INTRODUCTION
Indonesia
is the largest archipelagic country in the world consisting of more than 17,000
islands. Among them are five major islands, namely: Sumatra, Kalimantan, Java,
Sulawesi, and Papua, and thousands of other small islands. Each of the above
islands has different regional conditions, community conditions, culture, and
customs. This gives rise to differences in interests between one region and
another. Because of these differences in interests, the local government has
the authority to regulate its regional affairs to achieve community welfare and
services that are closer to the community than the government. The government
believes that regional autonomy will be able to optimally fund its own regional
expenditures while keeping the central government's budget to a minimum (Tanjung
et al., 2021).
The
rights, powers, and obligations of the autonomous regions to regulate and
manage their government affairs and the interests of the local community by the
laws and regulations are called regional autonomy. Regional development is the
use of local resources to improve the region's or district's social welfare and
improve the human development index (Susanto, 2015).
The 1945 Constitution of the Republic of Indonesia, as a written source of
Indonesian state law, also regulates regional autonomy. Article 18 of the 1945
Constitution states that,
1. The Unitary State of the Republic of Indonesia is divided into provincial
regions and the province is divided into regencies and cities, each of which
has a regional government, which is regulated by law.
2. The provincial, district and city governments regulate and manage their
government affairs according to the principles of autonomy and co-administration.
3. Provincial, district and city-regional governments have Regional People's
Representative Councils whose members are elected through general elections.
4. The governors, regents, and mayors respectively as heads of provincial,
district, and city governments are democratically elected.
5. Regional governments carry out the widest possible autonomy, except for
government affairs which are determined by law to be the affairs of the Central
Government.
6. Regional governments have the right to stipulate regional regulations and
other regulations to carry out autonomy and assistance tasks.
7. The structure and procedures for administering regional government are
regulated by law.
Regulations
regarding regional autonomy are further regulated in Law Number 23 of 2014 concerning
Regional Government. Article 17 of the Regional Government Law explains that
the region has the right to determine regional policies to carry out government
affairs that are the authority of the region. The regional autonomy policy is
not only related to the goal of realizing community welfare by bringing
services closer to the public, encouraging the process of democratization and
wider public participation, strengthening regional capacities and
responsibilities in solving local problems with all the potential and
creativity of the regions. Moreover, often associated to maintain and even
strengthen national integration.
In
addition, several special regions in Indonesia are special autonomous regions.
Special Autonomy is a special authority that is recognized and given to special
regions, to regulate and manage the interests of the local community according
to their initiative based on the aspirations and basic rights of the community.
The Unitary State of the Republic of Indonesia is divided into provincial
regions. The state recognizes and respects special or special regional
government units that are regulated by law. What is meant by special regional
government units are regions that are granted special autonomy.
The
regions that are granted this special autonomy are:
1. Province of the Special Capital Region of Jakarta.
2. Special Region of Yogyakarta.
3. Aceh Province.
4. Papua and West Papua Province
In
addition, regarding the Papua Province which is one of several regions that are
included in regions that have special autonomy, this is also marked by the
existence and issuance of a special regulation that regulates the special
autonomy, regulations regarding special autonomy for Papua are regulated in Law
Number 21 of 2001, it is stated in the Law that special autonomy is made by
taking into account several provisions which of course in this case mainly
concern basic matters for the development of a region. Then also regarding the
separation which of course explained clearly that in terms of the management of
special autonomy, the area on the island of Papua has been divided into several
parts, including the Papua Province and West Papua Province.
Based
on Government Regulation instead of Law Number 1 of 2008 concerning amendments
to Law Number 21 of 2001 concerning special autonomy for Papua, it is explained
that Papua Province has 29 regencies/cities with several districts per
district/city (Law No. 21 of 2001 concerning Special Autonomy for Papua, 2001).
The number of regencies in Papua Province is the result of regional divisions
that occur in Papua Province. One of the regencies in Papua Province is Mimika
Regency. Mimika Regency, the capital of which is Timika, is located between
134o31' � 138o31' East Longitude and 4o60' � 5o18' South Latitude. It has an area
of 19,592 KM2 or 4.75% of the total area of Papua Province. This regency has 18
Districts / Districts. The districts are New Mimika, Agimuga, East Mimika, Far
West Mimika, Middle West Mimika, Kwanika Narama, Hoya, Iwaka, Wania, Amar,
Alam. Of the 18 districts in Mimika Regency, West Mimika District has the
largest area of 14.87%, and Kuala Kencana District is the smallest district in
its area, which is only 2.61% of the entire Mimika Regency area. Mimika Regency
has highland and lowland topography. Districts with highland topography are
Tembagapura, Agimuga, and Jila. Districts other than the three districts are
districts that have a lowland topography. Mimika Baru, Kuala Kencana,
Tembagapura and Jila districts are districts that do not have beaches. While
the Districts of West Mimika, Central West Mimika, Far West Mimika, East
Mimika, Middle East Mimika, Far East Mimika, Agimuga, and Jita some of their
areas are bordered by the sea, so these districts have beaches. Of the 18
districts in Mimika Regency, West Mimika District has the largest area of
14.87%, and Kuala Kencana District is the smallest district in its area, which
is only 2.61% of the entire Mimika Regency area. Mimika Regency has highland
and lowland topography. Districts with highland topography are Tembagapura,
Agimuga, and Jila. Districts other than the three districts are districts that
have a lowland topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila
districts are districts that do not have beaches. While the Districts of West Mimika,
Central West Mimika, Far West Mimika, East Mimika, Middle East Mimika, Far East
Mimika, Agimuga, and Jita some of their areas are bordered by the sea, so these
districts have beaches. Of the 18 districts in Mimika Regency, West Mimika
District has the largest area of 14.87%, and Kuala Kencana District is the
smallest district in its area, which is only 2.61% of the entire Mimika Regency
area. Mimika Regency has highland and lowland topography. Districts with
highland topography are Tembagapura, Agimuga, and Jila. Districts other than
the three districts are districts that have a lowland topography. Mimika Baru,
Kuala Kencana, Tembagapura and Jila districts are districts that do not have
beaches. While the Districts of West Mimika, Central West Mimika, Far West
Mimika, East Mimika, Middle East Mimika, Far East Mimika, Agimuga, and Jita
some of their areas are bordered by the sea, so these districts have beaches.
