Land for the People: The State and Agrarian Conflict in Indonesia

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Land for the People

The State and Agrarian Conflict in Indonesia

Edited by Anton Lucas and Carol Warren

Ohio University Research in International Studies

Southeast Asia Series No. 126

Ohio University Press

Athens

© 2013 by the

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Library of Congress Cataloging-in-Publication Data

Land for the people : the state and agrarian conflict in Indonesia / edited by Anton Lucas and Carol Warren.

pages cm. — (Ohio University research in international studies. Southeast Asia series ; no. 126)

Includes bibliographical references and index.

Summary: Half of Indonesia’s massive population still lives on farms, and for these tens of millions of people the revolutionary promise of land reform remains largely unfulfilled. The Basic Agrarian Law, enacted in the wake of the Indonesian Revolution, was supposed to provide access to land and equitable returns for peasant farmers. But fifty years later, the law’s objectives of social justice have not been achieved. Land for the People provides a comprehensive look at land conflict and agrarian reform throughout Indonesia’s recent history, from the roots of land conflicts in the prerevolutionary period, and the Sukarno and Suharto regimes, to the present day, in which democratization is creating new contexts for peoples’ claims to the land. Drawing on studies from across Indonesia’s diverse landscape, the contributors examine some of the most significant issues and events affecting land rights, including shifts in policy from the early postrevolutionary period to the New Order; the Land Administration Project that formed the core of land policy during the late New Order period; a long-running and representative dispute over a golf course in West Java that pitted numerous indigenous farmers in Kalimantan against the urban elite; Suharto’s notorious million hectare" project that resulted in loss of access to land and resources for numerous farmers; and the struggle by Bandung’s urban poor to be treated equitably in the context of commercial land development. Together, these essays provide a critical resource for understanding one of Indonesia’s most pressing and most influential issues— Provided by publisher.

ISBN 978-0-89680-287-2 (pb : alk. paper) — ISBN 978-0-89680-485-2 (electronic)

1. Land reform—Indonesia. 2. Land tenure—Indonesia. 3. Land use—Indonesia. 4. Agriculture and state—Indonesia. 5. Indonesia—Rural conditions. I. Lucas, Anton E., editor of compilation. II. Warren, Carol, editor of compilation. III. Lucas, Anton E. Land, the law, and the people.

HD1333.I5L35 2013

333.3'1598—dc23

2013005381

Tanah Untuk Rakyat (Land for the People), 1991 calendar-poster by political artist Yayak Yatmaka

About the Cover Illustration

The 1991 calendar-poster Tanah Untuk Rakyat (Land for the People) played a prominent role in publicizing the increasing conflict over land in Indonesia. It was created by political artist Yayak Yatmaka, also known by his other pseudonym, Iskra Ismaya. Of Yogyakarta origin, he had been a social activist since his time as a student at the Bandung Institute of Technology (ITB) in the 1970s. The poster, sponsored by eight NGOs, graphically publicizes six land disputes current at that time, including the Cimacan golf dispute covered in this volume and the well-known Kedung Ombo dam dispute. The calendar aimed to publicize the plight of farmers forcibly evicted in these land disputes. Various scenes depict conflicts between peasant farmers, holding placards asking Where is justice? and Give us back our land, facing off against developers and the state, represented by figures in military and civil service uniforms and carrying placards reading Land for palm oil and rubber plantations. A large sitting figure (Suharto?) in a blue uniform holds a bag of money labeled foreign debt while Uncle Sam looks down with a smaller bag of money marked IGGI (Inter-Government Group on Indonesia)/World Bank. Peasant smallholders in the disputed areas are being prevented from cultivating their land by barbed wire fences and violence from the military. In early 1991 the Indonesian attorney general banned the calendar, accusing its creator and those involved in its distribution of subversion and inciting hatred under an old colonial law. Yayak Yatmaka went into hiding and later into political exile in Germany, where his work formed the basis of a study of Indonesian political cartoons edited by Ulrich Debes and Iskra Ismaya, High-Tech, Generäle und ein Präsident: Politische Karikaturen aus Indonesien, Göttinger kulturwissenschaftliche Schriften 8 (Münster: LIT Verlag, 1995). Two students from Satya Wacana Christian University (UKSW), were jailed for several months, and a Gadjah Mada University student had to go into hiding abroad. Wiji Thukul, whose poem about the need for peasants to join a land rights movement was printed on the calendar, disappeared during the 1998 reformasi movement. Yayak Yatmaka’s drawings and Wiji Thukul’s poem publicized the impact of forced evictions that were widespread under the New Order. The poem remains iconic in the history of the Indonesian movement against injustice.

About a Movement

I was going to say:

I need a house

But then I changed it to:

Everyone needs land

Note: everyone

I thought about

a protest movement

but how’s that possible

on my own?

I’m not a holy man

who can live on a handful of rice

and a pitcher of water

I need a shirt and a pair of pants

to cover my nakedness

I thought about a protest movement

but how’s that possible

if I don’t speak out?

(Anonymous poem on the calendar-poster Tanah Untuk Rakyat. The author, Wiji Thukul, is still missing, assumed kidnapped and later killed by the military during the 1998 reformasi movement.)

