Law and Justice Vol.
No.
1, 2024, pp.
e-ISSN : 2549-8282 https://journals2.
id/index.
php/laj/article/view/5058 Tolaki Customary Law Regulation on Tolaki Community Land Disputes in Lambandia District.
East Kolaka Regency Purnama Gilang Ramadhan Universitas Muhammadiyah Kendari purnamagilangramadhan56@gmail.
Ma'ruf Akib Universitas Muhammadiyah Kendari Wahyudi Umar Universitas Muhammadiyah Kendari DOI: 10.
23917/laj.
Submission Track:
Received:
13 May 2024
ABSTRACT
Customary land is an essential aspect of the Tolaki tribal community, which is jointly owned by them and holds great significance.
However.
Final Revision:
disputes over customary land often arise, leading to compliance with 29 July 2024 customary law and its consequences.
This research seeks to explore the Available Online:
views and regulations of Tolaki customary law regarding land disputes 28 August 2024 and conflicts.
The doctrinal legal research approach has been used in this research to understand how land disputes are handled under Tolaki Corresponding Author:
customary law.
The results indicate that land disputes are considered a Purnama Gilang form of social conflict that arises due to violations of customary civil Ramadhan purnamagilangramadha law.
The resolution process involves a series of customs, and a solution is reached through positive laws.
The Tolaki customary law has laid n56@gmail.
down several principles that guide the resolution process of land According to their customs, the disputing parties must first attempt to resolve the matter through negotiations.
If negotiations fail, the parties must seek the help of their respective customary leaders, who will then guide them through the dispute resolution process.
If the dispute remains unresolved, then the parties may seek the intervention of positive law.
In conclusion, the Tolaki customary law views land disputes as a social conflict that can be resolved through a series of customs and positive laws.
It is imperative to preserve these customs and laws to maintain the sanctity of customary land and ensure that disputes are resolved fairly.
Keywords: Customary Law.
Land Disputes.
Tolaki Tribal Community Purnama Gilang Ramadhan.
Ma'ruf Akib & Wahyudi Umar
INTRODUCTION
The essence of law refers to the collection of rules set by policy holders in the field with the intention of regulating the constellation of national and state life (Ghafur, 2021.
Muhtar.
Maranjaya.
Arfiani, & Rahim, 2023.
Satria, 2.
The product of the law is basically produced absolutely by the legislative institution.
The result itself will not be separated from the concept of politics adapted to the system adopted by a country (Isdiyanto, 2018.
Luthfy, 2.
That is why Indonesia that adheres to a democratic political system will also produce legal products democratically (Dedi, 2021.
Hakim & Sejati, 2.
The concept of democracy is inextricably linked to the interests of the general public, which are shaped by their customs and culture.
These interests are based on the values of justice and truth, which are more readily accepted by the publicAos conscience.
In the event that the legal product is contrary to the conscience of the community, it is inevitable that the legal product will be violated by the community.
The implementation of a legal product also cannot be separated from the main framework of power in a State where the power will play its respective role based on the provisions that have been determined (Ismaidar & Annur, 2023.
Maswanto & Anam, 2.
However, excellent caution is needed in addressing this fact, because power is a unity that is closely related to the State, law and politics that play a role in a constitutional system (Kholifah.
Afifi, & Chasanah, 2.
The relation between law and politics can produce three views that determine the pattern of determination of the two variables (Atmaja, 2.
The first pattern illustrates the legal delineation of political processes, thereby establishing a systematic regulatory framework for political management in accordance with applicable legal statutes.
The second pattern illustrates the manner in which political factors influence the formation of legal norms, creating a context in which competing political aspirations interact and evolve.
The third pattern is the determination of both law and politics, which creates a pattern of balance.
This allows for the proposition that the law is born from a long political process, but that the implementation of political activities must also be based on applicable law.
Such a method needs deep attention to the management of both, considering that the origin of the law is the process of political activity or in other words the law is the product of the political process carried out by legislators (Afifah & Maulana, 2.
