KEPASTIAN HUKUM PENERBITAN SERTIFIKAT HAK KOMUNAL SEBAGAI PELAKSANAAN REFORMA AGRARIA

THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY Widhiana H. Puri Phd Student at Law Fakulty of Gadjah Mada University and Lecture in National Land Academy, Indonesia. Email [email protected] Research Highlights Land reform is a state effort to overcome the imbalance of land tenure in the community (Wiradi, 2000 # 1). Customary law in the Javanese community recognizes the existence of a mechanism of welfare distribution through the ownership and joint use of land in community togetherness bonds based on territorial factors as well as the concept of land reform. The existence of customary land as pekulen land is land owned by the village whose use rights can be requested by the villagers with a rotating utilization mechanism among the villagers in need (Luthfi, 2010 # 2). The study found that indigenous peoples in Java had a welfare distribution mechanism that was the essence of land reform or agrarian reform through a mechanism of land communalization and distribution of its use carried out on a shared land / communal land of the village in rotation. Research Objectives This research was conducted in order to understand the phenomena of the implementation of law that developed in the community. The existence of community law or so-called non state law, informal law, or customary law in Indonesia is very numerous. The reality of this law is that the majority is still far from the attention and order of a positive and formal state legal arrangement. The community regulation model is an effort to meet the needs of its legal ideals in the midst of limited state positive law arrangements that tend to be more static and less responsive (Puri, 2017 # 16). The community regulation mechanism is a manifestation of unity in the village community where the distribution of land use is carried out among community members who have a concept in line with the national agrarian policy of the country called land reform. The regulatory model initiated from the local level becomes the learning material for how the land regulation mechanism is not always top down, but can be bottom up based on customary law that is proven effective and in accordance with the characteristics of the local community. Methodology This research was carried out through an empirical legal research model with research locations in villages in Pituruh Subdistrict, Purworejo Regency, Central Java Province. This research is a kind of analytical descriptive research that is directed to get an idea of â€‹â€‹how the implementation of Javanese traditions in land management has a concept similar to land reform or agrarian reform. In order to analyze existing traditions, a socio-legal approach is carried out, namely a study of the law using the approach of law and social sciences in order to analyze it (Irianto, 2012 # 17). The legal approach referred to is not only to see aspects of norms that are built on the provisions of customary law alone but by looking at their relevance to the regulation of the positive law of the country as the territory of the enactment of the community regulation. This is to see the common thread and the interrelationship between the two and avoid the release of the phenomenon of legal pluralism that is within the scope of national law. So that the legal norms of the community can be assessed as the model of regulation that can be applied in other regions. Results Javanese people in Indonesia have a land regulation mechanism that has a concept similar to that of land reform or agrarian reform by the state. The customary law of the Javanese community has a common bond based on territorial factors or similarity in the area of â€‹â€‹residence (Taneko, 2002 # 11). Customary law communities with their customary rights can own and control land both in the concept of individual property rights and communal / communal property rights. The concept of shared property / communal rights illustrates the existence of ownership rights by all members of the community embodied in village control (Susanto, 1983 # 18). One form of joint ownership is the right of possession which can be controlled by community members with the permission of the village government to be used for the benefit of themselves and their families with a rotating mechanism. At present, land is experiencing strengthening and individualization, but the character of togetherness and social function of land is maintained through the distribution of utilization rights of speculative land which has the status of individual property rights, in village settings. Findings Land reform or agrarian reform is a land policy that aims to overcome the imbalance of land tenure through the distribution of land to people in need. Land reform or agrarian reform can be extended not only to the concept of distribution of land ownership but also to the control and use of land. The limitations of the number of land parcels and the need for land can be overcome through a model of tenure and shared use of land based on the concept of joint property / communal rights over land.

