CURRENT DEVELOPMENT ON LAND CASES MECHANISM IN INDONESIA

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:
a. individuals or community members;
b. community groups;
c. legal entities;
d. government agencies; and
e. 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:

a. case study
b. initial examination
c. research
d. dissemination
e. coordination meeting
f. final examination
g. 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 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 cancelled for 11 (eleven)
reasons. However, Regulation No.21/2020 has a more detailed description of how a Legal
Product may be cancelled. 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:

a. 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
b. 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.

Kindly contact info@ssa-advocates.com for more information.

Dianyndra K Hardy, Jurisdito Hutomo H