UUPA English

BASIC AGRARIAN LAW (UUPA) Act No. 5 of 1960 re the Basic Pro isio!s co!cer!i!" the #$!%a&e!ta's of A"raria!
Affairs
Translation/Editing File Name : Land-594
BASIC AGRARIAN LAW (UNDANG-UNDANG POKOK AGRARIA (( UUPA)
)AC* N+. 5 +# 1960 R, *-, BASIC PR+.ISI+NS C+NC,RNING *-, #UN/A0,N*ALS +# AGRARIAN A##AIRS1
*hir% Pri!ti!" *-, /IR,C*+RA*, G,N,RAL +# AGRARIAN A##AIRS +# *-, /,PAR*0,N* +# -+0, A##AIRS 1926
AC* N+. 5 +# 1960 R, BASIC PR+.ISI+NS C+NC,RNING *-, #UN/A0,N*ALS +# AGRARIAN A##AIRS *-, PR,SI/,N* +# *-, R,PUBLIC +# IN/+N,SIA co!si%eri!" 3 a. that in the State of the Republic of Indonesia, the structure of whose society and economy is primarily of agrarian nature, the bumi (soil), air (water), and ruang angkasa (airspace) --which are the gifts of the Only One God-- ha e ery important functions in the de elopment of a !ust and prosperous society" that the agrarian law which has remained effecti e up to the present moment was de eloped partly on the basis of the purposes and principles of the colonial go ernment and partly out of the influences of the said go ernment and is, therefore, in conflict with the people#s and State#s interests in the completion of the current national re olution and in the implementation of o erall de elopment" that the said agrarian law is dualistic in nature, gi en that adat (customary) law is also effecti e in addition to the former, which is based on western law" that to the indigenous people, the colonial agrarian law does not guarantee any legal certainty"
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o4i!i!"3 a. that in iew of what is described in the considerations abo e, it is deemed necessary to establish a national agrarian law which is based on adat land law, which is simple, and which guarantees legal certainty for all Indonesian people, without neglecting the elements which hinge on religious law" b. that the national agrarian law shall open up possibilities for the soil, water, and airspace to carry out their functions as meant abo e, shall be consistent with the interests of the Indonesian people, and shall fulfill on a timely basis the needs e$isting in all agrarian-related matters" c. that the national agrarian law shall bring into reality the spiritual principles of the State --namely %elief in the Only One God, &umanity, 'ationalism, (emocracy, and Social )ustice-- as well as the ideals of the 'ation as laid down in the *reamble of the +onstitution" d. that the national agrarian law shall also pro ide for the implementation of the , )uly, -.,. *residential (ecree, of the pro isions contained in /rticle 00 of the +onstitution, and of the *olitical 1anifesto of the Republic of Indonesia, which --as asserted in the *resident#s -2 /ugust, -.34 speech-- obliges the State to regulate land ownership and to manage land use so as to ensure that all land e$isting within the territory under the so ereignty of the 'ation will be used, either on an indi idual basis or on a gotong royong (mutual help) basis, to bring about the upmost prosperity for all the people"
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that in connection with all that has been described abo e, it is deemed necessary to lay the necessary principles and to de elop new basic pro isions in the form of an act which shall ser e as a foundation for the de elopment of the said national agrarian law"
4a5i!" atte!tio! to3 the proposal of the *ro isional Supreme /d isory %oard of the Republic of Indonesia 'o. -56pts5Sd5II534 on the Restructuring of 7and Rights and 7and 8se" 6eari!" i! &i!% 3 a. b. c. d. the , )uly -.,. *residential (ecree" /rticle 00 of the +onstitution" *residential (ecree 'o. - of -.34 (State Ga9ette 'o. -.34--4), which declares the *olitical 1anifesto of the Republic of Indonesia dated -2 /ugust -.,. as the state#s policy guidelines, and *residential 1essage dated -2 /ugust -.34" /rticle , in con!unction to /rticle :4 of the +onstitution"
a!% 7ith the a44ro a' of the Gotong Royong (&$t$a' he'4) /PR )-o$se of the Peo4'e8s Re4rese!tati es1 R,S+L.,S to re o9e 3 -. Agrarische Wet (S. 1870-55) ;/grarian /ct (State Ga9ette 'o. -<24-,,)= as contained in /rticle ,- of Wet op de Staatsinrichting van Nederlands Indie (S. 1 !5-""7) ;/ct re /rrangements of 'ederlands >ast Indies= and the pro isions contained in the other paragraphs of the said article" a. #o$einver%laring ((eclaration of the State as Owner of 7and) as meant in /rticle - of Agrarisch &esl'it (S. 1870-118) ;/grarian (ecree (State Ga9ette 'o. -<24---<)=" b. Alge$ene #o$einver%laring (General #o$einver%laring) as meant in S. 1875-11 a (State Ga9ette 'o. -<2,---.a)" c. #o$einver%laring 'nt'% S'$atera (#o$einver%laring for Sumatra) as meant in /rticle - of S. 187"- "( (State Ga9ette 'o. -<2?-.?f)" d. #o$einver%laring 'nt'% )eresidenan *enado (#o$einver%laring for the Regency of 1anado) as meant in /rticle - of S. 1877-55 (State Ga9ette -<22-,,)" e. #o$einver%laring 'nt'% +esidentie ,'ilder en -ostera(deling van &orneo ((omein er@laring for the Regencies in the Southern and >astern *arts of 6alimantan) as meant in /rticle - of S 1888-58 (State Ga9ette 'o. -<<<,<)" )onin%li.% &esl'it ((ecree of the (utch 6ingdom) dated -3 /pril -.2: ; S. 187!-117 (State Ga9ette 'o. -<2:---2)= and the regulations concerning its implementation"
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Translation File Name : Land-594
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%oo@ Awo of the +i il +ode of the Republic of Indonesia insofar as it pertains to soil, water, and the natural resources contained therein, to the e$clusion of the pro isions concerning hypothee% (mortgage) which are still effecti e at the time this act comes into effect"
a!% to sti4$'ate 3 AC* R, BASIC PR+.ISI+NS C+NC,RNING *-, #UN/A0,N*ALS +# AGRARIAN A##AIRS. #IRS* C-AP*,R I *-, #UN/A0,N*ALS AN/ *-, BASIC PR+.ISI+NS Artic'e 1 (-) (:) Ahe entire territory of Indonesia is the totality of the motherland of the whole Indonesian people, who are united as the Indonesian nation. /ll the earth, water, and airspace, including the natural resources contained therein, which e$ist within the territory of the Republic of Indonesia as gifts from the Only One God, are the Indonesian nation#s earth, water, and airspace and constitute the nation#s wealth. Ahe relationship of the Indonesian nation to the earth, water, and airspace referred to in paragraph (:) of this article is eternal. Bhat is meant by earth includes not only the surface of earth but also the mass e$isting thereunder and the mass e$isting under the water. Bhat is meant by water includes not only the water found inland but also the water e$isting in the seas within the territory of Indonesia. Bhat is meant by airspace is the space o er the soil and water as meant in paragraphs (?) and (,) of this article. Artic'e : (-) On the basis of the pro isions contained in /rticle 00 paragraph 0 of the +onstitution and of the matters referred to in /rticle - of this /ct, the earth, water, and airspace, including the natural resources contained therein, are at the highest hierarchical le el controlled by the State in its capacity as the whole people#s organisation of powers. Ahe State#s right of control as referred to in paragraph (-) of this /rticle confers the authorityC a. to regulate and administer the allocation, use, supply, and maintenance of the earth, water, and airspace"
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to determine and regulate legal relationships between people and the earth, water, and airspace" c. to determine and regulate legal relationships among people as well as legal acts concerning the earth, water, and airspace. Ahe powers which are deri ed from the State#s right of control as referred to in paragraph (:) of this article shall be used to achie e the utmost prosperity --in terms of democracy, welfare, and freedom for the society and legal State of Indonesia which is independent, so ereign, !ust, and prosperous. Ahe authority to implement the State#s right of control referred to abo e can be delegated, as reDuired, and pro ided that it is not contrary to the national interest, to /utonomous Regions and to adat-law communities by way of a Go ernment Regulation.. Artic'e ;
In iew of the pro isions contained in /rticles - and :, the implementation of the 'layat rights and other similar rights of adat-law communities --as long as such communities in reality still e$ist-- must be such that it is consistent with the national interest and the State#s interest and shall not contradict the laws and regulations of higher le els. Artic'e < (-) On the basis of the State#s right of control referred to in /rticle :, it is necessary to determine the types of rights to the surface of earth, which is called tanah (land), that can be granted to, and held by, persons, either indi idually, !ointly with others as well as bodies corporate. Ahe land rights referred to in paragraph (-) of this article confers authority to use the land in Duestion as well as the mass of the earth and the water e$isting under its surface and the space abo e it to a point which is essentially reDuired to allow for the fulfillment of the interests that are directly related to the use of the land in Duestion, such a point being within the limits imposed by this /ct and by other legislation of higher le els. In addition to the land rights as meant in paragraph (-) of this article, there are to be determined water rights and rights in relation to airspace. Artic'e 5 Ahe agrarian law applicable to the earth, water, and airspace is adat pro ided that it is not contrary to the national interest and the interest of the State, which are based on national unity, to Indonesian socialism, to the pro isions stipulated in this /ct, nor to other legislation, all with due regard to elements which are based on religious law.
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Artic'e 6 /ll land rights ha e a social function. Artic'e 2 Ao pre ent the public interest from being harmed, e$cessi e land ownership and possession is forbidden. Artic'e = On the basis of the State#s right of control referred to in /rticle :, the acDuisition of the natural resources which are contained in the earth, water, and airspace is to be regulated. Artic'e 9 (-) (:) Only Indonesian citi9ens can ha e the most complete relationship with the earth, water, and airspace, within the limits stipulated in the pro isions of /rticles - and :. > ery Indonesian citi9en, both men and women, has an eDual opportunity to acDuire a land right and to obtain the benefits and yields thereof for himself5herself or for his5her family. Artic'e 10 (-) (:) (0) > ery indi idual and corporate body which holds a right to agricultural land is in principle obliged to acti ely till the land or wor@ on it themsel es while a oiding any methods of human e$ploitation. Ahe implementation of the pro ision contained in paragraph (-) of this article is to be regulated further by way of legislation. >$emptions from the principle as meant in paragraph (-) is to be regulated by way of legislation. Artic'e 11 (-) 7egal relationships between people, including bodies corporate, and the earth, water, and airspace and the authorities deri ed therefrom are to be regulated so as to achie e the purpose referred to in paragraph (0) of /rticle : and that e$cessi e control of other people#s li es and occupations is pre ented. (:) (ifferences in social conditions and the legal needs of societal groups shall, where er necessary, be ta@en into account by pro iding guaranteed protection for the interests of the economically wea@er groups, pro ided that this isnot contrary to the national interest.
