The court decision is very be expected by the parties to settle disputes berperkara them well. In other words, the parties expect to dispute the existence of legal certainty and justice in cases that are currently faced.
In order to give the court decision that actually creates the certainty of the law and reflects the sense of community justice judge as "pemutus" must really know the things to sit and legal basis to be used. Other decisions must be strictly implemented in order to be after.
Review of cases in the watchlist this time was a problem of execution that is based on the Supreme Court decision that is not clear in the decision of the Tax 47/K/AG/2001 / grant of land disputes between Hj. Siti Khalijah Daeng Bau with his friends as a plaintiff against Muhamad Ali Haji Yusuf Tjolleng (Hamath Joseph) (Alm) as the accused. The previous review was in the Religious Makassar.
II. Chronological CASE
Long before H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora died Almarhum H. Tjoleng Dg. Marala during his life has been to give / distribute grants both own property and property that does not move to each of her son who was five (5) people, with the size of each child are as follows:
a. Children First Hj. St. Khalijah Dg. Bau get permanent homes with land is located on Jl. Tinumbu Lrg. No. 148. Ujung Pandang added 16 necklace, bracelet and some gold Ringgit United States
b. Hj second child. St. She Dg. Tayu get the land, its permanent home is located on Jl. Tinumbu Lrg. No. 132. Ujung Pandang 7 plus necklace, bracelet and some gold Ringgit United States
c. Drs third child. Hamath Joseph obtain land on Jl. Andi Pangeran Pettarani, Kel. Sinrijala, Kec. Panakkukang, Municipality of Ujung Pandang 4. 86 Ha
d. Four children Hadollah Djunaidy T. Joseph gain ground in Ujung Pandang and Maros Regency in the area of Ha 5:16
e. Hj fifth child. St Hatijah Dg Taunga obtain the land, its permanent home is located on Jl. Lrg tuna. V No. 3 Ujung Pandang added necklace, bracelet and some gold Ringgit United States.
Grants are awarded in 1950 until around 1973 when her children are grown or dinikahkan, including grants given to Hamath Joseph. Land grants given Almarhum H. Tjoleng Dg. Hamath Joseph Marala to be strengthened with the law of evidence letter dated 7 April 1961 which was attended by the witness A. Djalanti as the Head of Village and H. Andi Mappagiling as head of the Disterik Karuwisi. Grants are also strengthened by Letters statement / Recognition of brother / i Hamath Joseph other on 11 February 1980. All as heirs Almarhum H. Tjoleng Dg. Marala.
In addition to the grants already given to the children appeared to Almarhum H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora property also has a land that is not located in the divided village Samba / Kassi, Baruga Village, Kec. Bantimurung, Kab. Maros. Dispute in this case was the division of property from the heirs claim Almarhum H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora submitted by Hj. St. Khalijah Dg. Bau, Hj. St. She Dg. Tayu, Hj. St Hatijah Dg Taunga, heir of the Hadollah Djunaidy T. Joseph to the Religious of the Drs. Hamath as Yusuf accused.
Object accusation is heir to all the property inheritance. However, the prosecution is only limited to property inheritance is not moving as building a house / dry land, both located in the Municipality of Ujung Pandang and in Maros regency. Including the object is a land claim Almarhum H. Grant Tjoleng Dg. Marala given to Drs. Hamath Joseph (Alm), which is located on Jl. Andi Pangeran Pettarani, Kel. Sinrijala, Kec. Panakkukang, Municipality of Ujung Pandang 31.765M2
In short, The is already be at the cassation by the Supreme Court of the Republic of Indonesia No. 47/K/AG/2001 that land is the land not the land grant heritage, while some amar decision related to the analysis of which is as follows:
- Define the respective heirs (Special land in JL. Pettarani Andi Pangeran Ujng Pandang, land grant owned Hamath Yususf (Alm)) is as follows:
• Hj. St. Khalijah get 4537, M2 ... 86 ...
