The transformation of land law in Indonesia: The persistence of pluralism

Asian Journal of Comparative Law

Volumn 5, Issue 1, 2010, Pages

  Daryono, ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

Author keywords

Development; Land; Law

Indexed keywords

EID: 77950674843     PISSN: None     EISSN: 19320205     Source Type: Journal    
DOI: 10.2202/1932-0205.1180     Document Type: Article

References (149)

1. Justifications for development-oriented tenure transformations include social equality, sustainable economic development and to resolve endemic poverty in developing countries. Several World Bank reports emphasise the transformation of property regimes as a fundamental objective. See, for example, World Bank, World Development Report 2006: Equity and Development (Washington: World Bank and Oxford University Press, 2005, online: World Bank http://go.worldbank.org/XP2234QDV0 at 162-168.
2. See also, World Bank, World Development Report 2005: A Better Investment Climate For Everyone (Washington: World Bank and Oxford University Press, 2004), online: World Bank at 79-92;
3. Klaus Deininger, Land Policy for Growth and Poverty Reduction (Washington: World Bank and Oxford University Press, 2003), online: at xvii-xliv.
4. See Klaus Deininger, Land Policy for Growth and Poverty Reduction (Washington: World Bank and Oxford University Press, 2003), online: at xix- xxi.
5. For example, agrarian reform in Latin America has failed to increase land right security and protect the interests of indigenous people to the land. See Hendrix, S E, "Property Law Innovation in Latin America with Recommendations" (1995) XVIII B.C. Int'l. & Comp. L. Rev. 1 at 46-47
6. Similarly the transformation of colonial land in Anglo African countries reveals unsatisfactory result. See Patrick McAuslan, "Only the Name of the Country Changes: The Diaspora Of 'European' Land Law in Commonwealth Africa" [McAuslan, "Only in the Name"] in Bringing the Law Back In: Essays in Land, Law and Development (Aldershot: Ashgate Publishing Limited, 2003) [Bringing the Law Back In].
7. Of more than 185 developing countries, only a few (25 countries) have been successful in transforming their property rights system. The remaining countries are still struggling to implement modern property rights regimes. See Hernando de Soto, "The Missing Ingredient" The Economist (US) (11 September 1993) at 8.
8. Daniel Fitzpatrick, "Evolution and Chaos in Property Rights System: The Third World Tragedy of Contested Access" (2006) 115 Yale L.J. 996 at 1016.
9. Ulayat rights are associated with the rights of the (adat) community to manage the communal (adat) land. Ulayat rights have been primarily defined as the beschikkingsrecht by van Vollenhoven to consist of seven attributes including the rights of disposal and the rights of allocation of the communal land. See J.F. Holleman, ed., Van Vollenhoven on Indonesian Adat law: Selections from Het Adatrecht van Nederlandsch-lndie (Vol. I 1918, Vol. II 1931) (1981) at XLVII [Holleman, Van Vollenhoven on Indonesian Adat Law].
10. See generally Robert B. Seidman, "Drafting for the Rule of Law: Maintaining Legality in Developing Countries" (1987) 12 Yale J. Int'l L. 84.
11. See also J.M. Otto, "Toward and Analytical Framework: Real Legal Certainty and it Explanatory Factors" in Jianfu Chen, Y Li & J.M. Otto, eds., Implementation of Law in the People's Republic of China (The Hague: Kluwer Law International, 2002) 23.
12. See G. Goodpaster, "Law Reform in Developing Countries" ( 2003) 13 Transnat'l L. & Contemp. Probs. 659 at 661-662 [Goodpaster, "Law Reform in Developing Countries"];
13. See also Ann Seidman, Robert B. Seidman and Thomas W. Walde, "Building Sound National Legal Frameworks for Development and Social Change" in Ann Seidman, Robert B Seidman and Thomas W Walde, eds., Making Development Work: Legislative Reform for Institutional Transformation and Good Governance, (The Hague: Kluwer Law International, 1999), at 1 [Seidman et al, Making Development Work].