For those who suffered in the struggles for social justice and democracy in Indonesia and those who continue to work for the promise of Indonesia Tanah Air.

Acknowledgments

The Indonesian economic crisis and the end of the New Order regime in 1998 made the prominent land conflicts of the 1990s an even more urgent political issue, as one of the key areas driving demands for reform and democratization, including new initiatives toward decentralization and regional autonomy in the reformasi period. The origins of this study, an Australian Research Council grant titled Land Tenure and Law in Indonesia: Implications for Livelihood, Community, and Environment, coincided with the early reformasi period, which saw an extraordinary outpouring of popular protest over long-running land disputes, six of which are included as case studies in this book. The many Indonesian informants and NGOs who shared an interest in our early research began with the Consortium for Agrarian Reform (KPA), to which we are grateful for assistance on researching the 1960s land reform program in West Java, the campaign for law reform culminating in the passing of the Policy Decision of the People’s Consultative Assembly (TapMPR XI) in 2001, and more recently the passing of the new law on land acquisition. We also thank Akatiga, LBH Bali, LBH Cianjur, YLBHI Bandung, YLBHI Jakarta, YLBHI Malang, YLBHI Surabaya, Yayasan Koslata, and Yayasan Wisnu for their assistance. Workshops and conferences at Atmajaya University, Diponegoro University, Bogor Agricultural Institute (IPB), and Percik Foundation international seminars in Yogyakarta, Pekanbaru, and Salatiga saw many of the issues in this book discussed for the first time since the end of the New Order.

Although individual contributors to this volume have acknowledged assistance in the research for their own chapters, we wish to mention the advice and assistance of a number of people over the many years it has taken to bring this work to fruition: Greg Accaiolli, George Aditjondro, Dianto Bachriadi, Yudi Bachrioktora, Adrian Bedner, Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Arief Djati, Noer Fauzi, Daniel Fitzpatrick, Keith Foulcher, Andik Hardiyanto, Joan Hardjono, Hardoyo, Herlambang Perdana Wiratraman, Franz Hüsken, Irwan, Arief Jati, Yudi Junaidi, Iwan Nurdin, Jan-Michiel Otto, Nancy Peluso, Pratikno, Gatot Rianto, Maria Ruwiastuti, Hilma Savitri, Jim Schiller, Usep Setiawan, Mohamad Shohibuddin, Nyoman Sirtha, Endriatmo Soetarto, Indro Tjahyono, Sediono Tjondronegoro, Leontine Visser, Ben White, Gunawan Wiradi, Roger Wiseman, and Yando Zacharia. Thanks to Bec Donaldson for editorial assistance.

Special thanks to the Asia Research Centre at Murdoch University, which was home for the project, and the Van Vollenhoven Institute of Law, Governance and Development at Leiden University, which made available its excellent law library and hosted several of the contributors to the book.

The editors wish to thank the Cornell University Southeast Asia Program for permission to republish revised and updated material from the article coauthored by Anton Lucas and Carol Warren entitled The State, the People, and Their Mediators: The Struggle over Agrarian Law Reform in Post–New Order Indonesia from Indonesia, no. 76 (October 2003): 87–124, and the Institute of Southeast Asian Studies (ISEAS) for permission to republish materials from the chapter coauthored by Anton Lucas and Carol Warren entitled Agrarian Reform in the Era of Reformasi in Indonesia in Transition: Social Aspects of Reformasi and Crisis, edited by Chris Manning and Peter van Diermen (Singapore: ISEAS, 2000), 220–38, in chapters 1 and 10; reproduced here with kind permission of the publisher, Institute of Southeast Asian Studies, Singapore, .

The editors also wish to thank Leiden University Press for permission to reprint a revised version of chapter 7 of G. O. Reerink, Tenure Security for Indonesia’s Urban Poor: A Socio-Legal Study on Land Decentralisation and the Rule of Law in Bandung (Leiden: Leiden University Press, 2011), 187–211, as chapter 9.

Glossary

adat—customary practice and law

bupati—head of district-level government (kabupaten)

caco—middleman, rent seeker

desa—administrative village

girik garapan—land tax assessment

ganti rugi—compensation for loss

hak milik—individual ownership, private title

hak pakai—use rights

hak ulayat—customary or communal rights

Hari Tani—Peasants’ Day

izin lokasi—location permit

kampung—urban settlement

kecamatan—subdistrict

kelurahan—administrative unit

nagari—traditional administrative unit of Minangkabau (West Sumatran) society

ninik mamak—adat chief, clan leader

pasal—article (legal)

pelepasan hak—renunciation of (land) rights

pembebasan tanah—compulsory release of title or occupancy

petani gurem—small peasants

pilkades—pihihan kepala desa, village head elections

preman—hired thugs

rakyat—the common people

reformasi—post–Suharto era reform movement

ruilslag—land compensation swap or exchange

tanah adat—customary land

tanah negara—state land

tanah terlantar—neglected or abandoned land

transmigrasi—transmigration; shifting landless peasants from Java to Outer Island settlements

Except where otherwise indicated, translations from the Indonesian language are those of the author(s) of each chapter.