• Hj. St. She Dg. Tayu get a 4537, 86 M2 ... ....
• Alm. H. Hadollah Djunaidy Y. inherited heirs get 9075.72 M2 ..
• Drs. Hamath get Joseph 9075.72 M2 ... ... ....
• Hj. St Hatijah Dg Taunga obtain land area of 4537.86 M2
- Instruct the accused and the prosecutor of origin to share the wealth and heritage to all the heirs are entitled to appropriate part of each ... ...
- Sita says insurance placed by the Religious Makassar on 10 April 1999 in a foreclosure News Events Jaminan number 537/Pdt.G/1998/PA.UPG land area of 31,765 m2 according to the SHM No. 627, 628, 629, 630, each in 1994 and SHM No. 18/1998 which is located on Jl. Andi Pangeran Pettarani Ujung Pandang ... ... .... Is valid and valuable.
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I. INTRODUCTION
The court decision is very be expected by the parties to settle disputes berperkara them well. In other words, the parties expect to dispute the existence of legal certainty and justice in cases that are currently faced.
In order to give the court decision that actually creates the certainty of the law and reflects the sense of community justice judge as "pemutus" must really know the things to sit and legal basis to be used. Other decisions must be strictly implemented in order to be after.
Review of cases in the watchlist this time was a problem of execution that is based on the Supreme Court decision that is not clear in the decision of the Tax 47/K/AG/2001 / grant of land disputes between Hj. Siti Khalijah Daeng Bau with his friends as a plaintiff against Muhamad Ali Haji Yusuf Tjolleng (Hamath Joseph) (Alm) as the accused. The previous review was in the Religious Makassar.
II. Chronological CASE
Long before H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora died Almarhum H. Tjoleng Dg. Marala during his life has been to give / distribute grants both own property and property that does not move to each of her son who was five (5) people, with the size of each child are as follows:
a. Children First Hj. St. Khalijah Dg. Bau get permanent homes with land is located on Jl. Tinumbu Lrg. No. 148. Ujung Pandang added 16 necklace, bracelet and some gold Ringgit United States
b. Hj second child. St. She Dg. Tayu get the land, its permanent home is located on Jl. Tinumbu Lrg. No. 132. Ujung Pandang 7 plus necklace, bracelet and some gold Ringgit United States
c. Drs third child. Hamath Joseph obtain land on Jl. Andi Pangeran Pettarani, Kel. Sinrijala, Kec. Panakkukang, Municipality of Ujung Pandang 4. 86 Ha
d. Four children Hadollah Djunaidy T. Joseph gain ground in Ujung Pandang and Maros Regency in the area of Ha 5:16
e. Hj fifth child. St Hatijah Dg Taunga obtain the land, its permanent home is located on Jl. Lrg tuna. V No. 3 Ujung Pandang added necklace, bracelet and some gold Ringgit United States
Grants are awarded in 1950 until around 1973 when her children are grown or dinikahkan, including grants given to Hamath Joseph. Land grants given Almarhum H. Tjoleng Dg. Hamath Joseph Marala to be strengthened with the law of evidence letter dated 7 April 1961 which was attended by the witness A. Djalanti as the Head of Village and H. Andi Mappagiling as head of the Disterik Karuwisi. Grants are also strengthened by Letters statement / Recognition of brother / i Hamath Joseph other on 11 February 1980. All as heirs Almarhum H. Tjoleng Dg. Marala.
In addition to the grants already given to the children appeared to Almarhum H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora property also has a land that is not located in the divided village Samba / Kassi, Baruga Village, Kec. Bantimurung, Kab. Maros. Dispute in this case was the division of property from the heirs claim Almarhum H. Tjoleng Dg. Marala and Hj. Marhumah Dg Macora submitted by Hj. St. Khalijah Dg. Bau, Hj. St. She Dg. Tayu, Hj. St Hatijah Dg Taunga, heir of the Hadollah Djunaidy T. Joseph to the Religious of the Drs. Hamath as Yusuf accused.
