Urging the Government to Execute the Supreme Court Decision on the Transparency of HGU Information
We regretted the statement from the Minister of Agrarian Affairs & Spatial Planning/National Land Agency (ATR/BPN), Sofyan Djalil who refused to open the access to the data of Hak Guna Usaha (HGU/Rights to Cultivate Permit) by using the reason of jeopardizing the national interest, in this case protecting the palm oil industry.
The urge to open the HGU data has been requested for a long time by civil society. HGU is one of the information that must be allowed public access. This is referenced by the Decision of Komisi Informasi Publik (KIP/Commission of Public Information) who won the lawsuit of Forest Watch Indonesia (FWI) in the case No 057/XII/KIP-PS-M-A/2015 on July 22nd 2016 that is enforced by the decision no 121 K/TUN/2017 dated March 6th 2017. That decision instructed the Minister of Agrarian Affairs & Spatial Planning/National Land Agency (ATR/BPN) to release the HGU data that is still valid until 2016 in Central Kalimantan, East Kalimantan, West Kalimantan and North Kalimantan be it the information on the names of the permits’ holders, place/location, width of HGU lands granted, types of commodity, map of HGU land areas complete with the coordinates. However, it is still unavailable, ergo not submitted, until now.
“FWI recorded that from 2013-2018, The Ministry of ATR/BPN has been sued 11 times by civil society groups or individual for the case of information dispute related to HGU documents. Starting from Central Sulawesi, East Kalimantan, Bengkulu, Central Kalimantan, West Kalimantan, Aceh and the latest one from the verdict of Papua Commission of Information number: 004/III/KI-Papua-PS-A/2018 that stated the information requested by Legal Aid Institution (LBH/Lembaga Bantuan Hukum) of Papua related to 31 HGU of palm oil plantation companies in Papua until 2016-2017 are open,” said Agung Ady Setyawan, Campaigner of Forest Watch Indonesia (FWI).
Several disputes until now keep rolling in the Commission of Information in the Center or Regional level. Greenpeace Indonesia is currently undergoing trial for the HGU information dispute in Komisi Informasi Pusat (KIP/Central Commission of Information) toward the Ministry of ATR/BPN. “The government’s argument does not stand on any legal basis, contradicting with the Public Information Act and the verdict of Supreme Court. We support the step of YLBHI in giving the subpoena to the Ministry of ATR/BPN and proceeding with legal actions if the government still insisted on their action.” said Asep Komarudin, Forest Campaigner of Greenpeace Indonesia.
“The overlapping of permits, such as plantation permit located in the forest conservation areas, protected forest and peat lands until the conflict between the people with corporations will keep occurring in the future, and the deeds of ATR/BPN Ministry is a step backwards from information transparency also a bad example from state institution who disobeyed the Supreme Court verdict,” added Asep.
“The effort of obstructing HGU information in reality are also done by the Ministry of ATR/BPN through their policy of Ministry Regulation no. 7/2017),” said Raynaldo Sembiring, ICEL Deputy Director of Program Development. “The 61st article in that Ministry Regulation stated that only the interested parties are allowed to access HGU information. This is against the decision of KIP and PTUN which stated that HGU is public information. Furthermore, that Ministry Regulation (Permen/Peraturan Mentri) also stated that the providing of information will be further regulated in technical manual that has not existed yet. Even if the Minister of ATR/BPN insisted that HGU information as confidential information, then the President the revealed the HGU information in the presidential candidate debate could potentially face criminal charge based on Article 54 Verse (1) of UU KIP with the maximum penalty sentencing of 2 years in prison,” he stated.
“Based on the 12th Law of 2011 on the Establishment of Legislation, the position of Ministry Regulation is only technical administrative in its nature and not with the power to give an exception, added or reducing anything that has been regulated by the higher legislative laws, especially related to the citizens information rights guaranteed by Constitution. Therefore, this Permen is contradicting with the Constitutions, Court Verdict and Indonesian 1945 National Constitution especially Article 28F. If forwarded then the Minister can be viewed as acting arbitrarily (Onrechtmatige overheidsdaad),” said Charles Simabura, Lecturer of Constitutional Law from The Law Faculty of Andalas University.
Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI/Indonesian Legal Aid Institution) subpoenaed the Minister of ATR/BPN on 11/3/2019 to publish/open the access of HGU data & information.
The ATR/BPN minister will be reported to the Republic of Indonesia Police Headquarter if within 1 week period does not submit to the demand of opening the public access to HGU data. “The demeanor of ATR/BPN ministry who refuses to open the public access to HGU data, repeatedly ignore the Court’s verdict and decision of auxiliary body institutions such as Commission for Public Information is an insult to the law supremacy and human rights. Minister of ATR/BPN could be convicted if he did not comply with the demand of opening the public access to HGU data & information,” said Era Purnama Sari, YLBHI Deputy Chief of Advocacy.
Since the final verdict of HGU information disputes that stated HGU information as public/open information, then the Minister of ATR/BPN must comply and execute the verdict. Article 11 verse (2) of UU KIP also stated that the information stated as open for the result of dispute result then it will automatically be the public-access information that must be available at all times. The Public Body that deliberately refused to give or publish public information and causing loss for other people could be convicted according to Article 52 of Law No. 14/2008 on the Keterbukaan Informasi Publik (UU KIP/Law on the Transparency of Public Information). That official will be sentenced with maximum 1 year of prison and/or maximum penalty fee of Rp 10.000.000 (Ten Million Rupiahs)
The disobeying of the verdict and issuing of Ministry Regulation above has proven that the Minister of ATR/BPN deliberately refused to give and/or published the public information, in this case HGU. Even though the closing of HGU information has caused loss and widely affected the life interests of many people due to its contributions in causing agrarian conflicts and inequality of land ownership. Not counting the derivative effects such as forced eviction and criminalization toward the people living and settling around the HGU areas especially the peasants or indigenous peoples.
Perkumpulan HuMa Indonesia (HuMa/Community & Ecological Based Society for Law Reformation), up to December 2018, documented 326 conflicts occurring in 158 regencies/cities within 32 provinces, with total conflicts areas of 2.101.858,221 Ha, involving 286.631 victims, consisting of 176.337 indigenous peoples and 110.294 local residents. Categorized by its sector, the conflicts in plantation and forestry are the most sectors with conflicts occurring within in Indonesia. The plantation sectors with 156 conflicts in 619.959,04 Ha involving 46.934 victims. While the conflicts on forestry sector with 86 conflicts in 1.159.710, 832 Ha involving 121.570 victims. On the other hand, the companies/corporations are the party causing the most conflicts, meaning that it’s involved in 221 conflicts, in agrarian and natural resources.
Konsorsium Pembaruan Agraria (KPA/Consortium for Agrarian Reform) recorded that in 2009-2018 periods there are at least 3.168 agrarian conflict eruptions in all provinces of Indonesia. From that amount, 1.194 conflicts erupted in the plantation sector causing forced land grabbing through the unilateral issuing of HGU that are overlapping with the cultivation and residential areas of the people.
“One of the roots of the problem in agrarian conflicts is related to the overlapping of Company’s HGU and the people’s lands. Company’s HGU from the people’s lands should be easily accessed by the public. If the information on HGU based from the public are inaccessible meaning that the ATR/BPN must be evaluated by the President,” said Ronal M. Siahaan, Manager of Environmental Law & Litigation of WALHI. Mainly, HGU of the palm oil corporations also donated to the environmental destruction, the ruining of agricultural lands and public economy. One of the example is the case of PT Waringin Agro Jaya, starting from 2007, PT Waringin Agro Jaya have opened the canal filters causing the decrease of agricultural productivity in the Areal Region of Lebak Belanti. In 2008, the overall flooded lands of Lebak Belanti are ± 2.708 Ha. There is no exit gate/canal for the water flooding the Lebak area causing it to periodically suffer from flood. For 10 years, the areas has been drowned and filled with growing shades & moss as thick as ± 1,5 Meters. The destruction of agricultural lands will cause state losses for 10 years and even more than that if not resolved properly as soon as possible.
