Introduction
One of the
objectives of the enactment of Law Number 5 of 1960 concerning Basic
Regulations on Agrarian Principles (later called the LoGA) was to become the
basis for creating legal certainty in national agricultural law, including in
the land sector. Legal certainty is considered necessary in agrarian law because
its absence can lead to injustice in marginalizing the rights of people whose lives
depend on agricultural resources (Sukirno, 2010). Moreover, land
certification became a government priority during Joko Widodo's first term as
president (2014�2019) (Aditya et al., 2021). In addition, it
is also essential that the owner's actions related to land get legal
protection, order land administration, and prevent conflicts in the community
due to legal uncertainty.
The land
issue is an issue that concerns the most basic rights of the people. In
customary law communities, land has a significant role. The influence can see
this of institutions outside the customary law alliance which changes the size
of the value of the benefit function of customary land rights by each customary
law community group itself. The tenure security of individuals under
traditional regimes got significantly less consideration (Deininger, Xia, Kilic, & Moylan, 2021). In addition to having social value,
the land also has economic value, meaning that customary land can be transferred
to rights and ownership (Sukirno, 2010).
The highest
land tenure rights in customary law are ulayat rights, as shared land with the
members of the customary law community concerned, which contains two elements
with aspects of civil law and public law. The subject of ulayat rights is
customary law communities, territorial, genealogical, and territorial
genealogical as a common form of their citizens. Because customary land is
shared land, transferring rights, including buying and selling, must be based
on the agreement of all tribes entitled to ownership of the land along with the
Ondoafi customary head (Yunus & Muddin, 2019).
The process
of carrying out the sale and purchase of customary land rights according to customary
law in Jayapura City is carried out under the customary law regulations of each
region. Still, the implementation is carried out by the buyer looking for the
land he wants to buy and finding out the customary law alliance or tribe
involves the rights to the land he wants to buy. The buyer goes to the
customary law community and expresses its intent and purpose, namely, wanting
to buy land belonging to the indigenous community association. After that, the
prospective buyer conducts deliberation with the tribal chief or Ondoafi, who
is in charge of the land in the presence of the local RT or RW head, the
customary law community itself, and traditional leaders (Yunus & Muddin, 2019).
After
reaching an agreement, the prospective buyer makes a payment for the land to
the indigenous peoples, and the payment is carried out in cash and a straightforward
manner; the payment can be in whole or can also be paid down payment in advance
with a period agreed upon by both parties for further repayment to be made.
After the buying and selling process occurs, a traditional ritual process will
be carried out by the entire indigenous community, led directly by the traditional
leader and elders, and attended by all indigenous peoples and buyers. The
customary deliberation decision was made directly by Ondoafi and signed
by Ondoafi, and witnessed by witnesses and traditional leaders, and
Ondoafi submitted evidence of a letter of customary release to the buyer (Yunus & Muddin, 2019).
Furthermore,
the buyer will receive a customary release letter, which can be used as
evidence if there is a dispute in the future. After all, transactions carried
out by the buyer and the indigenous peoples are completed. The buyer has
received a letter of customary liberation from the customary leader or Ondoafi.
The buyer can register land on the land purchased from the indigenous peoples
to the National Land Agency office by the provisions of the valid legislation
invitation (Yunus & Muddin, 2019).
However, in
reality, not all Ondoafi understand their position and authority in the
sale and purchase of ulayat land, especially for ulayat land whose ownership is
carried out jointly by several tribes. The customary head/ Ondoafi has
the power, administration, and designation of customary land. This role has a
close relationship with the customary law community (Bao, 2013). The position of the customary head as a leader is a system
in customary law communities, including in Jayapura City. The role of the
customary head is significant to the status of customary land because he knows
the history of ownership of ulayat lands in his area of
authority. The legal act of relinquishing ulayat land rights is based
on customary deliberations because Ondoafi does not own the entire
ulayat land but has the power and authority to regulate, administer and
allocate ulayat land.
In contrast
to what happened in Jayapura City, for communal lands that are jointly owned, Ondoafi
sells them without going through deliberation and procedures as described
previously. This ulayat land or customary land can only be traded in the interest
of the State for development and social interests. But unfortunately, the
growing need for a country's land is not only needed by the government for
development but also needed by some people to build houses, so some people buy
ulayat land or customary land in Jayapura City.
Based on
the data, the indigenous Papuans who inhabit the area in Jayapura City consist of
5 (five) tribes, namely the Tehupa (who inhabits the villages of Skouw Sae,
Skouw Mabo, and Skouw Yambe), the Elseng tribe (who inhabits the villages of
Moso and Koya Koso), the Nafri tribe (who inhabit the village of Nafri), the
Imbi tribe (who inhabit the villages of Injros/Enggros, Tbadij/Tobati, Kayo
Pulau and Kayo Batu) and the Sentani tribe (who inhabit the villages of Yoka
and Waena) (Jayapura City Regional Regulation Number 12 of 2016 concerning Recognition
and Protection of Indigenous Peoples). In addition to joint ownership
(communal), the customary law community in Jayapura recognizes individual
ownership of the Keret or marga (family).
