Customarry Law at West Ceram District Indonesia

Forward First of all we would thanks to God, because His grace, we the “Law Consultant Team” who has collaborates with International NGO CARDI could finish this social study report, in the 3 ( three )sub district of Seram Bagian Barat District (SBB). We expect the social study report can be benefit to Local Government Regency of West Seram (SBB), Parliament ( DPRD) of SBB, non government organization ( LSM), citizen , especially could bring a benefit to the entire society in West Seram, Hopefully, in the future, they will not become the audience of " Development Cake Show" but can act as development “cake cooker” who can serve delicious cake for the prosperity of their own society in West Seram. we would thank to LSM CARDI who became the facilitator who connected us to the regions where research object, as well as to all parties who assisted us either in Sub district Kairatu , Sub district Piru , and Sub district Taniwel in West Seram District To village headquarters and Sainiri Negeri (Village Board) of Hunitetu , Hualoy, Seriholo, Lokki, Lisabata, Wakolo we would say infinite thanks and we hope from boldness which explained can be benefit to our next generation in the future. Yours Faithfully, DEDY LEAN SAHUSILAWANE, SH CHAPTER I BACKGROUND As we know in the year 1999 Province of Moluccas happened the conflict recognized with event 19 January 1999. The conflict sacrifice thousands of human soul, invaluable object and estate, is hard particularly again the destruction of social Structure is like tradition, tolerance, education, etc. Displaced of people (IDPs) on a large scale from one location to another locations assessed more peaceful for safety of their soul. At the time displaced all refugee ( IDPS) not merely loss of goods or chattels moving like vehicle, domestic house wares, electronic equipments, etc, but also the livelihood loss, house , land, farm or as well as plantation which during the time become their life expectation fulcrums during by generations. All this refugee have to ready to live in place of evacuation which is full of assorted of that good limitation for the residence and especially the place to manage farm because they leave their land in the their origin area to new place which still full of question mark to pass their life. Initially, they accepted better by local resident and given them a temporally relocation whereas develop by self-sportingly and also aid from Governmental and NGO during the riots. But along with change of time they have to face of needing broader farm or land to they lived, children education requirement those who need school building, requirement facilities observance, health facility, plantation or agriculture utilize to fulfill their daily food requirement, Still a lot of again the place to try that needed in evacuation location also needing special land for market, terminal, etcetera. From the example above, we can see that requirement of land in evacuation classified to 3 (three) description, those are: 1. Land for the settlement (emergency tent / emergency house / barracks refuges). 2. Land for effort (farm for the agriculture crop of short age, kiosk, etc). 3. Land for the public needs (education, health, observance) etc. Ad.1. Land; Ground for the Settlement In practice which we meet during all refugee still reside in location of evacuation initially they were permitted by approval/permission of local society, taken possession in empty farm or land own by countryside or country land, ground owned by clan or family which wide enough in the countryside utilize to give help of whereas till they regain to area or location of previous origin for the purpose of especial to help humanity which is suffering or precisely " human reason". In growth hereinafter this settlement land's problems become especial matter which often generate social problems in refugee society by themselves and also to local society where place evacuate, reason or precisely mention as " requirement of settlement" because in place evacuation of generally built tend or the emergency barracks which only function as temporally shelter, whereas fact which they face themselves have to live in this evacuation of non in just week or day quantification but up to months, even years. Reason which is often proposed by all refugees that they do not own motion space as a residence house which is generally consisted of the bed room, kitchen, family room, sitting room which can give freshmen of privacy, calmness or as a residential house to a family. All refugee then cope to extend their dwelling place location or region if enabling for that, if do not enable for that, they will try to contact local resident utilize to rent or permit they make semi house of permanent / for a while for taking possession of competently as a family in place they come previously. Others problems of place of dwelling which oftentimes arise somewhere the evacuation is not available of medium source of clean water so that all refugee have to cope to dig well for daily water consume, existing problems if place of their evacuation is arid location that they cannot easily obtain wellspring source, this means themselves have to ask permission to bail water at wells own by local resident or go to source of proximate wellspring. Ad.2. Land for the Effort Land for the effort very required to all refugee for having cultivation, in laboring this farm do not see what previously they represent farmer or non, this matter caused by a pressure will live where claimed them to fulfill their requirement of the food. Refugee who gone to the wall by requirement of this food will generally meet owner of farm to can be managed by themselves. Generally they are permitted to plant short age corp ,like maize, cassava (kasbi), parsnip, banana, etc. All refugees also cope to open kiosk by renting farm lawn of local resident. As we know at a period of conflict a lot of aid incoming economic enable ness to overcome difficulty of refugee by way of economic enable ness, fishery sector, commerce, and also agriculture, all refugee with permission of countryside or owner of farm then extend their location of cultivation on the chance to overcome difficulty of their economics, there are some area where group of effort (business) develop do not just to refugee but also entangle local resident as member of group of effort. Ad3. Land for Public Needs All refugee which live in area evacuation realize that themselves not yet known when they regain to their origin area, they feel various essential requirement for example their children education have to immediately overcome, they cope to send to school their children at school in proximate countryside from evacuation place, but there is refugee which feel that school location closest in place their evacuation enough far, so that they cope to can found emergency school , follow the example of refugee from Siaputih which have constructed emergency elementary school in Piru before they return to their origin area in the year 2005. In the case of observance the refugee which is most coming from the same countryside, generally they constructed emergency of observance building with permission of landlord of land or land owner. From especial three things representing requirement of refugee of land or the farm we can see several things which can become problems later on day of refugee with local resident, or among/between humanity of local resident, for example : 1. Dispute of ownership