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The Transformation of Land Law in Indonesia: The Persistence of Pluralism

Published online by Cambridge University Press:  16 April 2015

Daryono
Daryono*
Affiliation:
Universitas Terbuka and National University of Singapore
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Abstract

Transforming a pluralistic tenure system into unified statutory rights has been a major objective of the development of property law in many developing countries. Many law and development scholars have assumed that unified land rights are a pre-condition to development and that a pluralistic tenure land system is a major source of uncertainty and insecurity. This article challenges this commonly held assumption by way of a case study of Indonesia's effort to unify the laws governing land. The author demonstrates that the unification of land law in Indonesia has not resulted in certainty and security of tenure. Instead, this process has been adversely affected by an imprecise private law system, and an inadequate administrative/public law system which has created even more forms of pluralism. The resultant effect of this process is the creation of multiple legal orders governing the current land affairs in Indonesia, such as a formal system, a customary system and a “semi-formal” system.

Keywords

landlawdevelopment
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 5 , 2010 , pp. 1 - 32
Copyright
Copyright © Faculty of Law, National University of Singapore 2010

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References

1 Justifications for development-oriented tenure transformations include social equality, sustainable economic development and to resolve endemic poverty in developing countries. Several World Bank reports emphasise the transformation of property regimes as a fundamental objective. See, for example, World Bank, World Development Report 2006: Equity and Development (Washington: World Bank and Oxford University Press, 2005, online: World Bank http://go.worldbank.org/XP2234QDV0 at 162–168 Google Scholar. See also, World Bank, World Development Report 2005: A Better Investment Climate For Everyone (Washington: World Bank and Oxford University Press, 2004), online: World Bank <http://go.worldbank.org/4DP5PX4M30> at 79–92 CrossRef+at+79–92>Google Scholar; Deininger, Klaus, Land Policy for Growth and Poverty Reduction (Washington: World Bank and Oxford University Press, 2003), online: < http://go.worldbank.org/RDDZ8LJ950> at xvii–xliv Google Scholar.

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13 See generally Fitzpatrick, Daniel, “Beyond Dualism: Land Acquisition and Law in Indonesia” [Fitzpatrick, “Beyond Dualism”] in Lindsey, Tim, ed., Indonesia: Law and Society, (Sydney: Federation Press, 1999) 74 [Lindsey, Indonesia: Law and Society]Google Scholar; see also McAuslan, “Only the Name”, supra note 3, in Bringing the Law Back In, supra note 3. Another phenomenon of legal pluralism has been the presence of “a forum shopping.” See Benda-Beckmann, K. Von, “Forum Shopping and Shopping Forum: Dispute Processing in Minangkabau Village” (1981) 19 J Legal Pluralism 117 CrossRefGoogle Scholar.

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23 The ethical policy was based on van Deventer's essay on “A debt of Honour” to the colonies that became the moral and legal justification for the recognition of customary systems. See Burns, The Leiden Legacy, supra note 14, at 3.

24 McAuslan, “Only the Name”, supra note 3, at 64-77.

25 Ibid. at 71.

26 Sack, Peter, “Legal Pluralism: Introductory Comments” in Sack, Peter and Minchin, Elizabeth, eds., Legal Pluralism: Proceedings of the Canberra Law Workshop VII, (Canberra: Law Department, Research School of Social Sciences, Australian National University, 1985) at 3 [Sack, “Legal Pluralism”]Google Scholar.

27 See McAuslan, “Only the Name”, supra note 3, at 71-4.

28 See Fitzpatrick, “Beyond Dualism”, supra note 13.

29 McAuslan describes the current legal pluralism on land as a polycentric system that operates under different types of market system. Patrick McAuslan, ‘Land policy: A Framework for Analysis and Action’ in Bringing the Law Back In, supra note 3, at 7-8 [McAuslan, “Land Policy”].

30 Boeke, J.H., Economics and Economic Policy of Dual Societies as Exemplified by Indonesia (New York: Institute of Pacific Relations, 1953), at 2 Google Scholar.

