RATIO DECIDENDI OF JURISPRUDENCE
TOWARD GOOD
FAITH BUYER THAT OBJECTED THE LAND
IN THE
PERSPECTIVE OF PANCASILA PHILOSOPHY
Albertus Usada
Mahasiswa
S3 Program Studi Ilmu Hukum FH UNS
Abstract
Ratio decidendi is the reason for the decision of judge, as a legal reason and
consideration that forms the basis of a judge's decision. The meaning of the
perspective of the Pancasila Philosophy regarding the implementation of
judicial power as the power of an independent state to administer justice in a
general court environment in order to enforce law and justice based on
Pancasila and the 1945’s
State Constitution
of the Republic of Indonesia. In
judicial practice, the determination of the buyer in good faith with a land object
is very dependent on the judge examining and trying the case in question. The construction of the judge's decision to buyers
in good faith with
a land objects includes two
contextual components, a legal
reasoning and a law
making. Context of legal reasoning is done by analogy, to
concretize the principle of law in the provisions of a statutory regulation.
Context of law making is based on the methods of interpretation.
Keywords:
ratio decidendi, verdict, buyer in good faith
Abstrak
Ratio decidendi merupakan alasan
dan pertimbangan hukum yang menjadi dasar putusan hakim. Makna perspektif
Filsafat Pancasila
tentang penyelenggaraan kekuasaan
kehakiman sebagai kekuasaan negara yang merdeka untuk menyelenggarakan
peradilan di lingkungan peradilan umum guna menegakkan hukum dan keadilan
berdasarkan Pancasila dan Undang-Undang Dasar Negara Republik Indonesia Tahun
1945. Dalam praktik peradilan, penentuan pembeli beritikad baik berobjek tanah sangat tergantung
kepada hakim yang memeriksa dan mengadili perkara yang bersangkutan. Konstruksi ratio deciendi putusan
hakim terhadap pembeli beritikad baik berobjek tanah mencakup dua komponen
kontekstual. Pertama, konteks penalaran hukum dan kedua, konteks penemuan
hukum. Konteks Penalaran Hukum dilakukan
dengan cara analogi, untuk konkretisasi asas hukum dalam ketentuan suatu
peraturan perundang-undangan. Konteks Penemuan Hukum dilakukan berdasarkan
metode penafsiran atau interpretasi.
Kata kunci:
ratio decidendi, putusan hakim,
pembeli beritikad baik
RATIO DECIDENDI OF JURISPRUDENCE
TOWARD GOOD
FAITH BUYER THAT OBJECTED THE LAND
IN THE
PERSPECTIVE OF PANCASILA PHILOSOPHY
A. Introduction
The study
of Pancasila is a
paradigm of legal science as according to Sudjito
Atmoredjo[1] to be very important and
needs to be strengthened based on arguments, including:
a. The paradigm is "a set of
values about God, nature, and humans";
b. The paradigm is the source,
foundation, origin, and beginning of the existence and development of
knowledge;
c. The Indonesian science paradigm
is Pancasila. That is, obtaining legal knowledge and practicing legal science
must pivot, process and lead to the values of Pancasila[2].
Along with the study of Pancasila as a paradigm of law,
Indonesia as a Legal State (rechtstaat)
according to the doctrine of "rule of law" or rechtstaat is not merely translated into "a state based on the
rule of law" which, according to Budiono
Kusumohamidjojo, seems most appropriate translated into "a state base
on law".[3]
Philosophers had long developed the idea of the rule
of law from Ancient Greece. According to Plato,
as quoted by Philipus M. Hadjon4,
the rule of law is the second best form to prevent a decline in power. Then in
modern times, the concept of the rule of law was developed in Continental
Europe using the German term rechtstaat[4].
Whereas in the Anglo American tradition, the concept of legal state was
developed as "the Rule of Law" pioneered by AV. Dicey, as quoted by Jimly
Assiddiqie[5],
added that the concept of the rule of law is associated with the term nomocracy
(nomocratie), that the determinant in
the administration of state power is law.
In the context of Indonesia as a legal state (rechtstaat), the implementation of state
power in the judicial field is called Judicial Power, namely the power of an
independent state to administer justice to enforce law and justice based on the
Pancasila and the 1945 Constitution of the Republic of Indonesia, for the sake
of the implementation of the rule of law of Republic of Indonesia[6].
Judicial power according to the 1945 Constitution of the Republic of Indonesia
is an independent power exercised by a Supreme Court and the judicial body
underneath it in the general court, religious court, military court, state
administrative court, and by a Constitutional Court, to hold judiciary to
uphold law and justice[7].
Based
on the considerations and the provisions of Article 1 point number 1 of Law
Number 48 of 2009 concerning Judicial Power, it was concluded that the
administration of judicial power in Indonesia as the rule of law was carried
out by the Supreme Court of the Republic of Indonesia (hereinafter abbreviated
to the Supreme Court) and four judicial environments namely the judiciary
general, religious court, state administrative court, and military court under
the Supreme Court. Thus, the power of the judiciary to administer justice to
uphold law and justice is exercised by a Supreme Court, and by a Constitutional
Court.
In
this paper, it is limited to the General Courts environment as referred to in
Act 49 of 2009 concerning Amendment to Law Number 2 of 1986 concerning General
Courts, which in Article 1 stipulates that the meaning of "Courts" is
district courts and high courts in general justice environment (item number 1);
and what is meant by "judge" is a judge in a district court and a
judge in a high court (item number 2).
