International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawjournals.org
Volume 3; Issue 3; May 2017; Page No. 80-88

Law of agrarian conflict and resolution effort: A claim dispute of Eigendom verponding Land
Bambang Slamet Riyadi
Doctor (Candidate) of Agrarian Law, Departement of Agrarian Law, Faculty of Law Universitas Gadjah Mada, Yogayakarta, Indonesian
Lecturer of Criminal & Agrarian Law, Faculty of Law, Universitas Natonal, Jakarta, Sawo Manila Street Number 61, Pejaten, Pasar
Minggu, Jakarta Selatan, 12520, DKI Jakarta, Indonesia

Abstract
This Agrarian law study analyzes the dispute of ‘Eigendom Verponding’ land taken over by the State. Agrarian Legal is principally
different in every region and State. Agrarian Law describes the land rights, both right of communal property, rights of individual
property, or even King's property or property of the state. Indonesia has adopted individual and communal right as well as self-
government property right. Land disputes are analyzed through conflict theory; and since related public policy and ownership, then
another approach is through the public policy and ownership theory.

Keywords: verponding eigendom land, ownership theory, public policy theory

1. Introduction rules established by authorized power to shape it and when it

The agrarian term is derived from the word akker (Netherland), does not interfere other rights, except to rights revocation for
agros (Greek) means farmland, agger (Latin) means land or a the public interest with restitution’. Eigendom right upon the
plot of land, agrarius (Latin) means cultivation, rice field, land divided into two, that are [5]:
agriculture, agrarian (English) means agriculture land. In a) Eigendom according to BW without rights of the Ruler:
Black's Law Dictionary mentioned that the meaning of agrarian Under the Netherland Indies Acts the Eigendom right over
is related to land, or to a division or distribution of land; as an this land is only given to: the necessity to expand towns and
agraria laws.1 The broader meaning of ‘agrarian’ involves villages including also peocuring the grave; to set up the
land, water, rather than simply the meaning of ‘land affair’ craft buildings as well as to expand the existing ones.
Definition of ‘land’ in our lives can be used for many purposes. Granting the land with Eigendom rights should not exceed
In the law of land, the word ‘land’ is used in juridical sense, as ten bouw (Bouw = 7000-7400m [2]). The Eigendom rights
a definition which formally given the limitations of statutes over these lands can be given to each person, as well as to
that on basis of right to control the State ... is determined the Indonesia nation.
existence of various rights upon the surface land of the earth, b) Eigendom with businessman rights: This type of Eigendom
which is called of the land, which can be given to and belongs rights is Eigendom right in the private lands. In the
to the people .... Thus it is clear, that the ‘land’ in a juridical regulations applicable at the time of Netherland Indies
sense is ‘surface of the earth’ (paragraph) [1, 2]. In this regard, colonial government there is no provision regarding the so-
the land can be seen as an integral part of economic valued called private land. It's just that people refer to it as
property asset, and therefore most vulnerable to conflict. ‘particuliere landerijen’ that is the big or small land in
Definition of Eigendom is the most perfect rights on an object. which there is generally population that has been since the
A person who has Eigendom right can treat any things to his days of VOC and then under Daendels and Raffles have
own objects provided that not contrary to law or others rights. been sold to individuals as such the buyer gets the
How to acquire Eigendom rights are as follows3: ‘seigniorial right’. This phenomena becomes the
a) Taking (opening land); background of Verponding Eigendom land dispute in the
b) Natrekking (object increase due to natural changes); present, with basic of problem the land tenure and became a
c) Passage of time /Verjaring; dispute object in future. The Agrarian law at least can be
d) Submission (overdracht/Levering) seen from European Agrarian Law, Customary Law and
According to Netherland Indies legislation [4], ‘Eigendom right National Law. In principle, European law before French
is the right to get a free pleasure of an object and to control it Revolution, the King is God representative on earth, so at
completely provided that not used in contrary to Act or general the time the Kings in Europe has great power to regulate his
country, even the king was regarded has power over all
things, the King is the State ruler and the King was ruling
1
Urip Santoso, 2012, Agrarian Law – A Comprehensive Study, Jakarta: the lands on their country. In France applies the watchword
Kencana Prenadamedia, page 1.
2
Boedi Harsono, Boedi Harsono (2007) Indonesia Agraria Law – History of
Le'etat c'es Moi or ‘state is me’, theory reflected a great
Formation of Agrarian Principal Act, Contents and Implementation, power over the land. The King is regarded as deputy of the
National Land Law, Volume 1, Jakarta: Penerbit Djambatan, page 18 State and State landowners. This theory is also applicable in
3
Sirini Ahlan Sjarif, (1984) Essence of Object Law According to Menurut United Kingdom and Netherlands. Indonesia as colonial of
Burgerlijk Wetboek, Jakarta: Ghalia Indonesia, page 14.
4
Sudikno Mertokusumo (1988) Indonesia Agrarian Rules, Edition 2,
5
Yogyakarta: Liberty page 35-36. Ibid.