In a democratic political configuration, the resulting legal product has distinctive characteristics that can be responsive and authoritarian (Alwan.
Saepudin.
Sari.
Pajar, & Law and Justice Vol.
No.
1, 2024, pp.
e-ISSN : 2549-8282 https://journals2.
id/index.
php/laj/article/view/5058 Purwasih, 2.
Responsiveness presumes the values of justice in accordance with what is expected by society, while authoritarian nature creates a law that is conservative or tends to be orthodox (NiAomatul, 2024.
Afiyah & Hadi, 2024.
Romadhon, 2.
The aforementioned legislation will serve to implement the ideological tenets espoused by the state, as well as oversee the implementation of state-sponsored programs.
In essence, this conservative law will implement ideology and encompass all forms of state programs.
Furthermore, these conservative laws demonstrate a tendency to exclude dominant community participation, thereby facilitating the emergence of legal pluralism, defined as Aua situation in which two or more legal systems coexist in the same social fieldAy (Alves.
Azevedo.
Mendes, & Silva, 2023.
Utama, 2.
This pluralism has created legal conditions that come from both western and cultural (Tamanaha, 2.
This legal pluralism reflects a very crucial legal condition (Holden, 2.
One of the legal pluralisms is that laws derived from the culture of the community are also plural based on the cultural patterns of each region in Indonesia.
This pluralism creates a transitional condition in the field of law involving written and unwritten legal systems .
The existence of unwritten law as explained in Jurisprudence.
Varia Judiciary No.
260 July 2007: 31 is a very important point because all matters related to the needs of society will not be able to be fully accommodated by written law.
The unwritten law may serve as a point of reference for judges in the fulfillment of their duties and obligations.
This is a reasonable assumption, given that Law Number 4 of 2004 stipulates that judges are obliged to investigate, comprehend, and adhere to all matters pertaining to the values of law and justice that are prevalent in society.
The Tolaki tribe as one of the many tribes in the administrative area of the Republic of Indonesia, also has laws that fall into the category of unwritten law.
One of the legal issues governed by the law is land disputes.
One of the events that has occurred is a land dispute between PT.
Hasfarm Niaga Nusantara with the Tolaki Tribe community on 50 Ha of Ulayat land located in the nursery of Site Guedien PT.
Hasfarm Niaga Nusantara.
Lambandia District.
East Kolaka Regency.
In this matter, the Tolaki Tribe community delegated this matter to the Tolaki Customary Council.
In this case, if it is transferred to customary law and has been processed customarily and then lymph again at the District Court, then based on the decision of the Supreme Court of the Republic of Indonesia dated May 15, 1991 Number 1644.
K / Pid / 1988, the case is entered in ne bis in idem, so that the Judge is no longer authorized to examine Purnama Gilang Ramadhan.
Ma'ruf Akib & Wahyudi Umar the case (Antari & Adnyana, 2023.
Zain, 2.
However, the issue of whether the judiciary will consider the existence of community conflict resolution that is resolved by customary means or not raises disagreements, considering that Indonesia is not a country that adheres to the Anglo Saxon legal system so that judges are not bound by jurisprudence .
revious judges' ruling.
(Purba & Hadiningrum, 2024.
Panggabean, 2.
That is why scientific studies are needed to reveal the extent to which the regulation of Tolaki customary law on Tolaki peopleAos land disputes can be accepted for the essence of conflict resolution in the community.
RESEARCH METHOD
Doctrinal legal research is the type that deserves to be carried by this research (Askin & Masidin.
, 2.
This type refers to scientific research on the position or position of law as rules, behaviors, objects to aspire to, and facts.
The reasoning in this study is deductive logic based on the dogmatic rational nature of law (Suyanto, 2023.
Warren, 2.
While the approach method that has been used is the statute approach, which is a legal research approach that uses legislation and regulation strategies as the basis for data analysis (Sloan, 2.
In its application, this approach is not only to study the form of laws and regulations, but also to analyze the content of the material contained therein, along with the ontological, philosophical, and ratio legis basis of the emergence of the regulation.