It is pointed in Law Number 49 of 2009 concerning Amendment to Law
Number 2 of 1986 concerning General Judiciary, stipulates that judicial power
is an independent power to administer justice in order to enforce law and
justice so that it is necessary to create a clean and authoritative judicial
institution in fulfilling a sense of justice in society.
In the context of the judiciary as a legal process, Satjipto Raharjo[8]
Distinguishes the meaning of "justice" and "court" that is
"justice," referring to the process of hearing, while
"court" is one of the institutions in the trial process. The final
result of the trial process is a court decision, or the word "judge's decision"
is often used because the judge presides over the trial.
What
is meant by "judge" in this paper is a judge in a district court and
a judge in a high court and a supreme court judge in the Supreme Court.
Likewise, the meaning of "judge's decision" can be in the form of a
district court decision and a high court decision that culminates in a decision
of the Supreme Court, which contains the rule of law concerning legal
protection for buyers in good intentions with land objects.
The
phrase "ratio decidendi" of
the judge's decision means "legal reasons and considerations which form
the basis of the decision"[9]
by a judge who is well known in countries with a common law system tradition
which Sidharta[10]
Stated that literally, the term "ratio
decidendi" means "a reason to impose decision (the reason for the
decision), and further Sidharta
quotes Michael Zander's[11]
the opinion that the ratio decidendi
is "A proposition of law which decides the case, in the light or the
context of the material facts."
The meaning of the sub-title "in the perspective
of the Pancasila Philosophy" concerning the implementation of judicial
power as an independent state power to administer justice in the general court
environment in order to enforce law and justice based on Pancasila and the 1945
Constitution of the Republic of Indonesia. Sudjito
Atmoredjo[12]
Mentions the position of Pancasila as the State Foundation and as the source of
all sources of Indonesian law whereas the 1945 Constitution of the Republic of
Indonesia has formulated a meaningful message in the form of the Formulation of
the State's Objectives and the State's Foundation which was formed in the
composition of the Republic of the people with sovereignty based on Pancasila.
Based on the background description under the heading
"Ratio Decidendi of
Jurisprudence toward Good Faith Buyer that Objected the Land in the Perspective
of Pancasila Philosophy," two relevant issues need to be examined, as
follows:
1.
What is the meaning of legal protection for buyers in
good intentions to objectify land in the context of the law of buying and
selling according to the provisions of the legislation and judicial practice in
Indonesia according to the jurisprudence of the Supreme Court?
2.
What is the construction of the ratio of the judge's
decision according to the jurisprudence of the Supreme Court regarding legal
protection for buyers in good faith with land objects?
B. Judicial Power and Pancasila Philosophy
In
exercising judicial power, a judge in a civil case is a judge who receives,
examines and hears general civil dispute cases in the general court environment,
namely the first tier in the district court, the appeal rate in the high court,
and the supreme court judge in the Supreme Court.[13]
The
purpose of the law, as referred to by Gustav
Radbruch in Teguh Presetyo[14]
Covers justice, legal certainty, and expediency as a unitary balance, single or
triune and imperative; but it must not be understood as having a separate
meaning, it cannot be disputed or dichotomized and cannot be seen as an antinomie. Because all three are a
reflection of the nature of the law itself, namely the balance as three legal
characteristics conceptualized as the purpose of the law.
For Indonesia, according to Notonagoro in Kaelan[15]
That the intended legal purpose must be related to the unity of the Pancasila
precepts which is not only a formal logical entity in the hierarchical meaning
in the form of a pyramid of broad sequences (quantity) which indicates an
inherent meaning of meaning, but also see the essential unity of ontological,
epistemological and axiological basis of the precepts of the Pancasila. Thus,
Pancasila is an integrated philosophical system having an ontological basis,
epistemological basis, and axiological basis, which is different from other
philosophical systems, such as materialism, liberalism, pragmatism, communism,
idealism, and other philosophical understandings in the world.
Then,
regarding substantive justice in the frame of Pancasila values is the final and
highest goal of the law enforcement process in Indonesia[16].
In order to achieve that goal, according to Sudjito Atmoredjo[17],
five requirements are needed, namely:
(1) law
enforcement must be based on Pancasila paradigm;
(2) the
joint determination of the law enforcement officers;
(3) law
enforcement must not be separated from moral aspects;
(4) the
courage to liberate from the tradition of legal-positivistic thinking and
acting; and
(5)
involving all components of the nation.
Furthermore,
Sudjito Atmoredjo[18]
Said that there is a common thread that must not be broken between progressive
law, substantive justice, and Pancasila values that must be understood in a
whole and comprehensive manner with a holistic approach, and not a partialist
approach.
C. Judge and Ratio
Decidendi Decision of Civil Judge
In this context, the Judge is the
main actor in terms of a law enforcement process and in issuing decisions. As
explained at the outset, that in exercising judicial and judicial authority in
civil cases is the judge who receives, examines and hears general civil dispute
cases in the general court environment, namely the first level in a district
court, the appeal level in a high court, and the supreme court judge cassation
in the Supreme Court.[19]
In
carrying out its functions, the judge renders a decision that must be based on
the reasons and considerations of why he sentenced such a decision - known as
the ratio decidendi. The meaning of
the Ratio Decidendi is the reasons
that are directly in a judge's decision or the reason for deciding, and legal
considerations are the basis of a judge's or court's decision.
