Study of the Agrarian Law has been done by various groups, both in the form of reference books, scientific journals and in the seminars and symposium, titled Agrarian. But these studies are not so focused study of the history of land law, how the birth of the agrarian law in Indonesia through the establishment of the Basic Agrarian Law of 1960. Discourse even to amend the Basic Agrarian Law, which further in this paper is called BAL, continue to adjust the rules in the field of agrarian-to-late which was considered not accommodate the development of society. This proves that the law - in particular agrarian law - continue to evolve with the development and the needs of society, it is necessary for a scientific study of how the history of the series (the law) Indonesian agrarian law to determine any developments taking place in the agrarian field. Thus, at least it can be obtained from a review of the material to be used as a handle in revision (law) against the agrarian law.
Substance to be discussed in this short paper focuses on the history of the land law as one of the integral parts of the Indonesian legal system memanikan important role in community development efforts in order to realize the ideals and objectives of the State. In his study of the agrarian law of the authors conducted a study of the historical approach. This is important because the authors consider legal developments agararia future will not be apart of the process and the underlying pergelutan birth of this agrarian law. Further legal history of why this approach is necessary due to the following reasons:
1. Law not only changed the space and layout, but also in time and time trajectory. This applies to formal sources of law, namely the appearance of the forms of legal norms, and the content of the legal norms themselves (the sources of material law).2. Legal norms today often only be understood through the history of law. Henri De Page author about an important work Traite de Droit Civil Elementaire published in the years 1930-1950, he argued that the advance in civil law, the more he believes that the history of law, logic and precedence over legal doctrine alone can explain why and how legal institutions we appear on the surface like existence today.3. Many have little understanding of the history of law, in essence is an important handle for novice jurist to know the culture and public institutions.4. Matters of tremendous importance here is the protection of human rights against arbitrary actions, that the law placed in its historical development as well as fully recognized as a historical phenomenon.
Importance of the various reasons why a study of legal history, the authors consider it necessary to review the history of Indonesian agrarian law. Thus, at least an overview of the law can be seen as a symptom agrraria Indonesia which is inseparable from the process of the past. From the above description, panulis pour the study of legal history in a simple paper with the title "Indonesian Agrarian Law: History and Development"
CHAPTER IIDEFINITIONS AND SCOPE OF AGRARIAN LAW
A. Agrarian understanding.
Sampoerna Harsono understanding agrarian distinguish three perspectives, namely the agrarian sense in the general sense, and understanding agrarian Administration based on the Basic Agrarian Law.  The first in a general perspective, agrarian derived from the Latin ager, meaning land or plot of land. Agrarius means cultivation, rice, agriculture. According to the Big Indonesian Dictionary, 1994, Second Edition Third Printing, Agricultural meaning farm or agricultural land affairs, as well matters of land ownership. Then the term in English agrarian or agrarian always dairtikan attributable to the land and agricultural businesses. Designation agrarian laws and often used to refer to the legal regulations aimed at holding the distribution of vast lands in order to be leveling control and ownership. In Indonesia designation Administration agrarian environment in terms of land use, both agricultural and non-agricultural land.But Agrarisch Recht Agrarian Law in the environment or public administration is limited to the laws and regulations that provide the legal basis for the authorities to implement policies in the land sector. So the law is part of a state administrative law.Designation Agrarische wet, Agrarische Besluit, Agrarische inspectie on Van Binnenlandsche Bestuur department, Agrarische regelingan in the set Engelbrecht, part agrarian pad the interior ministry, the minister of agriculture, ministry agraira, department of agriculture, minister of agriculture and agrarian, agriculture and agrarian department, director of Gen agrarian , directorate general of the department of domestic agrarian, all imply that meaning.In 1988 the National Land Agency by Presidential Decree No. 26 of 1988, which is a non-departmental government institution responsible for assisting the President in managing and developing land administration. Land use designation as the agency name does not change or reduce the scope of duties and authority that previously existed in the department and the directorate general agrarian. Instead it provides clarity and discernment regarding the scope of agrarian sense used in the public administration. The land administration includes both land on land and under water, either inland or sea water.The existence of the post of Minister of Agrarian / Head of National Land Agency in the Cabinet Pembagnuan VI, also does not change the scope of the agrarian sense. The job title seems to indicate, that the task of the authority of the Minister of Agriculture is more comprehensive and not limited to the scope of his duties as head of the National Land Agency, called the Presidential Decree Number 26 Year 1988.In Presidential Decree No. 44 of 1993 is determined, that the Minister of Agriculture in charge of principal on matters relating to keagrariaan danmenyelenggarakan among other functions: c. Coordinate all activities related to Government Agencies keagrariaan in the implementation of the government's overall program. Dengna the coordination function of Agrarian Minister who chairs the Department of Agrarian first, that in the arrangement of the Cabinet Development of VI is on the National Land Agency.Though not stated explicitly, but from what was stated in the preamble, clauses and explanations, it can be concluded, that the notion of agrarian and agrarian reform in the BAL is used in a very broad sense.Understanding agrarian include earth, water and the natural riches contained therein. Within the limits as prescribed in Article 48, even covering space also. Ie the space above the earth and water containing: power and the elements that can be used for efforts to maintain and promote fertility earth, water and the natural riches contained therein and other matters concerned with it.Understanding the earth covering the earth's surface (called the ground), as well as the body beneath the earth under water yangberada (Article 1 (4) jo.Pasal 4 paragraph (1)). Thus the notion of soil covering the earth's surface that is in the earth's land surface and under the water, including sea water.In connection with the earth covering is also what is known as the Continental Shelf Indonesia (IFI). This factsheet is a seabed beneath the earth and the body outside the territorial waters of the Republic of Indonesia established by Law No. 4 Prp/1960, to depths of 200 feet or more, where it is still virtually impossible sksploitasi held exploration and natural resources. Full control and exclusive rights over natural resources in the IFIs and ownership is in the Republic of Indonesia (Act No. 1 of 1973) (LN. 1973-1, TLN 2994).Definition of water covering both inland and marine waters of Indonesia (Article 1 paragraph (5)). In Law No. 11 Year 1974 on: Irrigation (LN 1974-65) understanding water is not used in the sense that it is an area. understanding includes water and contained in or derived from sources of water, including well water contained in the sea (Article 1 paragraph 3).Natural resources contained within sidebut earth mineral deposits, the chemical elements, minerals, ores and rocks of all kinds, including precious rocks which are natural deposits. Law No. 11 Year 1967 on: Basic Provisions of Mining (1967-227 LN, TLN 2831).Natural wealth contained in the water is fish and other natural resources that are in the inland waters and territorial sea of Indonesia. (Act No. 9 of 1985 on: Fishing, LN. 1985-46).
In connection with alma wealth in the earth and the water body perlku understood the terms and institutions Exclusive Economic Zone, which includes the waterways with the outer limit of 200 milli sea measured from the base of the marine areas of Indonesia. Sovereign rights in the EEZ for melakukamn exploration, exploitation and other natural resources for all biological and non biological located on the seabed and tuuh earth beneath and the water in it, is in the Republic of Indonesia. (Act No. 5 of 1983 concerning: the Exclusive Economic Zone LN. 1983-44).While, A.P. Parlindungan state that has the scope of agrarian sense, ie in the narrow sense, can form over land rights, agricultural atupun course, while Article 1 and Article 2 of the BAL has taken a stance in terms of widespread, namely earth, water, space and wealth nature contained therein.Of restriction in the BAL agrarian given above is similar in scope to the terms of space in the law No. 24 of 1992 concerning: Spatial Planning. According to Article 1 paragraph 1 stated that space is a container that includes a land, sea space, and space udata as a whole region, where humans and other creatures live and conduct activities and maintain its viability.From the above description of the agrarian sense, it can be concluded sense agrarian agrarian to distinguish meaning in a broad sense and understanding of agrarian in the strict sense. In a narrow sense, agrarian just covering the earth is called the land, while the agrarian sense in a broad sense is covering the earth, water, space, and natural riches contained therein. Understanding soil is meant here is not in the physical sense, but in terms of juridical ground, namely the right. Understanding agrarian contained in the BAL is agrarian sense in a broad sense.
