Senin, 13 Agustus 2007

LAND REFORM POLICY: CASE OF INDONESIA UNDER NEW ORDER GOVERNMENT

By:

Sahruddin Lubis

Abstract

Land reform issues have been a big issue since the fall down of President Soeharto in 1997. Land reform is one of many agendas that have preoccupied policy makers, scholars and activist as the nation attempts to reinvent itself to wake up from the collapse of the 32-year New Order Government of ex-President Soeharto. Voices from different sector of society and the state questions whether Indonesia’s 40 years old agrarian laws are appropriate to address persistent and grown problem of social welfare, justice and stagnation production.

The Basic Agrarian Law (BAL) of 1960 was the first major legislation enacted in Indonesia since independence and the 1945 constitution, an attempt to create a new, unique Indonesia framework for managing land and natural resource. Indonesia Basic Agrarian Law 1960 was among the most progressive laws compared with other countries at that time. It has done little in resolving problems of land ownership tenure in the country. Land reform of 1961 to the end of 1965: registration of the land, determination of surplus and its distribution to as many landless peasants as possible, and implementation of the 1960 Law on Sharecropping Agreements. Land reform has been effectively implemented during this time.

The objective of this dissertation is addressed to analyse the land reform policy under the new order government. As we know this regime was very authoritarian and was under a strong dictatorship. Since Soeharto came to the power, he ignored the land reform. New Order made additional changes to the country’s land policies in an attempt to further improve the climate for capital investment. From the 1970s onwards, there was a dramatic increase in the demand for land as mobile capital controllers, domestic conglomerates, and state-owned enterprises sought land for new investment projects in mining, forestry, agriculture, tourism, textiles, clothing, footwear, property and other industries. To make it easier for these groups to gain control of land, the New Order introduced so-called ‘release of title’ procedures. Under the Basic Agrarian Law, enterprises are prohibited from owning land. This dissertation will also explain the cases of land reform during this period, resettlement programs, forest, customary land disputes and the role of NGOs.

The result of this dissertation, we can obtain information that the land reform policy under new order government has not been implemented at all. There were so many land disputes happening during the New Order Government. Land reform is regarded as an idea from the left, subversive groups related to the communist party of Indonesia. This also created political trauma for people in rural areas, so that land reform is still perceived as a communist act. Because of this reason land issues, especially land reform issues, in Indonesia have been related to leftist movement. In this case the communist party movement in Indonesia.

Table of Contents

DECLARATION / STATEMENTS. i

ACKNOWLEDGEMENTS. ii

ABSTRACT. iii

TABLE OF CONTENTS. iv

CHAPTER I INTRODUCTION.. 1

A. Background. 1

B. Data and Methodology. 5

C. Theoretical Background. 5

1. What is land reform?. 6

2. Land reform measures. 7

3. Approaches to land reform.. 9

4. Economic Dimensions of land. 10

5. Agrarian Politics. 10

D. Purpose of Study. 11

E. Outline of Study. 11

CHAPTER II THE HISTORY OF LAND REFORM IN INDONESIA.. 13

A. History of Land Reform.. 13

1. Land policy in the Dutch period. 13

2. The Basic Agrarian Law of 1960. 16

B. The Implementation of Land Reform from the Beginning of 1961 until the end 1965. 18

C. Peasant Mobilization for Land Reform in Indonesia. 25

D. The Consequences of the Abortive Coup of 1 October 1965. 28

CHAPTER III LAND REFORM UNDER NEW ORDER GOVERNMENT. 30

A. Land Reform during Indonesia’s New Order Government 30

B. Indonesia Land Tenure Relation. 33

1. Agrarian Reform Legislations. 34

2. Indonesia: Reluctant Reformer 35

C. Cases: Land Reform in Indonesia. 36

1. Indonesia's Major Land Disputes during New Order Regime. 36

2. Forests in Crisis and Mining in Protected Forest 41

D. Resettlement Program: Caused Land Dispute. 43

E. The Customary (adat) Land Disputes. 44

F. The Role of NGOs. 46

CHAPTER IV CONCLUSION.. 49

BIBLIOGRAPHY.. 52


CHAPTER I INTRODUCTION

A. Background

Indonesia is an archipelago with more or less 17.504 big and small islands spread along Sumatera, Java, Kalimantan/Borneo, Nusa Tenggara, Sulawesi, Mollucas and Papua. The Indonesian territory is divided in 33 provinces with 241.973.879 inhabitants in 2005. Based on the exclusive economy-zone, Indonesia covers a territorial of 800 millions hectares, the biggest part of it, about 76% hectares is territorial waters and the rest of it is land terrestrial. About 120, 2 million hectares of the territorial land is in form of jungle and the rest of the land with coverage of 70.8 million hectares (37%) terrestrially utilized for various farm cultivations such as paddy- field, rain-fed agriculture, estate; and non-farm cultivation such as mining industry, plantation, bush, and savannas (Country Report, 2006).

Indonesia has a large land area of 1,812,000 square kilometres of which 9% (or 163,000 square kilometres) are arable. About 17% of the country’s land area is classified as croplands and 7% as permanent pastures. In 1994-1996, per capita arable land in the country was 900 square metres. This declined from 1,200 square metres in the 1971-1981 periods. In Indonesia, about 35 million of the 184 million population in 1990 were in agriculture, constituting less than half (48.5%) of the economically active population in the country. In terms of labour force, agriculture represented 57% of the total. Nonetheless, this had declined by 7 percentage points compared with 1970 data. Consistent with this was the significant drop (28 percentage points) in agriculture value added from 45% in 1970 to only 17% in 1990 (Bravo, 2001).

Poverty incidence in terms of the proportion of population living with less than USD 1/day was 14.5% in Indonesia for the period 1981-1995 (World Bank, 1998). Considering the national poverty line, it was a little higher at 15.1% in 1990. Poverty incidence in the urban areas (16.8%) was slightly higher than in the rural areas (14.3%). Per capita GNP in Indonesia was USD 980 in 1995. There was considerable income inequality in the country, the highest 20% of the population enjoying 41% of the resources, while the lowest rung obtained only 9% (World Bank, 1998).

For Indonesian people, land is a gift from God, so the relation of the people of Indonesia and the land is an eternal relationship in which welfare; prosperity, justness, sustainability and harmony of life are settled (Country Report, 2006). That basic relation is guaranteed and protected in Indonesian Constitutions of 1945, as stated in Article 27 Line (2): All citizens have the right to employment and adequate living for human; Article 28 H line (4): All citizens have the right to personal property and that right could not arbitrarily taken by others; Article 33 stating that (1) Economic matters is structured as common corporation based on family atmosphere (2) Production sectors important to the country, and cover peoples’ livings is authorized by the state. (3) Earth, water and natural resources therein authorized by the state and mostly utilized for people’s prosperity (Country Report, 2006).

The basic relation to welfare and social evenhandedness for Indonesian people urged the Country/State, as the organization of authority of the Indonesian citizens to set arrangement for it. Specifically Article 33 Line (3) of the Constitution of 1945 brought the basic authority as stated in the National Law of Land. Law No. 5 of 1960 about Basic Agrarian Law (UUPA) in Article 2 Line (2) that a Country has the right to:

1. Arrange and administer the allotment, utilization, provisions and maintenance of earth, water and space;

2. Determine and arrange law relations among people and earth, water and space;

3. Determine and arrange law relations among people and law actions concerning earth, water, and space

The right is included in many policies and legislation of land matters. The commencement of the rights should refer to the four (4) principles namely:

Firstly, land matters give real contribution to improve peoples’ welfare; essentially land matters contribute to the new resources to prosperity of Indonesia; secondly, land matters contribute and give real function to create evenhanded common living structures, especially in relation with land authority and ownership; thirdly, land matters give real contribution to guarantee the living sustainability of nation, state and community. Fourthly, land matters give contribution to create the living structure of community, state and nation to minimize issues, problems, conflict and disputes of land matters of the community and Indonesian Country (Country Report, 2006).

The national development nowadays aimed at setting up employment and poverty alleviation, which are the strong foundation to improve community welfare for social evenhandedness. The principles of evenhandedness in the community developed through process of fundamental right fulfillment as guaranteed in the Constitution. Almost all of the fundamental rights directly and indirectly related to land and land matters (Country Report, 2006).

There are two main periods of land policy in Indonesia, Dutch colonial era and Indonesia government era (Hidayat, 2005). Indonesia was more than 350 years under the Dutch colonial government. Straightening land matters was more aimed towards the interests of the colonial government. Land laws became a dualism, i.e. Western Land Laws and Traditional Land Laws. Before the first land law 1870 enacted by the Dutch Colonization Government, land did not belong to the individual, but to the monarch. People had the rights to cultivate and to use the land for dwelling therefore they paid a compensation fee to the monarchy (Rajagukguk, 1995). However, land, especially in the remote areas that were not far from the influence of the monarchy was administered and managed by customary people. Customary people managed their land with their owned customs. Local community usually appointed their leader and he/she was responsible to manage the land for the needs of community.

In the early 17th century, the Dutch colonial government conquered some parts of Indonesia and ceased the monarchy system. The conquered lands were given to the European and Chinese people for mass plantation and mining with long lease period – up to 75 years (Rajagukguk 1995). The remained hinterlands were managed and organised by the customary communities. In the late 18th century, the Dutch colonial administration enacted the Agrarian law and declared that all unused and unoccupied lands belonged to the state (Agrarische Wet 1870) (Daryono, 2004). This policy created uncertainty for the status of customary lands which most of them were unoccupied because they were usually used as reserved properties. Customary people believed that their lands served not only for settlements but also for their survival in the future. The Dutch government created massive plantations and mining that occupied the customary lands and these policies produced hidden conflict for centuries. The customary people were continuously struggling to fight them in war against the Dutch colonial government.

When the Dutch Colonial period ended to be replaced by the Japan colonization, there was no such land law enacted at that time and customary people reoccupied their customary land. After Indonesian independence 1945, Land Law Amendment 1960 was established. The Land Law 1960 also considered as a fundamental land reform in Indonesia. However its implementation created conflict and discrepancy especially in the field of customary land tenure system (Daryono, 2004). State has continuously exploited customary lands through mining and logging companies and threatened the life quality of customary people. Customary land disputes have commenced and become major issues since the NGOs’ advocacy and the increased awareness on the existence of customary land.

Indonesia government era started since the independence of Indonesia 1945. The first government era is now known as the Old Order headed by Soekarno, the government started from the independence day of Indonesia until 1965, and during his government The Basic Agrarian Law 1960 was enacted. Basic Agrarian Law (BAL) was mostly adopted from the western law, attempted to unify many different customary land tenures in Indonesia. However this law has even created dualism on its implementation because the customary land tenure still carries on within its own traditional system (Benda, 1981), while the urban areas is enforced with the state land law. The new Basic Agrarian Law 1960 bears the western concept of private ownership that is different from the customary land tenure based on communal land ownership (Hooker, 1975) therefore most customary land ownerships encounter legal validity during the conversion process

This problem has created discrepancy in customary land tenure and thus leaded to uncertainty, inconsistent and unjust in dealing with customary land acquisition (Haverfield 1999). Customary land disputes associated with local communities claim to the state and multi national companies land acquisition upon the use of adat land (tanah ulayat) and has proven to be juridical difficult and politically delicate (Lucas, 1992; Haverfield, 1999).

In the new order government era 1966 to 1997, the government was supported by military forces that systematically diminished the existence of the communal lands. Even though the customary land rights were acknowledged and used as a base of Agrarian Law by legislation, but state, as the highest authority above all had systematically exercised their power to take over the customary lands. Many local communities struggled to fight the central government policies; however, the repressive method employed on these occasions covered up and ceased any customary land conflicts (Lucas 1992). State often exercised their power to abolish any attempts to uphold customary land rights. The attempt to incorporate customary land tenure into Indonesian (modern) land tenure system is merely government rhetoric (Haverfield, 1999; Abdurrahman, 1990).

The challenge by local communities has become more prominent with the increasing support from the non-governmental organizations (NGOs) concerning the existence of communal (traditional) land rights. Furthermore, major customary land dispute involves government or giant private/ multi national companies and local community has become a major issue and produced important progress in developing alternative dispute resolution methods. Alternative dispute resolution (ADR) has been favourably being used in resolving customary land disputes because litigation or formal judicial process faced legislative barriers, such as unjust legislation, unfair trial and excessive power of state. However the limited knowledge, skills and experts on ADR have become obstacles in achieving satisfactory results.

Begun in 1970, NGO has started to advocate customary land dispute by using ADR. Negotiation and mediation were conducted; however these methods rarely produced satisfactory results. Imbalance power between companies or state and local communities or NGO leaded to unfavourable climate of negotiation and mediation. State and giant multi national companies also seemed lack of good faith to resolve dispute. They were favour to negotiate as merely a lip service in order to be perceived as generous toward customary people. This might also be on purpose to obtain positive image from the international funding agencies or international communities. This paper will discuss the issues, progress and difficulties dealing with implementation of ADR in customary land dispute and attempt to give suggestion on the development of ADR method especially in resolving customary land dispute.

B. Data and Methodology

This dissertation is written without doing research. The data that is used in this dissertation are taken from several sources; some of them are taken from the books, and some from the internet. The methodology that is used in this thesis is mainly based on literature studies, because of the limitation of time and place. The sources that I have used in this dissertation are taken from the La Sapienza Library, Food and Agriculture (FAO) Library, FAO online library and some internet websites.

C. Theoretical Background

Following initial enthusiasm in the post-war period, land reform fell out of favour with donors from the early 1970s. Nonetheless, sporadic efforts to redistribute land continued: Ethiopia in 1975, Indonesia 1960, Zimbabwe in 1980 and a renewed commitment to land reform in the Philippines in 1988. These reforms stemmed from shifts in the domestic balance of power between landowners and landless workers and peasants, which were quite independent of donor policies. In the 1990s, the collectivization and privatization in the former socialist economies have provided a new dimension to land reform; so too has majority rule in South Africa, where the racially-skewed ownership of land is under challenge and where market-based measures to achieve land redistribution in favour of blacks were being tried. In the Philippines non-market policies are being supported by donors, now that the Cold War is over. (Adam, 1995)

1. What is land reform?

Due to differences in land types, farming methods, the history of land acquisition, general social and economic conditions and political aims, the definition of land reform is not easy. Yet definition is important because some supposed land reform policies are not in fact intended to change the distribution of land ownership and rural power (Adam, 1995). Land reform is a social change that affects the lives of farm people in the countries called ‘underdeveloped’. It is also an economic change that has an affect in countries that still are mainly based on agricultural. It is some times claimed that it is necessary for development of these countries but this is controversial. As a subject its scope is wide, because these countries differ in their land systems, methods of farming, pressure of population, general economic levels, and rates of growth. Because of the difficulties to bring experiences together and to find elements that are common to countries as diverse as Egypt and Cuba, India and Brasil, Iraq and Bolivia. So at the outset a definition is needed which covers them all (Warriner, 1969).