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A New Era of Customary Property Rights? – Liberia’s Land and Forest Legislation in Light of the Indigenous Right to Self-Determination

Verfassung in Recht und Übersee ◽

10.5771/0506-7286-2019-4-439 ◽

2019 ◽

Vol 52 (4) ◽

pp. 439-462

Author(s):

Ricarda Rösch

Keyword(s):

Property Rights ◽

Land Tenure ◽

Land Rights ◽

Self Determination ◽

Sub Saharan Africa ◽

Starting Point ◽

Sub Saharan ◽

Forest Legislation ◽

Customary Land ◽

The Right

After the end of Liberia’s civil war in 2003, the country embarked upon the reform of its forest and land legislation. This culminated in the adoption of the 2009 Community Rights Law with Respect to Forest Lands and the 2018 Land Rights Act, which NGOs and donors have described as being amongst the most progressive laws in sub-Saharan Africa with regard to the recognition of customary land tenure. Given these actors commitment to human rights, this article takes the indigenous right to self-determination as a starting point for analysing customary property rights and their implementation in Liberia. This includes the examination of the Liberian concept of the 1) recognition and nature of customary land rights, 2) customary ownership of natural resources, 3) jurisdiction over customary land, 4) the prohibition of forcible removal, and 5) the right to free, prior and informed consent.

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The Politics of Property Rights

American Political Science Review ◽

10.2307/2082514 ◽

1995 ◽

Vol 89 (4) ◽

pp. 867-881 ◽

Cited By ~ 32

Author(s):

Kathryn Firmin-Sellers

Keyword(s):

Property Rights ◽

Land Tenure ◽

Political Institutions ◽

Land Reform ◽

Local Community ◽

Private Property ◽

Fundamental Problem ◽

Theoretical Argument ◽

Private Property Rights ◽

Customary Land

The study of land tenure polarizes the field of development. Neoclassical scholars lobby for a move toward private property rights, while other economists and historians defend the maintenance of customary land tenure. I argue that the development scholars' focus on the structure of property rights obscures a more fundamental problem of land reform—that of enforcement. Property rights will not inspire individual investment and economic growth unless political institutions give the ruler of a local community or nation-state sufficient coercive authority to silence those who advocate an alternative, more distributionally favorable property rights system. At the same time, political institutions must force the ruler to establish a credible commitment to that property rights system. I illustrate this theoretical argument through an analysis of property rights institutions in Akyem Abuakwa, a traditional state in colonial Ghana.

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Woodlots and Customary Land Tenure: An Emerging Property Rights and Profitability Dilemma

Environment Science and Policy for Sustainable Development ◽

10.1080/00139157.2016.1112170 ◽

2015 ◽

Vol 58 (1) ◽

pp. 38-47

Author(s):

Olivia Muza

Keyword(s):

Property Rights ◽

Land Tenure ◽

Customary Land

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Struggles of Women to Access and Hold Landuse and Other Land Property Rights under the Customary Tenure System in Peri-Urban Communal Areas of Zimbabwe

Land ◽

10.3390/land10060649 ◽

2021 ◽

Vol 10 (6) ◽

pp. 649

Author(s):

Emaculate Ingwani

Keyword(s):

Property Rights ◽

Land Tenure ◽

Social Systems ◽

Urban Context ◽

Tenure System ◽

Communal Area ◽

Land Tenure System ◽

Communal Areas ◽

Customary Land ◽

Land Property Rights

The struggles of women to access and hold landuse and other land property rights under the customary tenure system in peri-urban communal areas is increasingly becoming a cause for concern. These debates are revealed using a case study of a peri-urban communal area called Domboshava in Zimbabwe. Women living in this peri-urban communal area struggle to access and hold landuse and other land property rights registered under their names. The aim of this paper is to present an analysis of the struggles faced by women to access and hold landuse and other land property rights in Domboshava. This paper is a product of a literature review on land property rights, land tenure systems, and peri-urbanity more generally. Field data was intermittently collected in the peri-urban communal area of Domboshava over a period of four years from 2011 to 2014, as well as through post-research social visits stretching to 2019. Thirty-two women were conveniently selected and interviewed. I applied Anthony Giddens’ structure-agency theory as a framework of analysis. The struggles to access and hold landuse and other land property rights by women are rooted in land transactions, social systems including the customary land tenure, patriarchy, as well as the peri-urban context of Domboshava. Responsible authorities on land administration in communal areas need to acknowledge the existence of new and invented ways of accessing and holding landuse and land property rights under the customary land tenure system, as well as to find ways to mobilize more opportunities for women on the peri-urban land market.