B. Understanding Agrarian Law.
Some legal experts provide an understanding of what is meant by the agrarian law, among others, some are mentioned below.Subekti and Tjitro Subono, agrarian law is the overall provisions of civil law, constitutional, administrative, governing the relationship between people and the earth, water and air space in all regions of the country, and regulates the authority that comes on the huungan.Prof. E. Utrecht, S.H. stated that the land law is menjadai part of administrative law negaram for reviewing the legal relations between people, earth, water and air space that meliatakan officials in charge of taking care of the agrarian problem.Moreover, according to Article 2 paragraph (1) BAL, the Agrarian Law targets include: earth, water and air space, including natural riches contained therein, as commonly called natural resources. Therefore understanding the agrarian law by BAL has a sense of land law in the broad sense, which is a group of various laws governing property rights over natural resources that include:
1. Land laws, which regulate the rights of land tenure in the sense of the earth's surface;2. Water laws, which regulate the rights of possession of the water;3. Mining laws, which regulate the rights of control over mineral deposits that are intended by the principal mining legislation;4. Fisheries laws, which regulate the rights of control over the natural resources contained in the water;5. Forestry laws, which regulate the rights of possession of the forest and forest products;6. Legal power and mastery over the elements in space (not space law), the rights of power and mastery over the elements in a space intended by Article 48 of the BAL.
While understanding the agrarian law in the strict sense, only covers the Land Law, the law that governs the rights of land tenure. What is meant here is the land in accordance with Article 4 paragraph (1) BAL, is the ground level, which is in use in accordance with Article 4, paragraph (2), covering the body of the earth, water and space, which is on it, just needed to interests directly related to the use of land within the limits according to BAL, and other legal regulations perturan higher.
C. Land Law.
In terms of agrarian context, means the land surface of the Earth's outer dimension two with a length and width. The law of the land here buakan regulate land in all its aspects, but only set that is only one aspect of the so-called juridical aspects of the rights of land tenure.In law, land is a real thing in the form of the surface of the Earth's physical and what is it called a man-made fixtures. However his main concern is not land it, but the aspect of ownership and control of land and its development. Object attention is the rights and obligations with respect to land owned and controlled in a variety of forms of land tenure.Thus, it is clear that the land in the jurisdiction is Artu earth's surface, while the land rights of the right to certain sebagiaan earth's surface, which is bounded, two-dimensional with a length and width.The definition of land rights is the right to authorize the holder to use and / or take advantage of the land dihakinya. The provisions of Article 4 paragraph (2) BAL, kepda land rights holder is authorized to use the land in question, as well as the body of earth and water as well as space on it than is necessary for the immediate interests associated with the use of the land within the boundaries according to the BAL and other legal regulations higher.
Hierarchy of rights to land tenure in the national law of the land is:1. Indonesian people over land rights;2. The state is on the ground;3. Customary rights of indigenous peoples;4. The rights of individuals, including;
a. Rights to land, includes:1). Property rights;2). Right to cultivate;3). Right to build;4). Use rights;5). Rental rights;6). Open land rights;7). Forest usufruct;8). Rights which are not included in these rights above that will be set by the law and the rights of temporary as mentioned in Article 53 (BAL).
b. Waqf land property rights;c. Security rights over land (mortgage);d. Ownership of the apartment units.
The law of the land is the overall provisions of the law, written or unwritten, that all objects have the same settings that the rights of tenure as legal institutions and the legal relations of concrete, beraspek public and private, which can be prepared and studied systematically, until the whole as one that represents a system.
Object is the law of the land tenure rights are divided into 2 (two), namely:
1. Land tenure rights as a legal institution;Land tenure is not connected to the land and a particular person or entity as the subject or the rights holder.2. Land tenure rights as a concrete legal relations;Land tenure has been linked to certain rights as an object and or a person or body specified as the subject of the right holder.
In relation to the legal relationship between the rights holder to the right to land, there are two (2) kinds of principles in the law of the land, namely: the principle of separation of horizontal and vertical attachment principle.Horizontal separation principle is a principle of land ownership mendasrkan with memisahakan ground of all objects attached to the land. While the principle is the principle of the vertical attachment mendasrkan landholding san any objects attached to it as a unit that plugged into one.Horizontal separation principle is the base or foundation is a concrete background rules that apply in the field of land law and customary law in the regulation of this principle is shared by BAL. While the principle of sticking a vertical base or rationale underlying the land law in the regulation of the Civil Code.In his book, Djuhaendah Hasan argued that since the enactment of the Civil Code of this principle is applied both side by side in accordance with the applicable legal system today is (still dualistic) in the period before the legal entity in the land before the BAL. Since the enactment of the BAL, the provisions of Book II of the Civil Code throughout the earth, water and wealth in it has been removed, except on mortgages. Thus the settings of the law of the land today have a single legal entity (legal unification) is only one law that applies only land that is set out in the BAL and berasaskan customary law (see Section 5 BAL).
D. Source Agrarian Law.
1. Written Sources of Law.a. Act 1945, in particular in Article 33 paragraph (3). Where in Article 33 paragraph (3) is determined:"Earth, water and the natural riches contained therein shall be controlled by the state and used for the people's welfare".b. Basic Agrarian Law.This legislation contained in Law No. 5 of 1960 on:Basic rules Agrarian, dated 24 September 1960 was enacted and published in the Official Gazette in 1960-140, and descriptions published in the State Gazette number 2043.c. Legislation in the field of agrarian:1). BAL implementing regulations2). Pertauran that regulate matters that are not required but are needed in practice.d. The old rules, but with certain conditions based on rules / Article inbetween, is still valid.
2. Sources of Law Not Written.a. New habits that arise after the enactment of the BAL, for example:1). Jurisprudence;2). Agrarian practices.b. The old customary law, with certain conditions, the flaws have been cleared.
CHAPTER IIIAGRARIAN LAW AND POLITICS OF COLONIAL
A. Colonial Agrarian Law.
In terms of validity, the Agrarian Law in Indonesia can be divided into two (2), namely:1. Colonial agrarian law in force before Indonesia's independence applies even before the enactment of the BAL, which is dated 24 September 1960, and2. National Agrarian law applicable after the enactment of the BAL.
BAL of the preamble under the word "weigh", can be seen some characteristics of colonial agrarian law in letter b, c and d, as follows:1. Agrarian law which is still valid today is partly organized by destination and the joints of the colonial government and partly influenced by it, to conflict with the interests of the people and the country in addressing today's national revolution and the development of the universe;2. The agrarian law has the nature of duality, with the enactment of the law in addition to the customary land law which is based on Western law;3. For the native people of the colonial land law does not ensure legal certainty.
