Land Law in Indonesia
The turbulent economic, political and social disturbances and calamities in Indonesia during the last few years tend to distract attention from other less sensational, but no less important, developments. One of these is the process of change in thinking about Indonesian land law that developed as a result of the Indonesian Land Administration Project.
By H. SLAATS
The aim of this project, which was initiated in 1995, is the systematic registration of land throughout Indonesia over the next 25 years. Before that time, only about 7% had been registered. The financial means required for the implementation of this immense endeavour are provided by a World Bank loan and a grant from the Australian government. However, the involvement of the World Bank goes further than simply financial support. From the very beginning the Bank has contributed substantially to the formulation of the project. It has been at the insistence of the Bank that explicit attention be paid to the protection of traditional land rights and to the rights of the economically weak.
The systematic approach in land registration under the project is much more efficient and, thus, faster and cheaper than the normal procedure of 'sporadic' registration on individual request. It has become affordable for almost everyone in the country. As systematic registration implies the issue of individual titles, it is not to be implemented in areas where traditional land tenure systems still exist until evidence is given about whether such traditional systems would be suitable for titling and registration under statutory law and, if they are not so, then about what adaptations should be made to that effect. The eight months of research carried out in three rural areas, to which the author was attached as an advisor, confirmed the relevance of traditional land law in these communities and, by implication, in other traditional communities throughout Indonesia. Although in some communities traditional law may have become more adapted to statutory law than in others, nowhere has it been traded in completely for statutory law. These findings have led to a recommendation that the implementation of the registration project be differentiated. Instead of registering all land, a consideration should be made for the registration of individually owned land only, thus leaving commonly (collectively) owned land unregistered.
This raises the question about the legal status and the legal protection of such unregistered communal lands for which statutory law has no equivalent provisions. This, as well as other fundamental questions regarding Indonesia's land law, has been subjected to critical analysis by another part of the Indonesian Land Administration Project, namely the sub-project called 'Support for Long-Term Development of Land Management Policies', for which the author has produced an interim report on the history of Indonesia's statutory land law and its relationship with traditional law. This 'Long-Term Policy' sub-project is still under way.
The Basic Agrarian Law of 1960 states that national land law is adat (= traditional) law. Although originally meant to create a genuinely Indonesian land law, one that reflects the specific cultural characteristics of Indonesian society, this reference to adat is problematic. Firstly, the relevance of adat is subject to legal qualifications having the potential to rule out its validity. Secondly, no clear definition of adat is provided. The implicit juridical notion of adat, as given in the law, is an analytical abstraction of the concept at the empirical level. It not only tends to obscure concrete traditional land rights and tenure patterns but, in fact, defines them out of juridical existence. Thirdly, land rights under statutory law are strictly individual rights whereas, in most traditional systems, people's relationships to land are embedded in (family and village) communal relations. There is ample evidence of distortion and social conflict resulting from the enforced re-definition of traditional rights in terms of statutory rights. The attempt to project traditional law onto national law by the re-institutionalization at the national level of institutions and procedures that are copied from adat has failed because the 'organic' checks and balances inherent in the systems at the grass roots level are lacking at the national level.
Apart from the legal complications involved in these references to adat, the nationalistic character and the anti-colonial spirit of the Basic Agrarian Law have had some unforeseen economic consequences. For example, the provision that corporations and foreigners cannot have property rights in land (hak milik) is a serious drawback to economic expansion. In practice, this legal restriction leads to widespread evasions of the law, for instance, through the use of figureheads.
Previously, under the repressive political system of the New Order, the position of the Basic Agrarian Law had been inviolable. Critical discussion of the law that departed from the official interpretation almost invariably led to a suspicion of an anti-government attitude or even of subversion.
By virtue of the recent political changes in Indonesia, the critical views on Indonesian land law as developed by the Indonesian Land Administration Project have begun to find their way to policy makers and bureaucrats. Awareness is growing among officials on the highest level of government that the Basic Agrarian Law in its present form is a hybrid legislative product that may not be able to give an adequate answer to the ideological expectations of combining traditional law (adat) with the requirements of a national legal system, namely one that can serve the needs of both small-scale, traditional peasants and modern national and international legal relations and economic traffic.
In the meantime, some changes reflecting this new approach have been put into effect. The centralized bureaucracy of the National Land Agency, which used to play a key role in land rights matters, has been dismantled and its functions are now decentralized at the provincial level. This is a first step toward diminishing the burden of bureaucratic intervention and of re-allocating the authority over land to the owners and users.
A ministerial regulation in June of 1999 officially recognises the existence of traditional, communal rights and states that such lands are subject to the rule of traditional law. This implies that such lands, in principle, do not qualify for systematic registration by individual title under the Indonesian Land Administration Project. The government included that, at best, the outer boundaries of communal land, indicated as such by the local population, should be recorded as a safeguard against infringements by external third parties.
Finally, the Indonesian Government is taking another look at the Indonesian Land Administration Project. Considerations such as those presented above, as well as financial issues, have caused the government to question the desirability of a rigorous implementation of the project, which would imply the systematic registration of all land. Selective registration of strictly individual land and the demarcation and recording of boundaries of communal land might be a more realistic, and a less expensive, alternative. *
Dr H. Slaats, Law Faculty,
University of Nijmegen.