In the traditional and generally accepted sense of term, land reform means the redistribution of property right in land for the benefit of small farmers and agricultural labours. This is a narrow definition; it reduces land reform to its simplest element, common to all reform policies in whatever conditions they may be carried out. There are other definitions, particular the very broad definition by which land reform is understood to mean any improvement in the institution of land tenure or agricultural organization. This definition originated in the United States. The object of using it is to widen the conception of reform policy, in order to emphasize that the government which undertake land reform should not confine their policies only to redistribution of property or right in land, but should also undertake other measures, such as the improvement of the conditions of tenancy, agricultural credit, co-operative organization, agricultural education, and advisory service (Warrniner, 1969; Cohen, 1978). As a prescription for action it is found that some governments have even succeeded in putting practice.

In this dissertation ‘land reform’ and ‘agrarian reform’ are treated as synonymous (Warrniner, 1969), so these both terms will often be used interchangeably (Adams, 1995). Agrarian reform, a construct of the Cold War to counter ‘communist’ land reform, embraces improvement in both land tenure and agrarian organization. Its policy prescriptions urged governments to go beyond distribution: they should also support other rural development measures, such as the improvement of farm credit, cooperatives for farm-input supply and marketing, and extension services to facilitate the productive use of land reallocated. Whilst conceptually sound, the danger with these wider prescriptions is that they may discourage governments from doing anything until they can do everything (Adam, 1995).

Thus, land reform pertains to the remodelling of tenure rights and the redistribution of land, in directions consistent with the political imperatives underlying the reform. Those favouring revolutionary change advocate a drastic, planned, public intervention to redistribute land. Yet attempts at drastic redistribution of private land, in the face of strong opposition from landed interests (and in some cases related budgetary impediments), may distract from more feasible evolutionary policies aimed at improving access and security of tenure for small farmers under alternative forms of individual and communal tenure, which do not involve expropriation and compensation (Adam, 1995).

The economics of agrarian reform should be concerned with studying how the means affected the aims. Ideally, such a study should end with a benefit-cost analysis for each reform measure, as well as combinations of complementary measures. The information gathered in this way could then be used in formulating efficient agrarian reform programmes (Cohen, 1978).

Particular agrarian reform measures are seldom taken in isolation from each other. Although land reform consists mainly of land redistribution, it is often accompanied by, or supplemented in time by, other measures of productivity-promotion, credit and taxes. The mixture of reform instrument makes the systematic study of the observed reality extremely difficult. In these circumstances it is necessary to study in a hypothetical manner the effects of each measure separately. Only at a letter stage, and with the use of quantified models, will it be possible to integrate the combined effects of various measures (Cohen, 1978). It is clear too that we know more of the economic effects of certain reform measures than others. In this regard, the discussion which follows cannot be thorough, though it can direct attention to unexplored areas.

2. Land reform measures

There is a wide variation in the objectives, circumstances and conduct of land reform. Just how extensively the state should intervene has long been the subject of debate by welfare economists. Economic arguments favouring land redistribution focus on the diseconomies of large-scale enterprises and on the need to increase returns to land. However, decisions on whether to proceed with land reform are essentially political. When growing landlessness, chronic indebtedness, and eviction of tenants threaten stability, the state has often intervened to regulate ownership rights, sometimes with the tacit agreement of landowners seeking to prevent land invasions (Adam, 1995).

a. Types of land reform intervention

Four principal types of intervention (Adam, 1995) by the state in the operation of the land market can be distinguished:

1.) Land tenure reform designed to adjust or correct the reciprocal property rights between proprietors, in response to changing economic needs (e.g. the establishment of statutory committees or land boards to organize and supervise the use of common rights and other interests; the conversion of more informal tenancy into formal property rights; tenancy reform to adjust the terms of contract between landlord and tenant).

2.) External inducements or 'market-based' incentives offered by government for social and economic reasons and leading to the restructuring of existing property rights or the creation of new ones, e.g. the distribution of public lands; state expenditure on land reclamation and subsequent allotment as private property; state sponsored credits channelled by a land bank through cooperatives; support to institutions to administer the necessary land acquisition and distribution mechanisms.

3.) External controls or prohibitions imposed by law on property rights (i.e. non-market measures), for instance: nationalisation and collectivisation; restitution; redistribution policies involving expropriation of land (with or without compensation) on grounds of excessive size, under-utilisation, ownership by absentee landlords and/or foreigners. By contrast, gradual redistribution policies operate e.g. through death duties. Other external controls can act against redistribution, e.g. laws preventing land fragmentation below certain minima

Finally, confirmation of title to verify and secure land titles to those who have already a demonstrable claim reduces doubt and contention and so sets the foundations for development.

b. Non-market vs. market-based land reform

Economic reform programmes have generated increasing interest in so-called 'market-based' land reforms. However, in countries where tenants have had to compensate landowners at near-market prices, productivity gains have been modest. This is because the price of land includes a premium, over and above the capitalized value of agricultural profits, on account of the preferential access that land ownership provides to credit markets, via its collateral value (Binswanger, et. al., 1993). Once a poor farmer is provided with credit to buy land at the market price, s/he cannot repay out of farm profits alone. Thus a free land market alone will not transfer land to smaller and poorer farmers, without grant financing in addition to, or instead of, credit. Given the budgetary constraints facing governments, settlement subsidies are often insufficient to place the rural poor on the first rung of the property-owning ladder. In these situations, laws designed to protect tenants (i.e. improved leasehold contract) can fall under the rubric of market-based land reform (Adam, 1995).

3. Approaches to land reform

In this century, redistributive land reform has taken different forms and met with varying success in terms of coverage and impact on productivity and income. Even within the following typology some of these differences may be masked.

'Land for the tiller' in Asia and the Middle East. In the restructuring which followed World War II, a major objective of land reform was to break up feudal estates and prevent the advance of communist revolution. Reforms in East Asia have been comprehensive, creating a class of independent property-owning peasants and alleviating poverty and landlessness. However, the contexts have been highly specific, thereby limiting replicable attempts (Hayami, et al., 1990). Thus, in Japan, land reform was enforced by US occupation forces as a mean of breaking the power of large landowners, pillars of the militaristic class. Resident landlords were entitled to retain only about one hectare. The reform in Korea was carried out under the threat of communist aggressions from the north of the country. In Taiwan, land reform was imposed by the Nationalist Government exiled from mainland China and therefore alienated from indigenous landowners. Also important for success in Taiwan were accurate land tenure data and the non-indigenous bureaucracy that had accompanied Chiang Kai-shek (Adam, 1995).

In East Asia, land reform usually entailed the transfer of rights to tenants without breaking-up operational holdings. Reforms covering landlord tenancies in the Middle East (e.g. Iran, Egypt and Iraq) and India (e.g. Kerala State) followed a similar pattern. However, with the possible exception of Egypt under Nasser, they were less effective due to stiff opposition from influential landowners. Attempts to implement land-for-the-tiller reforms in the Philippines met with mixed results for the same reasons

Landlessness is a cause of social and political instability. In this century the grievances of landless agriculturalists have played a major role to in the revolutionary upheavals in Mexico, Russia, Spain, China, Vietnam, Cuba, Bolivia, Ethiopia, and Nicaragua. Tenant and agriculture labourers, desperate of land of their own, currently provide rank-and-file support for ongoing insurgencies in such setting as El Salvador (where land reform, although significant, is still incomplete) and the Philippines (Prosterman, et. al., 1990).

4. Economic Dimensions of land

In Indonesia, there are different systems of land rights throughout the country. Historically, Indonesia has two main sorts of land systems before a unified system was issued through the Basic Agrarian law of 1960. Those two types are as follows; first, the traditional adat rights where land can be transferred from one land owner to another person based upon local adat or cultural values operating in the society, without using official land certificates; and second, the Westernized system of written land titles and land regulations issued by the Dutch.

Considering the use of land in Indonesia, we find five economic features: first, the significant role of agricultural land for economic activities; second, two types of cultivation -- the extensive swidden type found in outer islands such as Kalimantan, Papua, Sumatra and Sulawesi, and intensive cultivation as practiced in Java and Bali; third, the existence of many small land holders who produce plantation crops, rice and other crops known and cultivated by farmers; fourth, land for large landholdings; fifth, the agricultural sector, agricultural policy and planning in Indonesia (Hidayat, 2005).

5. Agrarian Politics

The discourse around the acquisition of land for public interest is indeed definitely associated with the agrarian politics adopted by the ruling regime. At the end of Soekarno's rule, his agrarian politics were dominated by an interventionist model of state power for peasant farmers (land for the tiller), based on Agrarian Law No. 5 of 1960 and its subsidiary regulations on the implementation of land reform. In Soekarno's rhetoric, land reform was an unconditional part of the Indonesian revolution. In the era of the New Order administration, economic growth was the river of agrarian politics, land reform was considered taboo, and the rhetoric was "land for development". Two types of agrarian politics (Bravo, 2001) were attempted.

First, land acquisition via the "intervention of state power". The result was that too many cases of land dispossession were found in rural and hinterland areas as a result of the operations of forestry, mining, and plantation companies; while in the villages and cities, land owners were displaced for the sake of "development projects", for example the development of roads, dams, electricity networks, and industrial zones. In this era, anyone who did not want to surrender their land for "development" was branded "antidevelopment". Whoever was brave enough to resist development projects would be accused of undermining the government, as well as various other accusations.

Second, for the last 10 years of the New Order era, bureaucratic-authoritarian approaches of this type were combined with the acquisition of land via market mechanisms that were introduced by the World Bank and its supporters under the “Land Administration Project”.

D. Purpose of Study

The objective of this dissertation is to analyze and describe the land reform policy during new order government. In line with this objective, the aims of this dissertation are;

a. To know the history of land reform during the Dutch period

b. To know the policy of land reform during the Old Order headed by Soekarno

c. To know the history of the Basic Agrarian Law 1960 as the first law since the independence of Indonesia

d. To know the implementation of land reform during the era of BAL between 1960 until 1965

e. To understand the land reform policy of the New Order government

f. To know what the government did during this period

g. To see the cases of land reform during this government era.

h. To know the impact of resettlement programmes to land dispute

i. To know the forest crisis and the effect of mining in protected areas.

j. To know the role of NGOs in helping land disputes

The study of this dissertation is mainly focused to complete the master course. The information and description about land reform in this dissertation might be to enrich the literature study that focused land reform policies during Indonesia’s New Order government.

E. Outline of Study

This dissertation contains several chapters which are;

Chapter I, Introduction, this chapter explains the background which starts from the general description of Indonesia, then the description about the history of Indonesia’s land reform which has begun from the colonial era. This is continued by the Old Order that was headed by Soekarno which enacted two laws that are relevant with land reform and after the New Order era which begun in 1965, and was headed by Soeharto where the land reform has not been implemented at all. Then the methodology, the purpose of study that explains the objectives of study, and then this chapter is completed by some theoretical backgrounds, and the lastly is the outline of the dissertation.

Chapter II, History of Land Reform in Indonesia, this chapter explains the history of land reform which started from the land policy in Dutch period, this will explain the policies enacted during the colonial era, then followed by an explanation on land reform that is referred to the Basic Agrarian Law 1960, this law is the first law that was enacted in Indonesia that contains western law and adat (customary). Then the implementation of land reform from the beginning of 1961 until the end of 1965, where land reform had been implemented radically and systematically that was sponsored by PKI and BTI. Then peasant mobilization for land reform in Indonesia, where the land reform issue rose in this period and the BTI as a peasant organization under the bow of PKI has an important role during this period. The last is the consequences of the abortive coup of 1st October, where after this period land reform was not again implemented at all.

Chapter III, Land Reform under the New Order Government, this chapter explains the land reform policy during Indonesia’s New Order government. Where after the power was taken by Soeharto the land reform laws were not again implemented. This is followed by the explanation of land tenure relations, which explain about agrarian reform legislation and Indonesia, reluctant reformer and then mentions the cases of land reform in Indonesia which is divided in two cases the first is Indonesia’s major land disputes during new order regime, this part explains some cases of land reform during this period of regime. And also the forest crisis and mining in protected forest. Then the resettlement program which caused land dispute, and the last is the role of NGOs.

Chapter IV, summary and conclusion, this chapter would summaries and conclude all findings and analysis conducted in the dissertation.

CHAPTER II THE HISTORY OF LAND REFORM IN INDONESIA

A. History of Land Reform

Land ownership and control have been major issues in land reform policies in Indonesia over the life of several governments. Land has been a political tool for those in power. From a historical point of view, from the pre- colonial period until the New Order era (Orde Baru), control of the land by the government has always put farmers into a position of sub-ordinance and dependence (Syahyuti, 2001). This happened because the government has the control rights over the land, while the farmers have user rights only. The social structure in rural areas has changed to follow changes in the land ownership pattern, because for an agrarian community, land is the main livelihood resource.

Dealing with land policy in Indonesia, which covers 2 (two) main periods: the Dutch administrative and the Indonesian government’s era respectively.

1. Land policy in the Dutch period

Under the Dutch administrative period, there was a terminology called Domein Verklaring (the Dutch controlled territory). The domein verklaring was used for land or territory that being put under the control of the Dutch ruler. In the domein verklaring' scheme, the basic principle of power or authority was the colonial ruler's rights to control land in its territory (Indonesia). Authority, in this sense, was in the hands of the Dutch, and only limited to the land/area without landowners or landholders' certificate and that claimed by individuals or corporations (Hidayat, 2005).

Based on this concept (domein verklaring), the Dutch used their power to exploit land and natural resources in Indonesia. Through domein verklaring, there were rights such as eigendom (the need over land) and erfpach (the right to exploit land), concession rights and hired land rights. Erfpach in its latest development changed to become one of the Dutch tools to attract many foreign investors. By using erfpach scheme, foreign investors got various opportunities to exploit land as well. This scheme differs from the cultuurstelsel (forced cultivation) system that was misused by the Dutch administration for its own benefits, because corporations at the time did not have full rights on agricultural or plantation estates as the Dutch government did (Hidayat, 2005).

In 9 April 1870, the Dutch Ministry for occupied territory, Engelbertus de Waal, issued the Agrarische Wet (Agrarian Law). The agrarian law that was later registered on Indische Staatblad No. 55 of 1870 (Lembaran Negara) benefited the Dutch most, rather than providing room for the Indonesians to use land for their needs. After the agrarian law operated for ninety years, eventually in 1960 under the Soekarno regime he issued a new agrarian law, thinking that the new law took the side of the public interest. Soekarno recognized that those individuals and corporations who owned a lot of capital could control more land. In so doing, the marginal groups (Soekarno oftenly called them as Marhaen) would experience a severe life condition, because they were simply depending on capital owners who determined their future (Hidayat, 2005).