RESULTS & DISCUSSION
Tolaki Customary Law Views on Land Disputes/Conflicts (Sara Ine PekakahiAo.
Tanak disputes are classified as a type of social conflict, which is defined as a conflict directly related to the dispute of rights between communities, villages, governments, as well as workers and company owners (Koodoh.
Alim, & Bachruddin, 2.
This type of social conflict has also manifested in Lambandia District.
East Kolaka Regency, in the form of land disputes between the Tolaki community and PT Hasfarm Niaga Nusantara on Ulayat land covering an area of 50 Ha situated within the nursery of Site Guedien.
PT Hasfarm Niaga Nusantara.
In this instance, the Tolaki people are defending their rights to customary land in order to uphold the values of cultural heritage, specifically the graves of their ancestors (Tano Op.
(Hadi, 2.
Such is the great meaning of land ownership for the Tolaki tribe community so that the legal issues that occur in it are regulated in such a way in the form of customary law Sara Ine Wuta or Sara Ine PekakahiAoa (Omastik, 2.
The historical traces of the Konawe and Law and Justice Vol.
No.
1, 2024, pp.
e-ISSN : 2549-8282 https://journals2.
id/index.
php/laj/article/view/5058 Mekongga kingdoms, have shown the essence of Sara Ine WutaAos customary law with rules established through the Minister of Land Affairs (Tusa Wut.
by giving trust to PuAoutobu in every region in the kingdomAos territory (Yahyanto.
Mayasari.
Irabiah.
Alimuddin, & Jusafri.
Awaluddin.
Lahae, & Ratnawati, 2021.
Hadi, 2.
In the current era, land regulation has been carried out by the government through the Basic Agrarian Law No.
5 of 1960 (Antari.
Windari, & Mangku, 2.
However, the regulation of customary land is still accommodated through the Basic Agrarian Law in article 2 paragraph .
and paragraph .
and article 4 which essentially has ownership rights over land and all its resources contained in it not only given to local governments, legal entities, or individuals, but can also be given to indigenous peoples (Agus, 2017.
Sari, 2.
Ownership of land by indigenous peoples emergence to legal consequences for the land by custom.
And this is recognized by the state as stated in the 1945 Constitution Article 18B paragraph .
which states that the State recognizes and respects the unity of indigenous peoples and their traditional rights while they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia regulated by law (Burhanudin, 2021.
Muhdar & Jasmaniar, 2021.
Alghazali.
Siagian, & Fajar, 2.
Tolaki customary law views customary land .
as having dimensions that can determine its ownership status (Tarimana, 1.
These dimensions can be in the form of land that has been obtained by ancestors, which is characterized by the presence of sago plants with a very long lifespan, buffalo puddles with a clear history, hunting areas, swamps, parts of rivers where fish hunt, and areas in which there are ancestral tombs.
This dimension is readily apparent, as it has been acknowledged and validated by local governments and customary This is elucidated in Chapter I.
Article 1, paragraph .
of the Kolaka Tumur Regional Regulation on the recognition and protection of customary law communities.
It is delineated therein that customary land encompasses not only the land itself but also its contents within a village.
Areas under customary law, whether forest or non-forest, are demarcated by clearly defined boundaries.
These areas encompass both individual and common property, the latter of which is recognized by the Tolaki Mekongga Customary Institution apparatus and has been progressively recognized by the local government.
Tolaki customary law on land disputes (Sara Ine Wut.
covers all types of customary land, both the land left by the king .
utano wonu.
, ulayat .
utano onapo / wutano toono dadi.
and individual property .
u laa ombun.
(Omastik, 2.
People who encroach on Purnama Gilang Ramadhan.
Ma'ruf Akib & Wahyudi Umar customary land have basically violated customary rules .
ustomary la.
Therefore, the view of Tolaki customary law on land disputes that occurred between the Tolaki community and PT Hasfarm Niaga Nusantara is categorized as a civil crime or violation of civil rights.
