ANSWER SHEET

LAND LAW ASSIGNMENT

CLASS B

Gracia Monica P.H.

17/411443/HK/21213

1. Arguments of the Government

With regards to Article 21, The ease of licensing for investment is not only given to foreign companies but
also Indonesian companies. The government argues that under Article 13 of the law it is stated that the
government have the obligation to conduct coaching for the small business entities (such as koperasi and
UMKM). Therefore, the government submits that this article is in fact not contrary to the Article 28D
Paragraph (1) and Article 28H Paragraph (2) and Article 33 Paragraph (3) of the 1945 Constitution.

As for Article 22 Extension in advance at the same time as granting land rights for investors is an incentive
but implemented if it meets the requirements as stated in Article 22 Paragraph (2) of the Law. The land
rights can only be renewed after evaluation; that is whether the land is still being used and cultivated
properly with the circumstances, nature, and purpose of granting rights. These rights can be revoked by
the government if the investor abandoning the land, harming public interests, using or utilizing the land
not in accordance with the aims and objectives of granting rights to the land, and violating the provisions
of laws and regulations in the land sector. Therefore, the government submits that this article is non-
discriminative since it gave the same rights to the local and foreign investor and it does not violate Article
33 of 1945 Constitution.

2. Arguments of the Constitutional Court

With regards to Article 22 the court argues that there are two main issues that must be assessed (i)
whether the granting of rights to land that can be renewed in advance is a violation to the term “controlled
by the state” as stated in Article 33 (3) , 1945 Constitution , (ii) whether the granting of rights to land that
can be renewed in advance is a violation to principle of democratic economy as stated in Article 33 (4) ,
1945 Constitution.

First, the court argues that this article is created to give convenience for investor to obtain rights to land.
The convenience of extending the upfront rights will only be given if the investor succeeds in passing
several categories of set out in elucidation. The court also argues that the giving of rights to land is not a
violation to the principle of control by state because;

(a) it concerns about the welfares of the people by Such restriction in distribution means that economic
resources will also be more evenly distributed and in the end the goal of equal distribution of prosperity
for the people will be achieved. Since the rights given such as HGU< HGB is only temporary.

(b) granting such HGU, HGB, and Use Rights facilities does not negate or reduce the state's authority to
carry out its mandate given by the people collectively to carry out management actions (bestuursdaad),
regulation (regelendaad), management (beheersdaad), and supervision (toezichthoudensdad).

However for the second issue the court argues that, although the HGU, HGB, and Usage Rights which can
be extended in advance at the same time the state is said to be able to terminate or cancel at any time,
the reasons for such termination or cancellation have been determined in a limitative manner. Therefore
it violates the principle of democratic economy and weakens the people

3. My Opinion

I agree with the opinion of the court because I think if we talk from the perspective of investors and profits,
this article makes it very easy in terms of investment. But again we have to see, that even though the
government has said that whenever they can revoke their license, it is impossible for the government to
do this without paying attention to investors, because it can make investors reluctant to invest. So this is
considered to be subordinate to society and violates the principles of democratic economy.