Prophetic Law-based Land Bank Policy Reformulation in Indonesia
ABSORI, MOHAMMAD INDRA BANGSAWAN, ARIEF BUDIONO,
DEWI KUSUMA DIARTI
Faculty of Law, Universitas Muhammadiyah Surakarta,
Jalan A. Yani, Mendungan, Pabelan, Kec. Kartasura, Sukoharjo Regency, Central Java, 57102,
INDONESIA
Abstract: - In regulating the land bank policy, Indonesia refers to Law Number 11 of 2020 concerning Job
Creation and Presidential Regulation Number 64 of 2021 concerning Land Bank Agency. These two laws
regulate all general technical requirements required by investors. This study aims to: 1) Describe the land bank
legal policy after the legalization of Law Number 11 of 2020 concerning Job Creation; 2). Formulate a land
bank policy based on prophetic values which integrate the positive law and religious values. This is normative
legal research which used secondary data and library materials as the main data sources. It used the
philosophical juridical approach: the juridical approach was in the form of legislation (statute approach) and the
philosophical approach was in the form of the prophetic ethical paradigm through ash-Asyatibi’s Maqasid al-
Syari'ah (the purpose behind Islamic laws). The data analysis was divided into two. The first was the
descriptive-qualitative analysis by describing land bank policies after the enactment of Law Number 11 of 2020
concerning Job Creation. While in the second problem formulation, because the main objective was to find the
concept of land bank policy based on prophetic ethics, the authors conducted critical and predictive analyses.
Land bank policies have various advantages and disadvantages. With these weaknesses and strengths, a new
land bank policy was formulated, which was predicted to be able to guarantee equitable land distribution and
wise management of land tenure.
Key-Words: - Land bank, policy, reformulation, prophetic law, Islam, Indonesia, ash-Asyatibi, Maqasid al-
Syari'ah, positive law.
Received: March 17, 2022. Revised: November 8, 2022. Accepted: December 9, 2022. Published: December 31, 2022.
1 Introduction
The dynamic development of law in Indonesia leads
to many debates. The majority of Indonesians
embrace the Islamic religion and believe in one God
(Allah). They believe in the Qur’an as the Holy
Book. The Qur’an, Chapter Ali Imron, Verse 20
states, "So if they argue with you (O Prophet), say,
‘I have submitted myself to Allah, and so have my
followers.’ And ask those who were given the
Scripture and the illiterate (people), ‘Have you
submitted yourselves (to Allah)? If they submit, they
will be (rightly) guided. But if they turn away, then
your duty is only to deliver (the message). And Allah
is All-Seeing of (His) servants.”
According to Rohidin, Islam means the
submission or surrender of a servant (humans) to the
Lord (Allah). This means that in dealing with their
Lord, humans must feel small. They must admit
their weaknesses and justify the power of God.
Humans’ reasoning and mental capabilities that are
manifested in science are not comparable to the
knowledge and ability of God, [1]. So, in the case of
differences, disagreements, and doubts, religious
references should be used as a solution, [1].
Indonesian political elite and legal scholars were
shocked by the passing of Law No. 11 of 2020
concerning Job Creation, [2]. The Job Creation Law
seems to be a special invitation made by the
government for investors and conglomerates in the
form of a legislation. This is because all the
provisions stipulated in the Job Creation Law can
independently regulate all general technical
requirements needed by investors to invest. Thus,
there is no need to bother looking at other laws and
regulations. The issuance of this Job Creation Law
legally changed 82 laws and regulations and
revoked two laws and regulations.
An implication of the enactment of the Job
Creation Law that is no less interesting was the
issuing of Presidential Regulation Number 64 of
2021 concerning the Land Bank Agency. The Land
Bank Agency aims to ensure the availability of land
to achieve economic justice, public interest, social
development, economic equity, land consolidation,
and agrarian reform. The Director of Land
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Valuation and Land Economics at the Ministry of
Agrarian Affairs and Spatial Planning/National
Land Agency (AASP/NLA), Perdananto Aribowo
said that there are state lands. But the de facto
condition is that the government cannot control the
land. On the contrary, it only acts as a land
administrator. Meanwhile, no agencies have the role
of executor, [3]. The Land Bank concept has
actually existed in the 2019 Land Bill but it failed to
be ratified.