Artic'e 1: (-) (:) /ll !oint enterprises in the area of agrarian affairs are to be based on the common interest within the framewor@ of the national interest and are to be underta@en in the form of cooperati es or other methods of gotong royong (mutual help). Ahe state can, in cooperation with other parties, underta@e enterprises in the area of agrarian affairs. Artic'e 1; (-) Ahe Go ernment shall see@ to regulate enterprises in agrarian affairs in such a way that these enterprises can impro e the people#s production and prosperity as meant in /rticle : paragraph (0) and ensure a standard of li ing which measures up with human dignity for e ery Indonesian citi9en and his5her family. Ahe Go ernment shall pre ent any enterprises of pri ate-monopolistic nature by organi9ations and indi iduals in the area of agrarian affairs. /ny monopolistic enterprises by the Go ernment in the area of agrarian affairs can only be implemented by way of an act. Ahe Go ernment shall see@ to ad ance social certainty and security, including the field of labor affairs, through enterprises in agrarian affairs. Artic'e 1< (-) In iew of the pro isions contained in paragraphs (:) and (0) of /rticle :, paragraph (:) of /rticle ., and paragraphs (-) and (:) of /rticle -4, the Go ernment shall --within the conte$t of Indonesian socialism-- de ise a general plan concerning the supply, allocation, and use of the earth, water, and airspace as well as the natural resources contained thereinC a. for the State#s purposes" b. for worship and other sacred purposes in line with the principle of %elief in the Only One God" c. for purposes related to the de elopment of public-life centers, socio-cultural centers, and other forms of prosperity" d. for purposes related to the de elopment of agricultural production, animal husbandry, and fishery, and the li@es" and e. for purposes related to the de elopment of industry, transmigration, and mining. On the basis of the general plan referred to in paragraph (-) of this article and in line with the rele ant regulations, Regional Go ernments shall regulate the supply, allocation, and use of the earth, water, and airspace in their respecti e areas by ta@ing into consideration their respecti e local circumstances. Ahe Regional Go ernment regulations referred to in paragraph (:) of this article shall not come into effect until they ha e been legali9ed by the *resident in the case of regulations of le el-- regional go ernments, by the Go ernor in the case of regulations of le el-: regional go ernments, and by the &'pati ((istrict +hief) or Wali%ota (1ayor) in the case of regulations of le el-0 local go ernments.
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Artic'e 15 It is the duty of e ery indi idual, corporate body, or institution which has a legal relationship with land to ta@e care of the land, to impro e its fertility, and to pre ent it from damage by ta@ing into consideration the interests of the economically wea@. C-AP*,R II RIG-*S *+ LAN/> WA*,R> AN/ AIRSPAC, AN/ LAN/ R,GIS*RA*I+N Sectio! I3 Ge!era' Pro isio!s Artic'e 16 (-) Ahe rights on land as meant in paragraph (-) of /rticle ? are as followsC a. ha% $ili% (right of ownership), b. ha% g'na-'saha (right of culti ation), c. ha% g'na-/ang'nan (right of use of structures), d. ha% pa%ai (right of use), e. ha% se0a (right of lease), f. ha% $e$/'%a tanah (right to clear land), g. ha% $e$'ng't-hasil-h'tan (right to collect forest produce), and h. rights other than those mentioned abo e which shall be stipulated by way of an act and rights of pro isional nature which are mentioned in /rticle ,0. Ahe rights to water and airspace as meant in paragraph (0) of /rticle ? are as followsC a. ha% g'na-air (right of use of water)" b. ha% pe$eliharaan dan penang%apan i%an (right to culti ate and catch fish)" and c. ha% g'na-r'ang-ang%asa (right of use of airspace). Artic'e 12 (-) In iew of the pro isions contained in /rticle 2, the ob!ecti e referred to in paragraph 0 of /rticle : shall be achie ed by regulating the ma$imum and5or minimum limits on the area of land which can be held by a family or a corporate body under one of the rights mentioned in /rticle -3. Ahe ma$imum limits referred to in paragraph - of this article shall be stipulated by way of legislation in the near future. 7ands in e$cess of the limits referred to in paragraph (:) of this article shall be ta@en by the Go ernment with compensation pro ided and shall subseDuently be redistributed to the people who need land in accordance with the pro isions of a Go ernment Regulation.
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Ahe achie ement of the minimum limits referred to in paragraph - of this article, which shall be stipulated by way of legislation, shall be implemented in a staged manner. Artic'e 1=
In the interests of the public as well as of the nation and of the state and in the collecti e interests of the people, land rights can be re o@ed by pro iding appropriate compensation and in accordance with the procedure which is to be stipulated by way of an /ct. Sectio! II3 La!% Re"istratio! Artic'e 19 (-) (:) Ao guarantee legal certainty, the Go ernment is to implement land registration throughout the whole territory of the Republic of Indonesia in accordance with pro isions which are to be stipulated by way of a Go ernment Regulation. Ahe registration referred to in paragraph - of this /rticle includes the followingC a. the sur eying, mapping, and recording of land in a boo@" b. registration of rights on land and of transfers of the said rights" and c. granting documentary instruments of e idence of right, which shall ser e as strong instruments of e idence. 7and registration is to be implemented by ta@ing into account the condition of the State and of the society, the needs for socio-economic mo ements, and the possibility of implementing it, according to the 1inister of /grarian /ffairs# considerations. Ahe fees pertaining to the land registration referred to in paragraph (-) shall be regulated by way of a Go ernment Regulation with a pro ision e$empting the financially incapable from the said fees. Sectio! III3 Hak Milik (Ri"ht of +7!ershi4) Artic'e :0 (-) (:) / 1a% $ili% (right of ownership) is the inheritable right, the strongest and fullest right on land which one can hold, sub!ect to the pro ision contained in /rticle 3. / 1a% $ili% can change hands and be transferred to other parties. Artic'e :1 (-) (:) Only Indonesian citi9ens can ha e a ha% $ili%. Ahe Go ernment is to determine which corporate bodies can ha e a ha% $ili% and the conditions thereof.
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/ foreigner who, following the entry into force of this /ct, acDuires a ha% $ili% by way of inheritance without a will or by way of !oint ownership of property resulting from marriage and an Indonesian citi9en holding a ha% $ili% who, following the entry into force of this /ct, loses Indonesian citi9enship is obliged to relinDuish that right within one year following the date the ha% $ili% is acDuired in the case of the former or following the date upon which Indonesian citi9enship is lost in the case of the latter. If following the e$piry of the said timr periods, the right is not relinDuished, then the siad right is nullified for the sa@e of law and the land falls to the State with the pro iso that the rights of other parties which encumber the lands remain in e$istence. /s long as one with Indonesian citi9enship concurrently holds foreign citi9enship, he5she cannot ha e land with the status of a ha% $ili%, and to him5her the pro ision as meant in paragraph 0 of this article shall apply. Artic'e ::
(-) (:)
Ahe creation of a ha% $ili% according to adat law is to be regulated in a Go ernment Regulation. In addition to the method as meant in paragraph (-) of this article, a ha% $ili% can come into e$istence by way of C a. a determination of the Go ernment in accordance with the manner and conditions stipulated in a Go ernment Regulation, and b. the pro isions of an act. Artic'e :;
(-) (:)
/ ha% $ili%, e ery transfer affecting a ha% $ili%, the nullification of a ha% $ili%, and the encumbering of a ha% $ili% with other rights must be registered in accordance with the pro isions referred to in /rticle -.. Ahe registration referred to in paragraph (-) shall ser e as a strong instrument of e idence concerning the nullification of a ha% $ili% and concerning the alidity of the transfers and encumbrances affecting the said right. Artic'e :<
Ahe use of land ha ing the status of a ha% $ili% by a party other than the owner is to be limited and regulated by way of legislation. Artic'e :5 / ha% $ili% can be used as debt collateral by encumbering it with a ha% tangg'ngan (security title).
Artic'e :6 (-) (:) Ahe sale5purchase, e$change, gifting, beDuest by a will, grant under adat and other acts which are intended to transfer a ha% $ili% and the control of such acts are to be regulated by way of a Go ernment Regulation. > ery sale5purchase, e$change, gift, and beDuest by a will and e ery other act which are intended to either directly or indirectly transfer a ha% $ili% to a foreigner or to a person of Indonesian citi9enship who concurrently holds foreign citi9enship or to a corporate body other than those stipulated by the Go ernment in line with paragraph (:) of /rticle :- shall be nullified for the sa@e of law and the land in Duestion shall go to the State with the understanding that any other parties# rights which encumber the land shall remain in e$istence and that all the payments which the owner of the land may ha e recei ed cannot be reclaimed. /rticle :2 a. / ha% $ili% is nullified ifC the land in Duestion falls to the StateC -. because the right in Duestion is re o@ed on the basis of /rticle -<" :. because of a oluntary surrender by the owner" 0. because land has been abandoned" and ?. because of the pro isions of paragraph (0) of /rticle :- and paragraph : of /rticle :3 apply" the land anishes. Sectio! I. 3 Hak Guna-Usaha (Ri"ht to C$'ti ate) Artic'e := (-) (:) / ha% g'na-'saha is a right to wor@ on land directly controlled by the State for a period of time as referred to in /rticle :. which for use by an agricultural, fisheries or animal husbandry company. / ha% g'na-'saha is to be granted on land whose area is at least fi e (,) hectares, with the pro iso that, in the case where the area of the land is :, hectares or more, adeDuate in estment shall be made and good corporate management techniDues shall be adopted as appropriate, in accordance with the de elopments of the times. / ha% g'na-'saha can change hands and be transferred to another party. Artic'e :9 (-) / ha% g'na-'saha can be granted for a term of at most :, years.