According toSatjipto Raharjo[20]Legal protection is to protect human rights that are harmed by
others, and that protection is given to the public so that they can enjoy all
the rights granted by law. The law protects a person's interests by placing a
power that is measured (sure and in-depth) to act in the framework of those
interests.
Sudikno
Mertokusumo[21] It is stated that the judge's decision as to the rule
of law for the future and is a guideline for other judges to decide a case
similar to that decided by a decision in the future (stare decisis). In using a case approach, what needs to be
understood by the researcher is the ratio
decidendi, which is the legal reason used by the judge to arrive at his
decision. If the verdict is seen as stipulating the rule of law, then the
binding is the consideration or reason directly on the subject matter; namely,
the rule of law is the legal basis for the decision of the "ratio decidendi.”[22]
About legal discovery, Lili Rasjidi[23]mentioning
as concrete juridical decision-making activities which directly lead to legal
consequences for an individual situation (judges' decisions, decrees, notary
deed formation, etc.) Basically, legal discovery is a reflection of legal
formation. Specifically, the discovery of law is the opposite. In the discovery
of the law, it is the specific things that are raised, and at the same time,
the impact of general validation is constrained.Lili Rasjidi[24]Describe
the activities of legal discovery, the formation of law, and legal aid in the
frame of legal development (rechtsbeoefening)
practically, namely the validity of the law in a society that includes
activities in forming, implementing, implementing, finding, interpreting,
studying and teaching law.
D. The Principle of Good Faith in the Agreement
The
principle of good faith in a variety of civil law literature according toWidodo Dwi Putroet al[1]Received
less attention than the principle of consensualism, the principle of freedom of
contract, and the principle of pacta sunt
servanda. According to Widodo Dwi
Putro et al., the position of the principle of good faith is very
important. Before the parties step towards the agreement, agree on the
agreement, and finally must implement the agreement, all must be based on good
faith. In judicial practice, so far, it has been believed that buyers in good
faith must be protected. However, the prevailing laws and regulations do not
provide a clear indication of who can be considered a "good faith
buyer." Article 531 of the Civil Code states that the position of power
(bezite) is in good faith if the holder of the position of power (bezitter)
"obtains material rights by obtaining property rights in which he is not
aware of any defects or deficiencies in them." In the provisions of
Article 1338 paragraph (3) of the Civil Code only stipulates that the agreement
must be implemented in good faith, but also does not specify further about who
the buyer is in good faith. This might be understood because the principle of
good faith is in the area of "values" that are not easy to be
derived in the form of concrete norms.[2]
Some examples of Supreme Court Decisions that state that the buyer is not in good faith, so they
do not get legal protection, are as
follows:
1)
The
decision of the Supreme Court Number 4340 K/ PDT/1986
with the rule of law that good faith is considered to be non-existent because
the buyer is deemed not to have done anything to examine the actual landowner
and the object of sale and purchase.
2)
The
decision of the Supreme Court Number 1816 K/PDT/1989
with the rule of law that good faith is considered to exist if the buyer
examines the rights and status of the seller.
3)
The
decision of the Supreme Court Number 1861 K/ PDT/
2005 with the rule of law that good faith is considered non-existent because
the acquisition of rights (purchase) occurs when the seller is litigating with
the owner (won in this case is the initial owner).[3]
Next, a number of examples of Supreme Court Decisions are given,
in which the rule of law determines buyers
in good faith who receive legal protection, including:
1)
The
decision of the Supreme Court Number 120 K/SIP/1957,
that the plaintiff's claim cannot be accepted, on the grounds that the
plaintiff allowed the matter for 25 years, must be considered to deprive them
of their rights (rechtsverwerking).[4]
2)
The
decision of the Supreme Court Number 550 K/PDT/2013,
that good faith is considered to exist because the buyer (1st)
can show proof of ownership, while the 2ndbuyer
does not.[5]
3)
The
decision of the Supreme Court Number 1778 K/PDT/2013,
that good faith is deemed to exist, due to evidence of the sale and purchase
receipts recognized by both parties. The panel of judges stated that the buyer
in good faith was protected because it was clear that there was evidence of
receipt of money that was acknowledged by both parties.[6]
Based on the legal principles in the Supreme Court Decision above,
it can be concluded that the principle of good faith in the land purchase
agreement in the context of the subject of the agreement, namely the buyer in
good intentions with the object of land must be protected by law. Determination
of the criteria for the buyer in good faith with the object of land is very
dependent on the judge who examines and hears the case in question.
E.
Defining Buyers in Good Faith Buyer that ObjectedLand in
Indonesian Judicial and Jurisprudence Practices
According to R. Subekti[7], the
buyer in good faith is a buyer who does not know at all that he is dealing with
a person who is not really the owner, so he is seen as the owner and whoever
gets an item from him is protected by law. While, Ridwan Khairandi[8]formulating
a buyer in good faith is someone who buys goods with full confidence that the
seller is really the owner of the goods he sells. Another understanding, according to Agus Yudha Hernoko[9],buyers in good faith are honest people and do not know the defects
attached to the goods bought.
The definition of good faith in the sphere of material rights
(ownership rights) on movable objects or property, then based on the provisions
of Article 531 of the Civil Code regulates the position of a person in good
faith if the party obtaining the property rights is not aware of any hidden
defects. In an agreement, protecting parties in good faith is needed by law,
which can provide legal certainty protection, one of the ways is to submit
civil lawsuits to the court.
