Uncertainty of Criminal Law Estates, the Court granted Four Farmers Application
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Constitutional Court (MK) through the nine justices to grant constitutional petition in the case of Act No. 18 of 2004 on Plantation, Tuesday (19 / 9). Articles of Estates Act being tested on crime in the plantation proved contrary to the right of everyone to recognition, security, protection, and fair legal certainty and equal treatment before the law and contrary to the rule of law.

Applicant testing and an explanation of Article 21 and Article 47 paragraph (1) and (2) Plantation Act that governs conduct proscribed, ie actions that result in damage to gardens and / or other assets, use of farm land without permission and / or other actions that result in disruption of the plantation business, along with the formulation of legal threats.

Petition was filed by four people farmers, namely Japin, Vitalis Andi, Sakri, and Ngatimin aka Keling. Reading of conclusions and verdict was read directly by Mahfud MD who was re-elected as Deputy Chief Justice in 2011-2014 periods. Mahfud read the conclusion the Court reasoned that the petition according to law. As a citizen of Indonesia, The Petitioners also stated to have legal status (legal standing). While in the ruling of the Court, the Court read the verdict Mahfud grant the petition. "The Verdict, Hearing, stated. To grant the petition of the Petitioners, "said Mahfud followed by the Court in order to load this decision in the Official Gazette of the Republic of Indonesia as it should.

In consideration of the law of the Court, stated the elements of criminal provisions of Article 21 of Law Plantation is: everybody; prohibited: doing the actions that result in damage to gardens and / or other assets; use of farm land without permission and / or other actions which resulted in disruption of the plantation business. Is prohibited from the element result in damage to gardens and / or other assets, according to the Court’s opinion is too broad a definition section."Similarly the words of other assets do not provide clear boundaries," explained the Court.

The phrase use of farm land without permission in Article 21 of Law in explanation said, "What is meant by the use of farm land without permission is an act of occupying land without permission of the owner in accordance with legislation", this Court explained that the act of occupying land without permission of the owner is events or cases that have occurred since the time of the Dutch East Indies.

"The problem of occupation of land without the permission of the owner is so diverse that the solution should be according to considerations of different circumstances: when the emergence of these problems?; Whether the occupation of land is a way to acquire land under customary law?; Whether the occupation is as a state of emergency has been permitted by the authorities? ; whether the occupation is due for legal boundaries indigenous to the area directly controlled by the state is not clear? "said the judges. Court argued that the cases now occur in areas newly opened plantations, most probably due to the lack of clear boundaries of customary rights areas and individual rights based on customary law with the new rights granted by the state.

Thus the imposition of sanctions as stipulated in Article 47 paragraph (2) Plantation Act is not appropriate if it is imposed against a person occupying land under customary law because of the emergence of indigenous rights is ipso facto basis. "This means that someone open, working and harvesting the results of the fact that he had worked the land intensively for a long time, so that one’s relationship with the land more intensively, the opposite relationship with customary rights land increasingly weak." Court continued that as for the granting of new rights in the form of right to cultivate or use rights under ipso jure, that is based on statutory provisions.

Naturally, the protection of the rights of indigenous peoples in the form of the Act may soon be realized, in order to be able to help the state of the rights of indigenous people are increasingly marginalized. "To overcome the problem of farm land ownership disputes relating to customary rights the state should be consistent with the explanation of Article 9 paragraph (2) Plantation Act concerning the existence of indigenous people to meet five conditions, namely (a) people are still in the form of association (rechtsgemeinshaft) (b ) there is institutional in the form of the traditional rulers (c) there is a clear area of customary law (d) existing institutions and legal instruments, particularly the judiciary and customs are still adhered to (e) any affirmation by local regulation "explained the Court.

Court then weighed prior to the study to ensure the existence of indigenous people with clear boundaries as intended by the elucidation of Article 9 paragraph (2) Plantation Act, it is difficult to determine who is in violation of Article 21 and subject to criminal Article 47 paragraph (1) and (2 ) Plantation Act.

The phrase "and / or other actions which resulted in disruption of the plantation business" in Article 21 of Law Estates contains legal uncertainty. "What are other actions which resulted in disruption of oil? If referred to another course of action is very broad and not limited to, for example, can a person convicted of bank credit disbursed late as agreed between the owner by the

banks, so the garden is damaged due to lack of money to buy pesticides plants? Can a landowner was convicted of abandoning his own garden? Or is it the owner of the garden for fear of cutting trees despite widespread crop pest trees is still healthy? Those things are possible can be put into "elements of other actions which resulted in disruption of oil" but will not be qualified as a punishable criminal act. "Court said.

Therefore, unclear formulation of Article 21 - which was followed by a penalty in Article 47 paragraph (1), subsection (2) - create legal uncertainty, which potentially violate the constitutional rights of citizens. Petitioner argues the Court reasoned according to Law. Furthermore, these considerations also apply to requests for an explanation of Article 21 of the Act.

Related criminal threat because the deliberate violation of Article 21 shall be punishable with imprisonment of 5 (five) years and a fine of not more Rp.5.000.000.000, - (five billion rupiah) and because of negligence violates Article 21, punishable by a maximum of 2 ( two) year 6 (months) and a maximum fine Rp.2.500.000.000, 00 (two billion five hundred million dollars), according to the Court because of conflicts that arise over a civil dispute that should be resolved by prioritizing civil deliberation. "Thus, Petitioners’ argument groundless under law "concluded the Court on this article. (Yusti Nurul Agustin / mh/Yazid.tr)


Tuesday, September 20, 2011 | 17:45 WIB 118