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In the case of a company which reDuires more time, it can be granted a ha% g'na-'saha with a term of at most 0, years. 8pon reDuest of the right holder and ha ing regard to the circumstances of the company, the terms of a ha% g'na-'saha as referred to in paragraphs (-) and (:) of this article can be e$tended for at most :, years. Artic'e ;0
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Ahose who may obtain a ha% g'na-'saha areC a. Indonesian citi9ens, and b. bodies corporate incorporated under Indonesian law and domiciled in Indonesia. / person or corporate body which holds a ha% g'na-'saha and no longer fulfulls the conditions referred to in paragraph (-) of this article is obliged to relinDuish the ha% g'na-'saha in Duestion or to transfer it to another party which doeds fulfill the conditions. Ahis pro ision also applies to a party who acDuires a ha% g'na-'saha if he does not the fulfill. If the said ha@ guna usaha is not relinDuished or transferred within the said period of time, it is nullified for the sa@e of law --with the pro iso that any other parties# rights shall be gi en attention in accordance with pro isions that are to be stipulated in a Go ernment Regulation. Artic'e ;1
/ ha% g'na-'saha is created by a determination by the Go ernment. Artic'e ;: (-) (:) / ha% g'na-'saha, including the conditions attaching to its grant, e ery transfer of such a right, and the nullification of such a right shall be registered in accordance with the pro isions as meant in /rticle .. Ahe registration as meant in paragraph (-) shall ser e as a strong instrument of proof concerning the transfer and nullification of a ha% g'na-'saha, e$cept in the case where such a right is nullified because its term has e$pired. Artic'e ;; / ha% g'na-'saha can be used as debt collateral by encumbering it with a ha% tangg'ngan (security title). Artic'e ;< / ha% g'na-'saha is nullified becauseC a. the term has e$pired" b. it is terminated before its term has e$pired because a certain condition is not fulfilled"
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c. d. e. f. g.
it is relinDuished by the holder before its term has e$pired" it has been re o@ed in the interests of the public" the land has been abandoned" the land has anished" and the pro isions referred to in paragraph (:) of /rticle 04 applies. Sectio! .3 Hak Guna-Bangunan (Ri"ht of Use of Str$ct$res) Artic'e ;5
(-) (:) (0)
/ ha% g'na-/ang'nan is a right to construct and possess buildings on land which is not one#s own for a period of at most 04 years. 8pon reDuest of the right holder and in iew of the needs and of the condition of the buildings, the term referred to in paragraph (-) can be e$tended for at most :4 years. / ha% g'na-/ang'nan can change hands and be transferred to another party. Artic'e ;6
(-)
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Ahose eligible for a ha% g'na-/ang'nan are as followsC a. Indonesian citi9ens, and b. bodies corporate incorporated under Indonesian law and domiciled in Indonesia. / person or body corporate which holds a ha% g'na-/ang'nan but no longer fulfills the conditions which are referred to in paragraph (-) of this article is obliged to relinDuish the ha% g'na-/ang'nan in Duestion or to transfer it to another party which is eligible for such a right within one year. Ahis pro ision applies also to parties who obtain a ha@ guna banfunan if he deosn ot fulfill the said conditions. If the ha% g'na-/ang'nan in Duestion is not relinDuished or transferred within the said period of time, it is nullified for the sa@e of law --with the pro iso that the rights of other parties gi en attention, in accordance with-pro isions that are to be stipulated in a Go ernment Regulation. Artic'e ;2
/ ha% g'na-/ang'nan comes into e$istenceC a. in the case of land directly controlled by the State, a determination by the Go ernment" b. in the case of land ha ing the status of a ha% $ili%, by an authentic agreement has been made by the rele atn land owner with the party who will acDuire the ha% g'na-/ang'nan with the purpose of gi ing rise to the intended right.
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Artic'e ;= (-) (:) / ha% g'na-/ang'nan, including the conditions of the granting of the right, e ery transfer concerning such a right, and the nullification of such a right shall be registered in accordance with the pro isions referred to in /rticle -.. Ahe registration referred to in paragraph - ser es as a strong instrument of e idence concerning the nullification of a ha% g'na-/ang'nan and the alidity of the transfer of such a right, e$cept in the case where such a right is nullified because its term has e$pired. Artic'e ;9 / ha% g'na-/ang'nan can become debt collateral by encumbering it with a ha% tangg'ngan (security title). Artic'e <0 / ha% g'na /ang'nan is nullified becauseC a. its term has e$pired" b. it is terminated before the e$piry of its term on the ground that a condition has not been fulfilled" c. it is relinDuished by the right holder before the e$piry of its term" d. it is re o@ed in the public interest" e. it has been abandoned" f. the land has anished" g. the pro isions of /rticle 03 paragraph (:) apply.
Part .I -a9 Pa9ai Artic'e <1 (-) / ha% pa%ai is a right to use, and5or to collect produce from, land directly controlled by the State or land owned by another indi idual ( tanah $ili%)which grants authority and obligations as determined in the rele ant right-granting decree by the official who is authori9ed to grant it or as determined in the agreement with the owner of the land, where the agreement is not a land-lease agreement (per!an!ian seDa-menyewa) or land-e$ploitation agreement, gi en that e erything is possible as long as it does not contradict the spirit and pro isions of this /ct. / ha% pa%ai can be grantedC a) for a definite term or for as long as the land is used for a specific purpose" and (b) for free, for a certain payment, or for any @ind of ser ice.
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Ahe granting of a ha% pa%ai can not be entailed with conditions which contain elements of e$ploitation. Artic'e <:
a. b. c. d.
Ahose eligible for a ha% pa%ai areC Indonesian citi9ens, foreign citi9ens domiciled in Indonesia" corporate bodies incorporated under Indonesian law and domiciled in Indonesia, and foreign corporate bodies ha ing representation in Indonesia. Artic'e <;
(-) (:)
In the case of land directly controlled by the State, a ha% pa%ai can be transferred to another party only with the appro al of the authori9ed official. / ha% pa%ai on tanah $ili% can be transferred to another party only in the case where such a transfer is possible under the rele ant agreement.
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Sectio! .II 3 Hak S !a untuk Bangunan (Ri"ht of Lease for B$i'%i!"s) Artic'e << (-) /n indi idual or a corporate body has a ha% se0a atas tanah (right of lease of land) when the indi idual or corporate body in Duestion is entitled to using land owned by another party for purposes related to structures by paying to the owner of the land a certain sum of money as rent. Ahe payment of the rent can be made (a) either on a once-and-for-all basis or on a certain-inter al basis and (b) either before or after the use of the land in Duestion. /n agreement on land lease as meant in this article shall not be accompanied by conditions which contain elements of human e$ploitation. /rticle ?, a. b. c. d. Ahose eligible for a ha% se0a atas tanah (right of lease on land) are as followsC Indonesian citi9ens, foreign citi9ens residing in Indonesia" corporate bodies established under Indonesian law and domiciled in Indonesia, and foreign corporate bodies ha ing representati es in Indonesia. Sectio! .III 3 Hak M mbuka-"anah (Ri"ht to C'ear La!%) a!% Hak M mungut Hasil Hutan (Ri"ht to Co''ect #orest Pro%$ce) Artic'e <6 (-) (:) / ha% $e$/'%a-tanah and a ha% $e$'ng't hasil h'tan can be acDuired only by Indonesian citi9ens and is to be regulated by way of a Go ernment Regulation. 8sing a ha% $e$'ng't hasil h'tan legally does not of itself amount to a ha% $ili% (right of ownership) on the land in Duestion. Sectio! I? 3 -a9 G$!a(Air (Ri"ht of Use of Water) a!% Hak P m liharaan #an P nangka$an Ikan (Ri"ht to C$'ti ate a!% Catch #ish) Artic'e <2 (-) (:) / ha% g'na-air is a right to obtain water for a certain purpose and5or to flow water abo e another person#s land. / ha% g'na-air and a ha% pe$eliharaan dan penang%apan i%an is to be regulated by way of a Go ernment Regulation.
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-,
Sectio! ? 3 Hak Guna-Ruang-Angkasa (Ri"ht of Use of Airs4ace) Artic'e <= (-) / ha% g'na-r'ang-ang%asa pro ides its holder with the power to use the energy and other elements e$isting in the airspace for the implementation of efforts at maintaining and de eloping the producti ity of soil, water, and natural resources contained therein and for other purposes related to such efforts. / ha% g'na-r'ang-ang%asa is to be regulated by way of a Go ernment Regulation. Sectio! ?I 3 La!% Ri"hts for Sacre% a!% Socia' P$r4oses Artic'e <9 (-) / ha% $ili% (right of ownership) to land held by religious and social bodies shall be recogni9ed and protected for as long as such rights are used for purposes related to religious and social acti ities, and such bodies are to be assured of acDuiring enough land to build structures and to implement their acti ities in the area of religious and social affairs, recogni9ed, and protected. Eor worship and other sacred purposes as referred to in /rticle -?, land directly controlled by the State can be granted with the status of a ha% pa%ai (right of use). Ahe per0a%a(an (edification) of land ha ing the status of a ha% $ili% is to be protected and regulated by way of a Go ernment Regulation. Sectio! ?II 3 +ther Pro isio!s Artic'e 50 (-) (:) SubseDuent pro isions concerning the ha% $ili% (right of ownership) are to be regulated by way of an /ct. SubseDuent pro isions concerning the ha% g'na-'saha (right to culti ate), ha% g'na-/ang'nan (right of use of structures), ha% pa%ai (right of use), and ha% se0a 'nt'% /ang'nan (right of lease of land for structures) are to be regulated by way of legislation. Artic'e 51 Ahe ha% tangg'ngan (security title) --which can encumber a ha% $ili%2 ha% g'na'saha, and ha% g'na /ang'nan as meant in /rticles :,, 00, and 0.-- shall be regulated by way of an /ct.
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-3
C-AP*,R III 3 CRI0INAL PR+.ISI+NS Artic'e 5: (-) (:) Bhoe er purposefully iolates the pro isions of /rticle -, shall be criminally punished with incarceration of at most three (0) months and5or with a fine of at most Rp -4,444. Ahe Go ernment Regulations and legislation as meant in /rticles -., ::, :?, :3(-), ?3, ?2, ?<, ?.(0), and ,4(:) can stipulate threats against iolations of their pro isions with incarceration of at most three (0) months and5or a fine of at most Rp -4,444. Ahe criminal deeds as meant in paragraphs (-) and (:) of this article are offenses. C-AP*,R I. 3 *RANSI*I+NAL PR+.ISI+NS Artic'e 5; (-) Ahe pro isional rights referred to in /rticle -3(-)(h) are a ha% gadai (right of security), ha% 'saha-/agi-hasil (right of production-sharing endea our), ha% $en'$pang (right of transient occupancy), and ha% se0a tanah pertanian (right of lease of agricultural land), and they shall be regulated in order to put restrictions on their characteristics which contradict this /ct while efforts shall be made to nullify the e$istence of such rights within a short time. Ahe pro isions contained in /rticle ,:(:) and (0) shall apply to the regulations as meant in paragraph (-) of this article. Artic'e 5< In connection with the pro isions contained in /rticles :- and :3 of this /ct, an indi idual of Indonesian citi9enship and, concurrently, of +hinese citi9enship who has made a declaration of relinDuishing his5her +hinese citi9enship and whose declaration of relinDuishing his5her +hinese citi9en ship has been legalised under the applicable legislation shall be regarded as ha ing only Indonesian citi9enship as referred to in /rticle :-(-). Artic'e 55 (-) Ahe foreign rights which, under the pro isions of /rticles I, II, II, IF, and F concerning con ersion, are con erted into a ha% g'na-'saha (right to culti ate) and ha% g'na-/ang'nan (right of use of structures) shall be temporarily alid for the remaining terms of the rights in Duestion, which shall not e$ceed :4 years. Ahe possibility for the granting of a ha% g'na-'saha and ha% g'na-/ang'nan to corporate bodies whose capital is partly or wholly foreign is open only in the case where it is deemed necessary to grant such rights to such corporate bodies in the light of an act which regulates pe$/ang'nan nasional se$esta /erencana (wellplanned total, national de elopment).