Therefore, through the People Representative Council (Dewan Perwakilan Rakyat), Soekarno proposed a new law that more focused on building social justice for the Indonesian people. The result was, in 1960 Soekarno's regime issued Law No. 5 of 1960 which was later known as Undang-Undang Pokok Agraria (Basic Agrarian Law/BAL). The BAL defined ownership of minimal and maximal land, including the state rights over land in its territory/area. This policy then became called the land reform program, which was issued by the Indonesian experts themselves to replace the Agrarische Wet introduced in 1879 by the Dutch government. The BAL of 1960 consisted of the acknowledgment of the indigenous rights over land/customary land where they occupied and cultivated crops or plantations. The sort of recognition based on adat law that was existing and operating within the society. This meant that even though an adat community (masyarakat adat) possessed land without having land certificate officially, but its land ownership was still recognized as legal. In the early years after the BAL was introduced many Indonesians showed different attitudes towards Basic Agrarian Laws, as they viewed it as a form of socialism in principle, the consequences was the limited acces to individual right (Harsono, 1961).

With adat in this concept it means "The whole body of teaching and their observance which governs the way of life of the Indonesian people and which has emerged from the people's conception of man and world" (Koesno, 1971). The question then was which group(s) of people that could be classified as adat community (masyarakat adat). According to Buhl (1994) features to identify an adat community are a) they have close attachment to ancestral territories and to the national resources in the areas they live, b) their self-identification is recognized by others as members of a distinct cultural group, and c) they have their own indigenous language, subsistence, customs and political institutions which are often different from other groups. Besides the concept of adat community, in Indonesia we find another term called masyarakat hukum adat or adat law community (see. Ter Haar, 1948). Officially, this terminology is based on the BAL of 1960 chapter 2 and 3, in Basic Forestry Law No. 5 of 1967 and in the government regulation of 1970 No. 5 chapter 6 (Hidayat, 2005).

When Soeharto came to power in 1966, he either did not use the BAL of 1960 or refused it as a reference in handling land issues. This was proved in 1967 when the New Order regime issued some contradictory laws such as: the Basic Law of Forestry No. 5 of 1967 (Undang- Undang Pokok Kehutanan), Law of Forest Concession Rights No. 21 of 1970 (Undang-Undang Hak Pengusahaan Hutan/HPH). The Law No. 21 allows HPH owners to exploit forests and sell their products, without having responsibility to let the local people who live in and around exploited forests to collect forest products. People surrounding the HPH areas must ask permission from the security apparatus even to enter the forest areas, which very often causes conflicts in terms of the rights over land and forest, as often happens in Kalimantan Timur, Jambi and Bengkulu (Hidayat, 2005).

Issue of land appropriation in Indonesia and the increasing commercialization of land reflect a number of trades since the early of Soeharto's regime. Land reform and land redistribution is no longer the priority as it was in the 1960s. The New Order government focused on the importance of increasing agricultural production, which has created land more productive and increased its value to landowners. With increasing foreign investment over time, agricultural land has become useful for joint venture projects. In addition, the roles of local land speculators also increase in numbers by buying land from people and then resell it with a higher price. Absentee land ownership is increasing as well, with good agricultural land being bought up by the urban middle class, as a form of investment and saving (Lucas, 1990).

Tourism, footwear and garment industries are only three areas of foreign investments all require land in close proximity, and the big cities for hotels and factories. Land also needed for building government offices. In urban areas, conglomerates have expanded their business by buying land for office blocks, shopping centres and hotels. Furthermore, in rural areas conglomerates have increased their control for HPH and other big agricultural projects (Hidayat, 2005).

From the above description of land, the realization of land policy in Indonesia is a complex issue. There reason is, some government institutions are involving in their policy, but the decision making to issue land permits is at the hand of the National Land Body (Badan Pertanahan Nasional/BPN). This complex issue occurs legally has its relation with the following matters. First, after BAL of 1960 was issued, the number of laws, regulations and instructions made it difficult to find legal solutions for land disputes. Second, institutions involved like the Legal Aid Body (Lembaga bantuan Hukum/LBH) faced difficulty in maintaining public awareness of new legislation being enacted at various levels. Government, on one hand, must defend individual rights over land, but simultaneously the government is also issuing land permits for various private and government projects that need more land (Hidayat, 2005).

2. The Basic Agrarian Law of 1960

This was in government era, where of this law borne. According to the Basic Agrarian Law (BAL) of 1960, the state or government on behalf of its citizens was responsible for the management of land, water, air and all natural resources. It was hoped that this policy could bring prosperity and social justice for all the Indonesian people (GBHN 1998). In BAL, communal property rights (hak pemilikan adat) were recognized as far as they did not in conflict with state's laws, and in addition BAL also provided some dimensions of rights for land, building, ownership and land exploitation. BAL which was mostly adopted from Western Law, attempted to unify many different customary land tenures in Indonesia (Daryono, 2004).

Referring to Articles 18 of BAL 1960 there was stated that "For the public interest (kepentingan umum); the state and also the interest of the people land rights cannot be ignored. This should be properly done with the payment of adequate compensation in accordance with existing regulations" (Harsono, 1971). Based on the above explanation of the BAL 1960, we find one striking problem on the regulation for implementing the act, with the exception of the 1960 law on sharecropping and land reform which was never carried out. Consequently, on one hand, the concepts that deal with public interest were never spelled out, and how to provide adequate compensation for landowners whose land has been taken away by the government was not also defined (Hidayat, 2005).

One vital aspect of BAL that gave the state right to recognize people's land rights was all landholders should register their land, and asked for their land certificates from the Agrarian Office. Without having the official land certificate from the government, consequently the land status was insecure or considered absentee. Land in this status was easier to be seized by government or other parties. Although landowners possessed land certificates, because the state has a great power to seize the land needed for public interests (as it is very often argued), that land would lose it status from individual or communal properties to become government controlled land. In BAL of 1960, people's adat rights are officially recognized. In contrast, as we find in some New Order regime's land policies between 1967-1979, adat land rights were not clearly spelled out. Those laws are: Law of Forestry (Undang- Undang Kehutanan) No. 5 of 1967, Mining Law (Undang-Undang Pertambangan) No. 11 of 1967 and Law No. 5 of 1979 about Village Administration (Pemerintahan Desa) (Hidayat, 2005).

From the above explanations, it is clear that the BAL of 1960 provided much room for the state not only to manage land distribution, the need and allotment of land for people, but also administrate and establish inter-relations of regulations/laws and their rights over land as well. To get an overall understanding about the essence of the BAL of 1960, here there are four important points (Hidayat, 2005). First, BAL of 1960 provided the state with rights to control all the Indonesian national resources as it written in the 1945 Indonesian Constitution, Chapter 33, and Article 3. The state controlled right was not the right to possess land as it stated under the Dutch Colonial laws (domein verklaring), but the state right was similar with communal land rights or customary land rights (hak ulayat) in adat law (cf. Konvensi ILO 169).

Secondly, the Indonesian state had the right to refuse foreigners to have land in Indonesia. Rights over land were only provided for Indonesian citizens without gender discrimination. Foreigners did not have rights or access to buy or own land. This policy was for protecting the Indonesian people, so foreigners could not exploit the own land and its resources, and locals would not become labourers in a land controlled by foreigners.

Third, the state had the rights to arrange the size of land blocks. The size of land blocks and its ownership were limited. This policy was taken to avoid the forming of new landlords who controlled an excessive land through pawning or renting systems. An assumption here to support a frame of thinking was that there was a correlation between low productivity and possessing small land holdings by the farmers. On the top of that, farmers or people who relied heavily on land would not be able to improve their income or standard of living, because they had no land and their production was under control of the landowners. Income discrepancies were closely-related with unjust conditions (ketidakadilan), and unjust conditions facing by the rural people would bring its negative impacts for the nation as a whole. Fourth, the state was obligated to promote national productivity. Thus, landowners were encouraged to exploit their land more actively (BAL, chapter 10), so this would benefit themselves rather than possessing land and labour themselves as labourers. The BAL forbids landowners to neglect their land, or opened/cleared a situation where the landless were exploited by the landowners.

BAL of 1960 had its own particular purposes, the allotment of land for people, to carry out land for the tiller (penggarap) to avoid land speculation (spekulan tanah) practices that would hurt landless people. Furthermore, BAL of 1960 also strengthened and widened land ownership for all landowners who control unlimited land ownership (Mahendra, 1997).

B. The Implementation of Land Reform from the Beginning of 1961 until the end 1965.

Three activities marked the execution of the land reform regulations from the beginning of 1961 to the end of 1965: registration of the land, determination of surplus and its distribution to as many landless peasants as possible, and implementation of the 1960 Law on Sharecropping Agreements. Land registration was provided for in Government Regulation No.10 of 1961 under Article 19 of the Basic Agrarian Law. Although registration is an indispensable factor in any efficient execution of land reform, it also often introduces an obstructive element of bureaucracy and may easily become a means for falsification and fraud (Utrecht, 1969).

The task of local execution of the land reform, the assessment and distribution of land surplus, was placed in the hands of land reform committees formed according to Presidential Decree No. 131 of 1961. The committees were arranged in a hierarchical order: the central committee under the supreme guidance of the President, the provincial committees under the chairmanship of the respective Governors. The regency committees under the respective Regents (bupati), the committees in the kecamatan under the camat and, finally, the committees in the village under the guidance of the village administration. Of all these committees, those of the Regencies were the most important since they had to do the actual work, such as survey and measuring of the land, the assessment of land surplus, determination of the compensation to he paid to landowners, composition of lists of persons eligible for allotments, and settlement of disputes. The decree prescribed that representatives of peasants’ organisations were to he included in the committees. The procedures to be followed in redistributing the land and in assessing and paying the indemnifications were laid down in Government Regulation No. 4 of 1961 (Utrecht, 1969).

The land reform committees started their work on 1 September 1961. It took one year of preparatory work before the actual activities of the reform could be started on 24 September 1962, the second anniversary of the Basic Agrarian Law. The redistribution of land was to he carried out in two stages. Java, Madura, Bali and Nusa Tenggara Barat (Lombok and Sumhawa) were made the region for stage I, in which the redistribution of land surplus and of the so-called tanah absentee (land of persons who have their domicile elsewhere), together with the distribution of land of former native kingdoms (tanah swapradja) and state demesne were to be concluded by the end of 1963 or early in 1964 at the latest. This was to be followed by stage II, covering the region of Sumatra, Kalimantan, Sulawesi and the rest of Indonesian territory. According to the first National Plan for General Development, which was approved of by the MPRS (Provincial People’s Congress) in December 1960, the whole process of redistribution should be finished in 3 to 5 years (Utrecht, 1969).

Since in 1961 no exact figures were as yet available-the registration of land had only just got under way-the central committee estimated the total surface of the land to be assigned for allotment at 966,150 ha (Menteri Negara, 1965). In the course of 1963 the regency committees were able to give the correct figures for all the land that should be distributed or redistributed in the region of stage I as a total amount of 337,445 ha (Menteri Negara, 1965). No official report has yet been issued for 1965 giving the figures of distributable land in the regions of stage II.

Closer examination of the agrarian legislation of 1960 reveals the extent to which both the legislation and the procedure for its execution rested on compromise. Much weight was given to the interests of the landowners. The maximum for permitted holdings were relatively high, and there were many loopholes for eluding the prohibitions on absenteeism and for keeping land surplus outside the range of the land reforms. Admittedly, in Java, Madura and Bali there had for a long time been few large holdings. But it would have been possible to create a land surplus twice as large by lowering the maxima for land allowed as a holding and by treating the nearly 56,000 absentees less leniently (Menteri Negara, 1959). From the outset it was to be expected that serious obstruction would be raised by the landowners with the support of conservative groups, and that they would avail themselves of the weak spots in the law. A report by the Agrarian Minister issued on January 1965 gave the following resume of the difficulties met by the executors of the land reform regulations up to the end of 1964:

  1. Deficiencies in the registration of land hampered investigations of the land surplus, and opened the way to abuses.
  2. Lack of understanding of the necessity and significance of land reform as an instrument of social change among wide sections of the people made it easier for landlords to obstruct the reforms.
  3. There was insufficient cooperation among the members of the committees, partly because other duties kept some of them from devoting their full attention to the tasks of the committees, and partly because many of the committee members themselves were interested in the failure of land reform; in many cases land surpluses were even officially kept outside the land reform regulations.
  4. The peasants' organisations. Which would have lent the strongest support, were prevented from playing a significant part on the committees?
  5. The peasants were still subject to strong psychological and economic pressure from the landowners which kept them from pushing for an efficient execution of land reform. It proved difficult to establish an order of priority in redistributing land either because many fields had no regular labourers or because, through changes in registration, the workers concerned had been listed as absentees. Such cases resulted in severe disputes between landowners and labourers or among the labourers themselves, which, in turn, often gave rise to quarrels among the various political organisations (Menteri Negara, 1965).

Even this list of complaints by the Agrarian Minister was not complete. Not only was there insufficient awareness of the value and necessity of land reform on the part of certain groups, but the government itself aroused suspicions among landowners that redistribution of land would, in fact, amount to no more than plain confiscation, land theft committed by the government. The government had promised that it would buy the land surplus a fair price and sell it again at the same price-with provision of credit-to new owners. But this promise was not kept, at least not in time. Understandably, many landowners came to resist the attempt of the government to have them cede their land surplus, and this resistance was often encouraged by interested political organisations. After some hesitation and after pressure was brought to hear upon it, the government finally proclaimed Emergency Law No. 3 of 1963 (later replaced by Law No. 6 of 1964) which now regulates the compensation to be paid to landowners. However, until February 1968, no compensation had been received by any of the former landowners, with the exception of a small payment made in the regency of Badung, Bali. Thus it is understandable, if not excusable, that after the abortive coup of 1 October 1965, a number of landowners tried-some of them successfully-to regain the fields that had been ceded by them earlier. On 19 February 1968, for the second time in the history of Indonesian land reform, indemnifications were paid when, in the pendopo of the Regent’s house at Krawang, West Java, 85 former landowners were recompensed to a total amount of 5 million rupiahs (Andangdjaja, 1968). Shortly after those payments were made in the regencies of Banyumas and Kediri and in Bali.

Undaunted by the landowners’ attitude, the peasants continued their struggle for land backed up by left-wing political organisations. The land reforms were a major element in the vehement political controversies that were a feature of the Indonesian scene between the years 1962 and 1965. The peasants were supported and in many cases even guided by the PKI, behind the back of the land reform committees. Although, as Basuki Gunawan rightly says, Indonesian land reform ‘has a nationalistic rather than a communist signature’ (Gunawan, 1968). the PKI supported land reform as an obvious manifestation of class struggle. The ideological propaganda of the PKI was able to exploit politically the manipulations of the landlords on the land reform committees. If, so the PKI argued, so much opposition is met from the counter-revolutionaries when an agrarian legislation is being carried out, which is only the product of a provisional and enforced compromise with the bourgeoisie, how much opposition would have been encountered had the DPA bill for the sistim penggarap been accepted? This was the gist of the propaganda spread by the PKI and the BTI to encourage the peasants, who were thus indoctrinated into the ‘dialectical way of thinking’. Since its successes in the elections of provincial and regency representative councils, it had been the PKI’s policy to win as large a mass following as possible. Apart from intensive ideological propaganda and vehement criticism of the slow pace and doubtful actions of the land reform committees, the communists made emphatic efforts to increase their influence on those committees. They demanded immediate ‘nasakomising’ of the committees, which meant that the committees were to he ‘purified from counter-revolutionary elements’ (Utrecht, 1969).

