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Revised Capital City Law creating legal confusion, violates Constitution: YLBHI

CNN Indonesia - October 5, 2023

Jakarta – Article 42 in the recently enacted revisions to the State Capital Law (IKN Law) has been criticised for confusing the legal structure and conflicting with a number of existing regulations and laws. Such articles are known as "Sapu Jagat" articles, or all encompassing articles.

The presence of this article will cause in a number of articles in the IKN Law to conflict with previous regulations, because it makes it illegal to stop the construction and transfer of the capital city from Jakarta to Nusantara in East Kalimantan or to pass any law conflicting with the IKN Law.

Article 42 Paragraph (1) reads:

a. All provisions in legislation that conflict with the policies for implementing activities for the preparation, development and relocation of the National Capital, as well as the administration of the Special Regional Government for the Archipelago Capital; and

b. legislation that regulates regional administration, are declared invalid.

Indonesian Legal Aid Foundation (YLBHI) Director Muhammad Isnur says that the existence of this article is an indication that the House of Representatives (DPR) and the government have lost their common sense, and lost their grip on legal standards in the law.

"Laws are not allowed to conflict with the UUD 1945 [1945 Constitution]. The government and the DPR have made a law in the interests of investors that collides with everything (as well as) other interests", Isnur told CNN Indonesia on Thursday October 5.

Isnur called these methods authoritarian actions by the government and the DPR and said they showed that the law is being used as a tool to secure power arbitrarily, undermining the principles of the rule of law and trampling on the Constitution.

Isnur is of the opinion that Article 42 will confuse the legal structure.

"Clearly, this misleads the public from the existing legal structure. This indicates that greed or arbitrariness is taking place, committed by the Government and the DPR", he said.

Several other articles are seen as conflicting with existing regulations, one of which is Article 12 that gives wider powers to the IKN Authority.

The IKN Authority is given authority over central and regional government affairs in the context of carrying out preparations, development, the transfer and administration of the special IKN regional government.

This article is considered to be in conflict with the law on regional governments because it combines the authority of central and regional affairs.

Then, Article 16A is seen as conflicting with the Basic Agrarian Law (UUPA) because investors can obtain business permits to use or cultivate land (HGU) for up to 190 years. Meanwhile, under the 1960 UUPA, HGUs are given to investors for a maximum of 60 years.

Article 16A reads in full:

"In the case of HAT [Land Rights] which are agreed to as referred to in Article 16 Paragraph (7) in the form of cultivation rights, they are granted for a maximum period of 95 (ninety five) years through the first 1 (one) cycle and can be granted again for 1 (one) second cycle with a maximum period of 95 (ninety five) years based on the criteria and stage of evaluation".

Meanwhile Article 29 of the Basic Agrarian Law reads:

"(1) Cultivation rights are granted for a maximum period of 25 years. (2) For companies that require a longer period of time, they can be granted cultivation rights for a maximum period of 35 years."

Indonesian Forum for the Environment (Walhi) National Executive forestry and plantation campaign manager Uli Arta Siagian said she was shocked to see the government willingly confusing the legal structure for the sake of the interests of investors.

"For the sake of investment and development, this one law could have consequences for [many] other laws", said Siagian when contacted.

According to Siagian, the government seems unfit for be called a state administrator. She believes it is more appropriate to call the government a state trader.

She noted that a 190 year HGU is the same as the lifetime of three generations, meaning that the government has pawned off the lives of three generations of East Kalimantan residents. "Selling off the homeland to investors as the buyers", she said.

The DPR officially enacted the Draft Law on Revisions to Law Number 3/2022 on the New Capital City into law at a plenary meeting on Tuesday October 3. Eight out of the nine political party factions in the House declared their agreement with the revisions to the law.

The eight factions that agreed with the revisions were the ruling Indonesian Democratic Party of Struggle (PDI-P), the Golkar Party, the Greater Indonesia Movement Party (Gerindra), the National Democrat Party (NasDem), the National Awakening Party (PKB), the United Development Party (PPP), the National Mandate Party (PAN) and the Democrat Party, who agreed with a proviso, while the Justice and Prosperity Party (PKS) opposed the revisions.

Representing the government, the Minister for National Development Planning and the head of the National Development Planning Agency (Bappenas), Suharso Monoarfa, conveyed President Joko "Jokowi" Widodo's final views on the law at the plenary meeting. He underlined the importance of revisions to the IKN Law in order to realise the vision of Golden Indonesia 2045.

"The amendments to the IKN Law are needed to provide a legal basis for the acceleration of the preparation activities, development and transfer of the state capital, as well as the administration of the Nusantara capital city special regionalal government that is more effective, optimal, accountable, and of course sustainable", Monoarfa said as quoted on the official Bappenas website on Tuesday. (yla/pmg)

[Translated by James Balowski. Some addition text was added to the second paragraph to provide context for non-Indonesian readers. The original title of the article was "YLBHI Kritik Keras 'Pasal Sapu Jagat' di UU IKN".]

Source: https://www.cnnindonesia.com/nasional/20231005113620-12-1007438/ylbhi-kritik-keras-pasal-sapu-jagat-di-uu-ik