Agrarian Law in Indonesia and Pancasila

Indonesia Agrarian Law and Pancasila

• Indonesia's agrarian law aligns with Pancasila as the state philosophy
• Post-pandemic fundamental needs include food, medicine, and energy resources
• A legal system requires objectively valid rules, recognized as legitimate by society
• These norms need a basic norm as foundation, which, in Indonesia, is Pancasila
• Pancasila serves as the foundation for all legal norms, making the Indonesian legal system possible
• The nation's spirit encompasses knowledge, humanity, the universe, and the creator of human beings and the universe
• Pancasila embodies the nation's identity and promotes unity in diversity (Bhinneka Tunggal Ika)
• Pancasila's role within the state includes: State Philosophy (Grundnorm), Legal Source of inspiration, as well as being Manifested into state and legal order
• Regarding Hukum Tata Bumi (Land Law), Pancasila acts as a way of life that encompasses social and ecological order, while also serving as both state and legal order, and promoting the achievement of both human and nature preservation

Tatabhumi Principles and Implementation

• Principles of Tatabhumi encompass ownership, land use, sustainability, leading to social justice and nature sustainability
• Implementation of Tatabhumi involves land reform, dynamic land use management, and spatial considerations
• Land reform is the state aspect pertaining to ownership, with an aim to reform conditions into the ideal
• Land Use involves dynamic aspect of land use and using
• Spatial also involves dynamic aspect of land use and using

Agrarian Law: Definition and Scope

• Agrarian Law governs the rights to control natural resources, including earth, water, and other contained resources, as well as space
• Elements include earth (surface, subsurface, and underwater), water (inland and sea territory), natural resources (mining materials, fish, pearls etc), and space (land, sea, air, including the area for living creatures)
• Extractive natural resources include chemical elements and minerals, UU 11/1967 amended by UU 4/2009 regarding oil and gas
• The Group of Agrarian Law Encompass: Land law, Water rights, Mining, Fisheries, Forestry, and Laws governing rights in space

Land and Land Title/Rights

• The government can grant permission to use land, with buildings/structures considered part of it
• In places with "adat law," land and structures are separate, meaning that owning land doesn't automatically mean you own what's on it, and legal problems may specifically apply to the land or buildings
• Agrarian ownership in Malaysia & Singapore works via Attachment, that is, if you buy the land, you buy the buildings and vegetation on it
• Ownership resides at the level of States like Arkansas, Kansas, Missipi, Ohio, Pennsylvania, Texas, West Virginia
• Petroleum, helium, gold, and silver in state control = New South Wales

Land Law Before UUPA

• Before the UUPA, the dualistic system was composed of Western and Customary Law
• Customary law was composed of unwritten provisions as the norm, while written provisions were created by Swapraja or Dutch east indies governments
• Besides dualistic system, there were also laws pertaining to intergroup land, administrative land , and Swapraja land
• State Domain land consisted of various western rights, customary law, vacant land, land with eigendom right, and Swapraja

Establishment of Basic Agrarian Law

• Indonesia needed land laws because colonial-era laws didn't consider Indonesian citizens' needs, and different sets of land laws fractured the nation
• Old laws lacked the ability to protect the Indonesian citizens with regards to land ownership
• The intent of a new land law would clarify ownership and grant a sense of security for the people
• The Yogya Agrarian Committee was formed in 1948, with an assignment to provide recommendations and draft agrarian law, its amendment, and to repeal old legislation
• In 1951, the Jakarta Agrarian Committee was formed, with tasks similar to Yogya committee
• Recommendations for the 1951 committee was a minimum ownership of 2 hectares for decent living and 25ha maximum, it also outlawed ownership by legal entities
• the 1951 recommendations also stated that smallholder agricultural rights include ownership, cultivation, lease and usage rights
• The fifth recommendation of the 1951 committee was that Hak ulayat need to be further regulated based on law
• The Seowahjo Committee was tasked with drafting the basic Agrarian Law withing a year
• In it recommendations, Seowahjo sought to strengthen customary rights and public interest, to replace domein principle by state control and abolish dualism in land law
• There was also the consideration that European and customary law are not a basis for new land law, instead it should be solely on Indonesian citizen rights
• A first draft was carried out in 1958, by the Soenarjo committee, however is was rejected
• The subsequent Sadjarwo committee successfully drafted to cabinet approval in 1960 an amendment based on UUD NRI1945 and customary law
• The DPR-GR unanimously accepted the draft on September 14, 1960, and it was Approved and Promulgated on September 24, 1960
• UUPA Animate Pancasila and UUD NRI 1945 and took 15 years post independence and 12 years of materialization

UUPA Functions and Customary Law

• UUPA's intent was to abolish dualism/pluralism of old land law and codify national customary land law
• In addition, the UUPA sought to unify land and collateral rights through conversion
• Agrarian law had to consider religious aspect, but should mostly be based on customary law, except when conflict with national interest (Art. 5)
• Customary law in perfectible, adaptable to the interest of society and in relation to international relations
• The original law of indigenous people is the fundamental principle of UUPA

