More widespread attention towards landlordism and land tenure of a grand scale has cropped up recently. Curiously, this time it came not out of advocation campaigns from activists or scientists concerned for agrarian justice. Rather, it came from the second presidential debate, where it was mentioned that one of the candidates owns an incredibly vast amount of land.

The following article does not aim to stand for or against a particular Indonesian presidential candidate for the next five years. That being said, a number of things must be clarified so that discourses in the media—particularly the ones raging all over social media—can be more appropriate in using terms and place them in appropriate contexts towards a better life in our nation, rather than merely hurling accusations toward one or the other.

Is it possible for anyone to own huge swathes of lands, up to hundreds of thousands of hectares? Technically, it is. But nowadays, so-called landlords in Indonesia, or those said to own lands in enormous proportions, are often owners of corporations that held land tenure concessions, be it for plantations, mines, or forestry. Such concessions are not individual ownership of land, but merely limited rights to exploit land and particular resources of a particular area, including those in state-owned land.

There are several forms of land rights, such as Right to Cultivate (Hak Guna Usaha or HGU) or Right to Build (Hak Guna Bangunan, HGB), and forest area permits (Izin pengusahaan kawasan kehutanan; IUK) or mining permits (Izin pengusahaan kawasan pertambangan; IUP). It must be noted that both forest area and mining permits are not land rights in the sense of ownership, but rather rights exclusively to manage resources related to the land, which must be within a particular area or geographical space. Legally, such an area can be held for only a limited time—generally between 25 to 30 years.

So, if not a property, then who owns the land? In the agrarian laws of Indonesia, based on the constitution of UUD 1945, particularly Article 33 clause 3, it is mentioned that the true owner is all Indonesian people. The word “all Indonesian people” refers to every legally legitimate citizen of Indonesia, or everyone born in the motherland of Indonesia, including future citizens who are yet to be born. Even though anonymous or being no one in particular, it is already clear to whom the word “all Indonesian people” refers.

The constitution and agrarian laws also affirm that the state represents the nation which masters the land for the prosperity of the people. To quote from Article 33 clause 3 of the constitution, “the earth, water, and natural wealth contained therein are controlled by the state and utilised for the greatest prosperity of the people”.

The first two articles of the Basic Agrarian Law (Undang-Undang Pokok Agraria) of 1960 elucidate the meaning of Article 33 of the constitution with the affirmation that what the state means is “the organisation of the power of all the people” which is tasked to “regulate and determine the designation, use, availability, and maintenance as well as legal relationships and consequences arising from the control, use, and management of earth, water, and natural wealth”. In other words, the constitution attests that the Republic of Indonesia is founded for the protection and prosperity of its citizens, as well as to realise social justice.

The whole meaning of “ownership, control, designation, use, and management of land as well as natural wealth belonging to the whole nation and the obligation of the State to improve the welfare of its people with all the authority it has to grant ownership, use, and management of natural resources” is known under the term the State’s Right to Control (Hak Menguasai Negara, HMN).

Several issues arise from this conception of the HMN.

First and foremost is regarding ownership, namely whether or not citizens can own land. Evidently, they can. The conception of the HMN does not translate to the impossibility for citizens to own land as individual property. Lands that can be legally proven as someone’s property and/or physically owned by someone throughout a certain period are eligible for a freehold title, thus registered as owned land.

Naturally, it is the duty and the obligation of the state to proactively increase the number of its land-owning citizens. Moreover, lands that are legally, socially, or culturally under the management and ownership of an individual person or collectively by a group of people should not be contested by the state; the state must protect the rights of land ownership. The government, as the beholder of state authority, must be reminded that for most of the Indonesian people, owning land with protected rights is a conditio sine qua non for their well-being.

As such, applying the conception of the HMN does not translate to the right for the government to override the people’s rights over land and natural riches. However, one of the derivative meanings of the conception of the HMN is that there are such things as state-owned land or lands under state management, which are lands other than those owned privately.

Secondly, has the great state authority been exercised for the greatest prosperity of the people and the realisation of social justice? Numerous scientific studies and legal proceedings have revealed that a lot of state-owned lands are lands “seized” from the local populace. Therefore, it can be said that the great authority of the state has been abused to take over lands originally owned or managed by local communities.

Many lands are owned by local people through social and cultural means (for example, through customary laws). But such lands are yet to be formally or legally registered. Without title deeds to support legal ownership, the state takes over the land and gives them to other parties through permits that allow them to work on or manage. The local people, on the other hand, loses their ownership and access to the land and the natural resources contained within.