For the Nationalist Party (PNI) land reform carried difficulties, particularly in Central and East Java. When land reform was started, its leaders came mostly from the rising national, nonreligious bourgeoisie and from the ranks of higher civil servants, among whom the influence of the landowners and rich farmers was strong. This brought the PNI into conflict with those of its followers who were more interested in the success of land reform. By far the greater part of the peasants not belonging to religious organisations were petani members, most of them landless. The antagonism between the two wings of the party sharpened when, in the first half of 1964, a number of landless peasants and a number of landowners in Central and East Java and in Bali resorted to direct or ‘one-sided’ action (aksi sepihak), this effort was done by BTI, in order to speeded up the reform program (Huizer, 1999), sometimes leading to violence. Direct action took some of the following forms:

  1. A landowner learns that one of his labourers has on his own initiative or at the instigation of the BTI, requested the local land reform committee to assign to him the property rights over the stretch of land that he tills. Without waiting for the decision of the committee, the landowner tries to oust his dangerous labourer. The latter seeks help from the BTI if it was not behind him already. Then the landowner reports what is going on to the petani. The petani advises him to issue an ultimatum as to the date on which the labourer has to leave his field. But one morning, some days before the ultimatum is due, the landlord discovers on his field a crowd of 100 or more BTI members armed with sticks, hoes and sickles and working together. Off he hurries to the local hoard of petani and after some time he returns accompanied by a band of petani members as big as or bigger than the BTI crowd on his field and provided with all sorts of weapons as well. A battle is fought and victims fall under the knives and the hoes or by the bullets of army or police units who have meanwhile intervened.

  1. A labourer, thinking that as a sharecropper he has a right to the field that he has already applied for to the local land reform committee, without awaiting the decision of the committee, refuses to hand in a part of the harvest to the landowner. (Not infrequently this happened on the advice of the BTI). The landowner, supported by Petani, then tries to get rid of his labourer by intimidating him. A mass of BTI members comes to the labourer's assistance and a fight develops.

  1. A landowner does await the decision of the land reform committee concerning a dispute on a stretch of his land either because he is convinced that he will win the affair on objective, factual and legal grounds or because he feels assured of the support of some influential committee members who may have a party or a family relationship with him. Here again, the labourers, encouraged and supported by the BTI, frequently take matters into their own hands by mass occupation of the disputed field.

If one takes failure to await the decision of the committee as the criterion, direct action was liable to be resorted to by either side, and not, as was often said, only by the landless peasant. The organisation that sided with the party who had taken the initiative without awaiting the decision of the committee accused the opponent of having acted proactively (Asmus, 1964). This was often true, which clouded the issue still more.

The leaders of the PNI were caught between the antagonistic wings of the party. Formally the party supported land reform. The more progressive among the PNI leaders, in an effort to maintain the unity of the party, did their almost to achieve, within the circle of the party, a compromise between the interests of the landowners and the interests of the landless peasants. Another serious concern was to see to it that the peasants who had not yet joined any political organisation would not become members of the BTI and that petani members would not go over to the BTI. They endeavoured to bring landowner and landless peasant together under one nationalistic roof, employing for this purpose the slogans which were founded on Sukarno’s charismatic authority, such as ‘loyalty to Pancasila’ (particularly to its first pillar, belief in God) or ‘loyalty to Sukarno, the father of Marhaenism and the creator of Pancasila’ under whose supreme guidance land reform was being carried out (Utrecht, 1969).

However, the wave of direct action and violence in the first half of 1964 made it hardly possible to continue this internal policy of compromise. True, the PKI, too, was protecting a few landlords ‘for strategic reasons’ because they financed certain political activities or other activities from which the communist’s expected favourable political effects. But the number of ‘PKI landlords’ was much smaller than that of PNI-protected landlords. An increasing number of younger members and sympathism of the PNI and its mass organisations began more and more openly to stand up for the landless peasants, and here and there voiced cautious support for the ‘one-sided‘ actions. The leaders of the party, however, strongly condemned these actions and described them as ‘events impeding the Revolution’. Most of the richer farmers, who still exerted traditional land economic influence on their labourers, were naturally anticommunist. But so were many of the landless peasants who, however desperate their position might become, would never join the BTI. They remained ‘loyal to the landowner’, or rather, ‘loyal to the party’, the party they shared with their landlord, and ‘loyal to Pancasila’, which meant ‘loyal to God’! PNI indoctrination, which appealed to traditional and religious feelings, had been effective, and party discipline stood strong (Utrecht, 1969). The attempt to introduce socialist principles and reforms came up against strong traditional and religious ties.

The BTI also lost much sympathy because of its rude behaviour. Even Soekarno’s state message on 17 August 1964, in which between the lines he approved of the ‘one-sided‘actions, could not help the BTI very much. The communists who had stimulated them got the blame when the ‘one-sided‘actions got one of hand. The usual excuse of one-sided actions was the need ‘to correct the corrupt decisions of the land reform committees’. Such a correction was, indeed, badly needed, and was a major motive for the actions. But there were other motives. One of them was the sharecroppers’ protest against the slow pace of the execution of the Law on Sharecropping Contracts. Another motive was the aim of the PKI to gain the largest possible mass following; land reform suited them nicely as a way of making themselves useful to the people. They frequently employed short sighted tactics, purposely creating controversies to provide themselves with reasons to emerge in consequent fights as ‘the saviour of the small man’. They failed to exercise restraint, and in the end they got the reputation of being trouble makers (Gunawan, 1968).

There was, finally, a third and decisive motive for the one sided actions. The Nasakom -front, the imposed coalition of religious organisations, nationalists and communists, had become too great a constraint on the PKI. In order to satisfy the demands of its followers it found itself having to burst now and then from the narrow trammels of Nasakom. This led the PKI to act illegally in some places. In a rural district, for instance, it might happen that a landless peasant claimed a piece of land which he tilled for a landlord but to which he had no right as it could not qualify as laud surplus. In such a case the communists often encouraged the peasant to stick to his claim in spite of the fact that he had no legal grounds for doing so. In this manner they hoped to create a class struggle and to win a reputation of being the only true fighters for the proletariat. They were not concerned whether their provocative policy would strain further the precarious harmony of Nasakom. They felt sufficiently assured of the fact that they were well on their way to winning over Sukarno as a powerful ally-his State Address on 17 August 1964 could easily be interpreted in that direction -and they also relied upon the fact that the PNI had its own internal struggles to keep it busy (Mc.Veg, 1963).

It was not only the PKI that encouraged its members and sympathizer to act against the legal land reform regulations, sometimes with the intention of obstructing land reform, sometimes meaning to help land reform, depending on its own political interest. The PNI worked in a similar fashion. But the most formidable obstruction to land reform came from the religious organisations in Java, Lombok and Sumbawa. In the course of an investigation into the redistribution of land in Java it was found, for instance, that in the regencies of Demak and Pati, the law was evaded by arranging for the land surplus of hadist (persons who have fulfilled a pilgrimage to Mecca) and kiyai (religious teachers) to be donated to religious institutions, the wakap, through antedated acts of transfer. Thus the land in question was put under the management of a nadir, a manager acting in the name of a wakap, but in practice more often than not a puppet of the donor of the land, the haji or kiyai. The labourers on such land were relatively amenable to religious pressure (Utrecht, 1969).

By mid-1964 the government could no longer ignore the ‘one sided‘actions, particularly inopportune at the time of the confrontation against Malaysia. On 12 July 1964 the DPA members were summoned to a session at Bogor to make the first serious attempt to deal with the problem.” The outcome was Sukamo’s speech of 17 August 1964 in which he indirectly approved of the ‘one-sided’ actions, thus morally backing the PKI and BTI. Sukarno explained that it was only logical to side with the peasants, as everywhere in the world they formed, together with other labourers, the ‘pillars of the revolution’ (sokoguru revolusi). He ordered the Agrarian Minister to finish immediately and successfully-before the end of 1964 or mid-1965 at the latest-the redistribution of surplus land in Java, Madura and Bali, and within another year or two stages II in the other regions of Indonesia. The Minister of Justice was ordered to establish as soon as possible the land reform courts which had already been promised. Sukarno warned the land reform committees to put an end to their ‘incorrect practices’, lest the peasants take their own measures to assert their rights. Similarly the manipulations over sharecropping contracts should be stopped without delay.

Action followed promptly. On 31 October 1964, Law No. 21 of 1964 concerning the Land Reform Courts was put into operation and by the end of December 1964, the redistribution of surplus land in Java, Madura, Bali, Lombok, and Sumbawa had been come out, so that in the area of Stage I, redistribution could be said to have been substantially completed (Menteri Agraria, 1964).

On 14 January 1965 the Agrarian Minister reported the following results up to the end of 1964:

Stage I: surplus land 337,445 ha

Redistributed land 296,566 ha

Stage II: redistributed land 152,502 ha

It appears that from the beginning of the land reform program up to the end of 1964, about 450,000 ha of land were actually distributed or redistributed (Menteri Negara, 1968).

C. Peasant Mobilization for Land Reform in Indonesia

One of the most spectacular peasant mobilization in Asia was the Indonesian Peasant Front, (BTI, Barisan Tani Indonesia) created and directed by PKI (Indonesian Communist Party), after Aidit became its secretary-general 1953. The communists tried to arrive at a united front policy and to build up a mass organization, particularly among the peasants, following to some extent the Chinese grassroots mobilization model a general peaceful manner (Huizer, 1999).

In the first place, survivors of feudalism in Indonesia were denounced. Emphasis was given to the need peasants; taking as point of departure their most strongly felt demands and grievances. It was suggested that local organizations be created around such demands, adapted to each particular village or area. Party cadres were instructed to identify the most acute problems in each particular area or community. A policy of ‘’ three together’’ was followed, whereby PKI activists had to ‘’live together, eat together and work together’’ with the peasants. They also helped solve all kinds of practical, day-to-day problems, such as rent payment, etc. such ‘’small but successful’’ actions were seen by the PKI and BTI cadres as the best way to be accepted by and mobilize the peasantry. It was emphasized, however, that such action should be accompanied by stimulating among the peasants the awareness that the basic solution to their problems could come only with the end of their exploitation by landlords, and that this had to be achieved through organized struggle. Action that directly affected the relationship with the landowners was not to be under taken (Sison, 2005). However, until local-level organizations had gained enough strength. The demands for joint land rent agreements lowered interest rates on loans or lowered land rents could be brought up (Huizer, 1999).

It is surprising that the spread and development of BTI and its activities in java came about in a society still dominated by tradition and respect for harmony (rukun) and established leadership, although the first signs of a decline in customary relations were there. It was a big step to systematically undermine the hold of traditional wealthy leaders over and to bring the people to the point of opposing that leadership on crucial issues such as land tenure (Huizer, 1999).

It would be an exaggeration to say that clear-cut class struggle emerged, but there were certainly elements of one. By bringing up examples of existing but hidden grievances against those in power, people were made aware that the harmony in their villages was disappearing-or had not really existed. As cases of abuse and usury under the modernization process and increasing absentee ownership became known, peasants gained increasing awareness of being exploited. The BTI used this awareness as a means to organize the peasants as a’’ special interest’’ group (Huizer, 1999). Strong new local leadership was needed to rally the people against traditional elites in addition to mobilizing them tom oppose the deteriorating land tenure situation. Identification with the fate of poor peasants was initial step to gain courageous leaders brought together the javaness peasants in their struggle for improvement and change. Such leaders also took on the ‘’fatherly’’ role traditionally played by landlords and wealthy farmer among the peasants in their village. Once traditional patronage was undermined and new leaders enjoyed sufficient prestige, it was possible to compete successfully with old leaders in election for lurah (village-heads) and even higher positions in local government. In several areas, particularly in central java, particularly in central java, BTI and PKI leaders were thus gradually taking over official positions from the established local elite. In the process, the activist often used Javanese mythological elements and elements and spiritual practices that were cherished by the masses as the characteristics of the a just society (Adas, 1979). In this effort, the activist sought to gain the collaboration of the local dukuns (healers) and traditional wajang puppet players (Huizer, 1999).

In spite of the difficulties typically faced by organizers in highly traditional rural areas, the BTI was the most impressive of all the communist-oriented mass organizations in Indonesia. At the end of 1953 it counted several hundred thousand members, and 8, 5 million in September 1964. The growing strength of the communist and communist-oriented mass organizations provoked a strong response from the armed forces. A PKI Party Congress planned for 1959 was initially forbidden by army but was later allowed, due to support from Presiden Soekarno. However, the scheduled elections of 1959, which could have given the Communist Party a majority in parliament or made it the most influential party, were not held. Instead, presidential rule or ‘’guided democracy’’ or ‘’ Indonesia socialism that formulated maxism adjusted to Indonesia condition’ was initiated and President Soekarno tried too keep a balance between the army, the Communist Party and other forces (Weatherbee, 1967).

The bargaining position of the BTI as a mass organization was, however, strong enough too take up the land reform issue successfully at the national level and obtain the promulgation of a land reform law in 1960. According to this law, landowners who had more than the official ceiling of five hectares of irrigated paddy land had to make the surplus available for redistribution to the landless (Huizer, 1999).

But this reform was only slowly and inefficiently implemented, leading the BTI and PKI to step up their activities and became more militant, and risking the harmonious collaboration that existed at the national level between them and various other political forces. Ladejinsky (1977), who visited Indonesia in 1961 and 1963, complimented the Indonesia government for its legislation. But he severally criticized the slowly and ineffective implementation in a letter to the responsible minister, Dr. Sadjarwo, after having made some field trips. One problem was the very low price which owners received for surplus land, compared to the market value (Ladejinski, 1977), which created much resistance to land sales.

In order to speed up the reform programme, in 1963 Aidit endorsed a ‘’unilateral action movement’’ (gerakan aksi sepihak) of the peasants. The tactic most frequently used was occupation of the lands to which landless peasant were entitled under the law. By occupying certain parcels, the peasants involved indicated which lands were to be distributed (Sison, 2005). It is difficult to assess whether the ‘’unilateral action movement’’ was instigated by the BTI or PKI leadership or was a spontaneous responses by the peasants to doubtful practices and unilateral actions by landowners, such as distributing surplus land to their own relatives or eviction of possible claimants. While such actions by the landowners were an effort to avoid land distribution or prevent peasants from claiming their new rights, the unilateral actions of peasants were directed toward the initiation and acceleration of land distribution process

In august 1964 President Soekarno also endorsed the unilateral action movement, and during the second half of 1964 drastic steps were taken to accelerate the stagnant land reform programme. This suggests that the unilateral action movement grew to considerable proportions, and may indicate how effectively the BTI and PKI had organized the peasants. Actually, militancy is generally not considered a characteristic of Javanese peasants. The fact that, in good many instances, local harmony was abolished shows how far the process of ‘’de-traditionalization’’ had progressed. On the whole, local people took the new course of events for granted, with about half a million peasants benefiting from land reform in a relatively short time during the second half of 1964 (Huizer, 1999).

