legal strength certificate of ownership of land in … · muhammad rizal* *postgraduate program...

International Journal of Humanities, Religion and Social Science ISSN : 2548-5725 | Volume 2, Issue 10, October 2018 www.doarj.org

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LEGAL STRENGTH CERTIFICATE OF OWNERSHIP OF

LAND IN FOREST AREAS

(STUDY IN CENTRAL LOMBOK DISTRICT)

Muhammad Rizal*

*Postgraduate program Legal Study and Notaries, Mataram University, Indonesia

Email correspondence: [email protected]

Abstract: At present there are often legal issues that do not have legal certainty, one of

which we can see in the problems that occur in the area of the Marejebonga forest area. The

beginning of this problem arises when the Marejebonga forest area is designated as a forest

area based on the Ministry of Forestry Decree Number SK 3100/Menhut-VII/KUH/2014. So

that the consequences are not allowed to have individual ownership rights in the

Marejebonga forest area. However, after the establishment of the Marejebonga forest area,

there were several land ownership certificates listed on behalf of the community in the

Marejebonga forest area. The certificate of ownership owned by the community was issued

in 2005 prior to the Decree issued by the Ministry of Forestry.

So that in connection with this matter, the issuance of the certificate of land ownership in

the Marejebonga forest area is legally valid, because: the process of issuing the certificate

is carried out before the Marejebonga forest area is designated as a forest area, determined

by the authorized official, and made in accordance with the procedures determined by the

legislation in force. Whereas the form of legal protection for holders of land title certificates

in the Marejebonga forest area is by issuing land that has been issued a certificate of

ownership from the Marejebonga forest area based on the Decree of the Minister of

Forestry Number: SK. 3100 / Menhut-VII / KUH / 2014 in consideration of deciding on the

third point which reads: in the matter there are still rights of legitimate third parties, in the

determination of this forest area is issued from forest area in accordance with the

legislation. The factors that cause the issuance of certificates in the Marejebonga forest

area are: Because at the time of issuance of the certificate, the Marejebonga forest area has

not been confirmed or designated as a forest area and the application for filing the land

registration has fulfilled the requirements and through the procedures determined by the

legislation invitations in force so that there is no reason for the National Land Agency to

reject the application for issuing the certificate.

Keywords: Validity of certificates, legal protection and forest areas

I. INTRODUCTION

National development is directed towards realizing prosperity and social justice for all

Indonesians, and one element in the implementation of development that cannot be avoided is

the need for land or land. The importance of the meaning of land for human life is because

Legal Strength Certificate of Ownership of Land in Forest Areas

(Study in Central Lombok District)

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human life cannot be separated from the ground at all. They live on land and get food by

utilizing the land. Land or land is a gift from God Almighty that was created for the place

where living creatures lived in their lives. Land is an important aspect of life. This

understanding gives meaning that humans as living things need land or land either used as a

place to live, a place to grow crops, or a place for other businesses, while the available land

supply is very limited. Land is a source of welfare for humans.

Land has a vital meaning for personal, corporate and state. The personal and corporate

scope appears as assets (assets) and factors of production, while within the scope of the

country is added to the national function (sovereignty). The existence of land in the Unitary

State of the Republic of Indonesia is directed to prosperity, prosperity and justice for the

community, so that it needs an arrangement based on legal certainty. This is one of the

consideration factors in issuing Law Number 5 of I960 concerning Basic Regulations on

Agrarian Principles (LN. I960 / I04; TLN No.2043), hereinafter abbreviated as UUPA.

The level of human welfare on the surface of the earth is closely related to the extent

to which humans are able to utilize the quality of the soil continuously. Because of this the

tendency is that everyone tries to control and defend certain parcels of land or land including

seeking ownership rights. Once the importance of land is important to people's lives, in this

case the government is trying to overcome various problems that arise regarding land rights,

by reinforcing legal certainty of their rights and obligations, because the problem is

considered the most strategic problem. This is done to respond to developments in the future,

in order to build a just and prosperous society as envisioned in the 1945 Constitution of the

Republic of Indonesia or in brief with the 1945 Constitution of the Republic of Indonesia.

The BAL is rooted in Article 33 paragraph ( 3) the 1945 Constitution which reads:

“The earth, water and natural resources contained therein are controlled by the State

and used for the greatest prosperity of the people”.

