INTRODUCTION
Government policy in spatial planning has a profound effect on the public. Spatial planning policy specifically zoning regulation will profoundly affect the public, especially the owner of rights over land. Law No. 26 of 2007 on Spatial Planning Law as amended by Law No. 6 of 2023 on Job Creation (“Spatial Planning Law”) has mandated that the administration of spatial planning is for the greatest prosperity of the people.1 Although administered for collective interest, Spatial Planning Law stipulates that the administration of spatial planning must observe the rights owned by individuals pursuant to the laws.2

Spatial Planning Law grants the authority to conduct spatial planning to Central Government and regional government.3 Spatial Planning of National Territory is the authority of the Central Government whereas the Spatial Planning of Provincial and Regency/City Territory is the authority of the regional government. Persons aggrieved by the regional government spatial planning policy may pursue several legal remedies. This article will examine one of the legal remedies an aggrieved person may pursue against regional spatial planning policy, namely petition of judicial review to the Supreme Court.

The first part of this article will examine the legal basis of the regional government’s authority in spatial planning, the second part will examine the jurisdiction of Supreme Court on judicial review, and the last part will examine two decisions made by the Supreme Court in judicial review cases against provincial regulation on Detailed Spatial Plan.

DISCUSSION AND ANALYSIS

Regional Government Authority in Spatial Planning

In the Spatial Planning Law, Space is defined as a vessel comprising land space, sea space, and air space, including subterranean space as a unity of territory, the place in which human and other living beings carry out activities and maintain their survival.4 Spatial Planning is defined as a system of Spatial Planning, Spatial Utilization, and Spatial Utilization Control.5

Spatial Planning is a process to determine the Spatial Structure and Spatial Pattern comprising formulation and promulgation of Spatial Plan.6 Spatial Planning consists of:

  1. General Spatial plan; and
  2. Detailed Spatial plan.

Under Spatial Planning Law, spatial planning is conducted in tier and complementary with the National Spatial Plan (“ RTRW”) being the guide in the formulation of the provincial and regency/city RTRW and provincial RTRW being the guide in the formulation of regency/city RTR.7 The hierarchy of general Spatial Plan consists of:

  1. National Spatial Plan;
  2. Provincial Spatial Plan; and
  3. Regency Spatial Plan and City Spatial Plan.

From authority perspective, the authority to administer spatial planning in the region is stipulated under Article 7 paragraph (2) of the Spatial Planning Law. Pursuant to Article 23 paragraph (6), provincial RTRW is stipulated by provincial regulation. Article 26 paragraph (7) of the Spatial Planning Law stipulates that regency RTRW is stipulated by regency regulation. The same applies to zoning regulation. Article 36 paragraph (3) of the Spatial Planning Law stipulates that zoning regulation for province is stipulated by provincial regulation and zoning regulation for regency/city is stipulated by regency/city regulation.

Supreme Court Jurisdiction on Judicial Review

The jurisdiction to review subordinate legislation against the law (menguji peraturan perundang-undangan di bawah undang-undang terhadap undang-undang) or Judicial Review is obtained by the Supreme Court through attribution based on Article 24A of the 1945 Constitution. The jurisdiction is also regulated under Article 31 of the Supreme Court Law and Article 20 paragraph (2) letter b of Law No. 48 of 2009 on Judiciary Power.

A subordinate legislation may be invalidated by the Supreme Court for 2 (two) reasons:8

  1. it contravenes the higher legislation; or
  2. the law-making process does not fulfil the prevailing regulations.

The Supreme Court decision on the validity of subordinate legislation may be rendered (i) either in relation to the examination in the cassation stage or (ii) based on the petition to the Supreme Court.9 The procedure of filing the petition to the Supreme Court is regulated under Article 31 A of the Supreme Court Law and further regulated under Supreme Court Regulation No. 01 of 2011 on Judicial Review.

