Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (“Minister”) issued a new Regulation No.21 of 2020 on Handling and Settlement of Land Cases (“Regulation No.21/2020”), which revoked Regulation No.11 of 2016 on Settlement on Land Cases (“Regulation No.11/2016”). From a dispute resolution perspective, the main differences between Regulation No.21/2020 and Regulation No.11/2016 are as follows:
Ministry Initiative to Settle a Land Cases
Under Regulation No.11/2016 Ministry of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (“Ministry”) may settle a land conflict by its initiative. However, Regulation No.21/2020 abrogated the Ministry initiative. Under Article 3 Paragraph (1) Regulation No.21/2020 only regulates that to handle and settle land dispute cases, the Ministry accepts any complaints that originate from any of the following parties:
- individuals or community members;
- community groups;
- legal entities;
- government agencies; and
- technical units of Ministry, Regional Office of the Provincial National Land Agency (“Kanwil”) and regency/municipal land offices (“Kantah”).
Based on the above explanation, although the Ministry’s ability to initiatively settle a land dispute has been abolished by Regulation No.21/2020, the technical units under the Ministry, Kanwil or Kantah may file a complaint towards land cases.
Case Handling Classification
Regulation No.11/2016 does not stipulate any classification on case handling to differentiate the land settlement mechanism. However, Regulation No.21/2020 differentiate land cases into 3 (three) classification into severe, moderate, and minor cases.
A severe case means the case that involves multiple parties, have complex legal dimensions, and/or have the potential to cause social, economic, political, and/or security-related unrest (“Severe Cases”). must be carried out subsequently with the following mechanism:
- case study
- initial examination
- coordination meeting
- final examination
- case settlement
The complete mechanism as described above is not mandatory for land cases classified as moderate and minor which in general are having lower complexity to handle.
A Broad Terminology on Legal Product
Regulation No.11/2016 only specifically stipulated the cancelation of land rights and land certificates. However, Regulation No.21/2020 is using “Legal Product” as a broader terminology which opens a new possibility to cancel any legal product issued by Ministry, Kanwil or Kantah provided that the mentioned legal product intentionally issued as a state administrative decision (Keputusan Tata Usaha Negara). Regulation No.21/2020 defines a legal product as the decision of state administrative officials on the land sector (e.g., Ministry, Kanwil and Kantah) (“Legal Product”).
Additional Reasons to Cancel the Legal Products
As stipulated under Regulation No.11/2016, a Legal Product may be canceled for 11 (eleven) reasons. However, Regulation No.21/2020 has a more detailed description of how a Legal Product may be canceled. There are 17 (seventeen) reasons to cancel the Legal Product (“Defect”) which make it detail than Regulation 11/2016.
Unlike the previous regulation, Regulation 21/2020 includes court decision as an administrative reason to cancel the Legal Product as follows:
- if there is a final and binding criminal court decision that proves that there is a counterfeit, fraud, embezzlement, and/or any criminal action in connection with the Legal Product; and
- if there is a consideration under a court decision that indicates the defect on (i) the Legal Product issued by the Ministry or (ii) the transfer of rights procedure.
Detail Provision on Cancelation Based on Final dan Binding Court Decision
Normatively, a final and binding court decision shall be enforced. However, as set out under Article 37 Regulation No.21/2020 there are 9 (nine) conditions that make court decisions unenforceable, this number of exceptions is more detailed than the previous regulation which only stipulated 3 (three) exceptions. Furthermore, Regulation No.21/2020 regulates how and which court decision (amar putusan) may be used as a legal basis to cancel the Legal Product. The mentioned provisions may help the judges to draft an enforceable court decision and lawyers (or principal) to draft the civil claim since it is now uniformed.
Settlement by Customary Institutions
Regulation No.21/2020 opens new possibilities to customary institutions to settle land cases. If a land case is settled by customary institutions (lembaga adat), the settlement evidence must be formalized in an authentic deed and/or registered to the district court (“Settlement”). The Settlement may be enforced by the Ministry, Kanwil or Kantah provided that it does not violate the prevailing laws and regulations in Indonesia.
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Dianyndra K Hardy, Jurisdito Hutomo H