Mastery by the state in the sense of regulating the use of the prosperity of the

community, where in its management can be individual or mutual cooperation. To obtain a

guarantee of legal certainty, then the use, utilization and ownership of land is required for a

written proof explaining an ownership or ownership rights that are owned as the basis of

ownership of the land by a person or commonly referred to as a land title.

The certificate of ownership rights on the land is a proof of ownership on the land, so

that it is a security for the holder and can be used as strong evidence if there is a dispute. In

Government Regulation Number 24 of 1997 concerning Land Registration, it adheres to a

negative publicity system that contains positive elements, because it will produce proof of

rights that apply as a strong evidentiary tool. Government Regulation Number 24 of 1997

concerning Land Registration stipulates that land registration is a series of activities carried

out by the Government on a continuous, continuous and regular basis, including collection,

processing, bookkeeping and presentation and maintenance of physical data and juridical data

in the form of maps and lists, concerning the fields of land and units of flats, including the

granting of proof of their rights to the parcels of land that already have their rights and

ownership rights to units of flats and certain rights which burden them.

At present, there are often legal issues that do not have legal certainty, which raises

concerns for the community because even though they already have a valid certificate, legal

certainty and guarantee of legal protection for their holders are still lacking. This can be seen



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in the problems that occur in the Marejebonga forest area in Central Lombok Regency, West

Nusa Tenggara Province.

The Mareje Bonga Forest Area is an area of 3,300 Ha located in the southern part of

Central Lombok Regency, West Nusa Tenggara Province, which includes 3 (three)

subdistrict areas, namely Southwest Praya District in the West End, West Praya Subdistrict in

the Middle and Pujut Subdistrict in the East End. . Based on the history of the control of

forest areas by the community, the local people have settled and relied on their lives and

managed and utilized the Marejebonga forest products since 1998, but based on the Ministry

of Forestry Decree Number SK 3100 / Menhut-VII / KUH / 2014 has been designated as

Forest area. Even though the government has established Marejebonga Forest as a Forest

Zone which means that there is no individual ownership rights in the Marejebonga forest area

in central Lombok Regency, there are still land ownership certificates that are listed in the

name of the community or ownership of land in the area Marejebonga forest area. The

community ownership certificate was issued in 2005 before the Decree issued by the Ministry

of Forestry. Given the problems that occur in the Marejebonga forest area, of course it will

cause uncertainty regarding legal certainty and legal protection for holders of land ownership

certificates, given that the land title certificate is the strongest proof of ownership. Despite the

issuance of the Regulation with the Minister of Home Affairs of the Republic of Indonesia,

the Minister of Forestry of the Republic of Indonesia, the Minister of Public Works of the

Republic of Indonesia, and the Head of the Republic of Indonesia National Land Agency No.

74 of 2014 as the basis for the holder of land ownership certificate to continue to control the

land.

II. RESULT AND DISCUSSION

2.1 Validity of the Certificate of Ownership of Land in the Marejebonga Forest Area

In Article 1 number (1) of Law Number 41 of 1999 concerning Forestry that, forest is

an ecosystem unit in the form of a stretch of land containing living natural resources

dominated by trees in a natural environment that cannot be separated from each other.

Whereas what is meant by forest area is a certain area designated and or determined by the

government to maintain its existence as a permanent forest.

In West Nusa Tenggara there are several forest areas, one of which is the

Marejebonga forest area. Marejebonga Forest Area is in 2 (two) regions, namely: Central

Lombok Regency and West Lombok Regency. The area of Marejebonga forest area covers an

area of 7995.99 Ha (seven thousand Nine hundred Ninety-five point Ninety Nine hectares)

which is divided into 2518, 34 Ha protected forest area (two thousand five hundred eighteen

point three recovered four hectares and production forest covering an area of 5477.65 Ha

(five thousand four hundred seventy seven point sixty five hectares).

The Marejebonga forest area was designated as a forest area in 2009 based on the

Minister of Forestry Decree Number SK.598 / Menhut II / 2009 On October 2, 2009. And

stipulated (inauguration) as forest area on April 25, 2014 based on the Decree of the Minister

of Forestry of the Republic of Indonesia Number SK .3100 / Menhut-VII / KUH / 2014.1 So

it can be said that to establish (establish) an area into a forest area is not necessarily

1 Interview with Mr. Ir. M. Zaim Sulistyanto as PEH Functional NTB Provincial LHK Office.



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designated as a forest area but there are several stages that must be passed or carried out in

determining an area into a forest area.