31 See Thomas W. Walde and James L. Gunderson, ‘Legislative Reform in Transition Economies: Western Transplants: A Short-cut to Social Market Economy Status’ in Seidman et al, Making Development Work, supra note 8, at 67.

32 See Griffiths, “What is Legal Pluralism?”, supra note 12, at 1-3; See also Galanter, M., “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law” (1981) 19 J. Legal Pluralism, at 17 Google Scholar.

33 See McAuslan, “Only the Name”, supra note 3, at 64-77; See also Fitzpatrick, D., “Best Practice Options for the Legal Recognition of Customary Tenure” (2005) 36 Development & Change 457 CrossRefGoogle Scholar.

34 See von Benda-Beckmann, F., Von Beckman, K., and Griffiths, A., “Mobile People Mobile Law: An Introduction” in Benda-Beckmann, F. von, Von Beckman, K., and Griffiths, A., eds., Mobile People, Mobile Law: Expanding Legal Relation in a Contracting World, (Aldershot: Ashgate, 2005)Google Scholar.

35 See Griffiths, “What is Legal Pluralism?”, supra note 12, at 5, 8; See also Merry, “Legal Pluralism”, supra note 11, at 889.

36 Sack, “Legal Pluralism”, supra note 26.

37 See in general Friedman, L. M., “On Legal Development” (1969) 24 Rutgers L. Rev. 11 [Friedman, “On Legal Development”]Google Scholar; see also Trubek, D. M., “Toward a Social Theory of Law: an Essay on the Study of Law and Development” (1972) 82 Yale L. J. 1 at 2–10 CrossRefGoogle Scholar.

38 Friedman, “On Legal Development”, ibid. at 53. See also eg, Shihata, “Preface”, supra note 9 in Seidman et al, Making Development Work, supra note 8, at xviii; See also Faundez, “Legal Technical Assistance”, supra note 9, at 24.

39 Seven propositions are used as the basis of the liberal model of law and development and these often fail to be established in developing countries. See Trubek, D. M and Galanter, M., “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) Wis. L. Rev., 1062 at 1080 Google Scholar.

40 The heavy-state planning and development have discouraged private sector to grow in many developing countries. See Goodpaster, “Law Reform in Developing Countries”, supra note, at 662; See also Patrick McAuslan, “Law, Governance and the Development of the Markets: Practical Problem and Possible Solution” in Faundez, Good Government and Law, supra note 9, at 28-34.

41 See generally Fitzpatrick, Daniel, “Private Law and Public Power: Tangled Threads in Indonesian Land Regulation” in Nordholt, Henk Shulte and Hoogenboom, Irene, eds., Indonesian Transitions, (Yogyakarta: Pustaka Pelajar, 2006) at 75 Google Scholar.

42 Fitzpatrick developed the notion of a semi-formal system to describe the system falling between law and adat, ibid at 100-2. I adopt this system to describe the intermediary phenomenon to bridge the formal and informal system that has existed since colonial time.

43 See McAuslan, “Land Policy”, supra note 29, at 30.

44 See Rachel Haverfield, “Hak Ulayat and the State: Land Reform in Indonesia” in Lindsey, Indonesia: Law and Society, supra note 13, at 42; See also Wallace, Jude, Parlindungan, A.P., and Hutagalung, Arie S., A S, Indonesian Land Law and Tenures - Issues in Land Rights, (Indonesian Land Administration Project, 2000), Ch. 1, at 11 Google Scholar.

45 The Agrarian Offices during New Order Government (1966-1997) were served as an extended central government hand to control land by manipulating state rights on land (HMN). To justify this purpose the structure of Agrarian Office was directly under control of the President Office and this continues until now.