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Netherland enacted this theory in Indonesia, which means victims who expelled from their land cause of the concessions
that all the land in Indonesia are the King property and policies for large capital owner/investor in the land tenure [9]
because the King subject to colonial administration, then all In the dormant of Eigendom Verponding land cases whether
land in the colonial country being converted to the government can hide behind the limitations? However the land
Netherlands King [6]. conflict phenomenon of Eigendom Verponding besides related
If we trace to identification the conflict occurs because of their to conflict theory also have impact to the government services
authorization/utilization gaps due to policies/discriminative are not optimal in the land sector, so this legal phenomenon can
laws to regulate the authorization relation. Then this be studied also in the Public Service Theory.
identification is most relevant when we associate to the cause A.P. Parlindungan (1991) states the land registration budget
of the uproar of various agrarian conflicts are frequently occurs was most expensive, so it depends on available budget,
in Indonesia. According to Usep Setiawan, an activist, the rise employee affair and infrastructure required so that to be
of land social conflict, more due to mismanagement in the prioritized certain areas mainly those having high trading
policy implementation, and imbalance due to imbalance in land traffic one another according to consideration of the concerned
ownership. In essence, the agrarian conflict reflects the state of minister and the existing urgency [10] In condition of the
non-fulfillment justice for communities who relies his life from existing legal pluralism, taking over of the land by State, and
the land and natural resources, such as the farmers, fishermen not well implementated of government program, then the
and communities. This injustice appears as a result of applying Eigendom Verponding land conflict occurs. The protracted
the wrong concept of the state’s mastery right over natural conflict must be related to many aspects, such as public policy
resources [7]. in relation to the service.
In another side, the concept application of the concept of the If the case of Eigendom Verponding land studied in Dogmatic
state’s mastery right over natural resources devoted largerly to Law perspective, according to agrarian law, this case could be
people welfare, in practice more used to legitimize the state in traced on what should be known about: a) what violations
terms of providing opportunities as much as possible for the happened? b) who was the offenders? c) when the violation
big capital owners to open businesses of land management with was done? d) where the law gaps and weaknesses on agrarian
an excuse to carry out an economic development. As regulation in terms of protecting the community property
consequence of these objectives then issued various rights? e) why agrarian legislation rule was not effective in
government policies, which often from the policy eliminating preventing the occurrence of the alleged violation of agrarian
the existence of society, including indigenous peoples from the law on the eigendom verponding land? f) how the renewal
land being their livelihood during this time. On the other hand solution of laws and regulations with philosophical foundation,
against them/people who have been expelled from their land, formal and material in order to prevent taking over of the rights
did not accept injustice as consequence of the policy and then illegally on the eigendom verponding land owned by other
push them to take the fight, so the conflict occurs. The conflicts party?
occur between communities/farmers who defend their rights of
all forms of arbitrary domination by corporations that own 2. Method
capital which cloaked behind the state protection/concession [8] 2.1 Research type
Agrarian conflicts can also be seen from the agrarian law itself This research is normative juridical research [11], which put
that has many source of law. Looking at the Legal Pluralism in norms, rules and regulation, verdict of court, agreement as
Theory, Agaria conflict can be seen as the result of more well as doctrine as its prime study [12] and
contradictive law adopted by differrent parties, particularly the prioritizing secondary data as the main data. However, the
customary law and state law. The pluralism theory more research has also committed field research to obtain primary
emphasizes that agariaan conflict due to the imposition of two data as endorser of secondary data.
legal opposition, the state law on the one side and customary
law on the other side. For example in certain cases the land 2.2 Research data
conflicts involving indigenous peoples and the state, where the Data used in this research is secondary data in form of primary
state in the capacity as a holder and manufacturer of verious legal materials, secondary law and tertiary legal
policy/law. This opinion is also reinforced by policy theory. materials. Secondary law material are used consist of
This theory is also often to be reference to identification the principles, doctrines, opinions of the experts who can be seen
causes of agrarian conflict. According to this theory, the from law books and other laws writings that may provide
agrarian conflict is the result of specific policies of the state,
such as; development policy. With the development policies, 9
Ibid.
then automatically all the potential/existing resources, 10
A.P. Parlindungan, 1991, Coment on the Agrarian Principal Law, Mandar
including agriculture, and nature become an object at stake. In Maju, Bandung,hlm.115.
11
Soerjono Soekanto (2010) Introduction to Legal Studies, Jakarta, page. 12
order to earn the money as much as possible as the mentions secondary data include the official documents, books, results of
development capital. These conditions caused the emergence of study in form of the reports and diaries. From ists type point, secondary
new forms of capitalism, which is undermining the domain of data, secondary data can be distinguished between private and public
people livelihood. And sometimes make them/ people as secondary data. A private secondary data is personal documents such as
letters, diaries and other personal data stored at institution where the
concerned ever worked or are working. While public secondary data in
form of archived data that is data that can be used for scientific purposes by
6
Agussalam Nasution, 2012, Theory of Agrarian Law have appliedin scientists; an official data at government agencies are sometimes difficult
Indonesia, Medan, Law Magistrate Program, Post Graduate Program, to obtain, and therefore may be confidential; and differ that is published for
Muhammadiyah University, North Sumatera. example the Supreme Court jurisprudence
7 12
Ibid. Mukti Fadjar ND dan Yulianto Ahmad (2010) Research Dualism of
8
Ibid. Normative and Empiricism Law, Yogyakarta: Pustaka Pelajar, page 34.