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-2
Artic'e 56 Eor as long as an /ct re ha% $ili% (right of ownership) referred to in /rticle ,4(-) has not been established, local adat-law pro isions and other regulations concerning land rights which pro ide powers as meant in, or similar to those referred to in, /rticle :4 apply, pro ided that such local adat-law pro isions and other regulations do not contradict the spirit and pro isions of this /ct. Artic'e 52 Eor as long as an /ct re ha% tangg'ngan (security title) referred to in /rticle ,- has not been established, the pro isions concerning hypothee% (mortgage) referred to in the Indonesian +i il +ode and those concerning 3redietver/and (credit security) as meant in S.-.4<-,?: (State Ga9ette 'o. -.4<-,?:), which has been replaced with S.-.02--.4 (State Ga9ette 'o. -.02--.4), apply. Artic'e 5= Eor as long as the regulations concerning the implementation of this /ct ha e not been established, the regulations --both written and unwritten-- concerning earth, water, and natural resources therein and concerning land rights which already e$ist at the time this /ct comes into effect remain effecti e, pro ided that such regulations do not contradict the spirit and pro isions of this /ct and are gi en new interpretations in line with the spirit and pro isions of this /ct.
S,C+N/ PR+.ISI+NS C+NC,RNING C+N.,RSI+N Artic'e I (-) / ha% eigendo$ (right of ownership under (utch 7aw) to land which already e$ists at the time this /ct comes into effect becomes a ha% $ili% (right of ownership under this /ct) at the time this /ct comes into effect, e$cept in the case where the holder does not meet the criteria referred to in /rticle :-. / ha% eigendo$ held by a foreign go ernment which is used for purposes related to the residence of the head of the representati e delegation and to the embassy building, at the time this /ct comes into effect, become a ha% pa%ai (right of use) as referred to in /rticle ?-(-), which will remain alid for as long as the land is used for the said purposes. / ha% eigendo$ held by a foreign citi9en, by an Indonesian citi9en who concurrently holds foreign citi9enship, or by a corporate body which is not designated by the Go ernment as meant in /rticle :-(:) shall, at the time this /ct comes into effect, become a ha% g'na-/ang'nan (right of use of structures) as meant in /rticle 0,(-) with a term of :4 years.
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(3)
In the case where the ha% eigendo$ as meant in paragraph (-) of this article is encumbered with a ha% opstal (right of use of structures under (utch 7aw) or ha% er(pacht (right of long-term lease under (utch 7aw), the ha% opstal or ha% er(pacht in Duestion, at the time this /ct comes into effect, becomes a ha% g'na/ang'nan (right of use of structures) as meant in /rticle 0,(-) of this /ct, which shall encumber the ha% $ili% in Duestion for the remaining term of the ha% opstal or ha% er(pacht, which shall not e$ceed :4 years. In the case where the ha% eigendo$ as meant in paragraph (0) of this article is encumbered with a ha% opstal or ha% er(pacht, the relationship between the holder of the ha% eigendo$ and that of the ha% opstal or ha% er(tpacht is to be settled on the basis of guidelines which are to be stipulated by the 1inister of /grarian /ffairs. Such rights as hypothee%, servit''t, vr'chtge/r'i%, and others which are encumbering a ha% eigendo$ shall continue encumbering a ha% $ili% or ha% g'na-/ang'nan as meant in paragraphs (-) and (0) of this article while such rights shall become rights which are stipulated in this /ct. Artic'e II
(-)
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7and rights pro iding their holders with powers as meant in, or similar to those as meant in, /rticle :4(-) --i.e. such land rights as ha% agrarisch eigendo$, $ili%, yayasan, andar/eni, ha% atas dr'0e2 ha% atas dr'0e desa, pesini, grant S'ltan, landeri.en/e4itrecht, alti.dd'rende er(pacht, ha%-'saha atas /e%as tanah parti%elir, and other land rights by any names which are to be subseDuently confirmed by the 1inister of /grarian /ffairs-- which already e$ist at the time this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% $ili% as meant in /rticle :4(-), e$cept in the case where the holder does not meet the criteria as meant in /rticle :-. In the case where the land rights as meant in paragraph (-) are held by foreign citi9ens or by Indonesian citi9ens concurrently holding foreign citi9enship or by corporate bodies which are not designated by the Go ernment as meant in /rticle :-(:) shall become a ha% g'na-'saha (right to culti ate) or ha% g'na/ang'nan (right of use of structures), depending on what the land in Duestion has been allotted for, as shall be subseDuently confirmed by the 1inister of /grarian /ffairs. Artic'e III
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/ ha% er(pacht for a large-scale plantation company which already e$ists at the time this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% g'na-'saha as meant in /rticle :<(-) for the remaining term of the ha% er(pacht in Duestion, which shall not e$ceed :4 years. / ha@ erfpacht for a small-scale agricultural underta@ing which already e$ists at the time this /ct comes into effect shall, at the time this /ct comes into effect, be nullified and be subseDuently settled in accordance with the pro isions which are to be stipulated by the 1inister of /grarian /ffairs.
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Artic'e I. (-) Ahe holder of a concessie (concession) and that of a se0a (lease) for a largescale plantation underta@ing shall, within one year following the coming into effect of this /ct, forward a reDuest to the 1inister of /grarian /ffairs that the right in Duestion be changed into a ha% g'na-'saha (right to culti ate). In the case where the holder of a concessie or of a se0a fails to forward such a reDuest within the said period of time, the concessie or se0a in Duestion shall stay being alid for the remaining part of its term, which shall not e$ceed fi e years, upon the end of which the right in Duestion shall automatically become e$tinct. In the case where the holder of a concessie or of a sewa forwards a reDuest as meant in paragraph (-) of this article but is not willing to accept the conditions stipulated by the 1inister of /grarian /ffairs or the reDuest is re!ected by the 1inister of /grarian /ffairs, the concessie or sewa in Duestion shall stay being alid for the remaining part of its term, which shall not e$ceed fi e years, upon the end of which the right in Duestion shall automatically become e$tinct. Artic'e . / ha% opstal or ha% er(pacht for a housing comple$ which already e$ists at the time this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% g'na-/ang'nan (right of use of structures) as meant in /rticle 0,(-) for the remaining term of the ha% opstal or ha% er(pacht in Duestion, which shall not e$ceed :4 years. Artic'e .I 7and rights pro iding their holders with powers as meant in, or similar to those as meant in, /rticle -?(-) --i.e. such land rights as vr'ghge/r'i%2 ge/r'i%2 grant controlle'r2 /r'i%leen2 gangga$ /a'nt'i%2 anggad'h2 /eng%o%2 l'ngg'h2 pit'0as2 and other land rights by whate er names which are to be subseDuently confirmed by the 1inister of /grarian /ffairs-- which already e$ist at the time this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% pa%ai (right of use) as meant in /rticle ?-(-), which pro ides the holders with the same powers and obligations which they already ha e at the time this /ct comes into effect, pro ided that such powers and obligations do not contradict the philosophy and pro isions of this /ct. Artic'e .II (-) Such land rights as gogolan, pe%'len, and sanggan which are permanent and which already e$ist when this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% $ili% (right of ownership) as meant in /rticle :4(-).
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Such land rights as gogolan, pe%'len, and sanggan which are pro isional and which already e$ist when this /ct comes into effect shall, at the time this /ct comes into effect, become a ha% pa%ai (right of use) as meant in /rticle ?-(-), which shall pro ide the holders with the same powers and obligations which they already ha e when this /ct comes into effect. In the case of doubts as to whether a certain gogolan, pe%'len, or sanggan is permanent or pro isional, the 1inister of /grarian /ffairs shall ma@e a decision. Artic'e .III
(-) (:)
In the case of a ha% g'na-/ang'nan (right of use of structures) as meant in /rticle I(0) and (?), /rticle II(:), and /rticle F, the pro isions as meant in /rticle 03(:) shall apply. In the case of a ha% g'na-'saha (right to culti ate) as meant in /rticle II(:), /rticle III(-) and (:), and /rticle IF(-), the pro isions as meant in /rticle 04(:) shall apply. Artic'e I?
1atters which are necessary for the implementation of the pro isions contained in the articles abo e shall be regulated further by the 1inister of /grarian /ffairs. *-IR/ +hanges in the structure of illage administration which are to be made for the implementation of agrarian law reforms shall be regulated separately. #+UR*/. Ahe rights and powers of S0apra.as (autonomous regions) or of former S0apra.as which still e$ist when this /ct comes into effect shall be nullified and transfer to the State. %. 1atters related to the pro ision as meant point / abo e shall be regulated further by way of a Go ernment Regulation.
