This is because the definition of
forest area in Law Number 41 Year 1999 concerning Forestry (hereinafter
referred to as UUK) is formulated as follows: "Forest area is a certain
area designated and / or stipulated by the government to maintain its existence
as permanent forest."
Based on this definition, it can
be concluded that land designated as forest area, both certified and
uncertified, can be equated with forest areas that have been determined (Soelthon,
2018). Although it is further
explained in Article 14 of the UUK that legal certainty over forest areas can
be guaranteed after forest area confirmation is carried out through the
following stages: forest area designation, forest area boundary demarcation,
forest area mapping and forest area designation. Referring to these provisions,
the areas designated by the government as forest areas should not have legal
certainty as forest areas because they are only in the early stages of
confirmation of forest areas.
The Forest areas that are still
in the designation stage cannot be used as a reference as permanent forest
areas, it is considering that forest area designation is only done on paper
based on the coordinates contained in the attachment to the forest area
designation decree. It can create problems because in some areas, forest areas
overlap with the rights of third parties. The rights of third parties include,
Ownership Rights, Business Use Rights (HGU), Building Use Rights (HGB), Use
Rights, Management Rights and other written evidence that is recognized and in
accordance with laws and regulations in the land sector.
An example is HGU Number 01 dated
May 13, 2003 on behalf of PT. Nunukan Jaya Lestari in North Kalimantan
Province, which overlaps with a forest area with the function of Limited
Production Forest (hereinafter referred to as HPT) based on the Decree of the
Minister of Forestry Number SK.718 / Menhut-II / 2014 dated 29 August 2014
concerning Forest Areas in East Kalimantan and Kalimantan Provinces North and
even the forest area has been burdened with a Business Permit for Utilization
of Industrial Forest Timber Forest Products (IUPHHK-HTI) on behalf of PT.
Adindo Hutani Lestari.
Apart from HGU, there are also
Freehold Certificates (hereinafter referred to as SHM) which overlap with
forest areas. For example SHM Number 106 dated 19 June 1981 in the name of M.
Rustam and SHM Number 484 dated 23 August 2005 in the name of H. Ruslan Abdul
Gani in South Kalimantan which overlaps with a forest area with the function of
Permanent Production Forest (hereinafter referred to as HP) based on a
Ministerial Decree. Forestry Number SK.435 / Menhut-II / 2009 dated 23 July
2009 concerning Designation of Forest Areas in South Kalimantan Province.
In Law Number 5 of 1960
concerning Basic Agrarian Principles (hereinafter referred to as UUPA), HGU and
SHM are evidence of land rights management, in addition to other evidence as
referred to in Article 16 Paragraph (1) of the UUPA, where the HGU holder and
SHM is given the authority to use the land concerned for the purpose of
directly using the land. The common thread that can be drawn on the overlapping
issue between HGU and SHM as well as other land rights with designation of
forest areas is the similarity of objects of land which are encumbered with
land rights and those designated as forest areas. Where land rights and designation
of forest areas are both carried out on state land. So that many land rights
are granted and forest area designations occur in the same area.
If the designation of a forest
area is carried out before the land is encumbered with land rights, then it is
clear that the issuance of the land rights is not in accordance with the
procedure for granting land rights where if the land to be granted land rights
is a forest area, then granting rights to the land can be carried out and if
the land to be granted land rights is issued from the forest area (Amos,
2007).
Therefore, the research problem
of this study is formulated as follows:
1. Characteristics of resolution
of forest area violation dispute in Indonesia based on Supreme Court Decision
Number 269K / TUN / 2018;
2. The legal basis for the judge
in the Supreme Court Decision Number 269K / TUN / 2018 dated 7 June 2018;
METODE
This research is normative legal research, namely
legal research carried out by researching and examining statutory regulations
including research on legal principles, legal systematics, legal
synchronization levels, and legal history governing the granting of business
utilization permits and community forest.
RESULTS
AND DISCUSSION
A.
Analysis of the characteristics of
forest area violation dispute resolution based on Supreme Court Decision Number
269K / TUN / 2018 in Indonesia.