The pros and cons of the Land Bank concept
were triggered by the community’s sensitivity
towards the re-emergence of the 'domein venklaring'
colonial element. It also deviates from the objectives
of agrarian reform. In this Land Bank concept, the
government does not have the mere status of
controlling, but also owning. It is not only
authorized to distribute land to the poor, but also to
use the land for investment projects. It has the
authority to manage state land and also to sell
management land. Even so, the government has a
positive spirit to create economic equality. It has the
enthusiasm to open up large scale job opportunities
for its citizens by inviting investors to take over the
state's duty to bring prosperity to the people.
Legal scholars expressed various ideas to
criticize the efforts to establish this Land Bank
Agency. This is so that the government could
rediscover the identity of Indonesian law that must
justly provide protection for all people according to
the Indonesian nation’s ideals of independence as
contained in the Preamble of the Republic of
Indonesia’s 1945 Constitution. This is because
Indonesia’s Pancasila (the Five Principles that are
Indonesia’s ideals) and the 1945 Constitution are a
combination of religious, moral, legal, and state
values in one inseparable unit.
From this idea, this research aims to describe the
land bank legal policy after the legalization of Law
Number 11 of 2020 concerning Job Creation and
formulate a land bank policy based on prophetic
values which integrate the positive law and religious
values.
Then, according to the government, the Land
Bank Agency concept is a form of legal change that
aims to answer every problem in society. The law
must always dynamically develop. In this case, it
concerns problems in the land sector. Furthermore,
it was conveyed that humans cannot easily accept
change, as the slightest change must be followed by
adjustment. The community must understand that
this new form of legal change is leading in a good
direction. But it must go through an adjustment
stage in order to be accepted by the community, [4].
Apart from the polemic of the establishment of this
land bank, legal reform is a necessity in the current
multi-sectoral development era. The law must be
able to answer every problem in society. Therefore,
it must always dynamically develop, [5]. Even, the
state constitution does not rule out the possibility to
be renewed to accommodate the demands of the
times, [6].
According to Ni'matul Huda, the making,
perfecting, and changing of the legal rule is part of
the legal development. This applies in a broad sense,
meaning that any form of law (including the
constitution, laws, customs, and conventions) can be
changed or renewed, [7]. According to Harold J.
Berman, [8] legal change refers to the notion that
law is always growing. Legal growth has an internal
logic. This means that change is not only an
adaptation of the old to the new, but it is also part of
a pattern of change. This does not happen randomly.
But it was resulted from the reinterpretation of past
rules with present conditions and future needs. In its
growth, the law systemically interacts with sectors
of social life, [9]. In interacting with social life,
there is a tug of war between reality and ideals in a
legal society, [10].
When discussing the socio-political dynamics of
legal development in Indonesia, Soetandyo argued
that the meaning of change is understood as a
change from what is ideologically desirable to
another function outside of ideology that is not
desired. This points to the notion of a gap between
what is das sollen (the ideals) with what is das sein
(the facts), [11]. So, according to Suhirman
Djirman, to understand the complex human
civilization, human knowledge (thought) needs to be
reconstructed with a spiritual approach. Spirituality
is not just an institution. Modern science cannot
reach the spiritual dimension, as it relies on
analytical ratios that are logical and systemic
(Newtonian). Meanwhile, the spiritual mind (ratio)
is silent (passive) and the heart (the center of the
small universe) will be active, opening up to a
natural complex universe (big universe). This emits
an atmosphere of depth to understand that life is full
of miracles, [12]. Spirituality is a substantial
dimension of the divinity concept. It is embodied in
an understanding of life as a divine human being as
in the precepts of God as an emphasis on existence.
The preamble of Indonesian 1945 Constitution
provides the point of "God's grace". This shows that
all laws and regulations that begin with the
preamble have a transcendental meaning, [12].