of farm / land 2. The change of traditional regional boundary of countryside (petuanan) Bolt from two matter above we have earned to see that effect of resident displaced forcibly that happened during riot created conflict potency especially concerning land problems, if we trace farther in regency SBB there are some region owning dispute problems " ownership of land" that happened among/between countryside where each countryside claim that the land represent property those who validate. Through this social study, we try to check several things concerning base claim for the land evaluated from several things, for example from customary law study, agrarian law and how solving dispute for both parties . From result which we find in field for example in area Hunitetu, Hualoy, Seriholo, Loki, Lisabata, Wakollo there are some problems of nucleus drawing to be studied by concerning local culture / mores which can be wearied as a middle course to the solving of a dispute of land to discuss at chapter of second from this report. _____________ CHAPTER II CUSTOMARY LAND’S LAW IN WEST SERAM Mostly land in West Seram is custom land (tanah adat) which bow or mastered by (PETUANAN/VILLAGE’S MASTERING AREA) rights from a country or countryside Petuanan boundary of a country / custom countryside in West Seram generally not merely in just place of garden or residence ground scope but also cover forest, river and all result which exist are in it. Generally boundary from a region of custom petuanan of countryside marked with nature sign for example nature border in the form of river stream, mount or hill, stone, forest, etc. Besides in petuanan boundary land a custom countryside also cover region of territorial water as long as coastline in continent and to water as long as to sea whereabouts the human being still can see its base or often in Ambon referred as "tubir ". From boldness result proposed by all resource person specially in sub district Kairatu in countryside of Hunitetu, regional Hualoy and Seriholo boundary determination of petuanan a countryside is initially specified by all grandfather or ancestor through “saniri” or country government body of custom, a custom federation in the past through an agreement with among / between custom federation which abut on In Subdistrict of Kairatu three of our respondent phrase they own council of custom usher federation of custom that is recognizing by the name of council " TALABATAI" or " SANIRI TALABATAI", council of this custom confessed by existence for country of custom which geographically and also the cultural approach of its situation bunch up with River of Tala cavity which its stream be at Sub district Kairatu, while center of Sub district of Kairatu at Kairatu country or federation of custom of Countryside of Kairatu as representing member of Saniri Talabatai. Along with growth sum up members of soul of a custom federation / petuanan a country of custom in growth hereinafter managed by member of the federation become property or rights of individual ness where rights of his processing or domination stronger than petuanan rights. Role of custom federation do not disappear off although the civil of land have been mastered by individual / family / group, governmental of country from the custom federation still own role to limit (rule) of law deed, conducted by the mentioned land owner utilize to police as expecting that opening or managing of a petuanan land can create prosperity for member of the federation. 1. Individual Rights and Petuanan Rights Customary law embrace ground “managing to mean to own" if person manage a farm which have never done in its petuanan region, he get legitimacy custom that he is one who most authoritative master and enjoy everything which grow on the farm which open. In this case rights of petuanan position become weak when member of federation of other custom without considering enjoying what have been labored by the opener of mentioned farm. There are some primary factors resulting its weakness rights of petuanan to land which have been labored by individual ness of member federation of the custom. Strong and Weak change it rights of petuanan to rights of individual ness if correct realigning there are three special steps: a. Land which got from effort, where influence of power rights of petuanan very strong, once member of federation managing only have rights just effort, if pertinent leave or neglected land of his effort and assumed to make a mistake to impinge rule of customary law hence his land is revocable by federation of the custom. b. Land which got because gift belonging of custom federation can be bequeathed by clan rights handle, although strength of rights of individual ness here very strong but strength of rights of custom petuanan still own role observe like exploiting of the land and its transferring to others, whether be domination one who entitled to inherit or not. This land is included in land of country generally which passed to children of country with obligation do common/ public duties of country, in Island of Ambon and Archipelago of Lease recognized with ground dati (tanah dati), the kind of ground, has two strength, strong rights that is rights of individual ness confessed by its existence of the organizer and rights of custom federation arranging its exploiting. c. Heritor land, at this land is strength from group or individual ness very strong or absolute, so that the petuanan rights seen as if disappear where rights to arrange full owned by the rights handle. Position custom Federation here only as rights marker or eyewitness at the time of happened by the land right switchover to other party, follow the example from the land is ground dati patrimony. Existing in practice land as result of works getting full legitimacy by generations so that represents materialization from the property makers. In our observation in West Seram Ground of Dati less be recognized, this matter effect of lack of Dutch influence, follow the example in region Sub district of Taniwel do not own orchard of dati but in principle much be same to that confession of rights will obtained by that organizer of first land very in majoring as rights handle. 2. Regional Boundary A Custom Petuanan In customary law unknown to mapping of location with a sure size measure for example meter of square however, which often wearied is boundary which can be seen with eye for example in the form of tree which can be recognized when this tree start planted and in this time appraised about how many old, river represent individuality boundary of uppermost region in Seram Island because this Island is consisted of hundreds of rill having water as well as juiceless river or run dry, boundary usher mount or hill, stony, etcetera. Problems which oftentimes raised if this nature boundary disappear, for example dead nature boundary as tree, for example river metamorphose effect of weather change or for example wide of a river changing caused by deluge of course very influence is wide the land which abut on, this matter often represent root of regional frontier dispute customary right for land. From research result in regional boundary field is petuanan besides specified on approval with ushering the country which abut on , determined also from war history that happened in the past whereabouts in Seram island, for example custom Seriholo federation confess that they have 7 ( seven ) times migrate from their old country to existing place now. Custom Lisabata federation also