HGU disputes Plantation Palm Can Be Completed through PTUN

By : Hariyanto And Aldo Bella Putra | Thursday, August 17 2017 - 15:52 IWST

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INDUSTRY.co.id - Jakarta - Oil palm plantations may resolve disputes on Hak Guna Usaha (HGU) that are designated as part of forest areas through the State Administrative Court (PTUN).

DR Hotman Sitorus SH, Sub Directorate of Litigation for Polhukam, Director General of Legislation and Legislation of the Ministry of Justice and Human Rights, said that when there is one state administrative decision set in the past, the basic consideration at the moment is no longer constitutional, Such as oil palm plantations have a basis to sue.

Currently, all "designations" of forest areas including HGUs therein are deemed invalid as forest areas until the establishment of forest areas by the Government. The reason, the phrase "appointed" in article 1, paragraph 3 of Law No. 41 of 1999 on forestry is contrary to the decision of the Constitutional Court (MK) through the decision No. 45-PUU / IX / 2011. "The Constitutional Court's decision could be the basis for oil palm plantations to request a cancellation," he told media crew in Jakarta yesterday.

Normally, since the verdict is set, there is no longer any appointment of forest area. If it remains imposed, then the provision has become abuse of power (abuse of power).

Referring to the verdict, the designation of the current forest area is only a set of procedures towards the establishment of forest areas. The procedure consists of appointment of forest area, arrangement of forest area boundary, forest area mapping and forest area determination.

Hotman ensured that the legal efforts by palm oil plantations could not be cited as part of corporate activities against the government's decision. "This is part of democracy to mature all parties in understanding the law well and justly," Hotman said.

In fact, Hotman said, KLHK could realize that the decision was no longer constitutional, but did not have a cancellation format or could cancel their rules. "Cancellations can only be made by appeals from disadvantaged parties, especially plantations," Hotman said.

A similar statement was made by a criminal law expert from Muhammadiyah University of Jakarta (UMJ) Chairul Huda. He argues, HGU is one of the land rights granted based on legislation and should get the protection as mandated in the decision of Court No.34 / PUU-IX / 2011.

According to Huda, with the determination of the Constitutional Court, all KLHK's decisions on licensing of HGU on forest areas have been stale and no longer valid. If the old rule still refers to the designation of forest areas, while the current law requires the determination of a forest area needs to be more than just appointed, basically more favorable new rules that should be used.

"The criminal law does not apply retroactively if it is burdensome. But criminal law may be retroactive if profitable," Huda said.

In fact, referring to the criminal law in Article 1 paragraph 2 of the Criminal Code, if there is a change of legislation, then it is necessary rules favorable to the defendant. "If it is beneficial for the defendant it is certainly beneficial for the suspect and reported," said Huda.

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