Article 1 number 10 of Law Number 51 of 2009
concerning Second Amendment to Law Number 5 of 1986 concerning State
Administrative Courts regulating state administrative disputes is a dispute
that arises in the field of state administration between a person or civil
legal entity and an entity or state administrative officials, both at the
central and regional levels, as a result of the issuance of state
administrative decisions including employment disputes based on the prevailing
laws and regulations. Apart from that, Article 1 point 12 regulates that the
disputing parties are individuals or civil legal entities with state
administrative bodies or officials, both at the central and regional levels.
Defendant is a state administrative body or official who issues a decision
based on the authority available to him or delegated to him who is being sued
by a civil person or legal entity.
The reasons that can be used in filing a lawsuit
are regulated in Article 53 paragraph 2 of Law Number 9 of 2004 concerning
Amendments to Law Number 5 of 1986 concerning State Administrative Courts is
that the state administrative decision being sued is contrary to the prevailing
laws and regulations; and the state administrative decision being challenged is
against the general principles of good governance. Lawsuits are also filed
within a grace period of 90 days from the receipt or announcement of the Decree
of the State Administrative Agency or Official. For the party whose name is
stated in the State Administrative Decree being sued, the 90
day grace period is calculated from the day the State Administrative
Decree being challenged is received.
The State Administrative Court also applies the
presumption of innocence as contained in the criminal procedural law. A State Administration
official prior to a judge's decision who has permanent legal force stating that
he is wrong in making a State Administrative Decree or in other words a State
Administration Decree is still considered valid (not against the law), before a
judge's ruling has power permanent law which declares the decision invalid
(against the law). Therefore, a State Administration Decree can be sued will
not cause delays in the implementation of the decision.
Article 72 of Law no. 5 of 1986 concerning State
Administrative Courts regulates the trial in absentia or the trial takes place
without the presence of the defendant. In the event that the defendant or his
attorney is not present at the trial twice in a row and / or does not respond
to the lawsuit without a justifiable reason even though each time it has been
properly summoned, the Chief Judge of the trial with a letter of determination
asks the defendant's superior to order the defendant to be present and / or
respond to the lawsuit. In the event that after two months have passed after
being sent by registered letter of the ruling as intended, no news is received
from both the defendant's and the defendant's superior, the trial judge
determines the day for the next trial and the dispute examination will be continued
according to the normal procedure, without the defendant's presence. A verdict
on the subject of the claim can be passed only after a thorough examination of
the evidentiary aspect has been carried out (Anonim, 2010).
The dispute settlement process is carried out
through the court or what is often referred to as "litigation", which
is a dispute settlement carried out by proceeding in court where the authority
to regulate and decide is exercised by the judge. This dispute resolution
process resulted in all disputing parties facing each other to defend their
rights in court. The final result of a dispute resolution through litigation is
a decision stating a win-lose solution.
Conventional dispute resolution carried out
through a court has been carried out for hundreds of years or even thousands of
years ago. The settlement of land disputes whether they are submitted to the
general court in civil or criminal terms through the courts. If the dispute is
regarding illegal land settlement or illegally allowed by Government
Regulations in Lieu of Law No. 51 of 1960 concerning the Prohibition of Use of
Land without a Rightful Permit or Proxy, the settlement is through the state
administrative court.
In the context of dispute resolution decided by
the Supreme Court through the Supreme Court Number 269K / TUN / 2018, the
dispute resolution is resolved through a litigation mechanism. This is because
the dispute that took place between PT Nunukan Jaya
Lestari versus PT Adindo Hutani
Lestari and the Minister of Agrarian and Spatial Planning / Head of the National
Land Agency was resolved through the judiciary, which at the end point of the
dispute's journey had reached the peak of dispute resolution by the highest
judicial institution, namely Supreme Court.
It is considering that the object of dispute is
included in the realm of state administration, it can be said that this State
Administration dispute has characteristics that are also distinctive when
compared to other disputes in general, especially those related to the
principles applicable in the law of procedure. The legal principles that apply
to State Administration dispute resolution (TUN) are: The principle of
presumption of innocence (vermoeden van rechtmatigheid or praesuptio iustae causa), the principle of free proof (vrij bewijs), the principle of
the activeness of the judge (dominus litis), the principle of court decisions
having legally binding as "erga omnes". Although the substance of the plaintiff's
lawsuit is civil in nature, the State Administration dispute is a public legal
dispute. Therefore, the decision of the State Administrative Court must apply
generally to anyone, not only limited to the disputing parties (Fuady, 2005).