Some provisions of land law in the colonial period and its characteristics and nature can be described as follows:
1. Before 1870.a. At the time of the VOC (Vernigde Oost Indische Compagnie).VOC didirkan in the year 1602 - 1799 as the trade body in an attempt to avoid competition between Dutch merchants at the time. VOC does not change the structure of land tenure and ownership, except taxes and forced labor outcomes.Some political wisdom agriculture very oppressive Indonesian people established by the VOC, among others:
1). Contingenten.Tax on agricultural land results must be submitted to the colonial rulers (Compagnie). Sebgaian of farmers must submit their crops to the Compagnie without being paid a dime.
2). Verplichte leveranten.A form of the decisions taken by the Compagnie with the kings of the obligation to surrender the entire crop with payment price is fixed unilaterally. With this provision, peasant folk really can not do anything about it. They had no power over what they produce.
3). Roerendiensten.Keijaksanaan is known as forced labor, imposed on the people of Indonesia that has no agricultural land.
b. The Reign of Governor Herman Willem Daendles (1800-1811).The beginning of a change in the structure of land tenure and ownership with the sale of land, private land to rise. The policy is to sell the land to the people of Indonesian-Chinese, Arabic and Dutch nation itself. Land was then called private land. Eigendom private land is land that has special properties and patterns. What distinguishes the other eigendom land rights is the existence of the state that is pamiliknya called landheerlijke Rechten or seignorial rights. Seignorial rights, for example:a. The right to appoint or dismiss certify ownership and clod-head village / village;b. Right to demand forced labor (corvee) or collect compensation from residents forced labor;c. The right to hold levies, either in cash or crops of the population;d. The right to establish markets;e. Right to levy user charges and crossing the street;f. The right to require that residents three days once cut grass for the purposes of landlords, one day a week to keep your home or warehouses and so on.
c. The Reign of Governor Thomas Stamford Rafles (1811-1816).At the time Rafles all land under the control of government is expressed as eigendom government. On this basis each charged pahaj earth ground.From the research Rafles, land ownership in the autonomous regions in Java, concluded that all land belongs to the king, are people just wear and work on it. Because the power has shifted to the British Government, then as a result of the law is that ownership of the land itself dngna switch also head the King of England. Thus, the lands occupied and used by the people it was not hers, melainka belongs to the King of England. Therefore, they are required to provide land tax to the King of England, as previously given to the king of their own.
Some of the provisions relating to land tax can be explained as follows:a. Indirect land tax imposed on landowners, but was assigned to the village head. The village chief is authorized separately set the amount of rent to be paid by each farmer.b. The village head was given carte blanche to make changes to the ownership of land by farmers. If it is necessary to expedite land tax revenue. Can be reduced to the extent of its control or can be revoked, if the farmers concerned are not willing or is unable to pay the land tax set for him, the land in question will dinerika to other farmers who can meet them.c. Practice of overturning the land tax law governing land ownership of the people as the amount of power fist village. Tanahlah the widespread ownership should determine the amount of tax to be paid, but in practice it is land taxation precisely the opposite effect. The amount of rent that could dibayarlah determine the amount of land that may be controlled by a person.
d. The Reign of Governor John van den Bosch.In 1830 the Governor-General van den Bosch set pertanhan policy known as the cultivation system or Cultuur Stelsel.In the system of forced cultivation, farmers were forced to grow a certain crop types that are directly or indirectly lengsung paa required by the international market at the time. Agricultural products was submitted to the colonial government without getting anything in return, while the people who do not have a farm labor is required to submit a one-fifth part of his employment or 66 days for a period of one year.Government monopoly with a cultivation system in the agricultural field has limited private capital in large agricultural field. In addition to the authorities basically it does not have its own land large enough to guarantee strong in order to establish and manage the land with quite a long time. The work done by private entrepreneurs at that time was a lease land from the state. Regular use within lands leased state land is still empty nyang.
2. After 1870 (Dutch administrative law of the land).a. Agrarische Wet (AW).In 1870 was born Agrarische Wet which is an important staple of the agrarian law, and all implementing regulations issued by the government of the time as the beginning of western agrarian law. The initial idea dikelularkannya Agrarische Wet (AW) This is in response to kaingina foreign companies engaged in agriculture to flourish in Indonesia, but the rights of the people of the land shall be guaranteed.AW is undnag-law in the Netherlands, which was published in 1870, with the enactment in S.1870-55. inclusion into Indonesia, by inserting Article 62 RR, which at first consisted of three paragraphs, with the addition of paragraph 5 of Article 62 is that RR to 8 paragraph, namely paragraph 4 to paragraph 8. Article 62 RR ultimately became Article 51 IS.
Article 51 This IS includes:
Paragraph (1)Paragraph (2)
Governor-General may not sell the land.Inside This prohibition does not include land that is not extensive, the intended expansion of towns and villages as well as crafts erect buildings / industrial.Governor-General may lease land ditetpakan circuitry with ordinance provisions. There is also the lands that had been opened by the Indonesian native, or owned by the village as a place of public grazing or any other criterion should not be dipersewakan.According to the regulations stipulated by the ordinance granted land rights Erfacht for no more than 75 years.Governor-General guard lest there penberian rights are violated indigenous rights.Governor-General should not be taking the lands that had been opened by the indigenous Indonesian people for their own purposes, or lands belonging to the village as a general tempatpengembalaan on other grounds, except in the public interest and based on those of Article 133 for the purpose of cultivation which was held on superior orders with compensation for the land.Land owned by indigenous Indonesian people with Property Rights (the right to use the individual hereditary) at the request of the rightful owner provided him with a view lands with necessary restrictions set by ordinance and stated in a letter eigendomnya, namely regarding the obligations against the state and country as well as the authority to sell it to instead indigenous Indonesian people.Land rent or land handed over for use by the indigenous Indonesian people, the indigenous people of Indonesia not done according to the regulations established by ordinance.
AW formation of an effort to pressure from the business community in the Netherlands is that due to the success of its excess capital, thus requiring new businesses to invest. With ample supplies in the woods tana unopened Java, it requires employers given the opportunity to open a business in the area of large estates. In line with the growing spirit of liberalism demanded the replacement of state monopolies and systems of forced labor in carrying cultuur stelse, dengna sisitem bebasa competition and free labor system, based on the conception of liberal capitalism.Demands for mengakihiri cultivation system and forced labor with the business objectives, in line with the demands of groups based on humanitarian considerations lein in the Netherlands, which start viewing the very great suffering among the Javanese farmers, as a result of misuse of authority in implementing cuktuur stelsel by the officials concerned.The clear purpose of the issuance is to open kmeungkinan AW and legal guarantees to private entrepreneurs to thrive in Hindi Netherlands.
Additionally AW also aims to:a. Attention to private companies that have capital through:1). Giving state land to the right Erfacht yangberjangka long time, up to 75 years.2). To make it possible for entrepreneurs to lease customary land / people.b. Noting kepentigan native people, by the way:1). Protect the land rights of indigenous people.2). Giving to the native people to acquire new land rights (Agrarische eigendom).For the implementation of the AW, then further stipulated in regulations and decisions, including the Agrarische Besluit.
c. Agrarische Besluit (AB).
AW implementation of the provisions stipulated in the regulations and decisions lanjuta. One of the most important decisions is what is published in the Royal Besluit (KB), which became known as Agrarische Besluit (AB), S.1870-118.AB consists of three chapters, namely;1). Chapters 1-7 on land rights;2). Article 8-8b on the release of land;3). Article 19-20 of the regulatory mix.
In Article 1 AB The principles contained one statement that is essential for the development and implementation of administrative law Hindi Dutch soil. Principle is considered as a lack of respect, even "rape" the people's rights to land are rooted in customary law.
