Protection to Communities that Affected by Relocation from the Perspective of Civil Law
From: A.M Oktarina Counsellors at Law
Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira,
S.H., Putri Shaquila, S.H.
Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv)., Ricki Rachmad Aulia Nasution,
S.H.,
A .Background
Indonesia is the largest archipelagic country in the world. Reporting from the Ministry
of Foreign Affairs of the Republic of Indonesia (“Kemenlu RI”) Indonesia has more
than 17,000 islands, of which only about 7,000 islands have inhabitants (as the link
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attached below). As is currently crowded, some time ago there was a demonstration
held by the masses who are members of the National People’s Defender Movement
(GNPR) to ask for the “Rempang Eco City” project to be stopped, due to infrastructure
unpreparedness so that the people of Rempang Island could not accept it. (as the link
attached below).
The community dispute on Rempang Island is one of them because there is a
disagreement in terms of readiness of the Ministry of Agrarian and Spatial Planning of
the Republic of Indonesia Batam City to issue a Land Management Rights Certificate
(“HPL”). As known, this eventually made the community relocated. So what if the
relocated community has ownership rights to their land? What if it turns out that the
land is customary land? With this event, how are the regulations governing legal
certainty, legal protection in terms of civil law obtained by affected communities on
Rempang Island. Let’s take a closer look at the legal protection of this.
B.Legal Basis
The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP “)
2. Constitution of the Republic of Indonesia 1945 (“UUD 1945”)
3. Indonesia Civil Code (“Civil Code”)
4. Law No. 5 of 1960 concerning Basic Regulations on Agrarian Principles (“Law
No.05/1960”)
5. Law Number 01 of 2014 concerning Amendments to Law Number 27 of 2007
concerning Management of Coastal Areas and Small Islands (“Law No.01/2014”)
6. Law No. 30 of 2014 concerning Government Administration (“Law No.30/2014”)
7. Presidential Regulation Number 86 of 2018 concerning Agrarian Reform
(“Presidential Regulation No.86/2018”)
8. Government Regulation Number 19 of 2021 concerning Land Acquisition for
Public Interest (“PP No.19/2021”)
9. Government Regulation Number 39 of 2023 concerning the Implementation of
Land Procurement for Development in the Public Interest (“PP No.39/2023”)
10. Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Dispute
Resolution of Government Actions and Authority to Prosecute Unlawful Acts by
Government Bodies and/or Officials (Onrechmatige Overheidsdaad) (“Perma
No.2/2019”)
3 We can see that it is not far from land problems, many lands in the Indonesian
archipelago, especially small islands that do not yet have a clear existence regarding
ownership of the land, whether the government, companies or indigenous peoples who
are residents of the archipelago itself. An example is Rempang Island, which is fighting
for its rights to remain on land that has been established by the ancestors of the people
of Rempang Island itself, with a few locations, which is a small archipelago with an
area of 165 km2 located in Batam City, Riau Province (as the news attached below).
But before that, let’s look at the boundaries of the small island itself. Based on Article
1 number (3) of Law No.01/2014 explains that:
“Small Island is an island with an area smaller than or equal to 2,000 km 2 (two
thousand square kilometers and its ecosystem unity.”
The cause of this heated riot occurred against the background of the cooperation carried
out between BP Batam and the Batam City Government (“Batam City Government”)
by granting HPL to a private company named PT Makmur Elok Graha (“MEG”) in
2004 ago based on Deed of Agreement No.66 of 2004 with the development plan of the
Rempang Island area based on the “Rempang Eco City” development project. (As the
link attached below).
It is also suspected that the land in the Rempang Islands is customary land that is
actually owned by the people of Rempang Island since it was founded by the ancestors
of Rempang Island itself. In terms of structuring land rights, the government has played
a role in the existence of Agrarian Reform as defined in Article 1 number (1) of
Presidential Regulation No.86/2018 which reads:
“Agrarian Reform is a more equitable rearrangement of the structure of control,
ownership, use, and utilization of land through Asset Management and accompanied
by Access Arrangement for the prosperity of the Indonesian people.”
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Agrarian Reform has the main objective to reduce inequality in land tenure and
ownership in order to create justice, as mentioned in Article 2 of Presidential
Regulation No.86/2018 which reads:
“Agrarian Reform aims to:
a. reduce inequality in land tenure and ownership in order to create justice;
b. handling Agrarian Disputes and Conflicts;”
c. creating a source of prosperity and welfare of an agrarian based community
through the regulation of control, ownership, use and utilization of land;
d. creating jobs to reduce poverty;
e. improve community access to economic resources;
f. improve food security and sovereignty; and
g. improve and maintain the quality of the environment.”
