37563 Decentralizing Indonesia's Land Administration System: Are Local Governments and Land Offices Ready? Evidence from 27 Districts Final Report June 2001 This report was prepared for the World Bank Office in Jakarta for use in its collaboration with the Indonesia National Land Agency (Badan Pertanahan Nasional). The report was prepared by Dr.Thomas Rieger, Dipl.-Betrw. Faisal Djalal, Drs. Edwar St. Pamuncak, Ir.Rusdi Ramon and Bedjo Soewardi, M.Sc as a joint report of COMO GmbH/PT and COMO Konsultindo. The content of the report does not necessarily reflect the official World Bank view. Content CONTENT ................................................................................................................................................................................2 ANNEXES .................................................................................................................................................................................4 ILLUSTRATIONS..................................................................................................................................................................4 TABLES .....................................................................................................................................................................................5 0 EXECUTIVE SUMMARY..........................................................................................................................................6 1 INTRODUCTION........................................................................................................................................................10 1.1 GENERAL BACKGROUND.......................................................................................................................................10 1.2 DECENTRALISATION...............................................................................................................................................12 1.2.1 General Background ....................................................................................................................................12 1.2.2 Decentralisation's implications for the land administration system ...................................................14 1.2.2.1 BPN before decentralisation........................................................................................................................ 14 1.2.2.2 Challenges of decentralisation ..................................................................................................................... 16 1.2.2.3 Twists and turns in decentralising the land administration system ............................................................. 19 1.2.2.4 Options lying ahead for the land administration system under decentralisation......................................... 23 1.3 CADASTRAL REFORM.............................................................................................................................................23 1.4 PURPOSE OF THE STUDY........................................................................................................................................26 1.5 ORGANISATION OF THISREPORT ..........................................................................................................................27 2 BASIC CONCEPTS AND METHODOLOGICAL CONS IDERATIONS ..................................................29 2.1 BASIC CONCEPTS....................................................................................................................................................29 2.2 THE QUALITY MANAGEMENTAPPROACH AS CONCEPTUAL FRAMEWORK...................................................30 2.3 THE STUDY AS AN OFFER OF SUPPORT TO A PROCESSOF CHANGE.................................................................. 35 2.4 SURVEYDESIGN .....................................................................................................................................................36 2.3.1 Data sources and data collection approach............................................................................................36 2.3.2 Sample selection............................................................................................................................................36 3 MAJOR FINDINGS FRO M THE SURVEY........................................................................................................39 3.1 INTRODUCTION.......................................................................................................................................................39 3.2 DEMAND FOR LAND ADMINISTRATION SERVICES ..............................................................................................39 3.2.1 Demand for land administration services from the local population..................................................40 3.1.1.1 Major motivations for public demand for land administration services...................................................... 41 3.1.1.2 Major quality expectations by the public with regard to land administration services ............................... 42 3.2.2 Demand for land administration services from local government institutions.................................. 45 3.2.3 The question of land administration services for land under hak ulayat status ................................48 3.3 CAPACITY FOR SERVICE DELIVERY......................................................................................................................53 3.3.1 Geodetic framework .....................................................................................................................................54 3.3.2 Physical infrastructure................................................................................................................................. 56 3.3.3 Measuring equipment................................................................................................................................... 59 3.3.4 Computerisation............................................................................................................................................60 3.3.5 Vehicles ...........................................................................................................................................................63 3.3.6 Human Resources .........................................................................................................................................64 3.3.7 Managerial issues .........................................................................................................................................67 3.3.7.1 Authority over forest lands.......................................................................................................................... 