Awaiting Reform on Agrarian (Land) Law

By March 12, 2019 No Comments

News on government’s plan to revise the current agrarian law of 1960 heated up lately. The government schedules that the bill will be promulgated before the upcoming election in early 2019. The question is, whether the government and legislators are able to agree on the amendment of provisions of the current law, which not only stipulates agrarian aspects but mainly on land law in Indonesia, on an extremely tight schedule.

Maria SW Sumardjono, the Professor of UGM gave comments on the government’s proposals on amendment of agrarian law as published in Kompas daily newspaper on 16 November 2018. She mentioned that the alteration of agrarian law is possible to the extent that the land law’s politics is intended to realize the provision of Article 33 paragraph (3) of Constitution of 1945, especially on the phrase “as much as possible the prosperity of the people”, namely the prosperity of people takes precedent over the individual’s. She further mentioned that the proposed new norms must be supported with a comprehensive research to avoid distortion, contestation, and norm reduction. I think that those are crucial advice for the government and legislators. It will be pointless to revise the existing law if the revised version will make it harder for the state to achieve its prosperity goal.

There are some issues arising out of the current agrarian law that have to be taken care in the new bill of land. They are among others, issues on legal certainty of land ownership, recognition and assessment on customary land right, unregistered land, land reform, limit on land area ownership for building and development, dispute settlement, unlawful land occupation, land procurement, and land administration.

Legal certainty is a critical matter. To have a smooth foreign investment, legal certainty on land ownership is a must. This is not yet existed. Unregistered land and recognition and assessment on customary land right are highly related. These two factors are also related to unlawful land possession. Land reform is highly important to distribute justice to the people, especially farmers. There is still no limit for land development, despite the provisions on location license. There has to be a clear limit for land that can be owned by a party (individual or entity). The current one only limits the agricultural land. Land dispute is related to the other factors and depended on land administration. A solid land administration will hugely reduce the land dispute. The Ministry of Agrarian and Spatial Planning explained that the root of land dispute is land ownership evidences and the inequality in the land possession. The Minister Sofyan Djalil also explained that the largest disputes are among individuals, reaching 56.2% (6,071 cases) of all land disputes in Indonesia, as published by on 18 December 2018. The ambiguity on the certainty over land ownership causes unlawful land possession. These squatters, in time, consider that the possessed land is their owned land. This eventually creates enormous problems on land procurement projects.

Legal certainty on land ownership may be obtained through time limitation to file a claim and completion of land certification across Indonesia. The latter program is undertaken by the Jokowi’s government and is worthy of praise. The time limitation provision has to be absolute without challenge. Therefore, the regulation on title insurance for the claimant, if the claimant wins the legal case, is significant. Limitation on land ownership must be regulated in the law, not only on ministerial level. Recognition on customary land must be stipulated under the law since it will clear out the status of unregistered land and unlawful land possession. Land reform must be implemented thoroughly with a clear schedule and strong initiative by the government. Reading massive land disputes among individuals, the government should consider this matter as central. The people, especially the farmers, must have enough land to be cultivated. Land reform is highly interconnected to social justice. Dispute settlement procedure is necessary to expedite the process, must be assessed and decided by the judges who understand the concept; its legal principles and interpretations are standardized as well as used as precedent to avoid various legal decisions that will confuse the people and litigants.

Indonesia has learned more than 50 years from the current agrarian law. So many issues arisen, so many thoughts were given, but from time to time, the commitment by the government (and legislators) is not strong enough. Speeding up is considerably bad. Knowing that this law is central to all people, a comprehensive study, as Prof. Maria mentioned, is essential. The government must ensure that the proposals to amend existing law must achieve constitution’s goal, namely prosperity of the people (not individual).

Eddy M. Leks