Indeed, a lot of state-owned lands are claimed from the local populace by force. This has been the prime cause of endless agrarian conflicts in Indonesia, especially from the New Order period (1965-1998) up until the present. Many lands are owned by landlords on a grand scale through land rights (like HGU and HGB) or rights to extract natural resources within so-called state-owned lands are seized from the local people. It is precisely because of this that the government should review the origins of the lands currently under its control. A democratic government truly willing to uphold justice, particularly in a transition from an authoritarian regime, should rightly return seized lands to its original owners or the local peoples, or give restitutions that account for the lands’ worth and the opportunity for a livelihood that was lost.

The next issue from lands with land-use rights is that such rights can be transferred or sold, including as mortgages for bank loans. The peculiarity arises from the fact that lands with land-use rights are lands lent from the state without fees and not leased. There can and should be no rent fees from state-owned land. Land tax that is paid by a land-use rights holder is not and cannot be considered as rent fee.

How, then, a use rights holder—effectively a tenant or a borrower—can mortgage or sell something that does not belong to them? It would be hard for one to understand such a way of thinking without adhering to the logic of commodification within the capitalist mode of production. Such practice demonstrates a form of accumulation by dispossession, as conceived by David Harvey (2003).

Another issue regarding land-use rights is regarding the period of use. A period by default lasts for 25 years, which can be renewed indefinitely. Hence, with a little administrative labour every 25 years, a holder can possess control over a plot of land for 50, 75, or even 100 years, if not more.

These two things alone—the fact that use rights certificates can be bought and sold, and the length of the control over the land—demonstrate legal entities have already been given land-use rights almost just like ownership rights to state-owned lands. Although landlords as holders do not own land legally, their practice are akin to ownership.

The third issue can be summed up as the following question: What kind of state policy must be implemented so that agrarian justice can be realised in such inequitable land tenure found in Indonesia today; so as to diminish landlordism and ensure land ownership for the wider society?

First, there are lands that are formally owned by the state but are under the control of the society, be it by individuals or collectively, and with socio-cultural recognition by its surrounding people. Such lands cannot be revoked of its ownership. If land-use rights are to be issued for such lands, it may lead to two options: (i) if it is still used by its surrounding people, they can be enclaved or put out from the land and be protected; (ii) if the people are already evicted and displaced, the state must provide appropriate restitution to the loss they have suffered.

Second, there must be regulations to restrict land ownership in any form, followed by a firm and consistent enforcement of it. Lands with ownership titles that exceed legal regulations, both in rural and urban areas, are to be taken over by the state and allocated to landless citizens in need of land for their subsistence.

This policy should apply to absentee lands. Existing regulations for such a policy are already in place. However, they are inadequate, particularly for urban and non-agricultural lands. Therefore, currently existing laws must be enacted consistently, and rules that are yet to exist must be made.

The tenure over state-owned lands through various use rights must also be firmly restricted. Restrictions must be made for holding companies or their subsidiaries. If regulations are already made, they must be firmly enacted with resolute legal consequences if they are breached. If they are inadequate, they must be made ample. So that we will no longer hear about, for example, one or several big companies owning lands for palm oil plantations up to millions of hectares, while millions of farmers can only look by or be forced to clear new lands only to be criminalised.

Third, state-owned lands that are inactively owned or owned by an absentee must be revoked to be objects of land reform. Again, if regulations already exist for this, they must be enacted. Corruption watch units must be aware of this, for there are many manipulated practices determining the use rights of state-owned lands.

Fourth, individuals or a legal entity must be limited in possessing titles (for use rights) that exceed regulations, such as holding lands for sharecropping or to be rented. Opportunities must also be given to farmers or other groups that must give in to the fact that the land market is already under the power of a few hands. Even though regulations are already in place for this, it has never been enacted.

Fifth, inequitable land ownership must be calculated to resolve and implement policies to prevent reconcentration. Only then a redistribution of state-owned and absentee lands can be implemented, including autonomous or ex-autonomous lands. Lands are to be given to citizens, particularly from its local populace, that need lands or whose livelihoods depend on land.

If one is to critique or abolish landlordism, these are the five steps or alternative policies that must be implemented. All five of them are basically a part of the agrarian reform that Indonesia needs, an agrarian reform based on the principle of HMN oriented towards the prosperity and well-being of its people and social justice.

Who would be the president who dares to directly implement and lead such an operation?

*) The writer of this article is a Visiting Professor in the Center for Southeast Asian Studies, University of Kyoto, Japan.
**) A short version of this article was published in Koran Tempo, 21 February 2019.

Translation by Alvin Waworuntu