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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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The exposure of qualifying how the pattern of land acquisition laws is both still considered the thinnest version of the rule of law which tends to repeal repressive and autonomous right to waiver. Expected future land acquisition law is moving towards a responsive law that are the thickest version of rule of law which includes formal legality, individual rights, democracy, and even social welfare oriented. To make the land acquisition law that leads to responsive law and the thickest version of rule of law oriented social welfare, the authors put forward a glimpse of the model need for land acquisition in the United States for comparison. According to Rutherford, the provision of land for public use in the United States is set in the current constitution of the Fifth Amendment. Mentioned that no individual owned property can be taken for public use without compensation. Further explained that the land acquisition can be done in various ways.

Yet certain land is needed for direct public use: for school sites, parks, highways, prisons, municipal offices, public waste facilities, and conservation areas. These needs cannot normally be provided through zoning or other regulations;

where public use is involved, public ownership may be required. In addition, public ownership requires “just compensation” to be paid to the owner pursuant to the Fifth Amendment to the U.S. Constitution: “nor shall private property be taken for public use without just compensation.” Public lands (municipal, county, regional, state, or federal) are exempt from local property taxation and usually from local zoning. Land may be acquired for public ownership and use in several ways: (1) negotiated purchase, (2) eminent domain, (3) gift, (4) dedication, (5) zoning incentives, and (6) tax default. 34 Further said that the way negotiations with land owners is the first time how the most widely adopted and used in the procurement of land for public use in the United States. This proves that the way of land acquisition in the United States tend to be more participatory approach put forward because it is private than public. In line with the policy of land acquisition for public purposes in the U.S. Richard English & Frederick E. Brusberg of the International Finance Corporation (IFC) of the World Bank group, suggests some requirements that must be met by each project land acquisition that could adversely affect economic conditions "affected people". There are ten components of the resettlement action plan (RAP) which must be met from the identification of the impact of the project through to monitoring and evaluation. The component was quoted as saying the

following:

IFC requires a resettlement action plan (RAP) for any project that results in either the physical or the economic displacement of people. As a minimum requirement, a RAP must ensure that the livelihoods of people affected by the project are restored to levels prevailing before the inception of the project. This section describes a recommended approach to effective RAP preparation. The essential components of a RAP are the following:35

- identification of project impacts and affected populations;

- a legal framework for land acquisition and compensation;

- a compensation framework;

- a description of resettlement assistance and restoration of livelihood activities;

- a detailed budget;

- an implementation schedule;

- a description of organizational responsibilities;

- a framework for public consultation, participation, and development planning;

- a description of provisions for redress of grievances; and

- a framework for monitoring, evaluation, and reporting.

From the comparison of means of land acquisition for public use in the United States and the resettlement action plan components are offered the IFC, to establish a responsive land acquisition law should be based also on aspects of community participation. A land acquisition law that is responsive and participatory can be established by taking into account the following

factors:

1. Prioritize way land acquisition approach consensus agreement with the landowner;

32 According to Friedman, some people that have sceptic view to the rules is start from the perception that unobjection. They seen many of rules is too

Abstract

or even tautologicly. Lawrence M. Friedman, Sistem Hukum Perspektif Ilmu Sosial, Terjemahan oleh M. Khozim, Nusa Media, Bandung, Cet-V 2013, hlm. 55.

33 Brian Z. Tamanaha, Beyond The Formalist-Realist Divide, Princeton University Press, New Jersey, 2010, P. 27.

34 Rutherford H. Platt, Land Use and Society (revised edition), Island Press, Washington D.C., 2004, P. 278.

35 Richard English, Frederick E. Brusberg (The International Finance Corporation (IFC), the World Bank Group), Handbook for Preparing a Resettlement Action Plan, Pennsylvania Avenue, Washington, 2002, P. 11.

147 2014 International Journal of Business, Economics and Law, Vol. 5, Issue 4 (Dec.) ISSN 2289-1552

2. Change the land acquisition procedures become more social friendly, but still based on the principle of effectiveness and efficiency;

3. Empowerment post landowners for land acquisition activities with the aspect of income restoration and resettlement action plan (RAP);





4. Avoiding the use of such a repressive manner tend like land rights revocation.

Some of the above factors are essentially an attempt to establish a land acquisition law that is responsive and participatory based on the precepts of Pancasila is both just and civilized humanistic. With land acquisition models that are responsive and participatory, the land acquisition process to become more equitable and civilized and oriented in the thickest version of rule of law.

Conclusion

Land acquisition for public purposes can be done by the land rights discharge stipulated in Law no. 2 of 2012 on Land Procurement for Development for Public Interest, and/or land rights revocation stipulated in Law no. 20 of 1961 on Revocation of Land and Property objects that are therein.

