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Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities

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Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities Lilis Mulyani ORCID ID 0000-0002-1290-378X Doctor of Philosophy September 2020 Faculty of Law The University of Melbourne Submitted in total fulfilment for the degree of Doctor of Philosophy Thesis Abstract An adequate definition of group legal personhood (that is, a rights and obligation- holding personality) in Indonesian law is essential if there is to be equal land rights distribution. The present unclear definition of groups in the law as legal persons, coupled with uncoordinated and fragmented government policies, means that land- related decision-making usually operates only for the benefit of persons seen by the law as an ideal legal subject. In this thesis, I focus on 'person' in the sense of a group of individuals that associate as a single unified entity. In Indonesia and in general legal doctrine, the lack of clarity in the definition of ‘legal person’ has resulted in traditional customary (adat) groups and their customary land title being excluded and this vulnerable to marginalisation and land expropriation. This has given rise to much debate about which groups can be said to have a legal personality as bearers of rights and obligation, and why. The thesis aims: to understand the core concept of a group as a legal or juridical person; investigate how decisions on land rights are made by the Indonesian government; how traditional customary (adat) groups themselves choose to be recognised; and how such distributions could be reformed to better protect adat groups. Two case studies on specific policies related to the asserting of the customary communal land title (hak ulayat) are reviewed, covering the background of decisions on land rights entitlement (socio-legal and political), the process for distribution, and the consequences of the policies chosen. The primary contentions of this thesis are as follows: first, the current practice of legal and political recognition of adat groups requires ‘regional regulations’ (that is, local by- laws) to be passed to make operational a form of legal personhood and operational land title specific to particular local adat groups and ulayat land. These measures can empower adat groups to function before the law. Second, Indonesian law relating to group personhood needs to clearly define which category of legal subject adat groups i fall into. The current approach of the government (simplification and homogenisation) presents a fundamental obstacle to adat groups, who seek a legal form that best represents their values and systems, and accurately reflects their group identities. Third, legal exercises by government bodies to translate traditional customary land rights into operational land titles and forest rights have played an important role in creating a legal breakthrough. This has provided a (potential) answer to decades of deadlock in seeking to make ulayat (communal land and forest) rights into legally cognisable and registrable land rights. This research concludes that the legal definition of group personhood creates difficulties facing adat groups in asserting their personhood, which becomes a major obstacle to the capacity of adat groups to assert their rights to their traditional land, but it also concludes that it is not impossible for adat groups to navigate these challenges. ii Declaration This is to certify that: 1. This thesis comprises only my original work towards the PhD; 2. Due to acknowledgement has been made in the text to all other materials used; 3. This thesis is less than 100,000 words in length, exclusives of tables, bibliographies, and appendices. Lilis Mulyani 24 September 2020 iii Acknowledgements This thesis represents many accumulated years of learning and experience as a researcher at the Indonesian Institute of Sciences (LIPI). It was made possible with financial assistance from the Indonesian Endowment Fund for Education or the Lembaga Pengelola Dana Pendidikan (LPDP) Indonesia. I am extremely grateful for this financial assistance to pursue my doctoral studies. I would like to express my sincere gratitude for those who have supported, encouraged, and helped me throughout this PhD journey. First and foremost, I am deeply indebted to my supervisors Professor Timothy Lindsey and Professor Kirsty Gover for their generous support, understanding and encouragement. Their advice and intellectual inspiration have improved me as a scholar and encouraged me to express and develop my ideas and thinking. The following people inspired me to start on this journey: Professor Muhammad Hisyam, Professor Dewi Fortuna Anwar, Professor Arie Sukanti Hutagalung, Professor Ben White, Riwanto Tirtosudarmo, Thung Ju Lan, Dedi Adhuri, and Susi Harijanti. I am also grateful to Dudi Rulliadi who supported the initial preparation and application for doctoral study and scholarship. My