AGRARIAN LAW IN REGIONAL ARRANGEMENT AND DEVELOPMENT

AGRARIAN LAW

IN REGIONAL ARRANGEMENT AND DEVELOPMENT

Sherlock Halmes Lekipiouw, SH, MH

 

 

1. Basic Concepts of Regional Development and Planning

1. Regional Development Concept.

The concept of regional development in Indonesia was born from a iterative process which combines theoretical foundations with practical experiences for dynamic application. In other words, the concept of regional development in Indonesia is a combination of various continually evolving theories and models that have been tested and then reformulated into an approach tailored to the conditions and development needs of Indonesia.[1]

Conceptually, the meaning regional development can be formulated as a series of efforts to realize integration in the use of various resources, strengthen and balance national development and national territorial unity, increase harmony between regions, integration between development sectors through the spatial planning process in order to achieve sustainable development goals within the framework of the Unitary State of the Republic of Indonesia.[2].

Based on the above understanding, development should not only be carried out to fulfill the objectives partial sectoral, but more than that, development is carried out to fulfill regional development objectives that are of a comprehensive and holistic by considering harmony between various resources as the main elements forming space (natural resources, artificial, human and activity systems), which supported by the legal system and institutional system that surrounds it.

Regional development is carried out by taking into account the potential and opportunities of the superior land and/or marine resources in each region, as well as the principles of sustainable development and environmental carrying capacity. The primary goal of regional development is to improve the quality of life and well-being of the community, as well as to ensure equitable distribution. [3]

The implementation of regional development is carried out in a planned manner and integrated with all sectoral and area development plans. The development plan is outlined and synchronized into a consistent spatial plan, both in terms of content and timeframe.

2. Regional Planning Concept

Regional planning can be seen as an approach to regional development that aims to create comfortable, productive, and sustainable living spaces. comfortable contains the meaning of the existence of broad opportunities for society to articulate socio-cultural values ​​and their functions as human beings.

While the space that pproductive This implies that the production and distribution processes are running efficiently, thus providing added economic value for the welfare of society while simultaneously increasing competitiveness. sustainable It implies that the quality of the physical environment can be maintained and even improved, not only for the benefit of the current generation, but also for future generations. This overall goal is aimed at realizing a nation that is intelligent, virtuous, and prosperous; realizing integration in the use of natural and artificial resources with attention to human resources; realizing the protection of spatial functions and preventing and overcoming negative impacts on the environment.

Based on the understanding above, of course every stage of regional planning consisting of spatial planning, spatial utilization, and spatial utilization control, must be placed in the thinking of sustainable development (sustainable development) which also contains the principle of environmental insight (pro-environment).

The principles of sustainability and the principles of environmental awareness, as mentioned above, are closely interconnected. In this case, Jimly Asshiddiqie[4], is of the opinion that:

"Sustainable development is one manifestation of the environmental perspective as enshrined in the 1945 Constitution of the Republic of Indonesia. Conversely, the principles of sustainable development must also be applied in environmentally conscious development policies. There can be no sustainable development without the environment as its primary element, and there can be no environmental perspective without sustainable development."

Referring to the above definition, in order to utilize the value and benefits of resources for the sustainable development of the national region and guarantee the general public interest (public interest), a regional management concept is needed which aims to ensure that all the natural resources and wealth contained therein can be managed and utilized optimally. 

These regulations are intended within the framework for the utilization of the earth, water and air and all the natural resources contained therein to the greatest extent possible, in line with the objectives of the state as stated in the Preamble to the 1945 Constitution of the Republic of Indonesia.[5]

3. Spatial Planning Concept

"In essence, it is a public policy intended to optimize the use of space for the benefit of all development actors in an integrated, efficient, effective, harmonious, balanced, and sustainable manner. Furthermore, spatial planning is a process for determining future goals and outlining the steps to achieve those goals." [6]

Spatial planning arrangements, as stated above, cannot be separated from the concept of planning, where in the concept of a state based on law, planning is part of the government's actions in carrying out state administrative tasks, so that planning cannot be separated from the field of state administrative law. In this regard, Philipus M Hadjon[7], States that :

"In modern social law countries, plans as a legal figure of administrative legal relations can no longer be eliminated from thought. Plans are found in various fields of government activity, for example spatial planning, health management and education. Plans are all interrelated actions of state administration that strive for the implementation of certain conditions in an orderly manner. By themselves, only plans that have legal force have meaning for state administrative law. A plan shows what policies will be implemented by state administration in a particular field. certain"

The statement above also serves to provide a limitation that planning in relation to spatial planning and arrangement referred to here is planning from an administrative law perspective which is one of the instruments of government because in reality, almost all government organs make plans in order to carry out their activities.

Spatial planning is the basis for spatial utilization and control. The preparation of spatial plans must of course take into account the interrelationships between regions, between regional functions, and between regional activities. Interrelationships between regions represent a manifestation of integration and synergy between regions, namely national, provincial, and district/city regions. Interrelationships between regional functions represent a manifestation of integration and synergy between regions, including the relationship between protected areas and cultivated areas. Interrelationships between regional activities represent a manifestation of integration and synergy between regions, including the relationship between urban and rural areas. [8]

In Indonesia, spatial planning itself is regulated in Law Number 26 of 2007, where spatial planning is the process of planning the layout, utilization of space and control of the utilization of space.[9] Furthermore, in the provisions of Article 1 number (13), number (14) and number (15) it is explained that:

Spatial Planning  is a process to determine a spatial structure and spatial pattern which includes the preparation and determination of spatial planning.