AB stated in Article 1 that:"Behoudens opvolging van de tweede en der voormelde Derde completely turning away wet, blijft beginsel gehandhaafd het, dat alle grond, waarop niet van anderen reght eigendom wordt bewezen, van de staat domain is".
If translated:"Without prejudice to the provisions of Article 2 and 3 Agrarische Wet, still maintained the principle, that all the land that other parties are not able to prove the right eigendomnya, is the domain of the state (owned) state".
AB applies only to Java and Madura, then what is stated in Article 1 AB, known as Domein verklaring (Statement Domein) semulanjuga applies only to Java and Madura. But then the statement also applies to the domain of direct rule areas outside Java and Madura, with an ordinance that was enacted in S.1875-119a.The purpose of the statement is to provide the domain of firmness so that there is no doubt, that the only competent authority to give land to another party is the government.With the domain statement, then lands in Hindi Netherlands is divided into two types, namely:
1). Vrijlands Domein or free state land, the land on which the inhabitants of the earth there is no right son.2). Onvrijlands negra Domein or land is not free, the land on which there is a right and rural residents.
In practice, the domain of a statement has two functions, namely:1) As the legal foundation for the colonial government to provide land to the western rights as stipulated in the Civil Code, for example, view lands, opstal rights, and rights erfacht.2) For the purposes of proof of ownership, ie, if the state litigants, the state did not prove the bullet eigendomnya rights to land, but must demonstrate that other piha rights.
To note that the Indonesian people's rights over the land are based on customary law, customary law while the legal provisions adak not the same as Article 570 BW, then the premises as well as all the land of the people of Indonesia, including to state land (domain state). Which does not include state land, according to the Dutch government, the lands are as below:1). Tanh-ground autonomous regions;2). Soils become eigendom others;3). Partikulir lands;4). Eigendom agrarian lands (Agrarische eigendom).
d. Erfacht Ordinance.Erfacht regarding entitlement to entrepreneurs, according to the ordinance AW should diataur. So daka encountered in the implementation of the regulations erfacht rights, namely:a. For Java and Madura, except unoccupied areas:1). Agrarische Besluit (S.1870-118) Article 9 to 17;2). Ordinance contained S.1872-237a, which amended several times, most recently in 1913 and enacted in the rearranged S.1913-699.b. For outside Java and Madura, except unoccupied areas: originally there was some ordinance that regulates matters concerning entitlement erfacht applicable in certain areas,1). S.1874f to Sumatra.2). S.1877-55 for residency Manado.3). S.1888-58 regions separately Zuider-en Oosteradeling Borneo.In 1914 an ordinance was enacted separately all government area directly outside Java and S.1914-367 contained in the new Ordinance was known as "Erfachtordonantie buitengewesten". All the old ordinance withdrawn unless its Article 1, respectively.c. For autonomous regions outside Java:S.1910-61 set in as erfachtordonantie Zelfbesturende Landschappen buitengewesten. Applicability in each autonomous as prescribed by the Governor-General.Before the ordinance was in the autonomous regions outside Java are not entitled erfacht, but concessions to companies large garden.Leasing land to the people of a large plantation companies also regulated by ordinance, which has undergone changes to:1). Grondhuurordonantie (S.1918-88), which is applicable in Java and Madura, except Surakarta and Yogyakarta;2). Vordtenlands Groondhuur Reglement (S.1918-20), which applies in the autonomous regions of Surakarta and Yogyakarta.
e. Agrarische Eigendom.Agrarische eigendom is a Koninklijk Besluit dated 16 April 1872, No. 29, on the right Agrarische eigendom.What is meant by Agrarische eigendom is a right which aims to give the Indonesian people / indigenous, nsuatu strong rights over a piece of land. Agrarische eigendom this, in practice to distinguish the view lands as defined in sec-BW.Agrarische eigendom stipulated in Article 51 paragraph (7) IS, further stipulated in Article 4 AB then be further regulated in KB on 16 April 1872 Number: 29 (S. 1872-117) and S. 1837-38. by KB tersbut, ordinances obtain eigendom Agrarische described below, namely:
1). If someone native Indonesian (= earth son) expects the title to the land, converted into Agrarische Rights eigendom, then pemohonannya must be submitted to the Chairman of the local District Court, that he set as its owner. This is called: uitwijzing van erfelijk individucel gebbruikrecht. This is only possible if the land in dispute lkuar, meaning without the other party litigants.2). This held for all previous announcements, in the village concerned to allow a third party who feel berkepentigan will file objections to the petition uitwijzing van erfelijk individucel gebbruikrecht above.3). With decisions based chairman of the district court, then Agrarische eigendom be given to the applicant by the concerned district acting for and on behalf of the governor general administration.4). Agrarische eigendom which have been obtained from the regents, the Agrarische eigendom must didafatarkan according to the rules as contained in S.1873-38, and the owner will receive a letter of proof of entitlement.5). Any transfer of rights, the imposition hypotheek Degnan, must be registered at the Office of the District Court.
The purpose of Agrarische eigendom actually aims to give indigenous Indonesian people with a strong right alone, which is certainly his right as registered and can be burdened with hypotheek. But in practice the opportunity to replace his right to be Agrarische eigendom not much used.
3. Land of the Civil Law (Law Book of the Civil Code).
Civil Code in force in Indonesian politics is a Dutch law that enforces the Civil Code in force in the Netherlands, with some changes, based on the principle of concordance applied in Indonesia.Relation to the enforcement of civil law in the Netherlands Indies should also be noted the Dutch political law that apply to law enforcement for residents of the Dutch East Indies at that time, the legal political classification that divides the population into three classes of population groups as dimakasud in Article Article 163 IS (Indische Staatsregeling) namely:1). European groups and equalized with him;2). East-Foreign group; consisting of Chinese and Foreign Orientals Group non-Chinese like Arabic, Indian, and others;3). Bumi Putera groups, namely indigenous Indonesian groups consisting of all the tribes that exist in Indonesia.
Thus in Indonesia, there are a variety of civil law (pluralistic). First, there are laws that are tailored to all classes of citizens, as already described above:1). Native to the Indonesian people, apply Customary Law, the law that have been enacted long ago among the people, who are still largely written, but living in the actions of the people, mangenai all matter in people's lives.2). For native country nationals coming from China and Europe apply the Code of Civil shrimp (BW) and the Code of Commercial Law (WvK), with the understanding that for the Chinese about the BW there is little deviation bagain 2 and 3 Title IV of Book I (which precedes the wedding ceremony and the "detention" marriage) does not apply to them, and for them there is also "Stand Burgirlijk own. Furthermore, there is also a rule about adoption (adoption), because it is not well known in the BW.
As a result of the politics of the law, as well as the civil law, the law of the land is double or dulaistik structure, with the same force of law rules of customary land, which originated in the unwritten customary law and the law of the land west of the main points contained in the provisions Civil Code, which is the second book written law.This means, that the legal relations and legal events among the people of the sons of the Earth group completed under the provisions of customary law respectively. Similarly, among those of other groups. Ditetpkan law is the law applicable to each class.The legal relations between indigenous peoples and non-indigenous people settled the so-called Law of Inter-Group or intergentiel law. In the event such a legal relationship arises the question which law applies. The question arises because the Dutch government adopted apayang called the principle of equality or equality award for stelse-stelsel applicable law, both western law, customary law and indigenous groups indigenous groups instead of east China's foreign. No one of them is superior or valued higher than others. So in resolving legal events between groups does not necessarily stelsel one particular law that must be applied.Concerning laws governing land law in the Civil Code Civil Code Book II is over concerns about the earth, water and air space.In book II of the Civil Code, there are several types of western land rights are recognized:1) Land eigendom, which is a land rights ang owner has absolute power over the land;2) Land rights opstal, which is a right which authorizes the holder to have something on the ground eigendom, other parties can form a home or building, plant and so on in addition to the rights opstal giving authority to the objects the right holder also given the authority-authority that is:a). Transfer the objects that they are entitled to another party;b). Can be used as security for debt;c). Can be inherited.With opstal rights record has not expired according to a predetermined agreement together.3) Land erfacht rights, namely the right to be cultivated / cultivate the land of others and draw or results as much as possible from the land, rights holders erfacht keweangangan similar to kewewnangan opstal rights.4) Land rights gebruis, the land use rights of the land of others.
