2004 ETLJ 1 A NOTE ON LAND RIGHTS IN EAST TIMOR [GOVERNMENT REGULATION NO 18 OF 1991 ON THE CONVERSION OF LAND RIGHTS IN EAST TIMOR] & THE PURPORTED SUSPENSION OF ARTICLE 5 BY GOVERNMENT REGULATION NO 34 OF 1992
Introduction and Background
Paragraph 4 of the General Elucidation of Law No 7 of 1976 on the Legalisation of the Unification of East Timor into the Unitary Republic of Indonesia states that, upon integration, the People of East Timor become People and Citizens of Indonesia and all legislation of Indonesia applies in the territory of East Timor.
One law of Indonesia is the Basic Agrarian Law of 1960 (Law No 5 of 1960 on the Basic Principles of Agrarian Affairs – hereafter “the Basic Agrarian Law”). The main intent of the Basic Agrarian Law was to abolish the Dutch colonial land law which had continued to operate in Indonesia since independence in 1942 and to replace it with Indonesia’s own national land law. It repealed all of the principle Dutch land law and all of the provisions of Book Two of the Civil Code “insofar as [they] pertain to soil, water, and the natural resources contained therein, with the exception of the provisions concerning hypotheek (mortgage) which are still effective at the time this act comes into effect”.
The Basic Agrarian Law asserted a new basis for Indonesia’s land law – its adat (customary) law, confirmed the State’s rights in relation to the control and allocation of land and created a new regime of statutory rights. It also included provisions which converted the old Dutch land rights into the new statutory rights. Rights under the Dutch colonial laws which were analogous or similar to the new Indonesian statutory rights were converted into the corresponding Indonesian statutory rights. The Dutch eigendom land right, which was the most complete and strongest Dutch colonial land right in Indonesia, was converted into the Indonesian statutory Right of Ownership. The erfpacht right on large plantations became the Right of Business Enterprise with a term of 20 years and the opstal right and the erfpacht right for residential purposes became the Right of Use of Structures with a term of 20 years. Certain conditions were imposed on the converted statutory rights which required foreigners who held the converted rights to either release them to the State or transfer them to citizens within one year of the enacted of the Basic Agrarian Law. If these conditions were not complied with, the land right was cancelled and the land forfeited to the State.
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