67 3.3.7.2 Development Planning of Local Land Offices ............................................................................................ 69 3.3.7.3 Involvement of village administration......................................................................................................... 69 3.3.7.4 Data exchange with Land Tax Offices (KPBB) .......................................................................................... 70 3.3.7.5 Conflict resolution....................................................................................................................................... 72 3.3.7.6 Corruption.................................................................................................................................................... 72 3.3.7.7 Problems in the chain of command............................................................................................................. 76 3.3.8 Data on output and future workload of local Land Offices................................................................... 77 3.3.9 Remuneration of BPN staff..........................................................................................................................79 2 3.4 FINANCIAL VIABILITY OF THE LAND ADMINISTRATION SYSTEM .....................................................................82 3.5 CONCLUSIONS.........................................................................................................................................................86 Demand ............................................................................................................................................................................86 3.5.2 Service Delivery Capacity ...........................................................................................................................87 3.5.3 Implications for reform ................................................................................................................................89 4 GOOD PRACTICES ...................................................................................................................................................91 4.1 THE CONCEPT OF GOODPRACTICES ....................................................................................................................91 4.2 GOOD PRACTICES/"SUCCESS STORIES " FOUND IN THE SURVEY .....................................................................92 4.2.1 Improving enablers for the work of local Land Offices/Dinas Pertanahan.......................................93 4.2.1.1 Vision & Strategies...................................................................................................................................... 93 4.2.1.2 Leadership .................................................................................................................................................... 94 4.2.1.3 Partnerships.................................................................................................................................................. 94 4.2.1.4 Hardware ...................................................................................................................................................... 95 4.2.2 Improving processes within local Land Offices/Dinas Pertanahan .....................................................96 4.2.2.1 For customer relations ................................................................................................................................. 96 4.2.2.2 For internal processing of applications...................................................................................................... 100 4.2.3 Improving results ........................................................................................................................................102 5 RECOMMENDATIONS..........................................................................................................................................104 5.1 POLICY LEVEL: GOI WITH BPN AND OTHER INSTITUTIONS INVOLVED IN LANDINFORMATION SYSTEM BUILDINGAND LAND RESOURCES MANAGEMENT ........................................................................................................105 5.1.1 Develop a better division of tasks between different institutions involved in land questions ........105 5.1.2 Develop a viable mid-term decentralisation concept for BPN ...........................................................105 5.1.3 Improve legal security of land tenure......................................................................................................107 5.1.4 Improve legal framework for addressing major managerial issues ..................................................108 5.1.5 Develop a strategy for integrating BPN into the National Geographic Information System (SIGNAS)108 5.2 BPN PUSAT WITH LOCAL GOVERNMENTS AND THEIR RESPECTIVE DINASPERTANAHAN.........................109 5.2.1 Develop a demand responsive and comprehensive "Business Plan" for BPN Pusat as a service and standard setting unit.............................................................................................................................................109 5.2.2 Develop a framework for quality management in the land administration system .........................109 5.2.2.1 Define a Human Resources Development (HRD) Strategy ...................................................................... 110 5.2.2.2 Improve Public Relations .......................................................................................................................... 111 5.2.2.3 Establish mechanisms of horizontal communication and learning............................................................ 111 5.2.2.4 Develop a tool for taking investment decisions at Dinas Pertanahan........................................................ 112 5.2.2.5 Improve core processes.............................................................................................................................. 