The
existence of a condition in which Ondoafi sold ulayat land unilaterally, making
the rights of the indigenous peoples in Jayapura City neglected. Cases like
this don't just happen in Jayapura City. Several areas also often have
conflicts where Ondoafi sells ulayat land because he considers the land to be
his, namely, on ulayat lands in Sorong and Merauke (Ambarsari, 2017). In addition, the
disposal of customary land in Merauke Regency for investment reasons lacks
legal certainty for investors, resulting in land conflicts (Idris, 2015). The number of similar cases that occurred in Jayapura makes
it attractive for the author to analyze the sale and purchase of ulayat land jointly
owned by several tribes in Jayapura.
Based on the
background of the problem that has been described previously, the formulation
of the problem in this study, namely:
1. What is the
legal position of buying and selling customary land in Jayapura City?
2. What is the
Port Numbay Customary Council (LMA) in resolving disputes over ulayat land in
Jayapura City?
3. What is the
position and role of the tribal chief in the village of Skouw Mabo, Jayapura
City, in carrying out the buying and selling process of ulayat land?
Method
The type of
research used is empirical legal research, namely legal research methods that
use empirical facts obtained from human behavior through direct observations (Fajar & Achmad, 2010). Empirical legal research seeks to see
the law in an absolute sense. In other words, empirical research attempts to
see, observe or examine how the law works in society. In this study,
researchers will buy and sell land on communal land jointly owned by several
tribes in Jayapura City.
The
approach used by the researcher is the Structural Approach to analyze the
workings of law in society based on the structure that exists in the community
itself. In this study, we will examine the workings of law in indigenous
peoples in Jayapura City. In addition, the Stratification Approach was also used
to examine directly. The roles and authorities of the Indigenous Community
Institutions in Jayapura City, Ondoafi in Jayapura City, tribal chiefs
and their line of members, and indigenous peoples in Jayapura City, regarding
the process of selling land and releasing land ulayat rights, become the
property of individuals or legal entities as the party who buys ulayat land.
The Pluralism approach is also used to view customary law communities as
semi-autonomous social areas that give birth to the law due to mutually
influencing relationships between customary law functionaries and members of customary
law communities with legal institutions and other members of legal communities.
In writing this thesis, we will directly examine the existence of customary law
communities in Jayapura City in law formation and legal development regarding
ulayat lands.
The sampling
technique takes samples from a part of the population, then research, and the
research results (conclusions) are applied to the population (generalization).
The technique used in this study is a non-probability sampling technique,
namely a sampling technique determined by the researcher himself. As for the
non-probability sampling technique, the author uses a purposive sampling type;
namely, the sampling is done by selecting the subject based on the specific
criteria set by the researcher.
Based on the
comprehensive data collected from this research, an analysis is carried out
using the qualitative analysis method, which is an analytical method carried out
by describing the phenomena or facts obtained from the research results based
on the data obtained, both primary and secondary data. The final data analysis
provides conclusions and suggestions regarding what should be done regarding
the legal problem.
Results And Discussion
A. Sale and
Purchase of Ulayat Land Rights in Jayapura City
1. The process
of buying and selling customary land
The
increasing need for people to own land, especially in Jayapura City, has
resulted in tribal chiefs and customary leaders trading customary land to the
broader community without considering that the land will be used for personal
or customary interests. Provided that in buying and selling customary land, the
buyer can carry out the mandatory requirements of the tribal chiefs and
customary leaders, namely the tradition of releasing adat.
Even
though the first buyer has paid the price of the land, if the first buyer cannot
fulfill the mandatory requirements for the traditional relinquishment
tradition, then the sale and purchase of customary land in Jayapura City are
not yet valid. The land can be transferred to a new buyer if the new buyer
fulfills the mandatory requirements of the tribal and customary leaders in the
area.
Article
24, paragraph (1), and paragraph (2) of Government Regulation Number 24 of 1997
state that:
1) For
registration of rights, land rights originating from the conversion of old
rights are proven using such rights in the form of written evidence, witness
statements, or statements in question, which are confirmed by the land
registration committee sporadically is considered sufficient to register the rights,
rightsholders, and the rights of other parties that burden them.
2) Suppose no
complete evidence is available, as mentioned in paragraph (1). In that case,
the bookkeeping of rights may be carried out based on the physical facts of the
land parcel in question for 20 years or more in a row by the registration
applicant and his predecessors with the provision of:
a) The control
is carried out in good faith openly by the person concerned with the right to
the land and is strengthened by the testimony of a person who can be trusted.
b) The
control, both before and during the announcement as referred to in Article 26,
is not disputed by the customary law community or the village concerned, or
other parties.
