2017 Published by Reforming Government Public Land Parigi Moutong District Of Sulawesi Province Lecturer of Law Faculty at University of Muhammadiyah Palu maisa88@gmail.com ABSTRACT The main problem discussed in this study is the legal aspect of public land management by the Government. The main legal issues that discussed is the legal basis for the implementation of public land consolidation, land consolidation mechanism and the accuracy of the method of land consolidation by the Local Government Parigi Moutong district, Central Sulawesi. This study uses the type of normative legal research to answer the problem formulation. The results showed that the land consolidation program is one of the legal institutions that used by the government in arranging a settlement area by involving citizens in its implementation through a decree as an instrument of public law while a decree as a private legal instrument containing the agreement of the participants of land consolidation with the government over land Consolidation Team. The program is more appropriate to use the voluntary method as a legal basis for the establishment of legal rules in implementing the land consolidation program in district of Parigi Moutong. It is recommend that the legal basis of land consolidation program remains consistent referring to the applicable law which is adapted with its principle. In addition, Land Consolidation Team should issues land certificates so that all land consolidation participants can ensure the consolidation of rights and the use of land, and the government consistently using voluntary and deliberation method as a settlement of legal dispute in case of disputes. Keywords: Voluntary and deliberation method as a settlement of legal dispute in case of disputes.
2017 Published by INTRODUCTION Indonesia is a country law based (rechtsstaat) which is confirmed in Article 1 (3) Constitution NRI 1945. Consequences as a law based state, any activity in the construction using the law as a reference, including the structuring and controlling of urban space utilization. Article 1 of Law No. 26 of 2007 on Spatial Planning stated that "The implementation of spatial planning is an activity that involves setting, development, implementation, and monitoring of spatial planning". In such conditions it is known that the regulation of land use (ground and space) become the legal basis for each person (the subject of the laws) to manage them well and balanced. 1 The emergence of the legal arrangements for settlements or legal department of spatial planning is related to the increasing activity of land use that is not balanced so it needs the law of spatial planning as an instrument of sustainable spatial planning. So, the rapid space utilization is a result of population growth speed, economic development and transportation in the urban residential areas or the increasingly congested. 2 The phenomenon of changes in land use in residential areas, especially in the district of Parigi Moutong, tends to lead to a change in land use from residential houses function to non- residential houses function. This trend is generally more common in the core region within a core area of the city or Central Business District (CBD). Similarly, the effect on residential areas is occurred outside the core city district (CBD) and periphery region (hiterland). The tendency of land conversion indicates the existence of demand for housing land utilization is the biggest purpose of residential core area and most susceptible to change into other economical function. One of the residential areas that attracted an attention of its involvement of the phenomenon is public involvement in the effort of urban areas management conducted by the Regional Goverment Parigi Moutong district. The public 1 Zainuddin Ali, Sosiologi Hukum, Yayasan Masyarakat Indonesia Baru, 2007, p 5 2 Muhammad Abdulkadir, Hukum dan Penelitian Hukum, PT. RajaGrafindo, Jakarta, 2004. p 32
2017 Published by involvement is in the form of willingness or public voluntary in giving their lands to be included in consolidated urban land in the district of Parigi Parigi Kaupaten Moutong. The community involvement further ruled in a decree Parigi Moutong Number: 07-5201-191.2004 dated August 30, 2004. People engaged in the consolidation of regional arrangement referred to the decree as many as 225 people in the district of Parigi Parigi Moutong district. The region is an area of urban expansion Parigi Moutong district. 3 The willingness of the community in land consolidation program in the District of Parigi is a symptom which is an indication of changes in land use and land use that are likely incompatible with the purpose 4. Therefore, Moutong Parigi district government designing Ranperda Spatial Planning. This provision will be the legal basis (authority) of Local Government to consolidate land in the district of Parigi Moutong as a follow-up to the provisions of Article 11 of Law No. 26 of 2007 on Spatial Planning. In the article mentioned that the regency / municipal government authorities carry out spatial including setting, coaching, and supervising to regional district / city and strategic district region / city (Article 11 point (1) letter a of Act 26 of 2007). Based on the article, Parigi Moutong district local government have the spatial planning authority based on the change of land use and space utilization by the subject of law through land consolidation program 5. This is done to organize and control the land use change that is generally followed by a physical alteration of the building change progresses increasingly 6. It is recognized that the change of land use is almost unavoidable, sooner or later uncontrolled land utilization will add to the problems of society and government of Parigi Moutong so it is time for the Government of the District of Parigi Moutong ratify Ranperda Land Use district 3 Muhammad Bakri, Hak Menguasai Tanah oleh Negara, Citra Media, Republika, Jakarta, 2007. p 75 4 Eko Budihardjo dan Djoko Sujarto. Kota Berkelanjutan, Alumni, Bandung,1999. p 13 5 Koestuer, Raldi Hendro, dkk. Dimenesi Keruangan Kota :Teori dan Kasus, Universitas Indonesia (UI- Press), 2001, p45 6 Bruggink, J.J.H., Refleksi tentang Hukum, PT. Cita Aditya Bakti, Bandung, 1999, p2