In addition to the rights to the land west of the above, there is also a land with rights of Indonesia, such as lands with customary rights, the so-called customary land rights. There is also a land with rights created by the Dutch East Indies as agararische pemerintha eigendom, landerijn bezitrecht. Also with the rights of autonomous government creation, such as grant sultan. Lands with indigenous rights and the rights of the Dutch East Indies pemerintha creation and self-government, can be called the Indonesian land rights, the broader scope of customary land rights.Western land rights can be said that almost all of them listed on the Office of Ordinance Overschrijvings Ambtenar according Overschrijvings S. 1834-27 and mapped according oelh Cadastre Office cadastral regulations. Western land rights is subject to the law of the land west. It means that the rights and obligations of the right holder, the requirements for holders of rights, matters concerning land dihaki, sert aperolehannya, assignment provisions set menuurut western land law.Customary land rights have not been registered almost everything. The lands subject to the unwritten customary law. Customary land rights, which comprised the so-called tanh-masayrakat msyarakat customary law and customary land individuals, such as indigenous property rights, constitute the bulk of the realm of Hindi Netherlands. For land rights autonomous government creation, in areas of East Sumatra swpraja rights owned by autonomous government creation. In the area known as the Sultanate of Deli tanh-land that belongs to the so-called:1) Grant Sultan sort of customary property rights, granted by the autonomous pemrintah, especially for the subjects of self-government, self-government officials listed in the office;2) Controleu Grant, awarded by the autonomous regional government for not autonomous subjects, listed in Controleur office (official Dutch civil pangreh);3) Grant Deli Maatschappij, located in the city of Medan and Deli provided by Maatschappaij, also listed in the corporate office. Maatschappaij Deli is a company that has a large tobacco plantation and have to move as well in the field of public services and land, acquire large tracts of land from autonomous government Deli with Grant. The land is criss-crossed and given to the needy by the Deli Maatschappaij to also grant a "sub-grants" known as "D grant", singkatatan of grant Deli Maatschappaij.4) The right concessions for plantation companies, granted by the autonomous government and registered in the office of the resident.
4. After the year 1942.
In the period after 1942, the situation is likely to occur:a. Chaotic period in the field of land administration resulted pemanfaatana discretion and control of land is not orderly;b. The main objective, to support the business interests of Japan;c. Beginning akupasi wild on estate lands or illegal logging;d. Reimbursement efforts Dutch-owned plantations;e. Physical damage due to political bumihangus soil and land use beyond the limits of his ability.
During the colonial period the above circumstances Indonesian agrarian law under customary law can not be separated from the local customary law, among others, the law is written, communal, and cash is straightforward. While the land mengenaihak know other terminology;a. Fellowship over land rights, namely the right ulayatl;b. Individual rights to land:1) Property rights, the right foundation;2) select the right treatment, the right mendahulu;3) The right of enjoying the results;4) The right of use;5) The right of return position;6) The right handed buy.
This colonial land rights are not listed, even if there is only aiming for proof of deposit of tax already paid by the owner, so it is not as formal judicial evidentiary rights.
5. Independence Until The Agrarian Law of 1960.
Proclaimed Indonesian independence on August 17, 1945 by Soekarno-Hatta on behalf of the Indonesian nation lead nation of Indonesia gained sovereignty in their own hands. At that time the land occupation by masyarakt has become very complex because people who have not had the opportunity to occupy the estates of land in a short time trying to occupy the land. Since its recognition by the Dutch keadulatan the Indonesian state, then the government began to restructure the occupation of the land by the people to do the following things:a. Logging back how much land and the number of people seeking land for plantation agriculture. Breadth in Malang area ± 20,000 ha of plantation land. occupation by people of ± 8.000 Ha. Kediri area land area of ± 23,000 ha plantation. occupation by people of ± 13,000 ha. and according to estimates of plantation land in Java that of ± 200,000 ha. people have occupied an area of ± 80,000 ha.b. Plantation land occupations that experienced by almost all plantations will eventually hamper the rebuilding effort is an important branch of production for the country as well as slow down the rapid expansion of plantation production results are greatly needed. Most of plantation land located in a mountainous area so taidak suitable for agriculture, for it needs to be disciplined.c. Pemakian estate lands are located in the mountainous area bahayb feared would cause erosion and water absorption.d. Land use by people in some areas cause tension and turbidity that endanger security and public order.
To that end, the Government issued Law No. 8 Year 1954: Completion matter Estate Land Use by People. Completion will be attempted storey 2 (two) as follows:a. First stage; labored to advance the agenda will be looked for everything on the basis of the settlement agreement between the owner of the plantation and the people / tenants;b. The second stage: when the negotiations referred to in paragraph 1 (a) is not successful, then in order to serve targeted completion of the cultivation of plantation land will take its own policy with respect to:1) The interests of the people and the interests of the population, where the plantation yangbersangkutan;2) The position of plantation companies in the country perekonomuian arrangement.
In order for the implementation of the decision to run with the best, then set the following conditions:a. Possibility of revocation and cancellation rights over the estate belonging to the employer, either partially meupun entirely, if they deliberately obstruct efforts to resolve;b. Legal threats against those who violate or hinder;c. Threat of punishment against those who are not with the permission of the owner of the estate, the estate continued to wear after the demands imposed;d. Provisions of the must conduct discharge.
To prevent re-occupation of the plantation land by the people, then the government ban megeluarakan perarturan about unauthorized occupation of land which entitled the Law Number: 51 Prp. In 1960.In addition to the provisions above him, in an effort to restructure the land law the government has made a policy by issuing laws and regulations as follows:
1. Law No. 19 Year 1956 concerning: the Company Determination Agriculture / Horticulture Subject to Nationalization of Dutch.2. Law Number 28 Year 1956 concerning: Against Displacement Monitoring of Land Estates.3. Law No. 29 Year 1956 concerning: Government and Regulatory Measures Concerning Land Estates.4. Other provisions relating to the use of the lands of the Dutch citizens who returned to his country.
B. Colonial Politics of Agrarian Law.
Agrarian policy is intended to wisdom in the field of early-agrarian. Prof. Dr.. Mahfud M.D. in his book "Building Political Law, Uphold the Constitution", providing legal political sense. In the book it is mentioned that the law is a political or legal policy direction that will be imposed by law to state the country achieve its shape can be making new law and replacement of the old law.Thus, the political direction of agrarian law is law in the field of agrarian wisdom in an effort to maintain, preserve, memperuntukan, promote, benefit, care, and divide the land and other natural resources contained therein for the benefit and welfare of the people. Where in the implementation of legal policy that can be contained in a legislation which contains the principles, basic, and norms in the field of agrarian in outline.Meanwhile, the politics of colonial land law is the principle of trade, ie to get the earth / raw materials at the lowest possible prices, and then sold at the highest price. The goal is not profit as much as possible for themselves personally colonial rulers who doubles as an entrepreneur. This advantage is also enjoyed by Dutch businessman and entrepreneur Europe. Otherwise cause suffering to the people of Indonesia are very deep.Colonial system is characterized by four main features, namely the domination, exploitation, discrimination and dependencies. Dominant principle occurs in the power class of the colonizers against the indigenous population is minority majority. This dominance is supported by the military superiority of the colonizers in mastering and commanding peribumi population.Exploitation or extortion source of wealth of the colonies for the benefit of the state colonists. Power and the indigenous population squeezed peoduksinyaaunutk results submitted to the invaders, who then by the colonists was sent to the mother country for their own prosperity. Discrimination or racial and ethnic differences. Class colonists regarded as a superior class, while the indigenous population that colonized the nation is seen as a low or despicable. Dependency or dependency society against each other colonial invaders. Colonized societies become increasingly dependent on occupiers in terms of capital, teknologim knowledge, and skills as they get weak and poor.