Land
registration with ulayat rights in the City of Jayapura cannot be carried out
by conversion. However, the head of the Jayapura City BPN office must recognize
and affirm rights based on rights, namely a letter of customary release as
written evidence because there are witnesses from indigenous peoples, tribal
chiefs, and knowing the customary head/Ondoafi based on customary
deliberations. Based on an interview with Ilham Marowa, Notary Jayapura City,
many problems occur in Jayapura City regarding customary relinquishment
letters, often overlapping, because many people in Jayapura do not understand
management that this land has previously been released or has never been
waived. Suppose the rights were released years ago, but the certificate is not
immediately processed. In that case, this can cause problems in the future (Marowa, 2021).
Based
on the information from the research results obtained above, it is necessary to
improve the administration of data on the status of customary lands in each
village. The aim is to find out the status of which customary lands have been
released or have never released their rights. The solution may be that the
government needs a role in this matter, namely the Jayapura City National Land
Agency, to help assist the Ondoafi and tribal chiefs and other traditional
leaders in every village in Jayapura City.
Land
acquisition is any activity to obtain land rights through the transfer of land
rights or by affirming land rights with compensation to those entitled. Thus
the acquisition of land can be made by:
a. Transfer of
rights is a legal act carried out by the land rights holder to transfer the land
rights to another party.
b. Submission
or release is the activity of releasing the legal relationship between the
holder of land rights and the land they control with compensation for losses
based on deliberation followed by the granting of rights.
The
definition of deliberation according to Article 1 paragraph (10) in
Presidential Regulation Number 36 of 2006 states that Deliberation is an
activity that contains a process of listening to each other, giving and
receiving each other's opinions, as well as a desire to reach an agreement
regarding the form and amount of compensation and other related issues with
land acquisition activities based on equality and volunteerism between parties
who own land, buildings, plants and other objects related to land and parties
who need land. The process or activity of listening to each other between the
holders of land rights and those who need the land is more qualitative, namely
the existence of interactive dialogue between the parties by placing an equal
or equal position.
Deliberations
must meet several elements, first of which, there is an element of volunteerism.
For this to mean, both parties must act voluntarily without coercion to
relinquish their rights. Second is the attitude of accepting each other's opinions
or wishes is based on volunteerism between the holders of land rights and those
who need the land. By fulfilling these elements, mutually beneficial results
will be obtained for both parties, in this case, the government that needs land
and the community holding land rights. Third, the deliberation is to obtain an
agreement regarding the form and amount of compensation in land acquisition for
the public interest. This is following the provisions of Article 1 paragraph
(6) of Presidential Regulation Number 36 of 2005 that land acquisition is
carried out through the release or surrender of land rights. The release or
surrender of land rights is an activity to release the legal relationship
between the holder of land rights and the land they control and the land they
control by providing compensation based on deliberation.
However,
referring to this research, the deliberation process was not carried out
because transferring rights occurred through buying and selling between the parties.
This means transferring rights that occur based on an agreement by both parties
to carry out a sale and purchase transaction. Meanwhile, the deliberation's
implementation is related to the provision of compensation in the release of
rights, which is usually related to the release of rights in the public
interest carried out by local governments.
According
to customary law, the sale and purchase of land rights is an act of
transferring land rights which must be clear and cash, which means that the
sale and purchase agreement is carried out in front of a customary leader where
the customary leader acts as the official responsible for the validity of the
sale and purchase agreement along with transfer of rights so that it is known
to the public. Cash, which means the price for the land is paid directly (Soekanto & Teneko, 1981). Customary
law uses buying and selling land rights, known as clear and cash sales. This
means that the transfer of land rights is carried out in the presence of the
customary head and carried out simultaneously with the payment of the price,
which is considered paid off even though the buyer has only paid an advance or
half payment to the seller.
The
practice of buying and selling land to indigenous peoples in Jayapura City can
be done through several ways of buying and selling land rights, namely by
buying and selling land based on the customary law system, namely by private
deed carried out before the head of the customary law union, in this case,
Ondoafi, in before (Notary/PPAT), orally known by the families and traditional
elders. Several factors cause why indigenous peoples still use oral or private
deeds in their land sales and purchase agreements. The first is socio-cultural
factors, where most indigenous peoples are still obedient to their customary
law. Both processes are fast, easy, and inexpensive, and assume that they are
legal if known by the traditional elders.
The
sale and purchase of rights to customary lands of indigenous peoples in
Jayapura City occur with an underhand deed written on paper or in the form of a
receipt. This is because the indigenous peoples in Jayapura City, including the
people who, until now, still use the applicable customary law. According to customary
law, there are three buying and selling elements: clear, cash, and accurate.
This can be seen from how indigenous peoples are still carrying out the
practice of buying and selling land under their hands. In this case, what is
meant by "underhanded" is a land sale and purchase agreement in
customary law where legal actions are carried out in the form of transferring
land rights through cash payments or carried out based on an agreement between
the parties (the seller and the buyer) which is attended by traditional elders
and heads of state. Ondoafi custom.