2017 Published by as a legal basis for the implementation of land consolidatio n in district of Parigi Moutong. 7 Based on the description of background above, the problem in this research is what is the legal basis of the implementation of public land consolidation by the Local Government Moutong Parigi district, Central Sulawesi? RESEARCH METHODS A. Type of Research This study uses the type of normative legal research. Type of normative legal research that used to answer the problem formulation proposed. It is Type of legal studies analyzing legal norms relating to land consolidation involving voluntarily citizens and be certain legal events that occur in the community. B. Research Nature In addition to the type of research, it is necessary to determine the nature of the research that will be applied to the focus or object of research. The nature of research is characteristics that describes the purpose division or research object classification that will be used by researcher to do the research. C. Approach Used The approaches that will be used in the results discussion of this study is: the first approach to the legal theory (approach legal theory analysis). The relevance of this approach is very important as the land consolidation setting concept will be analyzed using theories that are relevant to research findings so that will have consequences on the new law theory expansion to address some of the legal issues related to the consolidation of land in a residential area. And secondly, the legal historical approach (approach of legal history analysis). D. Legal Materials Collection Techniques 7
2017 Published by Type of normative legal research uses legal materials collection techniques by using documentation guidance. The documentation is used to collect the primary legal materials that consist of library materials containing new scientific knowledge or sophisticated knowledge, or a new understanding of the facts known or about an idea (the idea). E. Analysis Techniques The analysis technique used in this research is legal reasoning and argumentation. Legal reasoning is an assessment of the accountability of science from a legal perspective to the process of making a legal decision that includes arguments and logical reasons as a justification of the legal decisions made, while the legal argument is the kind of legal reasoning involving intellectual process of lawyer in justifying the rationality and logical consistency and doctrinal consistency to reach a conclusion in deciding problems or legal issues faced. DISCUSSION RESULT A. Overview of Land Consolidation Program Involving Communities in the District Parigi Moutong Moutong Parigi District has implemented land consolidation with community participation. One of the interested phenomena is the involvement of communities in the effort to organize the urban areas conducted by the Regional Goverment Moutong Parigi district. The community involvement is in the form of willingness or voluntarily to give their lands to be included in consolidated urban land in Parigi in the district of Parigi Moutong. The community involvement further stipulated in a decree Parigi Moutong Number: 07-5201-191.2004 dated August 30, 2004. People engaged in the consolidation
2017 Published by of regional arrangement referred are 225 people in Parigi the district of Parigi Moutong. The region is an area of urban expansion Moutong Parigi district. The program is initiated by the government in purpose of urban area expansion so that many communities land involved to this program 8. Moutong Parigi district development with community participation is an urban area expansion of Moutong Parigi Town based on RUTR Moutong Parigi district 9. Nevertheless, several factors are become the basic consideration of land consolidation program in Parigi Moutong, these factors are: (1) capital area of Moutong Parigi is no longer appropriate to be capital city, (2) The need of additional public service centers, such as roads, office buildings, and other public facilities (3) The increasing number of people requiring the more public facilities,(4) In accordance with the Urban Spatial Master Plan Moutong Parigi district for 2025. Implementation of land consolidation program in the district of Parigi Moutong in Parisi is in accordance with Decision Parigi Moutong Regent Decree No. 07-5201-191.2004 dated 30 August 2004. In Sub Parigi, there are five districts, namely, sub Parigi total population of 23 833 or (6.23%), District of South Parigi population of 21 574 or (5.63 %), District of West Parigi population of 6.461 or (1.68%), District of North Parigi population of 5.378 or (140%), District Central Parigi population of 7.472 or (1.95%). Based on the tertiary legal materials, geographically and compared with other regions, Parigi district region development Moutong is affected by land consolidation program with community participation. Furthermore, the location of the consolidation program in the District of Parigi is an appropriate region in accordance with the General 8 Sudikno Mertokusumo, Penemuan Hukum, Suatu Pengantar,Edisi Pertama, Cet. Pertama, Yogyakarta: Liberty, 1996, p 98 9 Sumardjono Maria S.W. Tanah Dalam Persfektif Hak Ekonomi Sosial dan Budaya, Kompas Jakarta, 2008, p 65