Abbreviations

AJM—Asian Journal of Mining

AMAN—Aliansi Masyarakat Adat Nusantara (Alliance of Indigenous [Adat] Peoples of the Archipelago)

AMAN NTT—Alliance of Indigenous Peoples of East Nusa Tenggara Province (Flores)

AMDAL—Analisa Mengenai Dampak Lingkungan (Environmental Impact Analysis)

AMUK—Aliansi Masyarakat Untuk Keadilan (Community Alliance for Justice—Cimacan case)

API—Aliansi Petani Indonesia (Indonesian Peasants Alliance)

BAL—Basic Agrarian Law (also UUPA)

BKD—Badan Keuangan Daerah (Regional [District] Government Financial Agency)

BKN—Badan Keuangan Negara ([National] Government Financial Agency)

BKSDA—Badan Konservasi Sumber Daya Alam (Natural Resources Conservation Agency)

BMD—Badan Musyawarah Desa (Village Consultative Council)

BPD—Badan Perwakilan Desa (Village Representative Council in Reform Era); Badan Permusyawaratan Desa (Village Consultation Council) after 2004 revision of the UU 22/1999 Law on Local Government

BPN—Badan Pertanahan Nasional (National Land Agency)

BPS—Badan [previously Biro] Pusat Statistik (Indonesian Bureau of Statistics)

Brimob—Brigade-mobil (police mobile brigade)

CAPS—Centre for Agricultural Policy Studies

DPD—Dewan Pemerintah Daerah (Regional Government Assembly)

DPR—Dewan Perwakilan Rakyat (People’s Representative Assembly [National Legislature])

DPRD—Dewan Perwakilan Rakyat Daerah (Regional People’s Representative Assembly)

FMPS—Forum Mahasiswa Peduli Sosial (Socially Concerned University Students Forum)

FPPB—Forum Perjuangan Petani Batang (Batang Peasants’ Advocacy Forum—Central Java)

FSPI—Federasi Serikat Petani Indonesia (Federation of Indonesian Peasants’ Unions)

GBHN—Garis Besar Haluan Negara (Guidelines of State Policy)

GPI—Gerakan Pemuda Islam (Islamic Youth Movement)

HGB—Hak Guna Bangunan (Building Use Right)

HGU—Hak Guna Usaha (Commercial Use Right)

HKTI—Himpunan Kerukunan Tani Indonesia (Indonesian Harmonious Peasants’ Union)

HPH—Hak Pengelolaan Hutan (Forest Concession Right)

HPHH—Hak Pemungutan Hasil Hutan (Forest Harvesting Right)

HPKH—Hak Pakai Kawasan Hutan (Forestry Use Right)

HPL—Hak Pakai Lahan (Land Use Right)

HTI—Hak Tanaman Industri (industrial timber plantation lease)

ICESC—International Covenant on Economic, Social, and Cultural Rights

ILAP—Indonesian Land Administration Project (see LAP)

IMB—Izin Mendirikan Bangunan (Building Permit)

IPEDA—Iuran Pembangunan Daerah (Regional Development Tax)

IPK—Indeks Prestasi Kumulatif (cumulative grade point average)

JAGAD NTT—Jaringan Antara Gerakan Adat Daerah (Network of Indigenous Peoples’ Movements of East Nusa Tenggara Province)

JKPP—Jaringan Kerja Pemetaan Partisipatif (Participatory Mapping Network)

KAN—Kerapatan Adat Nagari (Nagari Adat Council–West Sumatra)

KARAM—Tanah Koalisi Rakyat Tolak Perampasan Tanah (People’s Coalition against Land Grabbing)

KepMenag—Keputusan Menteri Agraria (Minister of Agrarian Affairs Decision)

KepPres—Keputusan Presiden (Presidential Decree)

KKPA—Kredit Koperasi Primer untuk Anggota (Credit for Primary Cooperative Members)

KomnasHAM—Komisi Nasional Hak Asasi Manusia (National Commission on Human Rights)

KON—Komisi Ombudsman Nasional (National Ombudsman Commission)

KPA—Konsorsium Pembaruan Agraria (Consortium for Agrarian Reform)

KSPA—Kelompok Studi Pembaruan Agraria (Agrarian Reform Study Group)

LAP—Land Administration Project (titling project funded by Indonesian government, World Bank, and AusAID)

LARASITA—Layanan Rakyat untuk Sertifikasi Tanah (Serving the People with Land Certification)

LASA—Land Administration System Australia

LBH—Lembaga Bantuan Hukum (Legal Aid Institute, later YLBHI)

LBHNT—Lembaga Bantuan Hukum Nusa Tenggara Timur (Legal Aid Institute of the Province of NTT–Flores)

LKMD—Lembaga Ketahanan Masyarakat Desa (village community resilience board)

LMD—Lembaga Musyawarah Desa (Village Consultative Board)

LMPDP—Land Management and Policy Development Project, successor to LAP

LPM—Lembaga Pengembangan Masyarakat (community development board)

LPMA—Lembaga Persekutuan Masyarakat Adat (Alliance of Indigenous Community Organizations–Flores)

LPPT—Lembaga Pengembangan dan Pendidikan Pedesaan (Institute for Village Development and Education)

LRA—Lembaga Riset dan Advokasi (Advocacy and Research Institute)

