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The Applicant accompanied by Applicant’s Attorney Muhammad Sholeh delivered petition points at preliminary session on Act of Agrarian Basic Regulation, on Monday (9/6), at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

Five Surabaya residents filed judicial petition on Act Number 5 Year 1960 of Agrarian Basic Regulation (Undang-Undang Nomor 5 Tahun 1960 tentang Peraturan Dasar Pokok-Pokok Agraria –UU Agraria) to the Constitutional Court (Mahkamah Konstitusi –MK). It was filed due to their lands which had possessed by them for decade, was claimed by Surabaya regional government.

Represented by Muhammad Sholeh as Applicant’s Attorney, the Applicant revealed their house was claimed by the Surabaya government as government’s land. It was because, the Applicant and other ten thousand residents had no possession certificate and only had a lease letter called ‘green letter’. “In the 1970s, Surabaya residents was requested to submit the letter of their ground on the pretext it would be raised its status to be certificate. However, it turned out the result was a green letter, instead of possession certificate,” said him at the session of case number 62/PUU-XIII/2015.   

According to Sholeh, residents of about 26 districts out of 31 districts only have green letters. In other words, one-third of the Surabaya city was claimed as Government’s land and the people who living in the Government’s land should have to pay the rent. He explained that several local residents had filed a lawsuit to the court but never won, either in the first level, the second, or the Supreme Court. They submitted the lawsuit to the District Court and the State Administrative Court.

The Applicant and several Surabaya residents also had to struggle in political attempt through Surabaya Legislative Council (Dewan Perwakilan Rakyat Daerah Surabaya –DPRD Surabaya) and regional government, however they both always stated that the land was regional assets. The Applicant also strove justice to the National Land Agency (Badan Pertanahan Nasional –BPN), but it wasn’t responded. “The Applicant always gets rejection by the National Land Agency, under the reason that the land is government’s assets. However, the National Land Agency never agreed when we request to them to show the certificate,” Sholeh affirmed. 

Therefore, the Applicant requested to the Constitutional Court to provide Constitutional interpretation towards Article 7, Article 9, and Article 17 Act of Agrarian in order to grant certainty of land and building ownership. The Applicant requested the norms to be conditionally constitutional be interpreted that the land owned by the regional government legal entity was only covered the land used by regional government institutions.

 

Article 7 Act of Agrarian stated:

"In order to not harm the public interest, the ownership and control of land which exceed the limits is not allowed." (“Untuk tidak merugikan kepentingan umum maka pemilikan dan penguasaan tanah yang melampaui batas tidak diperkenankan.”).

Article 9 (2) Act of Agrarian stated”

 “"Every Indonesian citizen, both men and women have equal opportunities to obtain rights over the land and for the benefit and the results, both for themselves and their families." (“Tiap-tiap warga negara Indonesia, baik laki-laki maupun wanita mempunyai kesempatan yang sama untuk memperoleh sesuatu hak atas tanah serta untuk mendapat manfaat dan hasilnya, baik bagi diri sendiri maupun keluarganya.”).

Article 17 (1) Act of Agrarian stated:

 “Subject to the provision on Article 7, to achieve the objective stated in Article 2 (3) is regulated the maximum and or minimum broad of land which allowed to be owned under such rights in Article 16 by one family or legal entity.” (Dengan mengingat ketentuan dalam Pasal 7 maka untuk mencapai tujuan yang dimaksud dalam Pasal 2 ayat (3) diatur luas maksimum dan/atau minimum tanah yang boleh dipunyai dengan sesuatu hak tersebut dalam Pasal 16 oleh satu keluarga atau badan hukum.”).

 

Concrete Case

Responding the petition, Justice Panel led by Constitutional Justice Patrialis Akbar accompanied by other Constitutional Justices Maria Farida Indrati and Manahan M.P. Sitompul said the petition filed was a concrete case and not a constitutional case towards the 1945 Constitution.

Moreover, Justice Panel asked the Applicant to explain the meaning of Applicant arguments which said Surabaya regional government claimed the lands in Surabaya was because the land was previously belong to the Dutch government, in fact the lands owned by the resident was claimed as Government’s land since the colonial period.

“Please explain the meaning. There are two kinds of land, both claimed by regional government and supported by some regulations, isn’t it? Please revise,” said Constitutional Justice Maria Farida.

Justice Panel also asked to the Applicant to revise the petitum, because several petitums could cause the Court to be positive legislator due to it would change the norm of Act, whereas the Court was negative legislator. (Lulu Hanifah/Prasetyo Adi N)

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