Utilization of Space is an effort to realize spatial structures and spatial patterns in accordance with spatial planning through the preparation and implementation of programs and their costs.

Control of Space Utilization is an effort to realize orderly spatial planning

Referring to the spatial planning process as explained above, the planning, utilization and control of spatial utilization are carried out to realize integration, interconnectedness and balance in development between regions and between sectors for the realization of a national spatial area that is safe, comfortable, productive and sustainable in one unified area that includes land areas, sea areas including air space with the key word being integration.[10]

Thus, spatial planning is the process of producing a spatial plan, encompassing the process of drafting the spatial plan and the process of establishing the spatial plan. Once established, the spatial plan then serves as a guideline for implementing development that utilizes and controls space.

The spatial plan contains a spatial structure plan and a spatial utilization pattern plan. The spatial structure plan is a directive for the development of elements that form a spatial structure, consisting of a system of settlement centers, a transportation network system (land, sea, air), an energy and electricity network system, a telecommunications network system, and a water resource infrastructure network system that functions to support the community's socio-economic activities. The spatial utilization pattern plan contains directives for the distribution of spatial allocation for various activities, both for protective functions and cultivation functions.

In order to realize the concept of regional development which includes regional goals and targets in Indonesia.[11], then it is achieved through spatial planning efforts consisting of 3 (three) main processes, namely:

1. regional spatial planning process, which produces regional spatial planning (RTRW). Besides being a "guidance of future actions"RTRW is basically a form of intervention carried out so that the interaction between humans/living creatures and their environment can run harmoniously, in tune, and in balance to achieve the welfare of humans/living creatures as well as environmental sustainability and sustainable development (development sustainability).
2. space utilization process, which is a form of operationalization spatial planning or implementation of the development itself,
3. control process utilization of space consisting of mechanisms permission and order regarding the implementation of development so that it remains in accordance with the RTRW and the objectives of regional spatial planning.

 

Thus, apart from being a process to realize development goals, spatial planning is also a product that has a legal basis (legal instrument) to realize regional development goals.

The above-mentioned regional development objectives are part of the realization of the objectives of the National Development Planning System, namely to ensure the creation of integration, synchronization, and synergy between spatial utilization within the territory of the Unitary State of the Republic of Indonesia. Both the National Development Planning System and spatial planning emphasize a process for determining appropriate future actions through a hierarchical sequence of choices (priorities), taking into account available resources.

If national development planning takes the form of spatial and non-spatial aspects, then spatial planning places more emphasis on spatial aspects which include planning the structure and pattern of spatial use, which includes land use, water use, air use, and the use of other natural resources. 

The products resulting from spatial planning efforts/processes are:  Plan Spatial. The definition of Spatial Planning is basically a form of intervention carried out so that human/living creatures' interactions in socio-economic activities and other activities with their environment can run harmoniously, in tune, and in balance to achieve human/living creatures' welfare as well as environmental sustainability and development sustainability. RTR products generally consist of the National RTRW, Provincial RTRW and Regency/City RTRW for hierarchical administrative areas, as well as the RTR for functional areas.

As a spatial dimension in the implementation of national development, spatial planning provides principles for the use of space that can realize integration, interconnectedness, and balance in development between regions and between sectors for the realization of a national territorial space that is safe, comfortable, productive, and sustainable in one unified territory that includes land areas, sea areas, including air space.[12]

Spatial planning serves as a reference for spatial policy for development in every sector, across sectors, and regions, ensuring synergistic, harmonious, and sustainable spatial utilization. Regional Spatial Planning is structured hierarchically. To optimize spatial planning, it is necessary to improve (a) the competence of human resources and institutions in the field of spatial planning, (b) the quality of spatial planning, and (c) the effectiveness of the implementation and enforcement of laws in the planning, utilization, and control of spatial utilization.

The implementation of the spatial planning processes mentioned above is carried out based on: [13]

1. Based on the system, where spatial planning is based on the system, consisting of regional systems and internal urban systems;
2. The main function of the area, where spatial planning based on the main function of the area includes areas, which consist of protected areas and cultivation areas;
3. Administrative regions, where spatial planning is based on administrative regions, consisting of spatial planning for national regions, provincial regions and districts/cities;
4. The regional function system, where spatial planning is based on regions, consisting of urban areas and rural areas; and
5. Regional strategic value, where spatial planning is based on regional strategic value, consisting of national, provincial and district/city strategic areas.

The results of spatial planning based on administrative areas are in the form of a National General Spatial Plan and a Provincial General Spatial Plan (Regency General Spatial Plan; and City General Spatial Plan).

Meanwhile, the results of spatial planning based on its depth (details) are in the form of:

1. General Plan (such as National/Provincial/District/City RTRW); and
2. Detailed Plans (such as Regency/City RDTR, Island/Island Area RTR, National/Provincial/Regency/City Strategic Area RTR).

Meanwhile, the results of spatial planning based on regional activities are in the form of:

1. Urban Area Spatial Planning; and
2. Rural Area Spatial Planning.

In accordance with Law Number 26 of 2007, the regional spatial planning system is implemented in a hierarchical according to administrative authority, namely in the form of National RTRW, Provincial RTRW and Regency/City RTRW as well as more detailed plans. RTRWN is prepared by taking into account the National territory as a single territorial unit which is further elaborated into strategies and structures and patterns of spatial utilization in provincial areas (RTRWP), including the determination of a number of specific areas and priority priority areas for handling.

