Conflicts in relation to agrarian law occur a lot in Indonesia. Why does this happen? Is it because the legal instruments available are not sufficient for the people’s needs? Agrarian law in Indonesia is regulated under Law Number 5 Year 1960 concerning Agrarian Subjects (“UUPA”) and its implementing regulations. This article will examine if the UUPA does comply with the people’s needs and will discuss the normative principles as set out in the UUPA, which are often debated.
According to Article 1 paragraph (1) of UUPA, the territory of Indonesia consists of all land, water and all the people of Indonesia, that unites the Nation of Indonesia. All land, water and space, including the natural resources, contained in it are under God’s grace and considered as National wealth.
The State Principle: Highest Level of Control of Land, Water, Space and Natural Resources
This principle is based on Article 2 paragraph (1) of UUPA. The word “control” in this article does not mean to possess, but is used to express that the State is the highest controlling organ within the nation of Indonesia and can:
- Regulate and organize the allocation, use, supply and maintenance of land, water, space and natural resources;
- Determine and regulate the rights and obligations upon land, water, space and natural resources. These rights and obligations take into account the interests arising out of personal relationships and agrarian interests.
- Determine and regulate the relationship between the community and legal actions concerning land, water, space and the natural resources contained in it.
Prioritizing National and State Interest based on the Unity of the Nation over the Interest of an Individual and Groups Principle
This principle can be found in Article 3 of UPPA. Even though customary rights (hak ulayat) (communally owned land based on adat law (hukum adat)) are still recognized under the National Agrarian Law, these customary laws will not block the legal effect of the Agrarian Law concerning the interest of development. The people using adat law are not allowed to refuse the use of land for development based on customary law. Therefore the State has the right to use land on a large scale, for example, in the interest of transmigration, new agricultural areas and other reasons of national concern.
Rights of Land and the Social Function Principle
This principle is described in Article 6 of UPPA, the principle encompasses that all rights of land that belong to an individual, will not prevail if these rights are used (or not used) solely for their own personal gain and interest, especially if it disadvantages the rest of the community.
Only Indonesian Citizens may have a Right to Own Principle
This principle can be found in Article 21 paragraph (1) of UUPA. Right of Ownership is the highest right an individual can acquire and this right has no time limit. Right to own cannot be acquired by foreigners, including Indonesian citizens who marry a foreigner. This is because a marriage has the legal effect of unification of wealth. Therefore an Indonesian Citizen who has a right to own will lose this when he marries a foreigner. To overcome this problem, a prenuptial agreement before marriage can be drafted stating the separation of wealth.
Equalization for Every Indonesian Citizen
In accordance with Article 9 paragraph (2) UPPA, every Indonesian Citizen, whether male or female, has the same opportunity to obtain a right of land and to gain benefit of the outcome, whether for themselves or for their family.
Agricultural Land has to be Managed and Worked upon in a Wise Manner by the Owner Itself and Ways of Extortion should be Prevented
This principle can be found in Article 10 paragraph (1) of UUPA. The emergence of land reform or agrarian reform, is the renovation of ownership and control of land. The aim of this principle is that the land owned or controlled by an individual and that is not used as it should be can be used for beneficial purposes.
Planned Land Use/Land Allocation Principle
It is described in Article 14 paragraph (1) of UUPA. To achieve the ideals of the nation and Country of Indonesia in the agrarian area, there needs to be a plan concerning the allocation, use and supply of land, water and space for various aspects concerning the life of the people and the Country. This planning is shaped as a General Plan that covers all territory of Indonesia, and specifies more explicitly the specific plans for every district.
Theresia C. Pasaribu