Strengthening the Concept of Private Ownership

ights in

Implementating the Social Function of Rights on Land: Case Study

of Land Procurement on Toll Road Construction Medan-Tanjung

Morawa- Tebing Tinggi

Zaidar, Muhammad Yamin

Administrative Law Department, Universitas Sumatera Utara, Medan, Indonesia

Keywords: Private Concept, Social Function, Procurement Land

Abstract: This research focuses on the implementation of social functions through the land procurement policy in the

development of toll roads for the public interest. As a result of land scarcity, the government makes a land

procurement policy which takes over owned land and in return the land owners are given compensation. The

problem is whether land procurement for the construction of toll road does not weaken the position of

ownership rights. The method used in this study is juridical empirical research method. The study location of

Medan - Tanjung Morawa-Tebing Tinggi. From the study result, it is concluded that the land procurement for

the construction of Medan - Tanjung Morawa-Tebing Tinggi Toll Road has been done in accordance with

provisions of Article 6 of Act No. 5 of 1960 and Act No. 2 of 2012 that there are no issues regarding the

compensation given with few hitches are concluded through discussion. The most respondents (74.3%) claim

that they are satisfied with the compensation they received. The results of this study indicate that the issue

concerning the weakening of private ownership rights can be solved, namely by implementing the Principles

of Social Function, thus the rights of citizens will remain protected.

1 INTRODUCTION

Land is a basic necessity for everyone so it needs to

get government protection. In the case of utilization

and usage of land for development purposes

undertaken by the state (government), it should be

guided by the existing norms or rules of law. So that,

a person’s rights on land is not made a victim,

moreover when the government would use it for the

public interest. On behalf of "All Rights on Land have

a social function on the consequence is that the

government must provide the necessary land for

investment as well as for other development interests

by land procurement, in which the land is taken from

the people because public land is considered hard to

encounter (Maria Sumardjono, 2009).

The Implementation of the social function of

rights on land through land procurement policy often

causes problems in the community, it is even

suspected that various deviations have occurred

concerning the implementation and actualization of

the principle of social functions of rights on land

contributing to the economic development (global

economic) or the impact on the increasing need for

land in considerable quantity, for example for

housing, plantation, industrial factories and other

infrastructure purposes. (this study examines land use

in land procurement focusing on the construction of

the Medan - Tanjung Morawa - Tebing Toll road

project).

The social function of rights on land is a

characteristic of the Indonesia Agrarian Law, which

is based on the view of how to develop the land in

building unanimity of the nation without having the

people sacrificed as the perfect owner. And the State

in exploiting the land for the national interest can

proceed as well as possible.

The embodiment of social functions can be seen

in the implementation of development for the public

interest, where the holder of the rights on land is

required or even forced to give up his right for the

interests of development as the designation of the

nation and the State previously stated. However, it

seems that the definition of public interest on the

procurement of private land here has shifted from

social function in the meaning of the greatest

Zaidar, . and Yamin, M.

Strengthening the Concept of Private Ownership Rights in Implementating the Social Function of Rights on Land: Case Study of Land Procurement on Toll Road Construction Medan-Tanjung

Morawa- Tebing Tinggi.

DOI: 10.5220/0010088515551560

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1555-1560

ISBN: 978-989-758-449-7

1555

prosperity of the people, becomes of the great

prosperity of the businessman, because in prosecuting

the land liberation by the government for

development purposes, it turns out to contain business

elements. This is a contrary to the philosophical

principle of social function, that is, the public

interests and does not contain business elements.

This condition can cause the weakening of the

social function that is automatically protected by

private property rights because of the absence of legal

certainty over the private rights.

In line with the research which conducted by

Damrizal (Damrizal, 2012) shows that in the

application of social function on land of right has

irregularities and contradiction in applying social

functions on the land wich have not been optimally

accrued by the principle of social functions referre to.

This is contrary to the principle of philosophical

social function, namely the public interest and does

not contain business element.