If we assume, the land is customary / customary, then we must pay attention to Law
No.05/1960, namely:
Article 3 of Law No.05/1960:
“Bearing in mind the provisions of articles 1 and 2 of the exercise of customary and
similar rights of indigenous peoples, so far as they are in reality. still, it shall be such
that it is in accordance with the national interest and the State, which is based on the
unity of the nation and shall not contradict other higher laws and regulations.”
With reference to Article 2 paragraphs (2), (3) and (4) of Law No.05/1960, customary
land rights to be controlled by the State must be in accordance with the following
provisions:
Article 2 paragraph (2) of Law No.05/1960:
“The right of control of the State referred to in paragraph (1) of this article
authorizes to:
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a. regulate and administer the allocation, use, supply and maintenance of the
earth, water and space;
b. determine and regulate the legal relations between people and earth, water and
space,
c. determine and regulate legal relations between persons”
Article 2 paragraph (3) of Law No.05/1960:
“The authority derived from the right to control from the State in paragraph (2) of this
article is used to achieve the greatest prosperity of the people, in the sense of happiness,
welfare and independence in society and the Indonesian legal State that is independent,
sovereign, just and prosperous.”
And Article 2 paragraph (4) of Law No.05/1960:
“The right of control of the State above its exercise may be vested in Swatantra areas
and customary law communities, only necessary and not contrary to the national
interest, in accordance with the provisions of the Government Regulation.”
Regarding the existence of customary land claimed by the indigenous people of
Rempang Island as above, in Article 18B paragraph (1) and paragraph (2) of UUD
1945, it is explained as a legal recognition of the indigenous peoples of Rempang
Island, namely to provide the existence of these communities by affirming the state to
maintain its commitment in ensuring the legal protection of indigenous peoples, just
as it is to protect authenticity, the rich cultural tapestry belongs to the small Island.
where Article 18B paragraph (1) and paragraph (2) of UUD 1945 states that:
Article 18B paragraph (1) and paragraph (2) of UUD 1945:
(1) “The State recognizes and respects local government units of a special or special
nature regulated by law.”
(2) “The State recognizes and respects the unity of indigenous peoples and their
traditional rights as long as they are alive and in accordance with the development
of society and the principles of the Unitary State of the Republic of Indonesia, which
are stipulated in law.”
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The separation that occurs between special issues that regulated by Article 18B
paragraph (1) of UUD 1945 with the issue of customary rights and their limitations in
Article 18B paragraph (2) of UUD 1945 with these two things gives importance to
distinguish between the form of customary (legal) society and the old government that
is still alive and special.
That the rights of indigenous peoples, namely the people of Rempang Island, have also
been recognized in Article 5 of UNDRIP which reads:
Article 5 of UNDRIP :
“Indigenous peoples have the right to defend and strengthen their political, legal,
economic, social and cultural institutions. While retaining their right to take full part if
they also vote in the political, economic, legal, social and cultural life of the state.”
With the provisions in the UNDRIP it provides information that indigenous peoples,
especially the people of Rempang Island, have been recognized and have clear
provisions.
So that if Rempang Island is said to be the land of indigenous peoples, it must follow
the provisions described above, because both internationally, and nationally have
recognized the existence and regulation of customary law. But if not, of course the
transfer must follow the regulations that apply also in the relocation of the community.
Basically, according to Article 1 number (3) of PP No.19/2021, the actions taken by
the government should reflect and obey the provisions in terms of national strategic
project development which reads as follows:
“National Strategic Projects are projects and/or programs implemented by the Central
Government, Regional Governments, and/or business entities that have a strategic
nature to increase growth and equitable development in order to improve community
welfare and regional development.”
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So if we take the example above, with the development of a national strategic project,
namely Rempang Eco City, it must meet the requirements that the purpose of the
investment development project is for the public interest as explained in Article 1
number (7) PP No.19/2021 which reads:
“Public interest is the interest of the nation, state, and society that must be realized by
the Central Government / Regional Government and used as much as possible for the
prosperity of the people.”
That with the relocation and land acquisition, of course, there are provisions that need
to be considered, as explained in Article 1 number (2) of PP No.19/2021 which reads:
“Land acquisition is the activity of providing land by providing adequate and fair
compensation.”