Arranging spatial planning according to its intended use is a future challenge that must be faced to overcome the current spatial planning crisis. Therefore, sound spatial planning is required, integrated into a system that ensures consistency between planning, utilization, and spatial control. Good spatial planning is necessary for:

1. directions to the activity location,
2. land capacity limitations, including environmental carrying capacity and vulnerability to natural disasters,
3. efficiency and synchronization of space utilization in the context of organizing various activities.

Good spatial planning must also be supported by spatial planning regulations that are in the same direction, meaning that they do not collide with each other between sectors, while still paying attention to environmental sustainability and carrying capacity, as well as the vulnerability of the region to disasters.

2. Principles of Arrangement and Development in the Concept of Marine Area Management

1. Principles in Agrarian Law (UUPA)

Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia is the constitutional basis for the formation of national agrarian politics and law, which contains two (2) main points, namely:

1. The land, water and natural resources contained therein are controlled by the State.
2. The aim of this control is to maximize the prosperity of the people.

Agrarian politics [14]Based on the belief that the land, water, space, and natural resources contained therein within the territory of the Republic of Indonesia are gifts from God Almighty and constitute national wealth. Its implementation will be regulated in various laws, government regulations, and other legislation. Thus, the main objectives of the Basic Agrarian Law are: [15]

1. laying the foundations for the formulation of national agrarian law, which will be a tool to bring prosperity, happiness and justice to the State and the people, especially farmers, in the framework of a just and prosperous society.
2. laying the foundations for establishing unity and simplicity in land law.
3. laying the foundations for providing legal certainty regarding land rights for the entire people

Furthermore, we can see that the form of agrarian legal policy itself is the authority or power of the state to regulate the allocation, use, supply, and maintenance of agrarian elements, which include land, water, and space (within certain limits) which are outlined in policies that are in reality contained in legal principles. Meanwhile, the objectives of agrarian policy itself are:

1. National agrarian policy is aimed at the prosperity, happiness and prosperity of the Indonesian people.
2. National agrarian politics, which is embodied in a law to serve as the basis for the implementation of agrarian politics, must be able to eliminate dualism, inequality in patterns of land ownership, use and control.

In the operationalization of agrarian reform, especially in relation to legislation, there are principles that must be used as a basis in relation to agrarian reform and natural resource management, namely: [16]

 

1. Principles of Sustainability

This principle is based on the provisions of Article 1 paragraph (1), which states that: "The entire territory of Indonesia is the unity of the homeland of all the Indonesian people, who are united as the Indonesian nation." This means that the earth, water and space within the territory of the Republic of Indonesia, whose independence was fought for by the nation as a whole, are also the rights of the Indonesian nation, which means (i) there is a responsibility to "protect" and (ii) this also requires the state to "preserve" all the resources and natural wealth contained therein for future sustainability for the welfare of the people as intended in the objectives of the state in the 1945 Constitution of the Republic of Indonesia.

2. The Principle of God

This principle is based on the Principle of God as referred to in the provisions of Article 1 paragraph 2 of the UUPA.[17]. This provision illustrates the recognition of the entire Indonesian nation that 'sall the earth, water and space, including the natural resources contained therein, within the territory of the Republic of Indonesia"is a gift from God Almighty. This concept also gives rise to the state's responsibility to safeguard and preserve it in accordance with the state's goal of maximizing the prosperity of the people."

3. Pprinciples Justice and People's Welfare

The Basic Agrarian Law is based on the principle that, in order to achieve what is stipulated in Article 33 paragraph (3) of the Basic Law, it is neither necessary nor appropriate for the Indonesian people or the State to act as landowners. It would be more appropriate if the State, as the organization of power of the entire people (nation), acts as the Governing Body.  

From this perspective, the meaning of the provisions in Article 2 paragraph (1) must be seen, at the highest level controlled by the State. In accordance with the basic principles above, the word "controlled" in this article does not mean "owned", but is a meaning which gives authority to the State, as the power organization of the Indonesian Nation, at the highest level:

a. regulate and organize the allocation, use, supply and maintenance.

b. determine and regulate the rights that can be owned over (parts of) the earth, water and space.

c. determine and regulate legal relationships between people and legal acts concerning the earth, water and space.

Everything is aimed at achieving the greatest prosperity for the people within the framework of a just and prosperous society (Article 2, paragraphs 2 and 3). The State's power in question extends to all land, water, and space, whether it has been appropriated by someone or not. The State's power over land that is owned by someone with a right is limited by the content of that right, meaning that to the extent the State grants power to the owner to exercise his right, that is the limit of the State's power. The content of those rights and their limitations are stated in Article 4 and the following articles, as well as the articles in Chapter II.

4. Pthe principle of recognition and respect for the rights of indigenous legal communities

In connection with the relationship between the nation and the earth and water and state power as mentioned in articles 1 and 2, in article 3[18] provisions are made regarding customary rights of legal community units, which are intended to place these rights in their proper place in the current state of affairs.

In connection with the mention of customary rights in the Basic Agrarian Law, which in essence also means recognition of these rights, then in principle these customary rights will be taken into account, as long as these rights in reality still exist in the legal community concerned.