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explanation of primary legal materials. The tertiary legal where land ownership based on customary laws is communal
materials are used in form of dictionary and encyclopedia of property or partnership (beschikkingsrecht). In this case each
law that can provide guideline and explanations toward partnership member can works the land by clearing the land
primary and secondary legal materials [13]. Primary data as first and if they cultivate the land continuously, the land could
supporting data in this study is data obtained from research be the right of individually property [15].
subject by means of field research from different sources. At the time of Indonesia under British colonial government,
Raffles started to investigate the stand of land, especially in the
2.3 Location and subject of research Java island. On 13 January 1812, Raffles established a
This research was conducted in Jakarta particularly on the committee in charge of studying the stand of land and anything
research object of Eigendom Verponding land located at is deemed necessary to expedite the government wheels [16]. On
Jl. Rasuna Said, Kuningan, Jakarta) on behalf of the heirs. The 14 June 1813, he expressed a memory to the committee:
subjects of research were informant from parties who know the The power and authority of the Indonesia leader is limited The
object of research, the parties within government who have state of lands will be leased to the village heads, who should be
access and authority to the eigendom verponding land. In this responsible about its exploitation to the Government. The lands
case were the officials of National Land Agency (BPN) were should be leased back to farmers with the light
Jakarta, and the officials of Licensing (BP2T). requirement [17].
Raffles based ‘landrente-stelsel’ on view that since the time
2.4 Data collection technique immemorial has been a tradition that the King was regarded as
The secondary data were obtained from document related to the land owner, (although) in fact this is a view imported from
object of research and literature study concerning theory, India [18] and therefore it is rightly the farmers as the land users
previous research, studies, and news related to object of to pay rent to the government which replace the Kings position.
research. The main secondary data in form of legislation, This Raffles view cannot be wondered because in the Sultanate
[19]
general reference of legal study, and tertiary data in form of regions in Central Java, at that time often occurs the heads
empirical information or other legal materials. The primary of fellowship replaced by the king servants, sometimes the
data obtained through informant by in-depth interviews using King give rights to his employees or his families members to
the interview guideline. collect taxes from the partnership. Thus the king took over the
law partnership lands into his own hands, so the customary
2.5 Data analysis rights are held by the King, and therefore vome into being the
Data were analyzed qualitatively by using the ownership notion, that land is belong to the King [20].
analytic theory, public policy, and conflict theory used to study Therefore the customary rights is lost, right to enjoy, rights to
synchronization between das-sollen and das-sein are related to precedence, right to graze the cattle, while the right of land
the agrarian disputes resolution of eigendom verponding ownership changed in the form and generated into ‘right to
land. In the first section will be descriptively discussed first work or right to cultivate that very wobbly. This erroneous
concerning the alleged of agrarian law violations related to the Raffles’s view influences the agraria politic of Netherland
empirical case. The theory analysis was performed using the Indies in the 19th century [ 21].
ownership and conflict theories with the juridical-normative When Indonesia returned by Britain to Netherlands in 1816,
study primarily related to the ownership theory of the then on 1 May1827 the Netherland Indies colonial government
exercising a right, an activity connected between subject issued a treatise containing that Javanese incompetents seeking
(owner of right) with object (what is claimed as a right) related the crops that could be sold in European markets, because of
to activities the shift of land controlling from the eigendom ‘primitief-conservatief’ soul as well as their lower education
verponding landowner to the state, or from the state to the level so that they are not possible accept something new about
building owners who construct buildings on the eigendom how to cultivate the land [22].
verponding land No. 5822. The use of conflict theory related Van den Bosch, a high officer in Netherland Indies, applying a
to socio-juridical problem, since it involves the type and level forced cultivation. All land are belongs to the King, so every
of conflict, whether indications of abuses, including in
dissensus context or conflict. 15
Syafruddin Kalo, Different Perception on Land Authorization and its
The stages of data analysis begins with data reduction, Consequence to Farmer Community in East Sumatra in the Colonial
simplification and presentation of data, verification of research Period that continues to the Independent Period, New Order, and
Reformation, Study Program of Criminal Law, Faculty of Law North
results, and the last conclusion14 The conclusions made based Sumatera University .
on deductive rather than inductive methods. The deductive 16
Supomo, Djokosoetomo, 1951, History of Customary Law Politics,
method is selected since the researcher starts from the highest Volume I (1609 – 1848, Edition two, Djambatan, Jakarta, page 74 in A.
legal norm constitute of das sollen toward specific thing, Teluki (1966) Comparison of Property Right upon the Land and Recht van
Eigendom. Bandung: PT Eresco, page 6.
namely to practice level in the field (das sein). 17
A. Teluki (1966) Comparison of Property Right on the Land and Recht van
Eigendom, PT Eresco, Bandung, page 6 with adjustment on written
3. Result spelling .
18
3.1 History of agrarian in Indonesia Ph Kleintjes, 1929, Staatsintellingen van Nederlandsch Indie, J.H. De
Bussy, Amsterdam, hlm. 380. (See also Van Vollenhoven, 1933, Het
The European/Netherlands Agrarian Law is contrary to custom Adatrecht van Nederlands Indie, Derde Deei, 2de stuk,E.J.Brill, Leiden,
hlm.536) in A. Teluki, Ibid, page 6
19
Soekanto, Op Cit. page 127 dalam A. Teluki, Ibid. page7
13 20
Soerjono Soekanto & Sri Mamuji, (1995) Normative Legal Research, A. Teluki, Op Cit. page .7
21
Jakarta: Grafindo Persada Ibid.
14 22
Nasution (1992) Naturalistic-Qualitative Research Method, Bandung: F.W. Stapel, 1940, Geschiedenis van Nederlandsch Indie, Deel V. Joost
Tarsito, page 127-130. van den Vondel, Amsterdam, hlm. 116-117 dalam A. Teluki, Ibid. hlm.7.