Determination of an area into a forest area is regulated in Government Regulation

Number 44 of 2004 concerning Forestry Planning and Forestry Minister's Regulation Number

P.44 / Menhut-II / 2012 concerning the inauguration of Forest Areas, as amended by Forestry

Minister's Regulation Number P .62 / Menhut-II / 2013.2

In relation to the Marejebonga forest area the stages described above have been

carried out in the process of establishing (affirming) the Marejebonga forest area.3 So that the

determination (affirmation) of the Marejebonga forest area is in accordance with the

applicable regulations. But the problem now is that in the area of Marejebonga forest area

that has been determined (confirmed) there is ownership of land rights that have been

registered for land. This is due to the lack of coordination between the Central Lombok

Forestry Service and the Central Lombok National Defense Agency (BPN) Office during the

inauguration process of the Marejebonga forest area so that lands that have been controlled or

owned by third parties enter the Marejebonga forest area.

Land registration is a series of activities carried out by the Government continuously,

continuously and regularly, including: collection, processing, bookkeeping, and presentation

and maintenance of physical data and juridical data in the form of maps and lists of parcels of

land and units of flats , including the granting of proof of rights to the parcels of land that

already have their rights and ownership rights to units of flats and certain rights that burden

them.

The certificate as the final product of land registration has many functions for the

owner, and its function cannot be replaced with other objects. Here are some functions of the

certificate:4

The land title certificate is issued by the National Land Agency, written and signed by

the authorized Agency or Official, so that as a consequence is a decision of the State

Administration (TUN). The certificate of land rights is an act of the government that was

born because of the law and is concrete because it is intended for those listed in the certificate

and does not require the approval of other agencies.5 When viewed from the consequences,

the government's actions in granting land rights certificates are aimed at creating a new legal

situation (rechtscheppend) and also constitutive (constitutieve beschiking) decisions, so that

new legal rights and obligations are born person / legal entity.6

In the Marejebonga forest area there are several locations that have been issued

certificates by the National Land Agency. The type of certificate issued by the National Land

Agency in the Marejebonga forest area is the ownership certificate.7 Property rights are the

hereditary, strongest and most fulfilling rights that can be owned on land given the social

functions that can be transferred and transferred to other parties.8

2 Ibid

3 Interview with Mr. M. Aropi, As Data Collection for Planning and Forest Management Section.

4 Adrian Sutedi, Serifikat Hak Atas Tanah, Jakarta: Sinar Grafika, 2011, P. 57.

5 ibid

6 Irfan Fachruddin, Pengawasan Peradilan Administrasi terhadap TIndakan Pemerintah, Edisi Pertama, Cetakan

Kesatu, Bandung: Alumni, 2004, P 342 7 Interview with Mr. Sulaiman, SH, as Head of Land Handling and Control Affairs.

8 Ali Achmad chomzah, Op.cit, P. 5-6.



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If we look at Law No. 41 of 1999 concerning Forestry, there is no explanation about

the basis for issuing certificates of ownership rights in land in forest areas; only in forestry

law does it hinder its forest functions and status. In Article 5 paragraph (1) it describes forests

based on their status consisting of state forests and rights forests.

2.2 Legal Protection for Holders of Land Rights Certificates in the Mareje Bonga Forest

area

The law is essentially something abstract, but in its manifestations it can be concrete.

A new legal provision can be considered good if the consequences resulting from its

application are good, happiness as much as possible and less suffering.9

In line with this, according to Satjipto Rahardjo, the law must be present to protect

one's interests by allocating a power to him to act in the framework of his interests. This

allocation of power is carried out in a measurable manner, in the sense that the breadth and

depth are determined. Such power is what is called right. But not every power in society can

be called a right but only a certain power which is the reason for the right to be attached to

someone.

Each legal relationship certainly creates rights and obligations, besides that each

member of the community certainly has a different interest relationship and faces each other

or opposites, to reduce tensions and conflicts, then the law that regulates and protects those

interests is called legal protection. Legal protection is an illustration of the functioning of the

legal function to realize legal objectives, namely justice, usefulness and legal certainty.