With the land acquisition carried out by the government for communities affected by
relocation on Rempang Island for public interest and / or national strategic projects and
conversion must be in accordance with the provisions as explained in Article 42
paragraph (1) and paragraph (5) of PP No.19/2021 as follows:
Article 42 paragraph (1) of PP No.19/2021:
“In the event that the object of land acquisition for Public Interest and/or National
Strategic projects is on sustainable food agricultural land, conversion can be carried
out”, land and carried out in accordance with the provisions of laws and regulations.”
And Article 42 paragraph (5) of PP No.19/2021:
“The exemption of ownership of transferred Land Rights as referred to in paragraph
(2) point c is carried out by providing compensation in accordance with the provisions
of laws and regulations.”
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However, if indeed the land rights are community property rights and can be proven,
this becomes a new legal issue. If there is indeed an injustice in his relocation, then the
aggrieved community can of course claim his rights. Legal routes that can be taken, can
be against the law, to authorized government agencies. In this case, of course, it can be
BP Batam or other agencies. In addition, because the context is an investment, it can
also sue the company that will use the land. The lawsuit can be filed individually or in
class action. In the case of unlawful acts, of course we need to look at Article 1365 of
the Civil Code, unlawful acts can be defined as actions that harm others and require
the perpetrators responsible for these losses to compensate.
Regarding unlawful acts committed by government agencies and/or officials, as legal
remedies that can be taken by the community, for example Rempang Island related to
objections to the actions of the Government and/or superior officials who determine
and/or make decisions related to the relocation carried out, namely by filing a lawsuit
in accordance with the procedures contained in Articles 75 and 76 of Law No. 30/2014
which reads:
Article 75 of Law No.30/2014:
(1) Community Citizens who are aggrieved by a Decision and/or Action may submit an
Administrative Remedy to a Government Official or Superior Officer who establishes
and/or carries out a Decision and/or Action.
(2) Administrative measures as referred to in paragraph (1) shall consist of:
a. objections; and
b. appeals.
(3) Administrative remedies as referred to in paragraph (2) shall not delay the
implementation of the Decision and/or Action, except:
a. otherwise specified in law; and
b. incur greater losses.
(4) Government Agencies and/or Officials must immediately complete Administrative
Efforts that have the potential to burden state finances.
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(5) Application for Administrative Remedies is free of charge.
And also Article 76 of Law No.30/2014 which reads:
(1) Government Agencies and/or Officials are authorized to resolve objections to
Decisions and/or Actions determined and/or carried out submitted by Community
Citizens.
(2) In the event that a Community Citizen does not accept the resolution of objections
by the Agency and/or Government Officials as referred to in paragraph (1), the
Community Citizen may appeal to the Officer’s Superior.
(3) In the event that a citizen of the community does not accept the resolution of the
appeal by the superior official, the citizen of the community may file a lawsuit with the
Court.
(4) Settlement of Administrative Remedies as referred to in Article 75 paragraph (2)
relating to the nullity or invalidity of the Decision with or without claims for
compensation and administrative claims.
This is in line with Article 3 of Perma No.2/2019, to file a lawsuit, for government
actions in writing as explained as follows:
Article 3 of Perma No.2/2019 :
“Citizens of the Community may file a Claim for Government Action in writing with the
competent Court stating the reasons:
a. contrary to laws and regulations; and
b. contrary to general principles of good government.”
C. Conclusion
It can be concluded, basically the government in formulating a policy or project, must
pay attention to regulations and the benefit of the affected community. Especially it is
the surrounding community that is directly affected. Because in fact, a project must
certainly be based and based on the goals of community welfare.
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References :
• https://kemlu.go.id/frankfurt/id/pages/tentang_indonesia/4697/etc-menu
• https://www.google.com/amp/s/news.detik.com/berita/d-6941452/massa-gnpr[1]demo-soal-pulau-rempang-di-patung-kuda-ini-tuntutannya/amp
• https://www.google.com/amp/s/nasional.tempo.co/amp/1774182/4-janji[1]pemerintah-agar-warga-pulau-rempang-mau-relokasi-rumah-tanah-hingga-hpl
• https://www.google.com/amp/s/m.kumparan.com/amp/s-heru/konflik-tanah[1]ulayat-menggali-kearifan-lokal-di-pulau-rempang-21DGn2eivbr
• https://www.kompas.com/properti/read/2023/09/13/190538221/ini[1]perusahaan-di-balik-proyek-rempang-eco-city-yang-ditolak-warga?page=all
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