Object accusation is heir to all the property inheritance. However, the prosecution is only limited to property inheritance is not moving as building a house / dry land, both located in the Municipality of Ujung Pandang and in Maros regency. Including the object is a land claim Almarhum H. Grant Tjoleng Dg. Marala given to Drs. Hamath Joseph (Alm), which is located on Jl. Andi Pangeran Pettarani, Kel. Sinrijala, Kec. Panakkukang, Municipality of Ujung Pandang 31.765M2
In short, The is already be at the cassation by the Supreme Court of the Republic of Indonesia No. 47/K/AG/2001 that land is the land not the land grant heritage, while some amar decision related to the analysis of which is as follows:
- Define the respective heirs (Special land in JL. Pettarani Andi Pangeran Ujng Pandang, land grant owned Hamath Yususf (Alm)) is as follows:
• Hj. St. Khalijah get 4537, M2 ... 86 ...
• Hj. St. She Dg. Tayu get a 4537, 86 M2 ... ....
• Alm. H. Hadollah Djunaidy Y. inherited heirs get 9075.72 M2 ..
• Drs. Hamath get Joseph 9075.72 M2 ... ... ....
• Hj. St Hatijah Dg Taunga obtain land area of 4537.86 M2
- Instruct the accused and the prosecutor of origin to share the wealth and heritage to all the heirs are entitled to appropriate part of each ... ...
- Sita says insurance placed by the Religious Makassar on 10 April 1999 in a foreclosure News Events Jaminan number 537/Pdt.G/1998/PA.UPG land area of 31,765 m2 according to the SHM No. 627, 628, 629, 630, each in 1994 and SHM No. 18/1998 which is located on Jl. Andi Pangeran Pettarani Ujung Pandang ... ... .... Is valid and valuable.
Decision is now the law be fixed, and executions have been carried out by court clerk Application Youth Court as the Religion News Events Tax 537/Pdt.G/1998/PA.UPG execution date 11 March 2004. Previous Chairman of the Religious Class IA Makassar Aan Maning had conducted within eight weeks with a final time limit on 26 February 2004, as conditions before making a decision on the execution 47/K/AG/2001 number. Quoting the recent introduction of the rowing together with the inclusion of resistance (Derden Verzet) from a third party as the heir tereksekusi. Akan but resistance heirs / third parties are ignored by the Chairman of the Religious Makassar
On 11 March 2004 the Religious execution based on the decision to the Supreme Court of the Republic of Indonesia. 47/K/AG/2001 based on the number and letter agreement between the prosecutor before the First Notary Cita Marlika Parawansa, SH., Which set its land boundaries. However, the large size of each heir, and that does not deviate in accordance Decision cassation MA. Knowing the facts terebut, heir of the Hamath Joseph objections and does not attend the signing and execution of Events News as the Chairman of the Religious Makassar has been arogan and arbitrary justice and ignore the legal community.
III. Main PROBLEMS
Brief chronological description of the above was submitted a few things that have to be analyzed for problems. That this needed to be able to answer questions from the heirs of the Hamath Joseph about the quality of implementation of the execution made the Religious Class IA in Makassar. There are some basic problems that need to be analyzed in the case, that is how nature RI Supreme Court Decision. 47/K/AG/2001 number, and whether the Chairman of the Religious to refuse Derden Verzet heirs Hamath Joseph. In addition, the basic problems that can also be analyzed is how the procedures that must be considered by the Chairman of the Court / Religion before execution?
IV. ANALYSIS PROBLEMS
1. The nature of Supreme Court Decision RI. Tax 47/K/AG/2001
In general, a decision the end of the matter if the views are divided from the top three (3) the decision of a final decision Condemnatoir means a convict, a final decision Declaratoir means that states, announced the fact or strengthen a particular legal decision and the end constitutif a means of fulfilling the provisions of law in a particular case, or cause a particular situation according to Law.