The relationship between the legal principles of
the state administrative court to exercise control over government actions in
the field of public law must pay attention to the following characteristics:
1)
The characteristics of a state administration decision which always
contains the principle of praesumptio iustae causa, namely a State Administrative Decree (Beschikking) must always be considered valid as long as it
has not been proven otherwise so that in principle it must always be
implemented immediately;
2)
The principle of protection of the public or public interest that
stands out in addition to the protection of individuals;
3)
The principle of self-respect or self-obedience of government officials
towards administrative court decisions, because there are no direct coercion
attempts through bailiffs as is the case in civil law procedures.
The Supreme Court Decision Number 269K / TUN /
2018 is a decision to resolve litigation disputes characterized as state
administrative disputes. The Supreme Court as the last bastion or as the
highest peak of the level of judicial institutions in Indonesia, it must be
understood that the Supreme Court in issuing legal considerations is not based
on legal facts (judex facti), as in the first level
court and the level of appeal, but The Supreme Court itself decides the case (petitum), is based on the application of law or observes
whether or not the application of law (judex jure) is in a court that is below
its level.
The existence of the Supreme Court Decision Number
269K / TUN / 2018, is to decide on the dispute case regarding the Decree Number
1 / Pbt / KEM-ATR / BPN / 2016 dated July 25, 2016
concerning the Cancellation of Business Use Rights Number 01 / Nunukan Barat dated May 13 2003 on behalf of PT Nunukan Jaya Lestari on an area of 19,974, 130 ha. The
fulcrum for the dispute over SK Number 1 / Pbt /
KEM-ATR / BPN / 2016 dated July 25, 2016, is related to administrative
decisions issued by TUN officials, in this case the Minister of Agrarian
Affairs and Spatial Planning / Head of the National Land Agency, if It is
analyzed that the TUN decision was born due to an administrative violation
committed by PT Nunukan Jaya Lestari where this
company according to the interpretation of the minister of agararia
and spatial planning, as a TUN official has controlled the land which is called
plantation land but in fact the land is categorized as a production forest
area.
According to the interpretation of the Minister of
Agrarian Affairs and Spatial Planning / Head of the National Land Agency that
there are indications of forest area violations by PT Nunukan
Jaya which is viewed from an administrative perspective, due to the facts in
the field based on the results of joint research in the field from an
integrated team, the plantation area of PT Nusa Jaya Lestari ( PT NJL)
according to HGU No. 01 dated May 12, 2003, it is known that the HGU location
claimed by PT NJL has an area of � 19,974.13 hectares, of which � 17,092.26
hectares is located in the Forest Zone with the function of Production Forest.
The results of the author's research prove that
the dispute resolution is related to administrative decisions from state
administration officials, in this case the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency, the content of the
decision is the Cancellation of Business Use Rights No. 01 / West Nunukan on behalf of PT Nunukan
Jaya Lestari with an area of 19,974,130 ha, located in Nunukan
Barat Village, Nunukan District, Nunukan
Regency, North Kalimantan Province. The cancellation of the HGU by the
minister, for PT NJL, is considered an adverse administrative decision.
The dispute decided by the Supreme Court, of
course, has tested it according to the applicable laws and regulations based on
Law Number 5 of 1986 in conjunction with Law No. 9 of 2004 concerning State
Administrative Courts in Article 53 paragraph 1 and paragraph 2 letters a, b.
In Article 1, it is stated that if there is a person or legal entity who feels
that their interests have been harmed by a TUN Decree, they can submit a
written suit to the competent Court containing demands that the disputed TUN
Decree be declared null and void, with or without a claim for compensation and
/ or rehabilitation therefore the Party who feels aggrieved.
B.
Analysis of the legal basis of
judges in the Supreme Court Decision Number 269K / TUN / 2018 dated 7 June 2018.
In general, the function of the ratio decidendi or
legal reasoning is as a means of presenting points of thought about the
problems of legal conflicts between one person and another, or between the
community and the government on cases that become controversial or
counterproductive to become replicas and duplicates of examples, especially
concerning the good and bad of the system of law enforcement and
implementation, the attitudes of the legal apparatus and the judiciary.