West Mimika District has the largest area, namely 14.87%, and Kuala Kencana
District is the smallest district in its area, which is only 2.61% of the
entire Mimika Regency area. Mimika Regency has highland and lowland topography.
Districts with highland topography are Tembagapura, Agimuga, and Jila.
Districts other than the three districts are districts that have a lowland
topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila districts are
districts that do not have beaches. While the Districts of West Mimika, Central
West Mimika, Far West Mimika, East Mimika, Middle East Mimika, Far East Mimika,
Agimuga, and Jita some of their areas are bordered by the sea, so these
districts have beaches. West Mimika District has the largest area, namely
14.87%, and Kuala Kencana District is the smallest district in its area, which
is only 2.61% of the entire Mimika Regency area. Mimika Regency has highland
and lowland topography. Districts with highland topography are Tembagapura,
Agimuga, and Jila. Districts other than the three districts are districts that
have a lowland topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila
districts are districts that do not have beaches. While the Districts of West
Mimika, Central West Mimika, Far West Mimika, East Mimika, Middle East Mimika,
Far East Mimika, Agimuga, and Jita some of their areas are bordered by the sea,
so these districts have beaches. 87% and Kuala Kencana District as the smallest
district in its area, which is only 2.61% of the entire Mimika Regency area.
Mimika Regency has highland and lowland topography. Districts with highland
topography are Tembagapura, Agimuga, and Jila. Districts other than the three
districts are districts that have a lowland topography. Mimika Baru, Kuala
Kencana, Tembagapura and Jila districts are districts that do not have beaches.
While the Districts of West Mimika, Central West Mimika, Far West Mimika, East
Mimika, Middle East Mimika, Far East Mimika, Agimuga, and Jita some of their
areas are bordered by the sea, so these districts have beaches. 87% and Kuala
Kencana District as the smallest district in its area, which is only 2.61% of
the entire Mimika Regency area. Mimika Regency has highland and lowland
topography. Districts with highland topography are Tembagapura, Agimuga, and
Jila. Districts other than the three districts are districts that have a
lowland topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila districts
are districts that do not have beaches. While the Districts of West Mimika,
Central West Mimika, Far West Mimika, East Mimika, Middle East Mimika, Far East
Mimika, Agimuga, and Jita some of their areas are bordered by the sea, so these
districts have beaches. Mimika Regency has highland and lowland topography.
Districts with highland topography are Tembagapura, Agimuga, and Jila.
Districts other than the three districts are districts that have a lowland
topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila districts are
districts that do not have beaches. While the Districts of West Mimika, Central
West Mimika, Far West Mimika, East Mimika, Middle East Mimika, Far East Mimika,
Agimuga, and Jita some of their areas are bordered by the sea, so these
districts have beaches. Mimika Regency has highland and lowland topography.
Districts with highland topography are Tembagapura, Agimuga, and Jila.
Districts other than the three districts are districts that have a lowland
topography. Mimika Baru, Kuala Kencana, Tembagapura and Jila districts are
districts that do not have beaches. While the Districts of West Mimika, Central
West Mimika, Far West Mimika, East Mimika, Middle East Mimika, Far East Mimika,
Agimuga, and Jita some of their areas are bordered by the sea, so these
districts have beaches. Kuala Kencana, Tembagapura, and Jila are districts that
do not have beaches. While the Districts of West Mimika, Central West Mimika,
Far West Mimika, East Mimika, Middle East Mimika, Far East Mimika, Agimuga, and
Jita some of their areas are bordered by the sea, so these districts have
beaches. Kuala Kencana, Tembagapura, and Jila are districts that do not have
beaches. While the Districts of West Mimika, Central West Mimika, Far West
Mimika, East Mimika, Middle East Mimika, Far East Mimika, Agimuga, and Jita
some of their areas are bordered by the sea, so these districts have beaches.
Mimika
Regency is an area dominated by Forest with an area of 2,262,901 Ha, Mixed
Gardens 484,315 Ha, and Others 294,287 Ha. Land use is also the use of land and
the natural environment to meet human needs and the implementation of their
lives. The definition of land use is usually used to refer to present or
current land use. Land cover that describes the vegetation and artificial
covering the land surface. The construction is entirely visible directly from
remote sensing imagery. Three general classes of data are included in land
cover; physical structures built by humans, biotic phenomena such as natural
vegetation, agricultural land, and animal life, and types of development. In
general, the land use in Mimika Regency is dominated by primary forest with an
area of 12,076,
The
development of urban areas in Mimika Regency with the proposed reclamation
utilizing mangrove forest land with an area of 8,377.64 Ha. The land use in
Mimika Regency is by its designation, which consists of housing and residential
areas, public buildings, swamps, gardens, mines, forests, agriculture, and
others.
As
is known, the land available in Mimika Regency is mostly the land owned by the
local community or what we often call layout land. Ulayat land island with the
members of the customary law community concerned. The right of control over the
land of the customary law community is known as the Ulayat Rights. Customary
rights are a series of authorities and obligations of a customary law
community, which relate to land located within its territory. UU no. 5 of 1960
or the Basic Agrarian Law (UUPA) recognizes the existence of layout rights. The
acknowledgment is accompanied by 2 (two) conditions, namely regarding its
existence and its implementation. Based on article 3 of the UUPA, customary
rights are recognized "as long as in reality they still exist".
Article
6 of Law Number 5 of 1960 states that all land rights have a social function.
This means that not only property rights but all land rights have a social
function. This means that any land rights that exist in a person, it cannot be
justified that the land will be used (or not used) solely for his interests,
especially if it causes harm to the community. The use of land must be adapted
to its conditions and the nature of its rights so that it is beneficial for the
welfare and happiness of those who own it and for the community and the state.
In
addition, the land in Mimika Regency is partly forest land, the forest lands
are then converted into physical development land in Mimika Regency such as
housing, roads, facilities, and other public utilities.
The
conversion of forest area functions is indeed permitted by law. There are only
rules. Article 19 paragraph (1), Law no. 41 of 1999 concerning Forestry, states
that changes to the allocation and function of forest areas are determined by
the government based on the results of integrated research. However, carrying
out it cannot be done arbitrarily, because it will cause significant changes in
biophysical conditions such as climate, ecosystems, and water arrangements.