Indigenous
leaders in the indigenous peoples of Jayapura City are commonly referred to as
Ondoafi, namely community leaders who are trusted by indigenous peoples to be
authorized to determine any matters relating to legal relations and legal
actions relating to their territory. This is written in Article 15 of the
Jayapura Regional Regulation No. 8 of 2016 concerning traditional villages
given by functionaries as customary government. Therefore, the role of the
Ondoafi/customary leader is significant in the sale and purchase agreement of
land according to customary law because it has the power to decide whether the
land can be sold or not by looking at the function of the use of the customary
land as long as it does not conflict with the norms that exist in the
community. Moreover, Ondoafi is authorized to issue a customary release
letter. This customary release letter serves as strong evidence and has an essential
function in selling and purchasing land according to customary law.
The
statutory provisions governing the authority of indigenous peoples, in this
case, the relinquishment of adat for the sake of development, are contained in
Article 43 of Law Number 21 of 2001 concerning Special Autonomy for the Papua
Province, which emphasizes that recognizing the ownership rights of indigenous
peoples must be protected and respected. The buyer first looks for the land to
be purchased and looks for an association of indigenous peoples who are entitled
to the land. Then, after finding a party who wants to sell the land, the buyer
goes to him and expresses the intent and purpose of the buyer, namely wanting
to buy the land. After the negotiation process between the seller and the buyer
finds a result, the seller, as an indigenous community, will summon the
indigenous community associations and the customary leader/ Ondoafi and
hold a deliberation in which the deliberations must be attended by the traditional
elders and the indigenous people themselves. If one Ondoafi is not present,
then the deliberation is canceled. In these deliberations, the customary leader
will usually ensure that the land belongs to the seller and has been approved
by the indigenous peoples, who have collective and individual rights to the
land. The customary leader/ Ondoafi is the one who has the right to
decide whether the land can be sold or not. After the deliberation is complete,
Ondoafi will state customary relinquishment.
After
a sale and purchase transaction occurs, the buyer will receive a letter of
release of rights to customary land. This customary release letter is made directly
by Ondoafi and witnessed directly by indigenous peoples and other indigenous
community associations. This release emphasizes the transfer of land ownership
rights from the seller to the buyer. This customary release letter is used as
evidence that the rights to the land have been transferred to avoid conflict
with the dependent. The letter of relinquishment of customary land rights
signed by Ondoafi/ customary leader is considered valid because Ondoafi
acts as a customary village government which has been regulated in Article 15
of the Jayapura Regional Regulation Number 8 of 2016 concerning Traditional
Villages, which states that Ondoafi as a traditional village government is
inherited by inheritance. from generation to generation as functionaries of customary
government, one of which is functionaries concerning indigenous peoples over
land and natural resources. Transferring legal rights to land according to customary
community law is attended by all tribal chiefs and indigenous peoples. The
results of the deliberation discuss the origin of ownership of the land and
ensure the legal owner of the land so that there will be no overlapping
recognition by other tribes in the future, which can lead to conflict.
Finally,
after the sale and purchase transaction and customary release have been
completed, it is better to directly register the land with the National Land
Agency by bringing a customary release letter and other conditions needed for
administrative purposes to obtain legal certainty and legal protection. This
usually happens because the customary land that another party has purchased is
no longer customary land. Due to the transfer of rights from what was initially
customary land by a particular customary law community, the ownership changes
after a sale and purchase transaction occurs to individuals who are no longer
bound by the community's customary law.
2. Parties
involved in buying and selling
Based
on the results and information from sources obtained by the researcher, the
parties involved in the sale and purchase of customary land are the buyer (the
party who wants to buy the communal land), the tribal chief (the party who
wants to sell his customary land) and the party who must know regarding the
release of the ulayat land such as a straight line from the head of the
Keret/tribal head, and community members as witnesses from the area of
the head of the Keret/village head, Ondoafi from the area
or who is in charge of the area/object, along with the sub-district/district
head, village, and the head of the local RW and RT (Soekanto & Teneko, 1981).
The
sale and purchase of ulayat land are carried out by deliberation and consensus
with the customary law community whose ulayat land will be sold. Once an
agreement is reached, the sale does not take place immediately. The sale will
only occur after a letter of acknowledgment from the local village head is
made, and acknowledgment from the community that the ulayat land belongs to the
party who will sell it. This aims to avoid disputes or conflicts with other
tribes because customary land rights do not have land certificates.