46 BAL 1960, Explanatory memoranda, General Elucidation section I.

47 Ibid, section I and II. The National Agrarian Law is a codified agrarian law based on BAL 1960.

48 Article 5 and the Consideration para C.BAL 1960. Under the continuous debates, adat law is conceptually defined as “the collection of operative rules of behaviour which on the one hand are enforced by sanctions (hence “law”) and on the other hand are un-codified (hence “adat”). See Holleman, Van Vollenhoven on Indonesian Adat Law, supra note 6, at 7. See also Soekanto, Soerjono, Kedudukan dan Peranan Hukum Adat di Indonesia (Jakarta: Kurnia Esa, 1982) [Soekanto, Kedudukan dan Peranan], at 44-5Google Scholar; [Haar, Adat Law in Indonesia, supra note 18, at 49-52]

49 Four major issues relating to land administration during the 40 years of implementation are: (i) the increasing number of land conflicts and disputes; (ii) the concentration of vast tracts of land in a small number of people; (iii) the weak protection provided to land-holders; and (iv) the failure to create cadastral recognition and description of communal tenures. See Kerangka Kebijakan Pertanahan Nasional: National Land Policy (Indonesia: Badan Perencanaan Pembangunan Nasional (BAPPENAS), 2001) at 5 Google Scholar.

50 Only about 22% of land has been formally registered and converted into statutory rights. See Terminal Evaluation of Land Administration Project Phase I (Laporan Akhir Proyek Administrasi Pertanahan Fase I), (Indonesia: PN Badan Pertanahan Nasional, 2001), at 1 Google Scholar. For further discussion about the deficiency of the unification program, see Fitzpatrick, D., “Disputes and Pluralism in Modern Indonesian Law” (1997) 22 Yale J Int'1 L. 171 Google Scholar.

51 International Land Coalition: Main Observation from Discussion of Land Partnerships in Indonesia (2003), online: International Land Coalition <http://wwwlandcoalition.org/1program/1pindobs.htm>>Google Scholar; See also Staff Appraisal Report Indonesia Land Administration Project, (The World Bank, 1994), at 5 Google Scholar.

52 See the Amendment 1945 Constitution Article 18B (2), and also Law No. 34 of 2003 Art. 1 (g).

53 BAL only addresses broad principles which require further explication through the implementation of laws on statutory rights. However, this was not done until recent times. See Gautama, Sudargo and Harsono, Boedi, The Survey of Indonesian Economic Law: Agrarian Law (Bandung: Lembaga Penelitian Hukum dan Kriminologi, Universitas Padjadjaran, 1972), at 25 Google Scholar.

54 See Mahadi, , ‘Kedudukan Tanah Adat Dewasa Ini’ in Simposium Undang Undang Pokok Agraria dan Kedudukan Tanah Tanah Adat Dewasa Ini, (Jakarta: Binacipta, 1977)Google Scholar.

55 See Consideration (b) of BAL 1960 and Conversion Provision (I) BAL 1960.

56 For example, Article IX Conversion Provision states that the necessities required for implementing the conversion provision are further regulated by the Ministry of Agrarian Affairs.

57 Due to a lack of reliable land records and the low quality of human resources, the issuance of land certificates often neglected a thorough assessment of potentially issuing multiple land certificates for one parcel of land. See Soni Harsono, Pokok Pokok Kebijaksanaan Bidang Pertanahan dalam Pembangunan Nasional, (1990) [unpublished, seminar paper presented in National Symposium on Land Issues].

58 About 70% of land cases lodged in the East Java Administrative Court in 2006 was in relation to the validity of the land certificate issued based on land rights conversion. Personal interview with the Panitera Pengadilan Tata Usaha Negara, Surabaya, (July 2007).

59 The appropriation of land in theory has to be regulated by the legislation and executed by Court rather than the government regulation. This has challenged illegitimacy of the state appropriation for development purposes that is based on Presidential Decree. See Presidential Decree No. 35 of 2005 concerning the Land Appropriation for Development Purposes.

60 The New Order Government (“NOG”) (1966 - 1998) produced propaganda suggesting that land reform was a product of the (prohibited) communist party. By implication, land claimants were communist supporters. As a result of this political approach land claims almost ceased entirely during NOG era.

61 Salacuse, J. W., “From Developing Countries to Emerging Markets: A Changing Role for Law in the Third World” (1999) 33 The Int'l Lawyer 875 at 890 Google Scholar.

