scholarly journals Interpretation of The Legal Values and Justice in The Living Law Related To Court Decision

2021 ◽  
Vol 4 (1) ◽  
pp. 13-22
Author(s):  
Ismail Rumadan
Keyword(s):  
Transition Process ◽  
Formal Proof ◽  
Customary Law ◽  
Modern World ◽  
Community Based ◽  
Legal Norms ◽  
Proof Of Ownership ◽  
Customary Land ◽  
The Right ◽  
Practical Level

The performance of judges in deciding on a legal dispute that is faced is a work process looking for legal norms both in the legislation and legal norms that live in the community. Based on the results of the above studies it can be concluded that; at the practical level there are two approach models used by judges to examine and adjudicate a civil case related to the values and rules of customary law in society, namely an evolutionist approach which holds the view that indigenous peoples are a community with barriers in the process of integration into the modern world, so that this transition process must be guarded through legal procedures. This view has an effect on the pattern of approaches used in dealing with a case related to customary issues and norms living in the community, this approach in view of the formalistic legal approach influenced by the possibility of legism-positivism, so that in some cases the disputed adat the right to customary land in Papu the judge always put forward formal proof of ownership of letters explaining proof of ownership of a plot of land, so that many customary civil cases must be rejected by the Court because the Plaintiff or the defendant can not prove formally proof of ownership over the disputed land.  

scholarly journals PERANAN PENGHULU TERHADAP HAK ULAYAT DI MINANGKABAU

2020 ◽  
Vol 6 (1) ◽  
pp. 161
Author(s):  
Eviandi Ibrahim
Keyword(s):  
Property Rights ◽  
Customary Law ◽  
Community Based ◽  
Application Of Law ◽  
Customary Rights ◽  
Conducting Research ◽  
Customary Land ◽  
The Right ◽  
Day By Day

Sumatra in general and Banuhampu District in particular the existence of customary rights is decreasing day by day both in terms of quantity and quality. The reduced existence of customary rights is because the customary rights have been traded by the legal community, in the case that Minangkabau customary law prohibits the sale and purchase of customary rights, this is stated in the customary kato "Jua indak eaten by bali, pawning indak eaten sando" means that ulayat rights can not be traded and transferred ownership to parties outside the legal community fellowship. Based on the above, the authors are interested in conducting research with the following problems: How are customary rights in Banuhampu District? What is the role of the leader / Pangatuo of the tribe / clan or the head of the inheritance of the ulayat rights in Banuhampu? What is the solution taken to defend the existence of customary rights in Banuhampu District? This research is juridical-social, because the researcher will examine how the application of law, namely customary law, in the development of the existence of customary rights among the Banuhampu community. Based on the discussion that the author puts forward, the following conclusions can be drawn: Whereas Customary Land (Ulayat) Currently its existence in Banuhampum can still be maintained. Even though it's been much less. This can be proven that until now the Legal Alliance in the Customary Law Community, namely Nagari, Tribe, Kaum, are still alive and existent, and each Legal Alliance still has customary rights although both in terms of quantity and quality have decreased. Whereas Ninik mamak / Penghulu / Pangatuo Suku / Kaum is a person who plays a very big role in the midst of his community / association, because ninik mamak has the right and obligation to take care of his children and nephews along with their communal customary rights, and has the obligation to preserve their customary rights. Whereas the customary rights must be maintained, because the ulayat rights are the identity of the association and the ulayat rights are not property rights, therefore the ulayat rights are prohibited from being transferred or sold.

scholarly journals Eksistensi Hak Ulayat Pasca Berlakunya Peraturan Menteri Agraria Nomor 18 Tahun 2019

Notaire ◽  
2021 ◽  
Vol 4 (3) ◽  
pp. 489
Author(s):  
Wimba Roofi Hutama
Keyword(s):  
Spatial Planning ◽  
Management Control ◽  
Legal Issues ◽  
Customary Law ◽  
Legal Norms ◽  
Customary Rights ◽  
The Republic ◽  
Customary Land ◽  
Binding Power ◽  
Land Community

The Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency of the Republic of Indonesia recently issued Ministerial Regulation of ATR No. 18 of 2019 concerning Procedures for Administration of Customary Land Community Units of Customary Law. However, the reality is that until now there are still ulayat lands of customary law community units whose management, control and use are based on local customary law provisions and are recognized by the members of the customary law community unit concerned. The research uses normative research, namely normative juridical research, namely research based on applicable laws and legal norms and has binding power to answer the legal issues faced. The results obtained are that the characteristics of customary rights of customary law communities, that customary rights to land are controlled by customary law communities, namely people who live in groups, hereditary based on ties of origin/ancestor or similarity of residence, have the same culture, live in a certain area, have customary property that is jointly owned, have customary institutions containing sanctions, as long as they are still alive according to developments and do not conflict with national law.Keywords: Existence; Customary Rights; Minister of Agrarian Regulation.Menteri Agraria Dan Tata Ruang/Kepala Badan Pertanahan Nasional Republik Indonesia baru-baru ini menerbitkan Permen ATR No. 18 Tahun 2019 Tentang Tata Cara Penatausahaan Tanah Ulayat Kesatuan Masyarakat Hukum Adat. Namun kenyataannya hingga kini masih terdapat tanah ulayat kesatuan masyarakat hukum adat yang pengurusan, penguasaan dan penggunaannya didasarkan pada ketentuan hukum adat setempat dan diakui oleh para warga kesatuan masyarakat hukum adat yang bersangkutan”. Penelitian dengan menggunakan penelitian normatif, yaitu penelitian yuridis normatif, yaitu penelitian didasarkan peraturan perundang-undangan atau norma-norma hukum yang berlaku dan mempunyai kekuatan mengikat guna manjawab isu hukum yang dihadapi. Diperoleh hasil bahwa Karakteristik hak ulayat masyarakat hukum adat, bahwa hak ulayat atas tanah tersebut dikuasai oleh masyarakat hukum adat, yakni masyarakat yang hidup berkelompok, turun menurun berdasarkan ikatan asal usul/leluhur atau kesamaan tempat tinggal, berbudaya sama, hidup dalam satu wilayah tertentu, memiliki harta benda adat milik bersama, mempunyai pranata adat mengandung sanksi, sepanjang masih hidup sesuai perkembangan dan tidak bertentangan dengan hukum nasional.Kata Kunci: Eksistensi; Hak Ulayat; Peraturan Menteri Agraria.

scholarly journals The Registration Of “Ulayat”’ Land In West Sumatra: Between The Legal Certainty And The Social Justice

Jurnal Akta ◽  
2018 ◽  
Vol 5 (3) ◽  
pp. 585
Author(s):  
A. Yoma Amanda Putri ◽  
Djauhari Djauhari
Keyword(s):  
Social Justice ◽  
Customary Law ◽  
Legal Certainty ◽  
Land Registration ◽  
The Social ◽  
West Sumatra ◽  
Customary Rights ◽  
The Creation ◽  
Customary Land ◽  
The Right

Ulayat land House of communal rights is a member of the House, as a fellowship of customary law. The purpose of the arrangement of Ulayat Land is to protect the customary land and take the benefits for survival in some generations and uninterrupted between the members of the House with its territory. Conceptually, this is related to a social justice. While the purpose of the registration of land, according to the article 19 BAL is to guarantee the legal certainty over land. The implementation of Customary Land or Ulayat Land Registration was preceded by the creation of the base rights. The making of the pedestal of this right in the form of a waiver of physical mastery of plots of land (Sporadic). Before the creation of the pedestal of this right was preceded by the creation of Ranji by Ninik Mamak, which was passed by the House. The writing Empirical Juridical approach, was supported by empirical juridical approach. Empirical juridical approach was done by collecting all the materials and data obtained from the field-related to the problems are examined. Registration of the customary (Ulayat) rights of the House is done by applying to the Head Office of land district/city. The filing listed on behalf of or Mamak Head Heirs using a waiver of physical mastery of parcels of the land that are signed by the Mamak Head Chiefs as Heir. The statement must be approved by the head of the tribe or Tribal King and Chairman of custom Density Nagari and known by Lurah/village chief concerned by attaching a document containing the names of the members of the House of at least three generations created by Mamak Chief Heir and known by the ruler of the tribe and the leader of the RIGHT. The registration of Customary House was expected to guarantee legal certainty for members of the House as a fellowship of customary law, because it is aimed at maintaining Customary Rights for indigenous Justice. Therefore, the customary land register of House in conceptional in touch with the land registry purposes, i.e. to guarantee legal certainty while also embodying a sense of Justice for indigenous citizens (members of the House). Keywords: Social Justice; Legal Certainty; The Registration of Ulayat Land.