say same thing that they have 5 (five) times make a move from their provenance. If we correct reading the saying - this existing saying ahead is often happened by the war usher custom federation one to another, where winning will own broader region from which fail or which fail have to leave his origin country go to other area, for example Custom Lumoly Federation in Piru in history represent alliance team from Custom Eti Country where they batter custom federation which in bad books by Eti for example they batter Kaibobo so that some of resident from Kaibobo defect to region Hoamoal in the cross recognized by the name of Ariate. In area of Taniwel , Country of Wakolo known as " naughty child" because militaristic so that they are a lot of mastering region of mountain with boundary of petuanan confessed by Country of Nuniali and Country Murnaten. Country of Lisabata in Taniwel recognized by region neighbors petuanan as one who make a move from region of North Part of East SERAM or East Lisabata, but resident of Lisabata by self confess that they is one who first inhabit coastal region and they confess that they were at one's feet of Hoamoal empire in ancient time. Differ things with Country of Loki, their confess that region of their petuanan as the last boundary from War of Hoamoal where Country Loki as the last place encounter among countries in Hoamoal with Dutch in Hoamoal War. Country of Kawa in Subdistrict of Piru from information which got before now they represent as custodian of land boundary of Eti Country . Most unique matter in region of Subdistrict Piru is boundary of Countryside abysmal Eti boundary from Countryside Piru, this matter is very attractive to be studied, how until the happening of a region of petuanan of custom a federation of custom can reach geographical / region which far away with countryside of origin even through of regional boundary the petuanan countryside of its neighbor. From what have been elaborated above, we can conclude that regional boundary of petuanan in West Seram, in the beginning determined by existence of transfer of resident of effect as existence of war that happened among/between custom country in ancient time. After they do encounter, then they have deliberation to specify petuanan regions of each, perhaps there was more wide and there was more narrow as consequence from the war where stronger will own wide petuanan region. Besides is matter above we can draw a conclusion that regional extension of customary right for land of a petuanan is also resulted by regional opening of forest tilled by member of custom federation, we are in Moluccas recognize term of Ewang or " timberland" what not yet been labored " opening ewang " meaning somebody strive to cut away tree in forest and cultivate it with crop of short age or grow crops as well as with productive crop like clove, nutmeg, durian, etc. One who labor this ewang ground confessed his existence by his custom federation and he is rights handle for all managing, the local society shall no longer mention the land mentioned as " ewang" but conceived of " orchard” . Besides ewang there is other term is called by “Aong” that is forest which have been opened or ewang which have been opened by somebody then the ground which labored neglected or left for the purpose of moving or growing crops in other place . Ex- effort of the first opener is often recognized in term of Aong. Aong by itself can be recognized paid attention to ex- crop of result of crop by the farm opener. This Aong can be likened with farm moving agriculture systems where there is possibility of one who labor this land return to labor his timberland. From our perception in the field Aong is also can represent a root of dispute problem, Aong also serve the purpose of a guide in the event of dispute of petuanan boundary where federation of custom can postulate that their citizen have managed the ground and can be made as a guide to claim a petuanan region. In practice ordinary the opener of forest of bush advice to government of his country and if there no claim from country which about on pertinent hence do not feel have entered forest of petuanan from countryside or neighbors country. 3. Various rights of member of federation for land Rights of Member of federation or individual ness for land is belonging to somebody or group or a legal body according to custom for land such rights dealing with rights of petuanan from country. If emerging rights a kind of this hence rights of petuanan will become weakness, this matter is visible in case of endowment if a land which have been mastered by a family / clan member of federation is hence recognized by a existence " rights of endowment with " in Country of Hunitetu of endowment have the character of maternal or at lineage of mother while in Country of Hualoy of endowment be at lineage of father or have the character of paternal. In customary law in Indonesia the domination in this group is absolute generally to cultivation labored by every member of group/family for cultivation which laboring. From result of our perception in Hunitetu in their land custom do not know existence of transaction for sale of land but more emphasized at cultivation exist on the land. Kinds of concept confession of rights arranged in customary law can be elaborated the following: 1. Property. 2. Right of Property 3. Rights of Enjoy 4. Rights of Majored 5. Rights of Prioritize. Ad.1. Property As we know rights of strongest individual ness for land is property, this property in custom its beginning come from ground of petuanan delivered to member of federation in the form of right of property. In growth hereinafter the strong mentioned right of property progressively and get confession or existence traditionally so that rights of petuanan known and confess that the land have been managed by member of certain federation, unwilling to meddle or express his power to the land. By generations this federation member recognized in his countryside as a / group / family owning property for the land so that the land become heritance land of every family members from that land is entitled for labored or doing efforts on the land . Ad.2 Right of Property Right of property ( generally for temporally time) have to be differentiated with rights enjoy, relate to land, hence right of property stress on land already labored while rights enjoy stress to rights take / enjoying pickings from everything exist on the land. Easiest example here is given by a right of property to till a piece of country orchard with crop short-range, what pertinent do not own rights for cultivation of other exist in for the land, if country prohibit pertinent to garden the above pertinent the orchard hence have to obey it. Everyday in practice frequently the land managed by pursuant to this right of property if by generations managed by a certain family hence is finally confessed by as property. Ad.3. Rights Enjoy Rights enjoy generally in the form of picking right of harvest from cultivation of exist for a farm which have been managed by federation member. Example, if a woman married to enjoy result from orchard of his father with permission from other heir or her brother. Rights enjoy this not merely in the form of crop but also earn in the form of residence lawn. In Country of Hunitetu a child inherit what laboring by his mother family, if in life what got from result of orchard of hid mother family is not assessed to fall short hence he also can enjoy orchard labored by his father