In other words, they have violated the procedures, procedures and conditions of implementation of customary law (Mosuahala Ine Sara Wonu.
relating to the ownership and management of customary land.
The form of violation can be seen from the contents of customary land recommendation Number 04/MADAGA/VII/2010 issued by the Mekongga Customary Council as stated in Figure 1 below.
Figure 1.
Customary Land Recommendation by Mekongga Customary Council Figure 1 has explained that based on information from the owner of the inheritance of customary land covering an area of 150 Ha, the land managed by PT.
Hasfarm Niaga Nusantara is customary land that should be returned after being given the opportunity to manage it through permits with predetermined boundaries.
The truth of the status of the land as customary land has also been proven through historical traces that show the tenure of the Mokole in 1831-1858 had distributed land to the community.
In 1906.
Mokole, who had assumed office that year, extended an invitation to all village heads in his jurisdiction to assume responsibility for the unoccupied village land.
The responsibility for the administration of the customary land was subsequently assumed by the subsequent Mokole.
The historical data is corroborated by a Law and Justice Vol.
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1, 2024, pp.
e-ISSN : 2549-8282 https://journals2.
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php/laj/article/view/5058 certificate from the former head of Poli-Polia Village regarding the inheritance of land and a letter from PT.
Hasfarm Niaga Nusantara was consulted regarding the land use permit and the minutes of the heir agreement, which were signed by Ladongi subdistrict at that time.
This historical fact is further strengthened by the existence of the ancestral tomb of the descendants of King Mekongga.
Based on these facts.
PT.
Hasfarm Niaga Nusantara essentially has to return the customary land in accordance with the length of the permit granted to it.
This fact can be seen in Figure 2 below.
Figure 2.
Application letter for Return of Customary Land Heritage Referring to Figure 2, it can be seen that there is no clarity from PT.
Hasfarm Niaga Nusantara, then the heirs through the Mekongga Customary Council asked PT.
Hasfarm Niaga Nusantara to immediately return the heritage land belonging to the Tolaki Mekongga indigenous people and rehabilitate the old tombs of the descendants of King Mekongga was affected by the use of bulldozers when the land was used in 1987.
This condition demonstrates that the party obliged to return the land has misrepresented the facts.
The reality is that the land must be returned in accordance with the agreement, yet the party in question has disregarded this and continued to cultivate the customary land.
Therefore.
PT.
Hasfarm Niaga Nusantara in the eyes of Tolaki customs must accept the consequences of custom.
Such constituency is protected by the 1945 Act, as explained in Article Purnama Gilang Ramadhan.
Ma'ruf Akib & Wahyudi Umar 18B paragraph .
and Article 28I paragraph .
Article 18 B paragraph .
states that the State recognizes and respects the unity of indigenous peoples and their traditional rights as long as they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are stipulated in law (Askar.
Sari.
Rahmadani.
Melyandra.
Putra, & Permata, 2.
Article 28 I paragraph .
states that cultural identity and rights of traditional communities are respected in line with the development of times and civilization (Belgradoputra.
Pratiwi.
Mardani.
Widodo, & Nugraha, 2.
Tolaki Customary Law Regulation on Land Disputes/Conflicts (Sara Ine Pekakahi'.
Referring to the civil case of land disputes that occurred between the Tolaki community and PT.
Hasfarm Niaga Nusantara on Ulayat land covering an area of 50 Ha located in the nursery of Site Guedien PT.
Hasfarm Niaga Nusantara in Lambandia District.
East Kolaka Regency, then the actions that have been taken by PT.
Hasfarm Niaga Nusantara that does not return customary land in accordance with the limits of its management permit is an act of distorting the facts.
According to the legal view.
Tolaki will be sanctioned, in the form of customary fines with an obligation to the violator to pay one live buffalo (Hadi, 2.
The fine is paid after a trial or customary court conducted by the local customary authority has resulted in a consensus decision (Koodoh.
Alim, & Bachruddin, 2.
