BAL

FUNCTION

Abolishing the dualism of the former land law and creating the unification and also the codification of the

National Agrarian Law (land) which is based on Customary Law.

Held a unification of land rights and security rights in land through the conversion of provisions (Second

Dictum of Basic Agrarian Law).

Stipulate the legal foundation for the development of the National Agrarian Law (Land), for instance Article

17 of the Basic Agrarian Law on land reform.

OBJECTIVE

Creating unificationAgrarian Law

Creating the unification of the rights over land (Land Title dan Security Right on land) through the provisions of

conversion:

The Provisions of Conversion

• The western right of land as well as the Indonesian right on land as a concreterelationship is converted (modified) into rights over land according to theBasic Agrarian Law simultaneously and by law (rechtswege), commencingfrom September 24th, 1960.

• Guarantee Right on land, namely mortgages and credietverband (Article 1162Civil Code section 15-KUH stbl. 1908-542) is amended by Law commencingon September 24th, 1960 into Hak Tanggungan (article 51 of Basic AgrarianLaw and article IV Conversion Regulations of the Basic Agrarian Law jo.Law No. 4 of 1996 concerning on Hak Tanggungan over land and the objectsrelated to the land).

THE FUNCTIONAL RELATIONSHIP OF BASIC AGRARIAN LAW AS NATIONAL LAND LAW AND ADAT LAW

• The meaning of the word “National” here, are:

Formally:• Created in Indonesia;• In Indonesian Language;• Prevailing throughout the territory of the Republic of Indonesia

Materially:• It is embodiment of Pancasila• Arranged according to / by using principle of Customary Land Law (Adat

Law).

THE FUNCTIONAL RELATIONSHIP ON THE STATEMENTS IN THE BASICAGRARIAN LAW

• Preamble "believes", letter "a":"that there should be a National Agrarian Law under the CustomaryLaw of the land".

• Article 5:"that the agrarian law applicable for the land, water, and space isAdat Law"

• General explanation III / 1:"that the new Agrarian Law is based on the provisions of the Adat Law,as the original law, which is enhanced and adjusted to the interests ofthe society in the modern state and in the relationship with theinternational world, and so on ..."

• In the general explanation III / 1, there is a term that Adat Law as theoriginal law, which is concerned since Adat Law as an unwritten law isstill influenced / accessed by the elements from outside, such as theinfluence of colonial law, Swapraja, and so forth.

THE MEANING OF ADAT LAW IN THE BASICAGRARIAN LAW

• Formally:“... part of Indonesian positive law applied asthe active law in the unwritten form amongthe native people of Indonesia that containnational characteristics, namely... ".

• Substantially:"... the characteristic of society which basedon balance/harmony and covered withreligious atmosphere".

• With those definitions, then what is called, Adat Law should not be interpreted only as a series of legal norms alone, but also includes:1. Conception (doctrine, theory);2. The principles (which is the embodiment of

concept);3. Legal institutions;4. System.

THE FUNCTIONAL RELATIONSHIPS BETWEEN THENATIONAL LAND LAW WITH ADAT LAND LAW

The point lies in 2 (two) main functions ofCustomaryLaw (Land) namely:

1. As the primary source for the substance’s ofthe National Land Law (Basic Agrarian Law)development;

2. As a completion to the written National LandLaw.

THE FUNCTIONAL RELATIONSHIP

1. Preamble and explanation of the Basic Agrarian Law,which refers to the function of Adat Law as a primarysource for the development of the National Land Law;and Article 5 of the Basic Agrarian Law which alsoshows the function of the Adat Law as a primarysource and at the same time as complement of thematerials needed for National Land Law.