:-
#I#*Ahis /ct can be referred to as 5ndang-5ndang 6o%o% Agraria (%asic /grarian 7aw) and shall ta@e effect as from the date it is enacted. Ao ma@e it @nown to e erybody, this /ct shall be enacted by placing it in the State Ga9ette of the Republic of Indonesia. Ratified in )a@arta on :? September -.34 *R>SI(>'A OE A&> R>*8%7I+ OE I'(O'>SI/ (signature) (S5)A+N-)
>nacted on :? September -.34 SA/A> S>+R>A/RG (signature) (7A*,I8)
S"A"% GA&%""% NO' ()*+-(-+, "h original translation o- th Basi. Agrarian /a! u$on !hi.h this translation is bas # !as originally #on un# r th aus$i. s o- th In#on sian /an# A#ministration Pro0 .t in ())1 an# th .o$yright b longs to /an# A#ministration Syst ms Australia Pty /imit #' "his translation !as #it # an# .orr .t # by 2arr n 2right3 Pro$ rty Rights A#4is r3 %ast "imor D $artm nt o- In-rastru.tur 3 /an# an# Pro$ rty Unit3 Dili3 %ast "imor in May 5++(' No r lian. !hatso 4 r shoul# b $la. # on this #it # translation' "h original In#on sian t 6t o- th /a! as $ublish # in th In#on sian Stat Ga7 tt must b r - rr # to -or all $ur$os s'
,LUCI/A*I+N +# AC* N+. 5 +# 1960 R, BASIC PR+.ISI+NS C+NC,RNING
Translation File Name : Land-594 ::
*-, #UN/A0,N*ALS +# AGRARIAN A##AIRS (BASIC AGRARIAN LAW +R UUPA) A. G,N,RAL ,LUCI/A*I+N I. +6@ecti es of UUPA
In the Republic of Indonesia, where the structure of the people#s social and economic life is mainly agrarian, soil, water, and space are seen as gifts from the Only One God and ha e ery important functions in the de elopment of a @$st a!% 4ros4ero$s societ5 in line with our dream. 1eanwhile, the currently applicable agrarian law, which should ha e ser ed as o!e i&4orta!t i!str$&e!t to de elop such a !ust and prosperous society, has in many cases 4ro i%e% a! o6stac'e to the achie ement of the said dream. Ahis has been caused primarily by the followingC a. that the currently applicable agrarian law was established partly on th basis o- th $ur$os s an# -un#am ntals o- th .olonial go4 rnm nt and partly under the influences of the said go ernment and, as a result, it runs counter to the interests of the people and the State in implementing all-encompassing de elopment in the conte$t of finali9ing the current national re olution" b. that due to the colonial go ernment#s 4o'itics of 'a7, the said agrarian law has a dualistic nature, pro iding for the application of regulations based on adat law in addition to those deri ed from and based on western law and, by so doing, the said agrarian law has gi en rise to arious inter-societal group issues which are not only difficult to handle but also contradictory to the ideali9ed 'ational unity" and c. that for the indigenous people, the colonial go ernment#s agrarian law does not g'arantee legal certainty. In iew of the abo e, it is necessary to ha e a new agrarian law which is national, which supplants the currently applicable agrarian law, which does not ha e a dualistic nature, which is simple, and which g'arantees legal certainty for all Indonesian people. Ahe new agrarian law must enable soil, water, and space to ser e their functions as mentioned abo e, must be consistent with the interests of the people and of the State, and must fulfill the needs of different eras in all aspects of agrarian affairs. Eurthermore, the national agrarian law must materiali9e the State#s spiritual principles and the 'ation#s dreams, namely the Only One God, &umanitarianism, 'ationalism, (emocracy, and Social )ustice and, in particular, must implement the pro isions of /rticle 00 of the -.?, +onstitution as well as those of the State *olicy Guidelines as stated in the -2 /ugust -.,. *olitical 1anifesto of the Republic of Indonesia and re-asserted in the -2 /ugust -.34 *residential /ddress. In iew of all that has been described abo e, the principles and underlying pro isions of the new law need to be de eloped in the form of an 'ndang-'ndang (an act), which shall ser e as a basis for the de elopment of other regulations. Ahe act is formally not different from other acts in the sense that it is to be made by the Go ernment upon appro al of the #e0an 6er0a%ilan +a%yat (&ouse of *eople#s Representati es). &owe er, due to its nature as a basis for the new agrarian law, the act should contain only the 6asic 4ri!ci4'es a!% iss$es in a broad outline and, therefore, it should be referred to as 5ndang-5ndang 6o%o% Agraria (%asic /grarian 7aw). Ahe implementation of the %asic /grarian 7aw will be regulated by way of acts, go ernment regulations, and other forms of legislation. Ahus, the o6@ecti es of 88*/ are basically as followsC a. to pro ide bases for the formulation of !atio!a' agrarian law, which shall ser e as a means of bringing prosperity, happiness, and !ustice to the State and the people, especially farmers, in the conte$t of establishing a !ust and prosperous society" b. to pro ide bases for the establishment of $!it5 and si&4'icit5 in land law" and
:0
c. II. (-)
to pro ide bases for the pro ision of 'e"a' certai!t5 concerning land rights for all the people. Bases for Natio!a' A"raria! La7 Ahe first basis, i.e. nationality, is pro ided in /rticle -(-), which says that Hthe entire territory of Indonesia is the totality of the land and water of all the Indonesian people, who stay united as the Indonesian nation,I and in /rticle -(:), which says that Hall the soil, water, and airspace, including the natural resources contained therein, which e$ist within the territory of the Republic of Indonesia as gifts from the Only One God, are the Indonesian nation#s soil, water, and airspace and pro ide national wealth.I Ahis means that the soil, water, and airspace within the territory of the Republic of Indonesia, whose independence resulted from a struggle by the people as a whole, are the property of the Indonesian nation and not simply that of their owners. Similarly, lands in regions and islands are not simply the property of the nati es of the area or island in Duestion. In that sense, the relationship of the Indonesian nation to Indonesia#s soil, water, and airspace is a @ind of 'layat relationship enhanced to the uppermost le el, namely the le el which encompasses all the territory of the State. Ahe relationship of the nation to Indonesia#s soil, water, and airspace is by nature eternal ;/rticle -(0)=. Ahis means that for as long as the Indonesian people who are united as the Indonesian nation still e$ists and for as long as Indonesia#s soil, water, and airspace still e$ist, not a single power will be able to, under any circumstances, brea@ up or nullify that relationship. Ahus, although Irian %arat (Best Irian) --which constitutes part of Indonesia#s soil, water, and airspace-- is currently under the power of the coloni9er, this part --under the pro isions of this article-- also constitutes Indonesia#s soil, water, and airspace for the sa@e of law. Ahe relationship of the nation to the soil, water, and airspace as described abo e does not mean that indi idual ownership rights to (parts) of the soil are no longer possible. /s has been mentioned abo e, the relationship is some @ind of ha% 'layat (ulayat right) relationship and, as such, it is not a h'/'ngan $ili% (ownership relationship). In the conte$t of ha% 'layat, individ'al ownership rights are recogni9ed. 7here(ore2 it can /e asserted that the ne0 agrarian la0 recogni4es the e9istence o( o0nership rights which can be held by indi iduals either on their own or in togetherness with other indi iduals to parts of the Indonesian soil (/rticle ? in con!unction to /rticle :4). 1eanwhile, it is only the surface of the soil, which is referred to as tanah (land), which can be sub!ect to indi idual rights. In addition to the right of ownership, which is the hereditary, strongest, and fullest right that one can ha e to land, there ha e also been created such rights as ha% g'na-'saha (right to culti ate), ha% g'na-/ang'nan (right of use of structures), ha% pa%ai (right of use), ha% se0a (right of lease), and other rights which will be stipulated by way of other acts (/rticle ? in con!unction to /rticle -3). &ow these rights relate to the ha% /angsa (the nation#s right) ;and ha% negara or the state#s right= will be e$plained in J: below. Ahe principle of Hdo$einI (i.e. the principle of the state being the owner of land), which was used by the colonial go ernment as a basis for agrarian legislation, is not recogni9ed in the new agrarian law. Ahe principle of do$ein is contradictory to the Indonesian people#s legal consciousness and to the principle of the State being independent and modern. In iew of the abo e, the principle of do$ein --which was confirmed in arious statements of do$ein, e.g. /rticle - of Agrarische &esl'it (S. -<24---<), S. -<2,---.a, S. -<2?-.?f, and S. -<22,,, and S. -<<<-,<-- has been discarded and the arious statements of domein ha e been re o@ed. 88*/ (the %asic /grarian 7aw) is based on the position that in order to achie e what is stipulated in /rticle 00 (0) of the -.?, +onstitution, it is not necessary and not appropriate for the Indonesian nation and State to act as land owner. It is more appropriate for the State, in its capacity as the people#s organi9ation of power, to act as &adan 6eng'asa (/uthority %ody). It is from this perspecti e that the meaning of the
:?
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pro ision of /rticle :(-), which says that Hthe soil, water, and airspace, including the natural resources contained therein, are at the highest le el controlled by the StateI should be seen. In consistence with the underlying position as described abo e, the term HcontrolledI in this article does not mean HownedI but, rather, it means that the State, in its capacity as the Indonesian people#s organi9ation of power, has been gi en the authority to do the following at the uppermost le elC a. to reg'late and ad$inister the allot$ent2 'se2 appropriation2 and $aintenance o( the soil2 0ater2 and airspace: /. to deter$ine and reg'late 0hat rights can /e held to (parts) o( the soil2 0ater2 and airspace: and c. to deter$ine and reg'late the legal relationships /et0een people and legal acts concerning soil2 0ater2 and airspace. /ll this is intended to bring the largest possible prosperity to the people in the conte$t of establishing a !ust and prosperous society ;/rticle :(:) and (0)=. Ahe State#s power as meant abo e concerns all the soil, water, and airspace, including parts of them which are already possessed by indi iduals under certain rights. Ahe state#s power o er land which is already possessed by an indi idual under a certain right is defined by the contents of the right in Duestion, and this means that the State#s power o er the land in Duestion ends at the point to which it gi es the indi idual in Duestion authority to e$ecute his right. Ahe contents and limitations of the rights are stated in /rticle ? and the following rights as well as in the articles of +hapter II. Ahe State#s power o er land which is not possessed under a certain right by an indi idual or another party is broader and full. Bith reference to the ob!ecti es mentioned abo e, the State can grant such land to an indi idual or corporate body under a certain right, e.g. ha% $ili% (right of ownership), ha% g'na-'saha (right to culti ate), ha% g'na/ang'nan (right of use of structures), or ha% pa%ai (right of use) according to the allotment or the need or grant it to a certain *ower %ody ;e.g. a (epartment, ;a0atan (Ser ice), or #aerah S0atantra (/utonomous Region)= under a right of management for use by the latter to facilitate the implementation of its duties ;/rticle :(?)=. 1eanwhile, the State#s power o er such land is also defined, more or less, by the ha% 'layat of $asyara%at-$asyara%at h'%'$ (law communities) as long as the ha@ ulayat in Duestion, in reality, still e$ists. Ahis will be elaborated on in point J0 below. (0) In connection with the relationship of the nation to the soil and water and with the State#s power as meant in /rticles - and :, certain pro isions ha e been made a ailable in /rticle 0 and they are intended to place the said right (i.e. ha% 'layat) in its proper position in the current atmosphere of the nation-state. /rticle 0 stipulates that Hthe i$ple$entation of the ulayat rights and other similar rights of law communities --as long as such communities in reality still e$ist-- shall be such that it is consistent with national interests and the State<s interests on the /asis o( national 'nity and shall not contradict the laws and regulations of higher le els.I Ahis pro ision first of all rests on the new agrarian law#s recognition of the e$istence of ha@ ulayat. /s may ha e been @nown, e en if the ulayat right --in reality-- still e$ists, is still effecti e, and is ta@en into account in the ma@ing of court decisions, the said right has ne er been officially recogni9ed in law. Ahe lac@ of such recognition has resulted in the fact that during the period of coloni9ation, the implementation of agrarian regulations freDuently neglected the e$istence of ha@ ulayat. Ahe fact that ha% 'layat is mentioned in 88*/ (the %asic /grarian 7aw) basically means that the said right is recogni9ed. Aherefore, in principle, ha@ ulayat will be ta@en into consideration as long as the said right in reality still e$ists in the law community in Duestion. Eor e$ample, in the granting of a land right (e.g. ha% g'na-'saha or a right to culti ate), the rele ant law community will first be heard and gi en some H recognitieI (recognition) to which they are entitled in their capacity as holder of the ha% 'layat in Duestion.
