«LEGAL PROTECTION PATTERN OF INDONESIA’S LAND ACQUISITION REGULATION: TOWARDS THE THICKEST VERSION RULE OF LAW Ade Arif Firmansyah Center for Public ...»
Second, efforts to institute land objection on the results of the inventory and identification of control, ownership, use, and land use inventory conducted at the start time of the identification and control, ownership, use, and use of land by the land agency within a period of 30 (thirty) days employment. The results of the inventory and identification of control, ownership, use, and utilization of the land and shall be announced at the village office/village, sub-district office, and the Land Acquisition carried out within a period of 14 (fourteen) working days. 13 After the results of the inventory and identification of control, ownership, use, and land use was announced, the party entitled to raise objections to the institution of land within a period of 14 (fourteen) working days after the announced results of the inventory. If there are objections to the results of the inventory, verifies and repairs will be done within a period of 14 (fourteen) working days from the receipt of the result of the filing of an inventory and identification of control, ownership, use, and use of the land. Results announcements or verification and improvement of land will be determined by the institution and subsequently became the basis for determining the party entitled to the compensation payment.
Court decision having the permanent legal force be passed on the basis of whether or not the acquisition of land for development in the public interest. 16 Second, the results of deliberations in the form and/or amount of compensation, the party entitled to raise objections to the local district court within a period of 14 (fourteen) working days after the determination of damages deliberations. District Court decides the shape and/or size of compensation within a period of 30 (thirty) working days from the receipt of the objection. 17 After the district court decide the shape and/or the amount of compensation but still no party objected to the decision, within a period of 14 (fourteen) working days to submit an appeal to the Supreme Court of the Republic of Indonesia. The Supreme Court shall make a decision within a period of 30 (thirty) working days after the appeal is received. Decision of the District Court/Supreme Court who have acquired the force of law remains the basis of payment for damages to the party who filed the objection. If the parties are entitled to reject the form and/or amount of damages, but did not file an objection within the allotted time, because the law is entitled to receive the form and magnitude considered compensation.18 From exposure to the existing forms of legal protection in the Law. 2 In 2012, which accommodates the form of preventive and repressive legal protection. Simply put, if the author describes in a picture to symbolize the X axis as a preventive legal protection and the Y axis as a repressive legal protection. Z axis as a legal protection will be shifted towards the X-axis and Y corresponding phases in the procedure of land acquisition for public purposes. The picture of the Z-axis shift to the X-axis and Y is served on the picture one.
12 Philipus M. Hadjon, Perlindungan Hukum Bagi Rakyat di Indonesia, PT Bina Ilmu, Surabaya, 1987, hlm 2.
13 Ibid, Article 29.
14 Ibid, Article 30.
15 Ibid, Article 23.
17 Ibid, Article 38.
Land rights revocation 19 stipulated in Law no. 20 of 1961 did not provide the legal protection that is preventive, because the regulation did not provide access for people to express opinions or objections in the process of land acquisition. However, the way the revocation of land rights provides legal protection that are repressive to appeal to the high court that his territory lay of the land and includes a place/object if it is not willing to accept the compensation provided for in the decree of the President as deemed less worthy numbers. The high court decides the matter in the first and the last.20 Requests may appeal to the High Court not later than within one month from the date of the Decree of the President submitted to the concerned. No later than within one month after receipt of the appeal request, the case should have been checked by the concerned high court. Examination and judgment rendered in the shortest possible time. High court decision notified to the parties concerned, not later than one month after the court judgment.21 Legal protection regulation in the land rights revocation, if plotted on a picture to symbolize the X axis as a preventive legal protection and the Y axis as a repressive legal protection. Z axis as a legal protection can only be shifted toward the Y axis because it does not provide a preventive legal protection form. The picture of the shift towards the Y-axis, Z-axis are presented in picture two.
Figure 2: Legal Protection Pattern on Land Rights Revocation
Once the dimensions of legal protection in land acquisition for public purposes described in picture one and two, will be seen further legal style. By using the concept of Nonet and Selznick and the concept of the rule of law Tamanaha, will be mapped Law legal style. 20 of 1961 and Law no. 2 In 2012, is entered into the legal mode of repressive, autonomous or responsive.
Basicly, land right revocation is pull up the assets objects on it. This principle in the same manner as Bryn Perrins said: “In principle, anything growing in the land 19 is part of the land: trees, shrubs, plants, flowers, vegetables, grass”. Bryn Perrins, Understanding Land Law, Cavendish Publishing (UK) 3rd edition, London, 2000, P.
20 Article 8 ayat 1 UU No. 20 Tahun 1961.
21 Article 2, 4 dan 6 Peraturan Pemerintah Nomor 39 Tahun 1973.
Nonet and Selznick distinguishes three modalities or "statements" relating to the legal basis of society (law and society): (1) the repressive rule of law as a maid (repressive law), (2) the law as a separate institution capable of taming repression and protect the integrity of himself, (autonomus law) and (3) the law as a facilitator of the various responses to the social needs and aspirations (responsive law).22 By quoting Albert Von Dicey, Hawke & Parpworth reveal the contents of the rule of law is equality before the law, which is in essence the government should act based on the law.