14. See Ibrahim F.I. Shihata, "Preface: Good Governance and the Role of Law in Economic Development" in Seidman et al, Making Development Work ibid at xviii [Shihata, "Preface"];
15. See also J. Faundez, "Legal Technical Assistance" in Julio Faundez, ed., [Faundez, "Legal Technical Assistance"]. Good Government and Law: Legal and Institutional Reform in Developing Countries (New York: St Martin's Press, 1997)1 at 6-8 [Faundez, Good Government and the Law]
16. See in general Law and Development: The Future of Law and Development Research (New York: International Legal Centre, 1974);
17. See also Goodpaster, "Law Reform in Developing Countries", supra note 8 at 669-72;
18. See also Robert B Seidman, State, Law and Development (New York: St Martin's Press, 1978) at 36-45, 61-63 [Seidman, State, Law and Development].
19. This is commonly called as classical legal pluralism. See S. E. Merry, "Legal Pluralism" (1988) 22 Law & Soc'y Rev. 869 at 872-874 [Merry, "Legal Pluralism"];
20. See also Barry M Hooker, Legal Pluralism: an Introduction to Colonial and Neo-Colonial Laws, (Oxford: Clarendon Press, 1975) at 6.
21. See in general J. Griffiths, "What is Legal Pluralism?" (1986) 17 J. Legal Pluralism 1 [Griffiths, "What is Legal Pluralism?"] which provides a detailed description of the nature of legal pluralism.
22. See also Merry, "Legal Pluralism", ibid, who distinguished legal pluralism into soft and hard definitions of legal pluralism.
23. See generally Daniel Fitzpatrick, "Beyond Dualism: Land Acquisition and Law in Indonesia" [Fitzpatrick, "Beyond Dualism"] in Tim Lindsey, ed., Indonesia: Law and Society, (Sydney: Federation Press, 1999) 74 [Lindsey, Indonesia: Law and Society];
24. see also McAuslan, "Only the Name"
25. supra note 3, in Bringing the Law Back In, supra note 3.
26. Another phenomenon of legal pluralism has been the presence of "a forum shopping." See K. Von Benda-Beckmann, "Forum Shopping and Shopping Forum: Dispute Processing in Minangkabau Village" (1981) 19 J Legal Pluralism 117.
27. Burns describes these controversies in detail. Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Leiden: KITLV Press 1995), at 53-81 [Burns, The Leiden Legacy].
28. Burns describes these controversies in detail. Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Leiden: KITLV Press 1995), Ibid at 83;
29. See also Fitzpatrick, "Beyond Dualism", supra note 13.
30. See generally Bronislaw Malinowski, Crime and Custom in a Savage Society (London: Routledge and K Paul, 1926).
31. A collection of English translations of his works have been made available by Holleman. Holleman, Van Vollenhoven on Indonesian Adat Law, supra note 6.
32. See Barend ter Haar, Adat Law in Indonesia (translation) Beginselen en Stelsel van het Adatrecht (New York: Institute of Pacific Relations, 1948) at 5-10 [Haar, Adat Law in Indonesia].
33. See Burns, The Leiden Legacy, supra note 14, 113-119;
34. See also McAuslan, "Only the Name" supra note 3, at 64-77.
35. See C. Fasseur, "Colonial Dilemma: Van Vollonhoven and the Struggle Between Adat Law and Western Law in Indonesia' in W J Mommsen and J A d Moor, eds. Europe and Expansion of Law: the Encounter of European and Indigenous Law in 19th and 20th Century Africa and Asia, (Oxford: Berg Publishers, 1992) at 10-14 [Fassuer, "Colonial Dilemma"].
36. See Fasseur, "Colonial Dilemma", ibid. at 240-241
37. Plantation industrial relations were governed by formal contract law and modern institutions, such as market, labour contract etc. See Sartono Kartodirdjo and Djoko Suryo, Sejarah Perkebunan di Indonesia: Kajian Sosial Ekonomi (Yogyakarta: Aditya Media, 1991) at 146-147
38. The ethical policy was based on van Deventer's essay on "A debt of Honour" to the colonies that became the moral and legal justification for the recognition of customary systems. See Burns, The Leiden Legacy, supra note 14, at 3.