Indonesia requires a modern legal system,
namely a set or a legal system that can anticipate
and overcome various possible problems. This is
because with Pancasila and the 1945 Constitution,
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Indonesia has a combination of religious, moral,
legal, and state values in an inseparable unit, [13].
Deconstruction has dismantled modernism which
modern society has regarded as the truth in the legal
field. J. Balkin states that deconstruction and
interpretation are means to seek justice. According
to him, in certain aspects, the law is unfair, [14].
The conception of legal truth is a very important
value, showing a relative and vague tendency.
The value of truth is understood using different
views. It leads to an understanding that the truth is
measured according to the perception of lawmakers.
Lawmakers are based on the will of the authorities
who are supported by the majority political group by
being set forth in the form of a law, [15]. In fact, the
wills and political views of the majority do not
necessarily reflect the truth.
In the Islamic perspective, the modernization of
the law does not have to be accompanied by
secularization, as is the opinion of Imam Shafi'i who
explains the position of reason against the Sharia
(the Islamic Law), [16]. He said that the mind
follows the Sharia. He likened the mind to the eye
which has a limited vision, where its reach stops at
that limit. Likewise, the mind has a limit where it is
limited to a certain point, [17].
The spirit of legal reform in Indonesia is both an
opportunity and a challenge for the study of Islamic
law to be empirical and realistic, [18]. Islamic law
must be able to play a role and become efficient for
the needs of Muslims and Indonesians in general. It
must show its great promise, namely as rahmatan lil
'alamin (a blessing for the universe) and li-
tahqiqmashalihal-nas (ensuring the realization of
human benefit). In the Islamic legal system, there
are five laws or rules that are used as a benchmark
for measuring human actions in the fields of
worship and muamalah (commercial transactions).
The five rules are known as al ahkam al khamsah or
the five legal classifications, namely jaiz or ibahah
(permissible) , sunnat (recommended), makruh
(disliked), obligatory, and unlawful, [19].
There are several terms in Islamic law, including
shari'ah, fiqh and ushul fiqh. According to Hasbi
Ash Shiddieqy, [20], Sharia includes laws that Allah
has set out for His servants through His Messenger
to be practiced with full faith. These laws can be
related to worship, belief, and morals. The Islamic
Sharia regulates worldly and religious matters. From
a legal perspective, Sharia is the basic legal norm set
by Allah which must be followed by Muslims based
on faith. It concerns morals both in relation to Allah
and with fellow creatures of Allah. This basic legal
norm was then explained by Prophet Muhammad
(peace be upon him/pubh). It was the sunnah of the
Prophet. Later, by Kuntowijoyo, [21] this method of
developing science and religion was often termed
the prophetic paradigm. Previously, the study of
Islamic law seemed to be ‘floating’, because it was
seen as only memorizing the thoughts of scholars
from centuries ago. Now, in viewing contemporary
issues, the study of Islamic law is required to
provide its views with the prophetic legal paradigm.
Therefore, the authors are interested in conducting
research on the reformulation of land bank policy
based on prophetic law.
2 Method
This was legal research, also classified as normative
legal research. Normative legal research was
conducted to find secondary data by using library
research. The focus of this research was to
formulate a land bank policy concept based on
prophetic law that guarantees a fair distribution of
land and a wise management of land tenure. It used
the philosophical juridical approach. The juridical
approach was in the form of legislation (statute
approach) and the philosophical approach was in the
form of prophetic law.
3 Results and Discussion
3.1 Land Bank Policy in Indonesia
The number of experts who put forward the
definition of policy provided a common thread in
understanding it. There are several things contained
in the policy, namely, [22]: 1) there are certain goals
to be achieved that are in favor of the public
interest; 2) there is a series of actions to achieve a
goal. This set of actions is a structured strategy to
easily achieve goals. Such strategies are often
translated into programs and projects; 3) the
proposed actions can come from individuals or
groups from within or outside of the government; 4)
there is a provision of inputs to implement the
strategy. The inputs are in the form of both human
and non-human resources.