family land of patrimony family of his father with permission the lead federation of his father . Follow the example of from rights enjoy this is visible from orchard of country which passed to a king or lead countryside during he govern as countryside head, lead the countryside is entitled to enjoy what is in the orchard to sustain economics of his family. Rights enjoy this visible also to collection pickings of productive crop which do not planting by human being, for example cane, bamboo, resin and marine product residing in countryside sir The labor generally ask permission to government of country to enjoy the natural product, this matter represent to exist from confession of reciprocal rights among/between owner of petuanan that is country of rightful claimant for land and member of federation of custom of rightful claimant enjoy natural product with systems " sharing holder". Ad.4. Rights Majored What such right is right which can disappear of the priority rights. This rights is generally passed to a genuine country child which not yet got land to be managed, if that original country child unable to manage or disregard it hence the rights to manage the can be passed to an outsider which is non original country child. Easiest example of from rights majored is if there is dispute hit Aong hence the rightful claimant majored by the one who open the Aong. Rights majored is generally gone into effect above land there is its rights or the land owner still live. Return at Aong ownership dispute, if later somebody who manage the Aong and the aong there are longevity crop which have laboring by the former Aong opener hence result of the longevity crop have to majored to the first organizer Aong while one who manage later is only given by rights for crop which his yielding only. Ad.5. Rights Prioritize Rights prioritize is a rights which passed to somebody through first opportunity to get something rights for a piece of land which owner or having rights till above his assumed nothing like, example, what pertinent leave country or countryside during which is not certain or the rights given by petuanan assumed to disappear to the previous labor by customary law rule. Country entitled to just show ready to assess able to till the land with reward give inclusion to countryside cash. Especial difference between rights majored and the rights prioritize is land given with rights majored, rights on the land still exist, while rights prioritize generally rights on the land no exist even so there have been assumed to vanish for the shake of law. From description above we can see that in concept of property for land custom in West Seram more seen that the land cannot be transferred its right to individuals of member of custom federation. Which can be transferred the ownership of its rights concerning something that in for the land, for example: house and cultivation only. From saying the king of country of Hunitetu, He also emphasizes that in fact transfer of custom land right of itself could not be “for example changing over custom land right because of process land sales "The changing over rights is only for everything exist on the land non at its land. CHAPTER III ELEMENTARY of LAND DOMINATION IN INDONESIA 1. ELEMENTARY of LAND DOMINATION ACCORDING TO CUSTOMARY LAW Elementary of land domination pursuant to customary law is land represent cooperative ownership (communal) or own from a federation custom law (beschikkingsrech) Elaborated previously that each federation member can do land by way of opening land/ground beforehand and if they do continually hence the land can become property in civil. In this case we can see clarification of Ter Haar about ownership of the following custom: "Customary law give former rights to one who first put sign of his enjoinment or originally open land when he do not do work of hewing and combustion according to season, hence the others can insist on it so that chosen: doing non-stopped or deliver his land other . Become demand ownership of this property vanish at all the when there is the other people of humanity of member wishing it and insist on he chosen one between two choices” Bolt from opinion of knowable expert above that somebody will be confessed the ownership of it as something individual property, if he/she has opened that land and from condition of forest (ewang in Moluccas) becoming garden land, orchard, farm, rice field, etc. During pertinent still do that land, hence he considered to be owner. Become in this case the pressure passed to yield up the ghost from crop which grow on the land which can enjoy of, cause of if he shall no longer manage hence the land can be taken over by others . The Tar Haar Concept can be clarified again by what told as customary right for land rights. Soerojo Wignjodipoero tells in the following “as a federation citizen (communal) hence every individual have the rights for: a collecting pickings forest, is like cane, etcetera b. hunting wild animal which live in communal authority region c. taking result from tree which grow wild d. opening land and do that land continuously e. managing fishpond on the land;” Soerojo mention that rights of customary right for land confessed by federation of this custom is right of property land by individual, but the ownership of this confessed as cooperative ownership of entire society member (communal). Federation member cannot transfer or discharge his right for land opened to member from other society or migrant from outside the society, except with certain conditions agreed on with the entire communal member. All land, forest, if need to top of the mountain, if resident have real right of property and also the rights which silently confessed, that land is non State land. According to customary law, countryside have rights to master land outside countryside frontier, countryside resident have rights to till or earn life from forest with governmental permission of countryside According to interpretation Trenite, The Land is public ownership, but according to Van Volen Hoeven,Logeman,Tar Haar, the land do not below / under state power. Law Systems which base on communal land ownership in this customary right for land view about life social from traditional society it self. In Section 3 UUPA No. 5 Year 1960 expressed emphatically that Rights of Customary right for land still go into effect as long as according to real there is still and have to be adapted for : 1. National importance 2. State Importance 3. Nation Association 4. Do not unconstitutional super ordinate; Mention of Rights of customary right for land represent name given by all jurist of concrete legal institution among societies of customary law with land in its region called “customary right for land". According To Syafruddin Kalo, Rights of Customary consist of two elements those are: 1. Property element which inclusive of civil law area 2.Authorisation element to arrange domination and lead land with inclusive of area law public, where its execution overflowed to custom head by itself or together with all elder custom socialize pertinent customary law. And represent domination rights for highest land is the environment socializes pertinent customary law. Civil rights for some of the land direct and also indirectly stem from him. In law of National Land, customary right for land confessed its existence for a society of certain customary law as long as according to in reality there be still which can be known from everyday activity lead custom and all