39. McAuslan, "Only the Name", supra note 3, at 64-77.
40. McAuslan, "Only the Name", supra note 3, Ibid. at 71.
41. Peter Sack, "Legal Pluralism: Introductory Comments" in Peter Sack and Elizabeth Minchin, eds., Legal Pluralism: Proceedings of the Canberra Law Workshop VII, (Canberra: Law Department, Research School of Social Sciences, Australian National University, 1985) at 3 [Sack, "Legal Pluralism"].
42. See McAuslan, "Only the Name", supra note 3, at 71-74
43. See Fitzpatrick, "Beyond Dualism", supra note 13.
44. McAuslan describes the current legal pluralism on land as a polycentric system that operates under different types of market system. Patrick McAuslan, 'Land policy: A Framework for Analysis and Action' in Bringing the Law Back In, supra note 3, at 7-8 [McAuslan, "Land Policy"].
45. J.H. Boeke, Economics and Economic Policy of Dual Societies as Exemplified by Indonesia (New York: Institute of Pacific Relations, 1953), at 2.
46. See Thomas W. Walde and James L. Gunderson, 'Legislative Reform in Transition Economies: Western Transplants: A Short-cut to Social Market Economy Status' in Seidman et al, Making Development Work, supra note 8, at 67.
47. See Griffiths, "What is Legal Pluralism?", supra note 12, at 1-3;
48. See also M. Galanter, Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law (1981) 19 J. Legal Pluralism , at 17.
49. See McAuslan, "Only the Name", supra note 3 , at 64-77;
50. See also D. Fitzpatrick, Best Practice Options for the Legal Recognition of Customary Tenure (2005) 36 Development & Change 457.
51. See F. von Benda-Beckmann, K. Von Beckman, and A. Griffiths, "Mobile People Mobile Law: An Introduction" in F. von Benda-Beckmann, K. Von Beckman, and A. Griffiths, eds., Mobile People, Mobile Law: Expanding Legal Relation in a Contracting World, (Aldershot: Ashgate, 2005).
52. See Griffiths, "What is Legal Pluralism?", supra note 12, at 5, 8;
53. See also Merry, "Legal Pluralism", supra note 11, at 889.
54. Sack, "Legal Pluralism", supra note 26.
55. See in general L. M. Friedman, "On Legal Development" (1969) 24 Rutgers L. Rev. 11 [Friedman, "On Legal Development"];
56. see also D. M. Trubek, Toward a Social Theory of Law: an Essay on the Study of Law and Development (1972) 82 Yale L. J. 1 at 2-10.
57. Friedman, "On Legal Development", ibid. at 53.
58. See also eg, Shihata, "Preface", supra note 9 in Seidman et al, Making Development Work, supra note 8, at xviii;
59. See also Faundez, "Legal Technical Assistance", supra note 9, at 24.
60. Seven propositions are used as the basis of the liberal model of law and development and these often fail to be established in developing countries. See D. M Trubek and M. Galanter, "Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States" (1974) Wis. L. Rev., 1062 at 1080.
61. The heavy-state planning and development have discouraged private sector to grow in many developing countries. See Goodpaster, "Law Reform in Developing Countries", supra note ,at 662;
62. See also Patrick McAuslan, "Law, Governance and the Development of the Markets: Practical Problem and Possible Solution" in Faundez, Good Government and Law, supra note 9, at 28-34.
63. See generally Daniel Fitzpatrick, "Private Law and Public Power: Tangled Threads in Indonesian Land Regulation" in Henk Shulte Nordholt and Irene Hoogenboom, eds., Indonesian Transitions, (Yogyakarta: Pustaka Pelajar, 2006) at 75.
64. Fitzpatrick developed the notion of a semi-formal system to describe the system falling between law and adat, ibid at 100-102 I adopt this system to describe the intermediary phenomenon to bridge the formal and informal system that has existed since colonial time.
65. See McAuslan, "Land Policy", supra note 29, at 30.
66. See Rachel Haverfield, "Hak Ulayat and the State: Land Reform in Indonesia" in Lindsey, Indonesia: Law and Society, supra note 13, at 42;
67. See also Jude Wallace, A.P. Parlindungan, and Arie S. Hutagalung, A S, Indonesian Land Law and Tenures - Issues in Land Rights, (Indonesian Land Administration Project, 2000), Ch. 1, at 11.