Based on the search of the literature in
literature
studies,[10]The
sale and purchase of land under customary law are carried out with real, clear,
and cash terms. The meaning of "real" is the will that is said must
be followed by real actions, for example, the receipt of money by the seller
and the agreement made before the Village Head. The meaning of "cash"
is the transfer of rights by the seller carried out simultaneously with payment
by the buyer, and ownership rights have immediately shifted. Whereas, the
definition of "clear" buying and selling of land is carried out
before the Head of Customary or Village Head who acts as an official who bears
the regularity and legality of the transfer of land rights (plus witnessed by
witnesses), so that the act of buying and selling land is known by the public .
Furthermore, the meaning of "buyer
in good faith" as identified in the study by Widodo
Dwi Putro et al[11]as follows:
1. A buyer in good faith is a buyer who does not know
and cannot be assumed to have known that there was a blemish in the process of
transfer of land rights he bought.
2. The buyer can be considered in good faith if he has
carefully examined the material facts (physical data) and the validity of the
transfer of rights (juridical data) on the land he bought, before and during
the process of transfer of land rights. If the buyer knows or can be considered
duly aware of the blemishes in the process of transferring land rights (for
example, the seller's authority), but he continues to buy and sell, the buyer
cannot be considered in good faith.
3. In auction cases, judges' decisions basically
protect the auction buyer, except when the buyer abuses the situation or the
related land rights have been abolished.
4. Although there are provisions that limit that
objections or claims against registered land rights can only be submitted
within a period of five years, this time period is not binding in practice.
Because the provisions of this expiration do not stand alone, but instead
require the goodwill of the certificate holder to be determined by the judge
(see point 2 above), in addition to the certificate must be legally issued and
the land is actually controlled by the certificate holder.
The Supreme Court of the Republic
of Indonesia through Circular letter
(SEMA), namely SEMA Number 4 of 2016, in the Civil Code section has formulated
criteria for buyers in good faith with the intention to provide legal certainty
for buyers with land objects. In the next Civil Room Plenary Meeting agreement,
as attached to SEMA Number 4 of 2016 which perfects the Civil Chamber Agreement
in SEMA Number 5 of 2014 concerning Criteria for buyers in good faith that need
to be protected based on Article 1338 paragraph (3) of the Civil Code, are as
follows:[12]
a.
Conducting
sale and purchase of these land objects with the procedures and valid documents
as determined by the legislation, namely:
-
Purchase
of land through public auctions; or
-
Purchase
of land in front of the Land Deed Making Officer - PPAT (in accordance with
Government Regulation Number 24 of 1997 concerning Land Registration); or
-
Purchase
of customary/unregistered land which is carried out according to the provisions
of custom law, namely:
-
conducted
in cash and light (in front of/known to the village head/local village head);
-
preceded
by a study of the status of the object of sale and purchase and based on this
research shows that the land of the object of sale and purchase belongs to the
seller;
-
Purchases
are made at a reasonable price.
b.
Doing
caution by examining matters relating to the promised land object, including:
- A seller is a person who has the right /has the right
to land which is the object of buying and selling, in accordance with proof of
ownership; or
- The land/object being traded is not confiscated; or
- The land/object being traded is not under
guarantee/security rights; or
- Regarding the certified land, it has obtained
information from the BPN and history of the legal relationship between the land
and the certificate holder.
In
practice, the decisions of the Supreme Court since the 1950s, namely prior to
the enactment of Law Number 5 of 1960 concerning Basic Regulations on Agrarian
Principles (BAL) - have provided an interpretation of the notion of "good
faith buyers" in research of Widodo Dwi Putro et al[13],
the Supreme Court
determines that a buyer in good faith is defined as a buyer who does not
suspect that the person who sells an object (not the only) person has the right
to the object it sells. Likewise, the Supreme Court's rule of law determines
that buyers who are not aware of any legal defects (in buying and selling activity) are buyers in good faith.[14]
After
the enactment of the LoGA, the Supreme Court still defines "buyers in good
faith" as buyers who are not aware of any mistakes in the buying and
selling process (transfer of rights), such as revocation of the power of
attorney of the seller by the owner of the land.[15]As Widodo
Dwi Putro et al[16]said
that good faith also
starts to gain another meaning, that is, the buyer is deemed to have good
intentions if the sale and purchase have fulfilled the conditions specified by
law.[17]Likewise,
the buyer is also considered to be a buyer in good faith, if the land is
obtained from the state auction office, along with the ownership documents.[18]
Directory of Supreme
Court Decisions in the Supreme Court Decisions of the Republic of Indonesia
Number 114 K/PDT/2013[19]mentioning
the rule of law that the buyer as the petitioner appeals argues that he is a
buyer in good faith, because the sale and purchase is done before a Notary /
PPAT, but according to the Supreme Court that because the disputed land is a
wealth in marriage and previously there has been a court decision canceling the
sale and purchase deed based on this, the application must be rejected.
The rule of law in
the Decision of the Supreme Court of the Republic of Indonesia Number 1847 K/PDT/2006[20]stated
that because the sale and purchase were not carried out before the PPAT, the
Supreme Court considered that the buyers, in this case, were not buyers in good
faith, because they already knew that the object of sale and purchase was under
the control of other parties since 1963.
The rule of law in the Supreme
Court Decision of the Republic of Indonesia Number 1923 K/PDT/2013[21]said
that the Supreme Court, in this case, considered that the buyer was not a buyer
in good faith, even though he had held a land title certificate in his name
since 1999 and 2000, because at the time of purchase he was considered not to
be paying attention to land objects which were apparently controlled by others.
