Land Ownership Rights
By: Vallida Anita Pieter
Background.
The scope of the earth according to the Basic Agrarian Law (UUPA) is the surface of the earth, the body of the earth beneath it and that which is under water including land on the seabed and what will be disputed is land in the sense of land control rights. Control means having the right to use, manage, but not necessarily own. "The definition of control can be used in a physical sense, also in a legal sense, also in a private and legal aspect" (Urip Santoso, Agrarian Law Comprehensive Study, 2013, p. 75).
Legal control of land means that there are rights in that control which are regulated by law and there is authority to control it physically, for example in the case of a land lease, legally the land is the right of the land owner but physically the land is cultivated or used by the land tenant within the agreed period, also in the case of guaranteeing land to the Bank, the Bank as a creditor is the holder of the collateral rights to the land used as collateral but the physical control or use remains with the owner of the land rights. This control is in the private aspect while the public aspect is regulated in Article 33 paragraph 3 of the 1945 UUDNRI and Article 2 UUPA that the Earth and water and the natural resources contained therein are controlled by the State and used for the greatest prosperity of the people.
A. Sodiki explains the meaning of prosperity, that prosperity is an economic terminology, a society is said to be prosperous if the society in question can fulfill and have its needs met, both physical and non-physical, continuously. (A. Sodiki in Moh Bakri, Right to Control Land by the State, 2011, p. 30.)
Positively, a human can be said to be prosperous if he feels safe and secure, safe if he can live in accordance with his own ideals and values, if he feels free to realize his individual and social life in accordance with his aspirations and the possibilities available to him. Negatively, humans are said to be prosperous if they are free from poverty, from anxiety about the future, free from oppression and free from unfair treatment.
According to Frans Magnis-S, the State only strives/prepares conditions to achieve general welfare and does not create general welfare. The State only creates objective prerequisites that need to be available so that the welfare of each member of society can be realized. The State is tasked with creating the infrastructure needed by society so that they can feel prosperous. (Frans Magnis-Suseno, Political Ethics: Basic Moral Principles of Modern Statehood, Gramedia Jakarta 2001, page 315).
Problem
What is the relationship between the community and the State which has the right to control and regulate land as much as possible for the prosperity of the people, on land which is the community's rightful land.
Discussion
Law, as a rule or norm, reflects the values that exist within society. These values are dynamic, meaning they evolve with the times. Consequently, law also evolves in accordance with the values that exist within society.
Likewise, the concept of the State's right to control land that is currently in effect is not something that emerged suddenly, but is the result of a continuous development process.
Land rights according to the Basic Agrarian Law (hereinafter abbreviated as UUPA) are the authority of the State which is based on the right to control land by the State as regulated in Article 2 paragraph 2; The right to control from the State grants authority;
· a. Regulate and administer the allocation, use, supply and maintenance of earth, water and space;
· b. Determine and regulate legal relations between people and the earth, water and space;
· c. Determine and regulate legal relationships between people and legal actions concerning earth, water and space.
Article 3 The authority derived from the State's right to control as referred to in Article 2 of this article is used for the greatest prosperity of the people in the sense of nationality, welfare and freedom in the society and the legal state of Indonesia which is independent, sovereign, just and prosperous. and Article 4. The implementation of the State's right to control as referred to above can be delegated to autonomous regions and customary law communities, as necessary and not in conflict with national interests..
mAccording to the provisions of Government Regulations, Article 9 paragraph 2 states that every Indonesian citizen, both men and women, has the same opportunity to obtain land rights to obtain benefits and results for themselves and their families.
The various types of land rights contained in Article 16 in conjunction with Article 53 of the UUPA are grouped into 3 areas, namely:
1. Permanent land rights, namely land rights that will remain in existence as long as the UUPA is still in effect or has not been revoked by a new law. The various types of land rights are Ownership Rights, Cultivation Rights, Building Rights, Land Clearing Rights, and Forest Product Collection Rights.
2. Land rights that will be determined by law. (Land rights like this do not yet exist).
3. Temporary land rights, namely land rights that are temporary in nature, will be abolished in a short time because they contain extortionary characteristics, contain feudal characteristics, and are contrary to the spirit of the UUPA. (Land mortgage rights, profit sharing business rights, rights to ride, agricultural land rental rights.
Article 18 of the UUPA states that in the public interest, including the nation and state as well as the common interests of the people, land rights can be revoked by providing appropriate compensation and according to the method regulated by law. In connection with this, there is land as a unitary territory of customary law communities which is always within the scope of ulayat territory or within petuanan rights.
Customary Law Communities can formulate regulations together with the government to make their ownership rights something significant according to the description of RZTitahelu:
1)Prior Informed Consent which needs to be obtained from customary law community units before natural resources are managed by the State or third parties.
2)State's priority in managing natural resources outside the territory of customary law communities, as well as
3) Real benefits that will be directly enjoyed by the customary law community concerned, which are determined through an agreement between the customary law community and the managing party (the State or a third party). In this sense, the economic rights of the customary law community are gradually restored or empowered (Titahelu RZ, Various Problems of Customary Law Communities in Development, 2014, page 50).
The rules of customary law and the values that underlie them in various customary law community areas may have similarities, but to uphold the rules of customary law there are in each customary law community area, as well as in the regulation of Customary Rights of Customary Law Communities, the provisions of which are in article 3 of the UUPA which states "By considering the provisions in articles 1 and 2, the implementation of Customary Rights and the implementation of similar rights from Customary Law communities, as long as in reality they still exist, must be such that they are in accordance with national and state interests based on national unity and must not conflict with other higher laws and regulations." (Urip Santoso opcit page 81)
Boedi Harsono stated that customary rights of customary law communities refer to a series of authorities and obligations of a customary law community related to land that must exist within its territory. (Boedi Harsono, Indonesian Agrarian Law, 2008, p. 185)
It is said that in the customary rights environment, land is not recognized as res nullius because customary rights cover all land within the legal community area concerned, whether someone already has rights to it or not.
