Voluntary That Is Not Voluntary: Testing the 60/40 Approval Threshold in Land Consolidation

Land consolidation is proposed as a spatial organization tool that does not displace communities because it is based on the consent of landowners. Under Article 4 paragraph (1) of the Regulation of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (Permen ATR/BPN) Number 12 of 2019, land consolidation is regarded as a voluntary process; however, Article 10 paragraph (3) provides that land consolidation may be carried out with the approval of 60% of the participating subjects, and Article 10 paragraphs (4) and (5) provide that owners who refuse have only two options, namely to transfer or to surrender their land rights. Therefore, this article examines three issues: the consistency of the meaning of “voluntary” in the regulation, how consent is carried out and proven together with its legal consequences, and the position of the 40% of owners who refuse when tested against John Rawls’s theory of justice. This research uses a normative-empirical juridical method, drawing on statutory, conceptual, and case approaches; the empirical data come from published field studies of land consolidation projects in Bantul, East Jakarta, Tabanan, Pekanbaru, and Palu. The results show that the word “voluntary” has shifted in meaning from individual will to majority will, that the 60% threshold calculated per head without weighting by land area is a sharp decline from the 85%/85% regime of Perkaban 4/1991, and that proof of consent through minutes of agreement guarantees only the formal truth of signatures, not the freedom of will required by Articles 1320 and 1321 of the Indonesian Civil Code. From the standpoint of Rawlsian procedural justice, a majority rule that can end in the loss of property rights without special protection for owners of small parcels would not be agreed upon in the original position. This article recommends a dual threshold based on number and area, an independent objection mechanism, and a value guarantee for participants who are left behind.