adhiprasetyo

Friday, April 21, 2006

Law Intervention on Act No. 18 Year 2004 is a must

People right on land is a basic right for all human and people also have rights to cultivate the land which is based on independent and freedom to decide the land management. Relationship between human and land is relationship which have characteristic on socio religious, so land is not just as production asset.

Parliament and government already made sanction on Act No. 18 year 2004 on Plantation on August 11, 2004. Act No. 18 year 2004 on Plantation still view the land as just a production asset. We could see it by new model of displacement on this act. If the plantation company need the land which have relationship based on socio religious characteristic and its already own or cultivate by the people and/or indigenous people, so both of party shall to have deliberation on it. The deliberation has to based on collective agreement reached. Act No. 18 year 2004 on Plantation not apply basic principles on deliberation because it already directed to transfer the land and receive the payment.[1]

The model of displacement on Act No. 18 year 2004 on Plantation actually not really new because it just another model from Internal Affairs Ministry Regulation No. 15 year 1975 which already replace by President Decree No. 55 year 1993. Displacement model application on this act is against basic human rights on land which have independent and freedom characteristic on its management.

The state have to fulfill the people rights on land as basic human rights and also have to regulate land property and to guide its utilization, so that all land throughout the Nation's sovereign territory be used for the maximum prosperity of the people, individually as well as mutually. Excessive ownership and control of land are not permitted and the state as guarantor has to run the function to distribute the land to fulfill the people rights on land as basic human rights.

Department of Agriculture already made plantation classification based on who control the plantation became three parts, there are peasant's plantation, big state plantation and big private plantation. Statistic data of Department of Agriculture show that until 1999, peasant plantation is the biggest area of 11,612,000 has. The second position is big private plantation by 2,220,000 has and the third is big state plantation by 989,000 has.

Although statistic data already showed that peasant plantation is the biggest area but Act No. 18 year 2004 on Plantation just have orientation on big state and private plantation. Act to determining maximum and minimum of land for plantation based on modal, factory capacity, company developing and technology. [2]

Peasants who want to get land utilization for peasant plantation will get minimum area of land because usually peasant plantation just use modal on small scale. Big plantation will make modal accumulation more and more to reach production target and market expansion by using assumption that the company will get bigger profit.

If we talk on the context of peasant plantations, we won't find peasant/s have his/their own processing factory. It different with big state and private plantation which have their own processing factory and selling management and this is the picture of plantation business cartel, control from the beginning until downstream.

The peasants always using local mechanism based on local wisdom and local values but the government always regard that the peasants are un technology. Actually, the government already had wrong perception on view of using technology which always using machine and chemical. The government always thinks that intensification and diversification on plantation is just a matter of increasing production numbers to reach out the target by using agriculture machine, chemical and GMO seeds.

We also could find that big private and state plantation as an orientation of Act No. 18 year 2004 on Plantation on plantation permit awarding based on vast of land area, factory capacity, kind of plants, technology, modal and workers.[3]

Same thing in the numbers of production. The quantities of peasant plantation production on 1999 reach out for 8,343,000 tons. The quantity of big private plantation production on 1999 reach out 4,049,000 tons and big state plantation reach out 2,918,000 tons. That statistic data showed us that peasant plantation is the biggest production numbers to supply the state needs and also state income.

Paradigm is one of tool for legislator to make act objectively. Act No. 18 year 2004 on Plantation need complete paradigm approach. Herewith the three elements of complete paradigm approach:

a. Environmental sustainability. This is a fundamental element for human being and state because the elements assert based on human philosophy for community and state with its environment.

b. Economically feasible. The element is a part of from fundamental element to process environmental framework.

c. Socially acceptable. This is a certain and permanent element on human lives cause human live on community space order which dependent each others to defend and increase human standard living.

Act No. 18 year 2004 on Plantation give priority to economic function which means there is no change on paradigm. The pre requirement on plantation development is environmental sustainability not economically feasible. Environmental sustainability becomes the fundamental function because it has function to sustain the natural resources which support the plantation effort. The experience had shown that economic feasible never count risks for long period and also they never put social cost on economic feasible parameter.

The Legal Provision of People Consultative Assembly No. IX year 2001 on Agrarian Reform and Natural Resources Management clearly mandate the government to make review of all regulation on agrarian reform and natural resources management. The Legal Provision of People Consultative Assembly No. IX year 2001 on Agrarian Reform and Natural Resources Management also mandate to solve the conflicts based on agrarian resources. In this case are conflicts based on plantation which caused by expropriation on human basic rights on land.