In regard to the nature RI Supreme Court Decision. Tax 47/K/AG/2001 then we see the nature of the third termuat in the decision but this decision is related to the object condemnatoir dispute is only the diktum that says "Instruct the accused and the prosecutor of origin to share the wealth and heritage to all heirs are entitled to appropriate part of each ... .... " This need is described as related to the fundamental principle of the execution-which will be explained further. However, that decision needs to be a condemnatoir the amarnya "share", actually cause problems because the new divide in terms of determining land boundaries should be poured in the decision is not handed to the parties to determine the limit. If submitted to the parties would likely occur the first two have an agreement of the parties to determine the boundary dispute, and the second does not have an agreement to define the boundaries of land disputes. If yangterjadi the dissent is in itself a decision amar condemnatoir yesteryear can not be done, especially as it continued with the execution of the execution itself is based on the decision because it is based non eksetuble return to the agreement of the parties is not on the judge. Quality amar decision like this with amar said the decision does not clear or "amar decision effeminate" (Quasi Condemnatoir) "
On the other hand, when the agreement is not reached to share the command to submit to the judge also can not be performed, right here is why the execution can not be done with the basic decision amar powerless like that.
2. And the execution of the Religious Authority Chairman
The execution comes from the word that means carrying executie verdict (ten uitvoer legging van vonnissen). While the full force is carrying out the decision that the law still has strength, in accordance with the laws that apply because the parties are willing to implement tereksekusi not voluntary. Execution procedure is clearly stipulated in article 195 s 208 HIR and 224 s / d 225 HIR or Article 206 s Bg R. 240 and section 258 s 259 R. Bg
Principles execution
That to implement the execution should be the principle 5:
a. The verdict will be executed is a decision the judge must have a permanent legal force (in kracht van gewijsde)
The Supreme Court Decision Legal Affairs. Tax 47/K/AG/2001 a decision that the court has fixed the strength Law. This can be a fundamental reason for the Religious Makassar to do execution.
b. The verdict will be executed should punish (Condemnatoir)
Supreme Court Decision that RI. Tax 47/K/AG/2001 also be punitive (Condemnatoir) of them with a amar "Instruct the accused and the prosecutor (home) to share the wealth and heritage to all the heirs are entitled to appropriate part of each ... ..." even though This can be a fundamental reason for the Religious Makassar to do the execution, but the previous agreement must be based on the division / determining the boundaries between the prosecutor and the accused first. Once analyzed, this decision is not fully Condemnatoir, but bias and more to the quasi condemnatoir, because amar punish returned in their respective parties, decided by judges without. In the case of this council should not only calculate the amount of the inheritance of the object but the dispute will be more than that the judge must also determine the boundaries, making it easier to be implemented if the execution needs to be done.
c. Decision is not executed voluntarily
That the accused party to this decision not to run the Supreme Court of the Republic of Indonesia. 47/K/AG/2001 number, considering the accused have died of origin so that there are heirs. To strengthen the capacity of heirs and the heirs of Joseph Hamath submit derden verzet which unfortunately is not considered by the Chairman of the Religious Makassar, that the capacity of heir here can be categorized as a third party. We consider that this principle should be used by the Religious Makassar not to execution
d. On the execution command under Chairman and Chairman of the Court by the court clerk or court interpreters sita concerned
Authority to run the execution of the court decision is absolutely only be given to the institution of the Court or Court of Religion. As article 195, paragraph (1) HIR/206 paragraph (1) R.Bg. In connection with this case is the Chairman of the Religious right who perform the execution.
e. Execution must be in accordance with the Decision amar
Execution can not deviate from amar decision, because in case of misuse of amar have the right decision to reject tereksekusi implementation. Amar a good decision can be seen from the legal considerations and the strong results of the examination of the precise details and evidence, witnesses and the facts in the law, and the important amar should be conducted (with eksekutorial)
Sita be that if the execution is the Religious Makassar is not in accordance with the Supreme Court decision Amar RI. 47/K/AG/2001 number, considering the large number of which have been carried out by the Assembly would change at the implementation of the execution.
