Academic journal article Southeast Asian Studies

Conflict over Landownership in the Postcolonial Era: The Case of Eigendom Land in Surabaya *

Academic journal article Southeast Asian Studies

Conflict over Landownership in the Postcolonial Era: The Case of Eigendom Land in Surabaya *

Article excerpt

Introduction

Law No. 5 of 1960 Concerning the Basic Principles of Agrarian Law (Undang-Undang No. 5 Tahun 1960 tentang Peraturan Dasar Pokok-pokok Agraria, hereafter BAL) is the basis of land management policy in Indonesia. Since this law was enacted, there has been a reform in the control, ownership, and use of land in Indonesia. This has included the conversion of a colonial model of land rights (land titles) to a national one. Land rights that were in effect during the colonial period, which were based on the Agrarische Wet (Agrarian Law, hereafter AW) of 1870 and the Burgerlijk Wetboek (Civil Code, hereafter BW) of 1847, including eigendom (ownership rights), opstal (rights over buildings erected on land), erfpacht (lease rights),gebruik (use rights), and servituut (servitude rights), have been required to be converted to the types of land rights determined by the BAL, including hak milik (ownership/freehold rights, hereafter HM), hak guna bangunan (building rights, hereafter HGB), hak guna usaha (cultivation rights, hereafter HGU), hak pakai (usage rights, hereafter HP), and hak pengelolaan (management rights, hereafter HPL). The same requirement for conversion has applied to land with attached adat rights such as yasan, gogolan, pekulen, and bengkok (Parlindungan 1990, 1).

The requirement for conversion has had a number of effects, one of them being that foreign nationals who previously held colonial land rights have lost those rights; their land has fallen under the control of the state. The BAL stipulates that citizens of foreign countries are not permitted to have HM rights over land in Indonesia; they may only receive HP rights. The complicated administrative procedures involved in the conversion of colonial rights over land to HP rights has meant that most citizens of foreign countries who held eigendom rights over land decided to leave Indonesia, allowing their lands to fall under the control of the Indonesian state.

The national government has delegated authority to the regional governments to manage state-controlled land as part of the latter's agrarian reform programs. In Surabaya the majority of state-controlled land (8,275,970.28 m2 [827.6 hectares], representing approximately 55.31 percent of the total state-controlled land in the municipality [14,963,717.29 m2/1,496.372 hectares]) is presently used for residential settlement. This includes land under HPL rights as well as land under eigendom rights. Upon this statecontrolled land there are 48,200 residential plots, measuring on average 200 m2 in size. Residents of these plots are legally considered renters, holding Permission to Use Land (Ijin Pemakaian Tanah, hereafter IPT; also known as Surat Ijo [Green Certificate]) certificates for the land they occupy. They have been, to date, unable to convert this land into HM in their names, even though such conversion is allowed by law.

Since 2001, three years after the beginning of the Reformasi period, the issue of agrarian reform has again been an important theme in national discourse. This followed the enactment of the Decree of the People's Consultative Assembly No. IX/MPR/2001 Concerning Agrarian Reform and the Management of Natural Resources (Ketetapan Majelis Permusyawaratan Rakyat No. IX/MPR/2001 tentang Pembaharuan Agraria dan Pengelolaan Sumber Daya Alam), Article 2 of which stated:

The agrarian reform involves a continuous process in which the control, ownership, and use of agrarian resources is reorganized to better ensure legal protection and certainty, as well as justice and prosperity, for all of the people of Indonesia (Pembaharuan agraria mencakup suatu proses yang berkesinambungan berkenaan dengan penataan kembali penguasaan, pemilikan, penggunaan, dan pemanfaatan sumber daya agraria, dilaksanakan dalam rangka tercapainya kepastian dan perlindungan hukum serta keadilan dan kemakmuran bagi seluruh rakyat Indonesia).

Subsequently, the National Land Bureau (Badan Pertanahan Nasional, BPN) established two formulas for agrarian reform: first, the reorganization of the legal and political land systems, based on the Pancasila, 1945 Constitution, and BAL; and second, the implementation of Land Reform Plus, the reorganization of the people's land assets and access to economic and political resources that allow them to best use their land (Kementerian Agraria dan Tata Ruang 2014). …

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