2017 Published by Spatial Plan Moutong Parigi district. The location determination is in accordance with the Law of Spatial Planning, especially the provision that regulates spatial planning. One of the spatial arrangement programs is land consolidation program in an area. In Article 1 paragraph 13 stated that "spatial planning is a process for determining the structure and pattern of spaces in accordance with the spatial planning through the preparation and adoption of spatial plans". The Article after survey of land consolidation program execution in order RUTR Maoutong Parigi City has been a qualified statutory spatial and in its implementation get the good response and approval of citizens in the District of Parigi in general. The determination of location and implementation of land consolidation program in the District of Parigi with community participation viewed from the local authorities is in accordance with the purposes and objectives of regional autonomy. In the implementation of regional autonomy, Moutong Parigi District Government as a public legal entity acting on behalf of the state to realize the goal of development through the consolidation program to set up a public facility to citizens, especially residents in the District of Parigi. Determination of the Parigi District as the location of land consolidation program is in accordance with the intention of Law Number 32 Year 2004 on Regional Goverment. In Article 14 paragraph (1) of Law Number 32 Year 2004 on Regional Goverment mentioned that one of the obligatory functions under the authority of local governments to the district / city include land services. The intention of the article was the same with the provisions of Article 11 (2) of Law Number 22 Year 1999 on Regional Government. In that regard, autonomy in relation to the national land remains under the control of the central government. However, for the implementation of programs related to land consolidation the central government has set out some implementing regulations by using another legal
2017 Published by instrument, that is some government regulations. Government regulation in question is of Government Regulation No. 25 of 2000 governing authority in the land sector related to regional autonomy. Autonomy in relation to the national land remains under the control of the central government. However, for the implementation of programs related to land consolidation the central government has set out some implementing regulations by using another legal instrument which some government regulations. It is Government Regulation No. 25 of 2000 governing authority in the land sector related to regional autonomy. In PP (Government Regulation) No.25 of 2000 which state that before the enactment of the provision, the government sets the Presidential Decree No. 10 of 2001 states that the authority in the land sector as Article 11 (2) of Act 22 of 1999 on Regional Government set by the Government Regulation. Further, in the Presidential Decree No. 62/2001 confirmed that part of the duties of government, especially government duties relating to land held by BPN in the district area. BPN appointment as the agency that runs the authority (power) of government in the area of land on all aspects is relating to the land in districts and cities throughout Indonesia. In connection with a land consolidation program in the district of Parigi, held by BPN Moutong Parigi district based on Parigi Moutong Regent Decree No. 07-5201-191. 2004 letter dated 30 August 2004. This decision is an implementation of government authority related to the duty of government to give the services to the public for areas that are included in RUTR for the sake of public welfare in the fulfillment of its territory as the main purpose of granting autonomy to all districts / cities in Indonesia. B. Legal Basis as a Legal Instrument of Land Consolidation Involving Public Participation in the district of Parigi Moutong
2017 Published by In the concept of law based state, theoretically all the actions of the government and citizens are based on law (rechtsstaat). Law is the commander in the country and all the activities of country. Therefore, the implementation of land consolidation program refers to the applicable law. The law in this stud y divided into two parts, it is basic law based on law instruments. Therefore, in this study will be presented two legal instruments that became the legal basis, it became the legal instruments shaping legal relationship between the parties (the government Parigi Moutong) with Land Consolidation participants in Parigi Moutong district as described in the following sections: 1. Consolidation Land Based on Private Legal Instruments Moutong Parigi district government as the party organizing the land consolidation program on the one hand as a representative of the central government undertake appropriate land stewardship in central government authority as the purpose of Article 33 UUD 1945 also acts for and on behalf of the central government. The consolidation program is theoretically an initiative of the government involving citizens. In principle, land stewardship program, including land consolidation program is the level of public law as all policy and legal instrument used in this law use the norms of public law (administration). Nevertheless, the implementation of land consolidation program in the district of Parigi Maoutong is a government initiative which in practice involves the participation of the local community. The involvement of community in Parigi Moutong Regent Decree No. 07-5201-191.2004 dated August 30, 2004 is with the consent or agreement from local communities. Approval or deal with the citizen shows that a land consolidation program in the District of Parigi is an act of civil law.