Implementation of this execution is more amar deviate from the decision because the use and distribution of basic determining boundaries issued by the Notary Cita Marlika Parawansa, SH through the plaintiff's statement alone, the letter because the disability law does not involve the accused origin or heirs at the time the division of (unilateral). More detail below, and a comparison of penentan boundaries undertaken by the plaintiff based on the statement in a letter to the notary's Decision MA specifically for land on Jl. Andi Pangeran Pettaranni:
No prosecutor of the Decision MA Tax Division of the 47/K/AG/2001 Letters For Notary Statement
1
Hj. St. Khalijah Dg. Bau
Get a 4537, 86 M2 SHM number 628 in the name of Joseph Hamath 4652 M2
2
Hj. St. She Dg. Tayu
Get a 4537, 86 M2 SHM number 630 in the name of Joseph Hamath 3486 M2
3 Alm. H. Hadollah Djunaidy Y. inherited heirs
Get 9075.72 M2
SHM number 627 in the name of Joseph Hamath 8554 M2
4
Hj. St Hatijah Dg Taunga
4537.86 M2 SHM get number 18 in the name of Joseph Hamath 3058 M2
The action of the plaintiff or divide determine boundaries of land owned by Joseph Hamath is also a unilateral act which deviate from the decision amar amar is due to the accused and ordered the plaintiff to share their home, and of course must be based on the agreement.
That the decision not to rate MA 47/K/AG/2001 Tax, Judicial review of this matter have been mistaken view that emphasizes the context of the object that this dispute is the "land of inheritance", considering all the rights and responsibilities, control of physical and juridical all have in the accused with the evidence base with a strong right grants, grants are strengthened with other evidence of formal bodies such as land ownership certificate on behalf of the accused, should be criticized is the owner of legal disputes over the object in question. let alone justify control law made in good faith with the top of the goods does not move for 30 years is already a legal ownership. Is the quality and accuracy Hakim tested.
Judges Assembly of cassation review this matter on the rule-BASED atauran in the compilation of Islamic law, especially Article 212 Khi, which states that the property grants from parents to children can be drawn back, and ignore the authentic evidence and other relevant regulations as the basis Law which is tied to the case, including the terms of the Agrarian Law / Law and land matter, council also seemed not to know each other with products related to the Decision The decision is an example PTUN product that has won the accused with the same subject matter. See the reality of law that occurred this principle should be used by the Religious Makassar not to execution, more than that have consequences for the accused to deny the execution of the seizure made by the Religious Makassar.
Barriers execution
The whole basis of the principle-sita executions that need to be understood by the Chairman of the Religious Makassar, there are constraints on the execution of a technical juridical that should be by the Chairman of the Religious Makassar. Obstacles are as follows:
a. Resistance Third Party
Basically a third party may submit a resistance against the execution of a decision. Based on the provisions of Article 195, paragraph (6) HIR/206 paragraph (6) R.Bg. that the only condition that can be received resistance are goods that are executed own. Here you can see that the accused had died of origin at the time of the execution was conducted, so that the object fell into dispute in property inheritance heir Hamath Yusuf, therefore heirs as a third party may be justified to ask for the objection was referred to meet the provisions of Article 195, paragraph (6 ) HIR/206 paragraph (6) R. Bg it. Thus, should be to maintain a sense of justice and humanity execution can be suspended until the examination of the third reason is completed.