112 5.3 LOCAL GOVERNMENTS TOGETHER WITH THEIR DINAS PERTANAHAN, SUPPORTED BY BPN PUSAT.......113 5.3.1 Establish a medium term development plan for the Dinas Pertanahan............................................113 5.3.2 Improve customer relations.......................................................................................................................114 5.3.3 Participation Mechanisms.........................................................................................................................114 5.3.4 Manage the PPAT system and the role of the village administration................................................115 5.4 GOI WITH WORLD BANK ....................................................................................................................................115 5.5 NOTES ON THE PROCESS OF PUTTING THE RECOMMENDATIONS TO WORK................................................116 BIBLIOGRAPHY ...............................................................................................................................................................118 3 ANNEXES ANNEX 1: Bibliography ANNEX 2: List of countries participating in cadastral systems benchmarking survey of FIG ANNEX 3: New structure of local Land Offices as prescribed by the Minister of Home Affairs and Regional Autonomy's Decree No.50/ 2000 ANNEX 4: Survey of cases of irregularities in land administration in East Java Province ANNEX 5: Proposal for performance indicators for local Land Offices (from BPN Pusat working group) ANNEX 6: Description of tasks and structure of BPN Pusat ANNEX 7: Documentation of regional workshops (Bukittingi, Semarang) ANNEX 8: Data on financial situation of local Land Offices ANNEX 9: Questionnaires used for survey ANNEX 10: Terms of Reference Note: Annexes 3-10 on CD attached to this report Illustrations FIGURE 1 : CLIPPING FROM THE NATIONAL NEWSPAPERKOMPAS, MARCH 8, 2001, DESCRIBING THE FAILURE OF PUTTING A NEW HEAD OF THE KOLAKA LAND OFFICE IN PLACE BECAUSE LOCAL BPN STAFF INSISTED ON THE DISTRICT HEAD APPROVING THE APPOINTMENT, RATHER THAN THE HEAD OF THE BPN K ANWIL...................18 FIGURE 2 : REPORT FROM THE ONLINE EDITION OF THE REGIONAL NEWSPAPER JAWA POS ABOUT THE BREAK DOWN OF OPERATIONS IN THE LOCAL LAND OFFICE/DINAS PERTANAHAN OF BANYUWANGI IN EAST JAVA, CAUSED BY THE PRESENCE OF TWO RIVAL HEADS OF OFFICE, ONE INSTALLED BY THE BUPATI, ONE BY THE KANWIL BPN................................................................................................................................................................... 20 FIGURE 3: REPORT FROM THE ONLINE EDITION OF THE REGIONAL NEWSPAPER SUARA MERDEKA (SEMARANG) ABOUT THE ACTION TAKEN BY THE ASSOCIATION OF VILLAGE OFFICIALS OF PATI DISTRICT TO ENF ORCEA SOLUTION TO THE DEADLOCK BETWEEN THE HEAD OF LOCAL LAND OFFICE APPOINTED BY KANWIL BPN AND THE HEAD OF DINAS PERTANAHAN APPOINTED BY THE BUPATI .......................................................................22 FIGURE 4 : THECADASTRAL CONCEPT, FROM FIG STATEMENT ON THE C ADASTRE...................................................29 FIGURE 5: A N ADAPTED EFQM-MODEL FOR LAND ADMINISTRATION SERVICES ...........................................................32 FIGURE 6 : REPORT IN THE ONLINE-EDITION OF THE REGIONAL NEWSPAPER JAWA POS ABOUTFALSE CERTIFICATES ISSUED BY BPN SIDOARJOAND USED TO OBTAIN CREDITS FROM A BANK IN M ALANG.............43 FIGURE 7: D IFFERENT CATEGORIES OF ADAT LAND RIGHTS INM INANGKABAUSOCIETY (WEST SUMATRA) ...........50 FIGURE 8 : INTER-LEVEL LINKS AFFECTINGQUALITY OF SERVICE TO END-USERS IN THE LAND ADMINISTRATION SYSTEM .............................................................................................................................................................................53 FIGURE 9: COVERAGE OF SAMPLE REGIONSBY 3RD ORDER POINT GRID......................................................................... 55 FIGURE 10: OFFICE SPACE AVAILABLEIN % OF MINIMUM REQUIREMENT ACCORDING TO BPN REGULATIONS.......57 FIGURE 11: THE DRAWING ROOM OF BADUNG LAND OFFICE ...........................................................................................57 FIGURE 12: ANOTHER OFFICE ROOM IN BADUNG LAND OFFICE......................................................................................58 FIGURE 13: SIMPLE BUT ORGANISED SHELVES AND N EFFORT TOWARDS PROPER MAINTENANCE OF RECORD VOLUMES (LOMBOK BARATLOCAL LAND OFFICE)................................................................................................... 58 4 FIGURE 14: MOVABLE SHELVES FOR RECORD STORAGE (SIDOARJO LAND OFFICE) .....................................................58 FIGURE 15: A STORAGE ROOM FOR LAND RECORDS IN BADUNG LAND OFFICE.............................................................59 FIGURE 16: ANOTHER STORAGE ROOM FORRECORDSIN BADUNG LAND OFFICE.........................................................59 FIGURE 17: STAFF EFFICIENCY AND RATIO OF STAFF PER THEODOLITE FOR SELECTED LOCAL LAND OFFICES ........59 FIGURE 19: PHASED APPROACH FOR LAND OFFICE COMPUTERISATION..........................................................................62 FIGURE 20: NUMBER OF VEHICLES OWNEDBYLOCAL LAND OFFICES ............................................................................63 FIGURE 20: LEVEL OF GENERAL EDUCATION.......................................................................................................................64 FIGURE 21: PERCENTAGE OF SAMPLE LAND OFFICES STAFF WITH TERTIARY EDUCATION ..........................................65 FIGURE 22: FIELD OF TERTIARY EDUCATION .......................................................................................................................65 FIGURE 23: COMPOSITION OF STAFF IN TERMS OFCIVIL SERVICE GRADES IN BOGOR AND LIMAPULUHKOTO LAND OFFICE..............................................................................................................................................................................66 FIGURE 24: NUMBER OF PROFESSIONAL SURVEYORS ACTIVE IN THE CADASTRAL SYSTEMPER 1 MILLION INHABITANTS ................................................................................................................................................................... 66 FIGURE 25: NUMBER OF LAWYERS/SOLICITORS ACTIVE IN THE CADASTRAL SYSTEM PER 1 MILLION INHABITANTS66 FIGURE 26: REPORT IN THE NATIONAL DAILY KOMPAS ABOUT THE ALL JAVAAND MADURA CONFERENCE OF LOCAL ASSEMBLY CHAIRPERSONS TO DISCUSS THE MANAGEMENT OF FOREST RESOURCES UNDER DECENTRALISATION (REPRODUCED FROM: LAP-C H OT NEWSNO. 140 VOL. IV MARCH 27, 2001)...............68 FIGURE 27 : DEVELOPMENT OF BACKLOGIN PBB COLLECTION IN URBAN AND RURAL AREAS OF KUDUS DISTRICT/CENTRAL JAVA (1996-1999) .......................................................................................................................70 FIGURE 28: LAND RELATED REVENUE'S SHARE IN TOTAL LOCALLY GENERATED REVENUE......................................... 