elder of custom practically, besides confessed in applications is limited so that as according to importance of national and State. Rights of customary right for land which practically nothing like in law of national land, rights of the customary right for land will not be reanimated, and its meaning will not be created rights of new customary right for land. In order to national land law of duty of authorization representing element of customary right for land rights, have come to duty of authorization of Republic Of Indonesia State, therefore rights of customary right for land will not be arranged and UUPA No. 5 Year 1960 nor command to be arranged a cause arrangement of the rights cause to pass off its existence, but arrangement of rights of customary right for land which there be still be let remain to take place according to local customary law. In society of original Indonesia there no a term of public mentioning property for land, just only in its uttering referred by somebody own land, this matter earn us comprehend , because that land rights customary right for land of [common/ public] society and the socialize member only have right of property, actually relation between wearer of land with land so sliver so that seems like his own property, this matter more assured again if rights of weak customary right for land hence that right of property stronger and have absolute seems and they sell-buy, but when rights of that customary right for land remain to be strong hence power of federation law that will be clear, when that land neglected will be re-taken by power of federation and will be passed to member of other federation. 2. LAND DOMINATION ACCORDING TO UUPA No. 5 YEAR 1960 Land Domination rights going into effect by law in Indonesia, arranged in UUPA No. 5 Tahun1960 at Section 2 sounding: (1) On the basis of provisions in section 33 sentence (3) things and Constitution as such in section 1, earth, irrigate and the space, inclusive of natural resources that consisted in highest level mastered by State, as power organization entire/all people. (2) Rights master from State intended in sentence ( 1) of this section give authority for: a. arranging and carrying out allotment, use, and supply earth conservancy, irrigate and space of the space b. determining and arranging contractual terms [among/between people with earth, irrigate and the space. c. determining and arranging contractual terms among/between and people deed of law hitting earth, irrigate and the space. (3) Authority which coming from rights master from the State at sentence ( 2) of this section used to reach maximize of people prosperity, in meaning of happiness, prosperity and independence in society and Body politic of Indonesia which independence to sovereign, prosperous and fair. (4) Rights master from the State above, its execution can be enforced to area of Home rule and customary law societies, simply needed and do not oppose against national importance, according to rule governmental regulation. Rights master such State in Section 2 above mentioned UUPA cover all earth, irrigate and the space, both for having rights by somebody and also do not. Land domination to had land of people with a rights limited by content from that rights, meaning until how much State give power to somebody having to use his right. While power of State for land which is not had with a rights by somebody or other party is very wide and full. For example, State can give land which in such a way that to somebody or legal body with a rights according to his allotment and his need, for example Property, Right Of Tenure By Long Lease, Rights Utilize Building or Right Of Property and or given rights of labored to a authority. In the meantime the State power for this land even also a few or to the number of limited by rights customary right for land from union socialize custom as long as in reality that customary right for land rights still be there. Starting from provisions in Section 2 UUPA No. 5 Year 1960 the can be known that mastering all land State. At that way the State is not arbitrary in ownership, beside labor and manages for the benefit of entire/all citizen. Specifically the rights master than the State have public aspect in the form of 1. Arranging supply, use, allotment and conservancy 2. Arranging contractual terms 3. Arranging contractual terms and deed punish; 3. KINDS OF LAND RIGHT ACCORDING TO UUPA NO.5 TAHUN1960 In Section 4 sentence (1) UUPA N0. 5 Year 1960 mentioned existence kinds of rights for surface of earth called land, which can be passed to and had people, therefore himself and also together with other people and also the legal body. The land right can the in form of: 1. Property 2. Right of tenure by long lease 3. Rights utilize building 4. Right of property 5. Rights rent 6. Exploitation 7. Rights collect result of forest 8. Rights which do not the inclusive of above mentioned rights to be specified with code and also the rights which in character whereas as referred in Section 53 that is: rights of property, rights of effort, sharing holder, rights join with others, and the lease right agriculture; Ad.1 Property In section 20 sentence ( 1) UUPA No. 5 Tahun1960 of Property is strongest rights by generations and full which can be had by people for land remembered rule in Section 6 that is have social function . This property can only be transferred and or change over with an act PPAT (functionary of act of land maker). This property have pallet of that good rights because rule convert like conversion from land of (ex BW and also from land of [ex customary law, and from rights of labor decanted in agreement founding of the rights This property have to be registered by office of local land. Ad.2. RIGHT OF TENURE BY LONG LEASE UUPA arrange to hit rights of effort this start from section 28 till 34. Right of tenure by long lease is rights to labor land mastered direct by state within at longest 25 year if utilized for the agriculture company, ranch or fishery company and extendable Governmental Regulation No.40 Year 1996 section 4 mention that land which can be given with right of tenure by long lease government land. This right of tenure by long lease can change over or transfers to other party as long as do not oppose against section 30 UUPA Authorize for this right of tenure by long lease gift according to section 31 UUPA happened because governmental stipulating. To prove existence a right of tenure by long lease needs registration covering a. measure, mapping land; ground bookkeeping and b. registration by right of its switchover and land c. gift the proof rights, as strong verification appliance. Ad.3. Rights Utilize Building Rights utilize building in UUPA arranged to start from section 35 till section 40, which formulating rights utilize building represent rights to found and have building for land which is non his own property with duration at longest 30 year which can be lengthened by request of handle at longest 20 year. Ad.5 of Rights Rent UUPA No.5 tahun1960 arrange rights rent this started from section 44 until section 45. Somebody, legal body have rent for land, if he entitled to utilize land own others for building paid to the order only his owner as rent Ad.6 of Exploitation and collect result of forest This rights can only be had citizen of Indonesia arranged with governmental regulation. But with rights collect result of valid forest do not by itself obtained property for that land. 4. RIGHTS PROCEDURE FOR GETTING LAND In Indonesia national land law enabled all Indonesia Citizens each mastering a part from land individually with rights for land having the character of person, at one blow contain togetherness element and function social. To fulfill the opened modern society requirement, land merchant institute for example experiencing of modernization and adapted as deed law convincing for land with price payment in the cash, and also the nature of and its characteristic as bold and real law deed Therefore of burden of proof land with act which made by a land act maker functionary (PPAT). This land registry target to increase quality of evidence action law appliance. 