Based
on the explanation above, it can be observed that land acquisition for
development in Mimika Regency is an important aspect in its development for the
public interest and community welfare, especially when it is associated with
Law no. 2 of 2012 concerning Land Procurement for Public Interest, but on the
other hand, must always pay attention to environmental safety and community
rights. Then in its implementation, it is possible to encounter obstacles and
problems, these problems can arise from several aspects, both from community
turmoil, local governments, and related regulations, so it will be interesting
to study furth
METHOD
A. Research methods
This research method uses qualitative methods, namely
describing facts with primary, secondary, and tertiary legal materials. Primary
legal materials are legal materials that are authoritative (have authority),
primary legal materials are binding legal materials in the form of norms or
basic rules as contained in the legislation. The primary legal materials used
for this research include the 1945 Constitution of the Republic of Indonesia,
Law Number 2 of 2012 concerning Land Procurement for Public Interest, Law
Number 23 of 2014 concerning Regional Government, Law Number 21 of 2001
concerning Special Autonomy for Papua, Regulations concerning the Protection of
Indigenous Peoples,
Secondary legal materials are all publications on a law
that are not official documents that can help analyze and understand primary
legal materials in the form of research results, writings by experts in the
field of law both nationally and internationally, as well as scientific
journals obtained through library studies. related to the criminal justice
system. Tertiary legal materials, namely legal materials that provide
instructions and explanations for primary and secondary legal materials, such as legal dictionaries. or encyclopedia.
B. Types of research
The type of research used is empirical normative
research. Empirical normative legal research is legal research regarding the
application of normative legal provisions (codifications, laws, or contracts)
in action on certain legal events that occur in society (Muhammad, 2004). Normative legal research is an approach that is carried
out based on the main raw materials, examining theoretical matters concerning
legal principles, legal conceptions, views, and legal doctrines, regulations,
and legal systems using secondary data, including principles, rules, norms, and
legal rules contained in laws and regulations and other regulations, by
studying books, laws and regulations and other documents closely related to
research
(Soekanto & Mamudji, 2011).
Empirical legal research is carried out by examining
directly in the field to see firsthand the application of legislation or legal
rules related to law enforcement, as well as conducting interviews with several
respondents who are considered to be able to provide information regarding the
implementation of law enforcement.
C. Research Approach
The research is supported by methods of legal
interpretation, legal construction, legal philosophy, legal history, and
comparative law, as well as a legal pluralism approach. The interpretation
method used is systematic, authentic, and teleological interpretation. The
method of systematic legal interpretation, namely the meaning of the
formulation of a legal rule or the meaning of a term in it, is further
determined by referring to the law as a system. The method of authentic
interpretation is in the form of interpretation of words, terms, and
understanding in the laws and regulations that have been previously determined
by the legislators. Teleological interpretation is if the meaning of the law is
determined based on social objectives.
The legal construction method is used to find the
concept, scope, substance, and boundaries of the formulation of land
acquisition arrangements for the public interest. The comparative law method is
used to obtain legal comparisons regarding the formulation of the concept of
land acquisition for the public interest that applies in other countries in the
world, as well as to review its practical implementation and can be the basis
for whether or not the concept is adopted in the legal system, invitation in Indonesia. Then the juridical (normative) aspect is carried
out by taking an inventory of the various rules, norms, and legal principles
that exist.
D. Data Collection and Processing Techniques
The data used in this journal research, namely primary
and secondary data, given that the research method used is normative-empirical
research, the use of primary and secondary data is the main data in this study.
Meanwhile, related to the legal materials used, both primary legal materials,
secondary legal materials, and tertiary legal materials are used. Primary Legal
Materials collected include the order of applicable laws and regulations
related to the regulation of the criminal justice system. Secondary legal
materials in the form of books, research results, journals, and papers that
have been made by experts, including primary documents that have been
processed. Tertiary Law materials in the form of encyclopedias and laws. search
with library research techniques,
Then the processing of the data that has been obtained is
carried out by systematizing and structured properly to support the focus of
the research and checked objectively and its validity, so that the data
obtained and processed do not cause confusion and doubt about the truth obtained
in the research process.
E. Data analysis technique
The data analysis technique is a method used to study,
and process certain groups of data so that concrete conclusions can be drawn
about the issues studied and discussed. The data in this study were analyzed
objectively based on existing juridical references to obtain answers to the
problems. In analyzing the data, the authors carried out the stages: data
collection, data presentation, and concluding.
RESULTS AND DISCUSSION
A.
Land Acquisition in the Special Autonomous
Region
The term "land
acquisition" was first recognized legally since the issuance of
Presidential Decree No. 55 of 1993 concerning Land Procurement for the
Implementation of Development in the Public Interest. Land procurement is any
activity to obtain land by providing compensation to those entitled to the
land. In Presidential Regulation Number 36 of 2005 instead of the Presidential
Decree above, it is stated that land acquisition is any activity to obtain land
by providing compensation to those who release or surrender land, buildings,
plants, and objects related to land or by revocation of rights. over the
ground. Then Presidential Decree No.
Authority of
Government Agencies in terms of land procurement for the implementation of
development in the public interest constitutionally included the concept of the
right to control the state in Article 33 paragraph (3) of the 1945 Constitution
which reads "Earth, water and natural resources contained therein are
controlled by the state and used for the greatest prosperity of the
people". From these provisions, it can be seen that the use of the earth
(land), water, and natural resources contained therein by the state is used for
the prosperity of the people.
Meanwhile, regarding
the definition of public interest, it refers to the explanation of Article 18
of the UUPA which states that "For the public interest, including the
interests of the nation and state and the common interests of the people, land
rights can be revoked, by providing appropriate compensation and in a manner
regulated by law." Constitution". The implementation of Article 18 is
regulated in Law Number 20 of 1961 concerning the Revocation of Rights to Land
and Objects on it and its operations are based on the Instruction of the
President of the Republic of Indonesia Number 9 of 1973 concerning the
Implementation of the Revocation of Rights to Land and Objects There's Above.
Article 1 of Law No.
20 of 1961 states that: For the public interest including the interests of the
nation and state and the common interests of the people, as well as the
interests of development, the President in a state of coercion after hearing
the Minister of Agrarian Affairs, the Minister of Justice and the Minister
concerned may revoke the rights of the people concerned. -rights to land and
the objects on it. In terms of public interest, according to (John
Salindheo, 1988)"Public interest includes the interests
of the nation and the state and the common interests of the people, taking into
account social, political, psychological, and national defense aspects based on
the principles of national development by validating national resilience and
insight into the archipelago� (John
Salindheo, 1988).