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farmer has to pay rent by giving up some of their crops. Van juridical control, are entitled to claim to submit back the
den Bosch system is known as ‘Cultuurstelsel’ or ‘forced concerned land physically to him [27].
cultivation.’ In addition there are also agricultural land In the law of land is also known juridical control that did not
cultivated by European private entrepreneurs who obtained the give authority to control the land in question physically.
land from the Government by rent, but this policy of leasing Creditors of the rights holders of security on the land have
out the land to private stopped by Netherland Indies jurisdiction control over the land made as collateral, but
government in 1839 [23]. juridical control on the land as collateral remains in the land
the owner. The control right on the land when have been
3.2 Private land connected to the specified person land (legal entity), then what
The existence of private land is political will of Netherland is means by the control right over the land is the control right
Indies colonial government that poured into its legislation. The based on a right or power which in fact gives the authority to
purpose of selling the land on a large scale to those private was take legal actions as how appropriate one who has the right [28].
primarily for financial gain or to fill the cash of Netherland The land owner started with occupied an area by an indigenous
Government and Netherland Indies colonial government, and people who later called as the communal lands (common
opening the grove that cannot be done by Netherland Indies land). In rural areas outside of Java, the land is recognized by
colonial government considering the shortage of funds and customary law not written either based on descent or region
personnel. relationship. Along with the changes of socio-economic
Thus, the private lands owned by private persons, either they patterns in any society, the common land of indigenous peoples
are Netherland or Europeans who have Netherland nationality. are gradually controlled by society members through
The consequence of the existing private lands is the emergence alternating cultivation. Individual ownership system is then
of ‘big landlords’ with ‘seignorial rights’ (landheerlijke began to know in the communal ownership system [29].
rechten) that are privileges granted to them by Netherland In the national law of land there are various control rights on
Indies colonial government, so this private lands almost like a the land, namely:
‘Small country in the State’ (Staatjes binnen de Staat) [24]. a) The right of Indonesia nation as the highest right of
The gentlemen (owner) of private land consisted of Europeans controlling the land has civil and public aspects.
and Orientals. It is almost rarely we can find an Indonesian as b) The right of control from the state is solely has public
the owner of private land. Who can have private land is not aspect.
only their personnel, but legal entities such as limited c) The land right of indigenous people has civil and public
companies and municipalities, such as Jakarta and Surabaya [25]. aspect.
d) Individual right, have civil aspect consist of the right on
3.3 Land system of Republik of Indonesia land as individual rights are directly or indirectly have
a) Property right on the land rooted in the rights of nation.Various rights on land in
In essence, the right of Indonesia people on the land has Article 16 determine that: The right on the land that can be
comunalistic nature that means all land in the territory of owned by that individuals include:
Republic of Indonesia is common land of Indonesia people. In 1) Ownership right
addition it has also religious characteristic that means all land 2) Cultivation right
in the territory of Republic of Indonesia is believed as a gift of 3) Building use right
God Almighty. The common land is declared as national 4) Usage right
wealth that shows the civil elements, namely the possession 5) Rent right
relationship between Indonesia Nation with the common 6) Land opening right
law. However, the right of Indonesia nation is not means the 7) Rights of picking forest products
right of private property that does not allow for the individual 8) Other right including the rights above shall be
rights [26]. established by law and a temporary right.
Definition of ‘control’ and ‘master’ can be used in physical Because of Indonesia people right have communalistic
sense and juridical meaning; it also has civil and public character, there is a provision of the Right Controlling of State
aspects. Juridical control is wased the rights protected by law on the land (HMN). HMN not be interpreted to control
and commonly provide authority the right holder to master physical absolutely, but solely as the task of managing all the
physically the land that has personal right. Another type of common land that does not allow undertaken themselves by
judicial control viz., even gave authority to control the land that entire of Indonesia nation, so that in its implementation, the
have personal right physically, in fact the physical mastery is Indonesian people as the rights holders and bearers of the
carried out by others. For example, if the authorized land is mandate, at the highest levels was delegated to the Indonesia
leased to another party, the land is physically controlled by State as power organization of the people [30]. In practice, HMN
other party in the lease rights. In this case the land owner by its often ignore individual right upon the land as happened
on Verponding Eigendom case for taking over without proper
compensation as set out in the agrarian law.
23
A. Teluki, Op Cit. hlm.8
24
Bachsan Mustafa, 1988, Agrarian Law in Perspective, Bandung: CV
27
Remadja Karya, page 32. http://e-journal.uajy.ac.id/361/3/2MIH01442.pdf
25 28
Ibid. Boedi Harsono (2002) Toward Improvement of National Land Law in
26
Urip Santoso (2012) Agrarian Law–A Comprehensive Study, Jakarta: Relation with TAP MPR RI IX/MPR/2001, Jakarta: Universitas Trisakti,
Kencana Prenadamedia Group, page 78; Boedi Harsono (2002) Toward page 23
29
Improvement of National Land Law in Relation with TAP MPR RI http://e-journal.uajy.ac.id/361/3/2MIH01442.pdf
30
IX/MPR/2001, Jakarta: Universitas Trisakti, page 43. Urip Santoso, Ibid, hlm. 79.
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The state does not have authority to sell or mortgage the civil law (BW) called agrarische Eigendom and authorization
land. The problem of agrarian arises when HMN authority right becomes the use rights of managing right [37]. ‘Right
confronted with individual property right and communal rights conversion on the land’ is differet to ‘right transition on the
(common land). People who had been there before the State land’. Right conversion on the land related to right types of the
existed, inherent in them living right, economic rights, political land that exist before and after the applicable of agrarian
rights, social and cultural rights, and ecological rights. All legislation of Republic of Indonesia. While the right transition
human rights are recognized in our constitutions UUD 1945 on the land talking about process or procedure the transfer
[31]
. rights on the land from one party to other party [38].
