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Government Regulation No 18 of 1991 converting Portuguese land rights

Indonesian Government Regulation No 18 of 1991 on provisions on the conversion of land rights in the Province of East Timor in accordance with the Basic Agrarian Law 1960

By: THE PRESIDENT OF THE REPUBLIC OF INDONESIA

NO 18 OF 1991 (18/1991)

Date : 13 MARCH 1991 (JAKARTA)

Regarding: PROVISIONS ON THE CONVERSION OF LAND RIGHTS IN THE PROVINCE OF EAST TIMOR IN ACCORDANCE WITH THE BASIC AGRARIAN LAW

The President of the Republic of Indonesia,

Considering:

a. that with the merger of East Timor into the territory of the Unitary State of the Republic of Indonesia as well as the legalization of the integration of East Timor and the formation of the Province of East Timor by Law No 7 Year 1976, all legislation of the Republic of Indonesia, including Law No 5 of 1960 on the Basic Agrarian Law has applied in the territory of the Province of East Timor;
b. recalling that land rights under the law in force before the application of Law No 7 of 1976 are different to the rights under the Basic Agrarian Law, then within the framework of the implementation of the Basic Agrarian Law in the Province of there needs to be an enactment of the provisions on the conversion of land rights under the law in force before the coming into effect of Law No 7 of 1976 to land rights in accordance with the Basic Agrarian Law with attention to the relevant individual land rights.
c. that the said the provisions need to be enacted by a Government Regulation,

Recalling:
1. Article 5 paragraph (2) of the 1945 Constitution;
2. Law No 9 of 1955 on the Foreign Population (State Gazette Year 1955 No 33, Supplemental State Gazette No 812);
3. Law No 62 of 1958 on Citizenship of Republic of Indonesia (State Gazette Year 1958 No 113, Supplemental State Gazette No 1647),
4. Law No 5 of 1960 on the Basic Agrarian Provisions (Law No 5 of 1960 on Basic Agrarian Provisions (State Gazette 1960 Nor 104, Additional State Gazette No 2043) ;
5. Law No 56 of 1960 on Determining the Area of Agricultural Land (State Gazette 1960 No 174, Additional State Gazette No 2117),
6. Law No 5 of 1974 on the Basics of Regional Governance (State Gazette 1974 No 38, Additional State Gazette No 3037);
7. Law No 7 of 1976 on the Legalisation of the Integration of East Timor into the Unitary State of the Republic of Indonesia and the Formation of the Province of East Timor (State Gazette 1976 No 35, Additional State Gazette No3084);
8. Government Regulation No 10 of 1961 on Land Registration (State Gazette 1961 No 28, Additional State Gazette No 2171);
9. Government Regulation No 224 of 1961 on the Implementation of Land Distribution and the Granting of Compensation (State Gazette 1961 No 280, Additional State Gazette No 2322) as revised by Government Regulation No 41 of 1964 on Revisions and Additions to Government Regulation No 224 of 1964 on the Implementation of Land Distribution and the Granting of Compensation (State Gazette of 1964 No 112, Additional State Gazette No 2702);
10. Government Regulation No 38 of 1963 on the Designation of Legal Entities which may have the Right of Ownership on Land (State Gazette of 1963 No 61, Additional State Gazette No 2555);
11. Government Regulation No 19 of 1976 on the Structure of Government in the Province of East Timor and Regencies in East Timor (State Gazette of 1976 No 39, Additional State Gazette No 3088);
12. Government Regulation No 6 of 1988 on the Coordination of the Activities of Regional Vertical Institutions (State Gazette of 1988 No 10 Additional State Gazette No 3373);

RESOLVES:

To enact: GOVERNMENT REGULATION NO 18 OF 1991 ON PROVISIONS ON THE CONVERSION OF LAND RIGHTS IN THE PROVINCE OF EAST TIMOR IN ACCORDANCE WITH THE BASIC AGRARIAN LAW

CHAPTER 1 GENERAL PROVISIONS

Article 1

In this Government Regulation the following terms have the following meanings:

1. The conversion of land rights in the Province of I East Timor is the change of land rights which existed according to the land law applied in East Timor before the coming into force of Law No 7 of 1976 to become land rights according to the Basic Agrarian Law;

2. The right of “Propriedade Perfeita” is the land right under Portuguese law in East Timor, the character of which is complete and absolute, namely, the right to enjoy the produce and use of the land in a full and unrestricted manner provided that it is not in contradiction with the provisions of the law and the rights of other persons, which is evidenced by an “Alvara de Propriedade Perfeita” or in respect of which there was already a decision of the Portuguese Government before the coming into force of Law No 7 of 1976.

3.The right of “aforamento” is the land right under Portuguese law in East Timor which arises from an agreement over State land where the Grantee of the right is given the authority to fully enjoy the use of the land with the obligation to pay to the State an amount of money referred to as “forro", which is evidenced by an “Alvara de Concessao Definitif” or in respect of which there was already a definitive decision of the Portuguese Government before the coming into force of Law No 7 of 1976 and the land has not been surrendered by the right holder or his/her legal representative.