Substance of UUPA

• Land ownership rights
• Land registration
• Agrarian reform
• Spatial planning and land use planning
• Land acquisition
• Mortgage rights
• Flats/Apartments/Condominiums
• Land/Agrarian Conflict

Land Tenure Rights

• Authority, obligations, and/or prohibitions associated with land ownership. (Boedi Harsono's definition)
• Landowner may transfer, lease, or mortgage, but they also must protect, manage or cultivate , as well as register and pay taxes
• Landowner is prohibited from abandoning and destroying the land
• State can grant or revoke land rights, land use planning, register, and collect taxes

Legal and Concrete Relations

• Land Tenure Rights as Legal Institution (Static) pertains to the type of land rights(HGU/Hak milik) and only exist in regulations, with no link to land or person
• Concrete Legal Relation (Dynamic) exist when the subject of ownership and object exist by way of transferring land rights between parties and registering old holdings

Object of Land Tenure Rights

• Land
• Building
• Plant
• Other objects that has economic value
• Buildings and plants are not automatically included in the ownership of the land (Horizontal Separation)
• Cases where the land owner also owns the buildings are stated in the mortgage deed
• To prevent conflict, professor Boedi Harsono suggested horizontal separation should only be applied to direct ownership

The Land Tenure Right System

• Indonesia National Rights (Article 1 of UUPA)
• Customary Rights (Article 3 of UUPA)
• State Rights (Article 2 of UUPA, includes Article 4, 6, 20 -25 ) Includes Individual rights and land controlled by state
• The Communalistic nature of Indonesia National Rights grants all the land to Indonesian people, with individuals granted rights and ownership
• The Religious definition states that all land, waters, and space are gifts from God
• Indonesian Customary Rights have the highest authority (Indonesia Customary Rights)
• However Boedi Harsono stated that there is no land within Indonesia's territory that is not owned by someone

National Rights

• It is the objective of National Rights to give all to the people and achieve justice and prosperity for people
• National Rights are everlasting and unbreakable, as well as representing the ownership relationship between The Nation and land
• Ownership under said rights can be defined as control and authority, it is the people's duty to manage the land properly, and it serves as basis for state regulatory rights

State Rights

• Legal authority to regulate and manage all land, water, airspace and natural resources ((Article 2 UUPA & Article 33 par (3) UUD NRI Tahun 1945)), and exercises legislative, executive, and judiciary powers
• Land under state control includes Waqf land, land with management rights, customary, tribal and forest land or land that is directly owned
• Customary rights have separate civil and public authorities, as well as being community's rights

Customary Rights

• There are two types of authority that govern customary rights, with one being internal and one being external

Article 3 of UUPA states

• Traditional rights of adat law communities can be used as long as the conditions still exists whilst according with national and state interests
• Customary law is limited by national and state interests, but becomes stronger in land acquisition cases that require land replacement

Forest Land

• State forest is located on land that is not encumbered with land rights.
• Private forest is a forest located on land that is burdened with land rights.
• Customary forest is state forest that is in the territory of customary law communities.

Primary and Secondary Land Rights

• Primary Rights are obtained from the state directly: HM, HGB, HGU, HP, HPL
• Secondary Land Rights occur when land is subject to a contract between the owner and other
• Examples include Hak Pakai, Usaha Bagi Hasil, Hak Gadai, Hak Menumpang

Right of Ownership

• Hak Milik" is the strongest and most complete form of ownership rights over land, which has been inherited over generations
• Strongest means can be easily defended, however it is not absolute and must be registered
• According to Government Regulation No. 38/1963, legal entities appointed by the government can have ownership rights e.g., banks and religious institutions
• Transfer to foreigners is forbidden
• Legal events that cause transfer are mixing of assets due to mixed marriages, Inheritance without a will, Indonesian citizens losing their Indonesian citizenship status (transition from Indonesian citizens to foreign nationals)

Rights of Cultivation (Hak Guna Usaha)

• Right to cultivate land owned by the State ((Article 26 paragraph 2 of the Basic Agrarian Law)
• Valid for Maximum of 35 years and extendable for 25 years, renewable for 35 years
• Grants are mainly for Indonesian citizens or entities, but stipulated under Presidential Decree No. 32/1992 that Right to Cultivate can be granted directly to a Foreign Investment Company
• Right holder must use the land, build necessary facilities, improve the land in accordance with spatial planning

Right of Use Land Prohibitions

• Giving your land to someone else
• Blocking off public areas
• Burning
• Harming the environment
• Ignoring responsibilities
• Building permanent structures that damage the area