5. LAND REGISTRY Congeniality of land registry is " an activity network" what conducted]by State / Government " continuously" and " regular" in the form of gathering of certain data or boldness hit certain land exist in certain regions, managing, depository its presentation for importance of people in order to giving guarantee of rule of law of land area, inclusive of publication of voucher ( as a means of the valid evidence) and conservancy. CHAPTER IV DUTY AND FORMATION LEGAL INSTITUTIION of INTERCONNECTED CUSTOM IN SOLVING OF LAND DISPUTE 1. CHIEF LATUPATI In a region, tell " sub district region" if there are , for example 10 or 15 Countries Head ( King), hence from 10 or 15 people Leads this Countries lifted one of among other things as CHIEF in the case of deputizing friend take hold of to utilize to deputize importance from country staying in the federation of Latupati, for example in bearing of business unrighteous governmental ( vertical) sub-regency chief, regent, governor, or horizontally as figure of custom usher the country utilize to link problems of arising out among/between humanity of countryside or member socialize in the region. Generally lifted one who older age or more experienced in governance of custom or one who figure in corps lead the country. Chief from Country Heads (conceived of This Raja) CHIEF LATUPATI. 2. LEAD COUNTRY ( RAJA) For Countries of Islam and also Christian of lifting a country head (king), pursuant to clan lifted on approval with, and then for suggestion and also the pertinent the approval/permission lifted as Country Head (King). Lead Country has especial role in society namely everything below/under his head, and also undertakes to look after the way customary law. Lead Country is Master of society, he know federation law in society of country and represent head of association live in federation. We have known that generally all head of country have heavy same duty, namely the no other managing need of domestic in societies by itself, and also the outdoors business of social ladder assumed of vital importance utilize importance of his people. Hit business in society oftentimes we find in " land business", because problem of land of since yore, up to delivering the birth of UUPA No. 5 Year 1960 until moment, where law of original land still be strong defended by every country either through person like orchard dati ( area of Ambon Lease , patrimony, and also to rights of his petuanan. On that account role lead country in problem of this land of vital importance in finishing dispute of land before interference of other governmental institution. Example: Unrighteous Agrarian cannot be direct conduct measurement without existence interference for problem of dispute of land in the case of its measurement before finished by Head of Country from society himself. If there is land dispute among/between society member, have to be raised to first as one whom Country Head handling problem. If there is pertinent society member , hence humanity land boundary dispute problem do not direct perform denunciating to institution of is other super ordinate like sub district head handling civil problem, if finding out there is things digressing hence the problem will be brought back to country head ( raja) to get the solving of. By that law the original land (adat) still defense, that cause if there is dispute of boundary of land usher humanity of member socialize, Head of Country of rightful claimant PLACE SIGHTING (area of ambon-lease referred " commission", if / when feeling important and he is entitled to perform mesurements and also make mapping draft / drawing joined the minutes of the called " commission news”. With result “komisi/warta commission" this generally wearied as hold for society member which have dispute . Besides matter above authoritative country head determine rights for member socialize to get land or orchard, and also deciding status of an orchard which the heir loss has. Others Lead countryside also entitled to get country orchard auction pickings and also collect result from each land product or effort to be brought exit from his countryside this matter referred entitled to collect " apanase" or money " nase " for personal domestic and public treasury; 3. BODY of SANIRI COUNTRY ( Saniri Rajapati ) Body of Saniri rajapati / this country council consisted of heads of soa and led by Country Head (raja). Heads of this Soa lifted by head of country according to structure of child of soa of rightful claimant sit on council of saniri country. Leads Country as chief of Rajapati undertake to lead country meetings, judging civil dispute which cannot be decided by king self. In conference of Council of Saniri Country / This Rajapati generally judge problem of civil namely hit dispute of land in society among/between member socialize or converse problem “rights of petuanan which abut other country" If in decision of council or body saniri of this country really the one of the parties dissatisfy or fair, pertinent hence can rise to compare namely to Head of existing Sub district in his territory of jurisdiction. If there is petuanan rights problem if there are collision by one of country society or the member socialize other countryside, hence lead deliberation country have to with body saniri country to think out the, if experiencing of stagnation, hence this dispute can be raised to Council Latupati Sub-Regency chief or party, and if there is insuffiency or assessed dissatisfactory by at law one of the parties hence that decision will be answered to with suing to district court. 4. LEAD KEWANG Lead this kewang have duty observe all rights of petuanan from country, what abut other country, on that account every six months entitled to control boundary of his petuanan along with his kewang staff, and the result reporting to Country Head (King). He observes rights of petuanan in hinterland of until of rights of meti [in] sea. We can say that Kewang as " Forest King", because everything which is concerning ceremony of custom which deal with result of forest and relate to boundary of petuanan the kewang looking after or taking care of petuanan boundary CHAPTER V ALTERNATIVE SOLVING OF LAND DISPUTE In shares to four this we present result of our study field as a study pursuant to evaluation of theory exist in Chapter of II and Chapter IV, related how to be best to finish a dispute of land that happened in special district in West Seram. Through study of this social we measure several things to know storey of understanding of society becoming our responder about problems of dispute of land with method of open question for example: 1. How far mount the understanding of responder about custom of especially legal land of their custom; 2. How far mount the understanding of them about evidence of ownership of land and how to obtain according to order law