UNDERSTANDING TRADITIONAL LAND RIGHTS ACCORDING TO PRINCIPAL AGRARIAN LAWS

UNDERSTANDING TRADITIONAL LAND RIGHTS

ACCORDING TO THE BASIC AGRARIAN LAW[1]

 

By: Mrs. Vally A. Pieter, SH, MH

Introduction

September 24 is a historic date in the history of agrarian/land development in Indonesia in general and in the reform of Indonesian Agrarian Law/Land Law in particular. Because on that date, September 24, 1960, the first President of the Republic of Indonesia, Soekarno, ratified Law Number 5 of 1960 concerning Basic Agrarian Regulations known as the Basic Agrarian Law (UUPA) which was promulgated in the State Gazette of the Republic of Indonesia number 104 of 1960. (Harsono, 2008: 1)

Since ancient times, land has held a special allure and has always been associated with power. A successful or prosperous king in ancient times was depicted by the vastness of his domain. A nobleman was considered wealthy if he owned a large amount of land. Land became a target for conquest by a ruling regime or dynasty, and wars always ended with the losing side ceding their land to the victorious side.

In the modern era, the value of land remains unchanged. Land remains highly valuable because it is a form of wealth with a fixed investment value that will even continue to increase. Population growth is one factor behind the increase in land value. A growing population demands land, while ongoing development within the framework of global market competition demands the need for infrastructure that makes land a basic necessity. Land values ​​will continue to rise as long as humans exist. Rising/high land values ​​naturally result in increased problems surrounding the land.

Land grabbing, land disputes, and ownership claims are always a topic of discussion in land issues. In Maluku, several cases of violence and conflict are rooted in land disputes. The Habibie Center's written report, "Violence Map in Indonesia" from January to April 2012, states that land disputes are the most prominent cause and issue of violence, particularly in Maluku.[2] The Habibie Center noted that within a decade, there were 175 violent incidents due to land disputes, resulting in 45 deaths, 347 injuries, and 388 damaged buildings. Three factors dominate the root causes of these persistent land disputes, including: inter-village/state boundaries, customary ownership claims, and overlapping customary and administrative areas. In its notes, the Habibie Center stated that in terms of the number of conflict incidents due to land disputes, Central Maluku Regency had the highest number, followed by Ambon City. These land disputes occurred between states/villages that shared the same identity, for example, Porto-Haria (Saparua District, Central Maluku Regency).[3], Mamala-Morela (Leihitu District, Central Maluku Regency), Hitulama – Hitumessing (Leihitu District, Central Maluku Regency) and several other villages.

The land dispute that is the background of this inter-state conflict occurred due to the territorial boundaries between states and claims of customary ownership by both parties, the boundaries of customary land are the main issue, thus this paper will discuss issues surrounding customary land according to the Basic Agrarian Law.

 

Land in the Understanding of the Indigenous People of Maluku

Exploring the understanding and perspectives of Maluku's indigenous people regarding land means exploring their understanding of the universe. Because Maluku society is generally a cosmic society. Understanding something in nature is inseparable from understanding and perspectives regarding the universe and humanity as a whole. The entry point to understanding the concept of land in Maluku's indigenous people is the Maluku people's understanding of the ruler of the universe, known in Ambonese Malay as Upu Lanite and Upu Tapele (God of Heaven and God of Earth/Land). The concepts of Lanite and Tapele are still debated because in Maluku's indigenous traditions, these concepts are rarely found. The concepts commonly found in Maluku's indigenous people are those of custom and ancestors. Therefore, it is appropriate for us to understand the concept of land from the perspective of Maluku's indigenous people, from how they understand custom and ancestors.

Frank Cooley in Ambonese Customs: A General Description, connecting the importance of customs and ancestors in the view of the Maluku Indigenous community. Because customs are given by ancestors or forefathers and must be obeyed, customs also represent the commands of the ancestors as the founders of the community. Custom is a law in regulating social life within the community (1962: 2-4). These two dimensions are interconnected with one another. In his explanation, Cooley explains that the Ancestors, who are the founders of the community, established villages and established customs as a system that regulates their lives in the present and regulates the lives of their descendants in the future. Thus, those who practice customs receive blessings from their ancestors, while those who ignore customs receive a curse, as in his writing below:

"....., it becomes clear that adat is obligatory upon all members of the community precisely because it is believed to have been established and handed down to them by the ancestors. It represents the will of the ancestors. Observance of it is an expression of respect for the ancestors. To ignore or neglect it is to flout the will of the ancestors, and this is exceptionally dangerous because of the power which they continue to hold. The sanctions of adat are thus rooted primarily in this power attributed to the ancestors." (5)

The explanation above illustrates how ancestors play a crucial role in the beliefs of the Maluku people. They are central to the existence of customs and the community, and therefore, the implementation of customs is crucial. Ancestors are always associated with all aspects of customs and the community, including the land within them. This is one reason why land holds such a crucial position in the understanding of Maluku customs. Therefore, conflicts over customary land are always long-lasting, as land is part of the integrity of customs, communities (the country), and individuals, forming a unified whole.

 

Customary Land According to the Basic Agrarian Law

Customary law communities also recognize the existence of customary rights, ulayat meaning territory or a series of authorities and obligations of a customary law community related to land located within its territory. In a Dutch-language book, Ter Haar, Beginselen en stelsel van het adatrecht states that in Indonesia, each region has specific names for its territory, for example, the name for a restricted area in Kalimantan is called pewatasan, in Java it is known as wewengkon, in Bali it is known as prabumian. In Maluku, in general, regional land is usually called petuanan. (Harsono, 2008: 185-186)

The understanding and views of the Maluku indigenous people regarding land are supported by the understanding of Customary Land Law contained in the Basic Agrarian Law (UUPA), so that customary land rights can be fought for through the correct legal channels.