Thomas R. Dye, defines public policy as
“whatever the government chooses to do or not to
do”, [23]. In the context of Indonesia as a legal
state, the formulation of public policies must be
based on the provisions of the applicable laws and
regulations. In general, Law no. 11 of 2012 contains
the main materials which systematically formulate:
principles in forming laws and regulations; types,
hierarchies, and content of the laws and regulations;
planning and preparation of laws and regulations;
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techniques for drafting laws and regulations;
discussion and ratification of bills; discussion and
stipulation of Draft Provincial Regulations and Draft
Regency/Municipal Regulations; promulgation of
laws and regulations; dissemination; community
participation formulating a legislation; and other
provisions concerning the formation of Presidential
Decrees and other state and government institutions,
[24].
According to the land bank policy, using the
land bank, the government tries to respond quickly
to strategic state programs such as food, energy,
infrastructure, and public housing for the
community. The allotment of control, ownership,
use, and utilization of state land and former
abandoned land is for the benefit of the community
and the state through agrarian reform and state
strategic programs. The state's strategic programs
include the development of the food, energy, and
public housing sectors in order to improve the
welfare of the community. Other state reserves
include, among others, meeting the needs of land for
the benefit of the government, defense and security,
land needs due to natural disasters, as well as the
relocation and resettlement of communities affected
by development for the public interest. The 2015-
2019 Mid-Term National Development Plans stated
that the expired Permits of Business Use and 0.6
million hectares of abandoned land are the
authorities of the Ministry of AASP/NLA. The data
on the achievement of control and utilization of
abandoned land up to 2017 is shown as follows,
[16]:
Table 1. Achievement of Issuance and Utilization of
Abandoned Land up to 2017
Year
Designation of
Abandoned Land (Ha)
Optimization
of Abandoned
Land (Ha)
Clean and
Clear
2010-
2017
24.825.76
2.389.37
Source: Directorate of Control and Utilization of
Abandoned Land, Land Information System Application,
2019
From this data, it can be seen that there is only a
minimum effort to use abandoned land in the period
2010 to 2017. The number of abandoned lands
steeply increased, reaching 76.384,30 hectares.
Then, the cleaning and clearing of abandoned land
were not maximally applied. This impacted the
suboptimum use of abandoned land that has been
cleaned and which has been given a new function,
which amounts to 2.389,37 hectares. This showed
that the increasing optimization of abandoned land
can bring welfare.
The Land Bank’s existence is regulated in
Article 125 to Article 135 of Law no. 11 of 2020
concerning Job Creation. Land Bank is a special
agency that manages land. It functions to carry out
the planning, acquisition, procurement,
management, utilization, and distribution of land.
According to the Secretary General of the Ministry
of AASP/NLA, Himawan Arief Sugoto, the land
bank exists as land manager. The land manager will
function to form a land management strategy to
develop optimum land use. The regulation of the
land bank in the Job Creation Law has become the
legal basis for the establishment of a new state
institution in Indonesia.
The land bank is given special authority by the
government to guarantee the availability of land in
the framework of a just economy, for public
interests; social interests; national development
interests; economic equity; land consolidation; and
agrarian reform, [25]. With this authority, land
banks function to undergo planning; land
acquisition; land management; and utilization and
distribution of land, [26]. The Land Bank Agency
was established to guarantee the availability of land
for public interests. It guarantees the provision of
land for all development purposes. Its activities are
supported by central and regional governments. Its
contributions to social interests include guaranteeing
the provision of land for the purposes of education,
worship, sports, culture, reforestation, conservation,
and other social interests of the people.
3.2 Prophetic Law-based Land Bank Policy
Reformulation
Prophethood (prophecy/prophetic), is not a
terminology that is only known in Islam. As stated
by Fazrul Rahman, prophethood is a universal
phenomenon in human existence throughout the
ages, [27]. The term prophetic is basically related to
the ideal figure of a prophet, with all his prophetic
qualities. In this case, if the prophetic term is used
for another entity, then that entity should also fulfill
the prophetic characteristics. Based on this
understanding, prophetic can generally be defined
as an entity that seeks to prepare and provide itself
to be able to read and capture the messages of God,
take lessons from them, and then try to implement
these messages of God in the world in everyday life.