According to legislation: Under basis of the rights to control Property rights (Eigendom) is the highest rights belongs fully
from the State, determined the existence variety of rights on the to a citizen forever and can be handed down to the descendants
earth's surface, called the land, which can be provided to and thereafter, one of the causes of this right is the highest rights is
owned by people either alone or jointly with others, as well as permanent in character and certainly without the limit of time
law entity. The words ‘either alone or jointly with other set it out, in beginning of the emergence of this right the
persons and law entities,’ shows that in conception of National position of state itself becomes marginalized as the ruler of
Land Law, those lands can be controlled and used individually people's livelihood. While for other rights according to agrarian
and no necessity to control and use it collectively [32]. legislation of Republic of Indonesia has limit of time, and their
The private nature of individual right refer to the authority of land is controlled by State, the ‘State land’. For those former
the right holder to use the relevant land for benefit and in holders of land rights are given opportunity to be able to apply
fulfilling private needs and his family. The provisions of law for rights on the land of their former right as long as not used
states that every Indonesia citizen both men and women have for public interest or if it is not occupied by community at large
[39]
equal opportunities to obtain the rights over the land as well as .
to obtain benefits and the results both for themselves and their Broadly speaking, rights conversion of on the land are divided
families. The words ‘for benefit and the results both to into three types, namely:
themselves and their families’ shows personal nature of the a) Rights conversion on the land derived from the western
rights on the land in the conception of National Land Law [33]. lands
b) Rights conversion on the land derived from the former land
b) Conversion of eigendom verponding land to be property of Indonesian rights;
right c) Rights conversion on the land derived from the former land
Eigendom verponding land status applied at the time of of self-government [40].
Netherland Indiess’ Agrarian Law after the enactment of
agrarian legislation must be converted into property right c) Right to control of the state (HMN)
through land registration is the duty of government and Right to control of the state, as set out in legislation that earth,
landowners. water, and space, including natural resources contained in it at
The provisions concerning the rights on the land under the highest level is controlled by the state, as organization of all
Netherland legislation called Eigendom, no longer valid since people; Rights to control of the state in agrarian laws governed
the enactment of national agrarian legislation. In order to give its authority as follows, that is for [41]:
provide legal certainty and clarity to the Eigendom right holder, a) Arranging and conducting allocation, use, supply and
it was made the provisions of conversion. With the provision of maintenance of earth, water, and outer space;
the conversion, the Eigendom rights as individual or group b) Determining and regulating legal relations between people
property rights on the land converted into property right with with earth, water, and outer space.
almost similar ownership power. The provisions of conversion c) Determining and regulating legal relations between people
is that the Eigendom rights on the existing land at beginning and legal acts concerning with earth, water, and outer
into force of the Laws of the Republic of Indonesia, that since space;
at the time become property right, unless who has the right is The state authority are sourced in the rights to control of the
not eligible [34]. state according to provisions of law should be used to attain the
The word 'conversion' is derived from Latin convertera means greatest welfare of people, in sense of nationality, prosperity,
reverse or change name with giving new name or new and freedom in society and an independent Indonesia laws
properties so that have new content and meaning [35]. What is state, sovereignnity, just and prosperous. It is determined also
meant by conversion of land rights is change in old land rights that the rights to control of the state above its implementation
into new land rights according to agrarian legislation [36]. Long can be delegated to autonomous regions and customary law
time before the agrarian legislation of Republic of Indonesia societies, merely required and does not contrary to national
has already known the term of land rights conversion, as in the interest, according to the existing provisions.
case of indigenous property rights into the right subject to west
37
Pankga Hasibuan, O Cit,
31 38
Bernard Limbong (2014) Opinion of Agrarian Policy, Jakarta: Pustaka Wibowo Tunardy, Op Cit.
39
Margaretha, First Printing, June 2014 page 90. Agung Ibrahim Hasibuan, Asisten Urusan Hukum dan Agraria, Bagian
32
Boedi Harsono, Op Cit, hlm. 223- 224. Umum BUMN, Sejarah dan Terbitnya Hak Milik Atas Tanah, Sub Portal
33
Ibid. BUMN,25 September 2014,
34
Jun Junaedyng, OpCit. http://www.bumn.go.id/ptpn1/berita/477/Sejarah.dan.Terbitnya.Hak.Milik.
35
Pankga Hasibuan (2012) Right on The Land (Conversion in Agrarian),18 Atas.Tanah
40
Mei 2012, http://pankga.blogspot.com/2012/05/hak-atas-tanah-konversi- Agung Ibrahim Hasibuan, Op Cit, hlm. 1.
dalam-agraria.html 41
Boedi Harsono (2007) Indonesia Agrarian Law – History on Formation of
36
H. Ali Achmad Chomzah, Agrarian Law (Indonesia Land Affairs) Volume Agrarian Principal Law, Contenti and Its Implementtion, Volume 1,
1, Jakarta: Prestasi Pusataka, 2004, page.80 in Wibowo Tunardy, Ibid. National Land Law, Penerbit Djambatan,hlm.267-268.