Indonesia as a welfare state has an interest in regulating legal protection for holders of

land rights certificates with legal certainty, usefulness, and fairness by responding to the

needs and desires of land rights holders in the life of nation and state in a transparent manner,

without deception, intimidation or discrimination.

In relation to the Marejebonga forest area as explained in the previous discussion,

there are several areas within the Marejebonga forest area that have been issued land titles.

And the process of issuing the certificate is legally valid as described in the first discussion

regarding the illegality of property rights certificates in the Marejebonga forest area.

So that the consequence with the issuance of the certificate is the achievement of one

of the objectives of land registration contained in Article 3 of Government Regulation

Number 24 of 1997, namely the attainment of legal certainty and protection to the right

holders of a land area. Legal certainty is the main objective of holding land registration as

ordered by Article 19 of the LoGA.

The legal certainty of the object and the subject of rights are indispensable in the legal

traffic regarding land rights, so that the government has a system of openness / announcement

regarding land rights or publicity system. Publicity means the principle by which everyone

can know all the rights to land and all legal actions concerning the land.

The publication system of land registration in a country depends on the legal principle

adopted by a country in transferring rights to its land. There are several land registration

9 Jujun S. Suryasumantri, Filsafat Ilmu Sebuah Pengantar Populer, Jakarta:Pustaka Sinar Harapan, 1999, p. 237



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publication systems adopted by countries that hold land registrations, namely the Torrens

system, a negative system and a positive system.10

The publication system used in the BAL is a negative system that contains a positive

element because it will produce a proof of rights that is valid as a strong evidentiary tool,

based on Article 19 paragraph (2) letter c, Article 32 paragraph (2) and Article 38 of the

BAL.

The word “strong” means not absolute, thus bringing the consequences that all things

listed in it have legal power and are accepted as correct information as long as there is no

other party that proves otherwise with other evidence that the certificate is incorrect.

General Explanation Government Regulation Number 24 of 1997 also states that in

this PP, it still maintains the land publication system used by the LoGA, which is a negative

system that contains positive elements. The positive element in this PP is clearly evident by

the efforts to as far as possible obtain the correct data, namely by regulating in detail and

carefully the procedures for collecting data needed for land registration, making maps of land

registration and measuring letters, proof of rights, storage and presentation data in the land

book, certificate issuance and recording of changes that occur later.

Therefore, the land certificate issued by the National Land Agency has strong

evidentiary power as stated in Article 19 of the BAL if it meets certain conditions, as for the

conditions:11

a. Land title certificates are obtained in good faith.

b. Holders of land rights must have real control over their land.

In line with that, according to Urip Santoso, that land ownership certificates can be

used as evidence of strong and even absolute rights if they meet the following criteria:12

1) The certificate of land ownership is legally issued in the name of a person or legal entity;

2) That the land was obtained in good faith;

3) That the land is actually carried out; and

4) Whereas within 5 (five) years from the issuance of the certificate no one has submitted

an objection in writing to the certificate holder and the head of the land office of the local

district/city nor has he filed a court case regarding the possession or issuance of the

certificate.

The process of issuing certificates within the Marejebonga forest area has been in

accordance with the procedures and requirements determined by the prevailing laws and

regulations and the time of issuance of the certificate is predetermined compared to the time

to determine the Marejebonga forest area as a forest area. The form of legal protection that

can be carried out by the government for holders of land ownership certificates in the

10

Bachtiar Effendi, 1993, Kumpulan Tulisan Tentang Hukum Tanah, Bandung: Alumni, (hereinafter

abbreviated Bachtiar Effendi I), p. 47 11

Boedi Harsono, Op Cit, p. 223 12

Urip Santoso, Pendaftaran dan Peralihan Hak Atas Tanah, cet,2, Jakart: Kencana, 2010, p. 261



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Marejebonga forest area is by issuing land that has been issued the ownership certificate from

the Marejebonga forest area.13

The legal basis for the issuance of the certified land from the Marejebonga forest area

is based on the Decree of the Minister of Forestry Number: SK. 3100 / Menhut-VII / KUH /

2014 concerning the Determination of Forest Areas in Marejebongan Forest Group and

Gunung Pepe Forest Group (RT.13) Covering 7,995.99 hectares in the District of Lombok

Tengan and West Lombok Regencies of West Nusa Tenggara Province. This can be seen in

the deciding consideration from the Decree of the Minister of Forestry Number: SK. 3100 /

Menhut-VII / KUH / 2014 on the third point which reads: In the event that there are still

legitimate third party rights, in the determination of this forest area is issued from the forest

area in accordance with the laws and regulations.