The rule of law in the Decision
of the Supreme Court Number 1861 K/PDT/2005[22],
the Supreme Court considers that land buyers are not buyers in good faith, even
though the sale and purchase have been carried out before the PPAT, and a
certificate has been issued because when the purchase was made, there was still
a dispute in court between the seller and a third party. In the dispute, the
seller was finally punished for handing over the land (which had been bought by
the buyer earlier) to his opponent.
The decision of the Supreme Court
Number 429 K/Pdt/2003[23],
it contains the rule of law that according to the Supreme Court, if the BPN has
previously stated explicitly that the object of dispute (related land) comes
from private land which is then declared to be state land, then the transfer of
rights carried out before a notary is null and void. The buyer is not
protected.
Based on the legal norms in each
of the Supreme Court's decisions as mentioned above, it can be concluded that
the meaning of legal protection for buyers in good intentions of having land
objects in the context of buying and selling laws is not regulated in statutory
regulations in Indonesia, and is only known in the legal literature through
expert opinion law or doctrine. In judicial practice, legal protection for
buyers of good intentions with objects of land grows and develops through
jurisprudence, so that the form of legal protection is left entirely to the
judge to determine the criteria for buyers of good intentions with objects of
land.
F.
Construction of RatioDecidendiJurisprudence
according to the Supreme Court Jurisprudence regarding Legal Protection of
Buyers in Good Objects with Land Objects
The
Supreme Court (MA) as the highest State court, which since 2011 implemented the
Chamber System[24]through
the Decree of the Chief Justice of the Republic of Indonesia Number
142/KMA/SK/IX/2011, namely to impose a policy on the application of the chamber
system to the Supreme Court. In the Supreme Court Room System, the Supreme
Court judges are grouped into five chambers, namely the civil chamber, criminal
chamber, religious chamber, state administration room, and military chamber.
The Chief Justice of each room basically only hears cases that fall within the
scope of the authority of each room. The Chief Justice of the Civil Chamber
only hears civil cases, and the Chief Justice of the Criminal Chamber only
hears criminal cases. Likewise, the supreme judge of the state administration
chamber only hears the state administration case.
Meanwhile,
Chief Justice of Supreme Court
M HattaAli[25]emphasized that the room plenary
meeting was aimed at strengthening the room system in handling cases in the
Supreme Court. This room system has several main objectives, as follows:
a.
maintain
unity in the application of the law;
b.
consistency
of Supreme Court decisions;
c.
increase
the professionalism of justices; and
d.
speed
up the settlement process.
The
construction of the judge's decidendi ratio decision according to the MA
jurisprudence on "legal protection of buyers in good intentions with land
object" means how the reason building and consideration of judges in
deciding on a case they handle, namely as a construction of the judge's
decidendi ratio decision based on legal reasoning and legal discovery in
determining the criteria of the buyer having a good intention to take the
object of land as a legal standard through the Supreme
Court jurisprudence
and the Chamber System in the MA towards the unity of the application of the
law and the consistency of the decision.
According
to Ridwan
Khairandy[26],
when a judge hears a
case, then the first thing that the judge needs to do is to correct whether or
not the event that was presented to him is correct. After limiting the event,
the judge must qualify the event. Then, the judge must be able to determine what
law will be applied to resolve the dispute in question. So, here, the judge
must find the law. Judges in Indonesia in finding law can refer to several
sources of law, such as statutory regulations and jurisprudence. In Indonesia,
judges are not bound by previous jurisprudence or decisions of judges on
congruent cases. In this case, the court in Indonesia does not adhere to the
principle of the binding force of precedent or stare decisis[27].
Ridwan Khairandy[28]stressed that the negative impact
of not adhering to this principle is that it is possible for court decisions to
be inconsistent and can lead to legal uncertainty. On the other hand, the
non-adoption of this principle also creates opportunities for judges or courts
to establish new judicial laws that can follow the development of the community
in its decisions.[29]
The
meaning of good faith in the context of Article 1338 paragraph (3) of the Civil
Code by the Surabaya High Court is interpreted as honesty as in its decision
Number 262/1951 Pdt on July 31, 1952 which Ridwan
Khairandy gave a note, that the accuracy for the buyer to examine or
examine (onderzoekplicht) material
facts relating to the sale and purchase agreement. Good intentions are
objective (objective goeder trouw)
based on propriety and propriety (redelijkheid
en billijkheid) as justice. Good faith is subjective (subjective goer trouw) based on honesty.[30]
The construction of the
judge's decision ratio is based on the context of legal reasoning and the
context of legal discovery in determining the criteria for buyers in good
intentions of having land objects as legal standards through the jurisprudence
of the Supreme Court and the Chamber System in the Supreme Court.
Context
of Legal Reasoning
The context of
legal reasoning with respect to a legal principle in the provisions of Article
10 paragraph (1) of Law Number 48 Year 2009 concerning Judicial Power, which
determines that the Court is prohibited
from refusing to examine, hear and decide on a case filed under the pretext
that the law does not exist or is unclear, but rather obliged to examine and
try it.