Political colonial agrarian law contained in Agrarische Wet (AW) S.1870-55 with the content and the intent and purpose as follows:1. Primary goal.Provide an opportunity to the private sector (foreign) of land were getting from the government fatherly considerable time with the rent (canon) are cheap. In addition to allowing foreigners (not the son of the earth) atu got hired right to use the land directly from the earth's sons, according to regulations established by ordinance. Meaksudnya is allowing foreign private agricultural company grows.2. Secondary objectives.Protect the rights of Bumi Putera on land, namely:a. Granting of land by any means should not be pressing right Bumi Putera;b. Government can only take land Bumi Putera if necessary in the public interest or for plants that are required of the employer by giving gantik losses;c. Bumi Putera given the opportunity to get a strong land rights are conditional view lands (Agrarische eigendom);d. Held regulation lease between Bumi Putera with not Bumi Putera.
In the course of enactment AW irregularities against skundernya purpose, namely the sale of the lands of indigenous mili directly to the Dutch or other European. To provide legal protection against the lands of the Earth Son of purchase of the Dutch and other Europeans, the Dutch government issued a wisdom Hindi Vervreemdingsverbod S.1875-179 form.The meaning is Vervreemdingsverbod property rights (customary) land can not be transferred by the Indonesian people not native to the Indonesian people native and therefore all agreements that aim to move tersbut rights, either directly or indirectly is therefore void.AW addition, the Dutch government has also issued agrarian policy in Agrarische Besluit (AB) as the implementation of the provisions of AW. S.1870 is enacted in AB-118. the most important in this is the statement AB domain of the country or better known as Domein verklaring.Related to the structure of colonial agrarian heritage, according to Imam Soetiknjo, that the legacy of colonial agrarian structure as a result of colonial agrarian policy if:1. The light of the law is no legal entity.a. There are two kinds of (legal dualism), the law of the west brought and enforced in the Dutch East Indies by the Dutch colonists and indigenous inhabitants of Earth Son;b. Customary law in Indonesia's colorful, somewhat different in the various regions (plurisme) are allowed to apply for deemed contrary to colonial agrarian policy;c. There is a right not a new creation that customary law is not the law but the west, the agrarian rights eigendom.2. Seen from the point of the object, there is no similarity of subject status.a. There are the rights holders of Bumi Putera, there is not a Bumi Putera that different legal systems;b. Bumi Putera were not there:1) Strangers Europeans / West;2) The asiang descent;3) The Foreign Orientals.3. Seen from the master / own land, there is no balance in the relationship between the land mausia.a. There is a large class of humans (petanai) who do not have land or land that has a very narrow;b On the other hand there is a small class of people (rulers, foreign businessmen, landlords, private land owners) who owns / controls the land;4. From the standpoint of land use, there is no balance in the use of land.a. Land in Java and Madura almost all already opened / attempted;b. Outside of Java, Madura and Bali still vast land that is not open / cultivated.5. Seen from the point of the rule of law, there is no rule of law.a. Japanese invaders took people's land or land / house foreigners who controlled or arrested, without a damn about the rights thereon;b. People themselves are also occupying the estate, yard and even strangers house / former colonizers who fled illegally.
CHAPTER IVLAW OF AGRARIAN (BAL)AGRARIAN LAW AS A NATIONAL
A. Preparation of the National Agrarian Law efforts.Proclamation of independence of the Republic of Indonesia which was launched on August 17, 1945 by Soekarno-Hatta on behalf of the Indonesian nation is a milestone as a symbol of the establishment of the Republic of Indonesia which is independent and sovereign. Juridically, the proclamation has no meaning or force dissolution of colonial laws and the enactment of a national law, while politically, the proclamation of independence means that regardless of the occupation of Indonesia became an independent nation.The proclamation of independence give importance to the national agrarian law reform efforts. First with the proclamation of Indonesian independence to break with the colonial agrarian law at once, the second, the Indonesian nation attempting to establish a national agrarian law.Nonetheless, with the stated aims of Indonesian independence did not necessarily the government can easily establish a national land law, it takes quite a long time until the formation of the national agrarian law. Thus, in order to prevent a legal vacuum (vacuum reccht), pending the establishment of the national agrarian law to be applied Article II of the Transitional Provisions Act 1945, namely: "All state agencies and direct existing regulations still apply, has not held a new by this Constitution ".With Article II of the Transitional Provisions of the 1945 Constitution, all agencies and regulations established and declared a colonial product is still in effect as long as it has not been revoked, modified or have not yet replaced by the new law.Political basis of the national agrarian law stated in Article 33 paragraph (3) of the 1945 Constitution which states:"Earth, water, and natural riches contained therein shall be controlled by the state, and shall be used for the people's welfare".
Such provisions are imperative, meaning that the order form to the state so that the earth, water and wealth contained therein alamyang nyang put under state control should be used to the maximum benefit of the people of Indonesia.The efforts made by the Indonesian government to adjust the Agrarian Law of the colonial situation and needs after Indonesia's independence, namely:1. Using wisdom and new interpretations.Dala agrarian law implementation is based on a new policy using the new interpretation is also in accordance with the spirit of Pancasila and Article 33 paragraph (3) of the 1945 Constitution. new interpretation here, conthnya is menegenai relationship verklaring domains, ie the state is no longer the owner tanaah, but the state as an organization of power all the Indonesian people only controls the land.2. Elimination of conversion rights.One of the feudal legacy is very detrimental to the people of the applicable conversion agency in karasidenan Surakarta and Yogyakarta. In this daeran considered all land belongs to the king. Hany folk just wear it, which diwaibkan give up some of the fruit of the ground to the king, if the land is agricultural land or forced labor, if the land is land perkarangan. To members of his family or his servants or Seti who contributed to the king granted land as a living, and the granting of land rights delegation accompanied the king or a portion of the above tanha. They had the right to demand forced labor. This Stelsel called setelsel apanage.These lands by the king or penegang apanage leased to foreign entrepreneurs fatherly farm, following the right to collect the results tanama sebgian of people who till the ground. based S.1918-20, foreign entrepreneurs are then get right to the land by the king who called it conversion (conversion beschikking). The king's decision, essentially a sovereign decision to wear certain and cultivate the land.Berdasrkan Act No. 13 of 1948 which repealed Stb.1918-20. and supplemented by Law No. 5 of 1950, which expressly stated that the conversion of the institution, as well as conversion rights and hypotheek yangmembebaninya become clear.3. Elimination pertikelir ground.At the discretion of the colonial period in the midwife issued by the Dutch government land turned away private land in which there is right peruanan. Given these seignorial rights, as if these private lands is a state within a state. Landlords who have the right power so great many who abuse their rights, so that causes a lot of suffering and misery of the people are there or lived in the area.After Indonesian independence, the Indonesian government purchase private lands, but the results were not satisfactory due to the unavailability of sufficient and also because landlords are concerned demanding high prices.Under Law No. 1 of 1958 on the Elimination of private lands, January 24, 1958, private property rights over the land and the rights pertuanannya clear, and the ground ex apartikelir it entirely legal karen simultaneously menjadai state land.Unang Law No. 1 of 1958 was essentially merupajan disenfranchisement, and given to the owner of private land restitution. Private land is declared clear if compensation payments are in compliance.4. Change people's land leasing regulations.Praturan about people leasing land to plantation companies Bedar in particular and people in general not a native Indonesia as referred to in Article 51 paragraph (8) IS for Java and Madura arranged in two rules, namely Grondhuur Ordinance S.1918-88 for direct and Voerstenlands Grondhuureglement daerahpemerintahan S.1918-20 to Surakarta and Yogyakarta (autonomous regions). Under the terms of the rental of land possible long term palig 21.5 years.After Indonesia's independence, the two rules are modified with the addition of Article 8a and 8b and Articles 15a and 15b by the Emergency Law No. 6 of 1951. Emergency legislation is then defined by Law No. 6 of 1952. With the addition of these articles, the people leasing land for sugarcane tanama and others appointed by the Minister of Agriculture is only allowed a maximum of 1 year or 1-year plant. The rent is set by the Minister of the Interior, and the Minister of Agrarian. Thus, people are no longer disadvantaged because of large amount of the rent is adjusted to the level of prices at the time and one time only for the crop year.