MP3EI—Masterplan Percepatan dan Perluasan Pembangunan Ekonomi Indonesia (Master Plan for Accelerating and Expanding Indonesia’s Economic Development)

MPR—Majelis Permusyawaratan Rakyat (People’s Consultative Assembly)

Muspida—Musyawarah pimpinan daerah (district-level executive consultation)

NTT—Nusa Tenggara Timur (East Nusatenggara Province)

P3 (PPP)—Partai Persatuan Pembangunan (Development Unity Party; Muslim party)

PAD—Pendapatan Asli Daerah (revenue generated at provincial or district levels)

PAN—Partai Amanat Nasional (National Mandate Party; Muslim party)

PAP—Proyek Administrasi Pertanahan (Land Administration Project—see LAP)

PBB—Pajak Bumi dan Bangunan (Land and Buildings Tax)

PBB—Persatuan Bangsa Bangsa (United Nations)

PDBI—Pusat Data Bisnis Indonesia (Indonesian Business Data Center)

PDI-P—Partai Demokrat Indonesia-Perjuangan (Indonesian Democratic Party-Struggle)

Pemda—Pemerintah Daerah—refers to the two levels of regional government—provincial (propinsi/tingkat I) and district (kabupaten/tingkat II). Since decentralization, it typically refers to district and municipal (kabupaten/kota) government

PerMenag—Peraturan Menteri Agraria (Agrarian Ministerial Regulation)

PerMendagri—Peraturan Menteri Dalam Negeri (Home Affairs Ministerial Regulation)

PHBK—Pengelolaan Hutan Berbasis Komunitas (community-based forest management)

PHBM—Pengelolaan Hutan Bersama Masyarakat (community-based forest management)

PIR-Bun—Perusahaan Inti Rakyat Perkebunan (nucleus estate and smallholder plantations)

PKB—Partai Kebangkitan Bangsa (National Awakening Party; Muslim party)

PKI—Partai Komunis Indonesia (Indonesian Communist Party)

PKK—Pembinaan Kesejahteraan Keluarga (Family Welfare Organization, a women’s group; after 1999 Pemberdayaan Kesejahteraan Keluarga, Family Empowerment Organization)

PKS—Partai Keadilan Sosial (Social Justice Party; Islamic party)

PLG—Proyek [Pengembangan] Lahan Gambut (Peat Land Development Project)

PP—Peraturan Pemerintah (government regulation)

PPAN—Program Pembaruan Agraria Nasional (National Agrarian Reform Program)

PPP—public-private partnerships (Kerjasama Operasi)

PPR—Partai Perserikatan Rakyat (People’s Confederation Party)

PRD—Partai Rakyat Demokrasi (People’s Democratic Party)

PRONA—Proyek Operasi Nasional Agraria (Agrarian National Operation Project)

PSDA—pengelolaan sumber daya alam (natural resources management)

PT Diag—Perseroan Terbatas Dioses Agung Ende (Ende Archdiocese Pty. Ltd., diocesan plantation company, Flores)

PTUN—Pengadilan Tata Usaha Negeri (administrative courts)

PT-TUN—Pengadilan Tinggi Tata Usaha Negara (higher administrative courts)

REDD—Reducing Emissions from Deforestation and Forest Degradation

REDD+—national program to implement REDD

RK—Rukun Kampung (kampung association)

RT—Rukun Tetangga (neighborhood association)

RTK—Register Tanah Kehutanan (Forest Land Register)

RTRWK—Rencana Tata Ruang Wilayah Kabupaten (district spatial plan)

RW—Rukun Warga (also called RK; subhamlet association)

SAE—Survei Agro Ekonomika (Agro Economy Survey Foundation)

SBY—Susilo Bambang Yudoyono (Indonesian President)

SK—Surat Keterangan (also Surat Keputusan; letter of clarification, decision, decree)

SKD—Surat Keterangan Domisili (residential identification)

SKEPHI—Seketariat Kerjasama Pelestarian Hutan Indonesia (Secretariat for Forest Conservation in Indonesia)

SK Menteri Pertanian—Surat Keputusan Menteri Pertanian (Decree of Minister of Agriculture)

SPI—Serikat Petani Indonesia (Indonesian Peasants Union, formerly FSPI)

SPJB—Sarekat Petani Jawa Barat (West Java Peasants’ Union)

SPP—Serikat Petani Pasundan (Sundanese Peasants’ Union [West Java])

STaB—Serikat Tani Bengkulu (Bengkulu Peasants’ Union [Sumatra])

STPN—Sekolah Tinggi Pertanahan Nasional (National Land College)

SUPENAS—Survei Penduduk Antar Sensus (Intercensus Population Survey)

TGHK—Tata Guna Hutan Kesepakatan (Agreements on Forest Use—maps showing forest functions)

TNGP—Taman Nasional Gde-Pangrango (Mount Gede-Pangrango National Park)

UU—Undang-Undang (law or act)

UUPA—Undang-Undang Pokok Agararia (Basic Agrarian Law [BAL] of 1960)

WALHI—Wahana Lingkungan Hidup Indonesia (Friends of the Earth Indonesia—Indonesian’s peak environmental network)