Whereas the format of the ratio decidendi in the
judge's decision is stated in a legal proposition. Proposition in this context
is a premise that contains judges' considerations. This proposition can be
expressed explicitly or implicitly. This reminds us of another definition of
the ratio decision from Sir Rupert Cross in the book 'Precedent in English Law'
which states that "Any rule expressly or impliedly treated by the judge as
a necessary step in reaching his conclusion" means that every rule
expressed or implied which is applied by the judge as a necessary step in
reaching a conclusion.
Based on the legal considerations of the panel of
judges at the Supreme Court, the authors summarize the main points of the
decidendi ratio from the Supreme Court judge's decision, as follows:
1)
The decision to cancel the HGU by the Minister of
Agrarian Affairs and Spatial Planning / Head of the National Land Agency
according to the considerations of the panel of judges of the Supreme Court may
adversely affect the decision holder, namely PT Nunukan Jaya Lestari;
2)
The Court considers that the cancellation of the
PT Nunukan Jaya Lestari HGU certificate, through the Decree of the Minister of
Agrarian Affairs and Spatial Planning / Head of the National Land Agency, there
is a substantive administrative legal flaw, because the land that the HGU has canceled
is an area that overlaps with the area claimed. by PT Adindo Hutani Lestari,
the object of the dispute must be canceled, not in the category of material
dispute object.
Based on the 2 decidendi ratios, the court issues
a petitum or amar of the following rulings:
1)
Declare the cancellation of the Decree of the
Minister of Agrarian and Spatial Planning / Head of the National Land Agency
Number 1 / Pbt / KEM-ATR / BPN / 2016 dated 25 July 2016 concerning
Cancellation of Business Use Rights Number 01 / Nunukan Barat dated 13 May 2003
on behalf of PT Nunukan Jaya Lestari covering an area of 19,974,130 hectares is
located in Nunukan Barat Village, Nunukan District, Nunukan Regency, North
Kalimantan Province (formerly East Kalimantan);
2)
Require the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency to revoke the Decree of the
Minister of Agrarian and Spatial Planning / Head of the National Land Agency
Number 1 / Pbt / KEM-ATR / BPN / 2016 dated July 25, 2016 concerning Cancellation
of Business Use Rights Number 01 / Nunukan Barat dated May 13, 2003 on behalf
of PT Nunukan Jaya Lestari covering an area of 19,974,130 hectares located in
Nunukan Barat Village, Nunukan District, Nunukan Regency, North Kalimantan
Province (formerly East Kalimantan); Obliged to the Minister of Agrarian
Affairs and Spatial Planning / Head The National Land Agency issued a Decree on
the Cancellation of Business Use Rights Certificate (HGU) Number 1 / Nunukan
Barat dated May 13, 2003 on behalf of PT Nunukan Jaya Lestari with an area of �
3,500 Ha. which overlaps with the area of Business Permit for Utilization of
Timber Forest Products - Industrial Plantation Forest (IUPHHK-HT) on behalf of
PT Adindo Hutani Lestari and simultaneously issues a Decree on Granting
Business Use Rights covering an area of � 16,474,130 Ha. to PT Nunukan Jaya
Lestari;
3)
Require the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency to issue a Decree on the
Cancellation of Business Use Right Certificate (HGU) Number 1 / Nunukan Barat
dated May 13, 2003 on behalf of PT Nunukan Jaya Lestari, with an area of �
3,500 Ha. which overlaps with the area of Business Permit for Utilization of
Timber Forest Products - Industrial Plantation Forest (IUPHHK-HT) on behalf of
PT Adindo Hutani Lestari and at the same time issued a Decree on Granting
Business Use Rights covering an area of � 16,474,130 Ha. to PT Nunukan Jaya
Lestari.
Observing the Decidendi Ratio (legal
considerations) of the panel of judges of the Supreme Court as stipulated in
the Supreme Court Decision Number 269 K / TUN / 2018 dated June 7 2018,
according to the author's analysis of the decidendi ratio, if it is related to
forest area violations, that the deciden ratio is not quite right , so that the
decision issued by the Minister of Agrarian and Spatial Planning / Head of the
National Land Agency through the Decree of the Minister of Agrarian and Spatial
Planning / Head of the National Land Agency Number 1 / Pbt / KEM-ATR / BPN /
2016 dated July 25, 2016 concerning Cancellation of Business Use Rights Number
01 / Nunukan Barat dated May 13, 2003 on behalf of PT Nunukan Jaya Lestari, is
correct (Veronica, 2015).
