N

ewspapers are spreading the latest news on Jakarta Governor Anies Baswedan’s plan to cancel the hak guna bangunan (right to build — HGB) certifi cates that have been issued to several developers in connection with the reclamation project.

Anies argued that the previous government violated a regulation related to the reclamation project.

Meanwhile, the public relations offi cer of the Agrarian and Spatial Planning Ministry said that cancelling the HGB would require a legal review.

Not long after that, as published by thejakartapost.com (accessed on Jan. 10, 2018), Agrarian and Spatial Planning Minister Sofyan Djalil explained that the ministry refused to cancel the land certifi cates.

Seeing these various viewpoints, one may ask, would it possible for an executive to cancel the land certifi cate? Indonesian land laws, as regulated under the Agrarian Law of 1960, are based on the legal principle that all land, water and outer space, including the natural resources contained within them in the territory of the Republic of Indonesia, is the gift of the God Almighty to the Indonesian nation and a national asset.

The law further stipulates that the relationship between the Indonesian state and land, water and outer space is eternal.

This legal principle emphasizes that the state oversees the land in Indonesia, but does not own it. The state cannot lease out the land, since the state does not own it.

Reclamation is defi ned as an activity performed by an individual or a group of people to enhance the environmental and socioeconomic benefi ts derived from natural resources by claiming, reconverting or draining land.

In simple terms, reclamation is the activity of creating new land. This new land, going back to the legal principle of our Agrarian Law, is to be considered state land, or land that is managed by the state.

In 1995, a presidential decree was promulgated that stipulated that the government of Jakarta would be granted hak pengelolaan (right of management — HPL) over reclaimed lands. This means that the state has legally granted the HPL to the Jakarta administration, specifi cally over reclaimed lands in the northern coast of Jakarta.

The HPL is defi ned as the state’s land management right which is partly delegated to the HPL holder; in this matter, the HPL holder is the Jakarta administration. As the holder of the HPL, the administration may recommend that a third party be granted a land right over the HPL area.

This recommendation is normally granted according to an agreement between the HPL holder and the third party. This recommendation is then be submitted to the land offi ce, which will then issue a decision granting the land right and inventoryregister the land.

The 1960 Agrarian Law stipulates that an HGB certifi cate may be revoked for a lapsed period, temporarily revoked for non-fulfi llment of a certain condition, relinquished by the certifi cate holder, revoked in the public interest, abandoned, voided, or transferred to an illegitimate party.

Under government regulation, this provision is expanded by the added stipulation that the HPL holder may terminate the HGB for non-fulfi llment of landowner obligations or for several violations, including not using the land according to its agreed purpose and requirements.

If an HGB certifi cate is terminated, the certifi cate holder must restore the land to the HPL holder. This provision refers to the Jakarta administration as the HPL holder that recommended the land offi ce to issue the HGB, and is relevant to violating either spatial planning requirements or the agreement between the Jakarta provincial administration and a private party.

Assuming that either one of the above provisions is legitimate, it does not stop here. The next stage in the process will heavily involve the land office.

Under the prevailing regulation, the authority to cancel the land certifi cate rests with the minister.

The minister may delegate this authority to a regional head or other offi cial. The land certifi - cate may be canceled upon a petition from an interested party or by an authorized offi cial without fi ling a petition.

In following the procedures for canceling the land certifi cate, an administrative fl aw may be incurred, such as procedural errors and mistakes in implementing the prevailing regulations.

The head of the land offi ce will examine the completeness and truthfulness of juridical and physical data and examine the feasibility of the application before he submits it to the regional head, along with his considerations and opinions.

Depending on the level of authority, the cancellation may be fi nalized by either the minister or the regional head, after examining the application and its feasibility. The decision on the cancellation of the land certifi - cate will then be delivered to the landowner.

Under the law, the landowner has 90 days to challenge the decision at an administrative court.

Hence, even though the cancellation decision is considered valid, the court may postpone it temporarily. The legal battle may be prolonged, since it will most likely be fought at the court of fi rst instance, the high court, and then fi nally at the Supreme Court.

In conclusion, an executive does have the authority to cancel the HGB land certifi cate. But the role of the Jakarta administration will be as plaintiff , whereas the land offi ce will be the institution authorized to cancel it.

The Agrarian and Spatial Planning Ministry will deliver the executive decision, not the government of Jakarta.

Even though the legal basis for canceling the land certifi cate is legitimate, a legal challenge is highly probable, and the courts will have the fi nal say.
____________________________

The writer is the managing partner of Leks&Co and lecturer at Atma Jaya University Jakarta.
The views expressed are his own.