3. Conditions
that must be met in buying and selling
Before
and after carrying out the process of buying and selling customary land. As
explained above, the conditions that must be met include the following:
a. Discussion
Customary
deliberation between the seller and the buyer in the customary court and
witnessed by the parties present until the appropriate deliberation decision is
reached.
b. Transaction
Process
There is a
handover of money as a sign of payment of customary land from the buyer to the
indigenous community who sells the land or, in this case, the tribal chief,
according to what was decided in the regular meeting and witnessed by other
traditional leaders and witnesses from the community of the tribal chief along
with a straight line from the chief of the tribe.
c. Transfer
and Handover
There is a
legal transfer from the seller to the buyer witnessed by witnesses and parties
involved with the sale and purchase of land on the ulayat rights. A letter of
delivery or release letter from the seller to the buyer is made to fulfill the
requirements for land registration.
4. Registration
of customary land at the Jayapura City Agrarian and Spatial Planning Office/National
Land Agency
Government
Regulation Number 24 of 1997 concerning land registration activities covers
land registration for the first time, namely data collection, physical data
processing, proof of rights and bookkeeping, issuance of certificates,
presentation of physical data and juridical data, storage of general registers
and documents. Meanwhile, the maintenance of land registration data includes
registration of transfers and encumbrance of rights, and changes to land
registration data.
Processing
land registration data and information activities is a very strategic factor in
providing legal certainty and protection of land rights, including their
maintenance. Determination/recognition and affirmation by the State
Administrative Officer of a new application for customary land rights based on
the provisions of customary law and applicable laws and regulations.
The
process of registering customary land at the Jayapura City Land Agency Office,
namely:
1. Registration
is based on a certificate of customary release that has been legalized by the
Ondoafi party, the tribal chief, or the party selling it to the buyer as legal
evidence and as one of the conditions for registering land for the first time
for the buyer.
2. Registration
is based on a certificate of customary ownership approved by the tribal chief
and Ondoafi. It is known by the indigenous peoples and witnesses who are in the
village as evidence of ownership of the customary land itself.
Based
on an interview with the Head of the Jayapura City Land Office, Keliopas Fenitiruma
that the conditions that must be met to carry out the customary land
registration process at the Jayapura City BPN Office are submitting a
registration application file and attaching a letter of customary release for
the buyer and just registering the land, or a certificate of customary
ownership for the owner who wants to register his customary land for those who
have never registered land (Fenitiruma, 2021).
This
land registration process has been stipulated in the Regulation of the Minister
of Agrarian Affairs and Spatial Planning/Head of the National Land Agency (BPN)
of the Republic of Indonesia Number 18 of 2020 concerning the Establishment of
Organizations, Work Areas, Duties, and Functions of Representatives of the
Jayapura City Land Office in Papua Province. In general, land problems handled
by the Jayapura City BPN Office are related to land dispute reports. Some are
reported directly to the Jayapura City BPN Office or a report letter. The
resolution must be fast and responsive so that there is no conflict. Examples
of problems commonly occurring at the Jayapura City BPN office are land
ownership and control disputes. Some complaints regarding ownership disputes
between the two parties who have 2 releases in the same 1 land object.
According to Keliopas Fenitiruma, the Head of the Jayapura City Land Agency
Office stated that if there was a problem, the actions taken by the Jayapura
City BPN Office under the provisions of Article 43 of the Minister of ATR/ BPN
Regulation No. 21 of 2020 concerning Handling and Settlement of Land Cases Chapter
IV, mediation efforts. The mediation will be carried out 3 times. Suppose there
is no solution from both parties and no agreement is reached. In that case, the
BPN will suggest a settlement at the court level to get a permanent judge's
decision so that the parties take legal action at the court level District
Court, High Court to Cassation level at the Supreme Court (Fenitiruma, 2021).
Legal
disputes over land cannot be separated concerning the concept of our Unitary
State of the Republic of Indonesia, namely, the State of Law oriented to the
general welfare as stated and implied in the 1945 Constitution of the Republic
of Indonesia. Based on the above explanations, the legal status of selling The
purchase of ulayat land in Jayapura City is legal as long as it has received
approval from Ondoafi as a leader in a government system that uses customary
law. In addition, it is necessary to involve the relevant parties as described
above. This aims to avoid the possibility of disputes or conflicts in the
future.
B. The Role of
the Port Numbay Traditional Deliberation Institution (LMA) in settlement of
Disputes over Communal Lands in Jayapura City
1. The LMA
Port Numbay mechanism in problem-solving
The
Port Numbay Traditional Deliberation Institution (LMA) is one of the social
infrastructures that accommodates twelve (12) traditional leaderships in the
administrative area of Jayapura City. The twelve traditional
leaderships are Kayu Batu customary leadership, Kayu Pulau adat leadership,
Tobati-Enggros adat leadership, Nafri adat leadership, Skouw Sae adat
leadership, Skouw Mabo leadership, Skouw Yambe adat leadership, Waena adat
leadership, Yoka adat leadership, Leadership Koya Koso custom.
The
Tabi tribe has a philosophical foundation, namely "reconciliation."