In the same discussion quoted from the results of

research conducted by Triana Rejekiningsih (Triana

Rejekiningsih, 2016), concluded that the use of land

in the implementation of the principle of social

functions of land rights has not provided benefits for

the prosperity of the people, because the use of land

is not in accordance with its potential land as agrarian

land. The neglect of people's welfare as a result of a

lot of land and agricultural land abandonments has

narrowed, and there has been a lot of conversion of

non-agricultural sector agricultural land under the

pretext of development interests.

The application of social functions of rights on

land through land procurement policies often creates

problems in the general public, and it is suspected that

there have been various deviations from the principles

of the social function of rights on land which are

driven by the economic development, resulting in the

negligence of private rights on land. (in this study the

procurement of land is focused on the construction of

the Medan - Tanjung Morawa – Tebing Toll road

project)

The issue in this research is whether the land

procurement in the construction of Medan – Tanjung

Morawa – Tebing Toll road does not weaken the

private ownership rights.

2 RESEARCH METHODOLOGY

The research method used in this study is judicial

empirical method by relying on primary data and field

data. The respondents in this study are the community

whose land is affected by the land procurement

project. The respondents are determined by purposive

sampling technique, by distributing questionnaires to

the community. As supporting data, interviews were

conducted with several related agencies. The location

of this study is Tanjung Morawa and Lubuk Pakam

sub-districts.

3 RESULT AND DISCUSSION

3.1 The Implementation of Land

Procurement on the Construction

of Medan–Tanjung

Morawa–Tebing Tinggi Toll Road

The toll road of Medan – Tanjung Morawa – Lubuk

Pakam- Tebing is a toll road connecting Medan,

Tebing Tinggi as well as Kuala Namu International

Airport. This 61.80 km toll road with investment

value of 6,250 billion Rupiahs is a part of the Trans-

Sumatera Toll road that is divided into 2 (two)

sections, namely Section I (Medan - Parbarakan -

Kuala Namu) with the distance of 17.80 km), and

Section II (Parbarakan - Tebing Tinggi) with the

distance of 44 km.

The implementation of land procurement for the

construction of the Medan - Tanjung Morawa -

Tebing Tinggi Toll road was conducted on an area of

441.53 ha, which is inhabited by the surrounding

community starting in 2009.

The funding of the construction of the Medan-

Kuala Namu toll road (Tanjung Morawa) consisted of

90% loan from China and 10 % rupiah with the total

investment of 1, 4 trillion Rupiahs which aimed to

improve the financial viability of Toll road segment

(Edy Rabuddin, 2018).

But if the APBN funding source is not sufficient,

the government can look for other alternatives,

namely funding part of BUMN or private or often

referred to as public private partnership, which is a

manifestation of cooperation between the

governments, the private sector based on mutually

beneficial agreements (Heryanto, 2018).

The construction of Tanjung Morawa –

Parbarakan – Kuala Namu with the distance of 17.80

Km was done by the Government and the rest, with

the distance of 43.90 Km was constructed by Jasa

Marga Tebing Tinggi company using the fund from

APBN and investment from Badan Milik Usaha Jalan

Tol (BMUJT) Jasa Marga Kuala Namu Company,

with the APBN fund of 1, 4 trillion Rupiahs.

In interpreting the social function of rights on land

over private land ownership, then the government

ICOSTEERR 2018 - International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches

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shall not be allowed to act arbitrarily against the rights

of the community. If those rights are faced with

public interest or general interest, then those rights

shall not be ignored, they must be compensated.

However, consignment can only be done in terms of,

1). Development activities cannot be moved to

another location, 2) deliberation does not run for 120

days, 3) ownership disputes occur after the

determination of compensation, 4) ownership is not

in place

3.2 Land Procurement on

Medan-Tanjung Morawa-Tebing

Tinggi Toll Road Construction

Does Not Weaken the Private

Ownership Rights

In the third Amendment of 1945 Constitution,

Chapter XA on Human Rights Article 28 H paragraph

(4), the 1945 Constitution implicitly recognizes the

existence of the right of ownership as a fundamental

right. That is, the right that exists for a person to live

as a natural individual as well as a member of society,

in harmony with his dignity as a respectable person.

