Research Question. These issues will be addressed from a case study. It addresses is how spatial management, i.e. the formation and implementation of law and policy pertaining to the use of land, in Bandung and West Java Province has evolved since the 1990s, what its results have been, which factors underlie it, and finally how spatial management in West Java and Bandung can potentially be improved. The study will describe the transformation process of law into lower and detailed regulations, following existing levels of governments, and how it informs decision makers at the ‘street level’ dealing with permit applications. Considering the impact of the Regional Government Law 22/1999 (RGL 1999) as amended by Law 32/2004 (RGL 2004) on the government structure and power distribution between different government levels, this study also will trace how decentralization has influenced the distribution of authorities in spatial management. It will and analyze in detail the unexplored map of how permits -- possessing the dual function of informing citizens what to do and not to do, as a government instrument to protect the ‘public interest’ – function in practice. Particular attention will be paid to how public officials interpret major ‘open’ concepts in implementing spatial management policy and law such as sustainable development, public interest, social and environmental cost, and the like. This is related to how the social and environmental cost has been internalized in the whole spatial management process. Another point of attention in this study is how such government instruments (permits) influenced peoples (comprising of landowners and investors or government actors acquiring land in the name of development) access to land. It will analyze who get most benefit from existing spatial planning and the permit system which putatively controls who gets access to land and to what purpose available land should be put to use. While the focus of this study is West Java and Bandung many of its findings and conclusions are likely to be applicable at a more general and theoretical level. As regards land acquisition, the thesis explores how the current system of land acquisition and utilization for development purposes could be improved by making it more sensitive to social and environmental issues. This entails questions such as how immaterial losses associated with land alienation can be translated into monetary compensation. According to the law, land use has a social function36, which potentially facilitates the idea of compensation for the environmental degradation brought about by changing patterns of land use. For all of those who lose their land in the name of development, those who are forced to 36 Art. 6 (every land has a social function) and 15 (obligation of every land owner to maintain and preserve the land fertility and prevent its damage, with special consideration to the poor). seek employment in cities and who come to live in the poorer quarters of these cities, how do we compensate for the loss of their basic right to enjoy a clean and healthy environment?37 How do we balance the needs of the greater good against the individual rights of those adversely affected38? These issues will not only be analyzed in their socio-political context, but also evaluated as part of the continuing struggle to establish the Indonesian Negara Hukum (or Rechtsstaat). In my opinion, the struggle to establish a Negara Hukum is the most appropriate framework to evaluate spatial management, which includes but is not limited to land disputes. The primary reason is that the Negara Hukum framework provides the most promising blueprint to establish an orderly and civilized society ruled by law in its broadest sense. To put it differently, the Negara Hukum concept, understood as an universal human good in the sense that the government should be constrained by law and be held legally accountable to the people it is supposed to serve39 should provide a standard - a base line – for the way governmental power as exemplified in legal rules and policies is to be exercised.40 It should function as a guarantee for the proper exercise of state power. My focus will thus be on processes offering guarantees that the state (or government) will not abuse power or authority, even if this offers no guarantee for substantively good outcomes. My focus is on how the state formulates and implements laws and policies, how it can be held accountable for its actions, and how the Negara Hukum should provide a starting point in legal reform efforts at the national and regional level, including attempts at reforming the existing spatial management laws and regulations. A practical reason for choosing the above approach is that the spatial management framework is an important instrument to secure formally stated development goals. According to the Constitution, the state exists in order to realize a just and prosperous society and therefore has a monopoly on determining how and when to exploit natural and agrarian 37The Stockholm Declaration of 1972 asserts that “both aspects of man’s environment, the natural and man- made, are essential to his well being and the enjoyment of the basic human right, even the right to life itself”. Art. 5(1) of the Environmental Management Act (23/1997) stipulates that the right to a clean and healthy environment is a basic human right. This is affirmed in Art. 28 H of the 1945 Constitution and Art. 9(3) Law 39/1999 on Human Rights. 38 ▇▇▇▇▇ ▇▇, Kebijakan Pertanahan: Antara Regulasi ▇▇▇ Implementasi (Jakarta: Kompas, 2001), p.73-75. 39 See Chapter 11 (a universal human good) of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, On the Rule of Law: History, Politics, Theory, (Cambridge University Press, 2004), pp. 137-141. He offered three clusters of the meaning of rule of law: that the government is limited by the law; formal legality – rule by rules and that law should rule not man. 40 The Hague Institute for the Internationalization of Law (HILL), Rule of Law: Inventory Report (discussion paper for the high level expert meeting on the rule of law of 20th April 2007). resources, and for what purposes (Art. 33(3). The same claim underlies the most important framework laws pertaining to spatial management, i.e. the Basic Agrarian Law, the Environmental Management Law 32/2009 (EMA 2009), the Spatial Planning Law 26/2007 (SPL 2007), and all other basic laws regulating utilization of specific natural resources (oil and gas, minerals and forestry). In fact, the whole top-down development planning mechanism in use during the New Order government and more or less preserved after 1999, was established on this foundation. e. 1) look to what extent the legal framework for spatial management in West Java conforms to the requirements of the Negara Hukum idea, 2) look to what extent state practices in spatial management in West Java conform to the requirements of the Negara Hukum and 3) consider what state officials involved in designing and implementing spatial planning law and policy think of the Negara Hukum and to what extent this influences their behavior.
