Ulrich Löffler, (1996):
Land Tenure Developments in Indonesia

3.5 Analysis of traditional adat law practices

The adat law is described as the indigenous normative system of the various Indonesian Societies and Communities [FN 121]. The Indonesian Archipelago can be divided up into 19 different law areas.[FN 122] Adat law varies not only within the 19 law areas. It can also vary considerably within a given law area. Of course, this variation of adat law makes it difficult to establish generalized aspects of community-based law.

The community has the right of disposal (hak ulayat) [FN 123]. One specific aspect of this right is to be found in the interaction of communal rights and individual rights under hak ulayat. This distinction between individual rights and communal rights cannot, however, be clearly drawn. A whole spectrum of rights which cannot be distinctly looked upon as the equivalent of individual or communal rights can be present here, such as anything from pure communal rights (which may be available for land lying fallow) up to pure individual rights (which for example exist in West Java).[FN 124]

To what extent is hak ulayat still significant today? In some regions, the process of dissolving hak ulayat in favor of individualization was already beginning in the 19th century, and in some regions of West Java, Aceh and Madura, the individualization of land ownership was virtually complete by the turn of the century.[FN 125]

The Basic Agrarian Law recognizes communal as well as individual adat rights. However, it makes no regulations for the documentation and registration of communal rights. According to EVERS, it can happen that "in incidental cases, collective titles are registered in the names of all community members concerned - e.g. the Tanah Kaum in West Sumatra; ..."[FN 126]. If adat rights cannot be proven, the land is automatically looked upon as State land.[FN 127]

A further problem is that there is no, or rather only insufficient data which can clarify the actual extent of the areas of land under individual or communal adat rights. In addition, it is estimated that most of these land rights exist on forest land. But forest land is under the responsibility of the Ministry of Forestry and not of the BPN. This means as a rule that no formal land titling and registration can be carried out for this land. Since several Government authorities (Ministry of Forestry, BPN, Ministry of Agriculture, Ministry of Home Affairs, Ministry of Transmigration, Ministry of Mining, etc.) may be involved here, a consistent and transparent plan of action is further made difficult.

In the past 35 years after the Basic Agrarian Law was put into action, innumerable amounts of land under adat rights have been bequeathed, sold and divided up without one single registration or any other formal type of documentation taking place. So the question of what the exact origin of these claims to rights today is, frequently cannot be answered. Are these rights, as one may presume, predominantly ones which are derived from hak ulayat, or are they old individual rights which were granted in colonial times? This means that the often used term "adat rights" is not necessarily always clear. Thus, for example, it is more and more difficult to differentiate between land under traditional landholders from land which has been worked for centuries by farmers and their offspring as so-called outsiders.

After this short introduction to a few problem areas of adat rights, selected aspects of adat rights, such as access rights and restrictions will be considered more closely in the following section, and be made clearer by examples.[FN 128]

Access rights and restrictions

The establishment of community rights of disposal occurs as a rule during the foundation of a settlement when land becomes cleared or cultivated by the community. See as well the example of Sukoharjo / Kabupaten Wedaijaksa on Java in the Box 4.

Box 4: Foundation of the village of Sukoharjo / Java [FN 129]

A central area of adat law is made up of land rights and other resource rights (rights to water and trees). The differentiation between the various resources is necessary since a differentiation between the owner of land and the owner of trees or other (long-term) crops can be made under adat law.

Thus adat law on Ambon differentiates between land rights and rights to trees or crops. Along with this, the rights to land and to the trees on this land can be in completely different hands. Thus the land can belong to the community (dati), while the sago palms may belong to individual members of the community. Since it is normally the children and grandchildren of the person who planted the sago palm, and not the person himself who will use the tree, sago palms on one property can belong to different people, since sago palms can be bequeathed to descendants. Since descendants from the female line as well as from the male line can be considered as heirs, sago palms can be in the possession of different clans.

Other trees of value can have been planted on land between sago palms (durian, manggis or cloves). Some of these trees may have been planted by the current generation and may be in their possession while others may belong to earlier generations. These various legal entitlements may exist on a piece of land only 70 by 70 meters.

It has been reported from West Kalimantan that tanah tembawang, a plot of land on which as a rule a multitude of different trees may be growing (durian, rambutan, tengkawang), can be used by different families. Tanah tembawang is normally to be found in the form of natural preservation areas along streams. Different trees can belong to different members of extended families, and someone who has contributed to the planting of seeds can make a claim to the ownership of these trees.