There is evidence that during the period of rapid land distribution little violence occurred. A ferociously violent reaction came, however, in October 1965. After an abortive coup, allegedly by leftist officers, a military regime came to power. Sector of the army, together, with the youth of the largely Islamic rural elites, assassinated more than half a million peasant leaders, as well as other communists or alleged communists. After this massacre, the BTI was virtually non-existent. According to Utrecht (1975) certain representatives of traditional Javanese cosmology (shamans, dukuns), played an important role in the BTI campaigns for more egalitarian land distribution. This probably ensured that the fire of resistance would smoulder for decades to come (Huizer, 1999).

D. The Consequences of the Abortive Coup of 1 October 1965

An immediate consequence of the abortive coup of 1 October 1965 was a severe setback for land reform. Large numbers of members of communist organisations and suspect sympathisers were murdered, among them probably thousands of BTI members. Land reform, from the start stigmatised by its opponents as a product of the PKI, was stopped. A considerable number of former landowners tried to get their former property back. The next-of-kin of the murdered or arrested new landowners were prevented by their fellow-villagers from tilling the soil, often with the support of military and civilian authorities. New landowners who were accused of having sympathised with the communists simply dared not appear on their piece of land, and many of them fled to the city. All this provided opportunities to bring redistributed land back into the hands of the former owners and so to nullify some of the bard-won results of the land reform activities (Utrecht, 1969).

In an effort to save what positive results land reform had achieved, the then Agrarian Minister issued an instruction on 10 December 1965 (No. 42-PLP-1965) which contained orders 'to take measures against former landowners and other people who abuse the actions against the G-304 (the abortive coup of 1 October 1965) by taking back illegally redistributed land or by obstructing redistribution through intimidations, insinuations, etc. (penyuluh land reform) This instruction does not appear to have been very effective. Although it probably stopped unconcealed taking hack of redistributed land (in West Java legal action was taken in Banten, Krawang and Tasikmalaja, in Central Java in Tegal, Pekalongan and Demak, in East Java in the former residency of Besuki), reversal of land redistribution probably continued surreptitiously and further redistribution virtually stopped during the years 1966 and 1967. No figures are available for 1966. Of the 200,000 ha that should have been redistributed in 1967 only 33,460 ha, that is less than 17 per cent was actually redistributed. During 1966 and 1967 about 150,000 ha are thought to have either illegally reverted into the hands of the former owners or fallen into the hands of third persons, in many cases military people (Sison, 2005). In some cases land remained untilled, lying abandoned after the new owners bad had been murdered.

Land reform is no longer hampered by party political struggle, for since 1966 there has been hardly any party political activity in Indonesia. Obstruction to land reform is still reported, now largely from the local military authorities. These functionaries are authorised to decide who were 'involved' in the abortive coup of 1 October 1965 and who were not. This enables the indirectly to influence the redistribution, although officially they have nothing to do with it. In many placers they act as land brokers. Another difficulty for the Agrarian Department is the steady demand from military authorities to make land available for their civic mission activities (operasi karja) (Utrecht, 1969).


CHAPTER III LAND REFORM UNDER NEW ORDER GOVERNMENT

A. Land Reform during Indonesia’s New Order Government

Land reform programs in Asia that were implemented effectively have provided a number of benefit; increased crop production, improved nutrition and improved social status for poor rural households, a foundation for sustained and exclusive economic growth, reduced social unrest and instability, better environmental management, a reduced flow of desperate rural family to the cities, and improved access to credit for new landowners. Land reform can be one of the most targeted and successful kinds of anti-poverty programs. In particular, land reform can be provided meaningful financial resources and food sources and an important safety-net (even when only a small area is distributed to each family) to the very poor and landless (Prosterman, et. al., 2002).

Unfortunately, there has not been any effective or widespread land reform in Indonesia. However, new possible approaches to land reform in Indonesia could create widespread benefits. Although the Indonesia land reform made some progress during 1960-1965, (Utrecht, 1969) the activity did not result in the redistribution of much agricultural land an did not affect many agricultural families, either on java or off java. Since 1965 there has been almost no land reform activity (Prosterman, et. al., 2002).

During the first two decades following the declaration of Indonesia’s independence in 1945, Indonesia’s land policies became increasingly radical. Following the Dutch withdrawal, the Indonesian government moved to reclaim land controlled by Dutch and other foreign firms and redistribute some of it to farmers (Lucas 1992). In 1960, it enacted a new Basic Agrarian Law which, reflecting the populist sentiment of the time, prohibited the ownership and control of land beyond certain (unspecified) limits and recognised adat (customary law) as the foundation of the country’s agrarian laws (Article 7). Along with two land-related other laws passed in 1960, this Law effectively laid the legal foundations for a land reform programme (Suhendar, et. al., 1996). Following the introduction of these laws, the Indonesian Peasants’ Front (BTI), an organisation aligned with the Indonesian Communist Party (PKI), began efforts aimed at implementing the laws, including encouraging peasants to unilaterally seize and redistribute land

After 30 year of dictatorship of General Soeharto, actually the land reform ideas, land reform, has not been implemented at all. In essence, land reform is regarded as an idea from the left, subversive groups related to the communist party of Indonesia. This also created political trauma for people in rural area, that the land reform still they perceive communist, so land issues, especially land reform issues, in Indonesia have been related to leftist movement. In this case the communist party movement in Indonesia (Faryadi, 2005).

In 1960’s, land reform issue was the cause of the one million killings in rural areas. When the New Order (as the Soeharto regime was known) took the power from the Old Order under Soekarno’s leadership (Sison, 2005). Under the New Order Leadership headed by Soeharto, many ideas regarding land issues were subordinated beyond the planning of government agencies or beyond the talks the concerned communities (Faryadi, 2005). So it was difficult to raise the issue of land reform under Soeharto. When the New Order seized power in 1965, it rapidly reversed this radical shift in land policy. The New Order’s rise to power was facilitated by foreign and domestic propertied classes, Western governments, giving it, as Robison (1981) has pointed out, a counter-revolutionary orientation vis-à-vis radical agendas such as land reform (Faryadi, 2005).

At the same time, with the economy in crisis, the New Order was under significant structural pressure to adopt policies that were favourable to mobile capital controllers and supported by foreign aid donors. As part of attempts to attract mobile capital back into the country by creating better conditions for investment, the New Order introduced several changes to land policy including downgrading the Ministry of Agrarian Affairs to a directorate-general in the Home Affairs Ministry in 1967, introducing a new law that abolished land reform courts in 1970, and discontinuing the annual budget allocation for the land reform programme in 1971. In addition, although it left the Basic Agrarian Law on the statute books, it refused to pass the regulations required to implement many of its provisions. Combined, these measures effectively brought the land reform programme to an end (Suhendar, et. al., 1996; Lucas, 1992).

During the 1970s and 1980s, the New Order made additional changes to the country’s land policies in an attempt to further improve the climate for capital investment. From the 1970s onwards, there was a dramatic increase in the demand for land as mobile capital controllers, domestic conglomerates, and state-owned enterprises sought land for new investment projects in mining, forestry, agriculture, tourism, textiles, clothing, footwear, property and other industries (Lucas, 1992). To make it easier for these groups to gain control of land, the New Order introduced so-called ‘release of title’ procedures. Under the Basic Agrarian Law, enterprises are prohibited from owning land. The ‘release of title’ procedures created a mechanism by which enterprises could acquire titles to land without breaching this Law. Upon release of the title, the land would become state land, allowing the state to award rights of use, building, or exploitation over it to enterprises or other parties depending on the type of investment project. Enterprises that were granted these rights would then have them for a defined period of time and the security of state backing for their acquisitions. Their only obligation in acquiring land was to provide compensation to the former landowners, the amount of which was to be determined by a committee that consisted entirely of government officials (Lubis, 1992).

After the collapse of oil prices in the mid-1980s – when the government again desperately needed to attract mobile capital into the country to overcome fiscal, trade, and growth problems – it introduced further land policy changes favourable to capital investment. These included transforming the Directorate for Agrarian Affairs into a The National Land Agency (BPN) that reported directly to the President and introducing the Land Administration Project (LAP), a land registration programme sponsored by the World Bank. Whilst ostensibly aimed at helping the poor, this programme was widely criticised for entrenching existing land ownership patterns rather than ensuring a more equitable distribution of land in accordance with the Basic Agrarian Law. At the same time, it was also criticised for advancing the “commoditisation” of land and, in turn, making it easier for those with money to secure control over land (Haverfield, 1999). Ultimately, then, this attempt to speed and extend the process of land registration appears to have served primarily the interests of private foreign and domestic investors, state-owned enterprises and others with the capital to invest in land ownership.

The acquisition of land during the New Order period by these elements was in many cases resisted by the peasant and indigenous communities who stood to lose control over their land, generating a large number of land disputes. Generally these disputes centred on two issues: who owned or controlled the land and the level of compensation (Lucas, 1992). Because few peasants, indigenous groups, or kampung dwellers had registered titles to their land, they were unable to demonstrate unambiguously that they owned it when it was earmarked for an investment project. In many cases, this was despite the fact that they and their families had farmed or otherwise used the land for several generations. This made it possible for the state to claim that the land was state land, that the people using it were illegal occupants, and that the state was therefore entitled to evict them. The level of compensation was an issue in many land disputes because it was often set well below the current market value of the land being acquired. If the peasants, indigenous communities, or kampung dwellers refused to accept the compensation on offer and surrender control over their land, they were often subject to intimidation or forced removal by the security forces or gangs of privately hired thugs (Lucas, 1997; Lubis, 1992).

In defending their interests, peasant and indigenous communities involved in land disputes often received assistance from NGOs working on agrarian issues. In particular, these NGOs helped peasant and indigenous communities to organise protests, attract media attention, and take legal action against the government and developers. Generally, however, these alliances proved ineffective in preventing land acquisitions and securing better deals for these communities. Indeed, it was largely in recognition of the ineffectiveness of this strategy of focusing on local disputes and helping the communities involved in them that NGOs working on agrarian issues decided to form the Agrarian Reform Consortium (KPA) in 1995. In addition to acting as an umbrella organisation for these NGOs (Bravo, 2001), the KPA became a vehicle kampung is the Indonesian term for a lower class urban neighbourhood. Through which these NGOs could try to promote change in agrarian law. The formation of the KPA thus marked an important change in strategy for these NGOs.3 However, it was not until the fall of Suharto in 1998 that this change in strategy was to produce noticeable benefits – while KPA activists sought to stimulate public debate about agrarian issues by holding workshops and conferences and producing publications (see, for instance, Ruwiatuti, et. al., 1997), the organisation appears to have had little impact on government policy during the last years of Suharto’s rule.

By the eve of Suharto’s downfall then, land policy in Indonesia largely embodied the interests of foreign investors, domestic business conglomerates, and the politico-bureaucrats who ran state-owned enterprises, reflecting their political and social dominance during this time. Not only had land reform been taken off the political agenda but the government was actively assisting private and state enterprises in acquiring land, even where there was resistance to this from local peasants, indigenous groups, kampong dwellers, or NGOs aligned with them. Lacking the resources of their opponents and constrained by the New Order’s political controls, these elements were unable to exercise much influence over either land policy or these specific disputes (Rosser, et. al., 2004).

B. Indonesia Land Tenure Relation

A leading feature of the land tenure situation in Indonesia is the high degree of landlessness. Based on the 1993 Census of Agriculture in the country, less than half (43%) of the peasant families (about 11 million) are considered landless, including those who are holding lands less than 0.10 hectare. Some 27% of the peasant families (7.6 million) cultivate lands with areas of 0.10 to 0.49 hectare. They occupy only 13% of the total land area devoted to agriculture. Some 14 % of the peasants (4.1 million) cultivate lands with areas ranging from 0.50-0.99 hectare and cultivate 18% of the total area occupied for agriculture. The remaining 16% of the peasants (4.4 million) hold on to lands 1.0 hectare or more which constitutes 69% of the total area occupied (Bravo, 2001).

Indonesia pursued a policy of land acquisition through state intervention for private enterprises and government projects. This policy has resulted in land disputes occurring in the following manner:

a) Disputes on the customary lands occupied by indigenous people;

b) Land disputes as a result of the displacement of farmers due to the construction of large farms in pursuit of the rice self-sufficiency programme;

c) Plantations established on lands that were previously controlled by the people;

d) Acquisition of lands for “development programmes” by the government;

e) The annexation of lands for factories both within and beyond industrial areas;

f) Land disputes arising from mining and forestry industries.

Land disputes have increased both in frequency and intensity in recent times, resulting in the withdrawal of people’s traditional rights to land as well as displacement of farmers in a number of communities and in the concentration of landholdings among big corporations (Bravo, 2001).

1. Agrarian Reform Legislations

There are two agrarian reform policies implemented in Indonesia: the 1960 Basic Agrarian Law and the 1962 Land Reform Programme. Under the Sukarno administration, this involved the imposition of land ceilings and the redistribution of private and state lands. However, with the political turmoil in 1965 and the rise of the Soeharto administration (the New Order Leadership), agrarian reform implementation was stopped in 1966-1967. As a consequence, a number of landowners whose lands had been redistributed as part of the land reform programme recovered their lost lands. In 1966 and 1967, it was estimated that approximately 150,000 hectares of land were illegally returned to the original owners, or fell into the hands of third parties. In terms of accomplishments on agrarian reform, the government claimed to have distributed some 800,000 hectares of land to around 850,000 families from 1962-1967 (Fauzi, 1999).

2. Indonesia: Reluctant Reformer

The economic crisis that marked the end of Indonesia's Old Order regime cut deeply into the government's foreign exchange reserves. In April 1996 it was down to just US$8 million. In the same year the government had to shell out some US$100 million to import rice. The New Order leadership used this incident as a pretext for overhauling the country's economic strategy into one that gave relatively free rein to private businesses and foreign investors. To counter the populist strategy of the Soekarno regime, the Soeharto regime established a "new" development ideology, which gave Indonesia a capitalist face (Quizon, et. al., 1998).

This development model called for many changes in land policies, laws and regulation. Ifdhal Kasim and Endang Suhendar (1996) wrote very clearly about Indonesia's three land policy periods.

1967-1974 – Exploitation of Natural Resources.

The effort to free the New Order regime from constrictions that were the Old Order's heritage was prompted by the belief that the old land laws are a legacy of the repudiated Indonesian communist party (PKI) and therefore a source of political conflict, if not instability. Hence, the New Order passed Law no. 7/1970 to expunge the concept of land reform from the constitution (Suhendar, et al., 1996). During this period, Land Law No. 7 (1970) was passed to delete the concept of land reform from the constitution. The First Five-Year Plan (Repelita) 1969-73 does not mention land reform at all and instead emphasized the need to increase agricultural production. New laws governing domestic and foreign investment were passed in 1967- 68. The law on foreign investment allowed foreign capital holders to use and own land. Law No. 5 (1967) – or the Basic Forestry Law – was passed, which was found to be in conflict with the 1960 Agrarian Law. These laws form the foundation of agrarian policy. Law No. 5 was created in order to facilitate the sale of forest products and increase capital for the New Order Development Plan. Law No. 11 (1967) – the Basic Mining Law – was also passed. Finally, 1972 marked the beginning of the transmigration laws (Bravo, 2001).