5. Social Principles

This principle is laid down in Article 6, which states that "All land rights have a social function." This means that, whatever land rights a person has, it cannot be justified that his land will be used (or not used) solely for his personal interests, especially if it causes harm to society. The use of land must be adjusted to the circumstances and the nature of the rights, so that it is beneficial both for the welfare and happiness of the owner and is beneficial to society and the State. However, this provision does not mean that individual interests will be completely pushed aside by the public interest (society).

6. National Principle

This principle was born from the national principle recognized by the UUPA. In accordance with the principle of nationality in article 1, according to article 9 yo article 21 paragraph 1 only Indonesian citizens can have ownership rights to land. Ownership rights cannot be owned by foreigners and the transfer of ownership rights to foreigners is prohibited (article 26 paragraph 2). Foreigners can own land with limited use rights. Likewise, basically legal entities cannot have property rights (article 21 paragraph 2). The consideration for (basically) prohibiting legal entities from having ownership rights over land, is because legal entities do not need to have ownership rights but only other rights, as long as there are sufficient guarantees for their specific needs (business use rights, building use rights, use rights according to articles 28, 35 and 41). In this way, efforts can be prevented that intend to circumvent the provisions regarding the maximum limit of land area owned by property rights (article 17).

7. Planning Principles

Finally, to achieve the ideals of the nation and state mentioned above in the agrarian sector, there needs to be a plan ("planning") regarding the allocation, use and supply of land, water and space for various interests of the people and the state: a General Plan ("National planning") that covers the entire territory of Indonesia, which is then detailed into special plans ("regional planning") for each region (article 14). With this planning, land use can be carried out in a guided and orderly manner so that it can bring maximum benefits to the state and the people.

2. Principles of Regional Development and Arrangement in the Concept of Marine Area Management

In line with the concept of regional development as stated above, in relation to the management of marine areas (including coastal areas), it is necessary to pay attention to several basic principles, which include integrated planning, decentralized management, sustainable development, as well as openness and community participation.[19]

1. Principle of Integration

The principle of integration is one of the fundamental principles within the spatial planning framework, which serves to provide a foundation for integrating various interests, both regional and sectoral, particularly within the framework of natural resource utilization. The principle of integration is one of the principles within the framework of spatial planning implementation as referred to in Article 2, point (a) of Law Number 26 of 2007.

Spatial planning in marine areas requires the development of an integrated system as its primary characteristic. This is because the management of one subsystem influences other subsystems and can ultimately affect the national spatial system as a whole.[20]. In line with the above, spatial planning requires the development of an integrated system as the main characteristic, which emphasizes a complex systemic approach based on 4 (four) main principles, namely (1) holistic and integrated, (2) balance between regional functions (e.g. between cities and villages, protected areas and cultivation, coastal areas and land, or upstream and downstream), (3) integrated handling across sectors/stakeholders and across administrative areas, and (4) involvement of community participation starting from the planning, utilization and control stages of spatial utilization. [21]

In addition to the points mentioned above, there are also several other key points that form the basis of the principle of integration, namely the integration of horizontal and vertical sectoral planning; the integration of terrestrial and marine ecosystems; the integration of science and management; and integration between countries.

Considering the description as stated above, it is clear that the integration pattern is very important and absolute in the context of integrated spatial planning so that it can integrate the various interests involved in it. The function of this integration is not only cross-sectoral and cross-provincial integration but also integration between national interests and regional interests, so that the process of planning, utilization and control of spatial utilization is intended to reduce development disparities between regions, especially in the utilization of resources in marine areas.

2. Principles of Decentralization of Management and Strengthening of Institutions

As regional autonomy develops, the spatial planning issues faced are becoming increasingly complex. Law No. 26 of 2007 defines spatial planning authority as the legal basis for the central government, regional governments, and the community. This authority, which is then implemented in spatial plans, serves as the basis for spatial utilization and control. 

The authority of the provincial government regarding planning, spatial utilization and control of spatial utilization is also regulated in the provisions of Government Regulation Number 38 of 2007 concerning the Division of Government Affairs between the Government, Provincial Regional Governments and Regency/City Regional Governments, namely Spatial Planning[22], Utilization of Space[23]and  Control of Space Utilization[24],

Granting authority to regions in the implementation of spatial planning requires coordination to harmonize and harmonize development, both nationally and regionally. Therefore, spatial planning and regional development policies and strategies are needed that can address various issues and development problems currently emerging, particularly those related to marine spatial planning, given that regulations regarding maritime boundaries for the utilization of marine resources do not yet have full legal certainty.

However, decentralization, as a form of governmental transfer of authority to autonomous regions to regulate and manage government affairs, must be positioned within the perspective of the Unitary State of the Republic of Indonesia. Granting broad autonomy to regions is aimed at accelerating the realization of public welfare through improved services, empowerment, and community participation.

In addition, through broad autonomy, regions are expected to be able to increase competitiveness by paying attention to the principles of democracy, equality, justice, privileges and special characteristics as well as the potential and diversity of regions within the Unitary State of the Republic of Indonesia.[25] Philipus M. Hadjon[26] confirms that:

"Regions have independence and freedom in carrying out government affairs that fall under their authority, and regarding the government affairs that are delegated, regions have freedom (freedom) to regulate and manage itself with supervision from the central government or a higher level of government. With the continued existence of supervision, this freedom does not contain independence ( independent)”

Thus, although regional autonomy is freedom and independence, it is state law, to regulate and manage some government affairs. However, autonomous regions are not state units, so that this freedom and independence must be interpreted within the concept of a unitary state as intended in Article 1 paragraph (1) of the 1945 Constitution of the Republic of Indonesia.

