EKSISTENSI HAK PENGUASAAN DAN PEMILIKAN ATAS TANAH ADAT DI BALI DALAM PERSPEKTIF HUKUM AGRARIA NASIONAL

Suwitra, I Made (2009) EKSISTENSI HAK PENGUASAAN DAN PEMILIKAN ATAS TANAH ADAT DI BALI DALAM PERSPEKTIF HUKUM AGRARIA NASIONAL. Doctoral thesis, Universitas Brawijaya.

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Abstract

The background of this research is begin with the statement that Basic Agrarian Legislation of 1960 (UUPA's) forming which use the traditional law (adat law) as main sources and complementary sources is needing the co-existences among UUPA as a state law and traditional law as a folk law’s expectation. Unfortunately, in the process of implementation to realize the land tenure rights in territorial competencies, traditional law was marginalized. It mean prajuru adat as commander of traditional village (desa adat) is never asked to get coordination and be involved deep in the process of realizing the land tenure rights, although traditional village have a siar organization which can disseminate information effectively to traditional of society (krama desa adat). On the contrary, Government is just involve the administrative governance agencies. It is more seen while the Project Operation of Agrarian State (PRONA) policy of government was implemented in Balinese Province which publishes a mass certificate. Thus without unrealized, the legal structure which handle land affair have done partialness to the state law, and ignored the presence of the traditional law. The appearances of the dispute of the right for land tenure and possession is the one of its implication, beside the unclearness of the confession of traditional law society. This research will examine problem including the concept and regulation concerning the right of tenure and possession of adat land, confession and protection by state, and dispute settlement models. The research type that taken in this research is normative legal research comprehends with empirical legal research. It is conformed to the legal problem. Research approach that has been taken in this research is by using statute approach, historical approach, analytical approach, anthropological of law approach and cases approach. The result of this study and research is expected to give an academic thinking contribution in National Law of Land (HTN) renewal. Thus it is practically could improve the legal structure image, and legal culture of society. According to that, it can be used to anticipate the dispute settlement in land field. This research finding is as follows: First, The supreme tenure of adat land right is lying on the traditional village, not on the banjar adat. That right is including right to manage, arrange, and utilize of land. Basically tenure of adat land is base on the religious communalistic character which controlled by society self regulation autonomous. But it is still vulnerable to states law influences. Moore justifies this problem area as “semi autonomous social field”. Second, there is a shifting power paradigm of tenure right’s sources after Government implemented UUPA, which is originally the tenure rights of traditional village had attributive power into derivative power. The existences of state power on land tenure’s right in UUPA was indicate that hak ulayat of traditional village is based on the states right. It means that the exclusivist character of hak ulayat (beschikkingsrecht) doesn’t get place in National Law. Third, the recognition of adat land existences by states is still weak (weak legal pluralism). This condition become worse because of the contradiction xix interpretation among judges of judicial agents which expected could be functioning as a buffer or safety valve in ways to give certainty to community’s property rights. But the acknowledgment and protection of tenure’s right and laba pura land property can declared for strength (strong legal pluralism). For protection of another adat land is given by their traditional village. Forth, the dispute settlement model of mediation with conflict theory based is will be more proper to used in handling the cases of adat land dispute. But the main point is mediator should be precisely accommodate through harmonizing the distinguish interest to accentuate utility principle of the party. It is differing from litigation stripe which can evoke horizontal’s conflict at traditional village. Fifth, the arising of adat land dispute cases is approximately caused by invalid administration law in land’s rights application decree publication by BPN. And in the fulfillment process of its rights doesn’t involving the prajuru desa adat yet. It is because that publicity principle just reflect states law requirement. It ignores traditional law which has “siar” process pattern, which preceded by mesadok conduct (coordinative function) to special law conduct. Sixth, there is a shifting of land policy in UUPA, which is originally have populist's character in achieving society prosperity to the tending of pro-capital character because of economic growth orientation option. Seventh, the communal character of rights of land that could be certifying by traditional village is just laba pura land. The reason is only tample (pura) has had already recognized as religionist legal entity, which is can have land property’s right according to the Internal Affair Ministry Decree Number SK 556/DJA/1986. Tradisional village itself has no recognition yet as a legal entity. In accordance with that, when HGB (right to utilize building) certificate for adat land which controlled by traditional village, like setra land, adat land, open field, loloan, water resources, campuhan was issued, it is issues on behalf of other subject of law name which usually using a developer for tourism name. Whereas for the communal land which its tenure right has been derivative individually to their traditional of society (known as PKD/AYDS land), is already changed over full individually that finally trade