The legal principles in the
Supreme Court Decision, which basically states that the buyer is not in good faith, so he does not get legal protection, as follows:
1)
The
decision of the Supreme Court Number 4340 K/PDT/1986
with the rule of law that good faith is considered to be non-existent because
the buyer is deemed not to have done anything to examine the actual landowner
and the object of sale and purchase.[31]
2)
The
decision of the Supreme Court Number 1816 K/PDT/1989 with the rule of law that
good faith is considered to exist if the buyer examines the rights and status
of the seller.[32]
3)
The
decision of the Supreme Court Number 1861 K/PDT/2005
with the rule of law that good faith is considered to be non-existent because
the acquisition of rights (purchase) occurs when the seller is litigating with
the owner (won in this case is the initial owner).[33]
Whereas the legal norms in several Supreme Court Decisions below
which basically determine that buyers in
good faith who get legal protection include:
1)
The
decision of the Supreme Court Number 120 K/SIP/1957, that the plaintiff's claim
cannot be accepted, on the grounds that the plaintiff allowed the matter for 25
years, must be considered to deprive them of their rights (rechtsverwerking).[34]
2)
The
decision of the Supreme Court Number 550 K/PDT/2013,
that good faith is considered to exist because the buyer (1st)
can show proof of ownership, while the 2ndbuyer
does not.[35]
3)
The
decision of the Supreme Court Number 1778 K/PDT/2013, that good faith is deemed
to exist, due to evidence of the sale and purchase receipts recognized by both
parties. The panel of judges stated that the buyer in good faith was protected
because it was clear that there was evidence of receipt of money that was
acknowledged by both parties.[36]
Context of Legal Discovery
The
context of legal discovery (rechtsvinding)
with regard to a legal principle in the provisions of Article 5 paragraph (1)
of Law Number 48 Year 2009 concerning Judicial Power, which determines that: Judges and Constitutional Justices are
obliged to explore, follow, and understand legal values and a sense of justice
that lives in society.
The context of legal discovery (rechtsvinding) is carried out by means of the method of interpretation, namely the concretization of the legal
principle in the provisions of Article 5 paragraph (1) of Law Number 48 Year
2009 concerning Judicial Power, which determines that: Judges and Constitutional Justices must explore, follow, and understand
the legal values and sense of justice that lives in society.
Interpretation or interpretation is one method of legal
discovery to provide an explanation of the text of the provisions of the
legislation so that the scope of a rule (law) can be determined for a particular
event. The interpretation by the judge is an explanation that must lead to an
acceptable implementation by the public regarding the rule of law for concrete
events. The method of interpretation or interpretation is a means to find out
the meaning of the text of a statutory provision.
This method of interpretation or interpretation is not the
method instructed by the judge to be used in legal discovery but is a
translation of the judges' decisions that have been handed down. Interpretation
or interpretation are known types, namely interpretation according to language/grammatical, teleological or
sociological interpretation, systematic or logical interpretation, historical
interpretation, interpretation of legal comparison, and futuristic
interpretation.
Based on the legal
principles in many Supreme Court decisions that have become Permanent
Jurisprudence as mentioned above, then further elaboration is with the
enactment of the Chamber System at the Supreme Court since 2011 and applies
gradually from 2012 until now (2019). Therefore, the Supreme Court has provided
guidelines for all judges who have handled cases of a similar or similar type
to previous cases that have been decided and have permanent legal force as part
of the Law of Jurisprudence. The aim is to provide unity in the application of
the law (unformity) and consistency of decisions.
Supreme Court Circular Letter (SEMA), number
4 of 2016 in the Civil Code section as a Result of the Agreement on the Plenary
Meeting of the Civil Chamber, has formulated criteria for buyers in good faith
to provide justice, legal certainty, and benefits for buyers of good intentions
with land objects. In addition, it is also a legal construction as a form of
legal protection for buyers in good intentions to take an object of land in the
perspective of the Pancasila philosophy and as a concretization of good faith
principles (bona fides, te goeder trouw, good faith) as referred to in Article
1338 paragraph (3) of the Civil Code , and the concretization of the principle
of pacta sunt servanda as referred to
in the provisions of Article 1338 paragraph (1) of the Civil Code, which is
dependent on certain conditions, as follows:[37]
a.
Conducting sale and
purchase of these land objects with the procedures and valid documents as determined
by the legislation, namely:
-
Purchase
of land through public auctions; or
-
Purchase
of land in front of the Land Drafting Officer (in accordance with Government
Regulation Number 24 of 1997 concerning Land Registration); or
-
Purchase
of customary/unregistered land which is carried out according to the provisions
of custom law, namely:
-
Conducted
in cash and light (in front of / known to the village head / local village
head);
-
preceded
by a study of the status of the object of sale and purchase and based on this
research shows that the land of the object of sale and purchase belongs to the
seller;
-
Purchases
are made at a reasonable price.
b.
Exercise caution by
examining matters relating to the promised land object, including:
-
A seller is a person
who has the right / has the right to land which is the object of buying and
selling, in accordance with proof of ownership; or
-
The land/object being
traded is not confiscated; or
-
The land/object being
traded is not under guarantee/security rights; or
-
Regarding the certified
land, it has obtained information from the BPN and history of the legal
relationship between the land and the certificate holder.
Thus, the Indonesian Justice System
which is a member of the Continental European legal system (civil law) must
establish a unified application of its law (uniformity) so that in judicial
practice in Indonesia produces consistent or regular decisions, so that a sense
of justice, legal certainty, and legal usefulness can manifest.
G. Closing
Based
on the discussion, as mentioned above, conclusions
can be drawn as follows:
1.
The meaning of legal protection for buyers in good
intentions to objectify land in the legal context of buying and selling is not
regulated in Indonesian laws and regulations and is only known in the legal
literature through the opinion of legal experts or doctrines. In judicial
practice in Indonesia, legal protection for buyers in good intentions with the
object of land grows and develops through jurisprudence, so that the form of
legal protection is left entirely to the judge to determine the criteria for
buyers of good intentions with the object of land.