The process of resolving legitimate third party rights by issuing certified land from

forest areas is based on the provisions of the Forestry Minister's Regulation Number

P.44/Menhut-II/2012 jo P.62/Menhut-II/2013 concerning Forest Area Inauguration and Joint

Regulation of the Minister of Home Affairs, Minister of Forestry, Minister of Public Works

and Head of the National Land Agency No. 79 of 2014, PB.3/Menhut-II/2014,

17/PRT/M/2014, 8/SKB/X/2014 concerning Governance How to Settle Land Tenure in

Forest Areas.

According to the Forestry Minister's Regulation Number P.44/Menhut-II/2012 jo

P.62/Menhut-II/2013 concerning Forest Area Inauguration can be seen in the provisions of

articles 23 and 24.

Article 23 states that the Boundary Committee resolves the rights of third parties

along the boundary route and inside the forest area (enclave). Whereas in Article 24 regulates

the proof of the rights of third parties in relation to control or ownership of land rights in

forest areas where the evidence can be in the form of written or unwritten. Proof of the rights

of third parties in writing is indicated by the evidence obtained prior to the appointment of

forest areas in the form of: ownership rights, business use rights, building rights, use rights,

and management rights.

As far as researchers are concerned about the process of implementing legal

protection for holders of land title certificates in the Marejebonga forest area, they use the

Joint Regulation of the Minister of Home Affairs, Minister of Forestry, Minister of Public

Works and Head of the National Land Agency No. 79 of 2014, PB.3/Menhut-II/2014,

17/PRT/M/2014, 8/SKB/X/2014 concerning Procedures for Settling Land Tenure in Forest

Areas. Because the Marejebonga forest area has been established (gazetted) as a forest area

but apparently there are still legitimate third party rights in the forest area. Whereas if using

the provisions of the Forestry Minister's Regulation Number P.44/Menhut-II/2012 jo P.62/

Menhut-II/2013 concerning the Inauguration of Forest Areas in issuing legitimate third party

rights, if the Marejebonga forest area has not been established (confirmed) as a forest area.

13

Interview with Mr. Ir M. Zain Sulistyanto and M. Aropi, Functional PEH of NTB Provincial LHK Office and

Data Collection Section for Planning and Forest Management Section.



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2.3 Cause Factors the issuance of a certificate of ownership over land in the

Marejebonga forest area

Land for state life is a means that can unite the territory and nation of Indonesia. Land

for humans has a strategic role to carry out their survival. Likewise for the development of

the State of Indonesia, land has a very important role in order to create a just and prosperous

society.

The importance of the meaning of land for human life is because human life cannot be

separated from the ground at all. They live on land and obtain food by utilizing the land.

Indonesia is an agricultural country that has a population of around 3.5% of the world's

population and ranks the fourth largest population in the world. The limited amount of land to

be used as a source of income and a place to live, then people need to get a guarantee of legal

certainty and legal protection of ownership rights over the land they have.

The desire to get a guarantee of legal certainty, it is necessary to have a written proof

explaining an ownership or ownership rights owned by that person. Written evidence is called

a land title certificate. A certificate of land rights is a proof of ownership on land, so that it is

a valuable letter to the holder and can be used as a strong evidence tool in the event of a

dispute.

According to Bachtiar Effendi, the land certificate is a copy of the land book and a

copy of the measurement letter, both of which are bound to be one and given a cover whose

form is determined by the Minister. The land certificate applies as a strong proof of the

holding of a piece of land. Strong here means that the land certificate is not the only absolute

proof, so the land certificate according to the land registration system adopted by the LoGA

can still be aborted / canceled as long as it can prove in court that the disputed land certificate

is incorrect.14

In Indonesia, the conception of a certificate is a formal document that is used as a

juridical instrument for proof of ownership of land rights issued by the National Land Agency

as a Non-Departmental Government Institution that carries out duties in the land sector

nationally, regionally and sector ally.