:,
(?)
On the other hand, howe er, it would not be !ustifiable for the rele ant law community to bloc@ the granting of the ha% g'na-'saha in Duestion on the prete$t of their ha% 'layat in the case where the granting of the ha% g'na-'saha is indeed reDuired in support of broader interests. Similarly, it would not be !ustifiable for a law community, on the prete$t of their ha% 'layat, to --for e$ample-- re!ect a plan on clearing forests in a big way and on an on-going basis which is reDuired to support the implementation of largescale pro!ects on the production of food and the relocation of people. >$perience shows that in many cases, the de elopment of regions is impeded by problems related to ha% 'layat. Ahis is what constitutes the second rational behind the pro isions of /rticle 0 as mentioned abo e. Ahe interests of a law community should be subordinated to the broader interests of the nation and of the State, and the implementation of the ha% 'layat should also be consistent with the broader interests. It would not be !ustifiable for a law community, in the current atmosphere of the nation-state, to stic@ with the contents and implementation of their ha% 'layat on an absolute basis as if the law community in Duestion were disengaged from other law communities and other regions in the conte$t of the State as a unity. Such a attitude would clearly contradict the underlying principle mentioned in /rticle : and would, in practice, ha e ad erse impact on the implementation of great efforts at achie ing prosperity for all the *eople. &owe er, as is clear from the description abo e, this does not meant that the interests of the law community in Duestion will be totally disregarded. Ahe fourth basis is pro ided in /rticle 3, which says that Hall land rights ha e social functions.I Ahis means that whate er land right one has, it is not !ustifiable for the indi idual in Duestion to use (or not to use) his land e$clusi ely for his own interests, much less so if this disad antages the people. 7and use should be ad!usted to the condition of the land in Duestion and to the nature of the land right in Duestion so that it can impro e the welfare and happiness of the owner as well as benefit the people and the State. &owe er, the said pro ision does not mean that the interests of an indi idual should be pushed completely aside by those of the public (the people). 88*/ also has regards of indi iduals# interests. *ublic interests and indi idual interests should balance each other so that, in the end, the primary ob!ecti es can be achie edC prosperity, !ustice, and happiness for all the people ;/rticle :(0)=. (ue to its social functions, it is only appropriate that land should be well ta@en care of so as to impro e its fertility and to pre ent it from damage. Ahe obligation to ta@e care of land is imposed not only on the owner or the right holder but also on e eryone, e ery corporate body, or e ery institution which has a legal relationship with the land in Duestion (/rticle -,). In the implementation of this pro ision, the interests of economically wea@ people will be ta@en into consideration. In line with the principle of nationality as meant in /rticle -, /rticle . in con!unction to /rticle :-(-) pro ides that only Indonesian citi9ens can ha e a ha% $ili% (right of ownership) to land. >$patriates are prohibited from ha ing a ha% $ili% ;/rticle :3(:)=. >$patriates can only ha e a ha% pa%ai (right of use) to land of limited dimensions. Similarly, corporate bodies basically cannot ha e a right of ownership ;/rticle :-(:)= on the consideration that that corporate bodies do not need to ha e a right of ownership but another right will do for them as long as it is eDuipped with an adeDuate guarantee for the fulfillment of their specific reDuirements (e.g. ha% g'na-'saha, ha% g'na-/ang'nan, or ha% pa%ai according to /rticles :<, 0,, and ?-). Ahus, any efforts at a oiding the ma$imum limits on land ownership can be pre ented (/rticle -2). /lthough corporate bodies basically cannot ha e a ha% $ili% to land, a certain Hescape clauseI has been made a ailable which ma@es it possible for certain corporate bodies to ha e a ha% $ili% in iew of the e$istence of public needs that are closely related to religious beliefs, social notions, and economic relations. Ahis Hescape clauseI is adeDuate in that it enables the Go ernment, in the e ent in which a certain corporate body reDuires a ha% $ili% to land, to pro ide it with some dispensation by designating the
:3
(,)
(3)
(2)
corporate body in Duestion as one eligible for a ha@ mili@ to land ;/rticle :-(:)=. +orporate bodies dealing in social and religious affairs are designated as ones that can ha e a ha% $ili% to land (/rticle ?.), but they can ha e it only for as long as the land is used to support their acti ity in social and religious affairs. In matters that are not directly related to social and religious affairs, they are to be considered ordinary corporate bodies. Still in connection with the principle of nationality as meant abo e, it is pro ided in /rticle .(:) that Hevery Indonesian citi4en2 /e it $ale or (e$ale2 shall have e='al opport'nities to ac='ire a land right and to o/tain /ene(its and yields thereo(2 either (or hi$sel(>hersel( or (or his>her (a$ily.I 1eanwhile, it is necessary to pro ide protection for economically wea@ groups against economically strong citi9ens. In iew of this, /rticle :3(-) stipulates that H the sale>p'rchase2 e9change2 granting2 conveyance 0ith a 0ill2 conveyance 'nder adat (c'sto$s)2 and other acts 0hich are intended to trans(er a ha% $ili% and ho0 to oversee s'ch acts shall /e reg'lated /y 0ay o( a ?overn$ent +eg'lation .I It is this pro ision that will ser e as an instrument to protect economically wea@ groups as meant abo e. In this connection, it may also be necessary to note the pro isions of /rticle --(-), which are aimed at pre enting the occurrence of e$cessi e control of other people#s li ing and !obs in agrarian-related business lines because such control contradicts the principle of humanity-based social !ustice. /ll !oint enterprises in the area of agrarian affairs should be based on common interests which are consistent with national interests ;/rticle -:(-)=, and the Go ernment is reDuired to pre ent the e$istence of any enterprises of pri ate-monopolistic nature by organi9ations or indi iduals in the area of agrarian affairs ;/rticle -0(:)=. &owe er, it is not only monopolistic enterprises by the *ri ate sector but also monopolistic enterprises by the Go ernment which are to be pre ented so that the people will not be disad antaged. Aherefore, any monopolistic enterprises by the Go ernment in the area of agrarian affairs can be organi9ed only by way of an act ;/rticle -0(0)=. In /rticle -4(-) and (:), a principle is formulated which currently ser es as a basis for changes that are ta@ing place in the structure of land affairs nearly throughout the world, especially in countries which ha e been administering what is called Hland reformI or Hagrarian reform,I and the principle is that Hagricultural land shall be tilled or wor@ed upon by the owner himself.I Ao ensure the achie ement of this principle, certain pro isions ha e to be made a ailable. One is a pro ision concerning the minimum limits on land ownership by a farmer in order that he can earn enough income to enable him and his family to lead a decent life (/rticle -0 in con!unction to /rticle -2). /nother one is a pro ision concerning the ma$imum limits on land that can be possessed under a ha% $ili% (/rticle -2) in order that the accumulation of land in the hand of strong groups. In this connection, /rticle 2 states a ery important principleC that e$cessi e land ownership and possession shall be forbidden because that harms public interests. Einally, the principle stated in /rticle -4(-) and (:) should be accompanied with a pro ision concerning the pro ision of credit, seeds, and other forms of assistance under soft conditions so that the land owner will not find himself compelled to transfer the possession of his land to another party and to wor@ in another wal@ of life. 1eanwhile, in iew of the current structure of our agricultural community, it is necessary --at least for the time being-- to @eep opportunities open for the use of agricultural land by parties other than the owners by way of se0a (lease), /agi-hasil (output sharing), gadai (pledge5pawn5security), and others. &owe er, all this should be administered in line with other legal pro isions and regulations so as to pre ent oppression5e$ploitation of the wea@ by the strong (/rticles :?, ?-, and ,0). Ahus, the use of land by way of lease, output sharing, gadai, and the li@es should not be left to agreements made by interested parties on the basis of the principle of Hfree fight,I but the authorities shall ma@e pro isions concerning the procedures and conditions so as to fulfill the principle of !ustice and to pre ent H e9ploitation de l<ho$$e par l<ho$$e.I /s an
:2
illustration, the pro isions in /ct 'o. : of -.34 re HOutput Sharing /greementsI (State Ga9ette 'o. : of -.34) can be referred to in this regard. Ahe pro isions of /rticle -4(-) constitute a principle of which the implementation reDuires further regulations (paragraph :). In our current social structure, regulations concerning the implementation of the principle should gi e room for dispensations. /s an illustration, a ci il ser ant who has one hectare or so of land to pro ide for him when he is already old and, due to his current !ob, cannot wor@ on the land on his own should be allowed to @eep ha ing the land. In the meantime, he should be allowed to hand o er the land to another person for the latter to wor@ upon on the basis of a lease, output sharing, or another agreement but, when he is no longer in the ci il ser ice as a result of, for e$ample, retirement, he should acti ely wor@ upon the land on his own (paragraph 0). (<) Einally, to achie e the nation#s and State#s dreams in agrarian affairs as mentioned abo e, it is necessary to ma@e plans on the allotment, use, and supply of the soil, water, and airspace in support of the arious li ing interests of the people and the State. / 'ational *lan should first be made, which co ers all the territory of Indonesia, and --subseDuently-- it should be translated into regional plans, one for each of the regions (/rticle -?). Bith such planning, land use can proceed in guided and orderly manners so that it can produce utmost benefits for the State and the people. Bases for $!it5 a!% si&4'icit5 of 'a7
III.