A petition may only be filed by a party who deems his right to be aggrieved by the operation of the legislation. A petition should at least contains the following:

  1. name and address of the petitioner;
  2. description regarding the subject matter of the petition and describing clearly that:
    1. content material of the paragraph, article and/or part of the subordinate legislation deemed to be in contravention with the law; and/or
    2. the regulation-making procedure does not fulfil the prevailing regulation; and
  3. relief sought.
Sources  Jurisprudence: Rechtsverwerking (Release of Right) in Customary Land Law

Analysis of Judicial Review Cases against Regional Regulation

Summary of the Case
Decision No. 32 P/HUM/2015 dated 10 September 2015
In this case, the judicial review petition was filed by the Petitioners, residents of Blok 05, Cilandak Timur Sub-District, Pasar Minggu District, South Jakarta against the Governor of DKI Jakarta Province as the Respondent. The Petitioners filed a judicial review against Article 388 paragraph (1) letter d of Regional Regulation of DKI Jakarta Province No. 1 of 2014 on Detailed Spatial Plan and Zoning Regulation (“Perda DKI 1/2014”), specifically Green Lane Zone Blok 05, Cilandak Timur Sub-District, Pasar Minggu District, South Jakarta Administrative City, pursuant to Drawing-29A Pasar Minggu District Zoning Map with 1:5.000 scale on Appendix III-1 and Table 29A Spatial Pattern Plan Table of Pasar Minggu District on Appendix III-2 (“Judicial Review Object”). The Petitioners argued that Perda DKI 1/2014 was promulgated without public consultation and without involving the public as the entitled party. The Petitioners further argued that the designation of Blok 05, Cilandak Timur Sub-District, Pasar Minggu District, South Jakarta Administrative City as a Green Lane Zone under the Judicial Review Object will cause social problem as the area is a high-density housing area with over 1.500 inhabitants. Based on the following arguments, the Petitioners petitioned the Supreme Court to declare that the Judicial Review Object is null and void.

Supreme Court considered that the Petitioners have legal standing to file the petition against the Judicial Review Object because the Petitioners are residents domiciled in the Green Lane Zone Block 05 who would be aggrieved if the region is designated as a green lane zone as it will cause the Petitioners to no longer able to live on the land on which they have lived for a long time.

Supreme Court argued that the Judicial Review Object contravened higher laws, namely Article 27 paragraph (2) of the Spatial Planning Law, Article 159 of the Government Regulation No. 15 of 2010 on the Spatial Planning Administration, and Article 6 paragraph (1) of the Regulation of Minster of Public Works and Housing No. 20/PRT/M/2011 on the Guideline for Drafting RDTR and PZ for Regency/City, because the drafting process did not provide for adequate public participation (in this case the Petitioners) as entitled parties through public consultation. The Supreme Court considered that the evidence submitted by the Respondent in the form of copy of documentation of RDTR socialization and RDTR socialization event was not clear on the date and venue of the event and failed to prove that the socialization has taken place.

Based on those considerations, the Supreme Court declared that the Judicial Review Object is invalid and is not applicable and ordered the Respondent to revoke the Judicial Review Object.

Decision No. 19 P/HUM/2016 dated 19 July 2016
In this case, the judicial review petition was filed by the Petitioner, Jelambar Baru Businessmen Association against the Governor of DKI Jakarta Province as the Respondent. The Petitioner filed the petition of judicial review against Article 602 paragraph (2) letter g of Perda DKI 1/2014, specifically medium housing zone with R.4 code, Jelambar Baru Sub-District, Grogol Petamburan District, West Jakarta Administrative City, as presented in Table-16A Spatial Pattern Plan of Grogol Petamburan District (“Judicial Review Object”). The Petitioner argued that Perda DKI 1/2014 was promulgated without public consultation and without involving the public as the entitled party. The Petitioner further argued that the designation of Jelambar Baru Sub-District, Grogol Petamburan District, West Jakarta Administrative City area as a medium housing zone with R.4 code under the Judicial Review Object would harm the public (in this case the Petitioner) as the Petitioner would no longer able to conduct business with all of its aspect in the aforementioned area. Based on the following arguments, the Petitioners petitioned the Supreme Court to declare that the Judicial Review Object contravened higher laws and therefore invalid.