68. The Agrarian Offices during New Order Government (1966-1997) were served as an extended central government hand to control land by manipulating state rights on land (HMN). To justify this purpose the structure of Agrarian Office was directly under control of the President Office and this continues until now.
69. BAL 1960, Explanatory memoranda, General Elucidation section I.
70. Ibid, section I and II. The National Agrarian Law is a codified agrarian law based on BAL 1960.
71. Article 5 and the Consideration para C.BAL 1960. Under the continuous debates, adat law is conceptually defined as "the collection of operative rules of behaviour which on the one hand are enforced by sanctions (hence "law") and on the other hand are un-codified (hence "adat"). See Holleman, Van Vollenhoven on Indonesian Adat Law, supra note 6, at 7.
72. See also Soerjono Soekanto, Kedudukan dan Peranan Hukum Adat di Indonesia (Jakarta: Kurnia Esa,1982) [Soekanto, Kedudukan dan Peranan], at 44-45 ;
73. [Haar, Adat Law in Indonesia, supra note 18, at 49-52]
74. Four major issues relating to land administration during the 40 years of implementation are: (i) the increasing number of land conflicts and disputes; (ii) the concentration of vast tracts of land in a small number of people; (iii) the weak protection provided to land-holders; and (iv) the failure to create cadastral recognition and description of communal tenures. See Kerangka Kebijakan Pertanahan Nasional: National Land Policy (Indonesia: Badan Perencanaan Pembangunan Nasional (BAPPENAS), 2001) at 5.
75. Only about 22% of land has been formally registered and converted into statutory rights. See Terminal Evaluation of Land Administration Project Phase I (Laporan Akhir Proyek Administrasi Pertanahan Fase I), (Indonesia: PN Badan Pertanahan Nasional, 2001), at 1.
76. For further discussion about the deficiency of the unification program, see D. Fitzpatrick, "Disputes and Pluralism in Modern Indonesian Law" (1997) 22 Yale J Int'l L. 171.
77. International Land Coalition: Main Observation from Discussion of Land Partnerships in Indonesia (2003), online: International Land Coalition ;
78. See also Staff Appraisal Report Indonesia Land Administration Project, (The World Bank, 1994), at 5.
79. See the Amendment 1945 Constitution Article 18B (2), and also Law No.34 of 2003 Art. 1 (g).
80. BAL only addresses broad principles which require further explication through the implementation of laws on statutory rights. However, this was not done until recent times. See Sudargo Gautama and Boedi Harsono, The Survey of Indonesian Economic Law: Agrarian Law (Bandung: Lembaga Penelitian Hukum dan Kriminologi, Universitas Padjadjaran, 1972), at 25.
81. See Mahadi, 'Kedudukan Tanah Adat Dewasa Ini' in Simposium Undang Undang Pokok Agraria dan Kedudukan Tanah Tanah Adat Dewasa Ini, (Jakarta: Binacipta, 1977).
82. See Consideration (b) of BAL 1960 and Conversion Provision (I) BAL 1960.
83. For example, Article IX Conversion Provision states that the necessities required for implementing the conversion provision are further regulated by the Ministry of Agrarian Affairs.
84. Due to a lack of reliable land records and the low quality of human resources, the issuance of land certificates often neglected a thorough assessment of potentially issuing multiple land certificates for one parcel of land. See Soni Harsono, Pokok Pokok Kebijaksanaan Bidang Pertanahan dalam Pembangunan Nasional, (1990) [unpublished, seminar paper presented in National Symposium on Land Issues].
85. About 70% of land cases lodged in the East Java Administrative Court in 2006 was in relation to the validity of the land certificate issued based on land rights conversion. Personal interview with the Panitera Pengadilan Tata Usaha Negara, Surabaya, (July 2007).
86. The appropriation of land in theory has to be regulated by the legislation and executed by Court rather than the government regulation. This has challenged illegitimacy of the state appropriation for development purposes that is based on Presidential Decree. See Presidential Decree No.35 of 2005 concerning the Land Appropriation for Development Purposes.