Ahe bases for the achie ement of these ob!ecti es are ob ious from the pro isions contained in +hapter II. (-) /s has been e$plained abo e, our current agrarian law is dualistic in nature as it distinguishes between land rights based on adat law and those based on western law. Such a distinction rests on the pro isions of %oo@ II of the Indonesian +i il +ode. 88*/ (%asic /grarian 7aw) see@s to do away with such a distinction and, wittingly, to create legal unity in line with the wish of the people, who li e as one nation, and with economic interests. Ine itably, the new agrarian law should be consistent with the legal awareness of the common people. Since most Indonesian people adhere to adat (customary) law, the new agrarian law will also be based on the pro isions of adat law, which is the indigenous law, with the latter being impro ed and ad!usted to the interests of the people of a modern State which connects with the international community as well as to Indonesian socialism. /s may ha e been understood, adat law --in its growth-- could not ha e been spared from the influences of the capitalistic politics of the coloni9er and from those of the feudalistic s0apra.a (self-go erning) communities. In the implementation of the unified law, 88*/ does not @eep a closed eye on the fact that there are differences in circumstances and in legal needs among different societal groups. In iew of this, /rticle --(:) stipulates that Hdifferences in circumstances within the society and in legal needs amongst societal groups shall --0here necessary- be ta@en into account, pro ided that this does not r'n co'nter to national interests . Bhat is meant by differences amongst different societal groups is such differences as, for e$ample, those in legal needs between urban people and rural people and between economically strong people and economically wea@ people. &ence, /rticle --(:) subseDuently pro ides that the interests of the economically wea@er groups shall be guaranteed. Bith the differences between adat law and western law ha ing been discarded in the new agrarian law, the purpose of achie ing simplicity of law will basically be achie ed. /s has been e$plained earlier, in addition to ha% $ili% as the hereditary, strongest, and fullest right which one can ha e to land, the new agrarian law basically recogni9es the e$istence of adat-based land rights as enumerated in /rticle -3(-)(d) through (g). %esides, in order to fulfill the needs which are beginning to become ob ious in our
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(0)
society, the new agrarian law has created two new land rights, and they are ha% g'na'saha (right to culti ate, i.e. a right intended for companies dealing in agriculture, fishery, and animal husbandry) and ha% g'na-/ang'nan (right of use of structures, i.e. a right enabling one to build5ha e a building on someone else#s land) ;/rticle -3(-)(b) and (e)=. /s for the rights which are already in e$istence at the time the new agrarian law (88*/) comes into effect, all of them will be con erted to any of the new rights stipulated in this law. I.. Basis for esta6'ishi!" 'e"a' certai!t5
Ahat this law see@s to pro ide legal certainty concerning land rights is e ident from the pro isions in it which regulates land registration. /rticles :0, 0:, 0< are meant for landright holders and intended to enable them to obtain legal certainty concerning their rights . On the other hand, /rticle -. is meant to be an instruction for the ?overn$ent that land registration in the nature of H rechts-%adasterI (legal cadastre) be administered throughout Indonesia in order to pro ide g'aranteed legal certainty. Ahe registration will be implemented by ta@ing into account the interests and condition of the State and the people, the needs for socio-economic mo ements, and the possibilities open in terms of personnel and eDuipment. In iew of this, the cadastre will be implemented first in cities and subseDuently, on a gradual basis, throughout Indonesia. In line with its purpose, namely to pro ide legal certainty, the registration is compulsory for e ery land-right holder. Otherwise, the implementation of land registration --which ob iously reDuires manpower, eguipment, and money in high Duantities-- would be meaningless at all. B. ,LUCI/A*I+N +# AR*ICL, BA AR*ICL, Artic'e 1 >lucidation has been gi en in General >lucidation ;II (point -)=. 88*/ ma@es a distinction in meaning between H/'$iI (soil, earth) and HtanahI (land) as found in /rticle -(0) and /rticle ?(-). Bhat is meant by tanah (land) is the surface of the soil. Ahe concept of HsoilI and HwaterI has been broadened to include the airspace in iew of the current technical ad ancements and of the future possibilities. Artic'e : >lucidation has been gi en in General >lucidation ;II (point :)= Ahe pro ision of paragraph (?) concerns the principles of autonomy and $ede/e0ind (cogo erning" au$iliary assignment) in the implementation of regional administration. /grarian affairs are by nature and in principle the duty of the +entral Go ernment ;/rticle 00(0) of the -.?, +onstitution=. Ahus, the delegation of authority o er the implementation of the State#s right of control to land is a form of $ede/e0ind. /ll will be implemented as reDuired and in ways which should not contradict national interests. /uthority o er agrarian affairs can pro ide a source of income for the region in Duestion. Artic'e ; Bhat is meant by Hha% 'layatI and other similar rights is what in the literature on adat (customs) is referred to as H /eschi%%ingsrecht.I Eor further elucidation, see General >lucidation ;II point (0)=. Artic'e <
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>lucidation is gi en in General >lucidation ;II point (-)=. Artic'e 5 Ahis article asserts that adat law is used as a foundation for the new agrarian law. Eor further elucidation, see General >lucidation ;III point (-)=. Artic'e 6 'ot only ha% $ili% (right of ownership) has social functions" all land rights do. elaborated on in General >lucidation ;II point (?)=. Artic'e 2 Ahis article confirms the principle which bans e$cessi e land ownership and possession as has been elaborated on in General >lucidation ;II point (2)=. /s for the limitations, they are regulated in /rticle -2. Ahe said principle @nows no e$ceptions. Artic'e = Since /rticle ?(:) pro ides that land rights entitle the holder only to the surface of the soil5earth, the powers generated from land rights do not affect the natural resources found inside the earth, water, and airspace. &ence, the ta@ing of such natural resources reDuires separate regulations. Ahe said pro ision ser es as a basis for mining and other legislation. Artic'e 9 6aragraph (1) has been elaborated on in General >lucidation ;II point (,)=. Ahe pro ision of paragraph (:) results from the pro isions of /rticle -(-) and (:). Artic'e 10 >lucidation is gi en in General >lucidation ;II point (2)=. Ahe phrase Hin principleI refers to the li@elihood of e$ceptions being made as illustrated in the General >lucidation. &owe er, such e$ceptions need to be regulated by way of legislation (see the elucidation on /rticle 2 for comparison). Ahe use of land by a party other than its owner is allowed for by /rticle :?, but such use is sub!ect to limitations and is to be regulated. Artic'e 11 Ahis article carries the principle of the economically wea@ ha ing to be protected against the economically strong. Ahe economically wea@ can be nati e Indonesian citi9ens and those of foreign origin, and the re erse is also true. See General >lucidation ;III point (:)=. Artic'e 1: Ahe pro ision of paragraph (-) is related to that of /rticle --(-). Ahe types of !oint enterprises which are consistent with this pro ision are cooperati es and other forms of gotong royong (mutual assistance). Ahe pro ision of paragraph (:) allows for the creation of H!oint enterprisesI between the State and the pri ate sector in the area of agrarian affairs. Bhat is meant by Hother partiesI is regional go ernments, pri ate businessmen with national capital, and pri ate companies with Hdomestic capitalI which are progressi e. Artic'e 1; Ahis is
04
>lucidation on paragraphs (-), (:), and (0) is gi en in General >lucidation ;II point (3)=. Ahe pro ision of paragraph (?) concerns the implementation of the principle of humanity-dri en social !ustice in the area of agrarian affairs. Artic'e 1< Ahis article regulates the issue of planning on the supply, allotment, and use of the soil, water, and airspace as has been described in General >lucidation ;II point (<)=. In iew of the future model of the State#s economy, in which industry and mining will play important roles, planning should be conducted not only of agriculture but also of industry and mining ;paragraph (-)(d) and (e)=. Such planning is intended not simply to pro ide land for agriculture, animal husbandry, fishery, industry, and mining but also to de elop them. Regulations made by regional go ernments should be legali9ed within the conte$t of General *lans made by the +entral Go ernment and in consistence with the +entral Go ernment#s policies. Artic'e 15 >lucidation is gi en in General >lucidation ;II point (?)=. It is mandatory to ta@e good care of land by maintaining it in ways that are common to respecti e regions and in consistence with directions pro ided by the rele ant ;a0atans (offices5bureaus). Artic'e 16 Ahis article concerns the implementation of the pro ision of /rticle ?. In line with the principle stated in /rticle ,, namely that national land law is based on adat law, the rights to land and water stipulated in this article are also based on the systematics of adat law. 1eanwhile, ha% g'na-'saha (right to culti ate) and ha% g'na-/ang'nan (right of use of structures) ha e been created to respond to the needs of modern society in the current era. It is necessary to assert that ha% g'na-'saha is not ha% er(pacht (right of long-term lease) as stipulated in the +i il +ode. Similarly, ha% g'na-/ang'nan is not ha% opstal (right to construct a building). Ahe er(pacht and opstal institutions ha e been eliminated with the re ocation of the pro isions contained in %oo@ II of the Indonesian +i il +ode. 1eanwhile, the adat rights which are by nature contradictory to the pro isions of this law (/rticles 2 and -4) but which, due to the current social circumstances, cannot be discarded as yet, will be treated as temporary rights and will be regulated ;paragraph (-) point h in con!unction to /rticle ,0=. Artic'e 12 Ahis article concerns the implementation of what is stipulated in /rticle 2. Ahe fi$ing of ma$imum limits on ownership will be shortly done by way of legislation. 7and in e$cess of the ma$imum limits will not be confiscated but will be acDuired by the Go ernment with some indemnity. Such land will subseDuently be re-distributed among the needy. %asically, the indemnity for such land --which has to be paid to the former owner-- is to be paid by those who recei e it. &owe er, since the recipients mostly cannot afford to pay the price of the land in a short time, the Go ernment will ma@e a ailable some credit and ma@e other efforts so that the former owner will not ha e to wait for too long before recei ing the said indemnity. Ahe fi$ing of the minimum limits on ownership does not mean that those ha ing less land than the minimum limits will be forced to relinDuish their land. Rather, the fi$ing of such minimum limits is primarily intended to pre ent land from further subdi ision. In addition, efforts will be made --such as trans$igrasi (resettlement), large-scale land clearance off )a a, and industriali9ation-- so that the minimum limits can be achie ed on a gradual basis.