national land; 3. How their opinion about way of the solving of dispute traditionally expanding their countryside; 4. How their opinion about impact from existence of dispute of land totally; 5. What will be their expectation to government forwards to problems of land dispute; We find some the fact that the land conflict or claim for land not merely happened after riot even far before riot. This matter is our need to focus on what becoming background , what base claim for that countryside boundary or land because economic consideration, security effect the happening of conflict 1999 ago or caused by that good legal insecurity traditionally and also judicially national , how this matter attitude us to look for best way out. Follow the example of case according to boldness from Countryside Wakolo Head that dispute by Lisabata have been happened since Year 1950 where at that moment resident Wakolo evacuate to forest effect of fight RMS and at the time of they return their 1968 orchard year have been cultivated by people Lisabata with longevity crop is like coconut, but its strong effect of custom and mutually understanding result of from that coconut tree enjoyed with up to moment not yet the happening of riot. Tabel.1. Land Dispute and when it started. No. Country Main dispute regarding land Solution Land Status The Impact Dispute Time 1 Hunitetu 1 Problem of orchard inside of Hunitetu country want to be village then orchard of Hunitetu None Country Land There is no law guarantee to orchard land status Before riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to exploitation among member of society The solution will be issued by “ lumani board or saniri board Country land, family / persons Criminal Potential Could be happen every time 2 Hualoy 1 Country boundary dispute with Seriholo country None Not clear yet Criminal Potential Riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to eksploitation among member of society Country authority and saniri board Country land, family / persons Criminal Potential Could be happen every time 3 Seriholo 1 Country boundary dispute with Hualoy country None Not clear yet Criminal Potential Riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to exploitation among member of society Country authority and saniri board Country land, family / persons Criminal Potential Could be happen every time 4 Lokki 1 Problem of orchard inside of Lokki country want to be village then orchard of Hunitetu None Country Land There is no law guarantee to orchard land status Before riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to exploitation among member of society Country authority and saniri board Country land, family / persons Criminal Potential Could be happen every time Local Government Company “ Prajakara” Land 5 Lisabata 1 Country boundary dispute with Wakolo country None Not clear yet Criminal Potential Riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to exploitation among member of society Country authority and saniri board Country land, family / persons Criminal Potential Could be happen every time 6 Wakolo 1 Country boundary dispute with Lisabata country None Not clear yet Criminal Potential Riot until now 2 Dispute among/between member of community regarding orchard, or land boundary or right to eksploitation among member of society Country authority and saniri board Country land, family / persons Criminal Potential Could be happen every time Other the things of Loki there are two opinion concerning land, land of Petuanan of Countryside Loki and also orchard citizen own or abut on direct with ownership land of Company Centre Molucas Government where the land have stood countrified or the orchard which its resident conducive to since era of Dutch from external area of Loki to labor the plantation. If we observe result of this report, conflict about this land since before riot and WHAT becoming factor the root its cause , for example 1. Downhill of it custom role / existence custom 2. Feebleness of Administrative land / governmental (Badan Pertanahan NASIOANAL). AD.1. DOWNHILL OF CUSTOM ROLE / ECUSTOM EXISTENCE Fundamental Code of Agrarian No. 5 Year 1960 confessing existence of rights of petuanan limited to that rights there be still, in Seram island in general there is no registration yet or mapping of land from a countryside, this matter very differ from area of island of Ambon since year 1814 have Had Register of Land of Dati or area of Lease since tahun1823 Matter of this means pallet of rights exist in land in West Seram domination or pallet of its right customary law. From culture of existing custom since away back have often happened the war usher countryside , at the time of ending the war there is agreement for return of boundary repeat for example by using dart bow. From report in our field find that conflict about laboring a farm in countryside happened almost every moment with amount of mean per annual below/under 5 cases in area of the research. In the event of dispute hence role of authority of countryside or body of saniri of country very big to finish as authority of power paid attention to evidence traditionally as proposed at former other chapters in shares of this report. From facet punish countryside have played his role as " countryside judge " in this case saniri of country or at society of custom of countryside of Wakolo there are three clan lifted peculiarly to become mediator or judge : 1. Soa Meli 2. Soa Olli 3. Soa Meseng This Countryside judge will judge and release decision of pursuant to custom evidence, in the event of difficulty hence will be split the difference dividedly the land become two parts boundary return or repeat, for example dispute concerning consequence clove crop from boundary stipulating decision repeat clove exist in border line have to be cut away to become boundary or road for the lawsuit. During we descend in field there is question arising out how if dispute with neighbor’s countryside? this matter not yet been seen clearly at area of Piru and Taniwel but at area of Kairatu confess Council of Talabatai which have released decision of custom concerning boundary from countryside of Kairatu and Hunitetu where countryside of Hualoy domicile as judge or chairman of the meeting at era 1960 . From result of research concerning problems of dispute usher humanity of citizen of countryside of solution finally only at level of countryside and accepted satisfied by both parties which have dispute. Downhill of it role of custom here existence from Council LatuPati, existence of council usher countryside of this custom have to be powered to prevent the happening of conflict usher countryside of have neighbors or showed as mediator of custom because clear existence in custom according to condition from land of countryside of custom exist in West Seram If is not happened an agreement hence the case have to below/under to Court Office according to applicable law rule. Regulation of Appellate Court No. 2 Year 2003 " Mediasi” the solving of dispute through process of consultation of the parties assistive by mediator " From congeniality of mediasi as referred above containing meaning namely " the parties can reach agreement profiting both parties through band of consultation profiting both parties Starting From Regulation of Appellate Court No. 2 Year 2003 hence our need reanimate council of existing custom as mediator perhaps we expect the case can be finished pacifically, without having to through litigation. “Mediator Custom" this expected to become alternative of solving of dispute under colors of existence of the following consideration: 1. Quickening Process of Solving Dispute At law in the court office taking much time and tardy this opinion cannot be blamed because it is true by procedural to start till come up with inspection level a case in District Court require time between 5 up to that 6 months newly at first level inspection not to mention if there is process inspection compare till mount “kasasi” in Appellate Court Although require to be noted here is that its tardy process the solving of this case come from the parties by themselves which less be serious or seriously in finishing dispute, this matter visible from absent of the parties at conference which have been determined. 