Customary rights are recognized by the UUPA, but this recognition is accompanied by conditions for their existence and implementation. Customary rights are recognized as long as they still exist in reality according to the law.aArticle 3 of the UUPA, and in areas where customary rights no longer exist they will not be revived and where customary rights have never existed, no new customary rights will be created.
Article 3 of the UUPA states, "The implementation of customary rights and similar rights of customary law communities, as long as they actually exist, must be in such a way that they are in accordance with national and state interests, which are based on national unity and must not conflict with laws and other higher regulations." Customary rights exist when they are known." :
1. There is still a group of people who are members of a particular customary law community and
2. There is still land which is the territory of the customary law community,
3. There are still traditional chiefs and traditional elders who, in reality, are recognized by their citizens, who carry out daily activities as the bearers of the authority of their customary law community." (Budi Harsono, Indonesian Agrarian Law, 2008, p. 192)
Apart from customary rights on land, there are also coastal areas at sea which are called "coastal areas which are transitional areas between land and sea ecosystems which are affected by changes on land and sea" according to Article 1 number 2 of Law no. 27 of 2007. tentang Management of Coastal Areas and Small Islands. The coast is an area wider than the coast, the coastal area includes land areas as long as they are still influenced by the sea and sea areas as long as they are still influenced by land.
Article 74 of Law No. 27 of 2007 concerning Coastal Area Management on Small Islands states: Any person who, due to negligence, shall be punished with imprisonment for a maximum of 6 (six) months or a maximum fine of 300.000.000,00 (three hundred million rupiah) who; a. does not carry out the rehabilitation obligations as referred to in Article 32 paragraph (1), and/or b. does not carry out the reclamation obligations as referred to in Article 34 paragraph 2 (Nur Yanto. Understanding Indonesian Maritime Law, 2014, page 143). Reclamation means the effort to expand land area by utilizing areas that were previously unused or useless, and is also a provision
One of the activities that can change the physical and function of coastal areas and small islands is coastal reclamation activities (Abrar Saleng, Kapita Selecta Natural Resources Law, 2013, page 191). Coastal reclamation activities, especially in districts and cities that have a high level of economic growth, and the development of commercial areas will clearly bring many economic benefits to the region with the assumption that more commercial areas are built, it will bring additional Regional Original Income (PAD).
Reclamation means the effort to expand land by utilizing the area
Areas that were previously useless can also help provide land for various purposes, coastal area planning, developing marine tourism, and so on, but "reclamation is a form of human intervention in the balance of the natural coastal environment which is always in a state of dynamic balance so that it will give rise to changes in the ecosystem such as changes in current patterns, erosion, and coastal sedimentation, and has the potential to disrupt the environment" (Abrar Saleng, Natural Resources Law, 2013, page 192)
Reclamation can be carried out if it is in accordance with the provisions agreed upon by the government, regional government or anyone who wants to carry out reclamation by paying attention to the location and considering technical aspects, environmental aspects and socio-economic aspects.
Coastal reclamation activities will have an impact on the area, environment, and also on laws regarding ownership which will give rise to new rights and obligations and also eliminate the rights to use the area by the community in that area.
Presidential Decree No. 112 of 2012 aims to standardize understanding regarding the implementation of the provisions of Article 34 paragraph 3 of Law No. 27 of 2007 concerning the Management of Coastal Areas and Small Islands which states that Reclamation can only be carried out if the socio-economic benefits are greater by taking into account the continuation of life and livelihood of the community and the balance between the interests of utilization and environmental interests, if not, it means that Reclamation cannot be carried out.
With the existence of new areas resulting from reclamation, problems can arise between the parties who reclaim certain coastal areas and the parties who have long managed the area. It must be seen which party gives permission because it can arise 2 parties who own the area, namely the party before the area was reclaimed and after reclamation. How should it be regulated with provisions that bind the parties, without setting aside the rules that have been regulated in the UUPA and provisions for compensation according to the rules and agreements that determine that no party may be harmed.
The provisions for the implementation of coastal reclamation can be carried out with a principle permit proven by a location permit decree for individuals or legal entities and location determination for government agencies from the Mayor/Regent, Governor, Minister based on their authority. Also in accordance with the interests of use, utilization and must be in accordance with the Regional Spatial Plan for reclamation with the provision of having a location permit and a reclamation implementation permit, for example in Ambon, the Mardika Market and its surroundings are development arrangements on land that was filled around 1970..
Closing.
Land ownership rights for coastal reclamation can be carried out for the development of land or land areas with an agreement on appropriate compensation that does not harm the first owner of the area to be expanded by reclamation, with permission from the local government and agreement from the local community with the appropriate compensation.
The reclaimed area must be an area that does not harm the community and does not have profitable potential, so there is a policy taken to utilize the area to expand the development area by paying attention to the nature of the land in the area, and can be controlled by individuals, the government, anyone who can manage it.
If the landfilling or reclamation is carried out on land belonging to indigenous peoples, it means that there is already an agreement between the local indigenous peoples and the customary authorities and there is already deal appropriate compensation.
Bibliography
1. The Right to Control Land by the State, Muhammad Bakri, 2011
2. Natural Resources Law, Abrar Saleng, 2013
3. Indonesian Agrarian Law, Budi Harsono, 2008
4. Understanding Maritime Law, Nur Yanto, 2014
5. Agrarian Law, Urip Santoso, 2010
6. Basic Agrarian Law no. 5 of 1960
7. Law no. 27 of 2007 concerning Management of Coastal Areas and Small Islands.