Furthermore, land
rights are rights that give authority to those who have the right to use or
take advantage of the land they are entitled to. The definition of land rights
is different from the definition of agrarian. Agrarian rights consist of three
things, namely land rights, mortgage rights, and other agrarian rights. In the
provisions of Article 2 of Law Number 32 of 2004 concerning Regional
Government, it is determined that Regional Governments carry out regional
rights, powers, and obligations to regulate and manage government affairs
themselves according to the principle of the widest possible autonomy and
assistance tasks to improve public welfare, public services, and regional
competitiveness. The state or government agency has the authority in terms of
carrying out a land acquisition for the implementation of development in the
public interest based on the provisions of Article 6 of Law Number 2 of 2012
concerning Land Procurement for Development in the Public Interest which
stipulates that "Land procurement for the public interest is carried out
by the Government". Whereas in the provisions of Article 8 of Presidential
Regulation Number 71 of 2012 it is explained "The Governor carries out the
stages of land acquisition preparation activities after receiving the land
acquisition planning document". Furthermore, in Article 47 paragraph (1)
of Presidential Regulation Number 71 of 2012, it is stated "The governor
can delegate the authority to carry out the preparation of land acquisition for
development in the public interest to the Regent/Mayor". Based on these
provisions, the Governor with the authority he has can organize land
acquisition for the implementation of development in the public interest. So in
the implementation of the land acquisition process for the implementation of
development in the public interest as regulated in Presidential Regulation
Number 71 of 2012 concerning the Implementation of Land Procurement for
Development in the Public Interest, it is the authority of the Governor as the
Provincial Government. In this case, the Governor can exercise his authority in
the preparation of the land acquisition or delegate it to the Regent/Mayor. So
in the implementation of the land acquisition process for the implementation of
development in the public interest as regulated in Presidential Regulation
Number 71 of 2012 concerning the Implementation of Land Procurement for
Development in the Public Interest, it is the authority of the Governor as the
Provincial Government. In this case, the Governor can exercise his authority in
the preparation of the land acquisition or delegate it to the Regent/Mayor. So
in the implementation of the land acquisition process for the implementation of
development in the public interest as regulated in Presidential Regulation
Number 71 of 2012 concerning the Implementation of Land Procurement for
Development in the Public Interest, it is the authority of the Governor as the
Provincial Government. In this case, the Governor can exercise his authority in
the preparation of the land acquisition or delegate it to the Regent/Mayor.
Legal Protection for
Land Rights Owners whose land is affected by land acquisition for the
implementation of development in the public interest. Deliberation as the basis
for implementing land acquisition for the implementation of development in the
public interest Article 1 point 8 of Presidential Regulation Number 71 of 2012
explains that "public consultation is a process of dialogical
communication or deliberation between interested parties to reach an
understanding and agreement in planning land acquisition for development public
interest." Deliberation itself is regulated in Articles 68 to 73 of
Presidential Regulation Number 71 of 2012.
Provision of Form and
Amount of Compensation According to Law Number 2 of 2012 concerning Land
Procurement for Development in the Public Interest, compensation is a proper
and fair compensation to the party entitled to the land acquisition process.
The form of compensation according to Article 74 of Presidential Regulation
Number 71 of 2012 can be in the form of money, replacement land, resettlement,
share ownership, or other forms mutually agreed upon during deliberation. Legal
Efforts as a Form of Legal Protection Article 23 of Law Number 2 of 2012
concerning Land Procurement for Development in the Public Interest regulates
the refusal of the party entitled to determine the location of the development
where the entitled party can file a lawsuit to the State Administrative Court.
B.
Land Acquisition Practices in Mimika
Law No. 2 of 2012 in
Article 1 point 10 has formulated compensation as a proper and fair
compensation to the rightful party in the land acquisition process.
Compensation as an effort to realize respect for the rights and interests of
individuals who have been sacrificed for the public interest can be called
fair, if it does not make a person richer, or vice versa becomes poorer than
the original situation (Sumardjono, 2007).To feel fair for the rights holders, certain
criteria should be applied objectively, with predetermined standards. In
addition, the final determination of the amount of compensation must be reached
by deliberation between the right holder and the agency requiring the land. For
buildings, the estimated compensation should take into account the costs
incurred for repairs as necessary, after the announcement of the land
acquisition. Meanwhile, according to Government Regulation Number 19 of 2021
concerning the Implementation of Land Procurement for Development in the Public
Interest, the term compensation is clearly explained in Article 1 paragraph 12
where this term has the meaning of proper and fair compensation to the Entitled
Party, managers and/or users of goods in the Land Procurement process. In the
PP in Article 6 paragraph 9, it is also explained about the estimated value of
Compensation for land objects where this include: (Government of the Republic of Indonesia 2021)
1.
Land.
2.
Upper Grounds and Dungeons.
3.
Building.
4.
Plant.
5.
objects related to land; and.
6.
other losses that can be assessed.
The policy regarding
the provision of compensation is not limited to replacing the value of land,
buildings, and plants, but should also include an assessment of immaterial
losses and losses that arise, such as business activities, due to displacement
to other places, the number of customers and reduced profits (Harsono, 2004).� The term compensation or compensation is
usually used in the civil sector, whether it is regarding breach of promise
(default), violations of law, or in the field of compensation for losses. In
connection with the term above, R Setiawan, SH once said that compensation can
be in the form of replacement rather than achievement, but can stand alone in
addition to achievement (Setiawan, 1987). According
to Article 1 point 10 of Law Number 2 of 2012 concerning Land Procurement for
Public Interest, Compensation is a proper and fair compensation to the rightful
party in the land acquisition process.
A debtor has been
warned firmly and has been billed for his promise if he still does not carry
out his achievements, he is declared negligent or negligent and he is given
sanctions, namely compensation, cancellation of the agreement and transfer of
risk. Likewise, he stated that the insurance law is an agreement, wherein the
insurer receives a premium with the ability to compensate for the loss of
profits borne or that may be suffered as a result of certain (Subekti, 1985).