As is known, in the concept of administrative law, the authority given to a body or to a state administrative official is always accompanied by the purpose and intent for which the authority is granted, so that the granting of the authority is in accordance with the "purpose and intent" for which the authority is granted. 

Therefore, every governmental action should be based on legitimate authority according to statutory provisions, so that the intent and purpose of granting the authority itself will be clear, and thus can serve as a benchmark in determining the standard of that authority itself. In this regard, Philipus M Hadjon[27], explains that:

"Every government action is always based on legitimate authority. Every authority is limited by content/material, territory, and time. Note that these aspects give rise to flaws in authority (onbevoegdheid) which concerns the first content defect (onbevoegdheid ratione materiae), second, regional defects (onbevoegdheid ratione locu), and third, time defects (onbevoegdheid ratione temporis)"

Meanwhile, Tatiek Sri Djatmiati[28], In his dissertation he describes the relationship between administrative law and authority, namely that:

"Administrative relations or governance law (administrative or bestuursrucht) contains legal norms of government. These government norms serve as parameters used in the use of authority by government agencies. The parameters used in the use of this authority are legal compliance or non-compliance (improper legal or improper illegal), so that if there is use of authority, it is carried out in a "improper illegal"then the authorized government agency must be held accountable"

This final opinion is related to the existence of authority standards, namely general standards (for all types of authority) and specific standards (for certain types of authority), so these authority standards are used to test the use of authority (governmental authority). Testing the use of this authority is based on administrative law norms, namely general norms and specific norms (general principles of good governance).

In addition, testing of the use of government authority can also be based on the category of a decision, whether it is binding or independent. Philipus M Hadjon[29], explains that:

"For a binding KTUN, the KTUN essentially only implements existing provisions without any room for freedom for the officials concerned. Meanwhile, a free KTUN is based on freedom of action, commonly known as the principle of 'freies ermessen' (discretionary power)”

To differentiate between freedom of government, which is differentiated into freedom of policy (regulations) and freedom of judgment (beoordelingsvrijheid). Philipus M Hadjon[30], again explaining that:

"There is freedom of policy (discretionary authority in the narrow sense) when legislation grants certain authority to a government organ. Meanwhile, the organ is free to (not) use it even though the conditions for its legitimate use are met. Furthermore, regarding freedom of judgment (discretionary authority in the less literal sense), it is the right given to a government organ to independently and exclusively assess whether the conditions for the legitimate exercise of an authority have been met. Freedom of judgment can be realized in two ways as the authority of the government organ to decide independently or in what way it will be handled. Besides as the authority to interpret the hidden norms that determine how the authority is used. ... The first form of freedom of judgment is often described as discretionary authority (free); the second form as the authority to interpret hidden norms"

Thus, testing of decisions made under bound authority is based on statutory provisions as written law. Meanwhile, for decisions based on discretionary authority, it is possible to apply general principles of good governance as a basis for assessment.

In line with the implementation of government tasks (in carrying out government affairs) which are so complex, the government has the freedom to act. Philipus M Hadjon[31], stated that:

"The existence of freedom to act does not mean that state administration is free from laws, but rather that freedom is given so that the government itself can make provisions in concrete situations, which basically means the freedom to apply regulations in concrete situations, the freedom to regulate those concrete situations, and the freedom to act even though there are no/not yet explicit regulations (the active nature of the government)"

The freedom to act as described above is commonly called Freis Ermessen. When  freis Ermessen this is stated in written regulations, then it will become a policy regulation (Beleidsregel). In other words, policy regulations are essentially the product of government actions that aim to "naar buiten gebracht schricftelijk beleid" namely, showing out a written policy.

Menurut Abdul Latif[32], “Policy regulations always appear in the scope of 'unbound' governance (vrijbeleid) in the sense that it is not expressly regulated by statutory regulations. Furthermore, it is also influenced by the limited regulatory capacity of written provisions (statutory regulations) when compared to the increasingly rapid changes and needs of society.

As is well known, regional development is an integral part and elaboration of national development, aimed at achieving development targets tailored to the potential, aspirations, and development challenges of the region. Therefore, national development performance is the aggregate of development performance across all regions, while achieving national development goals and objectives is the process of achieving objectives at the provincial level and at the district/city level. 

Based on the aforementioned understanding, granting such broad authority to regions certainly requires coordination and regulation to further harmonize and align the direction of development, both national and regional, as well as inter-regional. Thus, the concept of development planning, both national and regional (provincial and district/city) allows for a complementary relationship and greater harmony in the synergy of concepts and implementation between the spatial planning system and the national development planning system. [33]

Meanwhile, the planning process as explained above, is linked to the concept of development planning, encompassing 5 (five) approaches in the entire series of planning itself, which include political, technocratic, participatory, top-down (top-down) and bottom-up (bottom-up)[34]

In addition to management decentralization, strengthening regional government institutions is also a crucial component of the spatial planning framework (including marine areas). Institutional strengthening is aimed at encouraging changes to the cultural concepts of constructive community participation, productive cross-sectoral coordination, effective decision-making decentralization, a cross-resource legal approach that takes environmental carrying capacity into account, and an openness to positive considerations of science and technology.

For this reason, institutional strengthening is intended within the framework of developing institutions that have: [35]

1. Ability to coordinate across sectors;
2. Institutional units that have an effective coordinating role;
3. Authority to regulate and make decisions in the activity licensing system;
4. Ability to internalize a culture of participation and good performance;
5. Leadership that is impartial and understands the concept of sustainable development' and 
6. Ability to grow the formation of environmental funds.