According to the author, it is inaccurate, the
Supreme Court's legal considerations in the first dictum are "having a
detrimental impact on decision-holders". According to the author (Sudjito, n.d.), when viewed from the point of view of the
General Principles of Good Governance (AAUPB) or Algemene Beginselen van
Behoorlijk Bestuur or Good Governance, the cancellation of the HGU is
appropriate. From the AAUPB's point of view, the thing that is usually put
forward is the principle of legal certainty as an integral part of the AAUPB
itself. In the context of state administration by state apparatus, in this case
state administration officials, a state administration decision issued within
the framework of the AAUPB is not allowed to abandon a principle known as the
principle of legal certainty. This principle is an integral part of the AAUPB
itself (Seyyed, n.d.).
In this connection, the TUN decision in the
context of AAUPB, was born as a form of legal protection and used as an
instrument to increase legal protection for citizens from government action.
This means that the existence of AAUPB in government administration is as a
guide or guide for the government or state administrative officials in the
framework of good governance. Muin Fahmal stated that the general principles of
proper governance are actually the guidelines for state administrators in
carrying out their duties. These signs are needed so that actions remain in
accordance with the true objectives of the law, so that the AAUPB can be
likened to a traffic sign and a travel guide in order to facilitate government
relations, namely between the government and the governed or members of the
community. The AAUPB is then used as a basis for assessment and administrative
efforts, and as an unwritten legal norm for government actions when it is about
to issue decisions of an administrative nature (Indroharto, 1993).
It is in the context of this discussion that the
author wants to emphasize that AAUPB has the following important functions and
meanings:
1)
For state administration, it is useful as a guide
in interpreting and applying vague, vague or unclear statutory provisions.
Except that at the same time limiting and avoiding the possibility of state
administration using freies ermessen / implementing policies that deviate far
from statutory provisions. Thus, the state administration is expected to avoid
the actions of onrechtmatige daad, detournement de pouvoir, abus de droit, and
ultravires;
2)
For citizens, as justice seekers, AAUPB can be
used as a basis for a lawsuit as referred to in article 53 of Law Number 5 Year
1986 .
3)
For TUN Judges, it can be used as a means of
testing and canceling decisions issued by TUN bodies or officials;
4)
AAUPB is also useful for the legislative body in
drafting a law.
So according to the author's argument for the
panel of judges at the Supreme Court when deciding the case in casu PT Nunukan
Jaya Lestari against the Minister of Agrarian Affairs who in the petitum
declared the Decree of the Minister of Agrarian and Spatial Planning / Head of
the National Land Agency Number 1 / Pbt / KEM-ATR / BPN / 2016 dated 25 July
2016 concerning the Cancellation of Business Use Rights Number 01 / Nunukan
Barat dated 13 May 2003 on behalf of PT Nunukan Jaya Lestari covering an area
of 19,974,130 hectares located in Nunukan Barat Village, Nunukan District,
Nunukan Regency, North Kalimantan Province (formerly Kalimantan East), at least
in legal considerations, one must pay attention to the important principles
that underlie the birth of a TUN official decision, namely the principle of
legal certainty which is the foundation for the establishment of the AAUPB (Solechan, 2019).
The author analyzes the case of PT Nunukan Jaya
Lestari against the Minister of Agrarian Affairs, so there are several legal
facts that should be new findings for the panel of judges from the Supreme
Court, namely: the process of issuing HGU owned by PT NJL, was born from an
illegal act criminal responsibility can be asked, so that in terms of the
principle of legal certainty, it can be seen that the issuance of the HGU has
administrative defects as stated by the Minister of Agrarian and Spatial
Planning / Head of the National Land Agency, as the author quotes in the First
Level Administrative Court Decision as follows:
That from the process of issuing the Right to Use
Business Certificate No. 1 / West Nunukan on behalf of PT. Nunukan Jaya
Lestari, which was not in accordance with the procedure, resulted in a criminal
case making forged letters, as referred to in the criminal decision of the
Samarinda District Court No. 140 / Pid.B / 2013 / PN.Smda Jo. No. 33 / Pid /
2014 / PT.Smda, with the defendant Sukodi, SH bin Domo Kartika (former Head of
the Land Rights Division of the Regional Office of the East Kalimantan National
Land Agency as a member of Committee B and the criminal verdict of the
Samarinda District Court No. 141 / Pid.B /2013/PN.Smda, with the defendant Purwanto,
SH bin Mulyo Rejo (former Head of the Section for the Granting of Rights to
Legal Entities of the East Kalimantan Regional Office of the National Land
Agency as the Secretary of Committee B), whose anger stated that the defendant
Sukodi, SH bin Domo Kartika and Purwanto, SH bin Mulyo Rejo was legally proven
and convicted of guilt of committing a criminal act by jointly making false
papers and imposing a sentence on the defendant with imprisonment for 6 (six)
months. Both criminal decisions have permanent legal force (Amriani, 2014).