71 FIGURE 29 : MINISTER OF LAND AFFAIRS/HEAD OF BPN WARNS FUTURE LAND ADMINISTRATION PROFESSIONALS NOT TO SUCCUMB TO TEMPTATIONS OF CORRUPTION................................................................................................76 FIGURE 30 : OUTPUT AND PRODUCTIVITY OF LOCAL LANDOFFICES ..............................................................................79 FIGURE 31: REMUNERATION OF BPN LOCAL LAND OFFICES STAFF (NOMINAL AND IN RELATION TO LOCAL INCOME LEVEL)...............................................................................................................................................................................80 FIGURE 32: POTENTIAL INCOME BOOST FOR LAND ADMINISTRATION STAFF (IN %) FOREVERY 1% OF LOCAL LAND RELATED GOVERNMENT REVENUE USED TO INCREASE SALARIES ............................................................................81 FIGURE 33: COST RECOVERY RATES IN INTERNATIONAL BENCHMARKING (FROM KAUFMANN/STEUDLER, CADASTRE2014 . FIG COMMISSION 7 (1998) P.12 .....................................................................................................82 FIGURE 34: COST RECOVERY RATE (IN %) OF THE LOCAL LAND OFFICES IN THE SURVEY SAMPLE ...........................83 FIGURE 35: TOTAL COST PER DEED FOR SELECTED LOCAL LAND OFFICES .....................................................................84 FIGURE 36 : DEVELOPMENT OF PBB/BPHTB RATIO AS INDICATOR FOR MATURITY OF LAND MARKET....................85 FIGURE 37 : THE "GOOD PRACTICES " TOOL IN THE PROCESS TOWARDS STANDARD SETTING .....................................92 FIGURE 38: INFORMATIONBROCHURE OF BADUNG DISTRICT/BALI LAND OFFICE FOR APPLICANTSSEEKINGLAND CERTIFICATES................................................................................................................................................................... 98 FIGURE 39: INFORMATION SHEET FOR APPLICANTS FOR FIRST TIME REGISTRATION OF LAND IN LOMBOK BARAT LAND OFFICE................................................................................................................................................................... 99 FIGURE 40: "T RACKING CARD" INTRODUCED IN SIDOARJO DISTRICT LAND OFFICE................................................101 Tables TABLE 1 : THE FINANCIAL PERFORMANCE OF THE TOTALITYOF LOCAL LAND OFFICES BY PROVINCE IN THE 1997/1998 FISCAL YEAR ...............................................................................................................................................17 TABLE 2 : SAMPLE REGIONS VISITED BY SURVEY TEAMS.................................................................................................. 37 TABLE 3 : CATEGORISATION OF REGIONS VISITED..............................................................................................................38 TABLE 4 : PARAMETERS COVERED INTHE FIELD STUDY AND THEIR RELATEDNESS BASED ON THE EFQM MODEL. 53 TABLE 5 : COVERAGE BY REFERENCE POINTS OF 2ND AND 3RD ORDER (BY PROVINCE)...............................................56 TABLE 6 : CASES OF IRREGULARITIES IN EAST JAVA DISTRICTS AND MUNICIPALITIES .................................................74 5 0 Executive summary The question of improving the land administration, especially the allocation to and protection of land rights to ordinary citizens and rural communities has been a long term political issue of considerable potential for conflict in Indonesian society. With the democratisation drive starting in 1998 it has gradually moved back on the national political agenda, on the local le - vel it has even become the No. 1 issue in many parts of the country. From June 2000 to May 2001, under a grant of the World Bank and in preparation of a possible future sequel to the Land Administration Project, a team of consultants has surveyed 27 districts and municipali- ties in 10 provinces to establish in some more detail what challenges lie ahead of the land ad- ministration system under the ongoing democratisation and decentralisation of the country's administration. Demand from the general public and local governments, service delivery ca- pacity of local land offices and a systemic analysis of options for improving the fit between demand and supply were the major focusses of the study. Findings about the demand for land administration services Demand for land administration services has been determined by analysis of · the interviews with local assembly members and local government officials in the regions visited · interviews with officials of the local Land Offices · financial data of the Land Offices · additional sources like press reports With regard to public demand for land administration services, this analysis yields the fol- lowing conclusions: · If willingness and ability to pay as reflected in the figures up to fiscal year 1998/1999 (before the abolition of many service fees) are taken as an indicator, on a national basis demand is strong enough to let the land administration system operate even with profit. If the considerable hidden costs are taken into account, and this funds could be channelled into the official circuit, the picture would look even brighter. · Demand is particularly strong in most urban areas and the economically more developed and densely populated areas on Java and Bali. It is relatively weak in certain areas in Su- matra and Kalimantan, though it should be noted, that even there in six out of 13 areas surveyed sufficiently strong demand could be observed to let the local Land Offices ope- rate with more than 100% cost recovery. On a national scale in 1997/1998 about one third of the local Land Office achieved net profit, or at least full cost recovery. · The "market" for land administration services has still a considerable potential remaining untapped, because § the (legal) products (i.e. forms of rights adjudicated) are not yet customised to the clients needs and preferences, especially in areas where customary perceptions (adat) towards land rights play an important role § the quality of service delivery still scares off many potential clients 6 · As major elements of the quality of land administration services the clients define securi- ty/reliability, transparency of procedures, timeliness, affordability/transparency of pricing and convenience in obtaining services. Most local Land Offices scored poorly on one or several of these quality expectations. Local governments under decentralisation bear an increased responsibility for managing eco- nomic, social and economic affairs in their regions, including land administration services. In their double function as administrative supervisors of the land administrations system's wor- king level (the Kantor/Dinas Pertanahan) and clients of the system, local governments · are in a general sense quite conscious of the importance of land questions, not the least be- cause land related revenue (the Land and Buildings Tax/PBB and the Tax for Conveyance of Land and its Improvements/BPHTB) constitutes a substantial part of their income (na - tion wide an average 11% of total local government income, and 53% of locally generated government revenue); · have rather limited detail knowledge about the mechanisms of land administration, a situ- ation that will require a pro-active approach from the new Dinas Pertanahan to lobby for budgets and position themselves within the local administrative apparatus; · focus their interest on the issues of conflict prevention, attractiveness to investors and im- provement of tax revenue. The land administration system's capacity to deliver the services demanded While the public increasingly presses for legal security of land rights and transparent, timely, affordable and reliable