Kuntowijoyo interpreted the method of
developing science and religion in prophetic terms
based on Islam’s Holy Quran and Sunnah.
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According to him, they are the main bases for the
overall development of science, [21]. The prophetic
law is a law based on culture and objective norms
resulting from appreciation of religion (Islam). As a
science that is based on transcendental values, the
prophetic law affirms faith, not doubt, as the basis
for building its theoretical framework, [28]. Islam
does not recognize a dichotomy in science. Muslim
scholars simultaneously rejected liberal secular
science of the west which is claimed to be value-
free, which contributes significantly to the gradation
of humanity in the modern era. Islamic thinkers
offer a way out according to an Islamic perspective
which is different from the western mainstream way
of thinking. The difference can be seen from the
world view, epistemological, and axiological
aspects, [29].
The authority exercised by the Land Bank is not
only to distribute land for the community, but also
for investment and other public interests, [30].
Concerning the authority to ensure the availability
of land for investment, this is suspected to deviate
from the agrarian reform which is conceptualized so
that land is not only controlled or owned by a few
people or certain parties, thus causing inequality.
There are few people who own a lot of land, and
conversely, there are many people who own little
land or none at all.
Meanwhile, it is also possible that there will be
inequality in terms of land allocation for various
uses by various sectors. This is also known as
sectoral inequality, namely the unfair allocation of
land used for the agricultural sector, forestry sector,
mining sector, energy and minerals, industrial
sector, housing sector, tourism sector, and so on.
Each of these sectors also has an imbalance of
control between land allocated to the community
and those allocated to corporations and public/state
interests. The agricultural/food sector and its
allocation to the community are often displaced by
the interests of investors or the state. It is absolutely
necessary to have a policy capable of overhauling
the two structures of injustice, which has not yet
been seen from the emergence of the Land Bank
Agency.
Against the first, Islam has emphasized that (the
source of) wealth should not revolve around the rich
alone “Whatever the Messenger gives you, accept it.
And what he forbids you, leave it. And fear God.
Truly, God is very severe in His punishment”
(Chapter Al Hasyr: 7). The concentration of
ownership will damage socio-economic relations
(create injustice) and damage to nature. Allah has
prohibited mankind from doing damage to nature
(and the social/cultural buildings on it). Allah’s
creations are in the best form, “And do not do
damage to the earth after it was (created) well. Pray
to Him with fear and hope. Indeed, God's mercy is
very close to those who do good” (Chapter Al A'raf:
56). Overhauling an unjust structure towards justice
is mandatory, [31]. Islam highly upholds the
enforcement of justice, even the piety of a person
(especially the leader) is judged from the level of
justice. “Be fair, because it is closer in degree to
piety” (Chapter Al Maidah: 8). The degree of piety
of a person or a regime is measured by its fair
attitudes or policies. There is no piety without
justice. So, it is no exaggeration to say that fighting
for agrarian reform as an effort to create justice is
something very spiritual. It is a journey towards
piety to Allah, [32].
The experience of the Prophet above can be used
as a basis and reference for the need for agrarian
reform. The agrarian reform meant is the agrarian
reform that is based on law as the controller in
creating order in the life of the nation and the state,
[33]. "Human farmers" or "farmers" according to
Article 1 of Law Number 2 of 1960 concerning the
Basic Agrarian Law, are subjects in carrying out
agrarian reform because they are the only ones
whose main livelihood is cultivating land for
agriculture. Those who work in the agricultural
sector as tenants, cultivators, and farm laborers are
essentially the targets of development in the
agricultural sector. They are simultaneously active
actors in the activities to develop the agricultural
sector, [34].
According to Gunawan Wiradi, [35], agrarian
reform is a realignment (or rearrangement) of the
composition of ownership, control and use of
agrarian resources (especially land), for the benefit
of the small people (farmers, farm laborers, etc.), in
a comprehensive and holistic manner on all agrarian
resources, including water rights, protection from
climate change, and biodiversity. It must equitably
consider the needs of the community and
investment. This is to increase people's income and
welfare, especially for small farmers, in a fair and
equitable manner. This is to give people the
opportunity to develop themselves to achieve
prosperity, as part of national development is to
realize a just and prosperous society based on
Pancasila. This is in line with the principle of
development. In development, the principle of
sustainability is applied to natural resources and
then utilizes these natural resources without
damaging the human environment, [36].