Whereas in legal consideration the criminal
verdict of the Samarinda District Court No. 140 / Pid.B / 2013 / PN.Smda Jo.
No. 33 / PID / 2014 / PT.Smda and decision No. 141 / Pid.B / 2013 / PN.Smda,
the defendant Sukodi, S.H bin Domo Kartika and Purwanto, S.H bin Mulyo Rejo, explained
that the Minutes of the Committee for Land Examination B No. 01 / RPT-PAN.B2003
dated 12 March 2003 was made not based on actual field physical facts, as
referred to in the Minutes of Location Inventory Results dated February 10,
2003 which became one of the references to be brought to the committee meeting
B, it was explained the condition of the land being requested for locations
that have not yet been opened, there are 3 (three) years old Industrial
Plantation Forest (acacia trees) belonging to PT. Adindo Hutani Lestari
covering an area of + 1,400 Ha, but in the conclusion of the Minutes of the
Soil Inspection Committee B No. 01 / RPT-PAN.B2003 dated March 12, 2003, it was
not included / it was not stated that the requested location contained acacia
plants belonging to PT. Adindo Hutani Lestari covering an area of + 1,400
hectares, so that the area of land use rights for PT. Nunukan Jaya Lestari is
partly located in the area of PT. Adindo Hutani Lestari resulted in a lost
opportunity for PT. Adindo Hutani Lestari to manage acacia plants and the
overlapping land of PT. Nunukan Jaya Lestari with Industrial Plantation Forest
Concession land owned by PT. Adindo Hutani Lestari ... "
So according to the author's argument, the
existence of the Decree of the Minister of Agrarian and Spatial Planning / Head
of the National Land Agency Number 1 / Pbt / KEM-ATR / BPN / 2016 dated 25 July
2016 concerning Cancellation of Business Use Rights Number 01 / Nunukan Barat
dated May 13, 2003 on the name PT Nunukan Jaya Lestari, is an integral part of
the criminal execution to cancel the PT NJL HGU certificate, because the
issuance of the PT NJL HGU certificate in question, in the issuance process
there is an element of criminal action, so that in the context of upholding the
principle of legal certainty, the Decree of the Minister of Agrarian Affairs
and Administration Room / Head of the National Land Agency Number 1 / Pbt /
KEM-ATR / BPN / 2016, is not in conflict with AAUPB. So the ratio decidendi of
the court which states on the grounds that ... it can have a detrimental impact
on the decision-holder ... is not correct, because according to the author,
once again what must be considered or used as a legal reason is by referring to
the principle of legal certainty that the basis of The issuance of the Decree
of the Minister of Agrarian and Spatial Planning / Head of the National Land
Agency Number 1 / Pbt / KEM-ATR / BPN / 2016 is included in the category of
part of the criminal law execution decision, so it cannot be used as the object
of a PTUN dispute (Yuslim, 2015).
From the author's explanation, it can be concluded
that the Decidendi Ratio of the Supreme Court Decision Number 269 K / Tun /
2018 is not appropriate, as the basis for producing a petitum which decrees
that "Decree of the Minister of Agrarian and Spatial Planning / Head of
the National Land Agency Number 1 / Pbt is canceled. / KEM-ATR / BPN / 2016
dated 25 July 2016 concerning Cancellation of Business Use Rights Number 01 /
Nunukan Barat dated 13 May 2003 on behalf of PT Nunukan Jaya Lestari covering
an area of 19,974,130 hectares located in Nunukan Barat Village, Nunukan
District, Nunukan Regency, Province North Kalimantan (formerly East Kalimantan)
�.