land administration services, the current system's ability to meet that demand in quantity and quality is quite limited. Major points of concern are: · The absence of vision and strategies for the land administration system's future develop- ment · The inadequate regulatory framework · The weak managerial capacity on all levels · Substantial deficits in human resources, infrastructure and equipment Although numerous efforts to address specific problems have been found in the field (compu- terisation schemes, upgrading of building facilities, national project for improving net work of geodetic control points etc.), only in the few cases where bigger local Land Offices have been involved in a more comprehensive development scheme (like e.g. in Semarang Municipality) some measure of progress could be noted. To avoid scarce resources being used in an ineffi- cient way, it would be helpful to identify and design future development measures based on a comprehensive Quality Management approach. As the ISO 9000 family tools, up to now most popular in Indonesia, tend to be expensive and formalistic and there is no need for the land administration system to seek a certification for legitimation purposes, this report is organised along the lines of the European Foundation for Quality Management model1, both in its analy- sis and in its recommendations for future action. 1 See Chapter 2 7 The study has treated the ongoing administrative and fiscal decentralisation as part of the framework conditions, not as an a priori fixed objective for reform of the land administration system. As a consequence, most of the analysis and recommendations remain valid even in case the devolution of the working level of the land administration system should eventually be revoked. Nevertheless, the study yielded some strong evidence, that the devolution of the working level - combined with a reengineering of BPN Pusat to prepare it for fulfilling the functions set out in Government Regulation 25/2000 - could have a considerable positive impact on the system's performance · because local units can react to immediate feed back from their clients to improve their services · because many problems like high unit costs for services, low staff efficiency, inadequate facilities and equipment etc. are due to over-standardisation under the centralised system · a single administrative line of command that includes both the working level of the land administration (Dinas Pertanahan) and the village administration could iron out most of the co-ordination problems in land registration · by linking budgets to customer satisfaction - i.e. having the local assemblies deciding over investments, staff incentives etc. - a more customer oriented mentality can be instilled into the system It should be noted, however, that without improving BPN Pusat's capacity · for service delivery and technical guidance of the working level units · adequate system building efforts devolution could just as well backfire and make a weak system worse. Major recomendations Recommendations have been formulated for the policy level (central government), BPN Pusat and the local governments. To the central government, it is recommended to · Develop a better division of tasks between different institutions involved in land questions and advance integration of BPN into the National Geographic Information System (SIGNAS) · Develop a viable mid-term decentralisation concept for BPN · Improve lega l framework for addressing major managerial issues and to improve security of land tenure To BPN Pusat it is recommended to · Develop a demand responsive and comprehensive "Business Plan" for BPN Pusat as a service and standard setting unit · Develop a framework for quality management in the land administration system (for all levels, several projects to open the process are proposed) 8 To local governments it is recommended (together with their Dinas Pertanahan) · to set up development plans for the Dinas Pertanahan · take simple steps to improve customer relations as a first step towards a customer oriented service culture · to establish participation mechanisms in land administration · to improve the management of the village administration's role in land administration issues 9 1 Introduction 1.1 General Background Extreme scarcity of land resources has long been a dominant feature of Indonesia's socio-eco- nomic reality, although at first sight overall population density is only little more than 100 persons per km2. However, on the islands of Java, the archipelago's traditional political and cultural centre of gravity where more than half of Indonesia's population lives, population density easily reaches 1.000 persons per km2 even in rural areas. And even in many sparsely populated areas land resources are not as abundant as simple population density arithmetic might suggest, the lower population density corresponds to the lower carrying capacity of the soils for agricultural communities. With mounting population pressure and the resulting intensification of competition for the scarce land resources, land related conflicts have for a long time been a major source of social unrest in Indonesia. The struggle between the rural poor and a slightly more prosperous rural elite (and, of course, a limited group of absentee landlords) for the scarce resources in arable land during the first half of the 1960s especially on the densely populated islands of Java, Bali and Madura did perhaps more than overt ideological reasons to bring about the cataclysmic conflict of 1965/1966 which took such a heavy toll primarily in rural areas where competition for access to land resources was most intense. The long period of keeping the scope and in- tensity of conflicts artificially low by use of repression during the New Order era has, if any- thing, aggravated the problem, as the gulf of land conflicts after 1998 showed. Redressing the problem is an immensely complex task. For one thing, the extreme fertility of many of Java's volcanic soils has resulted into a socio-economic pattern of highly intensive agriculture on ever shrinking plots of land that the renowned anthropologist Clifford Geertz baptised "agricultural involution" almost half a century ago. As a consequence already at the time of the promulgation of the Basic Agrarian Law (Undang-Undang Pokok Agraria) in 1960 Indonesian land reform at least on Java was not a question of distributing vast holdings of an oligarchy of absentee landlords to small peasants. Even a consistent application of the law would not have resulted in all small farmers and landless households obtaining enough land to make a decent living of it.2 However, the explosiveness of the land question in Indonesia is not limited to the most dense- ly populated regions, like Java, as the recent bloody clashes between autochthonous commu- nities and Madurese immigrants on Kalimantan show3. This