scholarly journals Penyelesaian Sengketa Tanah Pekarangan Desa di Desa Adat Sulahan Kecamatan Susut Kabupaten Bangli

2020 ◽  
Vol 1 (2) ◽  
pp. 78-83
Author(s):  
I Putu Ade Surya ◽  
I Made Suwitra ◽  
I Ketut Sukadana
Keyword(s):  
Human Life ◽  
Economic Value ◽  
Customary Law ◽  
Legal Research ◽  
Land Dispute ◽  
Land Disputes ◽  
Close Relationship ◽  
The Law ◽  
Customary Land ◽  
The Right

Land in human life has a very important role because it is a source of welfare, prosperity and life. In addition, land has a close relationship with humans because land has economic value for human life and can produce natural resources for many people. There are 2 (two) rights to land in customary law, namely the right to land controlled by individuals and the right to land controlled by customary law communities or customary land. Based on this, the formulation of the problem can be taken as follows: (1) How is the existence of the village yard land in the awig-awig of Sulahan Traditional Village, Susut District, Bangli Regency? (2) How is the settlement of a village yard land dispute case in the Sulahan Traditional Village, Susut District, Bangli Regency? The research method used is empirical legal research, namely legal research which functions to see the law in a real sense and to examine how the law works in society. The approach to the problem used is in the form of a sociology of law approach, which is a legal research that examines legal facts that exist in society. The results showed that the settlement of village yard land disputes in the Sulahan Traditional Village was usually resolved by kinship with Bendesa Adat acting as the mediator. Mediation carried out by Prajuru of Sulahan Traditional Village in resolving village yard land disputes that occurred in Sulahan Traditional Village was carried out at Pura Desa Sulahan. The purpose of the mediation was carried out at the Sulahan Village Temple because of its strategic location. Before conducting mediation, the Prajuru Desa Adat and the disputing parties will hold a prayer first so that the mediation can run smoothly so that there are no disputes.

scholarly journals Perjanjian Sewa Menyewa Tanah Adat di Desa Serangan Denpasar Selatan

2020 ◽  
Vol 1 (1) ◽  
pp. 145-150
Author(s):  
I Putu Elvin Mahendra ◽  
I Made Suwitra ◽  
I Ketut Sukadana
Keyword(s):  
Empirical Method ◽  
Judicial Process ◽  
Legal Norms ◽  
Social Law ◽  
Positive Law ◽  
Customary Rights ◽  
Customary Land ◽  
The Right ◽  
The Village ◽  
Lease Agreement

The position of the Customary Village as a customary legal alliance, has the authority and obligation to control, regulate and manage all the land belonging to the Customary Village within the Customary Village area as customary rights. In entering into an agreement to lease customary land with another party, Desa Adat has the right to land in terms of granting permits based on agreements made by both parties. Agreements that have been agreed should be accountable so as not to lead to defaults in the future. The method used in this research is the empirical method, by reviewing the statutory procedures that apply in making lease agreements for customary land and using a sociological problem approach to social law relating to legal norms both in legislation and in awig-awig. In PERDA Number 4 of 2019 concerning Customary Villages in Bali regulates the duties and authority of the Customary Villagers in maintaining the economy of the village, so that they are authorized to carry out legal actions (agreements) especially lease agreements for customary land provided they have fulfilled the requirements of the shah. An agreement can be regulated in article 1320 Civil Code. Whereas regarding the application of sanctions for parties who defaulted in the lease agreement on customary land, it was given to those who violated the agreement based on the agreement of the village paruman. Where the sanctions can be resolved based on positive law in Indonesia, namely through the judicial process.

