JUSTICE VALUES FOR PROVISION OF COMPENSATION IN LAND PROCUREMENT FOR PUBLIC INTERESTWahyu Prawesthi 1, M. Khoidin 1, Slamet Suhartono 1, Sri Setyadji 1 1 Faculty of Law, Universitas 17 Agustus 1945 Surabaya, Indonesia |
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Received 9 November 2021 Accepted 19 December 2021 Published 31 January 2022 Corresponding Author Wahyu
Prawesthi, wahyuprawesthi20@gmail.com DOI 10.29121/granthaalayah.v10.i1.2022.4472 Funding:
This
research received no specific grant from any funding agency in the public,
commercial, or not-for-profit sectors. Copyright:
© 2022
The Author(s). This is an open access article distributed under the terms of
the Creative Commons Attribution License, which permits unrestricted use, distribution,
and reproduction in any medium, provided the original author and source are
credited. |
ABSTRACT |
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Motivation/Background: The legal
problems found in providing compensation in land acquisition for the public
interest are vague norms in the interests of justice and feasibility. The
legislation on land acquisition has not explained the provision of
compensation fairly and adequately. Method: This research
uses normative legal analysis. Results: This includes that the perspective of
fairness in compensation for land acquisition is essentially still characterized
by pragmatic development programs and conditions for compensation that the
government has determined. Conclusions: This shows that
the provision of compensation must refer to the theory of justice, the idea
of practicality and the theory of legal certainty to realize the nature of a
prosperous legal state based on Indonesian Socialism and Pancasila. |
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Keywords: Justice,
Compensation, Land Acquisition 1. INTRODUCTION Proper land use can
provide benefits, one of which is in the tourism industry Riyadi et al. (2019) and impact on
economic stability Warjiyati et al.
(2020). The land is one
of the most vital sources of life for humans, one of the functions of land is
used to live with the establishment of a house as a place to live Lubis (2019).Other types of
land ownership include Eigendom, which means "permanent ownership,"
and verbonding, a tax bill on land. Therefore, Eigendom is a solid right of
ownership. The term "verbonding" refers to a letter tax bill on
land ownership. The type of land rights known as property rights is the most
powerful. The law will no longer protect other land rights and these types of
property rights if it doesn't have certificate evidence Iskandar (2019). The term
"property rights" stems from the Dutch word "Eigendom,"
while "ownership" is used in the Dutch language Anatami (2017). According to
Simanjuntak, property rights are the right to enjoy the use of an object and
act freely. Against the thing with complete sovereignty, as long as it does
not contradict general laws or regulations enacted by a competent body
determine it. Furthermore, they do not infringe on other people's rights Simanjuntak (2015). Assessors assessed the
compensation value of the land field by field. Recommendation, in
compensation discussions, as much consensus as feasible should be obtained Subekti (2016). |
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The
implementation of compensation in land acquisition activities is carried out
based on the provisions of the applicable laws and regulations. However, in
practice, despite changing several rules and regulations, there are still some
obstacles faced by the government. This requires legal considerations or legal
aspects that can be formulated into the background of the problem in terms of
philosophical and juridical aspects, including theoretical and sociological
factors.
As the
organization's vision and objective, it is critical to bargain in an equal
manner in order to win the common good Fensi (2018). Law Number 5 of 1960 concerning
Basic Regulations on Agrarian Principles mandates that all land is for the sake
of guaranteeing legal certainty over land. The Ministry of Agrarian Affairs and
National Spatial Planning was noted to organize registrations throughout
Indonesia to carry out this mandate. However, only ± 48 million plots of land
were recorded out of a total of ± 130 million parcels throughout Indonesia,
which can potentially cause land problems Chandra (2020). There is a lack of clarity in the
meaning of the provisions of the Basic Agrarian Law Number 5 of 1960 in Article
18 as the basis for land acquisition in Indonesia regarding the feasibility of
providing compensation, which in essence will guarantee the Indonesian people
regarding land rights against possible revocation of rights, but bound by
conditions, for example, must be accompanied by the provision of appropriate
compensation. Furthermore, by referring to the provisions of Article 18 of Law
Number 5 of 1960, namely Law Number 20 of 1961 concerning Revocation of Land
Rights and Objects On It, regarding the nature of justice in the provisions of
Article 9 of the law, it is not explained clearly, until the enactment of the
provisions of Article 1 number (10) of Law Number 2 of 2012 concerning Land
Procurement for Development in the Public Interest which states that
"compensation is a fair and proper compensation to the entitled
party". Including the ambiguity of the meaning contained in the principle
of justice by providing an understanding that the focus of justice
"provides a guarantee of proper compensation to the party entitled to the
land acquisition process" based on the provisions of Article 2 letter (b)
of Law Number 2 of 2012 concerning Land Acquisition. For Development for Public
Interest.