From what has been stated above, the decentralization of management and institutional strengthening carried out through both the spatial planning system and national development must always involve various interest sectors involved in it so that it can accommodate various sectoral interests and is able to minimize various conflicts in its implementation.

3. Principles of Sustainable Development;

Conceptually, the concept of sustainable development comes from economics, which is primarily associated with issues of efficiency and justice (equity) to ensure the sustainability of economic development for the welfare of society. This understanding from an economic perspective is also based on biological science which discusses sustainability in terms of capability and suitability (capability and surability) a location with the potential for regeneration/productivity of its living environment. [36]

The concept of 'sustainability' has long been recognized as part of biology. At the conference "Analysis and Management of Sustainable Use of Tropical Forest Land" (Forests Land Assessment and Management for Sustainable Uses) the term 'sustainable use' is defined as:

'continuing national use of land without severe or permanent deterioration in the quality and quantity of one or more components of the integrated ecosystem or landscape unit'.

The term 'sustainable development' or sustainable development  This is a new concept related to the concept of development. This interconnectedness can be linked to issues of efficiency and justice. Efficiency is about enlarging the development pie, and equity is about equitable distribution and ensuring sustainable utilization.

The concept of sustainable development can be found both explicitly and implicitly in various international agreements and other instruments. [37]. Whereas Rokhmin Dahuri[38], stated that: 

"The principle of sustainable development (sustainable marine development) is an effort to utilize natural resources and environmental services found in coastal and marine areas for human welfare, especially stakeholders in such a way that the rate of utilization of natural resources and environmental services does not exceed the carrying capacity (carrying capacity) coastal and marine areas to provide it”

The general principles of sustainable development in the natural resource management system have experienced rapid development since the Stockholm Declaration – 1972, then developed and expanded in the Rio Declaration – 1992, and then reached its peak in the Johannesburg Declaration in 2002.[39]. These principles are expected to influence the formation of new legal rules including:[40]

1. The obligations contained in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration which regulate the sovereign rights of states over natural resources and the state's responsibility to prevent environmental impacts that are transboundary;
2. The principle of taking precautionary measures (the principle of preventive action);
3. The principle of good neighborliness and the obligation to carry out international cooperation;
4. The principle of sustainable development (the principle of sustainable development);
5. The precautionary principle (the precautionary principle);
6. The polluter pays principle (the polluter – pays principle); And 
7. The principle of togetherness with different responsibilities (the principle of common but differentiated responsibility).

Furthermore, Rokhmin Dahuri[41], said that there are 5 (five) requirements for regional/ecosystem development (including coastal and marine areas) to be able to take place sustainably, including:

"First, there needs to be spatial harmony (spatial harmony) for human life and development activities. Secondly,, the level/rate of utilization of natural resources that can recover (such as fisheries and mangrove resources), must not exceed the recovery capacity (renewable capacity). In the management of fishery resources, it is called sustainable potential (maximum sustainable yield) and in mangrove management, it is called the permitted felling quota (total allowance harvest). Third, exploitation of mining materials and minerals (non-renewable resources) must be carried out in ways that do not damage the environment and the functioning of coastal and marine ecosystems. Fourth, the type of waste dumped onto the coast and oceans is not a toxic hazardous material (B3) such as heavy metals and pesticides. Fifth, construction of a jetty, breakwater (breakwater), seaports and other infrastructure, must adapt to the natural characteristics and dynamics of the coastal and marine environment.         

Realizing the importance of marine resources, namely as a source of the national economy, there is an awareness to change the order and direction of national development which is not solely land-oriented (land-based oriented) but directed towards maritime-based development [42]To optimize the benefits of marine resources for sustainable regional development and ensure the broader public interest, integrated and sustainable government policies and special handling are required.

Therefore, the direction of marine resource management policy, in line with the concept of sustainable development outlined above, requires guidelines for regulating the use and management of marine resources, while taking environmental considerations into account. This is an effort to address conflicts in coastal resource use, such as overlapping authority and clashing interests between sectors.[43]

Based on the description above, it can be seen that the principle of sustainable development is very important in the context of integrated marine spatial planning, considering that the management of marine and coastal areas involves various sectors, especially in the utilization of natural resources in marine areas, which has an impact, among other things, on non-integrated management authority, there are differences in goals, targets and plans, thus giving rise to rivalry/conflict between users and overlapping planning.

Regarding rivalries or conflicts in the use of marine and coastal areas, this can occur on a multi-national scale (the multi-national scale), so that it will give rise to international conflict (international conflicts) that occurs in relation to national jurisdiction zones or boundaries with neighboring countries, related to pollution or degradation of environmental ecosystems and related to the exploration and exploitation of natural resources and local conflicts (domestic conflicts) which can occur between users or between the government and users or can occur cumulatively.[44].

Taking into account the various issues and complexity of problems faced in the management of marine and coastal areas, especially in relation to efforts to organize marine and coastal areas in an integrated manner, the guidelines for regulating the use and management of natural resources in marine and coastal areas as stated above in relation to spatial planning of marine areas for integrated management of marine areas are further implemented in the concept Integrated Coastal Management [45]

As a reference framework in managing marine areas, especially in relation to spatial planning in marine areas, we can refer to the concept of integrated marine area management, based on Integrated Coastal Management (ICM), where the regulation of spatial planning in marine areas is emphasized on the territorial/zoning authority system both at the national and local levels. Policies and strategies in marine spatial planning are based on Integrated Coastal Management (ICM), contains principles related to marine and coastal resource management, integration of related laws and sectoral integration.  