scholarly journals One Boat, Two Captains: Implications of the 2020 Samoan Land and Titles Court Reforms for Customary Law and Human Rights

2021 ◽  
Vol 52 (3) ◽  
pp. 507-540
Author(s):  
Craig Land
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Critical Evaluation ◽  
Customary Law ◽  
Court System ◽  
Legal Norms ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Customary Land ◽  
Court Of Appeal

Samoa's 2020 Land and Titles Court reforms, which contributed to the Human Rights Protection Party losing support at the April 2021 elections after almost 40 years of government, have recentred attention on the tensions of legal pluralism in the South Pacific. Although Samoa maintains a system of English common law, 81 per cent of Samoan land falls under the traditional matai titles system, giving a central role to the customary Land and Titles Court (LTC). In December 2020, the Samoan parliament passed three Acts – the Constitution Amendment Act 2020, the Land and Titles Act 2020 and the Judicature Act 2020 – establishing the LTC in a parallel court hierarchy with equivalent status to the Samoan Supreme Court and Court of Appeal. This proposal has prompted debate between those favouring incorporation and promotion of Samoan custom over Western legal norms, and others who argue the amendments undermine human rights protections and the rule of law. This article evaluates the effects of these changes on the role and administration of custom in Samoa, contextualising them within broader socio-legal debates around customary legal systems. It first analyses the effect of the three Acts with regard to the bifurcation of the court system, procedural reforms in the LTC hierarchy and the introduction of a judicial guidance clause. This leads into a critical evaluation of these changes, highlighting impacts upon judicial coherence; constitutional human rights; consistency between customary and common law procedures; and resourcing constraints. The article concludes by providing broad options for future reform. It does not focus on issues which have received attention elsewhere, such as the amendments' potential impacts on judicial independence.

scholarly journals Kepemilikan Tanah Adat Suatu Kajian Pada Masyarakat Hukum Adat Tidore (Studi Kasus di Kelurahan Folarora, Kecamatan Tidore, Kota Tidore Kepulauan)

2020 ◽  
Vol 2 (1) ◽  
pp. 42
Author(s):  
Nurizka Arlina
Keyword(s):  
Central Area ◽  
Formal Proof ◽  
Customary Law ◽  
Primary Data ◽  
The Status ◽  
Long Time ◽  
The Government ◽  
Customary Land ◽  
Control And Management ◽  
Ownership Rights

Territorial unity (land) as one of the elements froming a customary law community, is one of the important elements related to certain regulations in terms of ownership, control and management as well as the process of transfering. This often creates problems, such as what happened on Tidore Island as the central area of the Tidore Sultanate. Hale Gimalaha, which was the land given by the  holder of GimalahaTomayouin the Government Structure of Tidore Sultanate, turned out to be a certificate of ownership by one of the GimalahaTomayou. The status of customary land which is converted into ownership rights will be the mainfocus of this research. The method used is socio-legal research using primary data through in-depth interviews with competent parties and the community in Folarora Village, Tidore District, Tidore Islands City, as well as historical and sociological descriptions. So it can be concluded that the main obstacle if problems arise with regard to customary land lies in evidence. Customary land ownership in the Tidore customary law community generally doesn’t have a written (formal) proof of ownership. Communities in obtaining ownership rights over customary land in accordance with applicable customary rules and based on information from simo-simo. The problem with the Hale Gimalaha, thatGimalahaTomayoumade a certificate of ownership, so there is an alternative solution through the Imperial Court Institution or internal root by GimalahaTomayou. These problems lasted for a long time and occurred among the generations of GimalahaTomayou, eventually reluctance to resolve the conflict because people believed a magical imbalance would arise when the problems that had first returned to the surface.

