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«LEGAL PROTECTION PATTERN OF INDONESIA’S LAND ACQUISITION REGULATION: TOWARDS THE THICKEST VERSION RULE OF LAW Ade Arif Firmansyah Center for Public ...»

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2014

International Journal of Business, Economics and Law, Vol. 5, Issue 4 (Dec.)

ISSN 2289-1552

LEGAL PROTECTION PATTERN OF INDONESIA’S LAND ACQUISITION REGULATION:

TOWARDS THE THICKEST VERSION RULE OF LAW

Ade Arif Firmansyah

Center for Public Policy and Human Rights Studies (PKKP-HAM),

Faculty of Law, Lampung University,

Bandar Lampung, Lampung-Indonesia.

Email: recht87@gmail.com

ABSTRACT

Land acquisition for public purposes is a process in which there are exist the interests of the government, private sector, communities and landowner. The relation of the interest, make land acquisition becomes a problem prone process, therefore it needs to be mapped aspects of legal protection in the regulation of land acquisition. The purpose of this study is to analyze and mapping the legal protection pattern of land acquisition regulation in Indonesia. Land acquisition can be done with the land rights discharge or land right revocation, from the analysis performed by using the concept of legal protection from Hadjon, legal typology from Nonet and Selznick, and the thinnest and the thickest rule of law from Tamanaha, produces a pattern of legal protection as follows: the land acquisition process with land rights discharge way showed that the characteristic of legal protection pattern is a preventive and repressive which tend to be autonomous law type. On land acquisition with land right revocation way, showed that the characteristic of the legal protection pattern just repressive and tend to repressive law type.

Based on the legal protection pattern characteristic and law type, land rights discharge and land right revocation is the thinnest version rule of law. In order to make land acquisition toward the thickest version rule of law which includes formal legality, individual rights, democracy, and social welfare oriente, arrangements for land acquisition should be responsive and participatory with attention to the following factors: 1) consider as most important the land acquisition with consensus approach and agreement with the landowner; 2) changing the land acquisition procedures become more social friendly, but still based on the principle of effectiveness and efficiency; 3) empowerment of land owners after land acquisition activities with the aspect of income restoration and resettlement action plan (RAP); and 4) tend to avoid the use of repressive means such as land rights revocation.

Key words: Land Acquisition, Legal Protection, Land Rights Discharge, Land Right Revocation, Rule of Law.

Introduction Development carried out by the state is basically done for the benefit of the nation with the greatest benefit to the welfare of the people. Development has a variety of forms and types, one of which is the construction to meet the public good or the public interest,1 in the context of the construction is done by building a specific infrastructure that is intended for public use.

Infrastructure development in the public interest requires that the land be used as a place to do the construction.

The need for the development of land in the public interest is crucial in nature, because there are many intersecting interests therein. Government as may be authorized by legislation to manage the nation's independence through the development of various sectors, in this case the infrastructure will need to realize the construction of the ground.

Procurement of land for public use will be associated with the development of the state economic sector in the broad sense of course, the private sector also contributes to the expansion of its business. Private parties interested in the land acquisition because in reality they are also in desperate need of infrastructure development, such as roads, ports, airports and so well within the framework of the investment as well as government and private pemanfaatannya. Beside the government and private interests, the public interest would be the development of infrastructure to facilitate life are also included in the procurement process ground. However, other interests that also should not be overlooked is the benefit of those whose land is used for the construction of infrastructure for the public interest.

Diverse interests make the process of land acquisition for public use raises many disputes. During the New Order until 2001, there were 1.753 cases. Then in 2007 increased to as many as 2.810 cases. 2 Data from BPN as of September 2013, the number of land cases reached 4.223 cases.3 The number of cases is due to land acquisition under the pretext of public interest, sometimes wounding people, because of the use of land taken by the government are not as originally planned, and even tend to give birth to the former holders of the rights of society's woes. Not infrequently the pretext of public interest, public land used for the 1 Academic Draft, Act Number 2 Year 2012 on Land Acquisition to Development for Public Interest, DPR-RI, Jakarta, 2010, P 1.

2 Yanto Sufriadi, Penyebab Sengketa Pengadaan Tanah untuk Kepentingan Umum (Studi Kasus Sengketa Pengadaan Tanah untuk Kepentingan Umum di Bengkulu), Jurnal Hukum No. 1 Vol. 18 Januari 2011, hlm 44.

3 http://www.bpn.go.id/Publikasi/Data-Pertanahan/Kasus-Pertanahan/Nasional, accessed 1 March 2014.





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fulfillment of those needs, e.g. The need for industrial development, the construction of a shopping center which will only be used by only a handful of groups.4 Another problem besides the difference, allotment is about compensation. As one example, the case of claims for loss Kedung Ombo citizens in the 1980s. Residents Kedung Ombo the land/building is affected by the dam project given appropriate compensation (in accordance with justice). At that time his case up on appeal. 5 This means that the issue of compensation is a lengthy and spend a lot of landowners energy.

Interests in land acquisition have been tried in such a manner accommodated in legislation regulating land acquisition for public purposes. The setting has undergone several reforms that will lead to certain consequences. Until now, the mechanism of land

acquisition for public purposes can basically be done in two ways as follows:6

First, by land right discharge. The land right discharge stipulated in Law No. 2 of 2012 on Land Acquisition to Development for Public Interest refers to the implementation of Presidential Decree No. 71 Year 2012 of Implementation of Land Acquisition of Development for Public Interest.

