Law Journal Legal Review of the Issuance of Ownership Certificates on Customary Land Without Relinquishment of Customary Rights (Study of Decision Number 140/Pdt.G/2020/PN Jap)

Abstract

This research examines the Jayapura District Court Decision No. 140/Pdt.G/2020/PN.Jap concerning a dispute over customary land, focusing on the issuance of a Land Ownership Certificate (SHM) without a valid customary release (Verklaring van Afstand). The core issue lies in the tension between the administrative authority of the National Land Agency (BPN) to register land rights and the legal obligation to protect customary (adat) land rights under national agrarian law and the Papua Special Autonomy framework. The findings indicate that, under both national agrarian principles and Papua’s special autonomy regulations, the release of customary rights is a mandatory prerequisite for individual land titling. The Panel of Judges granted the plaintiff’s claim and declared the actions of the defendant and co-defendant (BPN) to constitute an unlawful act (Onrechtmatige Daad) for ignoring the plaintiff’s prior valid right acquired under customary procedure. The legal reasoning rests cumulatively on Article 1365 of the Indonesian Civil Code, the Otsus Papua regime, and administrative provisions on defective land titling. The study concludes that issuing a certificate without prior release of customary rights violates the principle of social justice and legal certainty. Although the SHM was held non-binding in civil terms, the absence of an explicit administrative revocation order leaves a residual gap in legal certainty at the administrative level.