journey could not have started without their support. Navigating the Australian academic environment has been challenging. I am thankful to have two most supportive friends, Balawyn Jones and Anna Sanders, my discussion partners, who helped me to develop new ideas, connect my thoughts, proofread, and systematize numerous drafts. Their support and friendship means a lot to me. Likewise, I am grateful to my fellow PhDs at the Melbourne Law School: Parikesit (Sigit), Apsari Dewi, Josi, Rifky, Windy, Denny Indrayana and Bunda Rosyi, Hui Jing, Mohammad, Max Walden, Rafiqa, and Tim Mann. Thanks to the Melbourne Law School Graduate Research Office, Rebecca Croser, Ade Suharto, and Steph Johnson for their support; and to Center for Islamic and Indonesian iv Studies (CILIS) and Asian Law Center at the Melbourne Law School, particularly Helen Pausacker and Kathryn Taylor. I am thankful to have met wonderful people during my fieldwork in Baduy, Banten and Padang Pariaman, West Sumatra. Thanks to my fieldwork research assistants, Misja, Mursid, Hudri, Rika and Nola, who helped me get to the most remote places in Baduy village and into the forest in the Nagari Sungai Buluh. Also for the people who helped me at the Baduy village: Jaro Saija, Jaro Sami, Ayah Mursid, Sapin, Sarpin, Jusen, and Sadiman with his lovely wife; and the people from Nagari Sungai Buluh who helped me: Zulkifli, Datuk Rajo Batuah, and Eddimal Jamal. I am honored to have the opportunity to cooperate with the Center for Research and Development (Puslitbang) of the Ministry of Agraria. The Head of the Center and the research staff were extremely helpful in preparing the national Focus Group Discussion, particularly Ali Rintop, Romy, Eliana Purwanti and Robby. Lastly, thanks to all my interviewees and those who assisted me in both Indonesia and Australia. You are too many to mention by individual names. My homesickness and longing for my family was relieved by newly-found family in Melbourne: TPA Brunswick, where I volunteered to teach children who brought me weekly happiness. Above all, I am grateful to my biggest support, my husband, Gutomo Bayu Aji for his endless love, sacrifice and patience. Thank you for being by my side during my most challenging times, sharing laughter and tears, and helping me to reflect and deepen my understanding. To my sisters and brothers, nieces and nephews (the Cisarantens) whom I miss dearly, thank you for supporting me from a distance. To my mother, Sarimpi, and my father, M. Djuli, this thesis is the proof of your persistent teaching, upbringing, and night prayers that have made me who I am today. Thank you and alhamdulillah. Melbourne, 24 September 2020 v Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities Table of Contents Abstract i Declaration iii Acknowledgements iv List of Table, Charts, and Images ix Abbreviations x List of Legislation xii 1. Introduction 1 1.1 Background and Context 1 1.2 Research Questions 8 1.3 Research Significance 9 1.4 Main Arguments 10 1.5 Research Methods 16 1.5.1 Main Thematic Guidelines 17 1.5.2 Research Locations 19 1.5.3 Empirical Data Collection 20 1.6 Structure of the Thesis 22 1.7 Conclusion 26 2. Theoretical Framework: Groups as Legal Persons 27 2.1 Introduction 27 2.2 Literature on Groups as Legal Persons 27 2.2.1 The Origin of Groups as Legal Persons 29 2.2.2 Methods to Establish Groups as Legal Persons 35 2.2.3 Attributes of Groups as Legal Persons 40 2.2.4 Public Legal Person and Private Legal Person 44 2.3 Influences to Indonesian Law 47 2.4 Conclusion 52 3. Legal Arrangements for the Status of Persons and Land Rights in Indonesian Law 54 3.1 Introduction 54 3.2 Legal Arrangements for the Status of Persons in Different Periods vi in the Indonesian Legal History 54 3.2.1 The Dutch Colonial Period (1595-1942) 54 3.2.2 Post-Independence Period (1945-1960) 60 3.2.3 The Basic Agrarian Law Period (1960-1966) 63 3.2.4 The Development Period (1967-1998) 69 3.2.5 The Reform Period (1998-2013) 74 3.3 Conclusion 78 4. Recent Developments: Redefining and Reinterpreting the Adat Group As A Legal Subject 80 4.1 Introduction 81 4.2 The Adat Movement in Indonesia 81 4.3 Recent National Policy Dynamics 87 4.3.1 Setting the Foundation Through the Amendment of 1945 Constitution 87 4.3.2 Changes Through Legislation 88 4.3.3 Changes Through Court Decisions 92 4.3.4 The Role of Regulatory Instruments in Interpreting Basic Norms 96 1. Regulations Under Land Law 97 2. Regulations Under Forestry Law 105 4.4 Conclusion 108 5. Case Studies of the Baduy and Minangkabau Adat Communities 111 5.1 Case Study Contexts 111 5.1.1 The Baduy Adat Community 112 5.1.2 The Nagari of the Minangkabau Adat Community 119 5.2 Relations Between Adat Groups and the State 128 5.2.1 Ulayat Land and State Borders 128 5.2.2 Mapping and Demarcation of Ulayat Land 132 5.3 Legal Implications of Recognition 135 5.3.1 State’s Preference of Group Entity 135 5.3.2 Groups’ Ability to Act 137 5.4 Conclusion 143 6.
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