Certificate as a sign and or at the same time evidence of land ownership rights and as

the final result of the land registration process which contains physical and juridical data. By

having a certificate, legal certainty relates to the type of land rights, the subject of the rights

and the object of the rights become real. The granting of land rights certificates is a

manifestation of one of the main objectives of the BAL, namely to provide legal certainty

regarding land rights for all Indonesians.

The certificate of land rights is a form of State Administration Decree (hereinafter

referred to as TUN Decree), if it takes into account the provisions of article 1 number 3 of

Act Number 5 of 1986 concerning State Administrative Courts in conjunction with Law 9 of

2004 concerning Amendments to the Law Number 5 of 1986 jo Law Number 51 of 2009

concerning Second Amendment to Law Number 5 of 1986 concerning State Administrative

Courts. In article 1 number 9 states:

“The Decree of the State Administration is a written determination issued by the State

Administration Agency or Official that contains State Administrative Law based on the

14 Bachtiar Effendie, Op.cit, p. 25



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prevailing laws and regulations, which are concrete, individual and final, which results in

legal consequences for a person or entity civil law.”

Therefore, the land title certificate is a written stipulation, so it mainly refers to the

content and not to the form of decision issued by the State Administration Agency or Officer.

90 The decision should be written, but the written sign is not formal. Written requirements

are required for convenience in terms of proof. Thus the land title certificate is:

1. Decision of the State Administration Agency or Officer, namely the Decree of the Head

of the Land Office;

2. The purpose of the contents of the core certificate contains the types of rights (for

example ownership rights, building rights, use rights), location / land address, land area,

land boundaries, certificate number, letter of measurement, and letter number, etc .;

3. The writing is addressed to people, legal entities as holders of land rights.

The land title certificate is issued by the National Land Agency, written and signed by

the authorized Agency or Official, so that as a consequence is a TUN decision. In connection

with this matter there are known two types of juridical characters of land rights certificates,

namely certificates that are constitutive and declarative certificates. 15

Furthermore, according to Phillipus M Hadjon, stated that the constitutive TUN

Decree is an absolute requirement for the birth of legal relations, for example, such as

building rights. In relation to this, the certificate of land rights provides a legal relationship to

use and utilize land for various purposes including interests with other parties.16

The certificate of land rights is an act of the government that was born because of the

law and is concrete because it is intended for those listed in the certificate and does not

require the approval of other agencies.17

When viewed from the consequences, the

government's actions in granting land rights certificates are aimed at creating a new legal

situation (rechtscheppend) and also constitutive (constitutieve beschiking) decisions, so that

new legal rights and obligations are born person / legal entity.18

It is clear that government

legal actions are legal acts committed by government organs or State administrations

intended to cause legal consequences in the field of government or State administration.

According to Muchsan, elements of government legal actions include:19

a. The act was carried out by the government apparatus in its position as a ruler and as a

government equipment (bestuurorganen) with strong and own responsibility;

b. The act was carried out in order to carry out the government function;

c. The act is intended as a means to cause legal consequences in the field of legal

administration

d. The act in question is carried out in the framework of maintaining the interests of the

State and the people.

15

Boedi Djatmiko Hadiatmodjo, Pembatalan Sertifikat Hak Atas Tanah oleh Peradilan dan Akibat Hukum

Terhadap Sertifikat dan Hak Atas Tanah, Summary of Dissertation, Airlangga University Doctoral Program,

2007, p. 2 16

Phillipus M Hadjon, Op.Cit. p. 144. 17

Adrian Sutedi, Loc.Cit. 18

Irfan Fachruddin, Op.cit, p. 342 19

Muchsan, Op.cit, p. 18-19



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The elements of government legal actions above need to be added to the legality

principle or the wetmatigheid van bestuur, namely the administrative law must be based on

the prevailing laws and regulations. This is in line with what was stated in the A.D. Belinfate,

namely: legal actions that are administrative law, can only be carried out in terms of and in

the manner permitted by law.20

Every country of law, is required to apply the principle of legality, namely that all

government actions in this case the Head of the Land Office in issuing certificates as a

decision, must be based on the prevailing laws and regulations so that things do not happen

such as cancellation of land title certificates in the future. causing conflict in the community.