1974-1983 – Structural Planning.

This period is often referred to as the oil boom era because of the sharp increase in oil prices in the international market (Suhendar, 1996). This is also known as the “oil boom” era of Indonesia. The government’s income came primarily from the sale of oil and gas products. There was import substitution and foreign investments were limited. New land related legislations were passed, such as Law No. 30 (1973) and Presidential Decision 39 (1973) which revised Law No. 20 (1961) and abolished the rights to the land. More laws were passed to give the government more leeway to launch development projects with funds from export earnings. Deregulation was introduced to stimulate private sector participation and growth, and the Green Revolution to increase food production and decrease food prices. Thus, Indonesia became self-sufficient in food in 1984 (Bravo, 2001). Nonetheless, most of the profit went to the landowners who were not dependent on the harvest from the land.

1983-1990s –Deregulation of Land Ownership.

This period was characterized by a decline in oil prices. The drop in oil prices forced the government to think of other ways to maintain its growth rate (Suhendar, et al., 1996). The oil crisis generated more investment in productive sector (Tornquist, 2002). So some of the laws were passed and activities undertaken by the government to facilitate land acquisition. Among them were: Permendagri No. 12 (1984) – How to Make Land and Land Rights Available; Presidential Decision 53 (1989) – Promotion of Industrial Activities to Entice Relocation of Business and Extension of Usage Permits from 25 to 60 years; Presidential Decision 15 (1993) – Land Use for Public Good and Implementation of Land Registration (to end the red tape that slows down processing of land permits). In summary, the previous legislations further protected access to land by big corporations at the expense of the peasants (Bravo, 2001).

C. Cases: Land Reform in Indonesia

Land has always been a hotly contested item in Indonesia because of competing claims from several interest groups, among them farmers, industries, timber enterprises, housing enterprises, dam construction projects, government departments, industry, housing, agriculture, forestry, public construction, and transport and energy (Quizon, et. al., 1998).

1. Indonesia's Major Land Disputes during New Order Regime

Land disputes arising from state appropriation of land for such purposes as mining or forest protection. A well known example is the dispute between the Amungme, an indigenous group in Irian Jaya, and PT Freeport, a mining company, over the former's ancestral land. (Hadiz, at. al., 2003) In East Kalimantan, the Dayak Bentian is protesting the appropriation of their land by PT. Kahold Utama, operator of an industrial timber plantation. A variation on this has occurred in Java: Perhutani has forced the farmers in Sagara, West Java to vacate an area declared as a production forest (Quizon, et. al., 1998).

The peasants of Sagara, a village located in Garut district, West Java, had been cultivating the land since the 1930s, except for brief periods when war and political turmoil forced them to flee to safety. By the 1960s, though, they were more or less settled and began to grow teak for its high export value. In 1984, however, the provincial state forest agency declared their village as part of the state forest reserve (Chidley, 2002). Boundaries were erected around the forest and the people's crops were uprooted. The villagers protested and brought their case to the Agrarian Office, which only confirmed the agency's pronouncements (Quizon, et. al., 1998).

The villagers were officially squatters on state land and ordered to leave. Some of them were arrested and sentenced to prison for up to four years. Negotiations followed, first in 1991, then in 1994, alongside which the villagers kept up their protest.

Land disputes resulting from the "green revolution", a rice self-sufficiency program which has given few people control over much of the land, thus making more and more farmers landless. In the coastlands of Java farms a single individual owns 50 hectares or more in size while over half of the farmers are landless. The construction of large dams in pursuit of the same program has also displaced farmers at Kedung Ombo in Central Java and Saguling in West Java (Quizon, et. al., 1998)

The establishment of plantations on land previously controlled by the people. Some well-known examples are the conversion of land in Penunggu (Jaluran), North Sumatra into a plantation and the dispute that occurred recently at Jenggawah, East Java. Similar conflicts have been reported: Also in Irian Jaya, Sei Lepan in North Sumatra, PIRLOK in Silau Java, Asahan regency, North Sumatra and Cimerak, West Java (Chidley, 2002).

The acquisition of land for service industries such as the construction of luxury homes, hotels and tourist facilities. In the Jakarta/Bogor/Tanggerang/Bekasi area (Jabotabek), real estate companies already control an area greater than the size of Jakarta itself. (Jakarta Post, 1998). In Bali developers for the construction of tourist facilities and other infrastructure have snapped up huge swathes of agricultural land. On the coastline of Lombok, communities at Pemongkong and Gilitrwangan have been evicted to make way for tourist facilities, while in West Java alone there are at least 21 golf courses (Quizon, at. al., 1998).

Acquisition of land for what are declared to be "development programs" by the government. Land is needed to develop roads, government buildings, military facilities, etc. The land dispute at Blangguan in East Java arose from the acquisition of people's land earmarked for a naval training station. In this matter, the government directly interferes in the removal of obstacles that hinder the progress of "development"(Quizon, at. al., 1998).

The annexation of land for factories both within and beyond industrial areas. These land disputes have spread in the Jabotabek area, and in other "centers of economic growth". Land agents make enormous profits by getting the people to sell their land cheaply then selling at a premium to large capitalists (Jakarta Post, 1998).

The withdrawal of the people's land rights in the name of environmental conservation. For example the communities around Mount Leucer in Aceh and Pulo Panggung in Lampung have been driven out by a government ordinance establishing protected forests, wildlife preserves, and such like in these locations, reclassifying these locations for housing and the people's plantation for protected forestry, a wildlife reserve and such like on these locations (Yakota, 2001).

The number and virulence of land dispute cases throughout Indonesia demonstrates the profound nature of the problem. Authorities, however, are loath to acknowledge this fact and dismiss the rising incidence of land disputes as isolated incidents brought about by lack of information. Or else they blame a third party purportedly wanting to disturb the peace.

What is clear is that majority of these land disputes are a result of the expansion of big businesses. In most cases this is facilitated by state intervention, which take the form of laws granting incentives to investors or outright eviction of whole communities. Another discernible pattern is state violation of the peoples' land rights in favour of "public interest" projects. Not a single case can be cited to show that appropriated land was fairly acquired or purchased by the government. Instead, coercion and manipulation have been the order of the day "( Quizon, at. al., 1998).

Banongan village is located in a coastal region in the district of Situbodo, East Java. With temperatures ranging from 24.7 to 27.9 degrees Celsius, Banongan is well suited to the cultivation of sugarcane and coconut. The people are variously engaged as plantation workers, agricultural lessees and farmhands. The land in dispute is a plantation governed by erfpacht right, a vestige of colonial times that grants a long-term lease to companies operating a plantation. The company in this case got the villagers to help clear the land with the promise that they would thereafter be allowed to cultivate part of it. When Indonesia won its independence, however, erfpacht rights were abolished and replaced by government-awarded concession rights, or Hak Guna Usha (HGU). The plantation also changed hands and the new concession holder refused to owner the former holder's promise (Quizon, at. al., 1998).

In 1964 the villagers brought their case before Sudarsono, regent of Situbondo. Sudarsono granted them proprietary rights to some 350 hectares. Unfortunately, Sudarsono was soon after succeeded by another regent who overturned his predecessor's orders, citing technicalities which the villagers had not complied with (e.g., the petition letter was not properly drawn up; it did not include the requisite picture). In 1974 the villagers drafted another petition and the regent formed a committee to investigate the problem. But after the villagers had finished their work on the plantation they were summarily dismissed on the strength of a policy change: the plantation would thereafter be used for the construction of a school, the regent's office and hospitals (Quizon, at. al., 1998).

The villagers continued to press their claims and in 1985 one of their leaders sought the help of a legal aid office in Surabaya (LBH Surabaya), which advised them to ask the government to intervene on their behalf. In 1989 the people wrote the state land office (BPN) and parliament, but little help was forthcoming. Meanwhile, the current landholder, PD Banongan, had begun to violate the terms of the concession. In May 1996, the plantation was certified to C.V. Dason, a company managed by a Chinese businessman. The people protested, citing prior claim to the land. Then to dramatize their protest, which had gone unheeded, they started growing corn in the place of sugarcane on the disputed property. This prompted government (i.e. military) intervention. The military officials in charge facilitated negotiations between the peasants and local government officials, at the end of which both the peasants and PD Banongan were barred from cultivating the land in question, and enjoined to come to a mutually beneficial agreement. PD Banongan offered to employ the peasants as farmhands, at a daily wage of Rp3, 700. Proprietary rights were ruled out as these had already been awarded to C.V. Dason. The peasants rejected the proposal and insisted on a sharecropping arrangement instead. Further negotiations failed to resolve the dispute as the two parties refused to give ground. In the end the peasants launched a new round of protest actions. This landed a number of them in jail. Two of their leaders were arrested on charges of clearing crops on private land and sentenced to 10 months' imprisonment. By the lates 80’s, one such case was villagers’ resistance to the state imposed and World Bank financed building of huge dam Kedung Ombo area in central java (See more Budiman and Tornquist, 2001) Some of Kedung Ombo villagers were thus trying to resist eviction, expropriation of land and low if any compensation in connection with the construction of the dam (Tornquist, 2002).

Since 1922 peasants in the village of Sumber Kelampok had been managing a plantation in the area as hired hands. Though property rights were unheard of in the village the peasants nonetheless continued to hope that they would one day gain possession of the land. The Agrarian Law of 1960 reinforced this hope (Akamoto, 2001). In the early 1990s, however, their already tenuous hold on the land was put in doubt. The government declared the whole village as part of the newly formed West Bali National Park. Instead of becoming landholders they were now being accused of poaching on protected land (Afiff, et. al., 2005).

With the help of non-government organizations and student groups, the peasants became aware of the implications of the land's reclassification. They then protested to state officials and kept on protesting until the government took action. The government responded by including the peasants in the planning and implementation of the national park authority's development plans. The peasants were also given grants for a Poor Village Fund, school rehabilitation, artesian wells, etc. -- token concessions to appease the protesters, no doubt. The peasants take comfort though in the fact that the government has at least acknowledged their village's existence. However, their dream of owning the land is still far off (Quizon, et. al., 1998).

Land Occupations in Cieceng, during the colonial period, the land now claimed by villagers had been leased on a 75-year contract to an agricultural enterprise. In the 1950s, after the Indonesian revolution and the establishment of the Republic of Indonesia, that contract was taken over by an Indonesian state plantation company, which planted rubber on one side and cocoa on the other. The contract for them land formally expired in 1997, but the state plantation company continued to operate it. Many villagers in the hamlets adjacent to the plantation land, and who later occupied the land, had been employed at the rubber plantation. We could not get evidence on whether the occupants of Cieceng had been dispossessed of the disputed land in the 1920s when it was first leased or whether the villagers of that period regarded the land as ancestral reserve lands for future generations. Virtually everyone we talked to in the occupied areas owned no agricultural land in their villages; some even did not have houses of their own. Thus, it seemed clear that the villagers in the surrounding areas needed land at the same time of the occupations, especially in the wake of the economic crisis when jobs in the cities were less frequently available (Afiff, et. al., 2005).

Land Occupation on Tapos, Soeharto's 751-hectare Tapos cattle ranch in the hills of Ciawi in Bogor regency. According to the people, part of the vast ranch was theirs until it was expropriated in 1971 by the former president while he was in office. Soeharto then converted the site into cattle breeding ranch and, sometimes, an open space for meeting his guests, who included visiting foreign leaders. Officially, the ranch is managed by PT Rejo Sari Bumi with Soeharto's children listed as the shareholders. After several conflicts, the ranch management -- upon seeing the eagerness and boldness of the farmers -- finally in September allowed the people to cultivate one-tenth of the site. But this seemingly wise move did not last long (Jakarta Post, 1998).

Under a strong escort of police and soldiers, the ranch employees destroyed the crops and injured some of the people. Since then, clashes have become an endless spectacle at the site. Not far from the Tapos ranch, hundreds of Cimacan farmers in the mountainous Cibodas area flocked in ecstasy to the Cibodas golf club on the night of July 20, digging up the land and planting crops on the site. The startling invasion made the golf course's employees and security guards flee in panic. The farmers claimed the 33-hectare site, now home to a golf club belonging to private firm PT Bandung Asri Mulya, as their own. The occupation by the farmers only lasted for a few days after which police officers managed to disperse them. At least five farmers were injured in the clash (Afiff, at. al., 2005).

In Bogor, hundreds of farmers and land owners were also involved in a dispute over a 257-hectare plot in Rancamaya village which had already become home to a luxurious housing complex with a golf course. In stressing their demands, the people -- who claimed that the site was theirs -- staged many protests at the Bogor council and mayoralty offices. They also threatened to forcibly enter the housing complex, which was developed by PT Suryamas Duta Makmur in 1992. The farmers claimed they had never received any compensation when their land was appropriated by the company (Bravo, 2001).

2. Forests in Crisis and Mining in Protected Forest

It is said that Indonesia lost approximately 1, 5 million hectares of forest each year in the 1980s and 1990s (Gautam et. al., 2000). The World Bank warns that the island of Sumatra will be denuded of forest by 2005/, and Kalimantan by, 2010, if no counter measures are taken WALHI, an environmental NGO predicts that Kalimantan will have no more pristine forests (or frontier forests) in five years Commercial logging, transmigration policies, mining, oil palm plantation development, forest fires, and illegal logging are among the causes given for deforestation. Many corporations with forest concession rights (HPH) have carried out indiscriminate logging, flaunting the rules of TPTI (the Indonesian selective logging and planting system). Only one third of the corporations with business use rights are said to be in compliance with these regulations (Yokota, 2001). Industrial timber plantation projects (to produce raw material for pulp), as well as recently booming oil palm plantation developments, are supposed to be carried out only in conversion forests that have lost their productive capacity, but it is extremely common for natural forests, etc., to be logged for such projects. It is also common for corporations involved in such projects to disappear from the area once logging is finished. Furthermore, in 1997 and 1998, massive forest fires destroyed 3.10 million hectares of forest (Schweithelm, 2000).

As mentioned above, that major actors of underlying causes of deforestation and forest degradation are HPH (Logging Forest Concession), HTI (Industrial Forest Plantation) and estate plantations (palm oil and rubber). This description attempts to identify one of HPH practices done by the Kalimanis Group and its negative effects on the environment. In 1993 the giant corporation, which was expected to play a major role in the national economic growth had conducted environmental crimes. It was accused not only of growing through bureaucracy-capitalism (growing bigger by special privileges) (Yoshihara, 1988), but also by profiting through various types of environmental damages.

