Agrarian Law of Indonesia

In the discussion of the history of the Agrarian Law of Indonesia there are two important phases to consider, namely the phase prior to September 1960, and the phase after that date.In the phase prior to September 1960 the Agrarian Law of Indonesia consists of the parts of Western Civil Law, Customary Law of indigenous people of Indonesia, Law of Inter-Group and the law after the proclamation is the influence of Constitutional Law.From all the above is the most important Indonesian Agrarian Law is premised on the Dutch colonial era is Article 51 IS 1870, also known as the Dutch language Agrarische Wet. As implementation is a revelation than Agrarische Wet Domein (Domein Verklaring) which states that:"All the land that others can not prove, that it is the land eigendomnya domains or owned by the State."So, Domein statement has very important functions as:• a basis for the government in order to provide land to the rights of the West, such as the right eigendom, erfpacht rights, rights opstal and so forth.• proof of land ownership. If there is someone who recognizes that a parcel of land is eigendom his rights, that person is required to prove this right.

Thus, it is clear that the purpose Agrarische Wet contrary to the natural state of independence today, because Agrarische Wet it aims to "give the possibility of foreign capital in order to grow in Indonesia". Right now the independent state of Indonesia in foreign capital is only an attempt and not a destination. Article 33 Paragraph 3 of the 1945 Constitution very clearly reject the fundamentals of mind gave the Dutch government more profits for foreign firms in Indonesia than for the people of Indonesia during the colonial era were:"Earth, water and natural resources contained therein is controlled by the State and used for the greatest prosperity of the People."Thus, the purpose of the 1945 Constitution is that natural resources or the wealth of Indonesia's natural wealth is used for people, not only to provide benefits to owners of foreign capital just as in Agrarische Wet.Dutch East Indies became the Dutch colony since 1815, practical legal conditions in the Dutch East Indies in particular the civil law is dualistic, or pluralistic. In addition to the Customary Law of the Civil Code for the native population, the population of the Netherlands (occupation) apply the civil law of the country of origin.Provisions of Article 131 I.S. are provisions that treat the civil law for residents factions, and civil law apply to different factions of the population, thus making the legal system is pluralistic in the field of civil law.The application of this civil law remains the same after Indonesia's independence, and according to the provisions of Article II of the Transitional Provisions of the 1945 Constitution states that:"All state agencies and regulations are directly applicable, as long as the new has not held under this Constitution."Under the provisions of Article II A.P. It is clear that the 1945 enactment of Civil Law West to Indonesia in the legal order is only temporary until it was replaced with a new one by the Indonesian nation itself, if judged Western Civil Law is contradictory or incompatible with the spirit of the 1945 Constitution and Pancasila philosophy.

BAL Formation BasicsThe new Agrarian Law must give the possibility to achieve beneficial use of land, water and natural resources contained therein for the benefit of the people and country.The new Agrarian Law should also embody the principle embodiment of the State Chaplaincy and the ideals of the Nation as listed in the Preamble of the 1945 Constitution, and should embody the provisions of Article 33 Paragraph 3 of the 1945 Constitution.As the implementation of the provisions of Article 33 Paragraph 3 of the 1945 Constitution is the Law no. 5 / 1960, which is known as the Basic Agrarian Law Shrimp (BAL).A description of some of the Articles in the BAL (Law no. 5 / 1960) 
Article 20-27: Property RightsProperty rights are the rights that the strongest and fullest that can possess people. But this right is not absolute because the land also has a social function, for example, a person is not free to make use of his land if it's disturbing or polluting the environment. This is in accordance with the provisions of Article 6, which reads as follows:"All rights on land has a social function."Article 6 is so contrary to the understanding of the Dutch colonizers of land rights, are more concerned with individual rights over land.Property can be owned only by citizens of Indonesia, although the native or not native, male or female. Indonesian legal entities may also have Property Rights. (Legal entities partly or wholly foreign capital should not have rights to land Indonesia.Property can be used as collateral when burdened with mortgage debt. 
Article 28-34: Hak Guna UsahaRight of Enterprises is the right to commercialize land directly controlled by the State within the time specified for agricultural enterprises, fishery or animal husbandry. Hak Guna Usaha given within a period of 25 years, and for certain companies that require a longer time were given a period of 35 years, and can be extended 25 years.Those entitled to have the Right of Enterprises are citizens, legal entities established under Indonesian law and domiciled in Indonesia. (Article 30)Cultivation can dialihan rights to another party if the person or legal entity who has the Right of Enterprises no longer meets the requirements in Article 30.Hak Guna Usaha can be used as collateral when burdened with mortgage debt.Article 35-40: Right to BuildHak Guna Bangunan have the right to establish and buildings on land not his own with a period of up to 30 years and can be extended to 20 years.As Hak Guna Usaha, Hak Guna Bangunan can dialihan to other parties, and only Indonesian citizens or legal entities entitled to have the Right to Build, and can be used as debt collateral.Section 41-43: Rights of UseUse rights are the rights to use and / or collect the results of the land directly controlled by the state or the land owned by others who gave the authority and duties specified by the competent authority to give or with its agreement with the owner of the land. This right is not the right of the lease or agreement pengolehan ground.Who may have the Right to Use is a citizen of foreigners domiciled in Indonesia, a legal entity established under Indonesian law, foreign legal entities that have a representative in Indonesia.

Article 44-45: Right to Rent for BuildingsA person or legal entity has the right to lease the land if he has the right to use land owned by others for building purposes, by paying the owner a sum of money as rent. Lease agreements are not intended to be accompanied by conditions that contain the terms memeraskan.Who should have right lease is citizen foreigners domiciled in Indonesia, a legal entity established under Indonesian law, foreign legal entities that have a representative in Indonesia. 
Article 46: Right to Open Land, Forest Products PickingPicking Open Land Rights and Forest Products can only be owned by citizens and regulated by government regulations. Picking Right Use of Forest Products does not mean legally acquired property rights over land. 
Article 47: Right of-water, Maintenance & FishingRights-of-water is the right of obtaining water for certain purposes and / or flowing water on the land of others. Water rights and the preservation of fishing & regulated by government regulation. 
Article 48: Right of SpaceRight of Space authorized to use force and elements of space efforts in order to preserve and promote the fertility of the earth, water and natural riches contained therein. Right of Space set up with government regulations. 
Article 49: The rights of land for the Purposes of the Holy and SocialLand rights and religious bodies throughout the social effort in the field used for religious and socially recognized and protected. These bodies are also guaranteed to obtain enough land for the building and his efforts in the field of religious and social.