Thus, if it is seen
from the opinion as mentioned above that the compensation claim can only be
stated in money. And then the question arises what is meant by the definition
of compensation? The term compensation usually occurs as a result of breaking
promises and breaking the law. In fulfilling the obligation performance lies with
the debtor so that if the debtor does not carry out the obligation, not because
of coercive circumstances, then the debtor is declared negligent. There are
three types of broken promises, namely;
1.
Does not meet performance.
2.
Late for performance.
3.
Fulfilling performance is not good. (Setiawan, 1987)
In Article 15 paragraph (1a) as mentioned
above, the author describes John Salindeho's opinion regarding the
understanding of the basic price and local general price for land affected by
land rights acquisition. Because it says the base price or NJOP, it must be the
basis for determining the price of land/compensation for land. While the local
general price is defined as a land price that is generally available in the
context of land transactions in a place (Salindheo, 1988).
It can be said that the local general price or
market price is the result of the average selling price at a certain time,
while place means that an area/location within a district/city may vary
according to the condition of the land, the basic price growing from and rooted
in local general prices, reviewed the general price for the year. In connection
with this, it is necessary that ownership rights to the required land are
released by the owner after he receives compensation from the party who made
the liberation, the compensation is of course the same as the actual land price
(Harsono, 2004). Thus, it
is clear that the meaning of compensation money is the same as the price of
land.
From this description, the substance of
compensation must be based on, among others;
a.
Based on the legal product of a ruling that is
regulating.
b.
Compensation can only be paid after the final
decision of the deliberation is obtained.
c.
Includes plots of land, buildings, and plants
calculated based on agreed benchmarks.
d.
The form of compensation: money and/or land
replacement and/or resettlement, combined or other forms agreed by the parties.
Meanwhile, when referring to Government
Regulation Number 19 of 2021, it is known that the Compensation assessed by the
Appraiser or Public Appraiser is the value at the time of the announcement of
the Determination of Development Locations for the Public Interest by
considering the waiting period at the time of payment of Compensation. Then the
amount of the compensation value is a single value for parcels per plot of land
where in terms of the amount, in this case, the amount of compensation value is
based on the results of the assessment carried out by the appraiser by the sale
value of the tax object in the area wherein this case the appraisal given by
the appraiser is final and binding. If the amount of Compensation is based on
the results of the appraisal by the Appraiser, it is submitted to the chief
executive of the Land Procurement with an official report on the submission of
the results of the appraisal. Then in this case the amount of compensation is
used as the basis for deliberation to determine the form of compensation. If
there is a residual plot of land affected by the Land Procurement, which can no
longer be functioned according to its designation and use, the Entitled Party
may request a replacement for the parcel of land. If the remaining land area is
not more than 100 m2 (one hundred square meters) and cannot be used,
compensation can be given.
The process of giving compensation in land
acquisition activities is very important because, without compensation, the development
will be hampered. Compensation, according to Law Number 2 of 2012 concerning
Land Procurement for Development in the Public Interest (hereinafter referred
to as the Land Procurement Law) (Law on Land Procurement for Development in the Public
Interest, Law no. 2 of 2012 (Hereinafter referred to as the Land Procurement
Law), 2012). is a proper and fair compensation to the
rightful party in the land acquisition process. Non-physical losses include the
loss of a job, line of business, source of income, and other sources of income
that have an impact on a decrease in a person's level of welfare (Sumardjono, 2007). As regulated in Presidential Regulation
Number 65 of 2006 concerning Amendments to Presidential Regulation Number 36 of
2005 concerning Implementation of Land Procurement for Development in the
Public Interest Article 13, the form of compensation can be in the form of:
1.
money; and or.
2.
replacement land; and or Resettlement; and or.
3.
A combination of two or more forms of
compensation as referred to in letter a, letter b, letter c;
4.
Other forms are agreed upon by the parties
concerned.
Based on the
calculation as regulated in Article 15, namely;
a.
The basis for calculating the amount of
compensation is based on;
1)
Sales Value of Tax Objects (NJOP) or Real
Value by taking into account the Sales Value of Tax Objects (NJOP) for the
current year based on the Assessment of the Land Price Appraisal Agency/Team
appointed by the Committee;
2)
The selling value of the building is estimated
by the regional apparatus responsible for the development sector;
3)
The selling value of the plant is estimated by
the regional apparatus responsible for agriculture.
b.
To determine the basis for calculating
compensation, the Land Price Appraisal Agency/Team shall be determined by the
Regent/Mayor or Governor for the Province of the Special Capital Region of
Jakarta. Meanwhile, land procurement for public interest with an area of less than
one hectare according to the Regulation of the Head of the National Land Agency
Number 3 of 2007 Article 59 paragraph;
1)
The form and/or amount of compensation for
land acquisition is directly determined based on deliberation between
government agencies requiring land and the owner.
2)
The deliberation as referred to in paragraph
(1) can be guided by the NJOP or the real value by taking into account the
current year's NJOP in the vicinity of the location.
In Article 15
paragraph (1a) as mentioned above, the author describes John Salindeho's
opinion regarding the understanding of the basic price and local general price
for land affected by land rights acquisition. Because it says the base price or
NJOP, it must be the basis for determining the price of land/ compensation for
land. While the local general price is defined as a land price that is
generally available in the context of land transactions in a place (Salindheo, 1988).
It can be said that
the local general price or market price is the result of the average selling
price at a certain time, while place means that an area/location within a
district/city may vary according to the condition of the land, the basic price
growing from and rooted in local general prices. , reviewed the general price
for the year. In connection with this, it is necessary that ownership rights to
the required land are released by the owner after he receives compensation from
the party who made the liberation, the compensation is of course the same as
the actual land price (Harsono, 2004). Thus, it
is clear that the meaning of compensation money is the same as the price of
land.
From this description,
the substance of compensation must be based on, among others;
a.
Based on the legal product of a ruling that is
regulating.
b.
Compensation can only be paid after the final
decision of the deliberation is obtained.
c.
Includes plots of land, buildings, and plants
calculated based on agreed benchmarks.
d.
The form of compensation: money and/or land
replacement and/or resettlement, combined or other forms agreed by the parties.