scholarly journals MEMAHAMI PERTALIAN DESA PAKRAMAN DI BALI DENGAN KARANG AYAHAN SEBAGAI BAGIAN DARI PALEMAHAN BERDASARKAN KONSEP TRI HITA KARANA

2018 ◽  
Vol 3 (2) ◽  
pp. 125-140
Author(s):  
Made Oka Cahyadi Wiguna
Keyword(s):  
Social Life ◽  
Customary Law ◽  
Place Of Residence ◽  
Indigenous Law ◽  
Village People ◽  
Customary Land ◽  
The Right

Desa Pakraman in Bali is included in the category of territorial customary law community and at the same time religious customary law community. On that basis, it should be understood that actually desa pakraman has autonomy in regulating the order of life and social life of its members. The existence of desa pakraman in Bali is very much needed for its members, as an institution that has the authority to regulate the life arrangements of indigenous law communities, including regulating, management, designation, maintenance and preservation of karang ayahan as the customary land of desa pakraman. The existence of karang ayahan is very dependent on the existence of a desa pakraman. Mastery of karang ayahan by krama desa who has the right, is used as a place of residence or other interests with the obligation to pay attention to certain general provisions set by desa pakraman in awig-awig and perarem. Besides that, the karang ayahan is also an integral part of the territory or wewengkon of a desa pakraman. For village people, the area is an important part of sovereignty from a desa pakraman that must be maintained.   Keywords: the existence of desa pakraman, the function of the karang ayahan  

scholarly journals PROCUREMENT OF ULAYAT LAND FOR SUBSIDED HOUSING DEVELOPMENT IN HARAU DISTRICT LIMA PULUH KOTA REGENCY

2021 ◽  
Vol 7 (1) ◽  
pp. 121
Author(s):  
Inggir Deviandari ◽  
Kurnia Warman ◽  
Zefrizal Nurdin
Keyword(s):  
Limited Liability ◽  
Subsidized Housing ◽  
Customary Law ◽  
Land Acquisition ◽  
Land Registration ◽  
Communal Land ◽  
The Status ◽  
The Law ◽  
Customary Land ◽  
The Right

Ulayat rights are the rights that owned by a legal alliance, where the citizens of the community have the right to control the land. The Regional Regulation of West Sumatra Province, Article 2 paragraph (1) Number 6 of 2008 concerning Communal Land and Its Utilization states that the main principle of customary land is permanent based on the Minangkabau traditional philosophy “jua ndak makan bali, gadai ndak makan sando” (shall not bargaining; may not be pawned). The provisions of the regulation state that ulayat land may not be traded and may not be pawned, its ownership status may not change, except for importunate situation and condition, namely maik tabujua dalam rumah (for the death of family member), gadih gadang ndak balaki (wedding), rumah gadang katirisan (misfortune), mambangkik Batang tarandam (efforts to enforce). Land acquisition for the construction of subsidized housing is not a land acquisition according to Law Number 2 of 2012 concerning Land Procurement for Public Interest. The formulation of the problems discussed are first, the process of acquiring communal land for the construction of subsidized housing in Harau District, Lima Puluh Kota Regency, secondly the land registration process after the acquisition of customary land occurs, thirdly the legal consequences of acquiring customary land used for the construction of subsidized housing in Harau District, Lima Regency. Dozens of Cities againts customary law communities. This study uses an empirical juridical approach with the aim of finding out whether the law in the book is in accordance with the law in action. The results of the research study indicate that the process of acquiring communal land for the construction of subsidized housing is carried out by buying and selling. The construction of subsidized housing is managed by a legal entity in the form of a Limited Liability Company. The status of land ownership is just as the user of the facility that called with Hak Guna Bangunan

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

2017 ◽  
pp. 67-86
Author(s):  
Arkadiusz Krajewski
Keyword(s):  
Civil Rights ◽  
Social Factor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Humanitarian Principle ◽  
The Right ◽  
Social Importance

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

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