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The right to control of the State (HMN) is term given by who affected by the right revocation of the land
national agrarian law to legal institution and concrete rights. Similarly, the right revocation that occurred one-sided
relationship of law between the State and the Indonesia from government, it should be sought as there has been a
land. The state authority in the land affair sector is the task common will as happens in ordinary purchase [46]. Schenk
delegation of nation [42]. In explanation of law is stated that: states that any directly losses and as result of right revocation
Law Number 5, 1960 on Basic Regulation of Agrarian of the right should be granted reparation. In many cases the
Principals is based on the establishment that in order to resolution of Eigendom Verponding dispute by the government
achieve what is specified in Article 33 paragraph (3) the or even private often ignore compensation to landowner and
Constitution is unnecessary and out of place, that Indonesia this is what makes the occurrence of conflict [47].
nation or the State acting as the land owner. Is more
appropriate if the state, as the organization of power from the 3.4 Agrariaan law in case of Eigendom Verponding land
entire people (nation) acted as the ruling body. The case of Eigendom Verponding land X is the law conflict
The foundation of state to control and regulate the utilization of case of agrarian field, particularly in land, and in general as
land and natural resources which referred to as the right to part of problem or the agrarian conflict. The agrarian conflict is
control of the state (HMN) was guaranteed by constitution. The multidimensional so cannot be seen only as agrarian problem
estuary is the greatest welfare of people. In concept of the or legal aspects alone, but also related to non-legal variables
[48]
integralistic state proposed by R. Supomo in session of . The foundation of national agrarian law is the state basis of
BPUPKI on 31 May 1945, economic development (including Pancasila, constitution1945, and MPR decrees, as well as the
the land) uses ‘state socialism’ system, ie the welfare for all provisions of national agrarian land. There are some sectoral
Indonesian people. HMN orientation is: ‘Earth, water, and laws related to agrarian, ie legislation on forestry; Water
natural resources contained therein shall be controlled by the Resources; Fishery; Management of Coastal Areas and Small
State and used for the greater prosperity of people.’ Therefore Islands; Capital Investment; and Land Procurement for
the purpose of HMN is ‘the greatest prosperity of people of Development for Public Interest.
Republic of Indonesia". The national agrarian law is regarded as umbrella act of all
In its implementation, HMN should have spririt of basic values laws and regulations that governing the agrarian and land
of Pancasila. In implementing HMN Government should affair. But de facto there has been the lack synchronous
rellied on the command of Constitution 1945 that is about between content material of national agrarian legislation and
independence, justice, fairness, equality, and prosperity. In the sectoral laws that arises conflicts of law. The law conflicts of
state context, HMN should trully take note of the two things legislation such as the lack synchronous of contents material of
simultaneously in qualified balance i.e.’ between development law does not only appen between sectoral legislation itself and
interests and basic rights of people (both individual and national agrarian law, but also between sectoral laws itself.49
communal) On the one hand the central amd local government The law conflict of this lack synchronous legislation is one of
have authority to give permission to investor for national main factors the occurrence of disputes and conflicts on the
interest, including for the people prosperity through the agrarian during the time [50].
taxation mechanism, but at the same time Government is The lack synchronous of vertical in terms of legislation its
obliged upholding the rights of people in social, economic, and guidline is restored to the existing legislation, which applies
cultural (customary) sectors [43]. principles of legislation with lower hierarchy was not
applicable when contrary with legislation of higher hierarchy
d) Revocation of right on land (Lex superior derogat legi inferiori). In principle of Legal
Take over of Verponding eigendom land by the government in Studies, the lack harmony between special laws with other
relation to the provisions on revocation of land. The state laws, the other laws that should be excluded accordance to
accordance to the law has right in revocation of right on the legal maxim lex specialis derogat legi generali. Besides the
land44 as follows: that for public interests, including the nation legislation enacted was newer than the similar other laws, then
and State interests as well as common interests of people, the old statute by itself is not valid anymore (Lex posterior derogat
rights on the land may be revoked, by providing adequate legi priori orlex posterior derogat legi anteriori).
compensation and in the ways set by law. The legal force of legislation in accordance to hierarchy as
Thus, the elements of right revocation on the land is as mentioned in its explanation that in this provision what meant
follows: The nation/state interest, common interests of people, by ‘hierarchy’ is leveling any kind of legislation based on the
as part of general interest, therefore, if revoked the rights on principle that lesser legislation must not conflict with higher
the land; must be compensated; worthy; and must already legislation.
regulated by a law [45]. If in the case of Eigendom Verponding land X has been the
In system of national agrarian law we do not recognize the actions of the parties bases its legal foundation in the
existence of land confiscation of person for construction, provisions of an article or clause in legislation, that in fact not
except (confiscation) as a crime. Likewise the confiscation due in synchronous with legislation on agrarian then it is returned
(difference) a person's political views, but all must be with an to the higher legislation basic (Lex superior derogat legi
indemnity, and it is worthy either by government or parties
46
Ibid.
42 47
Ibid, 271. Schenk, 1975, Onteigening, Penerbit Kuwer, page 52 in A. P.
43
Bernard Limbong (2014) Opinion of Agrarian Policy, Jakarta: Pustaka Parlindungan, Ibid, page 4.
48
Margaretha, First Printing, June 2014 Bernard Limbong, Opinion of Agrgarian Policy, Jakarta, Margaretha
44
A.P. Parlindungan, 1993, Revocation and Right Exemption on the Land – A Library, First Printing, Juni 2014 page 3
49
Comparison Study, CV Mandar Maju, Bandung, page.4. Ibid hal 118-119.
45 50
Ibid, page 5 Ibid hal 119.