In accordance with Tolaki customary law, any individual who violates customary rules pertaining to the use of customary land will be subject to the customary fine.
This penalty will be applied impartially, regardless of the individual's social or economic standing.
This evidence demonstrates that the Tolaki customary law regulation on land disputes aligns with the theory of social justice.
Social justice has been reflected by the third precept of Pancasila, which focuses on the objective value of justice in an effective manner without being limited by the type of conditions experienced by the community (Wahyuddin & Rahmadani, 2022.
Rato, 2021.
Rizani.
Hasan, & Umar, 2023.
Tista, 2.
Settlement of conflicts or land disputes between the Tolaki community and PT.
Hasfarm Niaga Nusantara does not necessarily give customary fines (Soke.
to parties who violate customary law.
Previously, the Tolaki people would have sought to resolve land-related disputes through customary means, which entail consequences that have been previously At the time of legal arrangement, the customary law of the Tolaki tribe and national law were both in effect simultaneously.
In some cases, the settlement will first be taken through customary channels, where puutobu and toonomotuo as the person given responsibility for this Law and Justice Vol.
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1, 2024, pp.
e-ISSN : 2549-8282 https://journals2.
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php/laj/article/view/5058 to take care of the dispute resolution process.
However, in some other cases, the dispute resolution is directly submitted to the district court in accordance with the provisions in force in the territory of the Republic of Indonesia (Koodoh.
Alim, & Bachruddin, 2.
Tolaki customary law arrangements for conflicts include land settlement issues (Koodoh.
Alim, & Bachruddin, 2.
done with the following steps:
Mombesara with kalo sara in front of puAoutobu .
raditional chie.
, with the essence of the preface contains the purpose and purpose of the meeting/trial.
explain in detail all statements / confessions of the perpetrator along with evidence of customary violations committed and his application to the court.
explain in detail the statements of victims to the assembly session.
express opinions or suggestions about various alternative forms The appropriate punishment to be imposed on the perpetrator to the hearing panel is in accordance with the type of offense committed by the perpetrator.
PuutobuAos feedback as well as personal suggestions and opinions Suggestions and opinions from traditional elders .
oono motu.
Suggestions and opinions from traditional elders or traditional institution apparatus sara Request for prosecution from those representing the victimAos family.
Pleas and statements of apology from those representing the perpetrator.
Submission of conclusions of puutobu .
raditional leader.
opinions as well as legal decisions handed down by the court to the perpetrators.
The decision of the trial pronounced by the puutobu is final and cannot be disputed/contested by anyone.
Determination of the implementation of punishment for perpetrators and the realization of their implementation.
The closing by the pabitara also marks that the traditional events and ceremonies of the matter have been completed.
When the court decision requires the perpetrator to be given a fine of 1 .
live buffalo, the fine must be sought no later than three days the trial process has been completed.
The fine is handed over through the local puutobu/toonomotuo .
raditional chief/traditional leade.
(Koodoh.
Alim, & Bachruddin, 2.
If one party disagrees with the result of the customary proceedings, the further transfer is given to the police for processing in accordance with applicable laws and regulations.
In essence, the delegation has provided a conduit for customary Purnama Gilang Ramadhan.
Ma'ruf Akib & Wahyudi Umar law to be implemented as a last resort, effectively establishing positive law as the final recourse when there is no common ground.
Conversely, the rejection of a customary practice also has adverse consequences for the individual in question, as it effectively negates the very custom that is being rejected.
The Tolaki people hold the view that this has the potential to cause significant disruption to their social structures.
CONCLUSION
In the context of Tolaki customary law, land disputes and conflicts are conceptualized as a form of social conflict that is closely intertwined with the dispute over the rights of one party against another, both within and across social groups.
One of the parties involved is the perpetrator, who has violated the rights associated with land ownership and management.
The Tolaki customary law approach to resolving land disputes entails the incorporation of conflict resolution provisions that have been inherited from the ancestors of the Tolaki tribe.
However, it also incorporates positive law as a final recourse for conflict resolution.
REFERENCES