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Decolonising Conservation Policy: How Colonial Land and Conservation Ideologies Persist and Perpetuate Indigenous Injustices at the Expense of the Environment

Land ◽

10.3390/land9030065 ◽

2020 ◽

Vol 9 (3) ◽

pp. 65 ◽

Cited By ~ 3

Author(s):

Lara Domínguez ◽

Colin Luoma

Keyword(s):

Indigenous Peoples ◽

Land Tenure ◽

Indigenous Communities ◽

Conservation Policy ◽

Land Ownership ◽

Environmental Costs ◽

Planetary Boundaries ◽

Sustainable Solutions ◽

Conservation Policies ◽

Customary Land

The livelihoods of indigenous peoples, custodians of the world’s forests since time immemorial, were eroded as colonial powers claimed de jure control over their ancestral lands. The continuation of European land regimes in Africa and Asia meant that the withdrawal of colonial powers did not bring about a return to customary land tenure. Further, the growth in environmentalism has been interpreted by some as entailing conservation ahead of people. While this may be justifiable in view of devastating anthropocentric breaching of planetary boundaries, continued support for “fortress” style conservation inflicts real harm on indigenous communities and overlooks sustainable solutions to deepening climate crises. In reflecting on this issue from the perspective of colonial land tenure systems, this article highlights how ideas—the importance of individualised land ownership, cultivation, and fortress conservation—are intellectually flawed. Prevailing conservation policies, made possible by global non-governmental organisations (NGOs) and statutory donors, continue to harm indigenous peoples and their traditional territories. Drawing from the authors’ experience representing the Batwa (DRC), the Ogiek and Endorois (Kenya) and Adivasis (India) in international litigation, this paper examines the human and environmental costs associated with modern conservation approaches through this colonial lens. This article concludes by reflecting on approaches that respect environmental and human rights.

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Status Kepemilikan Hak Atas Tanah Adat Marga dalam Kebijakan Penataan Aset Reforma Agraria Di Kabupaten Maluku Tenggara

SASI ◽

10.47268/sasi.v26i1.246 ◽

2020 ◽

Vol 26 (1) ◽

pp. 99

Author(s):

Ronald Saija ◽

Fransiscus X. V. R Letsoin ◽

Rory Jeff Akyuwen ◽

Pieter Radjawane

Keyword(s):

Indigenous Peoples ◽

Agrarian Reform ◽

Conceptual Approach ◽

Reform Policy ◽

The Subject ◽

The Republic ◽

Customary Land ◽

The Right ◽

Water Space

Promulgation of Law Number 5 of 1960, brought its own consequences in terms of regulation of agrarian resources, including earth, water, space and natural resources contained therein. The ideals of the law in the realization of the objectives of the national agrarian law are realized in the form of the Agrarian Reform policy which is one of the ideals in the administration of President Joko Widodo. This policy was stated in the Decree of the People's Consultative Assembly of the Republic of Indonesia Number IX / MPR / 2001 concerning Agrarian Reform and Natural Resource Management and followed up with the issuance of Presidential Regulation Number 86 of 2018 concerning Agrarian Reform. The Presidential Regulation regulates the determination of assets in the legalization of agrarian reform land object certificates. However, the problem is that it is feared that disputes and agrarian conflicts will arise in the right of recognition of the existence of communal rights for indigenous and tribal peoples explicitly mentioned in Ministerial Regulation ATR / Ka.BPN Number 10 of 2016, which seems to be no longer recognized by indigenous peoples in Indonesia. This paper is a legal research that uses the method of the statutory approach and conceptual approach that examines the recognition and use of customary land by using the norms contained in legislation. The results of this paper are directed to be able to provide clarity of legalization of customary community land as well as communal rights of indigenous and tribal peoples related to the issuance of Presidential Regulation Number 86 of 2018 which does not expressly state the position of indigenous peoples as the subject of policy arrangement on Agrarian Reform assets, so that the rights owned by marga indigenous and tribal peoples can be fought for.