2.
The construction of the ratio decidendi according to the jurisprudence of the Supreme Court
to buyers of good intentions with an object of land includes two contextual
components, namely the context of legal reasoning and the context of legal
discovery (rechtsvinding).
2.1. The context
of legal reasoning is done by analogy,
to concretize the legal principle in the provisions of Article 10 paragraph (1)
of Law Number 48 Year 2009 concerning Judicial Power, which determines that the
Court is prohibited from refusing to examine, hear, and decide on a case
submitted under the pretext that the law is absent or unclear, but rather
obliged to examine and try it. The reasoning of the law by analogy has an
important meaning as the ratio decidendi
of the judge's decision to answer and explain (whether) the meaning of the
buyer of good faith in the subject of land protected by law in judicial
practice in Indonesia through the jurisprudence of the Supreme Court.
2.2. The context of legal discovery (rechtsvinding) is done by means of the method of interpretation, for the
concretization of the legal principle in the provisions of Article 5 paragraph
(1) of Law Number 48 Year 2009 concerning Judicial Power, which determines
that: Judges and Constitutional Justices must explore, follow, and understand
the legal values and sense of justice that lives in society. The legal
finding based on the method of interpretation or interpretation has an
important meaning as a ratio decidendi
of the judge's decision to answer and explain about (how) the criteria of
buyers in good intentions to object to land protected by law in court practice
in Indonesia through Supreme Court jurisprudence.
Supreme Court Circular Letter (SEMA), Number 4 of 2016 in the
Civil Code section as a Result of the Agreement on the Plenary Meeting of the
Civil Chamber, has formulated criteria for buyers in good faith to provide
justice, legal certainty, and benefits for buyers of good intentions with land
objects. In addition, it is a legal construction as a form of legal protection
for buyers in good intentions of land object in the perspective of the
Pancasila philosophy or as a concretization of good faith principles (bona
fides, te goeder trouw, good faith) as referred to in Article 1338 paragraph
(3) of the Civil Code, and concretization of the principle of pacta sunt servanda as referred to in
the provisions of Article 1338 paragraph (1) of the Civil Code.
[1] Widodo Dwi Putro, et al,
“Penjelasan Hukum Pembeli
Beritikad Baik Perlindungan Hukum Bagi Pembeli Beritikad Baik Dalam Sengketa
Perdata Berobjek Tanah”, Cooperation of the Judicial Sector Support Report
- JSSP and the Dutch Embassy in Indonesia with the Institute for Study and
Advocacy for Judicial Independence (LeIP). , 2016, pg. 26.
[8]Ridwan Khairandy, Itikad Baik Dalam Kebebasan Berkontrak, Program
Pascasarjana Fakultas Hukum Universitas Indonesia, Jakarta, 2004, pg. 194.
[9]Agus Yudha
Hernoko, Hukum Perjanjian Asas
Proporsionalitas Dalam Kontrak Komersiil,1st ed,
LaksBang Mediatama, Yogyakarta, 2008.
Bdk. Jonaedi Efendi, Rekonstruksi Dasar pertimbangan Hukum Hakim
Berbasis Nilai-nilai Hukum dan Rasa Keadilan yang Hidup dalam Masyarakat. 1st ed. Prenadamedia. Jakarta, 2008.
[10]Widodo Dwi Putro et al., ibid.
[12]Supreme Court of the Republic of
Indonesia, Himpunan Kebijakan Mahkamah
Agung Tahun 2017, Jakarta, 2017, pg.48-49.
Bdk. Boedi Harsono, Hukum Agraria Indonesia Sejarah
Pembentukan Undang-Undang Pokok Agraria, Isi, dan Pelaksanaannya. Revised ed. Djambatan. Jakarta, 2005.
[15]Ibid. The rule of law in the Decision
of the Supreme Court of the Republic of Indonesia Number 1230 K/SIP/1980.
[16]. Widodo Dwi Putro, ibid.
[17]Ibid. The rule of law in the Supreme
Court Decision of the Republic of Indonesia Number 1237 K/SIP/1973.
[19]
Vide: Directory
of the Supreme Court's Decision of the Republic of Indonesia at the link
https://putusan.mahkamahagung.go.id/ which was launched by the Supreme Court
for the first time in 2009 in the National Supreme Court Work Meeting forum,
and uploaded on this site. Then, the Registrar's Office of the Supreme Court
since 2011 has further developed this system, so that the decisions of all
Indonesian courts can be uploaded and accessed publicly in the Supreme Court's
decision directory.
[24] Takdir Rahmadi, Sistem Kamar Dalam Mahkamah
Agung: Upaya Membangun Kesatuan Hukum,
in Article Link at
https://mahkamahagung.go.id/id/artikel/2141/sistem-kamar-dalam-mahkamah-
effort-mangun-kesatuan-hukum-profdrtakdir-rahmadi-sh-llm accessed on Wednesday
2 October 2019 at 9.22 PM.
[25]
M. Hatta Ali, Sistem Kamar
Mahkamah Agungin the Online Legal News Link at
https://www.hukumonline.com/berita/baca/lt5c0e437b01b5d/intrying-results-rapat-pleno-kamar-tahun-2018/
accessed on Thursday, October 3, 2019, at 00.12 AM.
[26]Ridwan Khairandy, Itikad Baik Dalam Kebebasan Berkontrak, Program
Pascasarjana Fakultas Hukum Universitas Indonesia, Jakarta, 2004, pg261-262.
