well-planned manner so as not to injure the rights of any party.
3. It is necessary to establish a clear standard of compensation by determining the location and determining the amount of compensation so that there is a proper and fair implementation of compensation.
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