Legal counsel Mohammad Erzad Kasshiraghi at the preliminary hearing of Law No. 1 of 2004 on the State Treasury, Monday (3/18/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — M. Robin Salam, a 64-year-old resident of Makassar City, has filed a material judicial review petition of Article 1 point 10 of Law No. 1 of 2004 on the State Treasury on the definition of state property to the Constitutional Court (MK). The petition stems from a concrete case on an inherited land that was claimed by the Indonesian Army (TNI AD).

“The Army [in this case] Kodam XIV/Hasanuddin claimed that the land is state property and has been registered as such in [the state property management and accounting information system] SIMAK BMN,” legal counsel Mohammad Erzad Kasshiraghi said at the preliminary hearing for case No. 38/PUU-XXII/2024 on Monday, March 18, 2024.

Article 1 point 10 of the State Treasury Law reads, “State Property is all goods purchased or procured at the expense of State Budget (APBN) or derived from any other legal acquisitions.” The Petitioner believes it has led to legal uncertainty and interpretation that restrict the Petitioner’s constitutional rights, especially his right to have legal certainty over his land property.

The Petitioner inherited from his father, Haji Abdul Kadir Salam who died on July 21, 1992, a piece of land as evidenced by certificate of title (SHM) No. 10/1998, survey certificate No. 4/1956 (replacement of the lost SHM No. 1070/1956), survey certificate No. 4/1956, all registered in the name of Haji Abdul Kadir Salam. In short, the land was formerly under state control through the Army in 1968. According to the Army, it had physical control of the land at that time because it had made an underhand sale and purchase with Abdul Fattah, who claimed to be the owner. After a long process, on January 30, 2003, the Army [in this case] Kodam VII Wirabuana returned the land voluntarily to the Petitioner. However, on September 6, 2021, the Army [in this case] Kodam XIV/Hasanuddin (formerly Kodam VII/Wirabuana) came to take physical control of the land by installing a banner stating that the land belonged to the TNI AD [in this case] Kodam XIV/Hasanuddin.

The Petitioner could file a land dispute lawsuit against the State [in this case] the Army in the general court, but he believes that the root cause is the misinterpretation of the definition of “state property.” Legislation related to state/regional property—i.e. laws, government regulations, or ministerial regulations—all defines state property following Article 1 point 10 of Law No. 1 of 2004 on the State Treasury.

“The definition of ‘state property’ as referred to by Article 1 point 10 of the a quo Law is multi-interpretive, which has led to legal uncertainty, since such a definition has made the Petitioner’s father’s land a state property, when the State through the Army had purchased the a quo land with a sum of money coming from the state budget, even though his father as the legitimate owner had not sold it to anyone including the State [in this case] the Army,” said Erzad.

In the petitum, the Petitioner requests that the Court declare Article 1 point 10 of the State Treasury Law not unconstitutional if interpreted as “In the event that the goods purchased or acquired at the expense of the State Budget are in the form of land, the status as state property only applies after the land is certified in the name of the Government of the Republic of Indonesia.”

Justices’ Advice

The hearing was presided over by Constitutional Justices M. Guntur Hamzah, Enny Nurbaningsih, and Anwar Usman. Justice Guntur said that the Petitioner must make a strong argument to explain his legal logic and also revise the petitum following pas decisions where the Court ruled the norm being petitioned conditionally constitutional.

“Please observe Constitutional Court decisions where the petitum requests the ruling of conditionally constitutional and it was granted by the Court,” he said.

Author         : Mimi Kartika
Editor          : Lulu Anjarsari P.
PR               : Raisa Ayuditha
Translator     : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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