Article 207 HIR/227 R. Bg also give the court the authority to carry out executions remain. Which said that the resistance is basically a third party does not delay the execution. However, the Court's authority is limited by Article 208 HIR/228 R. Bg mentioning that the Chairman of the Court could give the command so that the execution be delayed until the court decision against the resistance. Moreover, if the Chairman of the Religious use conscience resistance is of course not be examined or silence does not respond without a clear reason. Juridical technical barriers should be by the Chairman of the Religious Makassar to delay implementation of the execution on the object referred to sita
b. The resistance Tereksekusi
Description ruling a letter with the above will apply to the accused but the origin in this case are accused of origin died so do not fight, the technical obstacles by itself is not juridical dianalisi more.
c. The application Back
The Return is basically the extraordinary efforts of law. So therefore, in principle does not delay the execution, but can be estimated that if the PK will be granted with permission to the Head of the High Court of execution may be suspended. Meanwhile, if the object of terlanjur efforts have executed the law to sue to recoup the applicant with the execution petitum necessarily. That relates to this case PK accused denied then we will not analyze further.
d. Amar Decision Not Clear
When amar decision does not clear before the execution KPN / KPA examine the legal decisions in the Assembly or menannyakan the judge cut off. Amar sesuaian the decision with the possibility of the lack of details, wide-area, boundaries or location of land yaang will be executed. That we see things in this Assembly in the Supreme Court of cassation putusannya only divide the amount of land acquisition for their heirs is still not menetukan where the boundaries lie the parts, and it should be disikapi by the Chairman of the Religious Makassar with:
- Examine the consideration of the decision (Decision No. 47/K/AG/2001 MA)
- If you are still not clear, the head of the Religious of the Assembly should ask the judge cut off the cassation of the
- If these efforts do not provide clarity, the Chairman of the Court can issue a Determination of Non-Eksetuble
That according to our analysis juridical technical obstacles should be used by the Religious of Makassar to delay execution
e. Object execution is the state-owned
Because the object is not the execution of state-owned and not analyzed further.
V. RECOMMENDATIONS
Based on the above analysis it can be concluded that the quality of execution is the Religious Makassar has deviate from the rules and juridical considerations which apply.
That Law No. 4 of 2004 on the power of Justice, Chapter VI, the Court Decision on Implementation of Article 36 paragraph (4) states that "The court decision carried out with attention to the value of Humanity and Justice." That as a noble man who is also mengemban task as "pemutus ", the head of the Religious in the determination issued in this case have been contrary to Article 36 paragraph (4) of Law No. 4 / 2004, by" No Value Given Humanity and Justice. " Of course, this is a record for the judge about the quality of professionalism and the judiciary in Indonesia.
Therefore recommended to the Chairman of the Religious of Makassar to take the following steps:
a. Represent and acknowledge that the determination of the execution MA Tax Decision 47/K/AG/2001 is not valid according to law.
b. Cancel and therefore should not have seen the strength of the Law, News Events execution 537/Pdt.G/1998/PA.UPG Tax on 11 March 2004 because of the division and the determination of the limit as the basis of law execution be carried out against the law.
c. The issue that Decision MA Tax 47/K/AG/2001 the Non Eksetuble.
That this incident should be a good learning process for all the Religious who currently has the authority to independently sita execution. Previous always ask the Religious Fiat execution to the District Court to make a seizure. However, independent authority to conduct foreclosure court Religion should be offset with the understanding and control of the legal and technical procedures juridical foreclosure from court officials so that one of the procedures can be avoided and the most important legal rights of the parties can stay awake and protected form sbagai of rule of law and justice.
The other as a correction to the cassation decision amar, should be aware that depending on the quality of the decision from the point of consideration which the judge was taken. Amar that decision should be condemnatoir firm and eksekutorial, condemnatoir nature and is not returned to the party but should be explicitly written in the light and so the decision can be implemented, without having to wait for the agreement the parties. Amar decision "powerless" to create new problems at the pelaksanaanya especially related to the execution of confiscation, which can lead to legal uncertainty and doubt.
Name: Zainuddin H.Abdulkadir Home: Pontianak, Kalimantan Barat, Indonesia About Me: Nothing ever happened in the past; it happened in the now, nothing will ever happen in the future;it will happen in the now. See my complete profile
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