Integrated Coastal Management, is an approach to coastal and marine area management that involves two or more ecosystems, resources, and utilization (development) activities in an integrated manner (integrated) in order to achieve sustainable development of coastal and marine areas. In this context, Integrated Coastal Management, contains three dimensions, namely sectoral, scientific and ecological dimensions.[46]

Integrated management on a sectoral basis means that there is coordination between tasks, authorities and responsibilities between sectors or government agencies at a certain level of government (horizontal integration), and between levels of government (vertical integration). Furthermore, integrated scientific management means that in managing coastal and marine areas in the context of spatial planning, interdisciplinary science is used (interdisciplinary approaches) which involves the fields of economics, ecology, engineering, sociology, law and other relevant fields.[47]

4. Principle of Legal Certainty

Legal certainty is a key principle in the implementation of a clean and authoritative government system. The principle of legal certainty in a state based on the rule of law prioritizes the basis of legislation, propriety, and justice in every policy of state administration.[48]

In relation to spatial planning, the principle of legal certainty is formulated in Article 2 letter (h) of Law Number 26 of 2007, where in the explanation it is explained that "what is meant by the principle of legal certainty is that spatial planning is carried out based on law/statutory provisions and that spatial planning is carried out by taking into account the sense of justice of the community and protecting the rights and obligations of all parties fairly with the guarantee of legal certainty.

Legal certainty is crucial for determining which parties have access to, ownership rights over, and utilization of marine and coastal resources. Ownership and control of these resources are protected by the state and recognized by other stakeholders. This way, every individual or group can manage marine and coastal areas in a planned manner and have a sense of ownership.stewardship), which is the basic value of preservation. 

Legal certainty can also provide a sense of justice and security for communities in utilizing coastal resources, without intervention from authorities or resource users from other regions. For businesses, legal certainty guarantees long-term investment security and reduces business risks. For regional governments, legal certainty can ensure the consistency and full and responsible implementation of regional autonomy policies. 

It is hoped that the principles mentioned above will serve as a basic framework for integrated marine area management. Therefore, all activities related to marine area management, including coastal areas, should adhere to these principles.

 

 

3. Approaches in Agrarian Law Concerning Management Authority Over Marine Areas.

1. The Concept of the State's Right to Control

The concept of the state's right to control (HMN) is based on the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.[49]. These regulations are intended within the framework for the utilization of land, water, and air as well as all the natural resources contained therein for the greatest possible prosperity of the people in line with the goals of the state as stated in the Preamble to the 1945 Constitution of the Republic of Indonesia.[50]

The meaning of the state's objectives as stated in the 1945 Constitution of the Republic of Indonesia cannot be separated from the concept of "state control rights" which is explicitly actualized in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia. Concept "controlled by the state" as stated in Article 33 paragraph (3) of the 945 Constitution of the Republic of Indonesia, has been interpreted by the Constitutional Court, which formulated that state control is something higher than ownership.[51].

Regarding the meaning of "controlled by the state" in the Constitutional Court Decision, it is stated that:

“….the definition of being controlled by the state in Article 33 The 1945 Constitution of the Republic of Indonesia, contains a higher or broader meaning than ownership in the concept of civil law. The concept of control by the state is a public legal concept that is conceptualized with the principle of people's sovereignty as adopted in the 1945 Constitution, both in the field of politics (political democracy) and economics (economic democracy). In understand the sovereignty of the people, it is the people who are recognized as the source, owner and also holder of the highest power in life state, in accordance with the doctrine "of the people, by the people, and for people".

The formulation of the definition of state control in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia as mentioned above not only has a conceptual relationship with the principle of people's sovereignty but also contains the principle of democracy. This pattern of constitutional regulation regarding people's sovereignty or economic democracy is also what causes the 1945 Constitution of the Republic of Indonesia to be not only a political constitution but also an economic constitution. This means that, according to the 1945 Constitution of the Republic of Indonesia, the Indonesian people are sovereign not only in the political field, but also in the economic and social fields.[52]

Meaning in the phrase "controlled by the state" is interpreted as part of the regulatory function (regelendaad) and the function of the state as a manager (beheersdaad) as part of the state's responsibility. The management in question is the state's authority cq government to issue and revoke licensing facilities (permit), license (dismissal), and concessions (concession). This function is also conceptualized as a state responsibility alone, but also as part of the fulfillment of human rights. 

In the perspective of the concept of human rights, in terms of the relationship between the state and its citizens, the people are positioned as holders of rights. (right holder), while on the other hand the state is in a position to bear obligations (duty holder), where the basic obligation of the state is to protect and guarantee the basic rights of its citizens (the people) as guaranteed by the constitution (basic law).

Based on the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia in the concept of the state's right to control as stated above, we can also further Law Number 5 of 1960 concerning Basic Agrarian Principles.[53] In Article 2 paragraph (2), it is stated that:

"The State's right to control as referred to in paragraph (1) of this article provides the authority to:

a. regulate and organize the allocation, use, supply and maintenance of the earth, water and space;

b. determine and regulate legal relations between people and the earth, water and space,

c. determine and regulate legal relations between people and legal acts concerning earth, water and space.”