87. The New Order Government ("NOG") (1966 - 1998) produced propaganda suggesting that land reform was a product of the (prohibited) communist party. By implication, land claimants were communist supporters. As a result of this political approach land claims almost ceased entirely during NOG era.
88. J. W. Salacuse, "From Developing Countries to Emerging Markets: A Changing Role for Law in the Third World" (1999) 33 The Int'l Lawyer 875 at 890.
89. The Majelis Permusyawaratan Rakyat (MPR) was previously the highest state body which was able to execute the people's sovereignty. Now, its authority is limited to performing three main functions: appointing the President and vice President; developing national development planning; and amending the constitution. The sovereignty is held by the people and executed in accordance to constitution. Article 1 (2) the Amendment Constitution 1945.
90. Article 5, M.P.R. Decree on Agrarian Reform and Natural Resource Management 2001.
91. Article 10, Section 3, Law on Local Government 2004.
92. The communality of the tenure system is commonly based whether on territorial division or ethnicity and genealogy, which was created in pre-colonial times during the Mataram kingdom and strengthened during the cultivation system by the colonial government. See Holleman, Van Vollenhoven on Indonesian Adat Law, supra note 6, at 179;
93. See also Taro Goh, Communal Land Tenure in Nineteenth Century Java: The Formation of Western Images of the Eastern Village Community, (Canberra : Department of Anthropology, Research School of Pacific and Asian Studies, Australian National University, 1998), at 47-55.
94. The unilateral action to reoccupy the land, supported by the Communist Party, led to the Communist insurgency that occurred during the revolutionary period 1945 to 1949 centred in Madiun, East Java. Further action took place in 1965 when the land reform mandated by BAL 1960 was seen as being slow and uncertain. After this time, land issue became very sensitive due to NOG propaganda eliminating communism.
95. See Law on Nationalisation of Dutch's Owned Property 1958.
96. Although Article 19 the BAL stipulated that land registration is legal registration (rechkadaster), to provide legal security, in practice, land registration is negative in which land registration is not decisive to execute dealing rather than serves as supporting evidence. See Anna Bungaran v. Jonathan Marga Naibaho (1974) Yurisprudensi Mahkaman Agung.
97. In East Java for example community claims were initiated in the Jenggawah plantation case in Jember (1997);
98. the Kalibakar Plantation case in Malang (1999) and many new claims have emerged across plantation and forest areas. See Asa, Sekitar Rp. 3 trilyun, Kerugian Konflik Sosial di Perkebunan (2002)
99. See also Anonim, Gerakan Reklaiming dan Hak Atas Sumber Daya Hutan di Jawa (2002) 2.
100. See Fitzpatrick, "Beyond Dualism", supra note 13, at 87-88
101. During the phase I of Land Administration Project (LAP), in 1994 it was discovered that only about 22% of 54 million parcels of land has been registered. See BPN Badan Pertanahan Nasional, Terminal Evaluation of Land Administration Project Phase I (Laporan Akhir Proyek Administrasi Pertanahan Fase I), (2001), at 1.
102. Land registration is negative where the registration is not decisive rather than a supporting evidence of land transaction. See Article 19 BAL 1960 and the Government Regulation No.24 of 1997 on Land Registration.
103. Article 16, BAL, 1960.
104. Article I-IX, the Conversion Provision, BAL 1960.
105. The BAL 1960 consists of only 52 articles of main section, 6 supplementary articles and 9 conversion provisions. Compared to previous Indonesian version of Colonial Civil Code, the main body of Book II consists of about 733 articles related to property.
106. Hundreds of regulations in regard to land have been enacted and many of them are in conflict and it is difficult to find the priority rule over the conflicting regulations. See Jude Wallace, Indonesian Land Law in Nutshell (June 2000), [unpublished].
107. See Consideration of BAL 1960 (a), (b).
108. See Art. 3 and Art. 6 BAL 1960.
109. See Law No.13 of 1946 on the Abolition of Desa Perdikan (autonomous region derived from the privileged grant by the sultanate or emperor); Law on Liquidation of Private Estate 1958 which gave special privileges to the owner to act as a government to manage huge tracts of land and people.