Supreme Court considered that the Petitioner has a legal standing to file a judicial review petition against the Judicial Review Object because the Petitioner was a group of persons with the profession of businessman in the Jelambar Baru Sub-District affected by the Judicial Review Object which was a prohibition on the conversion of housing to become a place of business therefore it is no longer allowed to issue business domicile permit in that area. Judicial Review Object was detrimental to the right of the Petitioner as the Petitioner can no longer conduct business activity and will cause new social problem due to massive unilateral layoffs.

Sources  Legal Aspect of the Grant of Right to Build (“Hak Guna Bangunan/ HGB”) or Right of Use (“Hak Pakai”) Over the Right of Ownership Land

Regarding the subject matter of the petition, the Supreme Court considered that the Judicial Review Object was not in contravention to higher laws, namely Article 27 paragraph (2) of the Spatial Planning Law, Article 159 of the Government Regulation No. 15 of 2010 on the Spatial Planning Administration, and Article 6 paragraph (1) of the Regulation of Minster of Public Works and Housing No. 20/PRT/M/2011 because the procedure of drafting the Judicial Review Object has been conducted by involving the role of the public through forum or Focus Group Discussion event on Monday dated 28 October 2011 and Aspiration Gathering Meeting in relation to the drafting of RDTR held at the hall of Grogol Petamburan District Office on 5 November 2012.

Based on those considerations, the Supreme Court rejected the judicial review petition of the Petitioner.

Case Analysis
Two cases above are regarding the Judicial Review petition against the same regional regulation, namely Perda DKI 1/2014. The main claim of the petitioners in those two cases are also similar, namely the losses due to zoning regulation in the petitioner’s neighbourhood.

In those two decisions, the Supreme Court considered whether the Judicial Review Object has fulfilled the provision of Article 27 paragraph (2) of the Spatial Planning Law, Article 159 of the Government Regulation No. 15 of 2010 on the Spatial Planning, and Article 6 paragraph (1) of the Regulation of Minster of Public Works and Housing No. 20/PRT/M/2011 on the Guideline for Drafting RDTR and PZ for Regency/City.

In those two decisions, the Supreme Court highlighted the application of Article 6 paragraph (1) letter b of Minster of Public Works and Housing No. 20/PRT/M/2011 which stipulates that the formulation process of Detailed Spatial Plan and zoning regulation consists of public involvement. In determining whether that provision has been satisfied, the Supreme Court only considered formal evidence. In Decision No. 32 P/HUM/2015, evidence submitted by the respondent, the Governor of DKI Jakarta, was considered to be unable to prove public involvement because the time and venue of the socialization were not clear. Whereas in Decision No. 19 P/HUM/2016, evidence submitted by the respondent was considered to be able to prove public involvement through Focus Group Discussion and aspiration gathering meeting on a definite venue and date.

CONCLUSION
Based on the explanation and case analysis above, it can be concluded that spatial planning in the region is conducted by the provincial and regency/city government through the enactment of Provincial and Regency/City Spatial Plan and Detailed Spatial Plan promulgated in regional regulation.

In the formulation process of the regional spatial planning policy, the regional government must observe the National Spatial Planning issued by the Central Government. Regional regulations containing the spatial planning policy must also observe the Spatial Planning law in its subject matter and the regulation making procedure.

A person who deems himself to be aggravated by the spatial planning policy of regional government which is promulgated in the regional regulation may pursue a legal remedy pursuant to Article 66 paragraph (1) of the Spatial Planning Law. One of the legal remedies available is Judicial Review petition to the Supreme Court. Judicial Review petitioner must be able to prove that the subject matter of the regional regulation being petitioned contravenes superior legislation and/or the formulation procedure does not conform to the prevailing regulations.

Carlo R. Wijaya

Sources

  1. Article 7 paragraph (1) of the Spatial Planning Law
  2. Article 7 paragraph (3) of the Spatial Planning Law
  3. Article 7 paragraph (2) of the Spatial Planning Law
  4. Article 1 Number 2 of the Spatial Planning Law
  5. Article 1 Number 4 of the Spatial Planning Law
  6. Article 1 Number 33 of the Spatial Planning Law
  7. Article 6 paragraph (3) and (4) of the Spatial Planning Law
  8. Article 31 paragraph (2) of the Supreme Court Law
  9. Article 31 paragraph (3) of the Supreme Court Law