Paradoxality of Legal Policies of Law no. 5 of 1960 in Article 6 that Impact for The Right to Fulfill land Reform.
Introduction
The Basic Agrarian Law of 1960 stood on the concept of legal unification. Where in the past there was legal dualism in the enforcement of land law. The application of customary law for indigenous people and the application of western law for Europeans. This was none other than a divisive politics carried out by the Netherlands through the regulation of Article 131 IS (Indische Staatsregeling) and Article 163 IS (Indische Staatsregeling). So, with the birth of the UUPA, the dualism in enforcing land law disappeared. Therefore, the birth of the UUPA is a monument to legal certainty for farmers and is an important progress in the context of fulfilling basic rights and is a turning point in viewing the importance of farmers as a pillar of the survival of a just and prosperous nation.
Spirit of Struggle The birth of the UUPA brought the spirit of struggle that previously there was domination of control over land (the landlord system), but today with the enactment of the UUPA the domination of control over the land has been destroyed. Thus, the concept of agrarian reform (land reform) is an ideal idea in which there is equal distribution of land rights for all Indonesian people. The birth of the UUPA also transformed all forms of Dutch land rights into new rights regulated in the UUPA. Therefore the breath in land law which originally breathed colonialism transformed into a breath of nationalism. So that the struggle over customary land ownership (ulayat rights) is also recognized and protected by this law.
UUPA contains social values and mandates to organize life and life that is humane and socially just. The embodiment of social justice can be seen in the basic principles of the UUPA, namely the principle of the state controlling and using it for the greatest possible prosperity of the people, the principle of respect for the land rights of customary law communities, the principle of social function of all land rights, the principle of land reform, the principle of planning in land use and efforts to preserve it and the principle of nationality. These basic principles are then translated into various products in the form of laws and regulations and other policies.
Discussion
Paradoxicality
But that’s not the point of the problem. The Basic Agrarian Law of 1960 was an ideal conception of fulfilling land rights for farmers, but in fact this is inversely proportional to reality. Where today there are still many landlords who control land with hundreds of hectares even though this clearly violates the applicable regulations. At this point, Agrarian Reform is just an empty jargon due to policy inconsistencies. Where the government launched a program to equalize land rights (land reform), but on the other hand issued infrastructure-oriented development policies in the form of real estate, retail, malls, toll roads which required farmers to lose their livelihoods.
By relying on the legal umbrella of Article 6 of the UUPA where “all rights to land have a social function”, the acquisition of land in the name of the state becomes legal and lawful. By backing modernization narratives, objections to development are set aside and by adopting narratives “in the public interest” land grabbing seems to have become commonplace and can be tolerated. Thus, the paradox of today’s policies is clear. We still remember the agrarian cases that occurred in Tamansari, Kulon Progo, Kebon Jeruk, Dago Elos and so on.
This shows the inconsistency of policies in the agrarian dimension imposed by the government. Applications for permits for land use in the form of usufructuary rights, usufructuary rights are complicated even though it is land chosen by the state, while permits for retail establishments, real estate and even toll roads are made easier. In fact, it is not uncommon for land to be manipulated so that corruption is indicated.
Fulfillment of the right to customary law itself today is problematic in this country, even though customary rights are one of the rights recognized in the 1945 Constitution, namely in Article 18B paragraph (2) of the 1945 Constitution which states that: “The state recognizes and respects customary law communities and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated in law. The existence of customary communities scattered in various parts of Indonesia has existed since Indonesia was not yet independent, and they have been cultivating and managing the land since the national law governing agrarian affairs was not enacted. Recognition of the existence of customary law communities is further acknowledged and stated in the UUPA contained in articles 1 and 3, which states that the implementation of customary rights and similar rights from indigenous peoples, as long as in reality they still exist, must be in such a way. such that it is in accordance with national and state interests, which is based on national unity and may not conflict with laws and other higher regulations.
Based on these laws and regulations, “Ulayat rights are the highest rights over land owned by a legal alliance (village, tribe) to ensure orderly use/utilization of land. Ulayat rights are rights owned by a legal alliance (village, tribe), where the members of the community (legal alliance) have the right to control the land, the implementation of which is regulated by the head of the association (head of the tribe/head of the village concerned)” (G. Kertasapoetra et al) Ulayat rights are a series of authorities and obligations of a customary law community, relating to land located within their territorial environment, which as described above is the main supporter of the livelihood and life of the community concerned at all times. These powers and obligations are included in the field of civil law and some are included in the field of public law. The authorities and obligations in the field of civil law relate to shared rights to land. Whereas in public law, the authority to manage, regulate and lead the designation, control, use and maintenance rests with the Customary Head/Customary Elders. Evidenced by the high number of land disputes and incidents of land grabbing that have occurred, it is true that there is a policy gap with reality on the ground.
Political Freaming Later we learned that there is a government program in the form of distributing certificates to the public. So the entire BPN (National Land Agency) is racing against time to make the program a success. However, the Complete Systematic Land Registration Program (PTSL), which will lead to the distribution of certificates, is in fact very thick with political tendencies. The activity of distributing the certificates was packaged in such a way that a large number of people had to gather and the president had to attend.
Closing
Now, reality displays something very confusing. On the one hand, the state through its policies is trying to do what we often hear as “agrarian reform”. Meanwhile, on the other hand, the state is also through its development policies trying to convert the innumerable land functions. Not to mention the inclusion of various corporate investments, which then result in the exclusion of various interests of the farmers.
By boosting infrastructure, together we can see how dams, toll roads, airports stand on land that was previously used as agricultural land for the survival of farmers. It is clear that we should be grateful for infrastructure development. However, witnessing farmers losing their cultivated land on which they depend for their livelihood is also something we cannot be proud of.
How can we explain the direction of progress in the midst of the deplorable living conditions of a part of the farming community who recently lost their land? It is clear to them that this is a big disaster, where they have to lose their source of livelihood to – what we often hear as – “advance the public interest”. In order to survive, they have to change professions towards the world of non-agricultural work. If they remain in the farming profession, they must be willing to become farm laborers who sell their power. Because, now they no longer have land as a means of production itself.
In this way, it is recognized that the UUPA, which is the key shield for farmers to obtain their rights and ownership of land for their welfare, must now be recognized as not acting in the face of the interests of the state or even the private sector. Land is for the people who cultivate it, and it should be used as much as possible for the people’s welfare and prosperity – as stated in the law – now it seems to be an empty and meaningless rule. This is because, again, he was unable to show his existence by saving the interests of the peasants who were the subjects he defended.
To appreciate the role of farmers, Tan Malaka once stated in his book ‘Madilog’, “If young people who have studied at school and consider themselves too tall and too smart to blend in with society who work with hoes, and only have simple ideals, then it is better that education is not given at all”. Even Sukarno had rhetoric “Food is the pillar of life and death of a nation”. But have we ever thanked the food fighter farmers. White hospitality, sincerity that never collects. Let’s ask the swaying grass.
Author:
Amir Mahfut
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Indonesian, I design and develop #WordPress themes & plugins, founder of https://cons.id/