This philosophy ensures a balance between applying customary
sanctions/punishments on the one hand and the harmony of peace and tranquility
on the other. Based on an interview with the Chair of the Port Numbay LMA,
Geroge A. Awi, the case decision must be executed by showing three essential
aspects, namely: �
1) Decisions
must comply with customary rules and norms and guarantee that such cases will
not occur again.
2) The form of
day-to-day decisions always prioritizes collective responsibility.
3) The
customary decision must ensure the realization of the security and tranquility
of the community as a whole (Awi, 2021).
In
the past, indigenous peoples, especially in the Port Numbay area, used to use
traditional para-paras (traditional houses) as a place of deliberation in discussing
various problems because the function of these traditional para-paras
(traditional houses) had authority and was believed to be a sacred place, so
they were not Any person may sit or follow the conversation carried out by the
clan head or traditional elders (people who are elders).
Based
on the interviews above, LMA is an institution for dispute resolution for
customary law communities that puts forward the concept of deliberation and
consensus in the mechanism for resolving a problem that occurs in the
community. From the three essential aspects described above, it can be seen
that every decision produced must be able to provide a solution that can
resolve disputes to create security and peace in society in general. This is
also appropriate, as stated later by the Chair of LMA Port Numbay, George A.
Awi, that was referring to the philosophy of "reconciliation," the
judicial processes and mechanisms and forms of customary decisions (customary sanctions)
are oriented to the principle of community life, namely maintaining and
creating a safe life. And prosper in one social, cultural, economic, and
political unit (Awi, 2021).
Based
on the researcher's information obtained directly from the head of LMA Port Numbay,
"if there is a dispute in the community, then the handling of the case at
the first level is carried out by the clan head. Usually, those who file cases
or demands feel they have been harmed or those who feel they are right. At this
stage, it is more about submitting a report in the form of a chronological
problem by the reporter and determining the form of settlement by the clan
head. The next stage is the clan head trying to facilitate the settlement, and
if it doesn't work, it will be reported to the clan leader (Ondoafi) to resolve
the dispute.
The
problem at the Ondoafi level is a kind of filing of a case that has been
carried out at the clan head level in the form of a report. After Ondoafi and
the clan head are present to hear the report, they determine the type of case
with the type of punishment or sanction according to the applicable customary
rules and then decide on the case. In this process, there is no opportunity to
make a defense or response or objection to the decisions that have been taken,
especially in civil or criminal cases related to self-respect or dignity, or
related to ethics, or morals (behavior).
If
the case is handled is related to the territory of Ondoafian in another
village, then the initial discussion is carried out by Ondoafi's messenger. The
implementation of case settlement by Ondoafi's crew usually reaches 80 percent,
so that 20 percent is more of a traditional ceremonial procession attended by
the two Ondoafis. If the case settlement is at the Ondoafi level, then the
decision, especially in the form of material fines (bracelets, stone tomako),
will automatically become Ondoafi's rights." According to the researcher,
there is a need for strict sanctions by LMA Port Numbay, through the Port
Numbay Customary Council (MAPN).
2. Forms of Customary
Courts
Reconstruction
of past experiences in resolving civil and criminal disputes in customary law
communities requires complete mastery and understanding of the leadership
system and local mechanisms in indigenous peoples. Therefore, carrying out
forms of customary justice within the Tabi customary law community, especially
those who inhabit the Humbold Bay bay area, is part of re-actualizing adat as
social infrastructure in social life.
If
viewed from the type of case, the function of customary justice is to resolve
civil and criminal cases. Based on the instructions/guidelines made by the
secretary of LMA Port Numbay, Eddy Ohoiwutun, with the title "Mechanisms
for Settlement of Cases Outside the Court," there are several forms of customary
justice that have been used by the Port Numbay Customary Council in
facilitating the settlement of customary cases (Ohoiwutun, 2010):
1) Ordinary
Court
The
implementation of ordinary justice is a form of case settlement generally
handled directly by the clan head/clen, concerning civil and criminal cases. If
the case occurs within the same clan, then the judiciary is led directly by the
head of a different clan in the same village, the leadership that applies.
However, if the case involves the clan head or Ondoafi, they usually use
a mediation institution such as the LMA.
2) Customary
Court Court
A
customary court trial is a form of justice only followed by Ondoafi related to
severe violations. Usually, the victim is the clan head or Ondoafi, and the
perpetrators are community members from outside the local customary law area.
The development of this judicial mechanism refers to the conventional system of
normative rules that apply in the village concerned.
3) Customary
Appeal Court
The
form of customary appeals court carried out is related to civil cases, namely
customary land disputes. The judicial mechanism in adat is carried out by
taking into account the principles of kinship and the history of ownership of
customary land rights, and the traditional political leadership system that
applies among indigenous peoples, especially in the Tabi customary law area.