[29]Bdk. Sudikno Mertokusumo, Hukum Acara Perdata Indonesia, Liberty,
Yogyakarta, 1982, pg.
160-162.
[30]Ridwan Khairandy, ibid.
[31]Mahkamah Agung Republik
Indonesia, Himpunan Kaidah Hukum Putusan
Perkara Dalam Buku Yurisprudensi Mahkamah Agung RI Tahun 1969-2004, Jakarta
2005.
[37]Vide: Mahkamah Agung Republik
Indonesia, Himpunan Kebijakan Mahkamah
Agung Tahun 2017, Jakarta, 2017, pg.48-49.
[1] Sudjito
Atmoredjo, Hukum Dalam Pelangi Kehidupan,Dialektika,
Cetakan IV, Yogyakarta 2018, Pg.
33.
[2] Sudjito
Atmoredjo referring to the results of the Symposium and Workshop on Pancasila
at Gadjah Mada University (UGM) in mid-2006 as well as the National Seminar on
Pancasila Values at Pancasila University Jakarta at the end of 2006.
[3] Budiono
Kusumohamidjojo, Teori Hukum Dilema
antara Hukum dan Kekuasaan, Yrama Widya, 2nd
ed, third
printing, Bandung
2019, Pg.
227-228.
[4] Philipus
M. Hadjon, Perlindungan
Hukum Bagi Rakyat Indonesia Suatu Studi Tentang Prinsip-prinsip, Penanganannya
Oleh Pengadilan di Lingkungan Peradilan Umum dan Pembentukan Peradilan
Administrasi Negara, Bina Ilmu, Surabaya, pg. 30.
[5] Jimly
Assiddiqie, Konstitusi
dan Konstitusionalisme Indonesia, Edisi Revisi, Konstitusi Press,
Jakarta, h. 152.
[7] vide: Considerations
"Considering" in letter a of Law Number 48 Year 2009 concerning
Judicial Power. Then it is stated in letter b, namely "that in order to
realize an independent judicial authority and a clean and authoritative
judiciary, it is necessary to arrange an integrated justice system."
[9] Compare with Article 33 on item e of the
Constitutional Court Regulation Number 06/PMK/2005 concerning Guidelines for
Procedure in Case Testing of Laws, that the decision of the Constitutional
Court concerning judicial review contains as stated in letter a to Article 33,
in "letter e. legal considerations which form the basis of the decision
".
[10] Sidharta,
March
2019, Ratio Decidendi dan Kaidah
Yuridprudensi pada link https://business-law.binus.ac.id/2019/03/04/ratio-decidendi-dan-kaidah-yurisprudensi/accessed the internet on
Thursday, October 3, 2019
[11] Michael
Zander, 2004, The Law-Making Process,Cambridge
University Press, United Kingdom in Sidharta, ibid.
[12] Sudjito
Atmoredjo, op.cit, pg. 55. It was explained, that the
focus of the study of the position of the Pancasila as the State Base and
sources of all sources of Indonesian law was the focus of the third study, in
addition to the two other study focuses, namely the first about the rule of law
(from rechtstaat to rule of law), and the second focus on the role of the
Pancasila in the formation of law including legal order, as was the topic at
the Pancasila Congress which was the result of collaboration between the Constitutional
Court and Gajah Mada University (UGM) on May 30 - June 1, 2009 at the UGM
Senate Hall, Yogyakarta.
[13]Law Number 49 of 2009 concerning
Amendment to Law Number 2 of 1986 concerning General Judiciary.
[14] Teguh
Prasetyo, Keadilan Bermartabat Perspektif
Teori Hukum, first ed., Nusa Media, Bandung, 2015, pg.122-123.
[15] Kaelan,
Pendidikan Kewarganegaraan untuk
Perguruan Tinggi, Edisi Revisi, Paradigma, Yogyakarta, 2016, h. 13; yang
mengutip dari Notonagoro, Pancasila
sebagai Dasar Falsafah Negara, 4th ed, Pantjuran Tujuh, Jakarta, 1974,
pg,
61.
[17], Ibid.Bdk. Hatta Ali, Peradilan Sederhana Cepat dan Biaya
Ringan Menuju Keadilan Restorartif, 1st ed, Alumni, Bandung, 2012.
[18] Ibid.
[19]
Vide: Law Number
49 of 2009 concerning Amendment to Law Number 2 of 1986 concerning General
Judiciary.
[20] Satjipto Raharjo, Ilmu
Hukum, 5th ed, Citra Aditya Bakti, Bandung,
2000, pg.
53-69. Compared
in Satjipto Raharjo, Hukum, Masyarakat
dan Pembangunan, Alumni, Bandung, 1976.
[21]Sudikno Mertokusumo, Penemuan Hukum Sebuah Pengantar, Cetakan
ke-6, Liberty, Yogyakarta, 2009, pg. 54.
Bdk. Sudikno Mertokusumo dan A.
Pitlo, Bab-Bab Tentang Penemuan Hukum,
Citra Aditya Bakti, Bandung, 2013, pg. 45-46.
[22]Sudikno Mertokusumo, Penemuan Hukum Sebuah Pengantar, 6th
ed., Liberty, Yogyakarta, 2009, h. 54.
[23]Lili Rasjidi, 2004, Dasar-Dasar Filsafat dan teori Hukum,
9th ed., Citra Aditya Bakti, 2004, h. 160.
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