In addition, the issuance of certificates by the Head of the Land Office must pay

attention to material and formal requirements, so that the certificate issuance decision is

lawful and has legal force, which means that it can be accepted as part of legal order or in line

with existing legal provisions both procedurally/formal and material.

Regarding the matter, the National Land Agency as an institution that is given the

authority to take care of everything related to land affairs in carrying out its duties must be

done carefully and carefully so as not to cause problems in the future. For example related to

the land registration process. In carrying out the land registration process the most important

thing that must be considered by the National Land Agency is related to the verification of

the rights regarding physical data collection and juridical data of the land to be issued a

certificate.

Physical data collection is field work to obtain data on the location of the land, its

boundaries, extent, buildings, and / or plants on the land. This activity begins with the

placement of land parcels and the installation or provision of boundary signs in each corner.

Then proceed with measurement and map making. Determination of the limit is carried out

based on the appointment by the holder of the land rights concerned with the approval of the

right holder of the land bordering the land to be measured. This is called the principle of

contradiction in the delimitation that the boundary of the land should be based on the

agreement of the land owner to be measured by the owner of the adjacent land.

While the juridical data collection is an activity that aims to obtain data on the status

of the land, what rights are owned, who is the holder of the rights and whether or not there is

a burden of liability and the existence of public interest. Besides that, research is also

conducted on land history, collection of evidence of land ownership and examination of the

validity of the evidence.

Juridical data collection and research is carried out by a team called Committee A,

this team consists of employees in the Measurement and Land registration section, executing

officers from the measurement subsection, Mapping and Conversion and subsection of Rights

and Information Registration. The task of committee A in detail is as follows:

1. Examine the land law juridical data which is not equipped with written evidence of

complete ownership of the land.

2. Conduct an inspection to the field to determine the truth of the evidence submitted by the

land registration applicant.

3. Record objections / objections and as mediators, when resolving problems / disputes.

4. Make conclusions regarding the juridical data of the land parcels concerned.

20

A.D. Belinfante, et. al., dalam Adrian Sutedi, Sertifikat Hak Atas Tanah, Jakarta: SInar Grafika, 2014 p. 37



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5. Completion of the questionnaire 201 concerning the minutes of the juridical data

research on the determination and limits.

Spending activities and juridical data research are very important parts in the

management of property rights certificates. This involves examining evidence of land

ownership, so that this procedure must be carried out carefully, thoroughly and in a hurry so

as not to produce wrong conclusions that can result in land rights falling to people who are

not entitled to the land. After the collection of physical data and juridical data is fulfilled, the

committee must conclude to then recommend to the Head of the Land Office to issue a

certificate of ownership and the report must be in its entirety. Juridical data research activities

are in the form of committee A conclusions which will later become recommendations for the

Head of the Land Office whether to issue ownership certificates that are applied for or not.

Regarding the existence of several land ownership certificates within the Marejebonga forest

area, this is caused by several factors. Whereas as we all know that the forest area is an area

that must be protected and must be freed from the base of the rights above it, because it will

cause a negative impact on the forest area itself. If the forest area has become a property and

has a land title certificate, then the preservation of the forest will not be maintained, because

something will happen according to the will of the owner of the certificate. The factors that

cause the issuance of certificates in the Marejebonga forest area are:21

1) Because at the time of issuance of the certificate, the Marejebonga forest area has not

been confirmed or designated as a forest area. So that the National Land Agency issues

the certificate. This can be seen from the date of issuance of property rights certificates

contained in the Marejebonga forest area on December 5, 2005 while the Marejebonga

forest was designated as forest area on April 25, 2014.

2) Because the application for land registration has fulfilled the requirements and through a

procedure that has been determined Government Regulation Number 24 of 1997

concerning Land Registration that is further regulated by the Regulation of the Minister

of Agrarian Affairs / Head of National Land Agency Number 3 of 1997 concerning the

implementation provisions of Government Regulation No. 24 Year 1997 concerning land

registration. So there is no reason for the National Land Agency to reject the application

for issuing the certificate.

III. CONCLUSION AND RECOMMEDATIONS

3.1 Conclusion

a. Issuance of land title certificates in the Marejebonga forest area is legally valid,

because:

1) The certificate issuance process was carried out before the Marejebonga forest

area was designated as a forest area. This can be seen from the date of issuance of

the certificate in the Marejebonga forest area on December 5, 2005, while the

Marejebonga forest area was designated as a forest area on April 25, 2014.

