Melbourne Law School - Theses
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ItemReforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities( 2020)An adequate definition of group legal personhood (that is, a rights and obligation-holding personality) in Indonesian law is essential if there is to be equal land rights distribution. The present unclear definition of groups in the law as legal persons, coupled with uncoordinated and fragmented government policies, means that land-related decision-making usually operates only for the benefit of persons seen by the law as an ideal legal subject. In this thesis, I focus on 'person' in the sense of a group of individuals that associate as a single unified entity. In Indonesia and in general legal doctrine, the lack of clarity in the definition of ‘legal person’ has resulted in traditional customary (adat) groups and their customary land title being excluded and this vulnerable to marginalisation and land expropriation. This has given rise to much debate about which groups can be said to have a legal personality as bearers of rights and obligation, and why. The thesis aims: to understand the core concept of a group as a legal or juridical person; investigate how decisions on land rights are made by the Indonesian government; how traditional customary (adat) groups themselves choose to be recognised; and how such distributions could be reformed to better protect adat groups. Two case studies on specific policies related to the asserting of the customary communal land title (hak ulayat) are reviewed, covering the background of decisions on land rights entitlement (socio-legal and political), the process for distribution, and the consequences of the policies chosen. The primary contentions of this thesis are as follows: first, the current practice of legal and political recognition of adat groups requires ‘regional regulations’ (that is, local by-laws) to be passed to make operational a form of legal personhood and operational land title specific to particular local adat groups and ulayat land. These measures can empower adat groups to function before the law. Second, Indonesian law relating to group personhood needs to clearly define which category of legal subject adat groups fall into. The current approach of the government (simplification and homogenisation) presents a fundamental obstacle to adat groups, who seek a legal form that best represents their values and systems, and accurately reflects their group identities. Third, legal exercises by government bodies to translate traditional customary land rights into operational land titles and forest rights have played an important role in creating a legal breakthrough. This has provided a (potential) answer to decades of deadlock in seeking to make ulayat (communal land and forest) rights into legally cognisable and registrable land rights. This research concludes that the legal definition of group personhood creates difficulties facing adat groups in asserting their personhood, which becomes a major obstacle to the capacity of adat groups to assert their rights to their traditional land, but it also concludes that it is not impossible for adat groups to navigate these challenges.