85
International Journal of Law

inferiori) that is constitution 1945 and MPR . Moreover the c) The Exercicing a right, an activity connecting between
stand of agrarian law is the law that specifically regulate the subject (the holder) with object (what is claimed as a right)
stand of agrarian as umbrella act. If there is disharmony law (the activity roomates connect a subject to an object).
conflict between agrarian legislation and other legislation, d) The bearer of the correlative duty, when the rights attached
the laws must be set aside (lex specialis). Besides the national to someone means against others who do not get this right,
agrarian legislation enacted in 1960, the law of agrarian or land so a struggle to ‘beat’ all the barriers of barrier from other
laws are cannot applicable (Lex posterior derogat legi party.
priori or lex posterior derogat legi anteriori). The claim e) The justification of a right, is question concerning
dispute of eigendom verponding land that has been taken over justification that these something is property of
of the state, in terms of Agrarian Law, Ownership Theory, and person/group (the question of the justification of a right).
Public Service Theory of has been very clear problem that is Therefore, the right must be based on claim toward object
the interest and passion dispute for having land as a high of that right, and it is expected no other party who objected.
economic value wealth. Based on the ownership rights were guaranteed by universal
The property rights of Eigendom Verponding land in agrarian human rights, of course it would have become philosophical
law version of Netherland Indies is mechanically the nasional value in legislations. The question is how far the law
agrarian legislation still recognized as long conducted effectively running among Indonesian society.
conversion of Eigendom Verponding land into ownership right
status through the land registration process. This mechanism if b) Social contract theory in agrarian law perspective
implemented properly will be fulfilled the Property Rights The theory that suitable for the case of Eigendom
aspects, Public Policy Rights, and could avoidance of conflict. Verponding land are taken over by the State, among others in
the study tool of Social Contract Theory, that each person in a
3.5 Solution alternative of apptoach resolution with theories state feeling require each other that occurs the Social Contract.
a) Ownership theory in agrarian law perspective Law is born from the top (officials) or community (living
The property right becomes principle that must be considered law). The laws of society will be associated with society
in resolving the disputes or conflicts of Eigendom agreement or Social Contract. Law was originally born out
Verponding land who has taken over by the State. Of course from value to be maintained (good value) or unwanted value
the right to possess by the State (HMN) for development and (bad value). The value in this case is description of what is
public interests be another principle in the analysis approach desirable, worthy, valuable, which affects social behavior of
and of disputes resolution of Eigendom Verponding land or person who has such a value (Lawang, 1985: 13). To maintain
private land of Netherland Indies period which taken over by and protect something that has that value, community members
the State. gathered to discuss how something of value can be protected
The rights has meaning recognition or claim on something (a and maintained. Furthermore, the society members make a
thing-can be a goods/physical that are tangible, services or deal. These agreements called the ‘social contract’, and it is
knowledge/ information that is non-tangible) that enforceable what called the law, which is a rule or guideline in interactions
or respected by other parties [51]. Theory of the National among society members. In this case the agreement is taken by
Agrarian Law who appreciates physical or juridical ownership some members of society [55].
should be respected. Bromley (1989) defines ownership John Locke began by arguing that human nature is the same
rights as the right to obtain securely the flows of each other. However, different from Hobbes, Locke stated that
income/profit for others respect to the flow of such earnings, human characteristic does not want to meet desires with power
associated with the transaction [52] without regard to other human beings. According to Locke,
Alexandr Opoulou (nd) [53] expressed three basic elements of human in himselves has sense that teach principles that due to
the rights of ownership, namely (i) the exclusivity of rights to being equal and independent human being no need to break and
choose the use of a resource (ii) exclusivity of rights to services ruin the lives of other human beings. Therefore, natural
of a resource and (iii) rights to exchange the resource at conditions to Locke are very different from natural conditions
mutually agreeable terms. according to Hobbes. According to Locke, under natural
While Vincent RJ [54] argued that ‘right’ has five major conditions, there are already setting patterns and natural law
elements, namely: regularly because humans have a mind that can determine what
a) The subject of right, namely the right holder. They more as is right and what is wrong in association between fellow.
individuals, but can also in form of group (family, tribe, Therefore, the natural conditions, caused some people who
company, nation, state, region, culture, perhaps even usually have power, does not ensure full security, there is the
property global) desire one-two parties to impose their will through the power
b) The object of right, what it is a right to, either positive or they have. So just as Hobbes, Locke also describes an attempt
negative as claim on something right. to escape from unsafe condition full towards fully safe
conditions. Humans create artificial conditions (artificial) by
holding Social Contract. Each society member does not fully
51
Property rights in Economic of Institution. Esl.fem.ipb.ac.id/uploads/ surrender all of his rights, but only partially. Between the
media/12. Property_rights_SDA.pdf
52
Property rights,” ibid.
holders (candidate) parties of government and society are not
53
Alexandr Opoulou (nd), Public property and property rights theory, only contractual relationships, but also relationship of mutual
www.Ise.ac.uk/europeanInstitute/reserach/hellenicObservatory/pdf/4th_%2 trust (fiduciary trust).
0Symposium/PAPERS_PPS/LAW_CITIZENSHIP.
54
Vincet RJ. Human Rights and International Relations (Cambridge:
Cambridge University Press, 2001) hal. 8, .mengadatasi Gewirth, Human
55
Rights, p.2 Ibid, hlm 11.