5. Additional regulations to oversee the transfer of land rights.In Article 1 of Law No. 24 of 1954 which establishes the Emergency Law No. 1 of 1952 concerning transfer of lands and goods are Subject to Keep Others In European Law, stated that pending further arrangements for any transfer fatherly while wearing more than 1 year and perbuata-tangible deeds of transfer of rights regarding land rights and other fixed items are subject to European law can only be done after obtaining permission from the Ministry of Justice (by Act No. 76 of 1957 permits the Minister of Agrarian ).All acts committed outside the ministerial license with semdirinya void under the law, meaning that the land / house back to the seller, the money returned to the buyer if the sale deed form. Regulations regarding licensing remedy is intended to prevent or at least reduce the possible collapse of the European lands, including existing home or building on it into the hands of the people and foreign legal entities.Equipped with the above provisions of Law No. 28 Year 1956 on the Supervision of Transfer of Rights to Land Estates Erfacht, Eigendom, and other property rights. Also issued Government Regulation No. 35 Year 1956 on the Supervision of Transfer of Land Rights-tanh Plantation Concessions, as amended by Government Regulation No. 21 of 1959.According to the above provisions, any transfer of tangible actions and any transfer of the right of use for more than a year as wages on the ground erfacht, eigendom, and other property rights over the estate, such land concessions for plantations of the Dutch nation and the nations asinglein and legal entities can only be done with the permission of the Minister of Justice (by Act No. 76 of 1957 with the permission of the Minister of Agrarian approval of the Minister of Agriculture).Praturan purpose aforesaid is to conduct oversight and assurance that the recipient is able to pursue its rights plantation companies concerned with the well and that the garden would not be made the object of speculation.6. Regulation and action on estate lands.On the basis of Law No. 29 Year 1956, the Minister of Agriculture and Agrarian authorities are doing so as an act-act estate lands that have properties very important in the economy of the country well cultivated. Gini pelican in-law also stipulated that holders erfacht, eigendom and other property rights that have been put forth back companies, must do everything necessary to start or continue their business viable secaa according to conditions set by the Minister of Agriculture.If the right pemegan not fulfilled its obligations, then the consideration of the Minister of Agriculture, which bersanglkutan erfacht rights can be canceled by the Minister of Agrarian. Erfacht rights also can be canceled, if according pertimbagnan Agrarian Minister and Minister of Agriculture attitude right holders during a specified period not intend to commercialize its plantation company as it should be.Plants and buildings on the ground that according to the decision of the Minister of Agriculture is required to restore viability or proper operation of the country controlled by the compensation payment.7. Canon and Cijn rise.Canon is money that must be paid by pemgang rights erfacht annually to the state, while cijn is money that must be paid by concessionaires large plantation companies. In general, first cijn ccnon and not large in number, due primarily regarded as tanfa recognition of the rights of landowners who mastered the erfacht rights or concessions.After Indonesia's independence, large sebgaian land was cleared and cultivated plantations, so that the money required to be paid every year it functions or other nature, namely the use of land as a rental.In Law No. 78 Year 1957 on Amendment Canon and Cijn Top Erfacht Rights and concessions to large estates ditetpkan that within 5 years the annual compulsory money should be revisited.8. Prohibition and problem-solving pemakaiantanah without permission.To prevent widespread use of farm lands by unauthorized people and entrepreneurs to solve the existing land use, then issued Emergency Law No. 8 Year 1954 Problem Resolution Land Use Estates By the People. Emergency legislation is amended and supplemented by Law No. 1 of 1961.Provisions regarding restrictions on land use permits ranpa yangberhak or proxies is governed by Law No. 51 Prp/1960. This law was later replaced by Act No. 1 of 1961.In Section 2 jo. Article 6 of Law No. 51 Prp/1960 stated that the use of the land without permission or their proxies are entitled saha is prohibited act and threatened with criminal penalties, but not always penunutan criminal. According Psal 3 jo. Article 5, can be done by considering the settlement by way of interests of the parties concerned and plan land use designation and DiPai it.9. Regulation of the production sharing agreement.Agreement for hasi is one form of agreement between owner ever ground with other parties as tenants, where tenants are allowed to till the ground with pembagaian results according imbagan which has been approved by both parties.Agreements like the results previously governed by local customary law. Balance the distribution of the result set with the consent of both parties. In general, these results do not menguntungka division of the tenants, because the land is available for are shared not balanced by the number of farmers who require arable land.Given that the class of tenants sharing it usually always economically weak and disadvantaged, so in order to protect them, issued Law No. 2 of 1960 on Revenue Sharing Agreement. This undanga Act requires that parties make sharing agreement made in writing, with the intention that easily supervise and conduct mperjanjian actions against tenants for adverse outcomes.10. Duties and authority of agrarian transition.After Indonesian independence to 1955 agrarian affairs are in the neighborhood of the Interior Ministry. Based on Presidential Decree No. 55 of 1955 established the Ministry of Agrarian a stand-alone separate from the Interior Ministry. In Keputusna President No. 190 of 1957 stipulated that the Bureau of Justice originally entered in the registration of the Ministry of Justice within the Ministry of Agrarian diverted.Based upon Act No. 7 of 1958 set shifting tasks and authority of the Minister of Agrarian Affairs to the Minister of Agrarian Affairs, as well as officials in the area. With the release of the legislation, then gradually formed agrarian officials at the provincial level, karasidenan, and district / municipality.
B. Preparation of BAL history.Perjalaanan length in BAL dilakukakan undertakings design by Five Committee draft, the Agrarian Committee Yogyakarta, Jakarta Agricultural Committee, Committee Draft Soewahjo, Soenarjo Design Committee, and draft Sadjarwo.