62 The Majelis Permusyawaratan Rakyat (MPR) was previously the highest state body which was able to execute the people's sovereignty. Now, its authority is limited to performing three main functions: appointing the President and vice President; developing national development planning; and amending the constitution. The sovereignty is held by the people and executed in accordance to constitution. Article 1 (2) the Amendment Constitution 1945.

63 Article 5, M.P.R. Decree on Agrarian Reform and Natural Resource Management 2001.

64 Article 10, Section 3, Law on Local Government 2004.

65 The communality of the tenure system is commonly based whether on territorial division or ethnicity and genealogy, which was created in pre-colonial times during the Mataram kingdom and strengthened during the cultivation system by the colonial government. See Holleman, Van Vollenhoven on Indonesian Adat Law, supra note 6, at 179; See also Goh, Taro, Communal Land Tenure in Nineteenth Century Java: The Formation of Western Images of the Eastern Village Community, (Canberra: Department of Anthropology, Research School of Pacific and Asian Studies, Australian National University, 1998), at 47–55 Google Scholar.

66 The unilateral action to reoccupy the land, supported by the Communist Party, led to the Communist insurgency that occurred during the revolutionary period 1945 to 1949 centred in Madiun, East Java. Further action took place in 1965 when the land reform mandated by BAL 1960 was seen as being slow and uncertain. After this time, land issue became very sensitive due to NOG propaganda eliminating communism.

67 See Law on Nationalisation of Dutch's Owned Property 1958.

68 Although Article 19 the BAL stipulated that land registration is legal registration (rechkadaster), to provide legal security, in practice, land registration is negative in which land registration is not decisive to execute dealing rather than serves as supporting evidence. See Anna Bungaran v. Jonathan Marga Naibaho (1974) Yurisprudensi Mahkaman Agung.

69 In East Java for example community claims were initiated in the Jenggawah plantation case in Jember (1997); the Kalibakar Plantation case in Malang (1999) and many new claims have emerged across plantation and forest areas. See Asa, , Sekitar Rp. 3 trilyun, Kerugian Konflik Sosial di Perkebunan (2002)Google Scholar; See also Anonim, , Gerakan Reklaiming dan Hak Atas Sumber Daya Hutan di Jawa (2002) 2 Google Scholar.

70 See Fitzpatrick, “Beyond Dualism”, supra note 13, at 87-8.

71 During the phase I of Land Administration Project (LAP), in 1994 it was discovered that only about 22% of 54 million parcels of land has been registered. See BPN Badan Pertanahan Nasional, Terminal Evaluation of Land Administration Project Phase I (Laporan Akhir Proyek Administrasi Pertanahan Fase I), (2001), at 1 Google Scholar.

72 Land registration is negative where the registration is not decisive rather than a supporting evidence of land transaction. See Article 19 BAL 1960 and the Government Regulation No. 24 of 1997 on Land Registration.

73 Article 16, BAL, 1960.

74 Article I - IX, the Conversion Provision, BAL 1960.

75 The BAL 1960 consists of only 52 articles of main section, 6 supplementary articles and 9 conversion provisions. Compared to previous Indonesian version of Colonial Civil Code, the main body of Book II consists of about 733 articles related to property.

76 Hundreds of regulations in regard to land have been enacted and many of them are in conflict and it is difficult to find the priority rule over the conflicting regulations. See Wallace, Jude, Indonesian Land Law in Nutshell (June 2000), [unpublished]Google Scholar.

77 See Consideration of BAL 1960 (a), (b).

78 See Art. 3 and Art. 6 BAL 1960.

79 See Law No.13 of 1946 on the Abolition of Desa Perdikan (autonomous region derived from the privileged grant by the sultanate or emperor); Law on Liquidation of Private Estate 1958 which gave special privileges to the owner to act as a government to manage huge tracts of land and people.

80 Soekanto, Kedudukan dan Peranan, supra note 48, at 44-5.

81 The common misunderstanding of adat as traditional, contrary to development, unwritten, stagnant and uncivilized is derived from the concept of adat as an old fashioned concept. Adat however, is the adaptive normative system of a semi-autonomous society in response to the existing external system and is continually reinvented by the people. See Soekanto, Soerjono, “Hukum Adat Indonesia” [unpublished, paper presented at the Hukum Adat Dan Pembinaan Hukum Nasional, University of Gadjah Mada, 1976), at 116-9Google Scholar.