86
International Journal of Law

c) Public policy theory Budi Winarno (2002: 17) defines public policy as hypothesis
The public policy theory has been expressly argued the contains these initial conditions and the consequences were
necessity any public policy conducted by the government is predictable bias. Public policy must be differentiated with
bedefited and has goods impact both to public or society. The another policy forms another policy for example of private
protracted case of land problem is reflection the bad of of policies. [61].
public policy by the governments in agrarian or land affair
problem. 3.6 Review of agrariaan conflict and its resolution effort
The cases land contained in database of BPN RI is old cases The national agricultural law was oriented on the communal
and new cases arise as implications of the old cases. The and individual ownership, so when there is a dispute of
typology is vary although principally the resolution of disputes Eigendom Verponding land taken over by the States, this
through non-litigation is a win-win solution, better known as phenomenon can be approached with the conflict theory where
Alternative Dispute Resolution (ADR) [56]. the parties have their own interests in the conflict. Since the
Public policy as social act of government turned into action government involved in conflict, the government became
thathas implicate to laws when public policy as the minor viewed from the Public Policy Theory aspect where
Government obligation that protected and regulated by government should issue the good policy for people. Another
legislation. James E. Anderson (1970) categorizes the types of theory, the ownership theory existed in this case can be known
public policy as follows: whether or no violation of property rights both on land owned
a) Substantive and Procedural Policies. by individual or Rights to possess of thr State
b) Distributive, Redistributive, and Regulatory Policies. (HMN). According to National Agrarian Law the State has
c) Public Goods and Private Goods Policies HMN with the basic of purpose for the greater prosperity of
The redistributive policy is one policy regarding transfer of people and respect for individual rights and customary
wealth allocation, ownership, or rights. Example: the policy on communal (customary rights and self-government).
land acquisition for public purposes [57]. The public policy by The resolution of disputes in the court often creates new
the Government certainly has implications for the law, since problems. This new problem arises when there is party who do
the policy on the land is governed by legislation of not accept the result of court verdict that won one of the
agrarian/land sector.Carl J Federick as quoted Leo Agustino parties. Other problems arise, i.e. when the same dispute object
(2008: 7) defines policy as a series actions/activities proposed to different judicial institutions. Often found the land dispute
by a person, group or government in particular environment submitted to General Courts (PU) and Administrative Court
where there are obstacles (difficulties) and opportunities (PTUN) are different, therefore it can cause new problems in
toward proposals implementation of these policies in order to the resolution of land dispute. The resolution of disputes
achieve certain goals [58] Irfan Islamy as quoted Suandi (2010: through non-litigation is the resolution of dispute which is
12) policies must be distinguished by wisdom. Policy is being developed today. The resolution of disputes through non-
translated to different policies tantamount to wisdomyang litigation or known better as Alternative Dispute
means wisdom. Definition of discretion requires consideration Resolution (ADR) is regulated in Law Number 9, 1999
of further consideration, while the policy includes the existing on Arbitration and Alternative Dispute Resolution. The
rules within it. James E Anderson was quoted by Islamy (2009: resolution mechanism of dispute in this way is classified as
17) reveals that policy is a series of actions that have a specific non-litigation resolution which directed to a single agreement
purpose followed and implemented by an actor or group of as a win-win solution [62].
actors to solve particular problem [59].
The scope of public policy study is very broad because it 4. Closing
covers various fields and sectors such as economic, political, In many cases on disputes of Eigendom Verponding land are
social, cultural, legal, and so on. Besides, views from its taken over by state, the legality process of land rights status
hierarchic the public policy is national, regional maupun local become principal base the occurrence a conflict of Eigendom
such as laws, government regulations, a presidential decree, a Verponding land that caused among others not completion of
ministerial regulation, local government regulations /province, land registration process in Indonesia by government or by
governor decision, rules of district/city, and decision of regent/ land owner itself. As exemplified by Lucas (1997), Stanley
mayor [60]. (1999), Hafid (2001) and his colleagues in which mentioned
Easton gives definition of public policy as the authoritative that state apparatus is often taking over forcibly the land from
allocation of values for the whole society or as value allocation the hands of people so-called development projects. Although
by force to all community. Laswell and Kaplan also defines taking over was based on legislation the abolition of private
public policy as a projected program of goals, values, and lands, but there is not occur the process of providing adequate
practice or something attainment of program objectives, values compensation as specified in the provisions of national agrarian
in the practices targeted. Pressman and Widavsky as quoted laws. Here there is occurs a law conflict one another.
In accordance with the Legal Pluralism Theory, the status of
56
Denico Doly, Penyelesaian Sengketa Tanah Melalui Alternative Dispute land in Indonesia during Netherland colonial period governed
Resoluton (ADR), Info Singkat Hukum, Vol. VI. No. by two laws, namely customary law and western law
01/I/P3DI/Januari/2014.
http://berkas.dpr.go.id/pengkajian/files/info_singkat/Info%20Singkat-VI-1-
(Netherland Indies Colonial Act). Even in the internal of
I-P3DI-Januari-2014-39.pdf
57 61
http://bookerchon.blogspot.com/2013/05/pengertian-jenis-jenis-dan- Ibid.
62
tingkat.html Denico Doly, Resolution on Land Dispute Through Alternative Dispute
58
http://eprints.uny.ac.id/8530/3/BAB%202%20-%2007401241045.pdf Resoluton (ADR), Short Info of Law, Vol. VI. No. 01/I/P3DI/Januari/2014.
59
Ibid. http://berkas.dpr.go.id/pengkajian/ files/info _singkat/Info%20Singkat-VI-
60
Ibid. 1-I-P3DI-Januari-2014-39.pdf
87
International Journal of Law

national agrarian law is often occurs conflict one another, both

related to material side of law or disagreement in the
interpretation of legislation.

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