Transfer of Rights of Customary Land to Private Parties: Reconstruction Thought of Right to Controlled by the State

Abstract

Release of “Tanah Ulayat” or (“Customary Land”) by “Masyarakat Hukum Adat” or “the Customary Law Community” (CLC) to the Legal Entity as stipulated in the Regulation of the Minister of Agrarian / Head of the National Land Agency No. 5 of 1999, with the intent and purpose of accommodating the procedures for releasing Customary Land, in reality has caused many legal problems in its implementation. Such legal problems has had an impact on the conflict between the CLC and large companies and even multinational companies. The research question arising of such Regulation, is there control mechanism over the unequal contract between the CLC and large companies of which results in adverse CLC. This study aims to analyze the legal issues arising from the implementation of such Regulation to the private party and provide a solution to create community welfare as mandated in Article 33 (3) of the 1945 Indonesia Constitution. It is expected that this research can provide input for the government on such Regulation to private parties, by doing reconstruction though of Right to Controlled by the State against Customary Land as a higher law. The research method used in this study is a normative juridical research, which is carried out by examining library materials. This research was referred to philosophical understanding of corrective justice from Aristoteles. Of which in analyzing the transfer of Customary Land to the private party, corrective justice is carried out by the judge in deciding cases of transactions that are voluntary or involuntary.