last example highlights another aspect to the problem, i.e. the fact that besides the scarcity of land resources also the different perception with regard to land rights is a powerful driving force of conflict in itself. Whereas especially on Java land has been regarded as a commodity for some centuries - although even there perceptions of land as pusaka, an object that is handed down in a family from one gene- ration to the next, to some extent persist - in many areas the idea of land being treated as a 2 The sociologue E.Utrecht, cited in: Mortimer, R.A.., The Indonesian Communist Party and Land Re- form 1959 -1965. Monash Papers on southeast Asia No. 1. Clayton/Victoria: Centre of Southeast Asian Studies, Monash University (1972), p. 16 3 In the documentation of a Jakarta based NGO on the 1999 violence in the Sambas District of West Kali- mantan which saw widespread violence between the two autochthonous groups (Malay and Dayak) and the Madurese immigrants, land issues are mentioned by several local figures interviewed as one of the triggering factors for the underlying conflict (Petebang, E. et al. eds., Konflik Etnik di Sambas. Jakarta: Institut Studi Arus Informasi (2000), pp. 39, 89, 145, 151, 155 etc. 10 commodity is much more fundamentally alien to local customary law based perceptions. So far, the dualism between "Western" concepts of land as a commodity and customary law perceptions of the relationship between man and soil - in fact between human beings about who controls soil and its fruit4 - which the Undang-Undang Pokok Agraria tried to resolve has been met with an attitude of denial rather than being managed. Land reform - as a systematic effort to achieve a kind and measure of justice in the distribu- tion of land resources acceptable to the majority of stakeholders - was perceived as urgent but difficult in 1960. It now faces another 40 years of backlog in problem solving and has become more urgent and still more difficult. Major obstacles to land reform include · Socio-economic factors: there is not much to be distributed in the most densely populated regions, whereas the "miracle solution" of old -transmigration - has ended in disaster · Political factors: there is no political force willing and commanding the power to really engage in redistribution of land, both non-forest lands and forest lands · Cultural factors: The change of paradigm intended by the Basic Agrarian Law - from an imported unified land administration model serving a minority elite towards a comprehen- sive system taking into account the diversity in local legal perceptions and benefiting the majority of the population - has never taken root in administrative practice. Even if local perceptions are mentioned, its rather in terms of an anthropological curiosity than in the sense of reconciling formal law with perceptions living in society and providing for real community participation. Allowing land reform to remain in the current impasse would, however, be dangerous to say the least. Social conflicts are multiplying, imports of agrarian products further erode the cur - rency and the degradation of soils is advancing at a rapid pace. The country already has paid dearly for the decades of stagnation · economically : through under utilisation of land resources (by land laying idle, less than optimal cultivation due to reluctance for long term investment etc.), the scaring off of investors by land conflicts, the under utilisation of land as an asset to mortgaged for ob- taining working capital · socially: poverty incidence has increased dramatically since the beginning of the econo- mic crisis in 1997, negligence towards a real empowerment of the rural economy (of which land reform would have been an important element) is partly to blame · ecologically: heavy soil losses through erosion caused by cultivation of even the steepest slopes, alarming deforestation and over utilisation of poor soils as the immediate conse- quences of the rural poor lacking land to eke out an existence have led to decreasing soil productivity, regional climate change and endangered regeneration of water resources Why talking about land reform in a report that has the cadastre (and to a lesser extent certain land use management functions) as its subject ? For one, the cadastre is an important tool for land reform. Although the above mentioned problems will not be solved by improving title registration or better cadastral maps, without an improved cadastre5 there will be no meaning- ful Land Information System which is in turn an important factor for success in implementing land reform. Both together are necessary, though not sufficient conditions for sound Land 4 cf. note 69 5 used in the conventional sense (see Chapter 2), with a modern multi-purpose cadastre the statement would become tautological. 11 Resources Management. In other words: the cadastre can provide transparency in land affairs, not justice. But without transparency, justice - land reform - will be difficult to achieve. Transparency and justice are also crucial to gain acceptance by the population for Land Re- sources Management measures6 which thereby gradually become enforceable. But there is a second rationale in treating the subject of the cadastre against the background of the larger context of land reform and ultimately Land Resources Management. This rationale is the fact, that the mechanisms of power having blocked cadastral reform are more or less the same as those having blocked land reform. If cadastral reform can be implemented, i.e. the rule of law being established in the land administration, some of the skill for political nego- tiation processes for the much more difficult task to establish (more) justice - implement land reform - might have been acquired in the course. 1.2 Decentralisation 1.2.1 General Background Apart from general democratisation, the most important current political trend in Indonesia that sets the scene for reforming the cadastral system is decentralisation. The current decen- tralisation drive is not the first, but perhaps the most promising one. The first decentralisation law - not of Indonesia as an independent nation, but of the Dutch East Indies administration as the first modern state on the territory that later became Indonesia - was promulgated in 1903.7 It did not change a lot in administrative practice, as the real centralism was colonial rule, which was - undemocratic by nature - off course not going to abolish itself.8 The second, and this time politically devastating effort towards decentralisation of the Dutch was their ma- noeuvre to impose federalism on the newly independent Republic of Indonesia in the 1949 agreement on the transfer of sovereignty.9 As this move was perceived as a trick of weakening the Republic of Indonesia by a divide et impera policy, it discredited not only federalism but for some even any real measure of regional