2. Depressing Expense Costly Opening Case Expense for example for the suing, denominating the parties of local inspection conference and ( commission), expense not yet to express to compare and express” kasasi” process. 2. FEEBLENESS ADMINISTRATIVE LAND / GOVERNMENTAL (LAND NASIOANAL Institution) Land registry aim to guarantee rule of law in land area, from field visit result in sub district Kairatu, Piru And Taniwel there no formal data about land amount which the certificate have but known by is like all refugee taking possession of area countryside kairatu market according to their sub district party own property, while in sub district taniwel there no data at all to the effect that this or unclear, sub district piru also not yet has definitive data. Neither functions of Sub Regency chief as PPAT functionary or maker of land act here nor seen from boldness obtained in Sub district Kairatu in one year more or less 3 acts made in front of Functionary Maker of Act of land that is Sub-Regency chief. Land Policy which has been underlined in furthermore arranged later UUPA in PP. No.24 Tahun1997 in the place of PP. 10 Year 1961. About land registry not yet functioned better. CHAPTER VI SUGGESTION AND CONCLUSION A. the Conclusion 1. Land Customary right for land as long as that there are still existence remain to be confessed by Fundamental Code of Agrarian, in West Seram of this custom land matter there are still visible from the land domination base which mirror in clan or “soa” (family group) or exist in the area 2. Switchover of land right custom still be strong arranged with that good custom power policy Body Saniri Country and also family i.e. soa federation power 3. Custom countryside in West Seram not yet owned order administrative land as commended by UUPA No. 5 Year 1960 because Land National Institution limitation which not yet performed mapping to regional boundary a countryside. 4. Dispute of Boundary of countryside after riot resulted consideration 4 factors: 1. Opening new district so that the land assumed to own economic value. 2. Not clear of regional boundary the petuanan traditionally since hereditary so that the happening of a claim for boundary of countryside only through story by generations about domination of that good land through opening of Ewang or forest, ex- management of Aong or farm ( systems of farm make a move) and especially postulated through war in the past . 3. Loss of experienced border second of countryside like tree, change of river stream etcetera effect change of range of time naturally. 4. Degrades assess moral / custom. 5. Loss of role of custom institutes. Dispute of Boundary of land before riot resulted from: 1. Desire to self-supporting the than status of orchard become countryside resulted to fulfill of condition sum up population for forming of]a countryside however do not own region because not yet release of land right from countryside because opposing against custom in the countryside in the beginning where the orchard have status of land of country or countryside. 2. Do not fair of development between countryside with its orchard. B. Suggestion 1. Custom Institutes Enable ness which live in society like Council Latupati Council Saniri Country or as mediator custom (follow the example of Saniri Talabatai in Kairatu) to finish petuanan boundary dispute a countryside 2. Local Government together with DPRD make a PERDA (local government regulation) about mediator custom to finish land boundary dispute through process mediation custom so that there is clear pursuit law. ___________ RECOMMENDATION I. SUBDISTRICT KAIRATU Countryside Hualoy - Seriholo 1. Government body of both of country has to perform meeting with unrighteous facility of Sub district Kairatu . 2. Unrighteous of sub district of promoters of meeting of custom of countryside of custom or invite all latupati to study reactivation “Council Talabatai” 3. Council of Talabatai formed invite second of countryside which have the dispute to conduct conference of custom about boundary of petuanan land. 4. Result of conference reported to Sub-Regency chief as handle of power in the region to follow up to local government and Institution of National Land. II. SUBDISTRICT PIRU Countryside Loki 1. Unrighteous of meeting initiative sub district usher custom countryside about Loki to determine whether countryside Loki existence of is inclusive of custom countryside or none. 2. Orchards have to prove with evidence legal that land which they take possession of ownership land “Central Molucas District" 3. Unrighteous of countryside Loki have to prove that their countryside represent custom countryside, in the case of relation with claim land of Praja Karya, unrighteous of countryside have to prove existence of Right of tenure by long lease done by PD. Praja Karya enclosed is payment sign evidence from PD. Praja Karya to countryside 4. If countryside party can prove that orchard Wailisa up to Tanah Goyang orchards according to customary law hence the orchard have to bow to Country Loki government because PD. Praja Karya only own right of tenure by long lease ( if its verification that way ). Note - From information lead orchard Waelisa, orchard Siaputi secretary and that countryside Loki society own land in orchard location took possession by this matter themselves is proved with border or retch existence especially in coastal area where abutting on direct with land of PD. Praja Karya ( according to orchard resident) residing in continent position. 5. Verification how to that countryside Loki as custom countryside is through custom council of]all latupati exist in jasirah Huamual and also all latupati who exist in Piru that petuanan land which now inhabited by the orchard resident represent country Loki orchard or land through witness or conference of all latupati. 6. Local government of Central Moluccas have to give chapter and verse the ownership of, hereinafter the Local government have to prove where they get the land, whether custom land? Personal land or government land of ex eigendom ; III. SUBDISTRICT TANIWEL Countryside Lisabata-Waloko 1. Saniri of Country of both countries have to sit with through aid of unrighteous initiative of sub district ( pemerintah) 2. Unrighteous of sub district initiative formed its council of latupati invitingly all king who exist in Sub district Taniwel 3. Council of Latupati formed then call both of countryside to be in session utilizes to delimitate petuanan of countryside both; Appendix: If council of custom or mediator of this custom its decision is unacceptable hence the unrighteous coherence of sub district needed to mediate, if this matter raw hence the parties better sue to District Court brought evidence of decision of custom conference ;