Meanwhile, when referring to Government
Regulation Number 19 of 2021, it is known that the Compensation assessed by the
Appraiser or Public Appraiser is the value at the time of the announcement of
the Determination of Development Locations for the Public Interest by
considering the waiting period at the time of payment of Compensation. Then the
amount of the compensation value is a single value for parcels per plot of land
where in terms of the amount, in this case, the amount of compensation value is
based on the results of the assessment carried out by the appraiser by the sale
value of the tax object in the area wherein this case the appraisal given by
the appraiser is final and binding. If the amount of Compensation is based on
the results of the appraisal by the Appraiser, it is submitted to the chief
executive of the Land Procurement with an official report on the submission of
the results of the appraisal. Then in this case the amount of compensation is
used as the basis for deliberation to determine the form of compensation. If
there are residual land parcels affected by the Land Procurement, which can no
longer be functioned according to their designation and use, the Entitled Party
may request a replacement for the parcel of land. If the remaining land area is
not more than 100 m2 (one hundred square meters) and cannot be used,
compensation can be given.
Government responsibility is an act of the
policy process to do something related to the implementation of political and
economic policies with the intervention of various interests. The government's
responsibility is seen from the purpose of land acquisition. Compensation is
the fulfillment of the psychological needs of every indigenous people so that
it answers what is a concern with the uncertainty of compensation that has not
arrived, for customary lands for which compensation has not been received for a
certain period. The implementation of the expected responsibilities of the
Regional Government is the implementation of Good Governance. Through good
governance, it is hoped that there will be participating in the implementation
of accountability and transparency in the administration of local government.
Through Law No. 21 of 2001 concerning Papua's Special Autonomy (Law No. 21 of 2001 concerning Special Autonomy for
Papua, 2001):
Thus, the Regional Government is obliged to
respect and carry out legal allocations and protect the interests of all
parties to ensure prosperity in the legal system in force in Papua. Relevant
practice in terms of Land Acquisition in Papua can factually be found in
several examples of activities carried out by the Mimika local government
itself, which then in implementing regulations relating to land acquisition for
the public interest, the activities that have been carried out in detail are:
Mimika Regency Government Acquired land of
5,000,000 M2 (Five million square meters) located in Pomako Village,
Mimika Timur District, Mimika Regency, Irian Jaya as stated in the Declaration
Letter of Release of Customary Land Rights between the Kamaro customary law
community, the sub-tribe of Pigapu Hiripau, Kaugapu and Mwapi with Drs. W
Harissa (Assistant for Government Affairs of the Mimika Regency Secretariat) on
October 23, 2000, for the release of these rights, the Government has provided
Compensation in the amount of Rp. 240,000,000. (Two hundred and forty million
rupiahs), the amount of the compensation is determined based on the decision of
the Land Procurement Committee for the Implementation of Development for the
public interest in Mimika Regency Number: 04/KPTS/PPT-MMK/2000 concerning the
determination of the amount of land compensation. at the Pomako Seaport
Location.
Mimika district government Carry out land
acquisition with an area of 250,000 M2 (Two hundred and fifty thousand
square meters) which is located on Pomako Highway, Samudra Harbor, Bamako
Village, East Mimika District, Mimika Regency, Papua with the following
boundaries: north side is bordered by a river, south is bordered by the sea,
east is bordered by sea/kali In the west, it is bordered by customary land as
stated in the Minutes of Land Procurement/Release of Rights to Customary Land
Number: 16/BA-PPT/MMK/2008, covering an area of 250,000 M2 (Two
hundred and fifty thousand square meters) located on Pomako Highway Harbour
Samudra village Bamako, East Mimika District, Mimika Regency, Papua with the
following boundaries: in the north, it is bordered by rivers, the south is
bordered by the sea. Chrysostimus Mapeko, Kostan Mipitapo, Karupukaro) Whereas
for a land area of 250,000 M2 (Two hundred and fifty thousand square
meters) located on� Pomako Highway,
Samudra Harbour, Bamako Village, East Mimika District, Mimika Regency, Papua
with the following boundaries: the north is bordered by the river, the south is
bordered by the sea in the east bordering the Sea/Kali west bordering the
customary land as referred to in point (2) above has been given compensation in
the amount of Rp. 2,500,000,000,- (Two billion five hundred million rupiah) as
proof of Payment receipt dated December 22, 2008. the north is bordered by the
river, the south is bordered by the sea, the east is bordered by the sea / the
west is bordered by customary land as referred to in point (2) above.
Compensation of Rp. 2,500,000,000,- (Two billion five hundred million rupiah)
as proof of Payment receipt dated December 22, 2008. the north is bordered by
the river, the south is bordered by the sea, the east is bordered by the sea /
the west is bordered by customary land as referred to in point (2) above. Compensation
of Rp. 2,500,000,000,- (Two billion five hundred million rupiah) as proof of
Payment receipt dated December 22, 2008.
Mimika Regency Government Carry out land
acquisition with an area of 150,000 M2 (one hundred and fifty
thousand square meters) located in Pomako Village, East Mimika District, Mimika
Regency, Papua. That based on the results of the Deliberative Meeting between
the Land Procurement Committee with the Mimika Regency Government and Land
Owners on 28 June 2011 it has been determined the amount of Compensation that
must be received by the customary law community of Hiripau village, represented
by Kostan Mipitapu, Hengky Hendrik HM Pakawa, Benedict Mapeko, Bonefasius
Kaonapoko, Charles Mapeko is Rp. 2,345,130,000 as stated in the official report
on Land Acquisition/Release of Rights on Customary Land Number:
006/BA-PPT/MMK/2011, covering an area of 150,000 M2 located on
Mapura Jaya Street-Pomako, Pomako Village, East Mimika District, Mimika
Regency, Papua and Statement Letter of Release of Customary Land Rights Number
: 01/KMP/HRP/2011, Mimika Regency Government Acquisition of 150,000 M2
(one hundred and fifty thousand square meters) located on Mapura Jaya Street,
Pomako Village, East Mimika District, Mimika Regency, Papua, on Customary Land
of 150,000 M2located in Pomako Village, East Mimika District ,
Mimika Regency, Papua has carried out the Release of Rights as stated in the
Declaration Letter of Release of Rights on Customary Land Number:
01/KMP/HRP/2011 Dated 15 May 2011, Minutes of Land Acquisition/Release of Land
Rights Number: 153/BA-PPT/MMK/ 2013, the results of the Deliberation between
the Mimika Regency Government and the Owners of Land Rights on December 20,
2013 have determined the amount and provided Compensation in the amount of Rp.