82 Since 1960, the Ministry of Agrarian Affairs has been changed into four different structures: the departmental ministry (Depatement Agraria), the Directorate General under Department of Home Affairs (Direktorat Agraria), the State Ministry (Menteri Negara Agraria) and the independent office equivalent to ministry (Badan Pertanahan Nasional).

83 See Law no 7 of 1958. The role of Directeur van Binnenlands, Hoofd van Gewestelijk Bestuur, Hoofd van Plaatselijk Bestuur and other roles related to agrarian issues reverted to the Agrarian Minister.

84 See Sumardjono, Maria S.W., Kebijakan Pertanahan: Antara Regulasi dan Implementasi, Kompas, (Indonesia), 2002 Google Scholar; See also Abdurrahman, Sukri et al, Konflik Pertanahan di Era Reformasi: Hukum Negara, Hukum Adat dan Tuntutan Rakyat (Jakarta: Lembaga Ilmu Pengetahuan Indonesia, Puslit Kemasyarakatan dan Kebudayaan, 2002), at 9–10 Google Scholar.

85 See Goodpaster, “Law Reform in Developing Countries”, supra note 8, at 669-72. Similar to Indonesia, in most developing countries, the transitional period to the market economy is marked by a powerful bureaucracy that only benefits to bureaucratic bourgeois. See Seidman, State, Law and Development, supra note 10, at 468.

86 About 16% of the population, mainly resident in capital city of Jakarta, holds and controls about 67% of the land. See Fauzi, Noer, “Anatomi Politik Agraria Orde Baru” in Fauzi, Noer, ed., Tanah dan Pembangunan: Risalah Dari Konferensi INFID ke-10, (Jakarta: Pustaka Sinar Harapan, 1997), at 139-41Google Scholar.

87 See Presidential Decree on National Policy on Land 2003, nine major land affairs are devolved to local government.

88 Since the fall of NOG, unilateral land reclaiming by adat communities has substantially occurred in major plantation and forest across Indonesia. See Asa, , Sekitar Rp. 3 trilyun, Kerugian Konflik Sosial Di Perkebunan (2004), Kompas, (Indonesia)Google Scholar.

89 See Bedner, Adriaan, Administrative Courts in Indonesia: A Socio-Legal Study, (The Hague: Kluwer Law International, 2001), at 152-4Google Scholar.

90 Benda-Beckmann, Keebet von, ‘Evidence and Legal Reasoning in Minangkabau’ in Benda-Beckmann, Keebet von and Strijbosch, Fons, eds., Anthropology of Law in the Netherlands: Essays on Legal Pluralism, (Dordrecht: Cinnaminson, 1986), at 136 Google Scholar.

91 Due to racial discrimination based on Art. 131 Indische Staatsregeling which distinguished between legal subjects as either (1) Westerners; (2) Bumiputera; or (3) Far Easterner (neither under (1st ) nor (2nd) classification), the colonial land policy under the Agrarische Wet 1870 distinguished the property right system between the Western title under the Dutch Civil Code and adat land rights under their own customary law.

92 See the Transitional Provision and the Conversion Provision of BAL 1960 and Article 16 of BAL 1960.

93 See Wallace, Jude, Indonesian Land Law in Nutshell (June 2000), [unpublished], para.6Google Scholar; See also Staff Appraisal Report Indonesia Land Administration Project, (The World Bank, 1994), at 7 Google Scholar.

94 The destruction of state archives including land records occurred during Japanese occupation and the revolutionary period. Personal Interview with NLA staff, East Java Provincial Office. (March 2004).

95 See generally the annual report of the Directorate of Agrarian Affairs 1979, the Directorate of Agrarian Affairs and the Ministry of Home Affairs.