autonomy for a long time to come. Meanwhile, the government of the Republic of Indonesia, still at war with the Netherlands, in 1948 had promulgated Law No. 22 which transformed what had been mere levels of administrative 6 Quite a few of them take the form of limitations under common law placed on the use of plots of land to protect water resources, prevent soil degradation or contain deforestation etc. 7 Published in Indisch Staatsblad 1903, No. 329, this basic regulation was later complemented by regu- lations concerning among others the form and tasks of local government (1905) and their election (1908), a brief summary of the legal framework of the Dutch decentralisation policy is given in Schrieke, J.J., De Voornaamste Wettelijke Bepalingen Betreffende de Decentralisatie von 1903 en de Inlandsche Gemeenten en hare Grondbeginselen, Batavia: Landsdrukkerij (1917). This decentralisation also gave some say to local authorities on land affairs, like the use of communal lands or the coversion of such lands into individual property (Schrieke,op. cit. pp.99-105). However, the law did not touch the administrative system of the so-called zelfbesturende Landschappen (self governing regions) (Schrieke, op. cit.p.2, these units were spread over practically the whole archipelago, for a list see Spit, H.J., De Indische Zelfbesturende Landschappen . Hun Mate van Zelfstandigheid., Ph.D. Thesis (1911?), pp. 134- 139 8 That this is not ju st rethorics was most poignantly demonstrated with the assignment of majorities of anything between 66-75% of the seats in the regional or municipal councils to members of the tiny European minority. 9 For a brief description of structure and collapse of the federalist system see Kahin, G. McT., Nationa- lism and Revolution in Indonesia. 3rd ed. Ithaca/New York: Cornell University Press (1955), pp. 446- 461 12 hierarchy into autonomous regions (daerah swatantra).10 This law established the basic terri- torial administrative system (province, district/kabupaten and village/desa, the sub-district/k e- camatan was not in the design but later maintained) in place until today. In early 1957 a new law on local government (Law No.1/1957) substantially expanded regional autonomy, with the provision for the first local elections being its centrepiece. However, after the regional revolts of the late 1950s and the political development that Feith has termed the "decline of constitutional democracy", the return to the 1945 constitution and the suspension of the pro- visions pertaining to the election of the heads of regions closed this chapter of decentralisation in Indonesian history. 11 It was only in 1974 that again a major decentralisation law was promulgated, but it never saw much implementation, among others because the backlog in supporting regulations (Peraturan Pemerintah etc.) was never overcome by the New Order Administration where control oriented forces finally got the upper hand on this issue. Indonesia's newest decentralisation drive - as one of the core pieces of the general overhaul of the political system that has come to be known as "reformasi" since the 1998 student move- ment that contributed to the ouster of former dictator Soeharto - may be the first one that in- serts itself in a somewhat more conducive political environment. Decentralisation in this con- text means · A more real say of people in running their daily affairs, because their choices matter for their immediate environment · Policies better adapted to local aspirations instead of every region being put into the straightjacket of uniform national solutions · More accountability of the administration, as decision makers can be watched more close- ly by the electorate · The chance of using local resources for local development, instead of having them siphoned off by the Centre However, apart from those who are - not the least for the above mentioned historical expe - rience - honestly sceptical about a premature devolution of too many tasks to often relatively weak local administrations12, there are also those trying to block decentralisation for more personal ends. Like with other cornerstones of "reformasi" (the anti-corruption drive, the in- quiries into human rights abuses etc.), the stakes in the struggle between the reformers and vested interests of the old system are considerable, as the regions increasingly reject the skim- ming off of their resources by the Jakarta elite. Although the implementation of Regional Autonomy (Otonomi Daerah or "OTDA") has offi- cially started at January1st, 2001, the final outcome of the power struggle between the refor- mist and the status-quo forces is far from clear at this point: 10 For an extensive discussion of Law No.22/1948 and its political implications see Legge, J.D., Central Authority and Regional Autonomy in Indonesia: A Study in Local Administration 1950-1960. Ithaca/New York: Cornell University Press (1961), pp.28-52 11 For a discussion of Law No. 1/1957 see Legge, op. cit. pp.52-61. 12 Such worries are partly shared by international agencies, see interview with Jean -Michel Severino (former World Bank's vice president for East Asia and the Pacific) in INTERNATIONAL HERALD TRIBUNE, February 12-13, 2000, p.13 or a feature in the TEMPO INTERTERAKTIF online-magazine about the World Bank and the IMF's worries shortly afterwards (April 9, 2000) 13 · On the legal level, a recent Act of the People's Consultative Assembly 13 (TAP MPR No.IV/MPR/2000, promulgated August, 18, 2000) calls for a general review of the de - centralisation policy as a whole, therefore putting a strong question mark behind the future of the entire related legislation; furthermore, the backlog in necessary legislation is so enormous, that implementation in daily administrative practice is seriously impeded, rai- sing the spectre of a massive backlash for this reason alone. · On the political level, the recent withdrawal from President Wahid's cabinet of Ryaas Rasyid, one of the architects of the decentralisation policy, and the cumbersome start of the implementation of regional autonomy as it is referred to ("OTDA" or Otonomi Daerah) show how well entrenched the centralist forces still are in Jakarta. 