Furthermore,
it can be found that the legal problems encountered in the provision of
compensation in land acquisition for the public interest are vague norms in the
interests of justice and feasibility. The legislation on land acquisition has
not explained the provision of compensation fairly and adequately. This
includes that the values of fairness in the condition of
compensation for land acquisition are essentially still characterized by
pragmatic development programs and requirements for compensation that have been
determined by the government Lestari (2020). This shows that the provision of
compensation must refer to the theory of justice, the idea of practicality and
the theory of legal certainty to realize the nature of a prosperous legal state
based on Indonesian Socialism and Pancasila.
Therefore,
the expropriation of land by the state for the implementation of land
acquisition for development for the public interest on lands controlled by
citizens or the people must not be carried out arbitrarily, especially in terms
of compensation for losses that still guarantees the recognition and respect
for land rights Sari (2018), Goldie
(2018), Utami (2019) . This includes the freedom of
others and fulfilling just demands following considerations of morals,
religious values, security, and public order in a democratic society and
balancing the importance of benefit in such development. Therefore,
the essential thing in this research is related to the values of
justice in the provision of compensation.
Theoretically,
justice is the essence of the law. Everyone must obtain this justice without
exception. Therefore, law enforcement institutions' duty and responsibility are
to create justice Yanto (2020). Satjipto Rahardjo considers that:
“The
justice referred to by Roscoe Pound can be seen in the concrete results that
can be given to the community. The result should be formulating human needs as
much as possible with the smallest sacrifice. Justice is an absolute element of
its existence in a legal order, while about the social order, justice is
defined as an ideal relationship between humans.” Rahardjo (2000).
Perceptions
in certain circles are also influenced by the quality of community opinion Wang and Hu (2020). It is necessary to find a clear
explanation regarding the provision of compensation for land acquisition based
on the values of justice. Therefore, in connection with the
rationale above, this study analyses legal issues and finds out about the
Values of Justice for Compensation in Land Procurement for the
Public Interest.
2. MATERIALS AND METHODS
This
research uses normative legal analysis. The goal of legal research methodology
is to follow the thought path of legal research methodology, which may be
classified into two categories: jurisprudential and sociological models. It
will be easier to define the background of problems, problem formulation,
problem objectives, research authenticity, research advantages, legal theories
to be employed, conceptual framework, research methodology, systematics of
writing, and literature review of the research by using legal research Arliman (2018), Efendi and Ibrahim
(2018), Benuf and Azhar (2020) .
Based on the opinion of Lasswell McDougal in his book Edgar Bodenheimer,
the identification of the characteristics of normative legal theory, namely Bodenheimer (1974):
1) Provide a theoretical
basis for the application of legal norms that are described and prescribed by
normative legal science
2) Legal norms are the
focus of the study as well as the focus of normative science studies, including
normative legal research methods.
3) The point of view of
the establishment of legal theorists is from the point of view of internal
norms (form the within) which are mandatory (the ought), but sometimes they
also see external phenomena of norms in the application of law as feedback to
perfect their internal point of view; and
4) Public authorities in
the form of executive, legislative and judicial institutions are very important
in forming, recognizing, and enforcing the law so that the law can function as
a control tool in the distribution of all resources and the protection of human
rights as the main target of social policy or protection of human dignity is regarded
as a paramount objective of social policy.
Furthermore, it is analysed based on the doctrinal principles of legal
theories, especially on the nature of justice and the concepts of national
agrarian law. Based on this interpretation, it is to interpret the provisions
of land acquisition, especially in the fairness of giving compensation. And it
can be concluded and formulate arrangements for the provision of compensation
in land acquisition based on the values of justice.