4.The right of “Arrendamento” is the land right under Portuguese law in East Timor which arises from a lease agreement to enjoy the use of State land with certain limitations and with the obligation to pay rent to the State which rent is referred to as "renda", which is evidenced by an “Alvara de Arrendamento” or in respect of which there was already a decision by the Portuguese Government before the coming into force of Law No 7 of 1976 and the land is still controlled by the right holder.

CHAPTER II CONVERSION PROVISIONS

Part 1 Land Rights Granted by the Portuguese State

Article 2

(1) A Right of “Propriedade Perfeita” the holder of which is a citizen of the Republic of Indonesia or a Religious Legal Entity of other Legal Entity referred to in the provisions of Government Regulation No 38 of 1963, is converted into the Right of Ownership.

(2) A Right of “Propriedade Perfeita” the holder of which is a foreign citizen or legal entity is converted into:

a. a Right of Business Enterprise which is valid for a time period of 25 years if the land is agricultural land;

b. a Right of Use of Structures which is valid for a time period of 20 years if the land is not agricultural land.

(3) A Right of “Propriedade Perfeita”, the holder of which is:

a. a Representative of a Foreign State;

b. an International Agency which is recognized by the Government and has representation in Indonesia;

c. a Religious Entity and the land is used for the direct support of the observance of religious duties or religious activities of the relevant religion is converted into a Right of Use which is valid for so long as the relevant land is used in accordance with the activities referred to above.

Article 3

(1) A right of “Aforamento” is converted into:

a. a Right of Business Enterprise which is valid for a time period of 25 years if the land is agricultural land;

b. a Right of Use of Structures which is valid for a period of 20 years if the land is not agricultural land.

(2) If the said Right of “Aforamento” is held by:

a. a Representative of a Foreign State;

b. an International Agency which is recognized by the Government and has representation in Indonesia;

c. a Religious Entity or a Social Entity and the land is used for the direct needs of the observance of religious duties or religious activities of the religion or the social activities of the relevant Entity,
that Right of Aforamento is converted into a Right of Use which is valid as for as long as the land is used for the activities referred to above.

Article 4

(1) a Right of Arrendamento the holder of which is:

(a) a Representative of a Foreign State;

(b). an International Agency which is recognized by the Government and has representation in Indonesia is converted into a Right of Use which is valid for so long as the said land is used for the purposes referred to above.

(2) a Right of Arrendamento the holder of which is:

a. a citizen of the Republic of Indonesia;

b. a foreigner who resides in Indonesia;

c. a legal entity which has been incorporated under Indonesian law and is domiciled in Indonesia;

d. a foreign legal entity which has representation in Indonesia,

is converted into a Right of Use which is valid for a time period of 10 years.

Article 5

(1) The Right of Business Enterprise and the Right of Use of Structures referred to in Articles 2 and 3, the holder of which is a foreign citizen or foreign Legal Entity must be surrendered or transferred to another party who fulfills the conditions for being the holder of the relevant land rights according to the Basic Agrarian Law within the time limit of one (1) year counted from the date of the coming into force of this Government Regulation.

(2) If the release of the right or the transfer of the rights referred to in paragraph (1) is not undertaken, the said land rights are void by force of law and the land will become land directly controlled by the State with the provisions that the rights of other parties which encumber it will be respected and regulated separately.

Article 6

Land rights, the holder of which is an Agency of the Portuguese Government or another public legal entity which existed before the coming into force of Law No 7 of 1976 becomes land directly controlled by the State.

Part Two Land Rights under Adat Law

Article 7

(1) Land rights under adat law which grant the authority of or have the features of the rights referred to in Article 20 paragraph (1) of Law No 5 of 1960 by whatever name will also be clarified by the Head of the National Land Agency after hearing testimony from the local community and are converted into the Right of Ownership, except if the right holder does not fulfill the conditions for becoming the holder of the Right of Ownership under Law No 5 of 1960.

(2) Land Rights under Adat Law which grant the authority of or have the features of land rights referred to in Article 28 paragraph (1), Article 35 paragraph (1) or Article 41 paragraph (1) of Law No 5 of 1960 by whatever name will also be clarified by the Head of the National Land Agency after hearing testimony from the local community and are converted into the right of use with a time period as referred to in Article 2, Article 3 and Article 4 of this Government Regulation.

CHAPTER III TRANSITIONAL PROVISIONS

Article 8

All legal acts which result in the transfer of rights or encumber land with a mortgage which were done before the coming into force of this Government Regulation are recognized and can be accepted for right registration provided that the said legal acts were done according the applicable provisions.

Article 9

This Government Regulation only regulates land which is not yet encumbered with a right under Law No 5 of 1960.

CHAPTER IV OTHER PROVISIONS

Article 10

Ownership of agricultural land which results from the implementation of the conversion provisions of this Government Regulation which is in conflict with the provisions on the maximum land area which may be possessed or absentee land ownership must be ended within 1 year counted from the commencement of the establishment of the maximum land area which may be possessed in the Province of East Timor under Law No 56 of 1960.

Article 11

The implementation of this Government regulation will be further regulated by the Head of the National Land Agency.

