Youngky Fernando as attorney of the Petitioner in the judicial review hearing of the Agrarian Law on Wednesday (12/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The petition for judicial review of Article 21 paragraph (3) and Article 26 paragraph (2) of Law No. 5/1960 on Basic Regulations on Agrarian Principles (Agrarian Law) was rejected by the Constitutional Court (MK). The Decision No. 101/PUU-XV/2017 was read out at the Plenary Courtroom on Wednesday (12/2). The Constitutional Court considers the norm not contradictory to the 1945 Constitution because the matter challenged by the Petitioner is a matter of the implementation, not constitutionality, of the law.

"The verdict heard, declared rejecting the Petitioner\'s petition for the whole," said Chief Justice of the Constitutional Court, Arief Hidayat, in the ruling of case No. 101/PUU-XV/2017.

Oltje J.K. Pesik as Petitioner argued that Article 21 paragraph (3) and Article 26 paragraph (2) of the Agrarian Law had the potential to impair her constitutional rights. She claimed the phrase "by law" and "other acts which are meant to transfer the right of ownership directly or indirectly" in both articles have multiple interpretations that led to legal uncertainty for the citizen or Petitioner seeking legal truths in the Cibadak Religious Court, the Religious High Court of Bandung, and the Religious Affairs of the Supreme Court. He considered that the phrase also indirectly transfers the property of the Petitioner to a foreign national. According to him, the phrase raised the question of constitutionality because the meaning of the phrase "by law" is immediately valid without further legal process.

In the legal considerations read by Constitutional Justice Manahan Sitompul, the Court is of the opinion that the matters which the Petitioner deems a matter of the constitutionality of the norms of the law are in fact a matter of the application of the law. The concrete issue, that is the failure of the Petitioner to register the right to land due to the Cibadak Religious Court Decision No. 101/Pdt.G/PA.Cbd, dated February 26, 2008; Decision of the Bandung High Court No. 89/Pdt.G/2008/PTA.Bdg, dated October 30, 2008; and Decision of the Supreme Court of Justice No. 336/K/AG/2009 dated July 17, 2009. "To such concrete case, the Court has no authority to judge it," Justice Manahan said.

Justice Manahan added, regardless of the absence of arguments developed by the Petitioner arguing that the phrase "because of the law" in Article 21 paragraph (3) and in Article 26 paragraph (2) of the LoGA create multiple interpretations, the Court is of the opinion that, in support of the argument, the phrase "because of the law"—which is equivalent to"by law"—in both the LoGA articles is clear. The phrase “by law,” which in Latin is called "ipso jure" is a phrase that has been universally applied to show the law commanding it so it cannot be interpreted otherwise.

As to the proposition of the phrase "because of the law" in Article 21 paragraph (3) of the Agrarian Law which is judged to have multiple interpretations, the Court is of the opinion that the phrase is equivalent to "by law". In relation to the a quo article, Justice Manahan added, if any foreigner after the enactment of the a quo law obtains property rights due to inheritance without a will or combination merger of property due to marriage, similarly its applicability to Indonesian citizens, whoever owns property and after the enactment of the a quo law loses their nationality shall be obliged to relinquish such right within a period of one year from the date of his right or citizenship. "So if after that period the property rights are not relinquished, the right is abolished "because the law commands so"and the land falls to the state’s hands, provided that the rights of the other party that burdens it remain," Justice Manahan explained.

Furthermore, to the argument that considers the phrase “other acts which are meant to transfer the right of ownership directly or indirectly" in Article 26 paragraph (2) of the Agrarian Law, Justice Manahan affirmed that the context is clear. That is because, a contrario, the norm actually prohibits the sale and purchase, exchange, grant, giving with will and other acts intended to \'directly\' and \'indirectly\' transfer ownership to foreigners, to a citizen who beside Indonesian citizenship has foreign citizenship, or to legal entity, except as stipulated by the Government in Article 21 paragraph (2) of the Agrarian Law.

In addition to these considerations, Justice Manahan mentioned that the Court is of the opinion that the a quo petition can be considered obscured. Therefore, in her petitum the Petitioner requested that the Court declare the a quo norms contradictory to the 1945 Constitution, while on the other hand the Petitioner stated that the a quo norms is contradictory to the 1945 Constitution as long as it is not interpreted as “because the law without necessarily going through a process” so the Petitioner requested that the a quo norms be declared conditionally unconstitutional. "Thus, it becomes unclear what the Petitioner really wants, whether the a quo articles are unconstitutional or conditionally unconstitutional," he said. (Sri Pujianti/LA/Yuniar Widiastuti)