3. RESULTS AND DISCUSSIONS
The purpose of
the law, according to Subekti, is that "the law is related to
self-devotion to the goals of the state contained in its essence is to be able
to bring prosperity and be able to bring happiness to its people" Shomad and Thalib (2020).
It served a
country's goals by establishing justice and order, with the basic requirements
to bring happiness and prosperity.
The
meaning of justice is analysed in the theory of legal objectives. According to
the description above, the meaning of justice is justice as a law with the
understanding that there is no partiality, properly, not arbitrary Nasution (2011). So, justice is defined as a fair
attitude or action. According to English literature, the term justice is called
justice. The root word is just which means law or rights. From the meaning of
justice as law, the importance of justice as lawfulness develops, namely legitimacy
according to the law.
In a
broader sense, another definition attached to justice is fairness, which is
commensurate with the meaning of worthy or feasibility. The characteristic of
fairness in the sense of excellent or appropriate can be seen from the terms
used in legal science. For example, in the principle of fair play, which is one
of the general principles of good governance, a fair wage is defined as a
decent wage that is often found in labour law. The same thing is stated in
Aristotle's concept of justice, which he calls fairness in human action, which
means that justice is appropriateness in human activity Nasution (2011).
About
the theory of justice, the implementation of land acquisition for the public
interest is contained in the provisions of the applicable laws and regulations
or those that are no longer enforced, requiring proper compensation to the
holders of land rights. The compensation is the right of the holder of land
rights/people, which must be carried out by the government/land acquisition
organizer as the party who needs the land. This follows the natural rights of
humans as individual landowners. This happens because individual property
rights to land arise based on human will that occurs in changes in society as
interpreted by Aristotle's opinion, which emphasizes the form of justice in
balance or proportion.
Aristotle's
views and opinions that:
Everything
must be directed to noble ideals in the state, namely goodness and goodness
that must be seen through justice and truth. The emphasis on balance or
proportion in this theory of justice can be seen that the equality of rights
must be the same among the same people. On the one hand, it is indeed said that
justice also means unequal rights. So, the theory of justice is based on the
principle of equality Nasution (2011).
According
to the modern version, the theory is formulated with the expression that
justice is carried out if the same things are treated equally, and unequal
things are treated unequally. According to Aristotle, it is also regarded as
fair if everyone receives their right proportionally, implying that
distributive justice is concerned with determining ownership and a fair
distribution of rights in public interactions with the state. In the sense that
the state should provide to its citizens to determine rights and distribute
those rights fairly.
The
rights granted can be in the form of undivided goods, such as mutual benefit,
for example, protection, public facilities, both administrative and physical
and various other rights, which members of the community can enjoy without
disturbing the rights of others. In addition, divided goods are rights or
objects that can be determined and given to meet individual needs for citizens
and their families, as long as the state can provide everything that its
citizens need pretty or fairly. In other words, where there is distributive justice,
the situation will approach the so-called state of achieving social justice for
the community Ismail (1993) .
Justice
as equality is marked by the principles of rationality, freedom, and equality.
In this case, principles that prioritize rights over the direction of benefits are
needed. It is in this connection that John Rawls put forward two principles of
justice, as follows:
The
first principle holds that each person is entitled to the most extensive system
of basic liberties compatible with a similar approach for everyone else. the
second principle holds that social and economic inequalities are just only in
so far as they work to the advantage of the least advantaged people in society Rawls (1971).
According
to this viewpoint, the law, as one of the fundamental elements of society,
should be based on two principles: first, the principle of equal rights (the
greatest equal principle), which states that everyone should have equal access
to wealth, income, food, protection, authority, power, dignity, rights, and
freedom. Second, the principle of difference (the different principle) and
equality of opportunity (the principle of fair equality of opportunity). The
focus of distinction (the other direction) is expected to provide the most
significant benefit or benefit for the least fortunate. Meanwhile, the
principle of fair equality of opportunity is intended to provide equal
opportunities for everyone (including those who are least convenient) to
achieve the prospect of prosperity, income, and authority Tanya et al. (2010) .