 

Land and the communal groups are narrowly interwoven. The land is not only the basis for the nourishment of the community, it is the burial ground and the home of the gods.

The community as a group has rights to the land. The representatives of the group control access to the resources for the community members, and can exclude outsiders from using the land.

On Ambon, sago palms, in particular the wild-growing sago, can be the property of a clan (dati property). The distribution of the individual trees to the clan members is in the hands of the dati elders, in particular in the hands of the kepala dati, whose job is the control and administration of tree and land resources. As soon as a particular clan member is assigned a specific tree, he no longer has to share the utilization of this tree with other dati members.

The first of the kabihu (a community in Lawonda on Sumba) who settled in Lawonda is called the mangu tana, or "Lord of the Land". The land is the community-based property of the group. The elder of the kabihu distribute the land to the individual kabihu. Apart from using the individually apportioned land, the kabihu use the communal land for hunting and gathering wild fruit.

The individual access to the resources is determined by the kabihu community, and the access to land is dependent upon the position of the individual in the kabihu. Rank, generation, gender and economic wealth all play an important part here. The higher the position the individual has in the internal hierarchy of the kabihu, the more influence he has regarding the distribution of and access to land. As a rule, it is the "old and wealthy nobility" who rank as "landlords".

Of course, the individual members clear and sow the plots of land assigned to them by the community, and thus produce a specific individual bond to their plots. The stronger the individual relationship to a particular field, the stronger the legal relationship of the individual to the field becomes.

The tree planter acquires individual rights to the sago palms which he has planted which allow him the exclusive utilization of the trees. After the death of the planter, the plant and its off-shoots are bequeathed to the descendants (pusaka or inherited property). Pusaka rights are bound up with individual trees, but the land remains under the control of the dati. However, the land cultivated by the deceased is passed on to the descendants to be used in the form of pusaka.

The Dani in Irian Jaya also differentiate between individual home gardens and community-based rights to forest and water resources.

Where a field has not been cultivated, the land falls back under the hak ulayat of the community, although: "In some law areas, the titles of individual members to their abandoned sawah are maintained for a long time against the claim of the community" [FN 130]. As a rule, the community allows the individual utilization of certain areas of land as long as it is necessary to secure the subsistence of the family, and not for commercial purposes. This regulation also covers hunting, gathering wild fruits, and wood use [FN 131]. Above and beyond this, the individual user can also acquire rights to trees which are growing on communal property. The following individual rights can be valid in a community:[FN 132]

Hak menikmati (right of usufruct)

This concerns the right of use for a cultivation season on community land. The land is individually used for one cultivation season, and the right can be extended for the following season. The use of the land can also be claimed by shifting cultivators by planting valuable trees (fruit or rubber trees) until they return after the fallow period.

Hak milik (right of possession)

The right of possession can arise out of the hak menikmati through stronger individual rights, with which the landowner obtains a personal right to the use of specific plots.

Hak wenang pilih (right of preference)

When land is cleared by the community, the members of the community can choose a piece of land. When fields are re-assigned, the previous user as a rule has the right of preference to the field he has already cultivated.

A farmer can also have a right of preference to the waste land which borders onto his fields.

The chief of the community can exercise personal access to particular areas of land during his period in office. The official fields given to the chief by the community (e.g. dusun dati raja on Ambon) must be distinguished in this case from those assigned by princes to lower royal officials. The latter concerns village chiefs in the royal territories of Java. This right is dissolved when the office holder retires or dies.

Selected aspects of "individual" community land

In the various law areas, the community allocates land to its members for cultivation. These individual rights of use can imply to use the land and may include inheritance rights. Different aspects of individual rights of use and limitations of the disposal of land can be distinguished.

Sale of land

The sale of communal land was originally not permitted. In spite of this, TER HAAR reported in 1948: "Sales by persons who do not have a true title to the law occur again and again."[FN 133]

The adat law also allows the sale and purchase of sago palms on Ambon.

In Lawonda on Sumba, no land purchases had taken place up to the beginning of the 90s.