900,000,000,- (Nine hundred million rupiah) by the payment receipt on December
23, 2013. 1000 M2 (one hundred and fifty thousand square meters)
which is located on Mapura Jaya Street, Pomako Village, Mimika Timur District,
Mimika Regency, Papua, Against Customary Land covering an area of 150,000 M2located
in Pomako Village, East Mimika District, Mimika Regency, Papua has the Release
of Rights is carried out as stated in the Statement of Release of Rights on
Customary Land Number: 01/KMP/HRP/2011 Dated 15 May 2011, Minutes of Land
Acquisition/Release of Land Rights Number: 153/BA-PPT/MMK/2013, the result of
the Deliberation between The Mimika district government and the owner of land
rights on December 20, 2013, have determined the amount and provided compensation
of Rp. 900,000,000,- (Nine hundred million rupiah) by the payment receipt on
December 23, 2013. 000 M2 (One hundred and fifty thousand square meters)
located on Mapura Jaya Street, Pomako Village, Mimika Timur District, Mimika
Regency, Papua, Against Customary Land covering an area of 150,000 M2 located
in Pomako Village, East Mimika District, Mimika Regency, Papua has the Release
of Rights is carried out as stated in the Statement of Release of Rights on
Customary Land Number: 01/KMP/HRP/2011 Dated 15 May 2011, Minutes of Land
Acquisition/Release of Land Rights Number: 153/BA-PPT/MMK/2013, the result of
the Deliberation between The Mimika district government and the owner of land
rights on December 20, 2013, have determined the amount and provided
compensation of Rp. 900,000,000,- (Nine hundred million rupiah) by the payment
receipt on December 23, 2013. East Mimika District, Mimika Regency, Papua, on
Customary Land covering an area of 150,000 M2 which is located in Pomako
Village, East Mimika District, Mimika Regency, Papua, has carried out the
Release of Rights as stated in the Statement of Release of Rights on Customary
Land Number: 01/KMP/HRP/2011 Dated May 15, 2011, the minutes of Land
acquisition/Release of land rights Number: 153/BA-PPT/MMK/2013, the results of
the Deliberation of Consensus between the Mimika Regency Government and the
Owners of Land Rights on December 20, 2013, have determined the amount and
provided Compensation of Rp. 900,000,000,- (Nine hundred million rupiah) by the
payment receipt on December 23, 2013. East Mimika District, Mimika Regency,
Papua, on Customary Land covering an area of 150,000 M2which is
located in Pomako Village, East Mimika District, Mimika Regency, Papua, has
carried out the Release of Rights as stated in the Statement of Release of
Rights on Customary Land Number: 01/KMP/HRP/2011 Dated May 15, 2011, the
minutes of Land acquisition/Release of land rights Number: 153/BA-PPT/MMK/2013,
the results of the Deliberation of Consensus between the Mimika Regency
Government and the Owners of Land Rights on December 20, 2013, have determined
the amount and provided Compensation of Rp. 900,000,000,- (Nine hundred million
rupiah) by the payment receipt on December 23, 2013. Papua has relinquished
rights as stated in the Declaration Letter of Release of Rights on Customary
Land Number: 01/KMP/HRP/2011 dated 15 May 2011, Minutes of Land
Acquisition/Release of Land Rights Number: 153/BA-PPT/MMK/2013, results of
Deliberation The consensus between the Mimika district government and the land
rights owners on December 20, 2013, has determined the amount and provided
compensation of Rp. 900,000,000,- (Nine hundred million rupiah) by the payment
receipt on December 23, 2013. Papua has relinquished rights as stated in the
Declaration Letter of Release of Rights on Customary Land Number:
01/KMP/HRP/2011 dated 15 May 2011, minutes of land acquisition/release of land
rights Number: 153/BA-PPT/MMK/2013, the result of the Deliberation The
consensus between the Mimika district government and the land rights owners on
December 20, 2013, has determined the amount and provided compensation of Rp.
900,000,000,- (Nine hundred million rupiah) by the payment receipt on December
23, 2013.
In the context of realizing a just, prosperous,
and prosperous society based on Pancasila and the 1954 Constitution, the
Government needs to carry out development, one of which is developed for the
public interest. The development for the public interest requires land whose
procurement is carried out by prioritizing the principles contained in the 1945
Constitution and the national land law, including the principles of humanity,
justice, benefit, certainty, openness, agreement, participation,
sustainability, and harmony by values. - the values of the nation and the
state.������������������������
National land law recognizes and respects
community rights to land and objects related to land, as well as grants public
authority to the state in the form of the authority to regulate land
acquisition for development in the public interest. regional spatial plans,
national/regional development plans, strategic plans, and work plans for each
agency requiring land.
The implementation of land acquisition must
pay attention to the balance between the interests of development and the
interests of the community and is carried out by providing appropriate and fair
compensation. The Government and/or Regional Government guarantees the
availability of land for the public interest, including the availability of
funding for the public interest, and people who have the right to receive and
have received compensation money are obliged to relinquish their land rights or
based on a court decision that has permanent legal force.���������� By Article 10 of Law No. 2 of 2012,
it is stated that among others developments for the public interest include the
construction of ports, airports, and terminals. Procurement of land for the public
interest is carried out by the Government and the land is subsequently owned by
the Government or Regional Government.����������
The Mimika Regency Government has organized
the procurement of land covering an area of 555 Ha, for the benefit of the
Pomako Port Development which aims to boost the community's economy through
infrastructure for the prosperity of the Papuan people, especially Mimika Regency
and improve the welfare of the community, as mandated by the 1945 Constitution
of the Republic of Indonesia Article 33 paragraph (3) which states "Earth,
Water, Space, and the natural resources contained therein are controlled by the
State and used for the greatest prosperity of the people".���������
The process of organizing land acquisition
covering an area of 555 Ha, which was carried out by the Mimika Regency
Regional Government for the construction of the Pomako Port until the payment
of compensation was carried out based on law number 2 of 2012 concerning land
acquisition for the public interest, as well as other laws and regulations
related to procurement land for a public interest, Mimika Regency Spatial Plan
and plans from agencies that require land.
The Mimika Regency Government has organized
land acquisition to build the Mozes refinery airport based on the available
documents, basically, it has been completed and there are no significant
problems because the land rights for the benefit of the airport cover an area
of 650,000 m2 (65 ha), 550,000 m2 (55 ha) have been
completed and have been certified with the right Certificate of Use Rights
Number: 00037 in the name of the Mimika Regency Government, which is located in
Kwamki Village, Mimika Baru District, Mimika Regency, and the remaining 10
hectares are still in the payment settlement stage of a total of Rp.