“The transparency of public information in Natural Resources management is becoming the most fundamental issue for the indigenous peoples. The indigenous peoples never know about the process of issuing the HGU permit and the establishment of forests area on their indigenous region,” said Arman, AMAN Director of Advocacy Policy, Law and Human Rights.
“Based on the result of temporary data overlay done by AMAN, the spread of lands with HGU permits overlapping with indigenous regions are occurring in 307 indigenous community that are included in HGU, with total area width of 313.687,38 Ha” he continues.
Similar with agrarian reform program (a la President Jokowi), AMAN assessed that the AR program currently implemented by the government, will potentially be the new source of indigenous region seizure conflicts due to the unavailability of clear information on the locations of Tanah Objek Reforma Agraria (TORA/Agrarian Reform Land Objects) and the inexistence of law on the recognition of indigenous peoples and their indigenous territory. From temporary data overlay by AMAN, showed overlapping the TORA location with the indigenous regions spread on 24 Regencies/Citied with the total width off 383.729,21 Ha,” affirmed Arman.
In line with that, the Consortium for Agrarian Reform’s Head of Campaign & Knowledge Management, Benni Wijaya stated that, “The concealment of HGU also caused the stagnation in the implementation of agrarian reform in these 4 years. Even though, agrarian reform is one of the priority promises of Jokowi-JK Presidency. The various civil society organizations has submitted the data of conflict areas to the government to be prioritized in its agrarian conflict resolution. One of the data is the data of Lokasi Prioritas Reforma Agraria (LPRA/Agrarian Reform Priority Locations) that has been proposed by KPA since 2017. Out of the 462 LPRA locations submitted, 224 locations with the total width of 411.465 Ha are conflicted with the HGU permits, be it the HGU of State Companies (such as PTPN) or the HGU of private companies.
The demand of agrarian reform is not just because it is the promise of the current reigning government. But Agrarian Rform is the constitutional mandate that must be implemented by the President of Indonesia as the Mandates’ holder and implementer. One of the initial steps to execute that mandate is for the government to open the public access to HGU data which will be corrected further in order to resolve agrarian conflict and inequality of land ownership.
“The urgency of opening the HGU data also related to the State’s Income, if HGU information are still confidential, then the public will be oblivious and unable to oversee how much the income of our state provided by plantation industry,” said Vera Falinda, Program Office of TuK Indonesia.
This Coalition urges the Minister of ATR/BPN to obey the Supreme Court’s Verdict to open the public access to HGU. If disobeyed at least a week after receiving the Subpoena, then this Coalition will file a criminal report on the Minister of Agrarian Affairs & Spatial Planning/National Land Agency (ATR/BPN). This Coalition will also reminded the President to instruct and ensure that the Minister of ATR/BPN will open the public access to HGU data and utilized those data resolve agrarian conflicts. If not, then the Coalition will consider this as disobedience to Law & Human Rights done by the Minister of ATR/BPN as the action of the regime, meaning that it is done with the Blessings of the President.
CIVIL SOCIETY COALITION FOR THE PUBLIC ACCESS OF HGU DATA
YLBHI, Eknas Walhi, FWI, KPA, Sawit Watch, HUMA, TuK Indonesia, Auriga, AMAN, ICEL, Greeapeace, Elsam
Jl. Pancoran Indah I Blok E3 No.1
Komplek Liga Mas Indah, Pancoran
Jakarta Selatan 12760, Indonesia
Telp: +62 21 7984540 Fax: +62 21 7993934