of. In this taste, law with its function as tool of social engineering for giving legal certainty is well done, but not in the context of justice accomplishing and especially for the utility in the religious communal concept. Eighth, there is still no inventorying and mapping activity of adat land in each of traditional village yet. It means that no precisely information yet about the width of adat land which has been mastering and controlling by traditional village. The existence of traditional village jurisdiction power is only shown with natural border, and it is being sensitive for conflict occurring. Ninth, the awareness of adat law’s society as a unity to maintain their tanah ulayat is being sensitive when oppressed or despised to their holy land. Based on that research findings, it conclude that the term “druwe desa” can be formulated as a right which have contain of arrangement, management, using, and exploitation land and its content, and based on the nation right’s authority. Here, the term of “druwe” is correspond with tenure concept which strictly state at article 33 sub paragraph (3) UUD NRI 1945 jo. article 2 sub paragraph (2) UUPA. But they have their own jurisdiction in each traditional village that has been written explicitly in the awig-awig. In awig-awig, the tenure of adat land is still handled by traditional village communally, but also derivatively into individual tenuring (krama) in the form of PKD or AYDS which has “ayahan” xx obligation by traditional village. If PKD or AYDS is converted into a property ownership, then its tenure relationship will changes as ownership relationship according with the concept of property rights in article 16 subparagraph (1) a jo. Article 20 UUPA. Tample land (laba pura), which partly arrange of become the community property rights of druwe (n) desa, is appear as religiosity legal entity as regulated in Internal Affair ministry Decree Number SK/556/DJA/1986 State doesn’t recognize and protect adat land wholly yet. After UUPA implementation, there is a shifting of adat land status from communal land into personal ownership. This shifting is unrealized has been reducing authority of traditional village, and remove the status of “ayahan” as obligation or liabilities including in the adat land. It is describe of a poor pluralism. The dispute of land happens because the process of fulfillment of rights by BPN is through an invalid of administrative law mechanism. Here, the function of social engineering of law implementation of UUPA was breach community rights. While internal conflict happens because of by sector ego from their community leader and interpretation of hak ulayat as exclusive rights. Beside that, judicial decision was not continually and even contradictive one another. Dispute settlement model on land field is can be implemented using litigation and non-litigation (mediation) stripe. Mediation will be success if mediator has ability of problems comprehension and ability to identify the problem sources, have a distinct concept, neutral, and ability to harmonizing differ interest into material and immaterial utility. So here will be give legal justice and legal certainty. In comparison with litigation stripe, there is still pro and contra in society after judges giving his judicial decision. It is can caused horizontal conflicts with evoke banjar dissension also. It is needed to act wisely and intelligently of management conflict according to the arisen problem. Thus, here the states agents who do the state function should be able to give recognition and protection to the adat land status existences as a part of hak ulayat of traditional village. Beside that a new paradigm of valuing state law and traditional law as a coordinative (coexistences) position and not in the superlative position for law enforcement agent is needed. The co-existences position is for shows the strong concept of legal pluralism. For the society who want to settle their dispute is should be prepare to receive all the decision through litigation or non litigation stripe. Prajuru adat should have ability of standing in neutral ways and excluded another traditional of society which is not related with (civil) cases to avoiding internal evoke. In order to realizing the recognition and protection from Government to adat land existences, then the head of BPN is should be constitute and appoint traditional village as subject of law which completed with right of land tenure. It is because traditional village has a unique characterize as religious charity entity. Traditional village has Pura Kahyangan Tiga and other pura in their own jurisdiction, except family pura or pura kawitan, and also market land, setra land, open field, road (margi and rurung), water resources (kelebutan toya), loloan, campuhan which can not registered yet. By then, there will be occurring co-existences between UUPA as states law and adat law as folk law. Accordance with that the community based property rights in natural resources management can register to be certified as traditional village name as usually in the context of appoint pura. For PKD land can issued with right to utilize building (HGB), and AYDS issued with usage right xxi (HP) above traditional village land ownership. Hence the effort to shifting PKD and AYDS land into fully individual ownership right as what occurs in this time can be avoided in the future. And there is a way also to avoiding conflict in land affair. In order to UUPA renewal or HTN reforming, the arrangement of community based property rights (traditional village in Balinese Province) can be a part of the property right arrangement which is supposing to achieve legal certainty, legal justice, and legal utility. Thus it is can bring a strong and good bargaining position of adat law society to other party, especially related with outsider party in order to achieve an abundantly prosperity for society.

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