2017 Published by Land consolidation program in Parigi district Parigi Moutong involves the participation of citizens through the instrument of civil law. The involvement of citizens in Parigi by 225 participants has agreed both orally and in writing to implement the land consolidation program. The Agreement of land consolidation implementation was listed in Parigi Moutong Regent Decree No. 07-5201- 191.2004 dated August 30, 2004 on the Implementation of Land Consolidation Program involving community participation. This decision became the legal basis of land consolidation agreement so that all the contents (the substance of the agreement) and implementation is under civil law instruments. 2. Land Consolidation Based on Public Law Instruments. Land consolidation program theoretically is a government policy in the context of land stewardship in the region. It called as a policy as land consolidation program set (initiative) unilaterally by the government without involving other parties in determining the content or materials of the policy. The Substance determination or policy content solely for the public interest as the sense of consolidation of land as stipulated in Article 1 paragraph (1) of the National Land Agency Number 4 of 1991. The usage of legal public law norms instruments in land consolidation program is related to some rules of public law, first, the provision which is based on the country's constitution. The legal basis that became the source of land tenure arrangement and re-arrangement of the ground is Article 33 of the Constitution NRI 1945. Consolidation program settings using the Law No. 5 of 1960 about UUPA as the law give the wider authority to the state through the rights of control. One of the
2017 Published by article contents that became the basic of authority for co untry to define policies in land consolidation program is Article 2 UUPA gives authority to the state to: (1) Organizing and conducting allocation, usage, supply and maintenance of the earth, the water and air space; (2) Determine and regulate the legal relations between people with the earth, the water and the space; (3) Determine and regulate legal relations between persons and legal acts with the earth, the water and the sky space; Further, the usage of legal instruments Act No. 2 of 1992 on Housing closely related to land consolidation settlements. In addition to the provision of land consolidation program also related to public law instruments stipulated in Government Regulation No. 224 of 1961 On Government Regulation Implementation of Land Distribution and Provision of Compensation. The Legal instrument Related to the institution that have an authority in land issues in Indonesia is Presidential Decree No. 4 on the Formation of the National Land Agency and Government Regulation No. 4 of 1991 On Regulation of Land Agency Chief on Land Consolidation. In Regulation of the Head of BPN No. 4 of 1991 On Land Consolidation consists of 7 Chapters and 9 Articles which related to arrangement structure (Regeling) of the land consolidation program generally. The contents of the regulations arranging several things: first, the general provisions (clauses 1 point 1 s / d figure 5), Second, Goals and Objectives (Article 2 point 1 s / s 2), third, Implementation (Article 3 paragraph 1 s / d figure 4), fourth, about Donation Land for Development (Article 6 paragraph 1 s / d figure 3), fifth, financing (Article 7 paragraph 1 s / d figure 7), sixth, the Dispute Settlement
2017 Published by (Article 8 point 1 s / s number 4) and seventh, closing (Article 9) and the Tenth, applicable rules (Article 10). Both laws are the basis of public law in the implementation of land consolidation program in Indonesia Related to land consolidation program in a Parigi Parigi district Maoutong implemented underparigi Moutong Regent Decree No. 07-5201-191.2004 dated August 30, 2004 On Land Consolidation Program involving Community Participation refers to both legal instruments as the reference so that the decree if analyzed based on hirakhi theory of legislation have become doctrine in the formation of legislation. According to the theory Hans Kelsen about Stufen Odor Theory in his book entitled "General Theory of Law and State were called as "The Hierarchy of The Norms " has