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Sources: Not Applicable
Research Question. These issues will be addressed from a case study. It addresses is how spatial management, i.e. the formation and implementation of law and policy pertaining to the use of land, in Bandung and West Java Province has evolved since the 1990s, what its results have been, which factors underlie it, and finally how spatial management in West Java and Bandung can potentially be improved. The study will describe the transformation process of law into lower and detailed regulations, following existing levels of governments, and how it informs decision makers at the ‘street level’ dealing with permit applications. Considering the impact of the Regional Government Law 22/1999 (RGL 1999) as amended by Law 32/2004 (RGL 2004) on the government structure and power distribution between different government levels, this study also will trace how decentralization has influenced the distribution of authorities in spatial management. It will and analyze in detail the unexplored map of how permits -- possessing the dual function of informing citizens what to do and not to do, as a government instrument to protect the ‘public interest’ – function in practice. Particular attention will be paid to how public officials interpret major ‘open’ concepts in implementing spatial management policy and law such as sustainable development, public interest, social and environmental cost, and the like. This is related to how the social and environmental cost has been internalized in the whole spatial management process. Another point of attention in this study is how such government instruments (permits) influenced peoples (comprising of landowners and investors or government actors acquiring land in the name of development) access to land. It will analyze who get most benefit from existing spatial planning and the permit system which putatively controls who gets access to land and to what purpose available land should be put to use. While the focus of this study is West Java and Bandung many of its findings and conclusions are likely to be applicable at a more general and theoretical level. As regards land acquisition, the thesis explores how the current system of land acquisition and utilization for development purposes could be improved by making it more sensitive to social and environmental issues. This entails questions such as how immaterial losses associated with land alienation can be translated into monetary compensation. According to the law, land use has a social function36, which potentially facilitates the idea of compensation for the environmental degradation brought about by changing patterns of land use. For all of those who lose their land in the name of development, those who are forced to 36 Art. 6 (every land has a social function) and 15 (obligation of every land owner to maintain and preserve the land fertility and prevent its damage, with special consideration to the poor). seek employment in cities and who come to live in the poorer quarters of these cities, how do we compensate for the loss of their basic right to enjoy a clean and healthy environment?37 How do we balance the needs of the greater good against the individual rights of those adversely affected38? These issues will not only be analyzed in their socio-political context, but also evaluated as part of the continuing struggle to establish the Indonesian Negara Hukum (or Rechtsstaat). In my opinion, the struggle to establish a Negara Hukum is the most appropriate framework to evaluate spatial management, which includes but is not limited to land disputes. The primary reason is that the Negara Hukum framework provides the most promising blueprint to establish an orderly and civilized society ruled by law in its broadest sense. To put it differently, the Negara Hukum concept, understood as an universal human good in the sense that the government should be constrained by law and be held legally accountable to the people it is supposed to serve39 should provide a standard - a base line – for the way governmental power as exemplified in legal rules and policies is to be exercised.40 It should function as a guarantee for the proper exercise of state power. My focus will thus be on processes offering guarantees that the state (or government) will not abuse power or authority, even if this offers no guarantee for substantively good outcomes. My focus is on how the state formulates and implements laws and policies, how it can be held accountable for its actions, and how the Negara Hukum should provide a starting point in legal reform efforts at the national and regional level, including attempts at reforming the existing spatial management laws and regulations. A practical reason for choosing the above approach is that the spatial management framework is an important instrument to secure formally stated development goals. According to the Constitution, the state exists in order to realize a just and prosperous society and therefore has a monopoly on determining how and when to exploit natural and agrarian 37The Stockholm Declaration of 1972 asserts that “both aspects of man’s environment, the natural and man- made, are essential to his well being and the enjoyment of the basic human right, even the right to life itself”. Art. 5(1) of the Environmental Management Act (23/1997) stipulates that the right to a clean and healthy environment is a basic human right. This is affirmed in Art. 28 H of the 1945 Constitution and Art. 9(3) Law 39/1999 on Human Rights. 38 ▇▇▇▇▇ ▇▇SW, Kebijakan Pertanahan: Antara Regulasi ▇▇▇ Implementasi (Jakarta: Kompas, 2001), p.73-75. 39 See Chapter 11 (a universal human good) of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, On the Rule of Law: History, Politics, Theory, (Cambridge University Press, 2004), pp. 137-141. He offered three clusters of the meaning of rule of law: that the government is limited by the law; formal legality – rule by rules and that law should rule not man. 40 The Hague Institute for the Internationalization of Law (HILL), Rule of Law: Inventory Report (discussion paper for the high level expert meeting on the rule of law of 20th April 2007). resources, and for what purposes (Art. 33(3). The same claim underlies the most important framework laws pertaining to spatial management, i.e. the Basic Agrarian Law, the Environmental Management Law 32/2009 (EMA 2009), the Spatial Planning Law 26/2007 (SPL 2007), and all other basic laws regulating utilization of specific natural resources (oil and gas, minerals and forestry). In fact, the whole top-down development planning mechanism in use during the New Order government and more or less preserved after 1999, was established on this foundation.
e. 1) look to what extent the legal framework for spatial management in West Java conforms to the requirements of the Negara Hukum idea, 2) look to what extent state practices in spatial management in West Java conform to the requirements of the Negara Hukum and 3) consider what state officials involved in designing and implementing spatial planning law and policy think of the Negara Hukum and to what extent this influences their behavior.
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