Concerning the scientific contribution of this
paper, the government can use instruments that exist
in the law, especially from the prophetic aspect, that
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the government can and has the right to revoke land
management rights. The revocation of abandoned
land management is an essence of both the positive
and prophetic laws, as land is a productive factor
that is crucial in increasing people’s welfare.
The positive law, i.e., the law on land and the
prophetic law that is embraced by most Indonesians
allow the state to revoke the management rights of
abandoned land that is not well managed. This
revocation aims to maximize land management as a
production factor in people’s welfare.
The conception of land management as
exemplified by the Prophet above should be our
starting point in orientating the Indonesian national
agricultural development. Historical experience
shows that the production process will be influenced
by the ownership system of the means of
production. Individually-controlled means of
production will allow human exploitation to occur.
Therefore, we need a system where the ownership
of production facilities (which control the lives of
many people) does not exploit humans to uphold
justice and eradicate poverty. This is to create a
better and more meaningful life. According to a
prophetic perspective, land banks cannot be
exclusive. It needs to enter a wider dimension,
including encouraging reforms in the mode of
production and the establishment of a new order
with new values. Thus, it means that a new agrarian
policy is required. It must no longer be based on the
capitalist mode of production, but a mode of
production that favors the homeless “Poor farmers,
small farmers, farm laborers and those who are at
the bottom of the social structure) and why don't
you fight in the way of Allah and defend the weak"
(Chapter An-Nisa (Women): 75).
4 Conclusion
The land bank is given special authority by the
government to guarantee the availability of land in
the framework of a just economy, for the public
interest; social interests; national development
interests; economic equity; land consolidation; and
agrarian reform. The functions of the land bank
include land planning, acquisition, and management
as well as utilization and distribution of land. The
Land Bank Agency was established to ensure the
availability of land for the sake of justice, both for
the benefit of the community as well as for
investment purposes.
The state cannot revoke the rights of abandoned
land with a private ownership right (certificate of
land tenure). But the state can revoke abandoned
land without private ownership such as the land with
rights of building use, land use, etc. (such as petok
D, letter c, dll) that are abandoned. They can have
their functions shifted to be used for the welfare of
the people.
Islam recognizes the existence of private
ownership, including in terms of managing and
controlling land. But Islam rejects monopoly. The
teachings of the Sharia law taught by Prophet
Muhammad (pubh) aim to maintain a humane
balance. He has practiced this with the Ansor and
Muhajirin people who shared land at that time in
Madinah. The Prophet has laid down the concept of
land reform with the principles of justice and
benefit. This law guarded the people against
damage. We should also use the history of good
relations between the Muhajirin and Ansor as an
example. Therefore, land bank should be applied as
long as it adheres to the above principles.
Acknowledgement:
The authors would like to thank Universitas
Muhammadiyah Surakarta.
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Conflict of Interest
The authors would like to declare that there is no
conflict of interest.
Contribution of Individual Authors
-ABSORI: Edited the draft, reviewed the paper,
provided materials and data for the research.
-MOHAMMAD INDRA BANGSAWAN:
Conceived the research, provided original idea of
the study, provided materials and data for the
research.
-ARIEF BUDIONO: Designed the methods,
selected research data, analyzed and interpreted the
data, wrote the paper.
-DEWI KUSUMA DIARTI: Analyzed the data,
provided description, wrote the paper, reviewed the
paper.
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(Attribution 4.0 International, CC BY 4.0)
This article is published under the terms of the
Creative Commons Attribution License 4.0
https://creativecommons.org/licenses/by/4.0/deed.en
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WSEAS TRANSACTIONS on SYSTEMS
DOI: 10.37394/23202.2022.21.33
Absori, Mohammad Indra Bangsawan, Arief Budiono, Dewi Kusuma Diarti
E-ISSN: 2224-2678
311
Volume 21, 2022