96 Article 19 and elucidation of the BAL 1960. Registration of land is not decisive, rather it only provides supported evidence. Valid claims, however, are limited to a maximum period of five years (Article (32 (2)) the Government Regulation No. 24 of 1997 on Land Registration), but this is in conflict with adat law as no limitation periods under adat law (kadaluwarsa).

97 The occupiers of Western land were often evicted without compensation as the Western land reverted to state under nationalisation and Western land taking action. See Ichdar v the Head of NLA Pasuruan District; Ny Atin vs Hadiprayitno; Permadi v The Head of the NLA Jember City.

98 The transfer of unconverted Western land was declared invalid as State assumed that Western land reverted to state. See for example Ny Halimah v NLA, the Administrative Court Decision No. 34/G.TUN/1998/ PTUN. SBY. Surabaya East Java.

99 Article 4 the Ministry of Agrarian Affairs Regulation no 2 of 1960.

100 Article 4 and 7 the Ministry of Agrarian Affairs Regulation no 2 of 1960.

101 Halimah v. The NLA (1998).

102 For example, see the land reclamation and community's occupation in the Kalibakar Plantation case and the Telogo Rejo Plantation case in south of Malang District, East Java and other private and state plantation enterprises across the nation.

103 Tony Sutipyo v NLA and Village Representative Assembly (LKMD) (1995).

104 See Pusat Kajian Pembangunan Masyarakat Atma Jaya dan Badan Pertanahan Nasional, Pola Penguasaan Tanah Masyarakat Traditional dan Problema Pendaftaran Tanah, (1998), at 59–63 Google Scholar.

105 Article 10, Section II, The Appointment of Deed Official as Mentioned by Article 19, Government Regulation No. 10 of 1961, Minister of Agrarian Affair Decision No. 10 of 1961. This regulation is amended by The Regulation of Deed Official (Pejabat Pembuat Akta Tanah) 1998 Government Regulation No. 37 of 1998.

106 Even though Supreme Court Decisions reveal contrasting precedents, the underlining consensus seems to provide greater protection to deeds compared to unwritten adat practices. See Agung, Mahkamah RI, Himpunan Kaidah Hukum Putusan Perkara Dalam Buku Yurisprudensi, (2002)Google Scholar.

107 Since colonial times, symbolic political legal authority has vested not in courts but in the administrative bureaucracy, particularly the pangreh praja (now Camat), the local arm of the Ministry of Interior. See Daniel S. Lev, “Between State and Society: Professional Lawyers and Reform in Indonesia” in Lindsey, Indonesia: Law and Society, supra note 13 at 231.

108 Drafts of both statutes, Agrarian Resources and Natural Resource Management, are still under extensive review and each contains a far from adequate level of comprehensive and coherent provisions. (The drafts of both legislations are available in Author's file).

109 See Flourie, C. and Soewardi, B., Institutional Framework Reform for Land Administration - Indonesia, (2000), [unpublished] at 10-1Google Scholar.

110 See Masyarakat Transparansi Indonesia, Prinsip-Prinsip Pelaksanaan Otonomi Daerah U.U. No. 22 Tahun 1999 (1999) [unpublished]Google Scholar.

111 kor, Forum Gubernur Desak D.P.R. Revisi Menyeluruh Undang-Undang Otonomi Daerah (2004), Kompas, (Indonesia).

112 See article 11 (2) Law no 22 of 1999 regarding the Provisions of Provincial and District and Governments. The roles of government delivered to district and town governments includes public service, health affairs, education and cultural affairs, agriculture, transportation, industry and trade, the investment sector, the environment, land affairs, man power and cooperative affairs. See also Article 13 and 14 Law on Local Government. The land affairs services are the authority of both provincial and district and town governments.

113 See Sumiyoto, Toto Kewenangan Bidang Pertanahan Dalam Rangka Pelaksanaan Otonomi Daerah (2002), [unpublished]Google Scholar.

114 See the principle of medebewind on the delegation of authority on land affairs. The elucidation of Article 2, BAL 1960.

115 Article 2 and elucidation, BAL 1960.

116 Article 1 (2) Section I, Amended Constitution 1945.