Indonesia is rich in mineral resources. It has deposits of a wide variety of minerals including bauxite, coal, cobalt, copper, diamonds, gold, kaolin, manganese, mica, mineral sands, nickel, tin, and uranium (Marr, 1993). Many of these deposits are found in so-called “protected forests” – that is, ‘forest areas that serve to regulate water flows, prevent floods, control erosion, prevent sea water intrusion, maintain soil fertility and thereby protect the life support system’. Under the New Order, open mining was permitted in these forests despite the damage that it can cause to the forest cover above mineral deposits and the livelihoods of those who live within or near these forests. (Rosser, et. al., 2004)

However, the protestations of such groups fell on deaf ears during the New Order period, reflecting their relative lack of influence in the policy-making process at this time compared to controllers of mobile capital and, in particular, the managers of foreign mining firms. As we have seen, peasants and indigenous communities were marginalized under the New Order, as a result of its pursuit of a policy of disorganising civil society and its willingness to repress political activity on the part of opposition groups (Hadiz et. al., 2003). Foreign mining firms, by contrast, constituted a crucial element in the coalition of interests that underpinned the New Order. Deals made with mining firms such as Freeport (to mine copper in Irian Jaya) and Inco (to mine nickel in Sulawesi) in the early New Order period signalled Indonesia’s re-integration into the international economic system and served to legitimize the new government in the eyes of both foreign governments (which, driven by the Cold War logic of the time, See also Marr (1993) for similar criticism of the New Order’s mining policies.

D. Resettlement Program: Caused Land Dispute

Description Resettlement in Indonesia has generally followed the transmigration route - taking people to the outer islands from densely populated Java, Madura, and Bali. Initiated by the Dutch in the early 1900s, this kind of largely government- planned and financed resettlement has a long history in Indonesia. Such resettlement was developed to ease overcrowded conditions of Java, Bali and Lombok by shifting landless agricultural families to less densely populated islands. In the post-colonial period, particularly during the Suharto regime (1965-1998), this transmigration program was vigorously pursued with donor assistance, particularly from the World Bank, to stimulate regional development and create employment opportunities. The state-sponsored transmigrant groups typically received extensive support and subsidies from the government during the initial five years of settlement in the form of transport, land, housing, and various social services (Zaman, 2002). In addition to sponsored transmigrants, local and spontaneous transmigrant groups moved at their own expense and settled in sites of their choices with limited support in the form of credit but benefited from the same socio-economic services, as did the sponsored migrants.

From 1969 to 1989, some 730,000 families were relocated through transmigration from Java, Madura and Bali to South Sumatra, Kalimantan, Sulawesi, Maluku, and Irian Jaya. By the end of 1980, over 6% of the population of the other islands was already Javanese. The target for the period from 1984 to 89 (Repelita IV) was to settle another 750,000 families. As a result, by the mid-1990s, it is estimated that the Javanese constituted more than 10% of the population of the outer islands. Despite agricultural growth and progress in outer islands, the expanding transmigration program came under heavy criticisms from human rights groups due to the involuntary nature of migration and the marginalizing effects on the indigenous populations. As a result, the World Bank pulled out entirely from the transmigration program in early 1990s. However, the Ministry of Transmigration continued the program through the rest of the 1990s, at a much smaller and largely voluntary basis (Zaman, 2002).

The long-term impact of Indonesia's transmigration policy is beginning to surface in the post-Suharto era -- land disputes with indigenous peoples, communal fighting in West Kalimantan against immigrants from Madura, anti-Christian riots in Lombok and Maluku, and separatist campaigns for independence after years of human-rights violations in Aceh and Papua. The transmigration policy is clearly one specific instance of a host of policies that have led to local and regional discontents in Indonesia today. From the transmigration perspective, the key factors contributing to the present socio-political turmoil in the country include malpractice in the land administration system, past excesses in land acquisition and reallocation, and unjust compensation to displaced landowners. It is expected that an improvement in land right entitlement, just compensation for land, and a new policy dealing with development-induced displacement and resettlement would significantly improve social unrest and raise the confidence of the Indonesian people. The reformasi environment in post-election Indonesia indicates the beginning of a new era of reform, including reform in land policy, land rights issues, fair compensation, resettlement and development.

E. The Customary (adat) Land Disputes

Most customary society reflects their harmonious relation with nature (land) because they believed that they are not able to live without land. Land is perceived as a basic need for people. They attempt to preserve and maintain land in order to survive. They also manage and regulate their land usage by using their own customary law and practices. Considering this point of view, the new Land Law no 5 of 1960 adopts customary land tenure as fundamental bases of land tenure system amending the Agrarische Wet 1870. However in reality, during the intensive development process state systematically neglects the existence of customary land (Daryono, 2004). The exploration and exploitation of natural resources on the customary land have been continuously conducted.

Customary land disputes in Indonesia derive from incompatible perceptions, needs and interests between the local community and the state (companies) about the existence of the customary land rights (Lucas 1992) in one hand and the in adequate judiciary and legislation to be taken into effect. It is clearly stated in Land Law 1960 that the land tenure system acknowledges the existence of customary (traditional) land tenure unless it is contrary to “national interests” (art. 5). The local community has right to dispose land that belong to them and manage the land with their local legal practices (art. 3). However, state also has right to dispose land when it is needed for developmental purposes in order to elevate the welfare of society (art. 1). There are many misused of customary lands that create environmental destruction and poverty. Consequently, on these occasions, local communities have rights to take them back and state or companies must be responsible for their misconduct.

In addition, since rapid industrial development occupied most customary lands, the term of “national interest” has been misused in order to exploit customary lands. The establishment of the multi billion mining projects in gold, copper, natural gas, petroleum and timber throughout Indonesia have exploited most customary lands and diminished the quality of customary people life. The lands and the forests that they depend on have been continually exploited and created major environmental destruction. The environmental degradations and destructions have produced natural disasters and threaten customary people life. Customary people feel unsafe and loose their control over their land and their traditions. Customary people have started to claim their rights and raised disputes against companies and state. The conflicts turned out to be more complex and created complicated tension (Brown, et. al., 1993).

However due to repressive political approach on those occasions, customary communities were threatened and abolished to claim their right on customary land. Customary people seem require legal assistance and experts to increase their awareness and to advocate their rights to land. Expert and third parties assistance will not only help customary people being equally and properly treated but also develop the broader knowledge of ADR practices in resolving the customary land dispute.

At the beginning, customary land disputes were brought to the public by the advocacy of the environmental concerned non-government organizations (NGO) in early 1970. Public debates have become popular concerning the customary land disputes and consequently increased the public awareness and sympathy. Other NGOs also started to take a part on the advocacy movements. Early on, the formal judicial settlement was not a focus because the judicial system was seemed as being not neutral (Daryono, 2004). Considering government involved as a party, it was thought that court might loose impartiality and this would lead to unfair trials. Some cases were also terminated due to the political reason such as Freeport case in Jayapura, Mobil Oil case in Sumatera and other cases involved multi national companies.

Comparing to individual case of customary land dispute which involves individual and customary people (local community), Supreme Court decision stated that the customary community has his own right to manage his land (Supreme Court no.307 K/Sip/1956). The customary land tenure was based on customary law and the Court has no right to interfere the decision made by customary community concerning the customary land ownership (Supreme Court no. 301 K/Sip/1958 and no. 149/K/Sip/158). Customary land can only be occupied and used only by the local people. The time period of customary community right is considered to be unlimited (Supreme Court no 340/K/Sip/1958). However these decisions unable to be implemented in major customary land disputes. It is clearly understood that court might loose impartiality when the state or multi national companies involved as a party, because the judicial system is considered as part of the state.

Considering that political situation, ADR has become alternative settlement chosen. Walhi and other NGOs initiated to mediate and conciliate disputants to resolve conflicts even though its efforts initially faced great difficulties such as physical and psychological intimidations, limited access to local community and companies and other physical pressures. NGO also tried to develop networking through major location of disputes and employed any means, such as using media, international NGO and other international institutions, to give pressure to government or companies to negotiate. They operated not only in advocacy but also in providing awareness to majority of people about the problems. They have successfully increased societal awareness on the case of customary land dispute. Many new local NGOs have been created and its networking has produced effective collaboration to provide and share information. NGOs movements on building public opinion is one of the effective tools in elevating the societal awareness and give pressure to both government and involved companies (Daryono, 2004). However their limited knowledge and skills on the ADR practices would result in the ineffective process.

F. The Role of NGOs

In Indonesia today, there are about 4,000-6,000 NGOs of which some 500-1,000 are categorized as development NGOs. In general, there are three types of NGOs: (1) Big NGO (Bingo); (2) Local or small NGO (Lingo); (3) Red Plate NGO (established by the government and which offered regular financial support). NGOs are referred to as “self-help groups”. There are NGOs in rural developments which are functioning entirely in the community. And there are those which may be working at a wider area but focus on specific target groups. NGOs may be operating autonomously or in relationship with the government’s development projects as a direct partner of government in development efforts (Bravo, 2001).

There are NGOs with a high capacity being able to hire professional staff to manage their organization as well as well experienced field staff to plan and implement their programmes. Nonetheless, some local NGOs have significant capacity in managing and implementing development programmes and projects, after completing training conducted by Bingos. But, on the whole, the financial capacity of NGOs determines the sustainability of its programme. NGO funds come mostly from foreign donors in an uncertain manner and domestic sources are mainly controlled by pro-government groups. NGO projects are usually small scale, consequently having limited coverage. But they tend to be grounded more on the community’s participation and are giving greater importance to the development of marginalized sectors since the government has been keener to promote private business and industrialization (Bravo, 2001).

The Konsorsium Pembaruan Agraria (KPA) – or Consortium for Agrarian Reform (CAR) – is one of the principal NGOs working in the area of agrarian reforms in Indonesia. It is composed of 65 NGOs, 6 peasant organizations and several individuals concerned with agrarian inequality in the country. The KPA’s work focuses on critical policy dialogue on three issues: protection and recognition of indigenous people’s land; land reform as a precondition for development; and provisions for dispute mechanism accommodating the interest of indigenous peoples and small landowners. KPA is also working to increase the capability for advocacy of its member organizations in land issues (Bravo, 2001).

There are several problems encountered by the NGOs associated with KPA in the process of implementing their functions. First, NGOs lack financial support or funds as well as logistics to pursue planned initiatives. Second, they find the grassroots level highly unorganized. This requires high inputs on organizing, financial and otherwise. Corollary to this is the very limited time to organize people, given the urgency of the issues on hand. Third, some of their service areas are not accessible. These are far removed areas without transportation facilities. Fourth, some NGOs find the laws on agrarian reform confusing (Bravo, 2001).

Nevertheless, some of the NGOs have succeeded in mobilizing and/or organizing the farmers, improving their bargaining position during negotiations, educating them on the laws and increasing their political awareness. They have provided legal assistance to the farmers during litigation processes. They also remained strong on advocating certain stands pertaining to land tenure. Furthermore, they have sought to effectively utilize mass media to air their position on certain land-related issues.

The Tapos case is an example of how civil society organizations worked together to help the peasants reoccupy the land they previously cultivated. This land was cleared in 1930 by a Dutch Plantation, leaving the local people de facto rights over the land. But in 1958 the government expropriated this land. In 1973 PT Rejo Sari Bumi established a modern animal husbandry farm with stalls to raise cattle; an experimental site for cross breeding local cattle with supreme foreign ones; some areas for growing corn and grass for animal feeding; and other purposes useful for the family. But it did not recognize the land rights of the local people and workers (Jakarta Post, 1998).

With the help of outside supportive forces, these people attempted to reoccupy their land. They organized a series of demonstrations in Jakarta in 1998 with the support and advocacy from the Jakarta Legal Aid Institute (LBH). LBH Jakarta studied the case and approached a number of local government officers to clarify the true landowners of Tapos land. Consolidation and meetings among cultivators took place facilitated by university students and the Indonesian Farmer Association (STI). In the process of consolidation, the cultivators then obtained support and advocacy from various civil society organizations. On 15 July 1998, 300 people became mobilized to enter the Tapos farm. Happily and with enthusiasm, although still anxious and in fear, together they divided the land and grew vegetables and dry crops.


CHAPTER IV CONCLUSION

Closing Remarks

Land plays an important role for human life. "Life also cannot be imagined without land. Life came from and through the land, and was manifested in the land. Land is not an inanimate 'thing'; it was, and is alive" (Berndt, 1982). From the above quotation we can make an assessment that is to avoid conflicts over land, an institution or governmental body is needed which regulates land management and all aspects involved.

The Dutch government established the Agrarische Wet (Agrarian Law) when it reigned over Indonesia. That Agrarian Law was mostly prepared to benefit the Dutch government, rather than the indigenous people. Alteration in land management occurred when Indonesia gained its independence in 1945. The first president of Indonesia, Soekarno in 1960 issued the Basic Agrarian Law, which he discerned would enable the Indonesian rural people to benefit. The Basic Agrarian Law actually guaranteed the rights over land for adat communities. But the demands of land development increased in the new era, when various development projects were expanded excessively. Consequently, pressure on the government and private sectors to clear and open new areas have caused land conflicts either with urban people or rural communities throughout the country.

Land conflict happens, on one hand, due to the government's policy of confiscating people's land without dialogue and paying inadequate compensation. On the other hand, land for the adat community (such as the Sassi principle in Moluccas) has a very special meaning, and can be understood not only by people themselves but also by the policy makers/government. When government or other parties plan to acquire traditional land for a variety of businesses and activities such as HPH, HTI or social forestry as occurs in Kalimantan and Sumatra adequate compensation alone is not the main issue. The people’s emotional and psychological links with their land are also important. Land, for the traditional people is also as their identity and is closely linked with people's self-esteem. This perspective cannot be arbitrarily ignored.

Judging from various cases and experiences regarding land policy in Indonesia mainly faced by powerless people, there are two basic thoughts to be considered by the government, particularly by the National Land Agency apparatus and some governments involved. First, the recognition of adat community rights to use their land as long as their intention to meet their mainly demands, should simply constitute a slogan or lip service. On the top of that, it is hoped that government in formulating its land policy would also respect the adat community's perceptions about its land. Second, the government should be consistent with its laws/regulations in defending the existence of traditional community land rights, rather than taking side with conglomerates or capitalists, which have victimized the powerless groups within the community for many years.

Actually, land reform programs were implemented effectively in Asia, and have increased a number of benefits, but land reform in Indonesia has not been effective and widespread, although the Indonesia land reform made some progress during 1960-1965. During the first two decades following the declaration of Indonesia’s independence in 1945, Indonesia’s land policies became increasingly radical. Following the Dutch withdrawal, the Indonesian government moved to reclaim land controlled by Dutch and other foreign firms and redistribute some of it to farmers.

Land reform issues were the cause of the one million killings in rural areas in 1960’s, when the New Order (as the Soeharto regime was known) took the power from the Old Order under Soekarno’s leadership. Under the New Order Leadership headed by Soeharto, many ideas regarding land issues were subordinated beyond the planning of government agencies or beyond the talks of the concerned communities. So it was difficult to raise the issue of land reform under Soeharto. After 30 year of dictatorship of General Soeharto, actually the land reform ideas, land reform, has not been implemented at all. In essence, land reform is regarded as an idea from the left, subversive groups related to the communist party of Indonesia. This also created political trauma for people in rural areas, because land reform was still perceived as a communist act. Land issues, especially land reform issues, in Indonesia have been related to leftist movement. In this case the communist party movement in Indonesia. During the New Order regime (1966–1998), land disputes, open protests and demonstrations were very much restricted. The local military unit generally suppressed protest movements related to land disputes in customary communities known as masyarakat adat. The government which was supported by military forces systematically diminished the existence of the communal lands.