YLBHI—Yayasan Lembaga Bantuan Hukum Indonesia (Indonesian Legal Aid Institute Foundation—formerly LBH)

Note on Legislative References

Agrarian and natural resource management laws and regulations cited in this book can be found at the Agrarian Resource Center (ARC), Jalan Ice Skating No. 33, Arcamanik, Bandung 40293 Indonesia (which also holds copies of the original calendar-poster Tanah Untuk Rakyat); in various editions of B. Harsono, Hukum Agraria Indonesia: Himpunan Peraturan-Peraturan Hukum Tanah (Jakarta: Penerbit Jambatan); in R. Soedargo, Perundangan-Undangan Agraria Indonesia Djilid I (Bandung: N.V Eresco, 1962); at http://www.hukumonline.com/ and on the website of KPA (Consortium for Agrarian Affairs), http://www.kpa.or.id/?page_id=408.

The following abbreviations for types of legislation are listed in order of importance in the Indonesian legislative hierarchy. The law or regulation number is followed by the year of promulgation; § indicates article and section. For example, UU 5/1979 §7(2) refers to Law number 5 of 1979, article (pasal) 7, section 2.

UU—Undang-Undang (National Law)

PP—Peraturan Pemerintah (Government Regulation)

KepPres—Keputusan Presiden (Presidential Decision/Decree)

PerMenag—Peraturan Menteri Agraria (Agrarian Ministerial Regulation)

PerMendagri—Peraturan Menteri Dalam Negeri (Home Affairs Ministerial Regulation)

SK Menteri Pertanian—Surat Keputusan Menteri Pertanian (Agriculture Ministerial Decree)

Chapter 1

The Land, the Law, and the People

Anton Lucas and Carol Warren

No one seems to realize that Indonesia is entering a period of social revolution. The signs are there. It can be seen in the farmers who, having had their land stolen from them during the New Order, are now taking it back by force. It can be seen in the protests by farmers outside regional assembly buildings. It can be seen in the attacks on hundreds of police and military posts. In the past, these very same people would have let themselves be robbed of their voices, but now they are fighting back. Whether they realize it or not, they are the vanguard of a social revolution.

—Pramoedya Ananta Toer

¹

When Sundanese villagers carved "Tanah Rakyat (People’s Land) onto the fairway of the Cimacan golf course in 1998, shortly after the official demise of the New Order" regime of President Suharto, they staked a claim against an unredeemed promise of the Indonesian revolution. Land and the welfare of ordinary people have been intrinsic to popular understandings of Indonesian nationhood since the early years of the nationalist movement.

At every significant juncture in Indonesia’s recent history, land issues have played a pivotal role. Land for the People was the catchphrase of the land reform movement and peasant actions supported by the Communist Party (PKI) in the postrevolutionary period. Land issues were at the heart of the intense political conflict that ended in the anticommunist massacres of 1965–66 and the takeover by army general Suharto. Three decades later, land conflicts contributed to the overwhelming popular animosity that eventually ended Suharto’s authoritarian rule.

Land tenure and access issues embody powerful tensions between elites and popular forces, between regional interests and central government, and between Indonesian national and transnational capital. The foundational importance of the land question was expressed in the 1960 Basic Agrarian Law, arguably the most important piece of legislation after the Indonesian constitution. Paradoxically this same piece of legislation oversaw diametrically opposed policies of the Old Order Sukarno (1950–65) and New Order Suharto (1966–98) regimes, and remains today a contentious focal point in the struggle for social justice by marginalized sectors of Indonesia’s population.

The Basic Agrarian Law under Old and New Orders

In the postrevolutionary period there were high expectations that the government of Indonesia’s first president, Sukarno, would deliver to the predominantly rural and poor population the well-being (kesejahteraan) they had been promised. After a decade of debate and political struggle, the Basic Agrarian Law was finally promulgated on 24 September 1960,² as the centerpiece of Sukarno’s efforts to fuse nationalist, socialist, and populist political commitments. It asserted the social function of land and other resources,³reiterated the state’s responsibility for managing those resources in the interests of the people, prohibited absentee and foreign ownership of land, and paved the way for the redistribution of land through subsequent land reform legislation.⁴ The Basic Agrarian Law (BAL/UUPA 5/60) has been so intimately connected with the ideological formation of the Indonesian nation, that it acquired almost sacrosanct status from its inception. The date of its proclamation is still annually celebrated as Hari Tani (Peasants’ Day),⁵ accompanied by public awards, seminars, and editorials in the national newspapers. But its social function principle had contradictory interpretations under the Sukarno (Old Order) and Suharto (New Order) regimes, with different implications for land poor and landless laborers of inner island Indonesia and the indigenous minorities occupying customary lands, primarily in the forested outer islands of the country.