The Rule of Law requires the recognition of the predominance of the regular law (as opposed to arbitrary or wide discretionary powers), equality before the law and that the British constitution is the product of the ordinary law. In essence, therefore, the Rule of Law requires that there should be a government according to law and an avoidance of arbitrary action.23 The dicey statement above, then elaborated by Tamanaha which divides the state law definition of range in the three groups (clusters of meaning), namely: first, that the government is restricted by law; second, the state law is understood as a formal legal basis; Third, the setting is based on the law (rule of law), not the (rule of man). 24 Tamanaha further divide the rule of law to be the thinnest which is a formal version of the rule of law and the thickest which is a substantive version of the rule of law. 25 Tamanaha explains that the thinnest version of the rule of law only requires that all government actions must be carried out under the law. While the thickest version of the rule of law also includes a formal legality, individual rights, democracy, social welfare even added.
The thinnest formal version of the rule of law is the notion that law is the means by which the state conducts its affairs, “that whatever a government does, it should do through laws.26 The thickest substantive versions of the rule of law incorporate formal legality, individual rights, and democracy, but add a further qualitative dimension that might be roughly categorized under the label “social welfare rights.”27 By looking at the character of laws from Nonet and Selznick and rule of law category from Tamanaha that have been described before, setting of the land rights revocation in the Law no. 20 In 1961, the authors categorize as patterned repressive laws, which in terms Mahfud MD patterned orthodox/conservative. 28 Setting revocation of land rights in the public interest that only provide legal protection that are more likely to repressive character of repressive laws and the thinnest version of the rule of law that bind to the disenfranchisement law, placing legal institutions is directly accessible by political forces; together with state law are identified and placed under the destination country; and legitimize patterns of social subordination.
Land acquisition by the land rights discharge stipulated in Law no. 2 In 2012 the canalyze to accommodate legal protection, preventive and repressive writer can be categorized as an autonomous legal patterned but still is the thinnest version of the rule of law. Procurement of land near a waiver manner tend to put a type of autonomous law procedural aspects of the law as the heart, so that order and justice are the goals and core competencies of the rule of law. Autonomous law, the legal implications that must be removed from political interests, the law should be impersonal, neutral and impartial. Teachings in the law can be said to be autonomous is a translation of the rule of law. In the concept of autonomous law can only be enforced in a democratic society imbued with the spirit of freedom in the attempt. 29 Regulation of land acquisition for public purposes should be responsive in order to better ensure legal protection for landowners.
This is because the implications of the land acquisition process when viewed with a more comprehensive is not something simple. Various aspects, particularly the interests of landowners whose land is used for construction for public use must also pay attention to the sustainability of their lives post-procurement. Do not let the owners of the land experienced a worsening socioeconomic conditions after the land acquisition process. The responsive land acquisition law will be able to harmonize the various interests in land acquisition so that everything can run smoothly in accordance with state law for the purpose of happiness.30 Tamanaha is basing on the function of law as an instrument as proposed Pound, also look at the instrumental side of the law as a tool to mancapai certain goals, such as maximizing social welfare or create a balance of competition.
An instrumental view of law means that law – encompassing legal rules, legal institutions, and legal processes – is consciously viewed by people and groups as a tool or means with which to achieve ends. The supply of possible ends is open and limitless, ranging from personal (enrichment, harassment, or advancement), to ideological (furthering a cause), to social goals like maximizing social welfare or ﬁnding a balance of competing interests. 31 22 Philippe Nonet dan Philip Selznick, Hukum Responsif, translated from: Law and Society in Transition: Toward Responsive Law, Harper & Row, 1978. Translated by: Raisul Muttaqien, Nusamedia, Bandung, 2008, hlm 18.
23 Neil Hawke & Neil Parpworth, Introduction to Administrative Law, Cavendish Publishing (UK), London, 1998, P. 2.
24 Satjipto Rahardjo, Negara Hukum Yang Membahagiakan Rakyatnya, Genta Publishing-cet 2, Yogyakarta, 2009, hlm. 87-88.
25 In line with Tamanaha perspective about the thickest version rule of law, Tisnanta states to improve the quality of law (legislation product) can be made to the substance and technical aspects that directed to the form of purposive law character. HS. Tisnanta, Progresifitas Pembentukan Peraturan Daerah Yang Berbasis Kesejahteraan Rakyat, Ringkasan Disertasi Doktor Ilmu Hukum Universitas Diponegoro, Semarang, 2012, hlm 54.
26 Brian Z. Tamanaha, On The Rule of Law, Cambridge University Press, The Edinburgh Building, 2004, P. 92.
27 Ibid, P. 112.
28 Democratic politics configuration will make the responsive law, whereas the authoritarian politics configuration will make the orthodox or conservative law. Moh.
Mahfud MD, Politik Hukum di Indonesia, RajaGrafindo Persada, Jakarta, 2012, hlm 7.
Op. Cit. Adji Samekto, Relasi …..hlm 97.
29 30 The goal of law state is to make a great happiness to the people of the nation. Satjipto Rahardjo, Membedah Hukum Progresif, Penerbit Buku Kompas, Jakarta, 2008, hlm. 15.
31 Brian Z. Tamanaha, Law as a Means to an End, Cambridge University Press, The Edinburgh Building, 2006, P. 6.
Pound more emphasis on law can serve as a tool of social engineering because he saw happening in his country kemirisan where conditions at the time of jurisprudence tend to deteriorate because the law only becomes mere regulation. 32 Pound claimed, was mired in this state: “[T]he jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules.33 Arrangement of land acquisition for public purposes should also be able to become a tool of social engineering to harmonize the various interests that exist. The interests of the country's development for the welfare of the people who brought in the procurement of land for public purposes can be achieved without sacrificing the land owners.