1. The design committee Yogyakarta.a. Basic Law.This committee was established by Presidential Decree No. 16 Year 1948 dated May 21, 1948, is based in Yogyakarta headed by Sarimin Reksodihardjo, Head of the Agricultural Ministry of Agrarian. The committee is tasked among other things:1) Giving consideration to the government on matters concerning the law of the land in general;2) Plan the legal basis of land that includes politics agararia Republic of Indonesia;3) Plan the transition, replacement, revocation of the old rules of the land that no longer fit with the position of the Republic of Indonesia as an independent country;4) Investigate other matters relating to the law of the land.
b. Principles menjadai Indonesian Basic Agrarian Law.This committee about the proposed principles that would constitute the basics of the new Agrarian Law, namely:1) Elimination of the domains and the recognition of the principle of customary rights;2) Establish rules that allow the rights of individuals who may be burdened mortgage;3) Conducting investigations, especially in the neighboring countries about the possibility of giving property rights to land kepaa foreigners;4) the determination of the minimum extent necessary to provide land ownership for farmers apra small to be able to live decent for Java 2 acres;5) Need for determining the maximum area of land ownership for Java siusulkan 10 acres, regardless of the ground stuff, being outside Java still needs further research;6) Keep diadkan regidsrasi land and other rights.
c. Membership Committee.Yogyakarta committee composed as follows:1) The officials of various ministries and department;2) Members of the Central National Committee;3) The legal experts, representatives of local and indigenous experts;4) Representative of the estate of Sarikat workers;
2. Jakarta committee.a. Basic Law.Yogyakarta committee was disbanded by Presidential Decree No. 6 of 1951 dated 3 March 19, 1951, as well as the Agrarian Committee dubentuk Jakarta is located in Jakarta.
b. Membership.Jakarta committee members:1) Head: Sarimin Reksodihardjo, then in 1953 replaced by Singgih Praptodihardjo (Deputy Head of the Ministry of Agrarian Agararia);2) ministry officials;3) Officer-pejabt office, and4) Representatives of farmer organizations.
c. Proposals to the government.In its report the committee suggested a few things in terms of agricultural land, as follows:1) Hold a minimum limit of land ownership, which is 2 acres dengna conduct further review in connection with the enforcement of customary law and inheritance law;2) Establish a maximum limit of land ownership provisions, operating rights, lease rights, and the right to use;3) Agriculture people only owned by an Indonesian citizen and does not distinguish between native citizens and not the original. Legal entities can not work the land for the people;4) buildings for the agricultural community law is hakl owned, operating rights, lease rights, and the right to use;5) Pengeturan customary rights in accordance with the basic points of the state with a law.
3. Soewahjo committee.a. Basic Law.In order to accelerate the creation of a national agrarian law, then by Presidential Decree dated January 14, 1956 Number: 1 Year 1956, based in Jakarta, chaired by Soewahjo Soemodilogo, Secretary General of the Ministry of Agrarian. The main task of this committee is a bill mepersiapkan agararia the national staple, as far as possible within a year.
b. Bill.This committee could finalize draft manuscript Basic Agrarian Law on January 1, 1957 the date on contains:1) the abolition of the principle of domains and recognition of customary rights, which must be subordinated to the interests of mum (state);2) is replaced by the principle of the right domain of state power on the basis of the provisions of Article 38 paragraph (3) Provisional Constitution of 1950;3) The duality of the agrarian law was abolished. Consciously held entity which will memuata lembga institutions and elements of good, both contained in customary law and Western law;4) The rights to land: property rights as the right of the strongest social functioning then there is a right effort, the right building and the right to use;5) Property rights should only be owned by Indonesian citizens are not held Waraga distinction between native and non-native states. Entities in principle, should not have the right to land;6) It should be held bridge determination of maximum and minimum area of land that may be owned by a person or entity;7) Agricultural Land in principle needs to be done and diushakan by the owners;8) It should be held land registration and land use planning.
Based on Presidential Decree No. 97 of 1958 dated May 6, 1958 the State Committee for Agrarian Affairs (Committee Soewahjo) disbanded.
4. Soenarjo draft.Having organized and systematic changes in the formulation of some chapters, draft submitted by the Committee Soewahjo Soenarjo oak Minister House of Representatives. To discuss the draft, the House needs to gather a more complete materials by applying to the University of Gadjah Mada, subsequently forming an ad hoc committee consisting of:Chairman and member: A.M. TambunanVice Chairman and member: Mr. Memet TanumidjajaMembers: Notosoekardjo
Dr.. Sahar GLR Great Sutan
I.J. KasimoAside from Gadjah Mada University materials were also obtained from the Supreme Court, headed by Mr. Wirjono Prodjodikoro.
5. Sadjarwo draft.By presidential decree reinstated July 5, 1959 1945. Because the design is based on Provisional Constitution Soenarjo, 1950, then on March 23, 1960 the draft was withdrawn. In order to conform to the 1945 draft BAL, have requested advice from the University of Gadjah Mada. To that end, on December 29, 1959, Mr. Minister. Sadjarwo Singgih Praptodihardjo and his staff, Mr, Sampoerna Harsono, Mr. Soemitro went to Yogyakarta to talk dengna the Gadjah Mada University, represented by Prof.. Mr. Drs. Notonagoro and Drs. Imam Sutigyo.
Once the preparation is complete, the draft submitted to DPRGR BAL. On Saturday 24 September 1960 rancanan BAL sisetujui by DPRGR and then ratified by the President to the Law No. 5 of 1960 on Basic Regulation Agrarian, commonly known as the Basic Agrarian Law abbreviated BAL.
C. As BAL National Agrarian Law.1. National nature BAL.BAL has du substance in terms of validity, namely the first, no longer impose or repeal colonial agrarian law, and second, to build a national agrarian law. According Harsono Sampoerna, with the enactment of the UUP, then there was a fundamental change in the agrarian law in Indonesia, particularly in the field of law pertanhan. This fundamentally changes the structure of the legal instruments, the underlying concept or content.BAL is also a law that did agrarian reform because it memuata program known as Panca Agrarian Reform Program Indonesia, which includes:1) Renewal of land law through legal unification berkonsepsi nasioanl and providing legal certainty;2) Elimination of rights of foreign and colonial concessions on the ground;3) End the feudal exploitation gradually.4) overhaul of the ownership and control of land and legal relations yangberhubungan with tenure in realizing equitable prosperity and justice, which became known as the land reform program;5) perncanaan inventory and designation of earth, water and the natural riches contained therein as well as the use of planned, according to the carrying capacity and ability.
a. National Material properties of BAL.National nature materian BAL BAL refers to substances that should contain the following principles:2) Based on the customary law of the land;3) Simple;4) To ensure legal certainty;5) Do not ignore the elements that rely on religious law;6) Give the possibility suapya earth, water and space to achieve its function in building a just and prosperous society;7) In accordance with the interests of the people of Indonesia;8) meets the needs of the people of Indonesia according to demand agrarian ages in all matter;9) Realize the embodiment of the principles of Pancasila as the state and the spiritual ideals of the nation as listed in the law;10) Is the implementation of the Guidelines (first Presidential Decree July 5, 1959 and Political Manifesto;11) Implement the provisions of Article 33 paragraph (3) of the 1945 Constitution.
b. Formal national nature of the BAL.National nature refers to the establishment of formal BAL BAL that meet the following properties:1) Made by legislators naisonal Indonesia, namely DPRGR;2) Prepared in the national language of Indonesia;3) Formed in Indonesia;4) Sourced in 1945;5) Apply the territory of the Republic of Indonesia.
2. Old Rule Repealed by BAL.With dindangkannya Act No. 5 of 1960 on Basic Regulation Agrarian on September 24, 1960, the Indonesian thus have a new agrarian law, national yan off course from colonial properties and tailored to the person and the soul of Indonesia as an independent and sovereign state.