UUPA/BAL: The Social Function of Land and Land Reform

The implementation of land reform, the popular socialist cornerstone of the Basic Agrarian Law, depended on complex enabling legislation that was intended to limit the size of land holdings by individuals and redistribute surplus agricultural lands. Law No. 56/1960 set the maximum ceiling for landholdings according to land use, varying from five hectares of riceland in very densely populated areas to fifteen hectares in sparsely populated areas, and six to twenty hectares respectively for drylands (UU56/1960, §1/2). The act also charged the government with efforts to provide every peasant family with a minimum of two hectares of arable land (§8), an arithmetic impossibility on crowded Java, according to Mortimer (1972, 16–17), who regarded this minimum land stipulation as a symbolic display of goodwill rather than as something to be given practical effect. Subsequent implementing regulations explained what land could be redistributed, how owners were to be compensated (PP 224/1961), and provided for a minimum 50:50 division of harvest in sharecropping agreements (UU 2/1960).

The Sukarno government planned to implement the land reform program in two stages over a three- to five-year period.⁶ However, the redistribution process was very slow and insufficient to deal with the problem.

Wolf Ladejinsky, an expert on land reform, made several visits in the early 1960s to assess Indonesia’s land redistribution program. These were sponsored by the Ford Foundation and the Agricultural Development Council, which regarded agrarian reform as a necessary anti-communist strategy (Shohibuddin 2009, xiv). Ladejinsky had misgivings about the Indonesian program, concluding that there was not enough land in Java for a significant land redistribution progam even if the maximum five hectares holding were reduced. So long as the rural population continues to grow at the current rate, competing for a virtually fixed area of nine million hectares of cultivated land, the attainment of better tenure conditions is a very difficult task. In short, though a confirmed land reformer, I am of the opinion that the real issue in Java (and Bali) is not land redistribution but population redistribution on the one hand and a breakthrough in agricultural productivity on the other (Walinsky 1977, 349). Ladejinsky was also concerned that no thought had been given to the pricing and financing of land to be redistributed or to the difficulties that the district land reform committees faced in enforcing reform because of conflicts between landholders and landless farmers. He noted that despite the stated and implied promises of land to the tiller, the [BAL] enabling document is shot through with conservative safeguards in order to prevent any significant redistribution of land (Walinsky1977, 298).⁷

The events of 1965 dramatically reversed the political fortunes of the forces supporting land reform. The massacres and mass arrests of the main advocates of land reform—the PKI and its affiliated organizations, in particular the peasant organization Barisan Tani Indonesia (BTI)—and the dismantling of the land reform administration practically stalled the implementation of the program,⁸ although the land reform law itself was never formally repealed (Utrecht 1969, 86–88; Mortimer 1972, 63–68; Huizer 1980, 122–26).

A later study of the fate of land actually redistributed during the program in three regions (five villages) in West Java by Bachriadi and Lucas (2001b) highlights the extent of corruption and manipulation at the village level in the New Order period.⁹ Outcomes varied significantly depending on the actions of the village headman, the survival of local BTI leaders who still had copies of land registers recording 1962–68 land redistributions, and attitudes of local officials. Many local officials stopped implementing the land reform program after Suharto came to power, and some were involved in the illegal selling of redistributed land during the 1970s. In one of the Garut district villages (Simpen) 88 percent (276 of the 313 landholders) who obtained blocks of redistributed land are still cultivating it, whereas in the neighboring village of Pangeureunan in the same subdistrict, only 7 percent (14 of the 206 original recipients) still control the land they received. In both south Cianjur villages, 80 percent of cultivators still control their redistributed land. In Indramayu, the 42 percent of peasants who received redistributed state land were disenfranchised by the village head who borrowed the land redistribution letters (referred to as SK Redis—Surat Keterangan Redistribusi) and sold the land off.¹⁰ The land redistribution process in the five villages studied had specific conditions attached, the most important of which were that each recipient had to pay for the land plus interest in annual installments over fifteen years; that until the land had been paid off in full, rights to the redistributed land could not be transferred; and that the farmer who received redistributed land was obliged to actively cultivate it himself (Surat Keputusan 1966).

Despite its negative association with the PKI’s dramatic growth in popularity, land reform remained a popular concept among ordinary people in rural Indonesia. For this reason, land reform continued to be given lip service over the decades since Suharto’s take over in 1965. In practice, however, it was completely sidelined by large-scale transmigration programs, shifting landless peasants from Java to outer island settlements, and the intensification and commercialization of agriculture, which were much more compatible with the capital intensive development drive of the New Order period. Bachriadi and Wiranto trace the impacts of changing state agrarian policies through an analysis of the agricultural census data from 1963 through 2003 in chapter 2 of this volume.

UUPA/BAL: The Social Function of Land and Adat Communities

The Basic Agrarian Law is associated with progressive social policies of the postrevolutionary Sukarno era that were popularly perceived to advantage the land poor and landless farmers of the rice-growing heartland of Inner Indonesia, mainly on Java where the majority of Indonesia’s population was concentrated. But it does not have the same meaning for customary (adat) landholding groups in the sparsely populated forested areas of the Outer Islands. These minority ethnic cultures traditionally depended on shifting cultivation, requiring extensive fallow areas for forest regeneration to maintain their livelihoods and traditional ways of life.