110. Soekanto, Kedudukan dan Peranan, supra note 48, at 44-45
111. The common misunderstanding of adat as traditional, contrary to development, unwritten, stagnant and uncivilized is derived from the concept of adat as an old fashioned concept. Adat however, is the adaptive normative system of a semi-autonomous society in response to the existing external system and is continually reinvented by the people. See Soerjono Soekanto, "Hukum Adat Indonesia" [unpublished, paper presented at the Hukum Adat Dan Pembinaan Hukum Nasional, University of Gadjah Mada, 1976), at 116-119
112. Since 1960, the Ministry of Agrarian Affairs has been changed into four different structures: the departmental ministry (Depatement Agraria), the Directorate General under Department of Home Affairs (Direktorat Agraria), the State Ministry (Menteri Negara Agraria) and the independent office equivalent to ministry (Badan Pertanahan Nasional).
113. See Law no 7 of 1958. The role of Directeur van Binnenlands, Hoofd van Gewestelijk Bestuur, Hoofd van Plaatselijk Bestuur and other roles related to agrarian issues reverted to the Agrarian Minister.
114. See Maria S.W. Sumardjono, Kebijakan Pertanahan: Antara Regulasi dan Implementasi, Kompas, (Indonesia), 2002;
115. See also Sukri Abdurrahman et al, Konflik Pertanahan di Era Reformasi: Hukum Negara, Hukum Adat dan Tuntutan Rakyat (Jakarta: Lembaga Ilmu Pengetahuan Indonesia, Puslit Kemasyarakatan dan Kebudayaan, 2002), at 9-10.
116. See Goodpaster, "Law Reform in Developing Countries", supra note 8, at 669-672
117. Similar to Indonesia, in most developing countries, the transitional period to the market economy is marked by a powerful bureaucracy that only benefits to bureaucratic bourgeois. See Seidman, State, Law and Development, supra note 10, at 468.
118. About 16% of the population, mainly resident in capital city of Jakarta, holds and controls about 67% of the land. See Noer Fauzi, "Anatomi Politik Agraria Orde Baru" in Noer Fauzi, ed., Tanah dan Pembangunan: Risalah Dari Konferensi INFID ke-10, (Jakarta: Pustaka Sinar Harapan, 1997), at 139-141
119. See Presidential Decree on National Policy on Land 2003, nine major land affairs are devolved to local government.
120. Since the fall of NOG, unilateral land reclaiming by adat communities has substantially occurred in major plantation and forest across Indonesia. See Asa, Sekitar Rp. 3 trilyun, Kerugian Konflik Sosial Di Perkebunan (2004), Kompas, (Indonesia).
121. See Adriaan Bedner, Administrative Courts in Indonesia: A Socio-Legal Study, (The Hague: Kluwer Law International, 2001), at 152-154
122. Keebet von Benda-Beckmann, 'Evidence and Legal Reasoning in Minangkabau' in Keebet von Benda-Beckmann and Fons Strijbosch, eds., Anthropology of Law in the Netherlands: Essays on Legal Pluralism, (Dordrecht: Cinnaminson, 1986), at 136.
123. Due to racial discrimination based on Art. 131 Indische Staatsregeling which distinguished between legal subjects as either (1) Westerners; (2) Bumiputera; or (3) Far Easterner (neither under (1st ) nor (2nd) classification), the colonial land policy under the Agrarische Wet 1870 distinguished the property right system between the Western title under the Dutch Civil Code and adat land rights under their own customary law.
124. See the Transitional Provision and the Conversion Provision of BAL 1960 and Article 16 of BAL 1960.
125. See Jude Wallace, Indonesian Land Law in Nutshell (June 2000), [unpublished], para.6;
126. See also Staff Appraisal Report Indonesia Land Administration Project, (The World Bank, 1994), at 7.
127. The destruction of state archives including land records occurred during Japanese occupation and the revolutionary period. Personal Interview with NLA staff, East Java Provincial Office. (March 2004).