Legal protection of land owners in land acquisition for public purposes by way of waiver of land to accommodate the form of legal protection that preventive and repressive. Preventive legal protection of land rights in the discharge is given relating to public consultation as well as concerns regarding the planned location of the efforts and the efforts of development agencies objected to the land over the inventory and identification of control, ownership, use, and land use. Repressive legal protection given relating to the determination of the location of development began when the governor rejected the objections and still make the determination of the location of the development and the results of consultation on the form and/or amount of damages. The release of land rights and legal relations in terms of power, the law tends to be autonomous and style still shaped the thinnest version of the rule of law.

Legal protection of land owners in land acquisition for public purposes by land rights revocation did not provide legal protections that are preventive, because the regulation did not provide access for people to express opinions or objections in the process of land acquisition. How to land revocation of repressive laws only provide protection 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. Revocation of land rights and legal relations in terms of power, style and form of repressive laws tend the thinnest version of the rule of law.

To make the land acquisition law that is more responsive and participatory so nuanced the thickest version rule of law that oriented to the social welfare, it is necessary to pay attention to the deliberation and sustainability aspects of the lives of the owners of the land after land acquisition activities. With land acquisition models that are responsive and participatory, the land acquisition process would be more fair and civilized.

References

Budhayati, Christiana Tri. (2012). Kriteria Kepentingan Umum Dalam Peraturan Pengadaan Tanah Untuk Kepentingan Pembangunan di Indonesia, Jurnal Ilmu Hukum Refleksi Hukum.

English, Richard & Frederick E. Brusberg. (2002). The International Finance Corporation (IFC), the World Bank Group), Handbook for Preparing a Resettlement Action Plan, Pennsylvania Avenue, Washington.

Friedman, Lawrence M. (2013). Sistem Hukum Perspektif Ilmu Sosial, Terjemahan oleh M. Khozim, Nusa Media Cet-V, Bandung.

Hadjon, Philipus M. (1994). Fungsi Normatif Hukum Administrasi Dalam Mewujudkan Pemerintahan Yang Bersih. Pidato pengukuhan Guru besar, Surabaya.

.(1987). Perlindungan Hukum Bagi Rakyat di Indonesia, PT Bina Ilmu, Surabaya.

Hawke, Neil & Neil Parpworth. (1998). Introduction to Administrative Law, Cavendish Publishing (UK), London.

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

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

Mahfud MD, Moh. (2012). Politik Hukum di Indonesia,RajaGrafindoPersada, Jakarta.

Mahmud, Peter. (2005). Penelitian Hukum, Kencana Prenada, Jakarta.

Meuwissen, D.H.M. (2007). Tentang Pengembanan Hukum, Ilmu Hukum, Teori Hukum, dan Filsafat Hukum (Penerjemah B.

Arief Sidharta), Bandung, Refika Aditama.

Nonet, Philippe dan Philip Selznick. (2008). Hukum Responsif, terjemahan dari: Law and Society in Transition: Toward Responsive Law, Harper & Row, 1978. Diterjemahkan oleh Raisul Muttaqien, Nusamedia, Bandung.

Perrins, Bryn. (2000). Understanding Land Law, Cavendish Publishing (UK) 3rd edition, London.

Platt, Rutherford H. (2004). Land Use and Society (revised edition), Island Press, Washington D.C.

Rahardjo, Satjipto. (2008). Membedah Hukum Progresif, Penerbit Buku Kompas, Jakarta.

. (2009). Negara Hukum Yang Membahagiakan Rakyatnya, Genta Publishing-cet 2, Yogyakarta.

Samekto, FX. Adji. (2013). Relasi Hukum Dengan Kekuasaan: Melihat Hukum Dalam Perspektif Realitas, Jurnal Dinamika Hukum Vol. 13 No. 1.

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

148 2014 International Journal of Business, Economics and Law, Vol. 5, Issue 4 (Dec.) ISSN 2289-1552 Suteki. (2013). Desain Hukum Di Ruang Sosial, Thafa Media, Yogyakarta.

Tamanaha, Brian Z. (2010). Beyond The Formalist-Realist Divide, Princeton University Press, New Jersey.

. (2006). Law as a Means to an End, Cambridge University Press, The Edinburgh Building.

. (2004). On The Rule of Law, Cambridge University Press, The Edinburgh Building.

Tim Penyusun. (2010). Naskah Akademik Undang-Undang Nomor 2 Tahun 2012 tentang Pengadaan Tanah Bagi Pembangunan Untuk Kepentingan Umum, DPR-RI, Jakarta.

Tisnanta, HS. (2012). Progresifitas Pembentukan Peraturan Daerah Yang Berbasis Kesejahteraan Rakyat, Ringkasan Disertasi Doktor Ilmu Hukum Universitas Diponegoro, Semarang.

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

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