The agrarian law of the nation and particularly its social function principles were proclaimed to be based ultimately on adat (customary law) (BAL/UUPA 5/1960, §5. Elucidation A3/1). Indeed, the legal framework for land and natural resource management effectively takes the adat concept of customary territorial rights of avail (hak ulayat)¹¹ and converts it to a national principle: The land, water and atmosphere, including natural resources within them are controlled by the State at its highest level, as the organizational authority of all the people (BAL/UUPA 5/1960, §2.1). In appropriating the local principle of customary community rights of precedence to the higher scale of national governance, however, the ground was laid for the transgression of local indigenous rights whenever a wider national interest claim could be invoked. As a result, despite rhetorical recognition of adat values as the foundation of Indonesian land law, the subordination of local customary rights to national interest claims was ultimately rationalized by the same evolutionary developmentalist ethos that had previously underpinned colonial policy and law.¹² The explanatory notes to the legislation go into considerable detail to make clear that the recognition that adat peoples have the right to receive, "does not permit legal communities based on adat, for example, to reject out of hand the opening of forest on a large scale for regulated implementation of large projects for increasing food output or resettlement of populations." Thus the oft-invoked qualification that hak ulayat territorial rights of adat communities are acknowledged only so long as they are in accord with the national and State interest and do not conflict with higher laws (BAL/UUPA 5/60 §3 and Elucidation II/3) underscored what became the defining experience of outer island minority cultures. The populist-socialist construction of the BAL was easily transformed by a regime with a different agenda into policies that expropriated customary lands to become sites for the mining, timber, and plantation concessions liberally dispensed to Indonesian conglomerates and foreign investors under Suharto. The transmigration program enabled the New Order to circumvent genuine land reform, provide labor for outer island resource development, and impose national unity through demographic redistribution and neocolonial cultural policies.¹³

The Basic Agrarian Law itself contains fundamental ambiguities and contradictions that facilitated the subversion of its foundational social function principles. Its overriding emphasis on a nationalist construction of popular interests became the most often cited legal justification, but its evolutionary presuppositions are also an expression of those revolutionary times. Although the Basic Agrarian Law’s social function principle—restricting accumulation, prohibiting foreign ownership, and providing for land redistribution—had been geared to constrain the unfettered transformation of land into a commodity where social functions would be subordinated to antisocial market forces,¹⁴ paradoxically the BAL/UUPA privileges the Western evolutionary legal concept of private property (hak milik) as the strongest and most complete form of title, with full rights of alienation and inheritance (BAL/UUPA 5/60, §20).¹⁵ In contrast, as Fitzpatrick (1997, 2007) emphasizes, the customary "hak ulayat" claims of adat communities are not granted full statutory legitimacy under the BAL. Adat forms of tenure were assumed to evolve over time into individualized property rights (Fitzpatrick 1997, 188). The state would now be proxy to the collective priority over individual interest that had been the underlying principle of adat regimes. This interpretation permitted a situation in which the state regularly denies formal rights to occupiers of virgin or abandoned land on the basis that it holds a state hak ulayat’ (Fitzpatrick 1997, 207). None of the regulatory provisions pursuant to the BAL/UUPA included "adat communities" as legitimate title-holding entities (Fitzpatrick 1997, 187–88).¹⁶

When Suharto came to power in 1966, following the violent suppression of the Communist Party, the national interest principle of the Basic Agrarian Law became the Achilles heel in the battleground over agrarian resources that continues to plague the Reform Era. The BAL/UUPA was reinterpreted, reorienting the national interest proviso of the law to equate the people’s well-being with the state’s capital-intensive developmentalist program. Perverting the basic intent of the law to serve the private interests of Suharto’s cronies, the New Order’s policy orientation has been well described by Campbell (1999) as reverse land reform. Although Campbell was referring to the expropriation of forest land belonging to adat communities for timber concessions, it is an apt description of the broader range of policy changes that facilitated land concentration in the hands of elite political-business interests during the New Order period—a concentration of resources that the BAL explicitly describes as harming the public interest (§7 and Elucidation II/7).

Whenever the Basic Agrarian Law proved inconvenient for the New Order regime, it was reinterpreted or ignored. A body of sectoral legislation on natural resource extraction undermined the integral relationship of land and resources with the needs of the common person that the Basic Agrarian Law had been intended to convey.¹⁷ Where the BAL at least acknowledged local rights based on adat so long as they did not conflict with national law and interest, New Order mining and forestry laws, introduced the year after Suharto took power, stripped even residual rights from adat communities. The Basic Forestry Law of 1967 excluded some 70 percent of Indonesia’s land area classified as forest from the provisions of the Basic Agrarian Law, and facilitated legal disenfranchisement of whole populations from ancestral lands. In exercising the nation’s claim over the then vast forested land mass, New Order legislation appropriated to the state the exclusive and unqualified right of management and allocation of resource extraction rights, with only negligible provision for compensation to the original inhabitants dependent on these resources (Fitzpatrick 2007, 133–39; Bedner and van Huis 2008, 181–84).¹⁸

Although state policy and practice on agrarian issues dramatically altered the relationship between the land, the law, and the people under the New Order, it is worthy of note that over the three decades of Suharto’s authoritarian rule the Basic Agrarian Law was never repealed or revised. This might be surprising given its overtly socialist premises and the association of the land reform issue with the dramatic rise of the Communist Party of Indonesia (PKI) in the early 1960s. It is perhaps less so, considering that the socialist and populist causes it reflected have been so intimately identified with Indonesian nationalism from its inception, and proved at least rhetorically necessary to achieve a semblance of legitimacy for the Suharto government and its military power base.¹⁹

It was the remolding of the state’s role and its revised construction of the national interest principle in the disposition of state land (tanah negara) that caused the most acute conflicts between the People and the State in the high developmentalist period of the Late New Order from 1988 to 1998. Lands claimed by the state as "tanah negara" comprised vast tracts of forest inhabited by indigenous minorities in outer Indonesia, as well as former colonial plantation estates that had been occupied for decades by peasant cultivators in Java and Sumatra. These became attractive and lucrative sites for the voracious capital intensive megadevelopment projects for which the last ten years of the Suharto Era became notorious.