128. See generally the annual report of the Directorate of Agrarian Affairs 1979, the Directorate of Agrarian Affairs and the Ministry of Home Affairs.
129. Article 19 and elucidation of the BAL 1960. Registration of land is not decisive, rather it only provides supported evidence. Valid claims, however, are limited to a maximum period of five years (Article (32 (2)) the Government Regulation No.24 of 1997 on Land Registration), but this is in conflict with adat law as no limitation periods under adat law (kadaluwarsa).
130. The occupiers of Western land were often evicted without compensation as the Western land reverted to state under nationalisation and Western land taking action. See Ichdar v the Head of NLA Pasuruan District; Ny Atin vs Hadiprayitno; Permadi v The Head of the NLA Jember City.
131. The transfer of unconverted Western land was declared invalid as State assumed that Western land reverted to state. See for example Ny Halimah v NLA, the Administrative Court Decision No. 34/G.TUN/1998/ PTUN. SBY. Surabaya East Java.
132. Article 4 the Ministry of Agrarian Affairs Regulation no 2 of 1960.
133. Article 4 and 7 the Ministry of Agrarian Affairs Regulation no 2 of 1960.
134. Halimah v. The NLA (1998).
135. For example, see the land reclamation and community's occupation in the Kalibakar Plantation case and the Telogo Rejo Plantation case in south of Malang District, East Java and other private and state plantation enterprises across the nation.
136. Tony Sutipyo v NLA and Village Representative Assembly (LKMD) (1995).
137. See Pusat Kajian Pembangunan Masyarakat Atma Jaya dan Badan Pertanahan Nasional, Pola Penguasaan Tanah Masyarakat Traditional dan Problema Pendaftaran Tanah, (1998), at 59-63.
138. Article 10, Section II, The Appointment of Deed Official as Mentioned by Article 19, Government Regulation No.10 of 1961, Minister of Agrarian Affair Decision No. 10 of 1961. This regulation is amended by The Regulation of Deed Official (Pejabat Pembuat Akta Tanah) 1998 Government Regulation No. 37 of 1998.
139. Even though Supreme Court Decisions reveal contrasting precedents, the underlining consensus seems to provide greater protection to deeds compared to unwritten adat practices. See Mahkamah Agung RI, Himpunan Kaidah Hukum Putusan Perkara Dalam Buku Yurisprudensi, (2002).
140. Since colonial times, symbolic political legal authority has vested not in courts but in the administrative bureaucracy, particularly the pangreh praja (now Camat), the local arm of the Ministry of Interior. See Daniel S. Lev, "Between State and Society: Professional Lawyers and Reform in Indonesia" in Lindsey, Indonesia: Law and Society, supra note 13 at 231.
141. Drafts of both statutes, Agrarian Resources and Natural Resource Management, are still under extensive review and each contains a far from adequate level of comprehensive and coherent provisions. (The drafts of both legislations are available in Author's file).
142. See C. Flourie and B. Soewardi, Institutional Framework Reform for Land Administration - Indonesia, (2000), [unpublished] at 10-11
143. See Masyarakat Transparansi Indonesia, Prinsip-Prinsip Pelaksanaan Otonomi Daerah U.U. No.22 Tahun 1999 (1999) [unpublished].
144. Kor, Forum Gubernur Desak D.P.R. Revisi Menyeluruh Undang-Undang Otonomi Daerah (2004), Kompas, (Indonesia).
145. See article 11 (2) Law no 22 of 1999 regarding the Provisions of Provincial and District and Governments. The roles of government delivered to district and town governments includes public service, health affairs, education and cultural affairs, agriculture, transportation, industry and trade, the investment sector, the environment, land affairs, man power and cooperative affairs. See also Article 13 and 14 Law on Local Government. The land affairs services are the authority of both provincial and district and town governments.
146. See Toto Sumiyoto Kewenangan Bidang Pertanahan Dalam Rangka Pelaksanaan Otonomi Daerah (2002), [unpublished].
147. See the principle of medebewind on the delegation of authority on land affairs. The elucidation of Article 2, BAL 1960.
148. Article 2 and elucidation, BAL 1960.
149. Article 1 (2) Section I, Amended Constitution 1945.