Implikasi Hukum Pengalihan Kewenangan dalam Penyelenggaraan Urusan Pertahanan pada Era Otonomi Daerah

Abstract

Implementation of Law No. 23 Year 2014 concerning Regional Government as amended by Law No. 9 2015 in lieu of Law No. 32 of 2004 and Law No. 22 of 1999 on Regional Autonomy has raised legal implications and influence government policy in the administration of land matters in Indonesia as stipulated in Law No. 5 of 1960 on Basic Agrarian Law (BAL) and affect the substance of the law of some other legislation. Article 33 paragraph (3) of the 1945 Constitution as a whole has been given a mandate to the State as the highest organization of all the people with the " Right to Control State" over all the natural wealth of Indonesia both earth, water, space and all the natural resources contained therein and things it also was more emphasized in Article 2 paragraph (2) of Law No. 5 of 1960 on BAL. Rights of control over land by the State the task execution authority of the nation that it contains elements of public law but then born of Law No. 23 of 2014 in lieu of Law No. 32 of 2004 on Regional Government. One of the local government authority in the Act that the service in the land sector. Provisions of the legislation it at least raises the legal implications and influence policies and authority between the central government and district/ city. Paradigmatic of regional autonomy has granted an autonomous basis to local governments and to all the people in the area to build and organize local government functions well with the principles of independence and accountability of the autonomous governments. Thus all of the authority granted by the central government to local government under Law No. 23, 2014 in lieu of Law No. 32 of 2004 is the right and the authority of the autonomous regional government. The transfer of authority as mandated by Law No. 23, 2014 in lieu of Law No. 32 of 2004 has raised the legal implications in various dimensions of political, legal, economic and social. One of the objects of research related to conflicts of authority are under construction " land conflict "that land ex HGU PTPN II with an expired HGUnya and has been removed from the area HGU PTPN II, but the utilization of the land has not been fully utilized properly, and even the PTPN II as the owner of SOEs still think it is still an asset of PTPN II before a permit waiver of the ministry of state enterprises. One reason PTPN II considers that there is still right on the land because of the SK-SK concession granted by BPN center where one of the dictum of the contents of that decision is that if there is a waiver on land ex HGU PTPN II must obtain permission of the ministry of state enterprises. The problem is studied from the research title " IMPLICATIONS OF LAW TRANSFER OF AUTHORITY IN THE IMPLEMENTATION OF AFFAIRS LAND IN THE ERA OF REGIONAL AUTONOMY " are the factors that the transfer of authority in the administration of land matters in the era of regional autonomy, the type of authority transfer of authority in the administration of land matters in the era of regional autonomy, and the legal implications of the transfer of authority land matters in the era of regional autonomy.

This study uses normative juridical approach supported by empirical data and prescriptive, meaning this study to formulate or perform troubleshooting in accordance with the data and facts and examines in depth the issue. As the object of research that conflicts of authority between the central government and local governments over the transfer of the assets of former state-owned HGU PTPN II are excluded from the concession area of state-owned PTPN II. Conclusion The study of the topic "Legal Implications The transfer of authority in the administration of land affairs on regional autonomy" is,a), That the factors that cause a transfer of authority in the administration of land matters in the era of regional autonomy as stipulated in Law No. 23 Year 2014 concerning local government in lieu of Law No. 32 of 2004 was caused by factors philosophical, juridical, political, sociological, economical, local wisdom and culture. Namely philosophical factors that Pancasila as the philosophical foundation of the Indonesian nation has the noble values that have goals and ideals of the nation Indonesia in realizing the common good and social justice, as set forth in the preamble of the Constitution of 1945. Factors that jurisdiction is constitutionally that Article 18 of the 1945 Constitution has provided a legal basis relating to the division of territory or autonomous regions. Political factors namely the strong desire and interest of local government to gain authority in the administration of the affairs of the land to meet the needs of local revenue. Sociological factors such as the people in the area want social change, especially in providing public services. Economic factors namely that the transfer of authority over the decentralized local governments can be more free to explore the source of local revenue, especially in the land sector. Factors local wisdom that local governments have a diverse wealth of each area can be a source of life for the local community and local government development. Cultural factors namely the influence of cultural values in the society, so that the value of the culture can be grown and legal means to make a living in the community. b), That form of transfer of authority in the administration of land matters in the era of regional autonomy as stipulated in Law No. 23, 2014 in lieu of Law No. 32 of 2004 in its implementation is still shifting in the form of co-administration (medebewind) although the authority has in decentralization and deconcentration or to local governments. This means that the authority in the administration of land matters in the era of regional autonomy will be intervention by the central government's authority, while the local government authority was limited to matters set and still is the administrative authority.c) That the legal implications of the transfer of authority in the administration of land matters in the era of regional autonomy as stipulated in Law No. 23 of 2014 concerning local government in lieu of Law 32 of 2004 have led to numerous legal implications, for example: Land Conflicts (Conflic of Land), abuse of authority (Maladministratif) and Conflict Policy (Conflic of Policy), Conflict of Norms of Law (Conflict of Norms), the uncertainty of Law (Legal uncertainly) inconsistencies Law (inconsistent of Norms), Emptiness Law (Legal Vacuum) and the vagueness of the Law (Unclear of Norms). lict of policy).

As for suggestions or recommendations from the results of this study are 1), It is expected that the Central Government in this case the President of the Republic of Indonesia and the House of Representatives of the Republic of Indonesia to immediately make changes or turn the BAL No. 5 of 1960 on the BAL, so that there is legal certainty about land affairs authority between central and local government in the era of regional autonomy explicitly, concrete, systematic, universal,2). It is expected that the central government in this case the President of the Republic of Indonesia and the People's Council of the Republic of Indonesia Perwailan to realize the people's welfare and social justice as mandated in Pancasila and the 1945 Constitution in the utilization, allocation, use and supply of land for the people of Indonesia earnestly with giving authority to local governments regulate land use without discrimination in accordance with the philosophy of decentralization and agrarian philosophy, and if the authority of the local government land as stipulated in Law No. 23, 2014 in lieu of Law No. 32 of 2004 on local governments is not working properly then the law should have been perfected.3). It is expected that the Provincial Government, Regency/ City that the commitment and consistent in carrying out the mandate of Law No. 23, 2014 in lieu of Law No. 32 of 2004 on local government, especially in the area of authority in the administration of land matters in the provincial government and district government / cities throughout Indonesia in order to realize the purpose of law which is justice, certainty and expediency.