Anatomy of Land Disputes in the Late New Order

By the 1990s the land issue had become the single most prominent cause of conflict between the government and the heavily repressed civil society under the New Order. Despite political impediments to resistance, open protest and official complaints rose steadily in the last decade of the regime. The National Land Agency (BPN) recorded 1,395 complaints submitted in the six-month period before the end of 1998 (BPN 1999a, 1999b).²⁰ Land disputes made up the largest number of cases dealt with by the newly established Administrative Courts (PTUN) and National Human Rights Commission (Komnas HAM) at that time (see table 1.1 in the chapter appendix).²¹ Between July 1994 and September 1996, Komnas HAM (1997) recorded 891 incidents of human rights abuses involving land expropriation, collated from reports in twenty-eight regional newspapers.²²

Annually published Human Rights Commission data on land cases handled since its establishment in 1994 give some indication of the escalation and growing visibility of the land issue. In 1994 the commission dealt with 101 official complaints involving land issues, rising to 351 complaints in 1997, a threefold increase over the final four years of the New Order. In all but one year since 1991, land disputes represented the largest single category of cases brought to the Jakarta Administrative Court.

The Consortium for Agrarian Reform (KPA), the umbrella nongovernment organization that coordinates 187 affiliated peoples’ organizations and NGOs from twenty-three provinces concerned with agrarian issues, compiled an inventory of structural land conflicts since 1970.²³ As of 2001, they had documented 1,753 cases covering 10.8 million hectares of land and affecting more than a million people. These structural cases, which were a systematic consequence of state policy, involved disputes between local people and one or a combination of government (42 percent), private (45 percent), and state (10 percent) corporations, and the military (3 percent). Direct military involvement in these disputes is reported in 7 percent of the cases covered.²⁴

Of the 553 land conflict cases with which Indonesia’s Legal Aid Foundation (YLBHI) dealt in 1998, the year that brought the demise of the New Order, 26 percent were due to the establishment of large-scale plantations, 23 percent to land clearance for industrial, residential, and tourist projects, and 13 percent to forest, mining, and aquaculture developments (YLBHI 1998, 1–4). The remaining nonstructural cases included complaints about the issuance of false land certificates, road expansion, and misappropriation by government officials. The disputes dealt with by the Legal Aid Foundation in 1998 alone involved a total of 827,000 hectares of land, and affected the livelihoods of more than a million people (see table 1.2 in the chapter appendix).

The 1998 Legal Aid Foundation report (YLBHI 1998) also provides what little information is available on the regional distribution of land conflicts. It reveals that 58 percent of the 553 cases it dealt with across fourteen of Indonesia’s then twenty-seven provinces were located outside Java. However, 99 percent of the total land area and 95 percent of the total households affected were in these Outer Island provinces (table 1.2). It is reasonable to assume that land issues were even more acute at the periphery than these already heavily skewed statistics suggest. There is little information on the other thirteen relatively remote provinces, where it was much less likely that cases would find their way to legal aid networks.

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In the early 1990s, the land question was one of the key issues taken up by student activists and nongovernment organizations (NGOs) in Indonesia. The political response to the satiric Land for the People (Tanah untuk Rakyat) calendar (see Lucas 1992 and cover illustration to this book) drew attention to the plight of farmers forced off their land without meaningful compensation. In Java, most of the large-scale land clearances under the late New Order involved urban and industrial expansion at the expense of squatter settlements, or the resumption of lands (often former colonial plantations) occupied and in some cases redistributed to local farmers in the land reform period between 1961 and Suharto’s takeover in 1966.²⁵ Large-scale land clearances were associated with capital-intensive developments such as golf course/resort complexes, infrastructure, industrial and residential estates, or reforestation and new plantation concessions. The principal issues in these cases were the unresolved tenure status of smallholders on former colonial plantations and the aborted land reform program after 1965 that left most farmers without legal title, the consequent weakness of their position in the negotiation process, and the inadequacy of compensation.

Government regulations theoretically gave farmers occupying plantation lands some basis for claims to occupied land as long as these rights did not conflict with land use regulations or national interest development projects.²⁶ Where (as in most cases) plantation workers and peasant farmers did not hold certificates of title, compensation claims were easily discounted, however. These regulations, all derived from the Basic Agrarian Law, should have given some legal protection to long-term occupants of plantation land. Particularly where those lands had been occupied since the revolution, the popular expectation had been that land reform would lead to recognition of smallholder title.²⁷ But by the Late New Order (1988–98) the demands of development, equating