Pendelegasian Kekuasaan Pengaturan kepada Eksekutif tentang Izin Penguasaan dan Pemilikan Tanah Pertanian bagi Petani Sumatera Utara

Abstract

Indonesia is a lawful country (rule of law, rechtsstaat), but not autocratically state. Theorytically, the government will act according to the rules of law. The government does not rule, as it likes. Therefore melting-pot society the situation and condition are always changed to reach the equality and justice, so the wisdom of the executive cannot be avoided, so justice can be applied only through the wisdom of the executive. The proposition that can be made as the fundamental borrowed from Latin which says "ubi ius ibi remedium" which means when there is law or justice there can be found improvement deal with the be ferment of social bias to maintain the social balance. This dissertation discusses three main problems, that is notions of legislation (acts) delegation. the authorization (licensee) for ownership (property right) and possession of land as well as judicial supervision on the government action (regulation) especially the land reform. By applying the combined methods that is normative and empirical judicial approaches, the solutions of problems could be justified as follows. Every constitution and constitution law, basically regulate the citizens rights as well as the carrying out of the state's power which based on constitution. These human rights have been proclaimed by great philosophers since the Greek's age. Now days, "welfare or prosperity state " accepts the function of state, not only guarantee or secure the "negative freedom or liberty" but also becomes obligatory of state's authority to provide social facilities or pathways to develop a "positive freedom". To each individual or social groups for the sake of achieving their humanitarian dignities. The government should do every effort to correct every in appropriate condition in accordance with these social ambitions. All the national asset should allocated appropriately, the income should be distributed fairly particularly for those under the poverty line or not having. A doctrine of constitution theory follows a view that, the executive institution should not practice (exercise) a power, which belongs to the branch of legislative or judicative. All the order (legislation) to prohibit the space of freedom (liberty), determining a sentence is only regarded valid if people's representative, which is elected democratically, determines it. It is like a constitutional foundation which conveys a political responsibility which is needed for carrying out the state political power. Nevertheless, the doctrine of constitutional delegation experience a growth out of the constitutional doctrine view as confirmed by the "trias politica" teaching of Montesquieu which recommends the pure separation of except in a certain circumstance like national agreement, then the governmental law act that should direct the individual personality's behavior, and the private boards (institutions) should always be authorized by constitutions, legislative is allowed the delegate the power law, making power to the executive which could convey something significant which is not based on constitutional base, but from something significant that has a crucial meaning. The 1945 Constitution has not really shown giving strong evidence on delegation of legislation. The constitutional power lies in the hands of parliament as a people's representative's institution. On Chapter 5 verse (1) and Chapter 20 verse (1) such thing is implied that each constitution should get an approval from the Indonesian Legislative Assembly (DPR). Nevertheless, constitution has allowed the delegation of legislation whereas the government acts as a legislator based on the following considerations:

First, in reality that someone who has been given an authority does not mean that he is not able to let that authority be handled by someone else under his or her name. Moreover, Chapter 5 verse (2) of 1945 Constitution States that the implementation of such Constitution should be done by the President by determining the government regulations. In the justification of 1945 Constitution, it has been widely stated that as a mandatory holder of power in governmental sector (pouvoir executive) the President can decide the government policy and coordination in the state's government. thus act shows a significant evidence of the constitutional delegation. Second, the law enforcement in a concrete way applying the acts in general which are made by the Indonesia Legislative Assembly that give authorization as well as the existence of executive branch with the authority (power) to issue law regulations to be accepted constitutionally. In this regard the process of making regulations by the Indonesian government becomes valid because the government itself pays attention to all people's, aspirations vested interests. The delegation of legislative power has been validated which is mainly based on technical and justice considerations. The needs for adapting good technical situation flexibility and efficiency action, experience and better expertise which make certain authorities government agencies be able to complete the law making unity in the uniformity of regulation's atmosphere. The makers of constitutions texts manuscripts are impossible to revise the execution of constitution with the needs of extensive regulations. In this regard, it is clear why the law eniorcement applied in a great scale without doctrine of delegation now a days could not be practiced and sound unwise. We also could not expect too much on the parliaments reasons in producing all regulations of certain fields and those regulations have already managed all fields in detailed with every single detail. The parliament does not have time and the capacity of human resource needed on executing those roles. Legislative Board gives a mandat to the bureaucracy of government personels to carry out various roles. This case implicitly, validates the making of procedural regulation and organization management. which is needed to carry out the development programs. Board of National Land Affairs (BPN) has functions and responsibilities to help the President in conjunction with land affairs included the field of land reform especially in working out the bias in controlling and land ownership. The basic concept and the framework of land acts in Indonesia which is social - function land based has processed a constitutional base, law patterns to relocate the land reform and regulate the control distribution and ownership of the land. Besides fulfilling the egalitariai.1 principles, so the ownership, the control of minimum border on the agricultural land can increase the agricultural products and simultaneously improve the farmers prosperity. In fact, the empirical evidence of agricultural families (Rumah Tangga Pertanian) nowadays both the micro in the cases of research in North Sumatra (Tanjung Kubah, Tiga Balata and Lidah Tanah Villages) or on macro level at the national level that the distribution program of land assets, rights upon the land have not run effectively like the goal of proclamation constitution, and the national land affairs law of Indonesia. As an additional reflection that the delegation of legislation power to the government is aiming at smoothening the achievement of national goal. However, the government discretion should be maximized based on the regulation that has been

confirmed since the beginning and those policies should have a motivation or standardized objective values. To ensure that government decisions are in line with those that have been decided in the constitutional regulations, there should be and independent institution which responsible for examining all of the regulations that would be carried out correctly. In this regard, the existence of administration court is strongly expected would play a vital role to examine all of the government actions that always right on the pathway (intervares) or not abuse of power. It is also need to remember that conflict's between the government policy and this judge's stance could not be avoided, however, to maintain the people's trust. That the power's utilization has been in line with the principle of law state (rechtsstaat); the judicature processes should be more intensive and direct. From the investigation done at the State Administrative Court Medan it was found, that there were Jeb government decisions that related to the rights upon the land both the giving of license or the cancellation of people's rights have been cancelled or declared as invalid by the administrative court. Therefore, the administrative court orders to change and improve the policy that has been established by the government. This dissertation research has proved that delegation of legislation power, administrative regulations or other terms are strongly needed to serve the individual needs, and improving the people's property. Besides, the judicial supervision of each execution of policy based on the government roles would contribute to encourage the people's trust that the government's power has been valid and fair to be executed.