16,000,000,000, - (sixteen billion rupiah), which has been paid Rp.
4,000,000,000,- (four billion rupiah) so that the remaining Rp.12,000,000,000
(twelve billion rupiah) will be paid for the 2020 fiscal year.
C.
Important Stages of Land Acquisition Process
in Special Autonomous Regions
1.
Implementation of Land Acquisition
Based on the
determination of the development location for the Public Interest, the Agency
that requires land submits the implementation of Land Procurement to the Land
Agency. Implementation of Land Procurement includes a. Inventory and
identification of control, ownership, use, and utilization of land; b.
assessment of Compensation; c. Deliberation on the determination of
Compensation; d. granting Compensation; and e. release of agency land. After
the determination of the development location for the Public Interest, the
Entitled Party may only transfer its land rights to the Agency that requires
the land through the Land Agency. The transfer of rights is carried out by
providing Compensation whose value is determined at the announcement value of
the location determination.
2.
Compensation Assessment
The Land Agency
determines the Appraiser by the provisions of the legislation. The Land Agency
announces the Appraiser who has been appointed to assess the Land Procurement
Object. The appointed appraiser must be responsible for the assessment that has
been carried out. The value of Compensation based on the results of the
Appraiser's assessment becomes the basis for deliberation on the determination
of Compensation. Compensation can be given in the form of:
a.
Money.
b.
replacement land.
c.
��Resettlement.
d.
shareholding; or.
e.
other forms agreed by both parties (vide Law
2/2012 Article 31, Article 32, Article 34, and Article 36).
The Land Agency shall
hold deliberation with the Entitled Party within a maximum period of 30
(thirty) working days after the results of the appraisal from the Appraiser are
submitted to the Land Agency to determine the form and/or amount of compensation
based on the results of the Compensation assessment. The results of the
agreement in the deliberation become the basis for the provision of
Compensation to the Entitled Party which is contained in the minutes of the
agreement. If the Entitled Party refuses the form and/or amount of
Compensation, but does not file an objection to the local District Court within
14 working days, by law the Entitled Party is deemed to have accepted the form
and amount of Compensation.
3.
If there is no agreement
If there is no
agreement regarding the form and/or amount of Compensation, the Entitled Party
- this Customary Law Community in Papua Province and West Papua Province - may
file an objection to the local district court (respectively) within a maximum
period of 14 (fourteen) working days after the deliberation on the
determination of Compensation. The district court shall decide the form and/or
amount of Compensation within a maximum period of 30 (thirty) working days from
the receipt of the objection. Parties who object to the decision of the
district court within a maximum period of 14 (fourteen) working days may file
an appeal to the Supreme Court of the Republic of Indonesia. The Supreme Court
is obliged to give a decision within 30 (thirty) working days from the receipt
of the cassation request.
4.
Provision of Compensation
Provision of
Compensation for Land Procurement Objects is given directly to the Entitled
Party based on the assessment results that have been determined and/or based on
the decision of the district court/Supreme Court. At the time of granting
Compensation, the Entitled Party to receive Compensation must:
a.
carry out the waiver of rights; and
b.
submit proof of control or ownership of the
Land Procurement Object to the Agency that requires the land through the Land
Agency. This evidence is the only legal evidence and cannot be contested in the
future. The party entitled to receive compensation is responsible for the
correctness and validity of the evidence of possession or ownership submitted.
Claims of other parties for the Land Procurement Object that has been submitted
to the Agency requiring the land shall be the responsibility of the Entitled
Party to receive Compensation. If the Entitled Party refuses the form and/or
amount of compensation based on the results of deliberation and/or based on the
decision of the district court/ Supreme Court, the Compensation shall be
deposited in the local district court.
In
addition, Custody of Compensation is also carried out for:
a.
The whereabouts of the Entitled Party to
receive Compensation are unknown; or
b.
Land Procurement Objects that will be awarded
Compensation:
1)
being the object of a case in court;
2)
ownership is still disputed;
3)
confiscated by the competent authority; or
4)
be collateral in the bank. When the
implementation of the provision of Compensation and Release of Rights has been
carried out or the provision of Compensation has been deposited in the district
court, the object of ownership or Land Rights of the Entitled Party is
nullified and evidence of rights is declared invalid and the land becomes land
that is directly controlled by the State.
D. Source of Conflict and its Resolution
1.
Structural differences among agencies (differences
in structure between agencies);
2.
Competing bureaucracies interests (differences
in bureaucratic interests);
3.
Differences in what planning is all about
(planning differences in various ways);
4.
Information sharing practice (exchange of
information about practice);
5.
Time pressures (time pressure);
6.
Lack of understanding of planning by other
agencies (lack of understanding of planning by other agencies).
In overcoming obstacles in inter-institutional
cooperation according to Thomas S. Szayna, Derek Eaton, Amy Richardson in his
book entitled: "Preparing the Army for Stability Operations: Doctrinal and
Interagency Issue", several keys are needed, namely:
1.
Determine common goals (define and articulate
a common outcome);
2.
Develop a joint strategy that can strengthen
each institution (establish mutually reinforcing or joint strategies);
3.
Approving the roles and responsibilities of
each institution (agree on roles and responsibilities); and
4.
Create policies, procedures, and other means
that can be operated across agencies (establish compatible policies,
procedures, and other means to operate across agency boundaries).
CONCLUSION
The land is
the basic capital for human life. As an authorized capital, land has two
functions: a production function and a non-production function. The need for
land uses often clashes, given that there is a limited amount of land, on the
other hand, there is an explosion of population growth. Countries anywhere in
the world to carry out development are always related to land and need land. It
often happens that in carrying out the development program there is a conflict
with land that already has its rights or has been controlled by a person or
legal entity. As an excuse to get the land, the government uses the term for
the public interest. This research is a comparative study between Indonesia in
terms of land acquisition for the public interest. The problem in this research
is how to regulate the land acquisition and the concept of public interest in
Indonesia. The results of the study indicate that there is a shift in the
meaning of public interest in Indonesia which results in different perceptions
in the community regarding land acquisition. However, land acquisition for the
public interest has been stated in the legislation.
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