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BAP DPD RI: THE GOVERNMENT NEEDS TO IMMEDIATELY RESOLVE LAND DISPUTES IN VARIOUS REGIONS

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Jakarta, dpd.go.id - As a state institution that is a representation of the people and regions, in accordance with Article 22D of the 1945 Constitution; and Article 257 and Article 258 of Act Number 17 Year 2014 on MPR, DPR, DPD and DPRD. One of the duties and authorities of BAP is mandated to accommodate and follow up on public complaints related to corruption and maladministration whose problems are related to regional interests.

Following up on the many public reports regarding the issue of land disputes between the community and PT KAI, especially in Lampung, West Java, Central Java, West Sumatera and South Sumatera where differences in perceptions of grondkaart became the root of the problem, then on March 15, 2018, BAP carried out focus group discussions with Agrarian Law Experts and Experts on State Budget Law and Public Finance.

In colonial times, land rights for the Government were not difficult because of the existence of domeinverklaring (Ps 1 AB / Stb. 1870 No. 118) where the State (Government) had the right to own land. The state also has eigenar legal standing on Eigendom rights so that it has the right to use the land to develop, the right to rent, and even the right to sell land / land commercialization. After switching to the Government of the Republic of Indonesia, Article 33 (3) of the 1945 Constitution revokes the legal standing of the state / government as the landowner replaces it with the right to control the state as much as possible for the prosperity of the people.

From the perspective of agrarian law, as stated by Dr.Kurnia Warman, expert in agrarian law from Andalas University, that the retrocart created in the era of the Dutch East Indies could not immediately become the basis of control by PT. KAI. The aspect of legal certainty and protection with regard to the legality of railroad asset lands is determined by following the provisions on the registration of conversion of land rights as stipulated in the UUPA and the Act outside the UUPA, especially PP No. 8 Year 1953 and its implementing regulations.

The purpose of the conversion of rights is to provide legal certainty and legal protection as holders of land rights, as well as ensuring the compatibility of these rights with land rights according to the UUPA. With conversion, land use becomes orderly and the land rights obtained are protected by law. In carrying out the conversion, it is always followed by registration of land rights.

Empirically at present the control of state lands faces many problems, including with people who are in dire need. Triggers usually occur disobedience in the management of state land by the ruler. Land registration is an effort to provide legal certainty to state land, and at the same time to control state land ownership. At the time of land conversion and registration, it is necessary to obtain juridical data (legal basis of tenure) and physical data (pictures of situations such as Groondkaart, etc.) that land ownership is transferred to the Land Book and Land Certificate in accordance with the authority of the relevant government agency.

Furthermore, it should also be seen from the changes in legal entity status that organizes the railroad since DKA to date PT. KAI (Persero), namely Changes in legal status which initially was part of government agencies (DKA, PNKA, PJKA), to semi-government agencies in the form of PERUMKA and metamorphosed to PT. KA and PT. KAI to date. Changes in the status of legal entities and their implications for human resources and assets have procedures in the domain of the State Treasury.

From the perspective of state budget law and public finance as explained by Dr. Yuli Indrawati, a state budget law expert and public finance from the University of Indonesia, said that in fact there is no PP that stipulates the transfer of land used by PJKA becomes additional state capital participation to PERUMKA or PT KAI. Land used by PERUMKA or PT KAI with the Right to Use certificate on behalf of the Ministry of Transportation c. Q. PJKA, and never recorded as a fixed asset (capital) of the Perumka company or PT KAI in the Company's balance sheet.

In the perspective of the law of the State Budget and Public Finance, the assets transferred to PT KAI are only Perumka's assets. The land that Perumka uses is not transferable because it is not Perumka's assets but State Assets.

Thus, the Right to Use Certificate on behalf of the Ministry (now Ministry of Transportation) c. Q. PJKA cannot be used as a basis for land ownership by PT KAI because it is still legally owned by the Department (now Ministry) of Transportation. So that PT KAI is not authorized to take any legal action against the assets that are being used. Legal action on the land can only be done (by order, delegation or mandate) by the Ministry of Transportation or the Ministry of Finance as the general treasurer of the state holding the management of State property; the transfer and write-off regulation of the land remains in public regulation in accordance with the principle of Contrarius Actus; The provisions in the takeover process and others against state-owned immovable property at PT KAI are subject to the principles of state treasury; Risks to the demands of these assets do not become BUMN risks and losses, but rather become state risks and losses; and the legal dispute over the land must follow the procedures in the BUMN Ministerial Regulation No. 13 / MBU / 2014 concerning the Utilization of Fixed Assets of BUMN.

In addition, Prof. Dr. Ari S. Hutagalung, Professor of Law of Agararia University of Indonesia emphasized that with regard to the nature of social functions as explained in the General Explanation II number (4) of the UUPA, any rights to land that exist in a person cannot be justified, that the land will be used (or not used) solely for his personal interests, especially if it causes harm to the community. The use of land without permits is not permitted. But it is also not justified if the rightful person leaves his land in an abandoned condition. Even according to Articles 27, 34 and 40 of the UUPA, property rights, building rights and tenure are removed if the land is abandoned. Government Regulation in Lieu of Act No. 51/1960, states that the use of land without permission from the rightful or legitimate proxies is prohibited and threatened with criminal penalties (Article 2 yo. Article 6 paragraph (1) letter a). However, in that case criminal prosecution does not always have to be carried out, according to Article 6.

The Minister of Agrarian Affairs and Regional Authorities according to Article 3 and Article 5 can make other settlements, bearing in mind the interests of the parties concerned, also by remembering the designation plan and the use of the land used.

In this consultation meeting, KSP recommended that, among others, a meeting be held at the end of November 2018 with the Ministry of Finance, BUMN and related government parties to follow up on a joint verification mechanism, between citizens, the government and PT. KAI. In addition, KSP has also scheduled meetings with law enforcement.

Through this Consultation Meeting activity, BAP DPD RI has an interest in encouraging and bridging the resolution of the problem of land disputes between the community and PT KAI so that it can be quickly resolved by the relevant agencies, because these problems occur in various areas namely in Lampung, Central Java, West Java, West and South Sumatera. CHAIRMAN OF BAP DPD RI: ABDUL GAFAR USMAN (08127519896)

17 Oktober 2018
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