John
Rawls gives instructions on how to implement each of these ideas. The principle
of equal rights (the greatest equal principle) should take precedence above
equality of opportunity and diversity (the different directions and the
principle of fair equality of opportunity). In the meantime, the fair equality
of opportunity principle must take precedence over other principles Tanya et al. (2010). Suppose we pay attention to
several cases regarding procurement, especially regarding compensation which
tends to harm land rights holders. Juridical, the land acquisition law
regulates what is meant by compensation. First, the compensated losses are only
physical losses such as land, space above ground and underground buildings, and
plants, objects related to land as stated in Article 33 of Law Number 2 of
2012. Meanwhile, non-physical losses are other losses that can be assessed,
namely non-physical losses that can be equated with the value of money, such as
losses due to loss of business or work, costs of moving places, and costs of
changing professions the value of the residual property. Second, the basis for
calculating the amount of compensation for land is not based on the actual
price or market price but based on the determination of an appraiser and
appointed by the land agency by assessing the object of land acquisition as
stated in the provisions of Article 31 paragraph (1) and paragraph (2) of the
Law Number 2 of 2012.
The
provision of compensation for land acquisition for the public interest only
emphasizes physical compensation, namely the loss of land, buildings and
plants, moreover the value of the land released is not the same as the actual
value or market value, this is contrary to the value of justice as stated by
According to Aristotle, the judge is giving everyone something that is their
due, and is not following corrective justice which requires adequate
compensation for the injured party or in other words compensation repairs the
loss, and does not otherwise make people worse or poorer than before. This is
what happened in the provision of compensation for the implementation of land
acquisition. It is not compensation that is their right but a proper and fair
compensation based on the basic principle of balance. According to Sudjarwo
Marsoem, namely "providing compensation for losses suffered by the old
owner in an economic (financial) position that is at least the same as before
the development project was held." Adi and Manoppo (2015).
This
is what is meant by the provisions of Article 1 paragraph (2) and number (10),
which are further described in Article 9 paragraph (1) and paragraph (2), in
the implementation of land acquisition for the public interest. The balance
between development and community interests is taken into account, and the
parties are compensated appropriately and fairly. The contents of the article,
which state about fair and suitable recompense both philosophically and
legally, are unclear. If this is related to the balance between development and
the community's interests, compensation must also be balanced. But this is not
done by the government or agencies that require land rights for development.
On the
other hand, based on the provisions of laws and regulations, starting from the
revocation of land rights, land acquisition to land acquisition for the public
interest, and in practice, the implementation seems to adhere to or be
influenced by utilitarianism. It is evident from the legislation's provisions
that the principle of benefit takes precedence over the idea of rights. Parties
affected by the revocation of land rights, land acquisition, or land
acquisition for the public interest are individuals or groups of people who are
asked to sacrifice for the public good. Individual rights must be subordinate
to the needs of society. So, it is not surprising if the compensated losses are
only physical losses such as land, buildings, and plants, while non-physical
losses are not considered. Likewise, the basis of calculations based not on
actual prices or market prices shows the influence of utilitarianism which
ignores individual rights and considers satisfaction in terms of material
satisfaction which can be calculated mathematically.
According
to John Rawls, an adequate theory of justice must be established with an
agreement between the two parties. The jointly chosen standards of fairness are
the outcome of a mutual agreement between all free, rational, and equal
parties. The deal is always indicated as the foundation for deciding the site
of the development plan, the type of compensation, and the amount of
compensation in in-laws and regulations covering property acquisition for
development in the public interest. Even in Law Number 2 of 2012 Article 2, it
is stated that the basis for land acquisition for growth for the public
interest is a trilogy of legal objectives theory which is described in the
principle of justice, the focus of benefit and the direction of certainty.
According to the provisions of this law, what is meant by the principle of
justice is that in providing guarantees of proper compensation to parties who
are entitled in the land acquisition process so that they get the opportunity
to be able to carry out a better life. This includes the principle of
expediency, namely the result of land acquisition that can provide broad
benefits for the community, nation, and state. While the focus of certainty,
namely providing legal assurance of the availability of land in the process of
land acquisition for development and providing guarantees to parties entitled
to receive appropriate compensation.