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The THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY

Asia Proceedings of Social Sciences ◽

10.31580/apss.v4i3.646 ◽

2019 ◽

Vol 4 (3) ◽

pp. 99-101

Author(s):

Widhiana Hestining Puri

Keyword(s):

Property Rights ◽

Land Tenure ◽

Land Reform ◽

Agrarian Reform ◽

Customary Law ◽

Regulation Mechanism ◽

Individual Property ◽

Positive Law ◽

Community Regulation ◽

The Village

THE CONCEPT OF THE LAND REFORM IN CUSTOMARY LAW OF THE JAVANESE COMMUNITY Widhiana H. Puri Phd Student at Law Fakulty of Gadjah Mada University and Lecture in National Land Academy, Indonesia. Email [email protected] Research Highlights Land reform is a state effort to overcome the imbalance of land tenure in the community (Wiradi, 2000 # 1). Customary law in the Javanese community recognizes the existence of a mechanism of welfare distribution through the ownership and joint use of land in community togetherness bonds based on territorial factors as well as the concept of land reform. The existence of customary land as pekulen land is land owned by the village whose use rights can be requested by the villagers with a rotating utilization mechanism among the villagers in need (Luthfi, 2010 # 2). The study found that indigenous peoples in Java had a welfare distribution mechanism that was the essence of land reform or agrarian reform through a mechanism of land communalization and distribution of its use carried out on a shared land / communal land of the village in rotation. Research Objectives This research was conducted in order to understand the phenomena of the implementation of law that developed in the community. The existence of community law or so-called non state law, informal law, or customary law in Indonesia is very numerous. The reality of this law is that the majority is still far from the attention and order of a positive and formal state legal arrangement. The community regulation model is an effort to meet the needs of its legal ideals in the midst of limited state positive law arrangements that tend to be more static and less responsive (Puri, 2017 # 16). The community regulation mechanism is a manifestation of unity in the village community where the distribution of land use is carried out among community members who have a concept in line with the national agrarian policy of the country called land reform. The regulatory model initiated from the local level becomes the learning material for how the land regulation mechanism is not always top down, but can be bottom up based on customary law that is proven effective and in accordance with the characteristics of the local community. Methodology This research was carried out through an empirical legal research model with research locations in villages in Pituruh Subdistrict, Purworejo Regency, Central Java Province. This research is a kind of analytical descriptive research that is directed to get an idea of â€‹â€‹how the implementation of Javanese traditions in land management has a concept similar to land reform or agrarian reform. In order to analyze existing traditions, a socio-legal approach is carried out, namely a study of the law using the approach of law and social sciences in order to analyze it (Irianto, 2012 # 17). The legal approach referred to is not only to see aspects of norms that are built on the provisions of customary law alone but by looking at their relevance to the regulation of the positive law of the country as the territory of the enactment of the community regulation. This is to see the common thread and the interrelationship between the two and avoid the release of the phenomenon of legal pluralism that is within the scope of national law. So that the legal norms of the community can be assessed as the model of regulation that can be applied in other regions. Results Javanese people in Indonesia have a land regulation mechanism that has a concept similar to that of land reform or agrarian reform by the state. The customary law of the Javanese community has a common bond based on territorial factors or similarity in the area of â€‹â€‹residence (Taneko, 2002 # 11). Customary law communities with their customary rights can own and control land both in the concept of individual property rights and communal / communal property rights. The concept of shared property / communal rights illustrates the existence of ownership rights by all members of the community embodied in village control (Susanto, 1983 # 18). One form of joint ownership is the right of possession which can be controlled by community members with the permission of the village government to be used for the benefit of themselves and their families with a rotating mechanism. At present, land is experiencing strengthening and individualization, but the character of togetherness and social function of land is maintained through the distribution of utilization rights of speculative land which has the status of individual property rights, in village settings. Findings Land reform or agrarian reform is a land policy that aims to overcome the imbalance of land tenure through the distribution of land to people in need. Land reform or agrarian reform can be extended not only to the concept of distribution of land ownership but also to the control and use of land. The limitations of the number of land parcels and the need for land can be overcome through a model of tenure and shared use of land based on the concept of joint property / communal rights over land.