0-
Bhat is meant by H %el'argaI (family) is the husband, wife, and their unmarried children who are still their dependents, all of whom total around se en (2) persons. >ither a man or a woman can be head of the family. Artic'e 1= Ahis article constitutes a guarantee for the people concerning their land rights. /lthough right re ocation is possible, it is sub!ect to certain conditions, e.g. that it should be accompanied with some decent indemnity. Artic'e 19 Such land registration will be administered in simple, easy-to-understand ways and implemented by the rele ant people (see General >lucidation IF). Artic'e :0 Ahis article mentions the characteristics of ha% $ili% (right of ownership) which ma@e it different from other rights. 1a% $ili% is the Hstrongest and fullestI right which one can ha e to land. &owe er, that ha% $ili% ha e such characteristics does not mean that it is a land right which is Habsolute, unlimited, and indefeasibleI li@e the right of eigendo$ (i.e. right of ownership under western law) in its true sense. Ahese characteristics (Habsolute, unlimited, and indefeasibleI) is e idently contradictory to adat law and to the principle that e ery land right has social functions. Ahe word Hstrongest and fullestI is used to distinguish the right (i.e. ha% $ili%) from ha% g'na-'saha (right to culti ate) and ha% g'na-/ang'nan (right of use of structures), ha% pa%ai (right of use), and other rights. It ser es to show that amongst the rights which one can ha e to land, it is ha% $ili% which is the strongest and fullest. Artic'e :1 *aragraphs (-) and (:) are elaborated on in General >lucidation ;II point (,)=. In paragraph (0), only two ways are mentioned of acDuiring a ha% $ili%, gi en that other ways are forbidden by /rticle :3(:). /s for the methods of acDuiring a ha% $ili% mentioned this paragraph, they are ways of obtaining a right without ta@ing a positi e act which is purposefully aimed at ma@ing the right in Duestion transfer. It is only appropriate, therefore, that for as long as Indonesian citi9ens concurrently holds foreign citi9enship, they should be treated differently from other Indonesian citi9ens in terms of land ownership. Artic'e :: One e$ample of how a ha% $ili% comes into e$istence under adat law is land clearance. Bays of acDuiring a ha% $ili% under adat law will be regulated so as to pre ent the occurrence of things which disad antage the interests of the public and the State. Artic'e :; >lucidation is gi en in General >lucidation (point IF). Artic'e :< Ahis article ser es as an e$emption from the principle stated in /rticle -4. Ahe forms of relationship between the owner and tiller5user include lease, output sharing, and ha% g'na/ang'nan (right of use of structures). Artic'e :5
Translation File Name : Land-594 0:
7and with the status of a ha% $ili% which is encumbered with a ha% tangg'ngan (security title) remains in the hand of the owner. In the case where the owner reDuires some cash, he can $enggadai%an (i.e. pledge or pawn) the land --on a temporary basis-- in accordance with the pro isions of /rticle ,0. In this regard, the land transfers to the holder of ha% gadai (right of pledge). Artic'e :6 Ahe pro ision of paragraph (-) is described in General >lucidation ;II point (3)= as ha ing the purpose of gi ing protection to economically wea@ groups. In this %asic 7aw, distinction is made not between indigenous and non-indigenous citi9ens but between economically strong and wea@ groups. Ahe economically strong can be Indigenous and non-indigenous citi9ens. 1eanwhile, what paragraph (:) says results from the pro ision in /rticle :- concerning who is non-eligible for land ownership. Artic'e :2 7and is abandoned when it is deliberately not used in line with its condition or with the nature and purpose of the right on it. Artic'e := Ahis type of right is specially intended to enable companies dealing in agriculture, fishery, and animal husbandry to wor@ on land which they do not own. It differs from ha% pa%ai (right of use) in that the former can be granted only for purposes related to agriculture, fishery, and animal husbandry and only on land of at least fi e (,) hectares. 8nli@e a ha% pa%ai, a ha% g'na-'saha can change hands and be transferred to another party and can be encumbered with a ha% tangg'ngan. / ha@ guna-usaha can not be granted to foreigners. /s for corporate bodies operating with foreign capital, they can be granted with a ha% g'na-'saha only with reference to the limitations stipulated in /rticle ,,. Ao encourage efficient use and e$ploitation of the land, it is stipulated that in the case of land whose area is :, hectares or more, adeDuate in estment must be a ailable and good corporate management techniDues must be adopted. &owe er, this does not mean that land whose area is less than :, hectares can be treated badly because, in that case, the ha% g'na-'saha can be re o@ed (/rticle 0?). Artic'e :9 (ue to its nature and purpose, a ha% g'na-'saha is a right with a limited term. / term of :, or 0, years with a possibility for a :,-year e$tension is seen as long enough to purposes related to the culti ation of plants with a long lifespan. Ahe term of 0, years, for e$ample, has been fi$ed in iew of the lifespan of oil palms. Artic'e ;0 Eoreigners are not eligible for a ha% g'na-'saha. +orporate bodies which are eligible for a ha% g'na-'saha are those which ha e progressi e national capital, be they indigenous or non-indigenous. /s for corporate bodies operating with foreign capital, the possibility to grant them with a ha% g'na-'saha is open only in the case where it is deemed necessary to do so in light of an act which regulates pe$/ang'nan nasional se$esta /erencana (well-planned, all-encompassing national de elopment) ;/rticle ,,=.
00
Artic'es ;1 thro$"h ;< Self-e$planatory. /s for the pro ision of /rticle 0:, elucidation is gi en in General >lucidation (point IF). Artic'e ;5 8nli@e ha% g'na-'saha (right to culti ate), ha% g'na-/ang'nan (right of use of structures) has nothing to do with agricultural land. %ecause of this, a ha% g'na-/ang'nan can be granted not only on land possessed by the State but also on land owned by pri ate indi iduals. Artic'e ;6 See elucidation on /rticle 04. Artic'es ;2 thro$"h <0 Self-e$planatory. /s for what is stipulated in /rticle 0<, it is already elaborated on in General >lucidation (point IF). Artic'es <1 a!% <: 1a% pa%ai (right of use) is the Hcollecti e definitionI of the rights which are @nown in land law by different names, all of which --with slight differences due to differences in circumstances amongst regions-- pro ide the holder with powers as meant in this article. In the conte$t of simplification as described in the General >lucidation, the new agrarian law uses the same term (i.e. ha% pa%ai) to refer to these rights. Eoreign embassies can be granted with a ha% pa%ai because this right can be alid for as long as the land is used for that purpose. Eoreign indi iduals and foreign corporate bodies can be granted with a ha% pa%ai because this right only pro ides limited powers. Artic'e <; Self-e$planatory. Artic'es << a!% <5 Since ha% se0a (right of lease) is ha% pa%ai with special characteristics, it is treated separately. In iew of the pro ision of /rticle -4(-), a ha% se0a is a ailable only for structures. / ha% se0a to agricultural land is by nature transient ;/rticle -3 in con!unction to /rticle ,0=. Ahe state cannot lease out land because the State does not own land. Artic'e <6 1a% $e$/'%a tanah (right to clear land) and ha% $e$'ng't hasil h'tan (right to collect forest produce) are land rights under adat law. Ahese rights need to be regulated by way of a Go ernment Regulation in the interests of the public which are broader than the interests of the indi idual in Duestion or those of the adat-law community in Duestion. Artic'e <2 1a% g'na-air (right to use water) and ha% pe$eliharaan dan penang%apan i%an (right to culti ate and catch fish) ha e something to do with water which does not e$ist on one#s own
0?
land. In the case of water e$isting on one#s own land, these two rights are inherent to the content of ha% $ili% atas tanah (right of ownership to land). 1a% g'na-air is a right to obtain water from a ri er, canal, or spring which e$ists outside of one#s own land, e.g. for purposes related to the irrigation of one#s own land, to household use, or to other uses. In many cases, the water which one reDuires needs to be flowed in through land belonging to another person and, when it is no longer reDuired, to be flowed out (disposed) through land belonging to still another person. Ahese persons are not supposed to bloc@ the land owner from flowing such water into and out of the latter#s land through their respecti e land parcels. Artic'e <= 1a% g'na r'ang ang%asa (right to use airspace) has been created in iew of the current ad ancements in technology and of the possibilities that may be open in the future. Artic'e <9 Ao remo e any doubt and s@epticism, this article asserts that the new agrarian law will pay attention as reDuired to matters related to worship and other sacred purposes. See also /rticle , and /rticle -?(-)(b). Artic'es 50 a!% 51 Ahis is a conseDuence to the fact that this /ct contains only the fundamentals of the new agrarian law. Artic'e 5: Ao ma@e sure that the regulations and measures ser ing to implement the 88*/ are carried out in the best possible manners, the criminal sanctions stipulated in this /rticle are reDuired. Artic'e 5; See elucidation on /rticle -3. Artic'e 5< Ahis article has been created in iew of the pro isions of /rticles :- and :3. One who has declared his re!ection of +hinese citi9enship but whose re!ection of +hinese citi9enship has not been legali9ed when this /ct comes into effect shall be sub!ect to the *ro isions concerning +on ersion as meant in /rticle I(0), /rticle II(:), and /rticle FIII. &owe er, when his re!ection of +hinese citi9enship has been legali9ed, a possibility is open for him to acDuire a land right as one with single Indonesian citi9enship. Ahis also applies to indi iduals as meant in /rticle -: of Go ernment Regulation 'o. :4 of -.,., that is in the case where no confirmation from the authorities has been obtained. Artic'e 55 See elucidation on /rticle 04. 6aragraph 1 refers to foreign capital which already e$ists, and paragraph ! to new foreign capital. /s has been asserted in the elucidation on /rticle 04, the granting of a new right under paragraph : is possible only in the case where it is deemed necessary to do so in light of
0,
an act which regulates pe$/ang'nan nasional se$esta /erencana (well-planned, allencompassing national de elopment). S@3-N# - /ccording to the *ro isions concerning +on ersion, all the rights which ha e by now e$isted should become new rights under 88*/. Ahe con ersion of such rights into 1a% g'na-'saha (right to culti ate) and ha% g'na-/ang'nan (right of use of structures) as meant in /rticles I, II, III, IF, and F shall proceed with reference to the general conditions as meant in /rticle ,4(:) and to the special conditions, i.e. those related to the condition of the land in Duestion as well as those enumerated in the right con ersion deed in Duestion, pro ided that this does not contradict the new regulation. 71I+# -- Ahe structure of the illage administration needs to be re ised if agrarian-law reform is to be implemented in the best possible manner under this /ct. Ahe illage administration will play a ery important role in implementing the new agrarian law. A-5+71 -- Ahis pro ision is intended to remo e rights which are feudalistic and, hence, are not in line with the pro isions of this /ct. SUPPL,0,N* *+ S*A*, GAB,**, N+. :0<;
03

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BASIC AGRARIAN LAW (UUPA) Act No. 5 of 1960 re the Basic Pro isio!s co!cer!i!" the #$!%a&e!ta's of A"raria!

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BASIC AGRARIAN LAW (UNDANG-UNDANG POKOK AGRARIA (( UUPA)

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(0) (?) (,) (3)

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(:) (0) (?)

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(-) (:) (0)

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>nacted on :? September -.34 SA/A> S>+R>A/RG (signature) (7A*,I8)

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