This fundamental right is a right which everyone has,

which is essentially inviolable by any person for any

reason, provided that such person does not abuse his

rights or do any harm or loss to others.

In other words, if the legally controlled land is

necessary for development, then the people must

come first (Principle of Social Function of Rights on

Land). If the discussions do not reach an agreement,

then the project should not be forced to be constructed

in that location. However if more people agree on the

amount of compensation then the land procurement

project will continue to be implemented, and for those

who object to the amount of the compensation, then

the land will still be taken by the government with the

compensation money deposited in the court

(Consignment).

As a comparison, special land acquisition carried

out in the Special Region of Yogyakarta is different

from other areas, where in the Yogyakarta area the

status of the land is divided into 3 categories, namely:

1), Sultan Ground, 2) Village Treasury land, 3)

Community land. Here the principle of deliberation

and consensus is actually applied in accordance with

the status of the land in question, so that in the

provision of compensation there are no obstacles and

run smoothly (Reni Anggreini, 2017).

Maria Sumardjono said that the change of

understanding of loss is a proper and fair replacement

for those who are entitled to the non-physical process

of land acquisition, including loss of work, business,

income sources and other sources of income which

have an impact on a person's level of welfare (Maria

SW Sumardjono, 2009).

Presidential Regulation no. 71 of 2012 jo.

Presidential Regulation no.148 of 2015 determines

that land procurement is conducted based on the

principle of honoring the rights on land. The principle

of honor is done by providing arrangements on the

form and amount of compensation as well as

procedures or discussions in determining the form

and the value of the compensation concerned.

Compensation referred in Act No.2 of 2012 is: an

adequate and fair compensation for the entitled

parties in land procurement. Such compensation shall

be provided in accordance with the provisions of

Article 33 of Act No.2 of 2012. The Appraisal of

compensation value by the Appraiser as mentioned in

Article 32 paragraph (1) is conducted per land area,

including land, space above and underground,

building, plants, objects related to land and/or other

losses that can be assessed.

In deciding of the compensation given, the basis

of the right is first assessed. The table below shows

the status of land ownership which would be

compensated.

Table 1: Basis of rights

No Basis of rights Frequency Percentage

(%)

1 Certificate 28 39,4

2 Deputy

Statement Letter

37 52,1

3 Purchase

Agreement

Letter

6 8,5

Total 71 100

Based on the questionnaire data of 71

respondents, the basis of rights of 28 respondents is

certificate with the percentage (39.4%), 37

respondents is Deputy Statement Letter with the

percentage (52.1%) and 6 respondents in the form

Purchase Agreement Letter with the percentage (8,5

%). In assessing the amount of indemnity, the

assessment team will make a classification based on

the rights base owned, compensation for certificate

land is much greater than for non certificate land.

Strengthening the Concept of Private Ownership Rights in Implementating the Social Function of Rights on Land: Case Study of Land

Procurement on Toll Road Construction Medan-Tanjung Morawa- Tebing Tinggi

1557

Table 2: Origin of Land Tenure

No Origin of Land

Tenure

Frequency Percentage

(%)

1 Purchase

Agreement

42 59,2

2 Inheritance 29 40,8

Total 71 100

Based on the questionnaire data of 71

respondents, the origin of land tenure of 42

respondents is purchase agreement with the

percentage (59.2%) and 29 respondents is Inheritance

with the percentage (40.8%).

Considering the fact that the compensation is

always in the form of money, it is likely that in the

discussion process it should be relayed to those

affected by the land procurement project to be able to

select and agree on various forms of compensation

offered. If the choice of form of compensation falls

on money, then the amount of the indemnity will be

based on the assessment of Article 15 of Presidential

Regulation No. 71 of 2012 which determines that the

basis for calculating the amount of compensation is

based on: Selling Value of Tax Object (NJOP) or real

/ actual value by observing the Value of Tax Object

of the current year based on the evaluation of the

Institution / Appraisal Team of Price appointed by the

Committee, the sale value of buildings estimated by

the regional apparatus responsible for building, The

selling value of crops assessed by the regional

apparatus responsible for agriculture, The amount of

compensation also takes consideration of the basis of

the rights.