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PELUANG PENERAPAN FPIC SEBAGAI INSTRUMEN HUKUM PROGRESIF UNTUK MELINDUNGI HAK MASYARAKAT ADAT DALAM KEGIATAN USAHA MINYAK DAN GAS BUMI

Jurnal Hukum Lingkungan Indonesia ◽

10.38011/jhli.v1i2.15 ◽

2014 ◽

Vol 1 (2) ◽

pp. 50-85

Author(s):

Nisa Istiqomah Nidasari

Keyword(s):

Informed Consent ◽

Indigenous Peoples ◽

Oil And Gas ◽

Oil And Gas Industry ◽

Legal Certainty ◽

Gas Industry ◽

Oil Companies ◽

Land Clearing ◽

Social License ◽

Customary Land

AbstrakPengadaan tanah untuk kegiatan industri minyak dan gas bumi merupakan kegiatan strategis yang diprioritaskan negara atas nama ‘kepentingan umum’. Tidak jarang, pengadaan tersebut merampas hak tenurial masyarakat adat demi menyediakan lahan bagi perusahaan untuk melakukan eksplorasi dan eksploitasi. Padahal fungsi tanah bagi masyarakat adat tidak hanya sebagai tempat tinggal saja, tetapi juga sebagai tempat peribadatan, sumber mata pencaharian serta bagian dari budaya dan warisan leluhur yang harus dipertahankan dan dilestarikan. Hak masyarakat adat terhadap tanah ulayat juga dilindungi oleh berbagai instrumen hukum nasional dan internasional.Salah satu prosedur yang dapat memberikan perlindungan terhadap hak-hak fundamental masyarakat adat adalah FPIC (Free, Prior and Informed Consent) atau PADIATAPA (Persetujuan Atas Dasar Informasi Awal Tanpa Paksaan). Secara khusus, tulisan ini bertujuan untuk menjawab pokok permasalahan sebagai berikut: Pertama, mengapa FPIC dapat menjadi instrumen hukum progresif untuk melindungi hak-hak masyarakat adat dalam kegiatan usaha migas? Kedua, bagaimana FPIC dapat meningkatkan kepastian hukum bagi investasi di sektor migas? Ketiga, bagaimana strategi untuk menerapkan FPIC dalam kebijakan pengadaan tanah untuk industri migas di Indonesia? AbstractLand clearing for oil and gas industry is deemed as a strategic activity that is prioritized in the name of ‘Public Interest’. In many cases, such land clearing confiscated the land tenure of indigenous peoples to give space for oil companies conducting exploration and exploitation. This is unacceptable for indigenous peoples because not only they often depend on their customary land for their livelihoods and residence, but also because it has strong cultural and often spiritual significance. The rights of indigenous peoples over their customary land is protected under national and international legal frameworks.One of the procedure that shall gives a protection over the fundamental rights of Indigenous Peoples is FPIC (Free and Prior Informed Consent). In the business perspective, FPIC will increase the legal certainty for invesment as it provides the companies with social license to extract. Specifically, this paper will address the following questions: First, how FPIC could be a progressive legal instrument to protect Indigenous Peoples rights in the activity of oil and gas? Second, how FPIC could increase the legal certainty for investment in oil and gas industry? Third, what are the strategies to apply FPIC in the land clearing policy for oil and gas industry in Indonesia?