This
Law Number 2 of 2012 does not provide further explanation regarding appropriate
compensation based on the principles of justice, benefit, and certainty
regarding the amount of compensation, including other problems related to land
acquisition activities based on voluntarism and equality between the parties
who own the land, buildings, plants, and other objects related to land, with
parties who need land. Based on the purpose of land acquisition for the public
interest, namely, to improve the welfare and prosperity of the nation, state
and society while still guaranteeing the legal interests of the entitled
parties following the provisions of Article 3 of Law Number 2 of 2012.
Suppose
we pay attention to the understanding of justice, the principle of expediency
and justice as mentioned above. In that case, some elements are at the core of
that understanding. First, there must be no element of coercion to obtain
mutual justice, and secondly, based on voluntarism and equality between the
parties. This includes looking at the benefits received when the party gives
compensation relinquishes his rights to the government or agency that needs the
land. Not only the benefits used for development purposes can be enjoyed by all
development users. Furthermore, in this case, the feasibility is appropriate
for the user of the development but not suitable for the original party who
controls the land rights.
The
meaning of the laws and regulations regarding land acquisition for the public
interest is stated in addition to the agreement, and justice is the basis for
implementing compensation. Still, it is necessary to pay attention to if the
parties or one of the parties are in a free, rational, and equal state, as
stated by John Rawls. Inland acquisition for the public interest, it is
difficult to say that the party who owns or controls the land is free and
equal. The party that owns or manages the ground is not in an accessible
position when the agreement is made. This position is also affected by the
injustice in the deal.
Suppose
there is no agreement because of injustice in the definition of the
compensation after going through a legal process to the court, and the owner or
landowner refuses. In that case, the compensation is deposited in court.
Likewise, it is difficult to say that the party who owns the land or who
controls the land is in an equal position or equal to the government because
even though legally the parties' situation is similar, psychologically, they
are in a weak place. So that what happens is that it is not an agreement for
compensation that is obtained. Still, the holders of land rights are forced to
consult or accept the decisions of the authorities/committees or are even
forced to agree to get the compensation that harms the party holding the land
rights.
Therefore,
in the acquisition of land for the public interest, people may be asked to
sacrifice for the sake of the public interest. Still, according to John Rawls,
it cannot be justified that sacrifices are requested from less fortunate people
(in this case, the party holding land rights). Indeed, there are always those
who benefit more and those who benefit less. At the same time, the values
of justice in land acquisition for the public interest, which are
manifested in providing appropriate compensation to parties entitled to
compensation, are closely related to the benefits felt by all Indonesian
people, especially for parties entitled to compensation.
Justice
in the provision of appropriate compensation for the implementation of land
acquisition in Indonesia must be following the values of justice
in Pancasila, among others, formulated in the principles of just and civilized
humanity, which was first described in the Decree of the People's Consultative
Assembly Number II/MPR/1978. then it was revoked by Decree of the People's
Consultative Assembly Number XVIII/MPR/1988. In this formulation, fairness is
described as dignity, equality, mutual love, appropriate attitude, not
arbitrary, has human values, defends truth and justice and respects respect and
cooperation with other nations. Meanwhile, the meaning of fairness in the
principles of social justice for all Indonesian people is cooperation, a balance
between rights and obligations, having social functions of property rights and
living a simple life. Furthermore, referring to the formulation above, the
perspective of justice according to the view of the Indonesian people is social
justice. Based on this view, Indonesian people respect each other, care about
the environment, and take care of their interests with the moral awareness of
Pancasila, which gives recognition and respect to common interests in a
balanced way, while respecting individual rights, especially in ownership
rights that have been passed down from generation to generation in a balanced
way for justice.
4. CONCLUSIONS AND RECOMMENDATIONS
The
essence of what is needed in the provision of fair and proper compensation is
the essence of justice based on balanced justice values, namely justice that
prioritizes the balance of interests and needs of each party, both holders of
land rights, whose rights are needed for development for the public interest by
The government or agency that needs land for this purpose is also based on the
values of Indonesian socialism which are contained in just and
civilized human values and social justice for all Indonesian
people which are contained in Pancasila.
ACKNOWLEDGEMENTS
People who contributed to the work but do not fit criteria for authorship should be listed in the Acknowledgments, along with their contributions. It is advised that authors ensure that anyone named in the acknowledgments agrees to being so named. Funding sources that have supported the work should also be cited.
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