Will the land acquisition bill violate human rights?

Kurnia Toha, Jakarta

We have often heard about the public rejection of the bill on land acquisition that is now being debated by the House of Representatives.

The reasons for the objections, among others things, include the potential for human rights violations, since people must release their land for the public good and there might be potential conflicts between the people against land-hungry private parties.

Land rights are very important human rights that need the state’s protection. The principle of land rights cannot be taken by anyone without the approval of the land holders. But this does not apply absolutely, because there are many rights of the people or public interests that the state has to meet.

In order to fulfill the public interest, sometimes the state or government has to acquire land with or without the people’s consent. Of course, this requires regulations in order not to violate human rights. In the US this principle is regulated in the Fifth Amendment to the US Constitution, which states that property cannot be taken for public purposes without just compensation.

Thus, the US constitution justifies the negation of people’s land rights without the land owners’ approval provided that it complies with the due process of law and provides just compensation.

The same principle is also found in Article 28 H (4) of Indonesia’s 1945 Constitution, which states that property rights must be respected and should not be seized by anyone arbitrarily.

The Constitution implies that land rights can be taken by the government as long as it is not conducted arbitrarily. The question is how it can be done.

The first condition of course is approval of the land right holders. However, we also know that frequently that right holders are not willing to release their rights for whatever reason or purpose. If this happens, then the public interest will be the victim of personal interests.

In order to overcome this controversy, the internationally accepted provision is that land rights can be taken without the approval of holders of the rights provided that they meet specific requirements, namely, to go through the process in accordance with the principle of the law and as regulated in the law. This requirement is also known by the term in accordance with the due process of law.

Based on this stipulation, the land acquisition process should be transparent to provide sufficient information to the parties affected. Communities can ask questions and submit objections concerning a project site and the amount of compensation.

The second condition is that acquiring land rights must be in the name of public interest, i.e., in the interests of all or most of the people.

The third condition is that right holders deserve fair compensation. By fulfilling these requirements, land acquisitions should not violate human rights.

The applicable regulations regarding land acquisition for public interests is Presidential Decree No. 36/2005 which was amended by Presidential Decree No. 65/2006. There are some weaknesses in these regulations, however.

The use of presidential decrees to govern land acquisition is not in accordance with the principles of the legislation. Acquisition of land is closely related to human rights, therefore it must be governed by a regulation that involves the people or their representatives.

In terms of substance, a decree neither expressly regulates the right of the land holders to information nor the right to file an objection or the right to fair compensation. Similarly, the provision regarding the amount of compensation is based on the tax rate (NJOP) which is clearly much lower than the market price.

With so many weaknesses in the decree, there is a clear need for a law on land acquisition that respects human rights, especially the holders of land rights. In the draft bill on land acquisition there are several provisions that are missing.

First, the draft law regulates and defines development activities that are clearly classified as in the public interest. Second, in order to acquire land, the planning and preparation for the land acquisition must be carried out involving the community. People who object to the plan and/or location of the project have the right to file an objection.

Third, compensation as stipulated in Article 36 of the draft bill states that the calculation of damages will be conducted by an independent appraiser of each item, including building, plants, objects related to the land and/or other losses which can be assessed. Losses include both physical and non-physical items. Similarly, the amount of compensation is based on deliberations by parties who are entitled to compensation and the valuations by an appraiser.

The bill does not explain how the procedure or system used by the assessors will be carried out in determining the amount of compensation. The parties who object to the compensation may appeal to the district court, thus there is an opportunity to examine compensation in a manner open to the public.

In addition, the draft law also regulates restrictions on land acquisition for private business interests, which according to existing regulation are absent, thus it can occur over an entire island or private land.

Regulations on land acquisition are indispensable for the implementation of development in every nation in the world. Therefore the state has the authority to conduct acquisition of land for the public interest while respecting the due process of law and providing fair compensation.

The bill on land acquisition in some respects is in compliance with these principles and even far more democratic and more respectful of human rights than the previous regulations. The bill is certainly not perfect, such as the need for further regulations concerning the valuation of the compensation system, so it is necessary for the public to give constructive inputs.

The writer is chairman of the graduate program in natural resources law (FHUI) at the University of Indonesia’s law school.


(2011-5-18/thejakartapost)