Article 12

With the enactment of this Government Regulation all provisions which contradict the provisions of this Government Regulation are no longer valid.

CHAPTER V CLOSING PROVISIONS

Article 13

This Government Regulation comes into force on 1 July 1991. So that everyone knows about it, it is ordered that this Government Regulation be placed in the State Gazette the Republic of Indonesia.

Determined in Jakarta on 13 March 1991 THE PRESIDENT OF THE REPUBLIC OF INDONESIA
SOEHARTO

Enacted in Jakarta on 13 March 1991 MINISTER/STATE SECRETARY OF THE REPUBLIC OF INDONESIA

MOERDIONO

ELUCIDATION OF GOVERNMENT REGULATION NO 18 OF 1991 ON PROVISIONS ON THE CONVERSION OF LAND RIGHTS IN THE PROVINCE OF EAST TIMOR IN ACCORDANCE WITH THE BASIC AGRARIAN LAW

GENERAL
With the enactment of Law No 7 of 1976 on the Legalisation of the Integration of East Timor into the Unitary State of the Republic of Indonesia and the Formation of the Province of East Timor the territory of East Timor formally became a part of the territory of the State of the Republic of Indonesia. In accordance therewith, since that moment, all legislation of the Republic of Indonesia, including Law No 5 of 1960 on the Basic Agrarian Provisions has legally been in force in the territory of East Timor. In this regard, it is understood that the system of government as well as the land system which applied in East Timor before its integration into the State of Indonesia was very different from the system which applies in the territory of the Republic of Indonesia. Land rights which applied were very different to the land rights under the Basic Agrarian Law, in regard to their creation as well as the substance of each of the said rights. For land which is directly controlled by the State, that is, land which is not yet encumbered with a right, the provisions of the Basic Agrarian Law can be directly applied, however, for land which is already encumbered with a right before the coming into force of Law No 7 of 1976 ( on 17 July 1976), those which were granted based on Portuguese law as well as those which existed based on adat law, there needs to be adjustments made in order to realise legal unity in the entire territory of the Republic of Indonesia while still paying regard to rights as well as the holders of rights which already exist. For that purpose, there needs to be issued provisions which regulate the conversion of and rights which existed prior to the coming into force of Law No 7 of 1976 to become land rights under the Basic Agrarian Law. Because the legislation which regulates the said conversion is an implementation of Law No 7 of 1976 and, at the same time, is an implementation of Law No 5 of 1960, then the appropriate form of law is a Government Regulation.

ARTICLE BY ARTICLE

Article 1
Generally, evidence of land rights which were granted by the Portuguese Government were documents which were referred to as “alvara”. Nevertheless, the land rights themselves already existed at the moment the Government issued a definitive decision. Therefore, for the purposes of conversion under this Government Regulation the relevant land rights must be evidenced by reference to the “alvara” or other document which indicates that there was already a definitive decision issued by the government about the relevant right.

Article 2
The land right based on Portuguese law which was the strongest was the Right of “Propriedade Perfeita”. This right is converted to become a Right of Ownership provided that the holder of the right fulfills the conditions to be the holder of the Right of Ownership based on the Basic Agrarian Law. If the holder of the right does not fulfill the said conditions, then the relevant right becomes the Right of Business Enterprise, the Right of Use of Structures, or the Right of Use depending on the use of the land. Specifically for religious entities, the right of “propriedade perfeita” is converted into the Right of Ownership if the relevant land is used directly for religious devotion purposes or religious activities, and becomes a Right of Use if the use is for the support of religious activities, for example, q residence, school, practical education and such like.

Article 3
Clear enough.

Article 4
Clear enough.

Article 5
The provisions of this article are in accordance with the provision in Article 30 paragraph (2) and Article 36 paragraph (2) of the Basic Agrarian Law.

Article 6
Clear enough.

Article 7
As in other areas of Indonesia, land rights based on adat law, generally, are not based on any definite document. In connection with this, evidence of the said rights need research, the results of which will be formalized in a form determined by the Head of the National Land Agency. The said research is to be accompanied by the role of the local community in the form of a forum of an Adat Right Evidence Agency which whose formation will be done by the Regent based on instruction from the Governor.

Article 8
Clear enough.

Article 9
Land which is not encumbered with aright or which is already encumbered with a right based on the Basic Agrarian Law is not within the regulatory scope of this Government Regulation.

Article 10
Clear enough.

Article 11
The Head of the National Land Agency is to determine the implementing provisions of this Government Regulation paying regard to the considerations of other relevant agencies.

Article 12
Since the integration of East Timor into the State of the Republic of Indonesia, several provisions have already been issued by Government agencies at the Central level as well as the Regional level in connection with the problem of land. With the coming into force of this Government Regulation those provisions which are not in accordance with the provisions of this Government Regulation are no longer valid.

Article 13
With the coming into force of this Government Regulation commencing on 1 July 1991 enough time is provided to disseminate it to the holders of land rights who are not all present in East Timor.


© 2004 Warren L. Wright
21 February 2004
Dili, Timor-Leste

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