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All Journal Al-Adalah: Jurnal Hukum dan Politik Islam Ekasakti Journal of law and Justice
Dirawati
Universitas Muhammadiyah Kendari
Law, Crime, Criminology & Criminal Justice

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The Legality of Transmigrant Land Evictions from a Constitutional Law Perspective Agung Mubarak; Multi Sri Asnani; Dirawati
Ekasakti Journal of Law and Justice Vol. 4 No. 1 (2026)
Publisher : Master of Law Program, Ekasakti University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.60034/mtqx7a54

Abstract

The transmigration program is a strategic instrument of the state within the Welfare State framework that aims to equalize development and the welfare of the people. However, in its implementation, agrarian conflicts often occur in the form of evictions of transmigrant land for infrastructure development or other strategic projects. The problem becomes complex when the government unilaterally categorizes uncertified transmigration land as free state land, thereby ignoring the constitutional rights of citizens. The purpose of this study is to analyze the legal status and constitutional guarantees for transmigrant land and to test the legality of these evictions in terms of the principles of the rule of law and the General Principles of Good Governance (AAUPB). The research method used is normative juridical with a statutory approach and a conceptual approach. The results of the study indicate that transmigrant land rights are a manifestation of Article 28H paragraph (4) and Article 33 paragraph (3) of the 1945 Constitution, which have the status of vested rights (rights that have been born) since the legal placement by the state was carried out. The absence of a land ownership certificate is not a legal basis for evictions, but rather a form of maladministration and state negligence in carrying out the certification mandate as mandated by the Transmigration Law. The unilateral eviction of the land has been proven to violate the principles of accuracy and legal certainty in the AAUPB and indicates an abuse of authority (detournement de pouvoir). The conclusion of this study emphasizes that the government is obliged to carry out collective certification progressively and prioritize equal deliberation to ensure legal certainty and the dignity of the Indonesian rule of law
Judicial Law-Making and the Limits of Constitutional Adjudication: Reassessing Judicial Power in Indonesia after Decision No. 92/PUU-XXII/2024 Winda Wahyuni; Multi Sri Asnani; Dirawati
Al-Adalah: Jurnal Hukum dan Politik Islam Vol.11 No.1 (2026)
Publisher : Program Studi Hukum Tata Negara, Fakultas Syariah dan Hukum Islam IAIN Bone

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30863/ajmpi.v11i1.11331

Abstract

This article examines the implications of Constitutional Court Decision No. 92/PUU-XXII/2024 for the limits of judicial authority and Indonesia’s constitutional design. The decision not only reviews the constitutionality of Article 118(e) of the Village Law but also formulates an operational norm through conditional interpretation, signaling a functional shift of the Court from its classical role as a negative legislator toward judicial law-making. Employing a doctrinal legal approach with conceptual analysis and limited comparison, the study analyzes the decision, relevant legislation, and constitutional theory literature using qualitative content analysis within the theoretical frameworks of Hans Kelsen, Alec Stone Sweet, Ran Hirschl, and Mark Tushnet. The findings demonstrate that the Court’s normative intervention operates as a corrective mechanism to address legal uncertainty and to protect constitutional rights, while simultaneously generating structural tensions with the principles of separation of powers and democratic accountability. The article argues that the normalization of the Court’s role as a positive legislator risks incrementally altering the institutional balance without sufficient democratic legitimacy. The study’s main contribution lies in integrating national doctrinal analysis with global constitutional debates on the limits of judicial law-making in constitutional democracies, particularly in developing countries with unstable legislative dynamics.
Co-Authors Agung Mubarak Multi Sri Asnani Winda Wahyuni