New Order made additional changes in 1980’s to the country’s land policies in an attempt to further improve the climate for capital investment. From the 1970s onwards, there was a dramatic increase in the demand for land as mobile capital controllers, domestic conglomerates, and state-owned enterprises sought land for new investment projects in mining, forestry, agriculture, tourism, textiles, clothing, footwear, property and other industries. To make it easier for these groups to gain control of land, the New Order introduced so-called ‘release of title’ procedures. Under the Basic Agrarian Law, enterprises are prohibited from owning land. The ‘release of title’ procedures created a mechanism by which enterprises could acquire titles to land without breaking this Law. Upon release of the title, the land would become state land, allowing the state to award rights of use, building, or exploitation over it to enterprises or other parties depending on the type of investment project. Enterprises that were granted these rights would then have them for a defined period of time and the security of state backing for their acquisitions.

The collapse of oil prices in the mid-1980s also made some change where the Directorate for Agrarian Affair was changed to National Land Agency (BPN), and the BPN reported directly to the president this time also introducing the Land Administration Project (LAP), a land registration sponsored by World Bank. This ‘’commoditization ‘’ was the attempt to speed and extend the process of land registration appears to have served primarily the interests of private foreign and domestic investors, state-owned enterprises and others with the capital to invest in land ownership

The acquisition of land during the New Order period by these elements was in many cases resisted by the peasant and indigenous communities who stood to lose control over their land, generating a large number of land disputes. Land dispute mainly in two issues: who owned the land or controlled the land and the level of compensation. In the case of land dispute NGOs help the peasant and indigenous communities to protest, and take legal action against the government and developers.

After the end of new order era in 1997, the Reformation Era was different with the previous there are some different aspects from the previous era where we can find a freer atmosphere, where everyone can speak, protest freely. But if we speak land reform there has been no change at all. The peasant still remains hard to access land. The issuance of Presidential Regulation (Perpres) No. 36 of 2005 on the Acquisition of Land for the Implementation of Development in the Public Interest has created controversy. This Perpres surprised many parties because it changed the conception of the "public interest" as stipulated in Presidential Decision (Keppres) No. 55 of 1993 that defined a project as being in the public interest if it is (i) owned by the government, (ii) implemented by the government; and (iii) not profit-oriented. With this new Perpres, private entrepreneurs, including foreign profit-oriented trans-national companies, are invited to operate infrastructure projects that - after their conception was changed - are classified as in the "public interest". This Perpres gave the President authority to withdraw land ownership rights (section 3 and 10), if somebody/some group of people rejected the resumption of their land for the project and this rejection has already been through procedures at lower levels.

BIBLIOGRAPHY

Abdurrahman, 1990, Konsepsi Hak Ulayat menurut Undang Undang Pokok Agraria, Jakarta: Orientasi 4(1).

Adam, M., 1995, ‘Land Reform: New Seeds on Old Grounds?’ Overseas Development Institute Portland House Stag Place. London

Available at:http://www.odi.org.uk/URG/nrp6.htlm

Adas, M., 1979, Prophets of Rebellion: Millenarian Movement against the European Colonial Order, United States: University of North Carolina Press, Chapel Hill.

Afiff, at. al., 2005,Redefining Agrarian Power: Resurgent Agrarian Movement in West Java, Indonesia’, Centre For Southeast Asia Studies, University of California, Berkeley,

Available at: http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1001&context=cseas

Andangdjaja, B. S., 1967, ‘Pembayaran ganti rugi di Kabupaten Krawang’, Penyuluh land Reform, VII, 7-8 (January-February 1968), pp. 8-9 and 12-13.

Asmus, 1961, ‘Speech in the DPA session at Bogor on 11-12 July 1961 Part two’, pp. 6-18 (Minutes of the DPA session, Bogor 11-12 July

Benda-Bechmann, F. v., 1981, ‘Some comments on the problems of comparing the relationships between traditional and state systems of administering justice in Africa and Indonesia’, Journal of legal pluralism 19: 165 - 175.

Berndt, Ronald, M., 1982, Traditional Concepts of Aboriginal land. In Aboriginal Sites, 1982 Rights and Resources, Perth: The University of Western Australia Press.

Binswanger, at. al., 1993, ‘South African land policy: the legacy of history and current options’, World Development, September. pp. 1451-1475.

Budiman, Tornquist, 2001, Aktor Demokrasi (witk Arief Budiman and an ISAI research team). ISAI, Jakarta: Forthcoming 2002 in revised English edition

Bravo, M. R., 2001, ‘Agrarian Reforms in Southeast Asia: The Role of NGOs and Other Actors’, Institute of Agrarian and Urban Development Studies University of the Philippines Los Baños Laguna, Philipines

Available at: http://www.landcoalition.org/pdf/whoseland_ch2.pdf#search=%22transmigration%20in%20land%20reform%20in%20indonesia%22

Brown, H. J., at. al., 1993, Alternative dispute resolution principles and practices. London: Sweet

Country Report, 2006, ‘Agrarian Reform and Rural Development in Indonesia’

Available at: http://www.google.com/search?q=land+reform+in+indonesia&hl=id&lr=&start=30&sa=N

Daryano, 2004, ‘The alternative dispute resolution (ADR) and customary (adapt) land dispute in Indonesia’, this paper was presented to the 15th Biennial Conference of Asian Studies of Australia in Canberra 29-June-2 July 2004.

Available at: http://coombs.anu.edu.au/ASAA/conference/proceedings/Daryono-ASAA2004.pdf

Faryadi, E., 2005, ‘Land Is Life, Secure Access to Land Helps Reduce Poverty’, In International Land Coalition Global Assembly 2005, Santa Cruz, Bolivia 19-23 March 2005.

Available at: www.landcoalition.org/events/05aom/kpa.htm

Fauzi, N., 1999, ‘Dynamics of Agrarian Reform Agenda in Indonesia: From State Benevolences into Civil Society Initiatives’, a paper presented at the WCARRD 20/20 Emerging Trends and Perspectives of Agrarian Reform in Asia (6-7 October 1999, Tagaytay City, Philippines).

Gautam, at. al., 2000, Indonesia-the challenges of World Bank involvement in forest-evaluation country case study series, Washington, D.C.: World Bank.

Gunawan, B., 1968, Kudeta: Staatsgreep in Djakarta, Jakarta : Meppel.

Hadiz, V., at. al., 2003, ‘Neo-liberal reforms and illiberal consolidations: the Indonesian paradox’, Southeast Asia Research Centre Working Paper 52, September

Harsono, B., 1961, Undang-Undang Pokok Agraria: Sejarah Penyusunan, Isi dan 1973 Pelaksanaannya. Himpunan Peraturan Hukum Agraria, Jakarta: Djambatan

Haverfield, R., 1999, Hak Ulayat and the State: Land Reform in Indonesia, Indonesia: law and society. NSW, the Federation Press: 42-73.

Hayami, at. al., 1990, Toward an alternative land reform paradigm: a Philippine perspective, Manila: Ateneo de Manila University Press.

Hidayat, H., 2005, ‘Forest Management Policy Indonesia’,

Availableat:http://www.iges.or.jp/en/fc/phase1/ir98-3 6.PDF#search=%22agrarian%20reform%20in%20indonesia%20during%20new%20order%20regime%22

Hooker, M. B., 1975, Legal pluralism: an introduction to colonial and neo- colonial laws, London: Oxford University Press.

Huizer, G., 1999, Peasant Mobilization For Land Reform Historical Case Studies, Genewa: Theoretical Consideration United Nation Research Institute For Social Development and Grassroots Initiatives For Land Reform, June.

Jakarta Post, 1998, ‘Land Occupation dismissals highlight’.

Koesno, M., 1971, ‘Introduction into Indonesian Adat Law’, Publikaties over Adatrecht 1971 Vol. 3. Nijmegen: Universiteit van Nijmegen.

Konvensi ILO 169, Mengenai Bangsa Pribumi dan Masyarakat Adat di Negara-NegaraMerdeka, Jakarta-Pontianak: Elsam-LBBT.

Lubis, T., 1992, ‘Land expropriation in Indonesia: development for whom?’, paper published by the Center for Human Rights Studies, Jakarta.

Lucas, A., 1990, Land Disputes in Indonesia: Some Central and Regional Perspectives, Yogyakarta: UGM.

Lucas, A., 1992, ‘Land disputes in Indonesia: some current perspectives’, Indonesia, No 53: 79 92

Ladejinski, 1977, Agrarian Reform as unfinished Business: Selected papers, Washington, D.C.: Oxford University Press, London and World Bank

Mahendra, O. A., 1997, Efektifitas Pelaksanaan Hak Menguasai Negara dan Fungsi Sosial Atas Tanah. In A.A Oka Mahendra-H. Hasanudin (eds). Tanah dan Pembangunan. Tinjauan dari Segi Yuridis dan Politis. Jakarta: Pustaka Manikgeni.

McVeg, R. T., 1963, ‘Indonesian Communism and the Transition to Guided Democracy‘ in A. Doak Barnett (editor), Communist Strategi in Asia A Comparative Analyais of Government and Parties, New York/London , 1963, , pp. 148-195;

Menteri Agraria, 1965, ‘Laporan Pelaksanaan Land Reform dan Problem-Problemnya’,

Menteri Agraria, 1959, ‘Laporan Pelaksanaan Land Reform and Problem-problemnya (Appendix B), ‘Departemen Agraria’

Menteri Agraria, 1964, Laporan (Lengkap) Tentang Pelaksanaan Landreform (Daerah-daerah: Djawa Barat, Djawa Tenguh, Djawa Timur, Bali dun Nusa Tenggara Barat), Jakarta: Laporan and Panitya 3 Menteri, 10-31 December 1964.

Moniaga, S., 1998,

‘Advocating for Community-Based on Forest Management in Indonesia’s Outer Islands’, IGES International Workshop on Forest Conservation Strategies for The Asia and Pacific Region, 21-23 July, 1998.

Okomoto, S., 2001, ‘The Movement and Activities of Environmental NGOs in Indonesia Japan NGO Network on Indonesia’, Visiting Researcher for IGES Forest Conservation Project, Policy Trend Report , 13-23.

Prosterman, at. al., 1990, Agrarian Reform and Grassroots Development: Ten Case Studies, London, UK: A Policy Study by the Curry Foundation.

Prosterman, et.al., 2002, ‘Concept For land Reform on Java, Rural Development Institute’.

Available at: http://www.rdiland.org/PDF/RDI_LandReformOnJava.pdf#search=%22land%20reform%20under%20new%20order%20in%20indonesia%22

Quizon, at. al., 1998, ‘How Much Land Does a Person Need? Regional Report and Overview on Agrarian Reform in Southeast Asia, Regional Node: Asian NGO Coalition for Agrarian Reform and Rural Development (ANGOC)’, Philippines, Regional Report: Southeast Asia, Rome, February 1998

Available at: http://www.ifad.org/program/arnetr98angoc.htm

Rajagukguk, E., 1995, Hukum Agraria : Pola Penguasaan Tanah dan Kebutuhan Hidup, Jakarta, Chandra Pratama

Robinson, R., 1981, ‘Culture, politics, and economy in the political history of the New Order’, Indonesia, 31: 1–29 29

Rosser, at. al., 2004, ‘IDS Working Paper 229 Indonesia: the Politics of Inclusion’, England, Brighton, Sussex BN1 9RE, Istitute of Development Studies (IDS), July

Available at: http://www.ids.ac.uk/ids/bookshop/wp/wp229.pdf

Ruwiatuti, at. al., 1997, Penghancuran Hak Masyarakat Adat Atas Tanah: Sistem Penguasaan Tanah, Sengketa dan Politik Hukum Agraria, Bandung: KPA and INPI-Pact

Schweithelm. J. , 2000, ‘Trial by fire_Forest fire and policies on forestry at the time of crisis and reform in Indonesia (in Indonesian)’, World Resources Institute ,28-13..

Sison, J.M., 2005, ‘Reflection on the 1965 Massacre in Indonesia’, Political Consultant of the National Democratic Front of the Philippines (NDFP),18 December Amsterdam, Netherlands

Available at: http://www.etext.org/Politics/MIM/countries/indonesia/indonesia2005.html

Suhendar, E., at al., 1996, Tanah Sebagai Komoditas: Kajian Kritis Atas Kebijakan Pertanahan Orde Baru, Jakarta: ELSAM

Syahyuti, 2001, ‘Pengaruh Politik Agraria Terhadap Perubahan Pola Penguasaan Tanah dan Struktur Pedesaan di Indonesia’, FAE. Volume 19 No. 1 Juli 2001: 21 - 32

Availableat:http://72.14.221.104/search?q=cache:CQO6SEB8JMQJ:pse.litbang.deptan.go.id/publikasi/FAE_19_1_2001_1.pdf+peraturan+land+reform+pada+zaman+kolonial+belanda&hl=it&gl=it&ct=clnk&cd=7

Ter Haar, B., 1948, Adat Law in Indonesia (translated from the Dutch, New York: Institute of Pacific Relations.

Tornquist, O., 2002, ‘Popular Development and Democracy; Case Studies with Rural Dimensions in the Philipines,Indonesia, and Kerala’, Center for Development and the Environment University of Oslo in cooperation with UNRISD, Occasional Paper from SUM, No.3,viii+150pp. and Maxwell.

Utrecht, E., 1969, ‘Land Reform in Indonesia’, Bulletin International Studies, Australia National University, Vol., 5 No., 3. November 1969

Utrecht, E., 1975, ‘The Javenese Dukun and His Role in Social Unrest’, Cultures et Dèveloppement, VII (2), Brusseles.

Warriner, D., 1969, Land reform in Principle and Practice. London: Clarendon Press: Oxford. ISSN: 1356-9228

Weatherbee, D. E., 1967, ‘Ideology in Indonesia: Soekarno’s Indonesian Revolution’, South East Asia Studies Monograph Series No. 8, Yale University, 1967

World Bank, 1998, World Development Report, Washington, D.C.

Yokota, Y. ,2001, ‘Chapter. - Current forest and forestry in Indonesia, and impacts of liberalization of forest products trade on Indonesia. In Impacts of growing trade of agricultural, forest and marine products on land use and environment in livestock industry and forestry (in Japanese)’, Annual Report ,1995-Forest Development Technological Institute. 95-191

Available at: http://www.iges.or.jp/en/fc/pdf/13-23.PDF

Yoshihara, K., 1988, The Rise of Ersatz Capitalism in Southeast Asia. Singapore: Oxford University Press.

Zaman, M., 2002, ‘Resettlement and Development in Indonesia’, Journal of Contemporary Asia,

Available at: http://goliath.ecnext.com/coms2/summary_0199-1716681_ITM

NOTE: Part of this paper is published on Ilmu dan Budaya Journal


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