Table 3: The Area of Owned Land

No The Area of

Owned Land

Frequency Percentage

(%)

1 100m – 300m 19 26,8

2 301m – 500m 11 15,5

3 501m – 700m 31 43,7

4. >700m 10 14,1

Total 71 100

Based on the questionnaire data of 71

respondents, it is gathered that the area of the owned

land altogether with the measurements of 100m-

300m is owned by 19 respondents with the percentage

of (26,8%), 301m-500m by 19 respondents with

(15,5%) , 501m-700m by 31 respondents with

(43,7%) and lastly >700m by 10 respondents with

(14,1%).

In Act no. 2 of 2012 it is stated that the Land Price

Appraisal Agency Team has an important position

because its authority is not limited to the appraising

the land price alone, but also to objects or buildings

on land, underground spaces, and losses deemed as a

result of land procurement for development for the

public interest. The land pricing apparatus is an

independent institution and competent in its field.

Land Appraisal Institute is the Office of Public

Appraisal Services (Kantor Jasa Penilai Publik)

(KJPP). Office of Public Appraisal Services

according to Act no. 2 of 2012 must obtain a license

issued by the National Land Agency (Badan

Pertanahan Nasional) (Adhi M. Daryono, 2017).

Land procurement must be carried out in

accordance with existing law to ensure legal certainty

from the land procurement process. Likewise, in the

land procurement which takes over individual rights

over land. In order to avoid any violation of

individual rights (including the categories of human

rights violations), the procurement of land in the

interest of development, whether for private or public

interest, is only possible if an agreement is reached on

the form and amount of compensation between the

owner and the parties who requires the land without

intimidation in any form (Muhammad Bakri, 2007).

However, if there is a citizen who is unwilling to

give up his land even though there has been repeated

deliberation, but there is no agreement, then those

who are entitled to compensation can file a lawsuit in

court (Urip Santoso 2016). It also applies to paying

out compensation, where it should be done as soon as

possible. Regarding the timeframe of compensation

pay out can be seen from the table below:

Table 4: Compensation Pay out Time Frame

No The

Timeframe for

Compensation

pay out

Frequency Percentage

(%)

1 <1 year 47 66,2

2 >1 year 24 33,8

Total 71 100

Based on the questionnaire data of 71

respondents, 47 respondents with the percentage of

66,2% stated that they received the compensation pay

out in less than 1 year whereas the rest, 24

respondents with 33.8% stated they waited for more

than a year.

Respondents who waited for more than a year

claimed that they even waited as long as 2 to 3 years,

taken several factors into effect, some of which were:

1). They declined the pay out in the beginning, 2)

There was a problem within the family (in cases of

inheritance). 3) Those involved were not present.

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The construction of the Medan-Tanjung Morawa-

Tebing Toll road is conducted in accordance with the

provisions of Act no. 12 of 2012 jo. Presidential

Regulation No.71 of 2012, through the stages such as:

The first, The planning of land procurement for public

purposes is based on the Spatial Plan and the

development priorities listed in the Medium Term

Development Plan, Strategic Plan, Government Work

Plan (Agency) that is inclusive of land procurement

planning for the public interest.

The second,

Preparation stage of land procurement such as: notice

of construction plans, initial data collection of

construction plans, and public consultation of

construction plans.

The third, Procuring stage of land

procurements are inventory and identification of the

tenure, ownership and utilization of the land,

assessment of compensation, discussion on

compensation determination, the granting of

compensation, and relinquishment of agency’s land.