One
example is the settlement of customary land disputes used by Ondoafi Skouw
Yambe to build an agricultural vocational school with the head of the Merahabia
clan from the village of Nafri. From April 2003 to December 2004, the first
complaint was filed by Ondoafi Skouw Yambe. Furthermore, the LMA confirms
the report by examining the case files in the form of legal evidence regarding
the ownership of the disputed land. In the next stage, a meeting was held with
Ondoafi and clan heads to offer solutions to problem-solving through:
a) LMA facilitated a re-meeting in November 2004 in the
same place and mechanism as with the agenda for clarifying customary decisions
in April 2003, and the result remained the same. Namely, the disputed land had
Skouw Yambe and was under the control of the Rollo clan, and again the results
of the clarification decision were rejected.
b) After two rejections of the decision issued by the adat
leaders of the Nafri village, the LMA then developed the problem by
investigating the relationship between clans with historical ties to the
disputed area, namely the walsa clan from the Keerom district.
c) In December 2004, LMA facilitated the third meeting through
the appeals court by presenting a clen warsa from Keerom to provide customary
considerations and opinions on the two previous decisions. The result was that
the disputed land had Skouw Yambe and was controlled by the Rollo clan.
Furthermore, the LMA issued a letter attaching the results of the first, second,
and third decisions to the Papua Provincial government (Vice Governor) as a
report on the final settlement of cases related to the location of agricultural
vocational schools.
The
description of case settlement as described above is a form of reconstruction
of the principles of customary justice. At the same time, the procedures and
mechanisms used are part of improvisation and rationalization to re-describe
the customary justice mechanism acceptable within the Tabi tribal community,
especially in the community. Indigenous Peoples in Port Numbay (Ohoiwutun, 2010).
The
illustration above shows that even though it uses judicial nomenclature in
resolving cases, it prioritizes the concept of mediation by prioritizing the
principles of deliberation and kinship by listening to statements from the
local community so that both parties can accept the results.
C.
Position and Role of Tribal Heads in Skouw
Mabo Village, Jayapura City in the Process of Buying and Selling of Communal
Land
1. Buying
and selling customary land in the village of Skouw Mabo
The process
of buying and selling customary land in Skouw Mabo Village itself has several
things that the buyer must pay attention to, namely, finding out information
about the customary land, such as the boundaries of the territorial stakes of
the customary land that the buyer wants to buy, knowing the owner of the
customary land rights. This ensures that the customary land has not previously
been problematic or has been previously sold to another party so that problems
do not occur in the future and must know the parties who will be related to the
buying and selling process of the customary land rights before the buyer enters
the stage the sale and purchase transaction.
After the
buyer searches for and knows the information, then the buyer can process the
sale and purchase transaction with the related parties, which begins with
customary deliberations with the parties concerned to determine whether the land
can be traded or not because if the customary land does not meet the
requirements in the decision of the customary deliberation, the land cannot be
traded, on the contrary, if it is approved in the decision of the customary
deliberation, a letter of release will be issued for the customary land.
Furthermore, the buyer and seller can determine the right and safe time to
process the sale and purchase transaction. The letter of release of customary
land usually contains several things, including:
a) Issued by
the customary council marked on letterhead indicating the institution that
issued the letter officially;
b) It is
expressly stated that the letter is a release letter for customary land, which
is accompanied by a letter-number;
c) It contains
the whole identity of the parties and their position as the party giving up the
right and the party receiving the right;
d) Contains
the rights and obligations of the parties in relinquishing customary land
rights;
e) Contains
the name of Ondoafi, who owns a piece of land whose rights will be released
along with the complete and detailed location of the land;
f) ��Contains the
boundaries of a plot of land released from another land;
g) Contains a
clear statement that the land whose rights have been released is not in dispute
with another party, is not guaranteed, and is not being occupied or cultivated
by another party;
h) The ability
of the parties to carry out their respective obligations properly
i) ��Signed by the
parties with stamp duty and contains the names of the appointed witnesses.
The letter
of relinquishment of customary land rights, as mentioned above, according to
the author, can be said to be a form of a sale and purchase agreement made by
both parties and has binding power as law for both parties. As stipulated in
Article 1338 paragraph (1) of the Civil Code, every agreement made legally
applies as law for the parties who make it.
Therefore,
the parties should carry out every obligation in the letter of relinquishment
of land rights. If there are parties who violate, then the implementation can
be sued by the party who feels their rights have been violated.
2. The authority
of the tribal chief and his lineage in the process of releasing ulayat land
In
the life of people who adhere to tribalism, the role of tribal chiefs or Keret
is very central, not just any in the group or tribe. This distinguishes people
belonging to tribal life from people who have embraced modernity or know
civilization. Several determining factors make a person can be elected and
occupy the position of chief of the tribe. Usually, a tribal chief is chosen
based on heredity and must be male. If the direct lineage of a tribal chief is
not male, then the position of the chief will be determined through a
traditional ceremony. In the traditional ceremony, the elders and leaders of
the tribe usually decide who the new tribal chief will be.
