No. 1 GOVERNANCE IN LAND ADMINISTRATION IN INDONESIA

1. No. 1GOVERNANCE IN LAND ADMINISTRATION IN INDONESIA BY HERMAN SOESANGOBENG Regional Workshop-Washington DC-USA Feb. 15, 2008

2. Area of 1.822 million km2 17,508 islands (~6,000 inhabited) 33 province/special districts 440 districts/cities Population – 234.7 million (est. July 2007) Population growth – 1.213%/year Religion: 86.1% Muslim, 5.7% Protestant, 3% Catholic, 1.8 Hindu, other 3.4% Indonesia – Key Facts Soesangobeng:Reg.Workshop-Washington, 15/2/08

3. No. 2HISTORICAL BACKGROUND • As Dutch colony, 2 legal systems applied: the Dutch Civil Code and customary (Adat) Law • The Dutch Civil Code was considered the formal system; Adat Law was considered the informal system • Land is by law State Property, simply called State Land • The Dutch administration emphasized agrarian affairs for the exploitation of land • Native Indonesians were treated as the land tillers over State land, with the obligation to pay tax to the government • Hence the Natives were totally isolated from the formal land market system Soesangobeng:Reg.Workshop-Washington, 15/2/08

4. No. 3AFTER INDEPENDENCE IN 1945 • In 1960 a new law was enacted to revoke the Dutch Agrarian Law • The New Law, Law No. 5/1960 was the Basic Agrarian Law (BAL) • BAL (Art. 5) specifies that BAL is based on Adat Law but in practice Adat rights have little protection • BAL (Art. 9) provides gender equality but this not implemented by officials • No Civil Law has been developed, which weakens the foundations for the land law • This has serious impact on land management, land administration, legal interpretation, executive discretion etc. and leads to poor governance Soesangobeng:Reg.Workshop-Washington, 15/2/08

5. No. 4EXAMPLES FOR POOR GOVERNANCE IN LAND ADMINISTRATION • In 1967, a new forestry ordinance was enacted without regard to BAL • The Minister of Forestry does not recognize Adat claims to forest land (more than 60 million people live on land considered forest land) • Without a civil law, land administration follows Dutch traditions in providing State recognition only to registered titles • Natives still treated as land tillers on the State land although under 1945 Constitution land is not State Property • Those living in the forest or around forest area, or along the river banks in the cities, are considered as illegal squatters on State land Soesangobeng:Reg.Workshop-Washington, 15/2/08

6. No. 6EXAMPLE-CONTINUED • Land registration is very slow, with confusion in the mode of registering adat communal land. • In 2006 it was estimated only 30 million of the estimated 80 million parcels throughout the country were registered • Most of the registered parcels are concentrated in the cities and commercial areas • In the rural areas with adat tenure there is little registration • The issuance of ‘rights of plantation’ (‘hak guna usaha’), for large plantations creates conflict with the local natives as the adat community permanently loses the control of land Soesangobeng:Reg.Workshop-Washington, 15/2/08

7. No. 7SUGGESTIONS TO IMPROVE GOVERNANCE • Formulate clear policy and procedures to apply Adat principles in the legal framework • Strengthen legal framework (particularly the Civil Law and Land Law) • Mass systematic registration program • Re-engineer processes, focus on service delivery, build public confidence • Clarify institutional roles (BPN at national, province and dist/city levels and roles of other Departments) Thank you. Soesangobeng:Reg.Workshop-Washington, 15/2/08