Table 5: The level of Satisfaction for the Received

Compensation Pay Out

No The Level of

Satisfaction

Frequency Percentage

(%)

1 Satisfied with

the received

compensation

53 74.7

2 Unsatisfied 18 25.3

Total

71 100

Based on the questionnaire data of 71

respondents, 53 of them with the percentage of 74,7%

asserted satisfaction of the compensation given

whereas 18 of them with 25,3% claimed the opposite.

The data obtain from the location from the

questionnaires distributed to the people affected by

the land procurement project, around 53 (74,7%) of

the results concluded that there was no problem and

were satisfied with the compensation, while the

remaining 18 (25,3%) complained about the value of

compensation, they believed that there has been

discrimination in the provision of compensation.

From the observation in the location, it can be

comprehended that the cause of the different

compensation is because in the period of land

procurement (2009-2017), there are 2 (two)

applicable regulations where, in the first stage (2009-

2012) the provision of compensation used the

Presidential Regulation no. 36 of 2005 and

Presidential Regulation 65 of 2006. Whereas the

compensation in stage II (2013 until the completion

of toll road construction, the compensation is

provided in accordance with Act No. 2 of 2012 on

Land Procurement for Construction for Public

Interest. There are significant differences in

determining the compensation in both regulations,

namely: 1) the provision of compensation in phase I

is based on the Value of Sale of Tax Objects (NJOP),

if the community objected to the amount of

compensation (not receiving compensation that has

been determined) the land would still be taken by the

government and the compensation money determined

by the Committee in accordance with NJOP will be

deposited in court (consignment). 2) the provision of

compensation in phase II was based not only on the

NJOP, but also several variables, such as: 1).

Location or site of the land, 2) Land status, 3) Land

allotment; the suitability of land use with existing

spatial or spatial or urban spatial planning plans, 4)

Facilities and infrastructure available, 5) Other

factors affecting land prices.

Based on the above variables, for the second stage

of compensation, the amount of compensation is

much greater when compared to the amount of

compensation given in the first stage. On this basis

they filed a lawsuit to the Court. But their lawsuit was

rejected by the Court, due to fact that they already

signed the agreement and received the compensation.

In the table below can be seen if the amount of

compensation was as what the respondents desired.

Table 6: The Community Request for the Compensation

Given

No The

Compensation

Given

Frequency Percentage

(%)

1 In accordance

with the

community’s

request

53 74.7

2 Not in

accordance with

the community’s

request

18 25.3

Total 71 100

Based on the questionnaire data of 71

respondents, 53 respondents with the percentage of

74,7% affirmed that the compensation given was in

accordance with their request while 18 respondents of

25,3% claimed otherwise.

4 CONCLUSIONS

The implementation of land procurement for the

construction of Medan - Tanjung Morawa - Tebing

Strengthening the Concept of Private Ownership Rights in Implementating the Social Function of Rights on Land: Case Study of Land

Procurement on Toll Road Construction Medan-Tanjung Morawa- Tebing Tinggi

1559

Tinggi Toll road was conducted on 441.53ha of land

inhabited by the surrounding community and PTPN

III Plantation.

The construction of Medan - Morawa - Tebing

Toll road started in 2009 until today. Throughout the

process, it enacted two (2) law and regulations that

took place in two stages, where in the first stage

(phase) I which lasted from 2009 to 2012 with

Presidential Regulation No. 36 of 2005 and

Presidential Regulation No. 65 of 2006 on Land

Procurement for Public Interest, while in the second

stage, (2013 up to now) is applied with Act No. 2 of

2012 on Land Procurement for Development for

Public Interest where there is a significant difference

in the term of compensation, resulting in a small

percentage of people objecting the amount of

compensation. For those who do not want to accept

the compensation given, they are welcome to file a

lawsuit to the Court however with the land still take

over by the government and the compensation money

is deposited in the Court (Consignment).

ACKNOWLEDGEMENTS

We gratefully thank University of North Sumatera for

financial support in accordance with TALENTA

University of Sumatera Utara Research Contract Year

of Fiscal 2018 No. 2590/UN5.1.R/PPM/2018.

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