The
role of a tribal chief is to regulate the problems of customs in his tribe,
where if there are problems that occur, then the tribal chief must solve them
directly. Therefore, the people all heard what was done by the tribal chief. A
tribal chief or keret is a person who is elected in a tribe as the chief or
chief of the tribe, and this title is passed down from generation to generation
in his lineage within the tribe. The problem of the role of tribal chiefs has a
social role and is not bound by formal laws that apply in a country. Based on
an interview with the head of the Mallo clan, Isak Samuel Mallo, the tribal
chief has a lot of customary lands, but the tribal chief does not have full
authority to trade this customary land and his lineage. Process of releasing ulayat
land or customary land, a tribal chief must obtain approval from an Ondoafi in
the village (I. S. Mallo, 2021).
According
to the researcher, based on interviews with the Mallo clan chief, the tribal chief
does not have full rights over all the ulayat land he owns, or the tribal chief
cannot personally sell the ulayat land he owns. Because to sell the ulayat land
according to the applicable customary law, the process of selling ulayat land
must obtain approval from Ondoafi in the village and along with the lineage of
the tribal chief must also be aware of it so that there are no future problems
that can harm the buyer of the land.
3. Ondoafi's
authority in the process of releasing ulayat land
Ondoafi is an informal
leadership located in Jayapura City, precisely in Skouw Mabo Village. Ondoafi
has leadership qualities that are very influential and respected by the
indigenous people of Skouw Mabo Village. Ondoafi is considered to be able to influence
the activities of indigenous peoples in interacting because they have
charismatic or leadership influences. Ondoafi's leadership titles and systems
have been passed down from generation to generation. Ondoafi is the holder of a
lineage drawn through a straight line with the village's founder.
Ondoafi has the duty
and authority to regulate all indigenous peoples and includes all tribal chiefs
from all tribes who live and inhabit Skouw Mabo Village and regulate
territorial boundaries or customary lands belonging to all tribes and tribal chiefs
in the village. Based on an interview with Ondoafi Skouw Mabo, Yans
Mahil Mallo that Ondoafi leads based on truth based on rules that have
been passed down from generation to generation who grew up living in indigenous
peoples and traditional elders in the past. In this way, there are no
communities or tribes. Tribal chiefs who live in the village of Skouw Mabo act
arbitrarily or claim the territorial boundaries of one tribe with another.
Still, Ondoafi acts with justice and honesty without taking sides (Y. M. Mallo, 2021).
According
to researchers, life characterized by indigenous peoples, Ondoafi's role has a
central position in community development and leadership. Ondoafi is the head
of government and a judge in resolving disputes in the customary law community
in his village. The ulayat land that will be traded by the owner of the rights,
namely the tribal chief, must obtain approval for the release of ulayat land from
Ondoafi in his village because Ondoafi as the holder of the highest authority
in the village, has the full right to release or not to release ulayat land in
the village. According to the researcher, in this case, an Ondoafi as the
highest officeholder must be an example of a good leader figure. An Ondoafi
cannot arbitrarily use his power for his interests which can harm his
indigenous people. This is because Ondoafi as the highest leader, has a
responsibility to indigenous peoples. Even though the authority possessed is
considerable, which includes the legislative and executive fields, in its
implementation, it must still be subject to customary law, which in principle
prioritizes the principle of deliberation and consensus involving elements of
the customary law community itself.
Conclusion
Based on the discussion
and analysis results from the author regarding the sale and purchase of ulayat
land jointly owned by several tribes in Jayapura city.
The legal status of
the sale and purchase of ulayat land in jayapura city is legal as long as it
has received approval from Ondoafi as a leader in a
government system that uses customary law. In addition, it is also necessary to
involve related parties such as the Village Head and the village head as
parties who can be asked for information that the land that is the object of the
release belongs to the party who will sell the land. This aims to avoid the
possibility of disputes or conflicts in the future.
The role of the port
numbay traditional deliberation institution (lma) organizationally is a forum
when there is a dispute over communal land in Jayapura City. The port
numbay traditional deliberation institution (lma) only acts as a facilitator
between the disputing parties. The port numbay customary council (lma) has no
right to make unilateral decisions because each party has different customary rules.
The position and role
of the tribal chief/keret in carrying out the process of buying and selling
ulayat land in skouw mabo village on his land, the tribal chief does not have
full rights or cannot personally sell his ulayat land. Because to sell the
ulayat land according to the applicable customary law, the process of selling
ulayat land must meet the requirements in the customary deliberation decision
to get approval from ondoafi, and the lineage of the tribal chief must also know
it. This is done to prevent problems/ conflicts within indigenous groups and
disputes over land from being traded.
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BUYING AND
SELLING OF ULAYAT LAND JOINTLY OWNED BY SEVERAL TRIBES IN JAYAPURA CITY