Through the development of National Land Law , itmeans that the more complete National Land Law themore lack the role of Adat Land Law norms as acomplement

BASIC AGRARIAN LAW COMPLEMENTARY FOR (WRITTTEN)

NATIONAL LAND LAW

THE FORM OF NATIONALLAND LAW

ARRANGED IN A SYSTEM

THE FUNCTIONAL RELATIONSHIPADAT LAW

PRIOR TO SEPTEMBER 24TH, 1960

Conseption Principles Legal Instutions

Norms(Local)

THE FUNCTIONAL RELATIONSHIP•2. National Land Law Forms

a. Written;b. Unwritten, to fill the legal vacuum as a

supplement, namely:• Adat Land Law that has been filtered (gesaneerd-Dutch)

(stipulation of article 5 Basic Agrarian Law);

• The Other customary law arising from policy in theimplementation of the new Land Law (Basic AgrarianLaw) in the form of jurisprudence and doctrine.

• The definition of the second function of Adat Law as acomplement to the National Land Law can be known from BasicAgrarian Law statement, that the norms of the local Adat LandLaw can be used as a complement for the positive land law. Thenit is questioned ,which legal norms? Of course, the norms of AdatLand Law that are still valid at the time it is required as acomplement to solve the problems.

• Further, it is questioned, whether the norms of Adat Law can bedirectly used as complementary? Sometimes it is not directlyused, since the enactment of Adat Land Law still requireconditions: "... as long as not contrary to national and Stateinterests,..." (Article 5 of Basic Agrarian Law).

• Therefore, if a problem has been regulated by BasicAgrarian Law in the form of written law (positive law),then the norms of Adat Law is no longer valid. Forinstance:1) Before the enactment of Basic Agrarian Law

(September 24th, 1960) it was known a Right ofSharecropping . Then, toward the enactment of theBasic Agrarian Law, a regulation was made, namelyLaw No. 2 of 1960 regarding Sharecropping Agreement(UUPBH);

2) Right of Pledge on agricultural land, originallygoverned by unwritten Adat Land Law, thenspecifically for the farm is regulated in article 7 of Lawno. 56/Prp/1960 well-known by the name Land ReformLaw, and come into force commencing from January1st, 1961.

Important Role of Adat Law-Normsas Complement

1. Jurisprudence, for example, Supreme Decree No.123/K/Sip/1970 which affirmed, among others:a. Defnition of land sale;b. Procedures and implementation of land purchase, and so on.

2. Doctrine, namely opinion or interpretation by experts, such asthe principle of horizontal application that we encounter inAdat Law system, where people can own land without owningthe building / plant on it ; so for the reverse, otherwise peoplecan own the building / plant without owning land on which thebuilding / plant is located.

1. WESTERN LAND LAW2. FEUDAL LAND LAW3. ADAT-NATIONAL LAND LAW

LAND TENURE WITH EXCLUSIVE AUTHORITY CONTAINS (PUBLIC AND PRIVATE)

THE RIGHT OFINDONESIAN NATION

(Art.1-BAL)

PRIMARYLAND RIGHT

THE ULAYAT RIGHT OF ADAT COMMUNITY

(Art. 3 - BAL)

RIGHT TO CONTROL OF THE STATE(Art. 2 - BAL)

INDONESIA’S LAND TENURE SYSTEM( BASED UNDER THE SUBSTANCE OF RIGHTS)

LAND TENURE WITH EXCLUSIVE AUTHORITY CONTAINS (PUBLIC AND PRIVATE)

THE RIGHT OF INDONESIA NATION (ART. 1 BAL)

THE RIGHT TO CONTROL OF THE STATE (ART 2 BAL)

ULAYAT RIGHT OF ADAT COMMUNITY (ART 3 BAL)

LAND TENURE IN GENERAL AUTHORITY (PRIVATE/PERSONAL)

PERSONAL RIGHT OVER THE LAND

LAND RIGHTS

PRIMARYLAND RIGHT

SECONDARYLAND RIGHTRIGHT TO SECURE LAND AS COLLATERAL

UNDER LAW NO.4/1996

(INDONESIAN CONDOMINIUM/APARTMENT OWNERSHIP)(uu No. 16 Th. 1985)

WAKAF/WAQF