 Customary law on land has a special position in the UUPA, because the majority of Indonesian people adhere to customary law, so customary law becomes the basis for the formation of National Land Law. Land law is a system of independent branches of law that regulates the legal aspects of a land, called land tenure rights. The legal provisions that regulate land tenure rights can be arranged into a single unit that constitutes a system. (Harsono, 2008: 17). These provisions make customary law a foundation for formation. Santoso, Urip in his article entitled Agrarian Law and Land Rights states that Customary Law is the main basis in the formation of National Agrarian Law, which can be summarized in the Preamble to the UUPA which states;

"that in relation to what is mentioned in the considerations, there is a need for a National Agrarian Law, which is based on customary law regarding land, which is simple, and guarantees legal certainty for all Indonesian people without ignoring elements which are based on religious law" (2010: 5-6)

This aligns with what Supriadi wrote, proving his statement by outlining the considerations in the UUPA, which states that national land law is based on customary law. This statement can be found in, among other places:

a. General explanation of number III (1);

b. Article 5 and its explanation.

In the General Explanation number III (1) of the UUPA it is stated that:

The new Agrarian Law must naturally conform to the legal consciousness of the people. Because the majority of Indonesians are subject to customary law, the new agrarian law will be based on the provisions of that customary law as the original law, refined and adapted to the interests of society in a modern state and its relations with the international community, as well as to Indonesian socialism. As is well known, customary law, in its development, has been inseparable from the political and social influences of capitalist colonial society and feudal self-governing society.

In line with the General Explanation number III (1) UUPA above, Article 5 states that;

The Agrarian Law that applies to land, water and space is customary law, as long as it does not conflict with national and state interests, which are based on national unity, with Indonesian socialism and with other regulations, all of which must pay attention to elements that are based on religious law. (2007: 52 – 53)

Customary law is the main source in the preparation of national land law, making everything from the basic framework of customary law the first source, this is emphasized by Budi Harsono in Supriadi, that;

The new Land Law, which was created using materials from customary law, in the form of legal norms outlined in statutory regulations as written law, constitutes a written positive national land law. The UUPA is the first such result.

In his writing, Supriadi gives an example of a case of a religious communal nature that allows for individual land ownership, with land rights that are personal in nature, while also containing an element of togetherness. Furthermore, in his writing, Supriadi explains that the religious communal nature of the national land law concept is regulated in Article 1 paragraph (2) of the UUPA which reads as follows "All the earth, water and space, including the natural resources contained therein in the territory of the Republic of Indonesia, as a gift from God Almighty, are the earth, water and space of the Indonesian nation and are national wealth."

In addition to outlining the communalistic religious nature which also contributes to the concept of national land law, Supriadi also mentions a number of other principles contained in customary law principles used in national land law, namely; religious principles (Article 1), national principles (Articles 1, 2, and 9), democratic principles (Article 9), principles of community, equality and social justice (Articles 6, 7, 10, 11 and 13), principles of planned land use and maintenance (Articles 14 and 15), and the principle of horizontal separation. (54)

Although customary law is the main source, in his explanation Supriadi explains that there is an opportunity or possibility to adopt new institutions that are not found in customary law to enrich and develop national land law, provided that they do not conflict with Pancasila and the 1945 Constitution, one of which is Land Registration. Supriadi's statement is not in accordance with Boedi Harsono, because according to Boedi Harsono, customary communities have their own wisdom and knowledge about land boundaries, so that if an individual violates the provisions of customary law regarding a land, the community will know. However, Supriadi explains that this institution is needed in the concept of national land law because all processes related to land rights are registered, recorded in the land book and then a certificate is issued as proof of land ownership. (55) This is very necessary to avoid conflicts that occur, as has been stated in the introduction. Although sometimes there are several cases that occur due to claims of ownership by two parties on the same land.

                                     

Closing Event

Cases of violence and conflict in Maluku stemming from customary land disputes must be a priority for the Maluku Provincial Government, as land is a coherent concept between the indigenous people of Maluku and the universe, ensuring that conflicts do not become protracted. Legal resolution must be pursued to ensure the public understands that violence is not the solution to differences. An understanding must also be instilled in the community that the legal process being pursued is based on customary law. Ensuring legal certainty in the land sector can be a key solution to resolving conflicts arising from land disputes. Therefore, the availability of comprehensive, clear, and consistently implemented written legal instruments, along with effective land registration, is essential.

This journal article represents an initial step in contributing to the issues of violence and conflict in Maluku, which are often driven by land issues. This paper can also contribute to the academic world's understanding of Maluku's community development, and offer a valuable contribution to all law students focusing on agrarian law to conduct new research, as there are still many cases that can serve as sources for writing and research.

 

 

Register Reading

 

Cooley. 1962. Ambonese Customs: A General Description. Jakarta: BPK Gunung Mulia

Harsono, Budi. 2008. Indonesian Agrarian Law: History of the Formation of the Basic Agrarian Law, Its Contents and Implementation. Jakarta: Djambatan

Santoso, Urip. 2010. Agrarian Law and Land Rights. Jakarta: Kencana Prenada Media Group

Supriadi, SH, M.Hum. 2007. Agrarian Law. Jakarta : Sinar Grafika Publisher

http://www.snpk-indonesia.com/docs/NVMS_Brief_19072012.pdf

http://www.siwalimanews.com/post/polisi_diminta_ungkap_pemain_konflik_porto-haria