Legal pluralism and land administration in West Sumatra: the implementation of the regulations of both local and nagari governments on communal land tenure

Abstract

Land administration has always been a delicate issue in the history of nations, and Indonesia, a country where a significant number of the population lives a pastoral life, is not exempt from this reality. This paper discusses land tenure issues in West Sumatra, an Indonesian province which is home to the Minangkabau people with their long existing village management system known as Nagari, established to settle disputes based on adat (custom) principles, as well as to protect the rights of the community members. These rights include communal land (referred to as tanah ulayat hereafter). Long before the Dutch occupation of Indonesian archipelago, the nagari government was vested with powers to regulate communal land in West Sumatra. However, this authority was constantly overlooked by the then Dutch colonial administration as well as the post-independence governments (both central and regional). To reinforce the nagari government as the guardian of the customary law (hukum adat) and to specify its jurisdiction, the Regional Government of West Sumatra enacted two laws between 2000 and 2008: Law No. 9/2000 repealed by Law No. 2/2007 and Law No. 6/2008 on communal land tenure. Although these two laws provide legal grounds to address land issues across the region, land conflicts still prevail in West Sumatra due to negligence of customary law, unkept promises as well as unsynchronized and contradictory regulations. The protests against the Regional Military Command Headquarters (Korem) in Nagari Kapalo Hilalang, against the oil palm company in Nagari Kinali, and against a cement factory in Nagari Lubuk Kilangan are cited in this paper as case references.

Keywords:

• local government
• nagari government and Tanah Ulayat

Acknowledgements

This research was made possible with the support of the Epistema Institution Jakarta, Indonesia. I express my gratitude to the Law School of Andalas University Padang, and Pusako, its center for constitution study, under the leadership of Professor Saldi Isra to whom I am really grateful.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See Griffiths (1986).

2. Law No.22/1999 on Regional Governments.

3. See F. von Benda-Beckmann and K. von Benda-Beckmann (2013, 39–60).

4. See database Kerapatan Ada Nagari-Padang 2013.

5. The term datuak is a title given to an adat male leader in the Minangkabau community. They are also known as ninik mamak or panghulu.

6. See Abdulharis et al. (2008).

7. For details on the RR, see Marzuki (2011), and for the recognition of nagari government, see Warman (2010).

8. See Makloemat No. 20/1946 on nagari government.

9. New Order or Orde Baru (1968–1998) was the political era under President Suharto's regime in opposition with his predecessor President Sukarno's Old Ordee or Orde Lama (1945–1968).

10. Interview with a leader of the Lembaga Kerapatan Adat Alam Minangkabau-Sumbar or LKAAM (Nagari Adat Counsel) in Padang on 13 September 2013.

11. See Afrizal (2007, 36).

12. A nagari leader at Lembaga Kerapatan Adat Alam Minagkabau (LKAAM-Sumbar-Padang) told me during an interview on 17 December 2014 that the new style of nagari has weakened the power in the eyes of their community members. He complained that they no longer have any real influence over the community. He mentioned that the supervision of the gotong-royong (community gathering for social work) by the police is a proof of their lack of influence over the community.

13. See Art. 3 Law No. 22/1999 on regional government in Indonesia.

14. See Afrizal (2007, 37).

15. See Warman (2010).

16. Ibid.

17. See Regional Regulation No. 6 2008, Art. 4

18. See Art. 1 of Law No. 13/1983 on nagari government.

19. Afrizal referring to Mirwati (2000, 9) in his footnotes.

20. Many scholars especially Franz von Benda-Beckmann, who has significant publications on Minangkabau people, argues in his article, Legal Pluralism and Social Justice in Economic and Political Development, that voluntary and involuntary migrations have led to increasing contacts between population groups that until then had been living in relatively closed communities. Group migration, movement of individuals or individual families settling in new communities, and intermarriage produce great problems about the rights of newcomers in their new host communities. My research finds that this might be the case in other parts of Indonesia but not in West Sumatra (at least where I conducted my research). Even if it was, it would not be related to land as none of the land conflicts that I researched on have to do with new comers.

21. See Article 13 of the Law No. 16/2008.

22. See Harsono (2005).

23. Brian Z. Tamanaha. 2011. “Rule of Law and Legal Pluralism in Development”. Legal Studies Research Papers No. 11-07-01. Washington University in St Louis, School of Law, 14.

24. Interview with a leader of the Nagari Adat Counsel in Padang on 23 September 2013.

25. Discussion with Dr Kurnia Warman, an Agrarian Law professor at Andalas University. He has conducted significant research on Legal Pluralism and the Indonesia Agrarian Law with focus on communal land in West Sumatra.

26. Database of Padang Legal Aid Agency (LBH-Padang), 2010.

27. Korem is the term used for a regional military command headquarters. Korem oversees several District Military Commands or the military command support units such as military police, building engineers, debriefing and transport, equipment, health, and others. There is a total of 44 Korem throughout Indonesia and some have their own territorial battalion.

28. Interview with KAN leaders at Nagari Kilangan on 30 December 2014, 14:30.

29. See Afrizal(2007, 96).

30. Ibid.

31. Padang Ekspres 1–4 November 2003.

32. Interview with Depute Head of KAN Lubuk Kilangan on 12 December 2014, 16: 04

33. See Tamanaha (2011, 15).

34. See Septria Yanto, Tinjauan Yuridis Atas Berlakunya Peraturan Daerah Provinsi Sumatera Barat Nomor 6 Tahun 2008 Tentang Tanah Ulayat Dan Pemanfaatannya.

35. See Article 8 of the Presidential Decree No. 40/1996 on land tenure.

36. See the Presidential Decree No. 40/1996 Art. 12, Section 1.

37. See Article 20 Section(1), The Basic Agrarian Law 1960.

38. See Presidential Decree No. 10/2001.

39. In a book entitled Recrafting the Rule of Law: The Limits of Legal Order, edited by David Dyzenhaus, Christine Sypnowich, talking about the importance of the Rule of Law, quoted Thomas Scanlon: “ownership is relevant in determining the boundaries of our zone of privacy, but its relevance is determined by norms whose basis lies in our interest in privacy, not in the notion of ownership”.

40. See Emmerson (1999, 31).

41. Dr Afrizal quoting Harsono [1999, 4142].

42. See Law No. 15, S. 1870.

43. Read Mahadi (1991), p. 101.

44. See F. von Benda-Beckmann (2001).

45. Barber (2006, 306–329).

46. See Tamanaha (2011).