Right of Use Land

• Grants are minister decision
• Is registered at the land office
• Starts on the day of registration
• has minimum size of 5 hectares and a maximum size of 25 hectares
• Can be transfered by sale/exchange/capital/gift/inheritance, and registered at the land office

Building Rights (Hak Guna Bangunan)

• Building Rights can arise granting / application of rights or agreement to burden

The area of land under HGB

• Is not limited, but adjusted to the needs, but one family can't already possess 5 certificates
• The Subject involves citizens or legal entity that is established and domiciled in Indonesia
• Encompasses all types of state and private land i.e Tanah Negara, Hak Pengelolaan or Milik
• Must be used as intended under application, holder rights are to construct buildings, while prohibitions are to damage properties

Right To Use

• "Hak Pakai" (Article 41 of the Agrarian Law) grants the right to use and/or collect the results from state or private land
• It can be utilized for building or agricultural purposes
• Lengths max out at 30 years plus a 20/30 renewal
• Are granted to Indonesian and foreign citizens, entities, or organizations, and can be transferred, while all actions and rights must be maintained under regulations

Minister can cancel right without warning if

• Obligations/prohibitions not fulfilled
• Agreements for hold and management broken
• If administrative or law defects emerge, or is voluntarily canceled for public good

Hak Pengelolaan Definition

• The government has the authority to partially delegate the right to control and is a rights with origins as a State or Customary law (Tanah Ulayat)
• Granted to Government agencies/ enterprises

Granted

• As long its main task and function is directly related to land management and adheres to state law
• Rights can be encumbered with other rights, but the Right of Management over land cannot be used as collateral for loans and can be terminated for public good

Rights Originating

• Are The right of management originating from state or customary land, where it has to be registered at a land office

The lease right (HAK SEWA)

• It is personal
• It is not registered
• It can be transferable
• The beneficiary involves both Indonesian and foreign subjects

Fiduciary Rights (Hak Gadai)

• Pertains to a person's loan or property
• It is term limited
• The term has a special 7 years period for agricultural land
• The land can not get benefits of the property due to its mortgage
• Can transfer redemption to heirs
• Is removed when Redeemed by mortgage giver/destroyed because of a public interest

Rights of Product Sharing Endeavor (Hak Usaha Bagi Hasil)

• Granted when an entity carries out agricultural business on land owned by someone else
• Rights can be erased if the owner/tenant dies/ ownership transfers or for all time if abolished
• A tenant needs to sign an agreement with the property owner

The duration

• Is limited to a minimum of 3 years period for wet rice field, or 5 years for dry land
• Is granted to Citizens who must share its with Owner/tenant and mortgage holders
• The land is 3ha max
• May get terminated at a number of situation like agreements expire , loses or the landowner’s interests get harmed

Hak Menumpang

• Granted to Person a right to build and occupy a house on someone else's land for free, but can be revoked for almost any reason

Agrarian Reform and People’s Prosperity

• Is related to unequal land distribution, conflict, poverty and environmental protection
• Land Reform is efforts to improve ways of using land through legal systems
• Land reform consists of asset reform for more distribution and access reform as funding, while Agrarian Reform focuses on all land related activity
• The goal is to reduce negative effects

History of Agrarian reform in Indonesia

• Soekarno*: implemented Indonesian socialism through land reform programs
• Soeharto*: relied on foreign investment via transmigration and PIR
• Habibie*: revived the reform and built his own team
• Gus Dur*: there was a struggle to reclaim land taken
• Megawati*: was weakened to UUPA revision and land program
• SBY*: redistributed land mostly from forest areas
• Jokowi*: redistributed million of assets

The Beginning of UUPA

• Set the goal of Land reformation, preventing absentee landowners, land distribution of forest, swapraja and limiting use amounts

Presidential Regulation No. 86 of 2018

• Had the goal of retooling land and access inequality by improving access, creating jobs , more prosperity and security
• Also aimed to improve environmental standards through conflict resolution, targeting misused land, resolved conflicts,
• The subjects where Indonesian citizens/groups that where living in the surrounding area

Land Consolidation and Autonomy

• Involves realigning land distribution of government controlled land, and requires transparency
• Requires building without displacing, and agreements for all to be implemented
• Autonomy is for regional rights granted by the government in compliance with constitution 33: for greatness of welfare of the people
• Custom law can to be changed by the public
• The goal of the land reform was to help with promoting the autonomy

The Aim of Special Autonomous Law

• to Manage government, local people welfare all following state guidelines

Lands Affairs In Yogyakarta

• Have Lands are regulated by local Sultan
• All registration needs written consent from Sultan
• All spatial planning must listen from local Sultan
• There is a dual land law system in Yogyakarta as UUPA and no 13 article where access to Hak Milik is restricted for non Yogya people

Aceh

• The Local legislations must follow national regulations
• The local Aceh Goverment is able to protect wqaf funds

Papua

• Protects local Land rights with compensation
• The Papuan government is able to mediate land affairs