Disputes and Pluralism in Modern Indonesian Land Law

Abstract

The Preamble to Indonesia's Basic Agrarian Law of 1960 (“the BAL”) states that the current land law of Indonesia is incompatible with the interests of the people and the state, as it is based upon the objectives and principles of the colonial government. The Explanatory Memorandum expands on this notion by explaining that the pluralism of colonial land law, in which diverse customary (adat) laws existed alongside Western-style statutory law, is inconsistent with nation-building and fails to provide legal certainty to autochthonous Indonesians. The BAL's stated objective, therefore, is to lay the foundation for a national agrarian law that provides legal unity, simplicity, and certainty to all Indonesians, and prosperity, happiness, and justice for the nation and the people, including farming communities. The BAL seeks to do this in the syncretic way beloved by Indonesians: on the one hand, it converts all existing statutory rights, and most adat rights, into a range of Western-style, registrable land rights; on the other hand, it explains that these rights are based upon adat law and have a social function that emphasizes the needs of the community over those of the individual.

Thirty-six years later, it is apparent that the BAL's objectives of legal unity and certainty have not been attained and will not be attained in the foreseeable future. The Indonesian government estimates that no more than twenty percent of all registrable land, and only ten percent in rural areas, has been registered under the BAL. The number and severity of disputes over land have increased dramatically. Large tracts of newly settled areas, both urban and rural, now exist without the certainties that established adat authority or the BAL can provide. The courts have allowed a vaguely defined principle of “development” to override purportedly mandatory legislative requirements. In short, a new and even more uncertain form of pluralism has arisen in postcolonial Indonesian land law and administration.

This Article analyzes the causes and nature of this new pluralism. It argues that, in practice, the BAL is not a syncretic amalgam of Western and adat principles but instead operates contrary to adat, particularly in its imposition of Western-style, individualized land titles on customary forms of tenure. This inconsistency with adat has two fundamental consequences. First, the process of registering titles under the BAL itself creates long-term disputation and social conflict, and, for that reason, is highly unlikely to fulfill its objective of legal certainty. Second, the BAL’s failure to provide legal certainty, in combination with the erosion or subjugation of adat authority in many areas, has created a dangerous legal vacuum and allowed ad hoc bureaucratic fiat to dominate the administration and development of land in Indonesia.

Part II of this Article explores these arguments by analyzing modern Indonesia’s failure to attain unified land law under the BAL. After a brief discussion of the colonial legacy of legal pluralism, it considers the nature of adat and adat land law. It then outlines the scheme of the BAL, in particular its purported amalgamation of adat principles with Western-style statutory rights. The efficacy of this approach is first tested by reference to the treatment of communal adat titles under the BAL. This exercise establishes that the BAL’s adat features have not counteracted the Western-style individualizing tendencies; that adat and the BAL are incompatible, and, for this reason, the process of registering titles under the BAL will create conflict rather than certainty. These conclusions are supported by case-studies of title registration disputes in the regions of Minangkabau and Ambon. They are then used to criticize current Indonesian and World Bank programs to accelerate the process of title registration in Indonesia, a particular problem with these programs being that the adjudication committee contains no members drawn from traditional adat authority.

Part III considers the high levels of conflict, uncertainty and inequitable development that characterize the new pluralism in Indonesian land law. It begins by analyzing three aspects of this uncertainty: first, the disassociation of adat practice from state law; second, the erosion of adat authority in Java and urban areas; and third, the widespread phenomenon of unlawful occupancy. Taken together, these three contemporary phenomena have resulted in a significant increase in land conflicts in modern Indonesia.

Part IV goes on to consider the way in which the BAL has helped to engender a vicious circle in the process of development in Indonesia: the defining feature of this circle is that both developers and the bureaucracy eschew the uncertainties of dealing with unregistered adat titles in favor of acquiring land at below market price through arbitrary application (or sometimes nonapplication) of the laws on land acquisition. This phenomenon, and the role of the courts in allowing it, is illustrated by an extensive consideration of the Kedung Umbo and Sentani airport cases. The Kedung Umbo case also illustrates the perverse way in which the BAL’s incorporation of adat principles (in particular, the notion that rights to land have a social function) has been used to justify failure to comply with the laws on land acquisition. In this way, the Article comes full circle: it shows that, in the context of rapid economic development, the current conflict-ridden and inequitable state of Indonesian land law and administration is inseparable from flaws in the structure and application of the BAL itself.

The Article concludes with an outline of reforms that would address many of these issues. The proposed reforms include a recommendation that the BAL’s ill-fated attempt at incorporating adat principles into formal law be repealed. Instead of amalgamating adat with the state, the replacement should create appropriate links between the two, with the objective being a balanced dualism between them, rather than the present hegemony of state and bureaucracy. This would be done, in part, by providing a range of registration choices that would reflect the tremendous regional diversity in Indonesia and by creating a separate and independent Land Court to deal with the central issue of dispute resolution.