Land pledging

Land pledging was and is widely spread in rural areas. In this case, "the pledgee has no legal power to demand the repayment of the sum he has loaned the pledgor. Such a step would be utterly at variance with the legal and social character of the pledging of land in the adat system."[FN 134] Here it is the case that the pledgee may keep the land at least until harvest-time before the pledgor can have it back. Where this period of time is longer, which is usually the case, the land may only be sown with annual crops. A report from the Batak states: "...when the pledgor tacitly permits the planting of trees on pledged land, he forfeits his right ever to redeem the land he has pledged" [FN 135]. The pledging of land used to occur in former times only for the fulfillment of adat obligations (e.g. paying the bride price in South Sulawesi).

In the village of Lawonda on Sumba, the practice of pledging land is normal. And when it does, it appears to be extremely difficult for the debtor to regain the pledged land. The situation for the debtor is very difficult because he can lose both the control over and the right to use his land. The pledgor can use the land as he wishes or further pledge it to a third person if the debtor is unable to return the pledgor’s horse or buffalo. As a rule, land on Sumba is pledged to receive a good for ceremonial purposes. This usually means a horse or a pig. Normally there is no time limit agreed upon for the repayment of money.

 

Renting of land

Land can also be rented on Sumba. The amount and the time span of the renting are not always specified. "The borrower often obtains a general indebtedness, and the lender can ask the borrower to provide him with whatever suits the lender best."[FN 136]

Where sharecropping is concerned, the ratio of harvest distribution in Lawonda / Sumba is determined before the harvest. Depending on the arrangement (providing buffaloes), it can be 50 / 50, or if the owner provides the service of the buffalo, he gets 75 %, and the share-cropper 25 % of the harvest.

A report from West Kalimantan tells of a "seedling reward system": [FN 137]"The borrower is allowed to cultivate freely the former shifting cultivation land (as long as the land has not yet developed into shrub and bush fallow) for one or two harvesting periods. But, the borrower must plant and grow a number of local or native clone rubber’s seedlings adequately on the land before he returns the land to the owner."

 

Land gifts

In some cases, land is also given as a present. This is mostly a gift of land from the father of the bride to the newly married couple.

Inheritance of land

There are exact regulations in the individual law areas for the bequeathing of land. This can mean rules for the sharing of property as well as the maintenance of undivided land ownership. Land is bequeathed to male heirs in particular regions (Batak), and to female heirs in others (Minangkabau). It can also happen that all heirs receive a share, or only the eldest son.

Extent of land ownership

In some law areas, there are regulations which hinder the accumulation of land. The individual amount of land should not exceed what the family needs to secure its subsistence.

The adat law on Ambon, however, contains no regulations which could prevent the large-scale ownership of huge sago reserves.

 

Restrictions on utilization

There are for example regulations for keeping particular fallow periods. The cultivation of tree and bush crops can also be restricted to particular areas.

Areas of the land of the dani in the highlands of West Irian Jaya are used for planting for 2-3 seasons, and then they must be left fallow for 7-10 years.

A part of kabihu land in the village of Lawonda on Sumba is reserved for ritual purposes. One of these is the so-called tana da pabari. On these areas of land, which for the most part are near water springs and along rivers, trees may not be felled. This land has always been community land and may not be used as residential land.

Land which has been used for religious ceremonies may also not be used for settlement or cultivation. Although the land in the village of Lawonda is no longer used for ritual purposes, a few regulations have remained. A house has so far never been built on sacred land or in the vicinity of a spring.

 

Preferential rights

The village founders, or rather their descendants, have a preferential position in the community regarding the access to land resources. Outsiders can only use community land with the permission of the village chiefs. Small gifts to the chiefs are frequently involved in obtaining this permission. As a rule, the following applies: "Only when outsiders have lived in the community for generations do they acquire a more clearly fixed title to their fields."[FN 138]

In the highlands of West Irian Jaya, permanent (i.e. bequeathed) rights to land are also inextricably bound up with kinship. Therefore, these rights cannot be awarded to an outsider without the outsider integrating himself in some way into the kinship.

It has been reported from Sumba that immigrants from other areas, usually government officials, or an organization in Sumba, ask about land. They want, for example, to purchase a piece of land to build a house and to have a garden where they can plant their own rice crop. Asking the kabihu on Sumba for a piece of kabihu land is the same as making the attempt to be accepted into the community. Thus the acquisition of land would require the same ceremonies required when someone wants to marry the daughter of a landowner.