2) Stipulated by the authorized official, the Head of the Office of the National Land

Agency (BPN) of Central Lombok because it corresponds to the location where

21

Interview with Mr. Sulaiman, SH, as Head of Land Handling and Control Affairs



25 www.doarj.org

the land is located, namely in Rembitan Village, Pujut District, Central Lombok

Regency.

3) Made in accordance with procedures that have been determined by the prevailing

laws and regulations. Starting from the stage of the process of submitting a

request for rights that is equipped with the requirements that have been

determined, Checking and examining the completeness of the juridical data and

physical data up to the process of issuing the land title certificate.

b. Form of legal protection for holders of land ownership certificates in the Marejebonga

forest area, namely by issuing land that has been issued a certificate of ownership

from the Marejebonga forest area. The legal basis for the issuance of the certified land

from the Marejebonga forest area is based on the Decree of the Minister of Forestry

Number: SK. 3100/Menhut-VII/KUH/2014 concerning the Determination of Forest

Areas in Marejebongan Forest Group and Gunung Pepe Forest Group (RT.13)

Covering 7,995.99 hectares in the District of Lombok Tengan and West Lombok

Regencies of West Nusa Tenggara Province. This can be seen in the deciding

consideration from the Decree of the Minister of Forestry Number: SK. 3100 /

Menhut-VII / KUH / 2014 on the third point which reads: In the event that there are

still legitimate third party rights, in the determination of this forest area is issued from

the forest area in accordance with the laws and regulations.

c. Factors that cause the issuance of certificates in the Marejebonga forest area are:

1) Because at the time of issuance of the certificate, the Marejebonga forest area has

not been confirmed or designated as a forest area. So that the National Land

Agency issues the certificate.

2) Because the application for land registration has fulfilled the requirements and

through a procedure that has been determined by the legislation in force so that

there is no reason for the National Land Agency to reject the application for

issuance of the certificate.

3.2 Recommedation

In the certificate issuance process and inauguration of forest areas, between the

National Land Agency and the Forestry Service must always coordinate in carrying out their

duties, so that there will be no more certificates found in the forest area as happened in the

Marejebonga forest area.

REFERENCES

Books

Adrian Sutedi. 2011. Serifikat Hak Atas Tanah. Jakarta: Sinar Grafika.

Ali Achmad Chomzah. 2002. Hukum Pertanahan Seri Hukum Pertanahan I Pemberian Hak

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Jakarta: Prestasi Pustaka.

Bachtiar Effendi. 1993. Kumpulan Tulisan Tentang Hukum Tanah, Bandung: Alumni, (hereinafter

abbreviated Bachtiar Effendi I)



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First Edition, First Mold. Bandung: Alumni.

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Administrasi Negara di Indonesia. Yogyakarta: Liberty.

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Regulations

The 1945 Constitution of the Republic of Indonesia

Law Number 5 of 1960 concerning Basic Agrarian Principles

Law Number 5 of 1986 concerning State Administrative Courts in conjunction with Law 9 of

2004 concerning State Administrative Courts in conjunction with Law Number 51 of

2009 concerning State Administrative Courts.

Law Number 41 of 1999 concerning Forestry

Law Number 30 of 2014 concerning Government Administration

Government Regulation Number 24 of 1997 concerning Land Registration

Government Regulation Number 44 of 2004 concerning Forestry Planning

Forestry Minister's Regulation Number P.44 / Menhut-II / 2012 concerning the inauguration

of Forest Areas, as amended by Forestry Minister's Regulation Number P.62 / Menhut-

II / 2013

Forestry Minister's Regulation No. P.26 / Menhut-II / 2005 Regarding guidelines for the

utilization of the Forestry Rights of the Minister of Forestry.

Joint Regulation of the Minister of Home Affairs, Minister of Forestry, Minister of Public

Works and Head of the National Land Agency Number 79 of 2014, PB.3 / Menhut-II /

2014, 17 / PRT / M / 2014, 8 / SKB / X / 2014 concerning Procedures Settlement of

Land Tenure Within Forest Areas.

legal strength certificate of ownership of land in … · muhammad rizal* *postgraduate program...

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