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Implementasi Kebijakan Agraria dan Ketimpangan Penguasaan Lahan (Kasus Lahan Eks HGU di Desa Cipeuteuy, Kecamatan Kabandungan, Kabupaten Sukabumi, Provinsi Jawa Barat)

Jurnal Sains Komunikasi dan Pengembangan Masyarakat [JSKPM] ◽

10.29244/jskpm.v4i6.728 ◽

2020 ◽

Vol 4 (6) ◽

pp. 731

Author(s):

Muhammad Febri Ramdani

Keyword(s):

Policy Implementation ◽

Land Tenure ◽

Quantitative Method ◽

Qualitative Data ◽

Agrarian Reform ◽

Purposive Sampling ◽

Reform Agenda ◽

Agrarian Policy ◽

Strong Relation ◽

The Government

ABSTRAKMUHAMAD FEBRI RAMDANI. Implementasi Kebijakan Agraria dan Ketimpangan Penguasaan Lahan (Kasus Lahan Eks HGU di Desa Cipeuteuy, Kecamatan Kabandungan, Kabupaten Sukabumi, Provinsi Jawa Barat). Dibimbing oleh MARTUA SIHALOHO.Redistribusi lahan yang dilakukan oleh pemerintah sebuah upaya implementasi kebijakan agraria. Kebijakan agraria tersebut berupa asset reform (penataan aset) eks lahan perkebunan dengan skema legalisasi aset berwujud sertifikasi bidang lahan. Namun dalam pelaksanannya pemerintah mengklaim bahwa kebijakan tersebut merupakan agenda reforma agraria. Atas dasar klaim tersebut, penting untuk meninjau access reform (penataan akses) bekerja, karena pada hakikatnya reforma agraria merupakan asset reform (penataan aset) dan access reform (penataan akses) yang berjalan beriringan, dengan bertujuan untuk menata ketimpangan penguasaan lahan agar terwujudnya keadilan agraria (agrarian justice). Penelitian ini dilakukan dengan metode kuantitatif yang didukung kualitatif dengan pendekatan sensus. Metode yang digunakan untuk menentukan responden ialah purposive sampling dengan teknik non probability sampling. Pengolahan data menggunakan uji statistik rank spearman untuk melihat hubungan variabel. Hasil penelitian yang diperoleh menunjukan bahwa tingkat asset reform berada pada kategori rendah. Hasil uji statistik menunjukan bahwa asset reform berhubungan dengan access reform dan asset reform berhubungan dengan ketimpangan penguasaan lahan.Kata kunci: access reform, asset reform, keadilan agraria, reforma agrariaABSTRACTMUHAMAD FEBRI RAMDANI. Implementation of Agrarian Policy and Land Tenure Inequality (Case of Ex-HGU Land in Cipeuteuy Village, Kabandungan District, Sukabumi Regency, West Java Province). Supervised by MARTUA SIHALOHO.Land redistribution has been done by government as an effort of agrarian policy implementation. The policy came in form of asset reform of ex-plantation land with asset legalization scheme (land-part certification). But the government claimed that this policy is one of the agrarian reform agenda. It is important to observe how this access reform works, because agrarian and access reform can’t be separated one another, with purpose to reduce the inequality of land tenure so that the agrarian justice can be reach. This research used quantitative method supported by qualitative data, using the census approachment. Purposive sampling with non probabilty sampling used to specify the respondent. The data processed by rank spearman statistic test to analyze the relation between variable. This research shows a low level of asset reform. The statistic test shows that the low asset reform have a strong relation to low access reform, and high inequality of land tenure.Key words: access reform, agrarian justice, agrarian reform, asset reform

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