implemented provisions of the legislation consistently as intent statutory provisions, particularly Implementation of Act No. 10 of 2004 Concerning the Establishment of legislation in Indonesia. Therefore, implementation of land consolidation program in District Parisi Parigi Moutong district has used public law instruments as it should be (technical-juridical) so that the substance of legal regulation was in accordance with the normative and empirical laws. Therefore, the implementation of land consolidation program in District Parigi Parigi district Moutong have the binding force in public law and private law. CLOSING A. Conclusion The legal basis for the implementation of the consolidation of public land owned by the District Government Parigi Moutong using the instrument of public law and private law instrument. Instrument of public law through a decree that
2017 Published by enabled the provision of the legislation in abstracto in the form of rules in more detail (Regeling) and concrete (in concreto) whereas the decree regent is a legal document agreement between the government and the consolidation participants that became the reference to implement the whole agreements (Consensus). B. Suggestions 1. The legal basis for land consolidation should consistently refers to the establishment of the rule of law in accordance with the applicable law provisions and adjusted to the type of legal norms included(primary or secondary rules). 2. Government should consistently use the voluntary method on land included a rural region with any form of the agreement as legal consequences. Because through this method is not impossibly cause problems of land that only can be resolved through civil law instrument whether through litigation (judicial) and non-litigation (outside the court). BIBLIOGRAPHY Ali, Zainuddin, (2007) Sosiologi Hukum, Yayasan Masyarakat Indonesia Baru, Abdulkadir Muhammad, (2004) Hukum dan Penelitian Hukum, PT. RajaGrafindo, Jakarta. Bakri, Muhammad, (2007) Hak Menguasai Tanah oleh Negara, Citra Media, Republika, Jakarta. Budihardjo, Eko dan Djoko Sujarto. (1999) Kota Berkelanjutan, Alumni, Bandung. Bruggink, J.J.H. (1999) Refleksi tentang Hukum, PT. Cita Aditya Bakti, Bandung. Koestuer, Raldi Hendro, dkk. (2001) Dimensi Keruangan Kota :Teori dan Kasus, Universitas Indonesia (UI-Press).
2017 Published by Mertokusumo, Sudikno, (1996) Penemuan Hukum, Suatu Pengantar,Edisi Pertama, Cet. Pertama, Yogyakarta: Liberty. Mustafa, Bachsan, (2001) Hukum Administasi Negara Indonesia, PT. Citra Aditya Bakti, Bandung. Muhamad Bakri. (2007) Hak Menguasai Tanah oleh Negara, Citra Madia, Yogyakarta. Maria S.W. Sumardjono, (2008) Tanah Dalam Persfektif Hak Ekonomi Sosial dan Budaya, Kompas Jakarta. Muchtar Wahid. (2008) Memaknai Kepastian Hukum Hak Milik Atas Tanah, Republika, Jakarta. Prawirohamidjojo, R.Soetojo,(-) Keabsahan Perbuatan Hukum, Airlangga, Majalah Fak.Hukum Unair. Philippe Nonet dan Selznick. (2003) Hukum Responsif. Pilihan di Masa Transisi, Huma, Ford Foundation, Cet. Pertama, Jakarta. Hasni, Hukum, (2008) Penataan Ruang dan Penatagunaan Tanah, Dalam Konteks UUPA-UUPR UUPLH, PT. RajaGrafindo, Jakarta. Harsono, Budi, (2002) Hukum Agraria Indonesia, Sejarah Pembentukan Undang-Undang Pokok Agraria, Isi dan Pelaksanaannya, Jilid I Hukum Tanah Nasional, Edisi Revisi 2002,Jakarta.Penerbit Djambatan. Hasni, Hukum (2008) Penataan Ruang dan Penatagunaan Tanah,Dalam Konteks UUPA-UUPA-UUPLH, Rajawali Pers, PT. RajaGrafindo Persada, Jakarta. Hendra, Raldi Hendra Koestoer, dkk. (2001) Dimensi Keruangan Kota, Teori dan Kasus, Penerbit Universitas Indonesia, UII Press, Jakarta. Hartono, S.F.C. (-) Hukum Ekonomi Pembangunan Indonesia.Bandung.Bina Cipta. Idham H, (2004) Konsolidasi Tanah Perkotaan dalam Persfektif Otonomi Daerah, Alumni, Bandung.
2017 Published by Iskandar Syah, Mudakir, (2006) Dasar-Dasar Pembebasan Tanah Untuk Kepentingan Umum, Dilengkapi Peraturan Perundan-undangan dan Peraturan Presiden Nomor 65 Tahun, Cet. Pertama, Jala Permata. Mustafa, Bahsan, (2001) Sistem Hukum Administrasi Negara Indonesia, PT. Citra Aditya Bakti, Bandung. Jhonny Ibrahim, (2005) Teori dan Metode Penelitian Hukum Normatif, Cetakan Pertama, Bayumedia Publishing, Surabaya. Samsuri Hamzah, (-), Kamus Lengkap Bahasa Indonesia Modern, Gresinda Press, Surabaya.