Program development priority region is an area that full of natural resources authorization and management conflicts, especially agrarian conflicts that has been already coordinated in the peasant organization, such as:

1. Badan Perjuangan Petani North Sumatera (BPPSU), coordinating 27 cases on agrarian conflicts within 177.658 Ha at large and 14.031 KK victims.

2. Persatuan Persaudaraan Tani Nelayan Nusantara (P2TANRA) West Sumatera, coordinating 14 cases on agrarian conflicts within 9.263 Ha at large and 1.200 KK victims.

3. Kesatuan Solifromtas Kesejahteraan Petani (KSKP) South Sumatera, coordinating 38 cases on agrarian conflicts within 86.951,04 Ha at large and 957 KK victims.

4. Ikatan Petani Lampung (IPL), coordinating 13 cases on agrarian conflicts within 32.270,16 Ha at large and 2.281 KK victims.

5. Paguyuban Patani Tatar Sunda (PATAS), coordinating 20 cases on agrarian conflicts within 11,604.4 Ha at large and 15,270 KK victims.

6. Organisasi Tani Jawa Tengah (ORTAJA) and Serikat Tani Merdeka (SeTAM), coordinating 11 cases on agrarian conflicts within 3,959.75 Ha at large and 6,034 KK victims.

7. Paguyuban Patani Jawa Timur (PAPANJATI), coordinating 51 cases on agrarian conflicts within 27,030,106 Ha at large and 198,785 KK victims.

8. West Kalimantan Peasant Alliance, coordinating 30 cases on agrarian conflicts within 5.500 Ha at large and 2.000 KK victims.

9. East Kalimantan Peasant Alliance, coordinating 17 cases on agrarian conflicts within 4.000 Ha at large and 1.500 KK victims.

10. Aliansi Petani Nusa Tenggara Barat coordinating 14 cases on agrarian conflicts within 4.500 Ha at large and1500 KK victims.

11. Gorontalo Peasant Community, coordinating 5 cases on agrarian conflicts within 2.986 Ha at large and 415 KK victims.

12. North Sulawesi Peasant Community, coordinating 6 cases on agrarian conflicts at 2.500 Ha at large and 400 KK victims.

13. Aliansi Tani Nelayan (ATN) South Sulawesi, coordinating 8 cases on agrarian conflicts within 23.526 Ha at large and 4.059 KK victims.

Act No. 18 year 2004 on Plantation put the Legal Provision of People Consultative Assembly No. IX year 2001 on Agrarian Reform and Natural Resources Management on its consideration but we could not find an article at all which regulate to solve the conflicts based on agrarian resources.

On early analysis, we assume that Act No. 18 year 2004 on Plantation is contravene with the constitution, especially on:

1. Article 28D subsection 1 of the Constitution, everybody have rights on confession, guarantee, protection and fairness the rule of law as well as equity in front of the law.

2. Article 28H subsection 4 of the Constitution, everybody have right to own private property rights and the right could not take over arbitrary by everyone.

3. Article 33 of the Constitution obliges the State to regulate land property and to guide its utilization, so that all land throughout the Nation's sovereign territory is used for the maximum prosperity of the people, individually as well as mutually.

At present, the implementation of Act No. 18 year 2004 on Plantation already made 5 peasants into jail with accusation of expropriation in Central Java (peasant criminalization). Who actually did the expropriation, the plantation company with help from the state or peasants? The peasants just want to get their land back. They just fight for their rights.

It's crucial to make an intervention on Act No. 18 year 2004 on Plantation as soon as possible because the act already marginalizes the peasants and also contravene with the constitution. The legal bases to make an intervention on Act No. 18 year 2004 are:

1. Article 24C subsection 1 of the Constitution, Constitutional Court has the power to be competent to try on the first degree and the last for final decission to examine the act to constitution.

2. Article 28C subsection 2 of the Constitution, everybody have rights to advance them selves in struggling their rights collectively to develop their community, nation and state.

3. Act No. 24 year 2003 on Constitutional Court.



[1] See Article 9 Act No. 18 year 2004 on Plantation.

[2] See Article 10 Act No. 18 year 2004 on Plantation.

[3] See Article 16 Act No. 18 year 2004 on Plantation.

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