Second, by applying the land rights revocation to the president. Land right revocation provisions stipulated in Law No. 20 Year 1961 on Revocation of Land and Property objects that are therein, the Government Regulation No. 39 Year 1973 on Determination of Compensation Events By High Court Relating to Land Right Revocation and Assets objects on it, and the Presidential Instruction No. 9 of 1973 on Guidelines for Land Right Revocation and Assets objects on it.

Two different ways of land acquisition for public interest which has been alluded to above, will have implications to the legal protection aspects. The land rights discharge and land right revocation that based on the different laws of the time, the regime and its substance will be further mapped the pattern of legal protection. The problems that will be described further in this study is: How does the pattern of legal protection in the regulation of land acquisition in Indonesia? The purpose of this study is to analyze and mapping the pattern of legal protection in the regulation of land acquisition in Indonesia.

Research Method

This research is a doctrinal research, model of legal research is a comprehensive and analytical study that only used secondary data. The secondary data splitting to the primary legal materials (rules of land acquisition), secondary legal materials (books, journal, reports, results of previous research) and tertier legal materials (magazines, newspaper and dictionary). Approach the problem using the statutory approach and the conceptual approach.7 Data were analyzed qualitatively by describing the data generated in the form of an explanation of the study systematically so as to obtain a clear picture of the problem under study.

Analysis of the legal materials will done in two phases. First, by mapping the content analysis about the structure of rules, systematization of law indication to the problem that mapped and analyzed, interpreting and assessment of the occur rules.8 The second phase, on the legal materials will analyze using the Regulatory Impact Assessment (RIA) method.9 The results of the data analysis inferred deductively.

Result and Discussion

Legal protection in land acquisition for public interest would be relevant if it is approached with the administrative law perspective, because one field of administrative law is to regulate the relationship of government to the people, also set the legal protection for the people10, and the land acquisition is one of the forms of government action. Ian Ellis-Jones stated that the law regarding the administration closely with procedural fairness in making administrative decisions that can result in a person's right.

The of cited ‘duty to act judicially’, in the context of administrative decision making, now refers to a duty to act ‘fairly’ in the sense of according procedural fairness in the making of any administrative decision that affects a person’s right, interests or legitimate expectations.11 According to Philipus M. Hadjon, with "acts of government" as a central point, (associated with legal protection for the people), distinguished two kinds of legal protection, namely: preventive legal protection and repressive legal protection. In preventive 4 Christiana Tri Budhayati, Kriteria Kepentingan Umum Dalam Peraturan Pengadaan Tanah Untuk Kepentingan Pembangunan di Indonesia, Jurnal Ilmu Hukum Refleksi Hukum Edisi April 2012, hlm 40.

5 Suteki, Desain Hukum Di Ruang Sosial, Thafa Media, Yogyakarta, 2013, hlm. 68-69.

6 In addition by land rights discharge and land right revocation, land acquisition can be done with sell and buy, exchange or the other ways that accepted from a both side, with the regulation of the land not larger than 1 hectare. This way according to Article 121 President Regulation No. 71 Year 2012 juncto Article 53 Chief of National Land Agency No. 5 Tahun 2012.

7 Peter Mahmud, Penelitian Hukum, Kencana Prenada, Jakarta, 2005, hlm xx.

8 D.H.M. Meuwissen, Tentang Pengembanan Hukum, Ilmu Hukum, Teori Hukum, dan Filsafat Hukum (translator B. Arief Sidharta), Bandung, Refika Aditama.

2007.

9 Kolin Kirkpatrick and David Parker, Regulatory Impact Assessment, Edward Elgar Publishing, 2007.

10 Mapping of the administratif law field can be seen in Philipus M. Hadjon, Fungsi Normatif Hukum Administrasi Dalam Mewujudkan Pemerintahan Yang Bersih.

Disampaikan pada Pidato pengukuhan Guru besar di UNAIR 10 Oktober 1994, hlm 4.

11 Ian Ellis-Jones, Essential Administrative Law, Cavendish Publishing (Australia) 2nd edition, New South Wales, 2001, P. 2-3.

143 2014 International Journal of Business, Economics and Law, Vol. 5, Issue 4 (Dec.) ISSN 2289-1552 legal protection, the people are given the opportunity to object (inspraak) or her opinion before a decision is the definitive form of government gets. Thus preventive legal protection aims to prevent disputes whereas the repressive legal protection aimed to resolving the dispute.12 As described earlier that land acquisition can be done in two ways, namely the land right discharge and land right revocation.

Will first be described a pattern of legal protection are accommodated in Law. 2 In 2012 a way that accommodates the release of land rights. How to release land rights provide legal protection, preventive and repressive. Preventive legal protection of land rights in the discharge is given in two ways: First, with regard to public consultation as well as concerns regarding the planned location of the efforts in the development of public consultation began when development plans implemented within a period of 60 (sixty) working days. If after a public consultation exercise which development plans are the objections regarding the location of the development plan, the public consultation carried out repeated objections by the parties no later than 30 (thirty) working days. If the public consultation birthday parties there are objections, the agency requires reporting land objected to the local governor, then the governor will determine whether the appeal is rejected or accepted.



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