According to the author's analysis, the Decree of
the Minister of Agrarian and Spatial Planning / Head of the National Land
Agency Number 1 / Pbt / KEM-ATR / BPN / 2016 dated 25 July 2016 concerning the
Cancellation of Business Use Rights Number 01 / Nunukan Barat dated 13 May 2003
on behalf of PT Nunukan Jaya Lestari covering an area of 19,974,130 hectares is
located in Nunukan Barat Village, it is appropriate, considering that PT Nunukan
Jaya Lestari, was proven to have committed violations of forest areas, both
from a criminal law perspective and from an administrative law perspective.
From a criminal law point of view, the violation is the basis for the issuance
of the PT Nunukan Jaya Lestari HGU certificate, based on physical data
falsified by individuals at the BPN Office (formerly still BPN East
Kalimantan), while from an administrative law point of view, the plantation
permit received by PT NJL in Production Forest Areas, which should have been
exchanged for forest areas, as regulated in Article 49 of Government Regulation
Number 104 of 2015 concerning Procedures for Changing the Designation and
Function of Forest Areas, but in fact, the exchange of forest areas is not
carried out by PT Nunukan Jaya Lestari. That is, it is at this point in the
opinion of the author that PT Nunukan Jaya Lestari has committed a violation
against the forest area.
CONCLUSION
The characteristics of
dispute resolution of forest area violation in Indonesia which refer to the
Supreme Court Decision Number 269K / TUN / 2018, are dispute resolution with a
litigation model that has the characteristics of state administrative or
administrative disputes, because the object of the dispute is the State
Administration decision, namely a letter Decree of the Minister of Agrarian
Affairs and Spatial Planning / Head of the National Land Agency Number 1 / Pbt / KEM-ATR / BPN / 2016 dated 25 July 2016 concerning
Cancellation of Business Use Rights Number 01 / Nunukan
Barat dated 13 May 2003 on behalf of PT Nunukan Jaya
Lestari covering an area of 19,974, 130 Ha located in Nunukan
Barat Village; (ii) Decidendi Ratio The Supreme Court Decision Number: 269 K /
TUN / 2018 dated 7 June 2018, states as follows: that the Decree of the
Minister of Agrarian and Spatial Planning / Head of the National Land Agency
regarding the Cancellation of HGU PT Nunukan Jaya
Lestari, could have a detrimental impact on the holder the decision was PT Nunukan Jaya Lestari.
Then according to the
court that there is a substantive administrative legal flaw, because the land
that the HGU has been canceled is an area that overlaps with the area claimed
by PT Adindo Hutani
Lestari, then the object of the dispute must be canceled, not in the category
of material dispute object. According to the author's analysis, the Decidendi
Ratio of the Supreme Court's decision is not quite right. First, in the context
of the principle of legal certainty, that the object of dispute is not included
in the PTUN Decree, because the Decree of the Minister of Agrarian and Spatial
Planning / Head of the National Land Agency Number 1 / Pbt
/ KEM-ATR / BPN / 2016, is an integral part of the execution of criminal law
against The act of document forgery committed by officials within the North
Kalimantan National Land Agency (formerly East Kalimantan), in issuing the PT Nunukan Jaya Lestari HGU certificate, proved that the
physical data as the basis for the birth of the HGU for PT NJL, did not match
the actual facts, because it was proven to be falsified by unscrupulous
officials within the East Kalimantan BPN environment, based on a State Court
Decision which has permanent legal force. The Supreme Court's consideration
regarding the overlapping area of the area between PT Adindo
Hutani Lestari and PT Nunukan
Jaya Lestari, covering an area of � 3,500 hectares, is also inaccurate, because
it must be understood that the area claimed to be the overlap is a
representation that PT Nunukan Jaya Lestari has
committed violations of forest area violations, due to the fact that PT Nunukan Jaya Lestari, made forest areas into oil palm
plantation areas, without exchanging forest areas, as regulated in Article 49
of Government Regulation Number 104 of 2015 concerning Procedures for Changing
the Designation and Function of Forest Areas.
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�Dispute Resolution of Violation of
Indonesian Forest Area Based on the Decision of The Supreme Court Number 269 K
/ TUN / 2018