From the formulation of the provisions of Article 2 paragraph (2) of Law Number 5 of 1960 above, the meaning of "the right to control the state" also includes the meaning of public ownership by the people collectively. The people collectively are constructed by the 1945 Constitution of the Republic of Indonesia which gives the state a mandate to organize:

1. policy (policy) and management actions (bestuursdaad),
2. arrangement (regelendaad),
3. management (beheersdaad) and
4. supervision (toezichthoudensdaad) for the purpose of the greatest prosperity of the people.  

Management function (bestuursdaad) by the state is carried out by the Government with its authority to issue and revoke licensing facilities (permit), license (license) and concessions (concession).[54]

2. Management Authority

The delegation of HMN's authority as stated above, is further based on the provisions of Article 2 paragraph (4) of the UUPA, which states that:

The implementation of the State's right to control above can be delegated to Autonomous Regions and customary law communities, as necessary and not in conflict with national interests, according to the provisions of Government Regulations.

 

Furthermore, in the general explanation of the UUPA as stated in Number II Number 2, namely that:

… The state can provide such land to a person or legal entity with certain rights according to its designation and needs, for example HM, HGU, HGB, or HP or provide it in management to a Ruling Body (Department, Office or Regional Self-Help) to be used for the implementation of their respective duties.

Thus, we can see that management rights are rights arising from the existence of HMN, as explained above. In other words, Management Rights is the right to control from the State, the implementation authority of which is partly delegated to the holder[55].

The authority of the management rights holder is to plan the allocation and use of land, use land for the purposes of carrying out his duties, and hand over parts of the land with Management Rights to third parties and/or collaborate with third parties.[56] Furthermore, in the provisions of Article 14 paragraph (1) of the UUPA, it is also stated that:

“……The government, within the framework of Indonesian socialism, has made a general plan regarding the provision, allocation and use of the earth, water and space and the natural resources contained therein:

1. for state purposes,
2. for the purposes of worship and other sacred purposes, in accordance with the basis of belief in the Almighty Godhead;
3. for the purposes of community, social, cultural and other welfare centers;
4. for the purposes of developing agricultural, livestock and fisheries production and in line with that;
5. for the purposes of developing industry, transmigration and mining.

Based on the description above, the right to control the state as referred to in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia  together Article 2 paragraph (2) of Law Number 5 of 1960, in relation to the arrangement and regulation of spatial planning in marine areas, must also be interpreted in terms of "regulating and organizing the allocation, use, supply and maintenance of the earth, water and space". The authority to regulate and organize the allocation, use, supply and maintenance of the earth, water and space as intended in the provisions of Article 2 paragraph (2) letter (a) UUPA

Thus, the arrangement and regulation of space in a region is an inseparable part of efforts to manage marine areas along with the natural resources contained therein, so that they need to be managed sustainably for the greatest prosperity of the people in accordance with the mandate contained in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

 

 

 

 

 

 

 

 

Reading List

 

Jimly Asshiddiqie, (2009),  Green Constitution, Green Shades of the 1945 Constitution of the Republic of Indonesia, Rajawali Press Publisher, PT Rajagrafindo Persada, Jakarta.

Jimly asshiddiqie, Hans Kelsen's Theory of Law, Publisher: Konstitusi Press, Jakarta 2006

Dina Sunyowati (2008), Legal Framework for Coastal Area Management Based on the Concept of Integral Coastal Management in the Context of Sustainable Marine Development, Dissertation, Arlainga.\

Philipus M. Hadjon (2005), Introduction to the Administrative Law of Indonesia, Gadja Mada University Press

Hermit Herman (2008), Discussion of the Spatial Planning Law (Law No. 26 of 2007), Mandar Maju, Jakarta.

Reference Material for Integrated Marine and Coastal Area Management, Ministry of National Development Planning/National Development Planning Agency, Department of Maritime Affairs and Fisheries, Department of Law and Human Rights in collaboration with the Coastal Resources Management Project/Mitra Pesisir, Jakarta, 2005.

Philipus M Hadjon (1994), The Normative Function of Administrative Law in Realizing Clean Government, Speech for the Inauguration of the Position of Professor in Legal Studies at the Airlangga Faculty of Law.

Tatiek Sri Djatmiati, Principles of Industrial Business Licensing in Indonesia, Postgraduate Program Dissertation, Airlangga University, Surabaya, 2004.

 Philipus M. Hadjon (1980), Basic Understanding of Governmental Actions (Bestuurshandeling), pp. 144-145

Philipus M Hadjon Discretionary Power and General Principles of Good Government (AAUPB), Paper without year of publication, pp. 3-6 

Philipus M Hadjon (1980), Basic Understanding of Governmental Actions (Bestuurshandeling).

H. Abdul Latif, Laws and Policy Regulations (Beleidsregel) in Regional Government, UII Press, Yogyakarta.

David Silalahi, Sustainable Development in the Framework of Management (Including Protection) of Natural Resources Based on Social and Economic Development. Paper Presented at the VIII National Legal Development Seminar, Organized by the National Legal Development Agency of the Ministry of Justice and Human Rights of the Republic of Indonesia, Denpasar, July 14-18, 2003.

Rohmin Dahuri (2003), Indonesia's New Ocean-Based Development Paradigm, Scientific Oration as Permanent Professor in Coastal and Marine Resources Management, Faculty of Fisheries and Marine Sciences, Bogor Agricultural University.

Rohmin Dahuri Integrated Management of Coastal Area Resources, Pradnya Paramita, Jakarta, 2001.