1.2.2 Decentralisation's implications for the land administration system The land administration system mirrors quite well the administration as a whole, in its centra- lised state, with regard to the depth of transformation required by the decentralisation policy and with regard to the twists and turns the decentralisation process has seen. 1.2.2.1 BPN before decentralisation The centralised BPN was established by Presidential Decree No. 26/1988 as an independent agency after many years as a Directorate General under the Ministry of Home Affairs.14 It was, like a small number of other non-departmental agencies like the Office for Statistics (BPS) and the Family Planning Agency (BKKBN) organised in a way that largely resembled line ministries, i.e. including provincial offices (Kanwil Pertanahan in all 26 provinces) and mu- nicipal/ district offices (Kantor Pertanahan in 59 municipalities and 233 districts, plus 1 of- fice in each of the 5 mayoralties of the Jakarta Metropolitan Area, which has the status of a province).15 Until the end of 1999, BPN was headed ex officio by the State Minister of Land Affairs (Menteri Negara Urusan Agraria). The latter in his capacity as a State Minister had a small support structure called the Office of the State Minister of Land Affairs (Kantor Mente- ri Negara Urusan Agraria), but no ministry with structures in the regions. In late 1999 the post of State Minister of Land Affairs was abolished and the position of Head of BPN was assigned, once again ex officio, to the Minister of Home Affairs and Regional Autonomy. Mainly for historical reasons, the Indonesian cadastre (as before the cadastre of the Dutch East Indies) never included forest lands. The classification of land as "forest" or "non-forest" has been quite arbitrary, as the classification of 70% of Indonesia's total territory as forest lands hardly corresponds to the situation on the ground. 13 Acts of the People's Consultative Assembly (TAP MPR) rank only second to the constitution in the hierarchy of legal products in the Indonesian legal system, overridingLaws (Undang-Undang) promul- gated by Parliament (DPR) 14 A discussion of the land administration policy from the promulgation of the Basic Agrarian Law up to the early years of BPN can be found in Tjondronegoro, S.M.M., "The Utilisation and Management of Land Resources in Indonesia, 1970-1990", in Harjono, J. ed., Indonesia ­ Resources, Ecology, and Environment. Singapore: Oxford University Press (1991) 15 For the precise pre-2000 organisational structure of BPN on central, provincial and local level, the rea- der is referred to Fourie, C./Nasution, A.A., "The Institutional Setting for Land Management Policy - Indonesia" Jakarta: BAPPENAS(2000) pp. 3-5 ff.), one of the topicc cycle reports of the component C of the Land Administration Project (LAP-C) 14 BPN is charged with maintaining the legal cadastre, whereas the fiscal cadastre is managed by the Land Tax Office (Kantor PBB) under the Ministry of Finance, a separation going back into the early 20th century. The Indonesian land registration system is in legal terms basically a deed system with certain elements of a title system. In practical terms, however, the deed system elements prevail, as neither the state guarantees a title voluntarily nor is there any notion of a functioning justice system complaints could be lodged with. Apart from the cadastral function (which includes both cadastral surveying/mapping and re- gistering), BPN also involves in the development of the national geodetic infrastructure (net- work of reference points of the 2nd, 3rd, and 4th order) and in land use and allocation manage - ment, which ideally should help the development planning of the regions but seems to suffer from a not particularly well designed institutional interface with the local Development Plan- ning Boards (BAPPEDA). As for the distribution of authority within the centralised system, the local Land Offices are charged with · Surveying land for adjudication · Registering plots · Issuing certificates · Maintaining the register · Processing permits for land use by companies (izin lokasi < 5 ha) · Maintaining monuments of the national geodetic network · Establishing reference points of the 4th order of the national geodetic network · Monitoring and planning land use and land allocation (leading to the compilation of RP3T - Rencana Persediaan, Peruntukan dan Penggunaan Tanah - Land Use and Allocation Plan) · Issuing permits for land use (izin lokasi) by developers, industry etc. whereas the structures on central (BPN Pusat in Jakarta) and provincial level (Kanwil in each provincial capital) have the following tasks: · Building the national geodetic network (2nd and 3rd order) · Processing permits for land use by companies where large plots of lands are involved (izin lokasi > 5 ha by Kanwil/Provincial Office, izin lokasi > 200 ha by BPN Pusat/Jakarta Head Office) · All the budgeting and financial administration goes through the central level BPN · Human resources management (promotions, mutations, career requirements etc.) · Developing policies · Issuing guidelines for internal organisation (including equipment, building standards, service fees etc.), standards of service delivery etc. · Revoking of certificates · Co-ordination of national and of donor funded programmes 15 · Research and development · Conflict resolution between units of the lower administrative level · Technical support of lower level units In daily administrative practice, although for example the District Head is the supreme power (penguasa tunggal) in his area and entitled to give orders to any administrative unit there (in his capacity as the representative of the central government, i.e. any single sector minister of other head of a vertical institution), including the branches of the so-called "vertical ins titu- tions" (central organs that have branches on provincial and municipal/district level), local Land Offices tended to rather follow the orders of their sectoral chain of command.16 Of the total staff of more than 25.000, slightly less than 1.000 were assigned to Central BPN, almost 6.000 to the 26 Kanwil, about 700 to the five BPN offices in Jakarta, about 3.500 in 59 Municipal Land Offices (Kantor Pertanahan) and about 14.000 in 233 District Land Offi- ces17, which means an average staff strength of about 60 for both municipal and district offi- ces. 1.2.2.2 Challenges of decentralisation Originally, under the Decentralisation Law (Undang-Undang No.22, 1999), land administra- tion was to be under the authority of districts and municipalities (second level local govern- ments) as a mandatory item (§ 11, 2). In the Government Regulation No.25/2000 (PP 25/ 2000), issued in mid 2000, the central government saw its role limited to standard setting functions, policy issues (like guidelines for tariffs regarding land services) and some technical issues (like managing the system of first and second order measuring points). There were no provincial functions in land administration provided for by PP 25/2000. Roughly at the same time, KEPPRES 95/2000 was promulgated which redefined the structure of BPN, effectively abolishing its administrative authority over the local Land Offices. The challenges arising from these changes can be summed up as follows: · The old command-and-obey relationship between the centre (BPN Pusat) and the regions (local Land Offices/future Dinas Pertanahan) has to be replaced by a guiding-and-servi- cing relationship. This also means that the nature of work of BPN Pusat has to be consi- derably overhauled, as in the past there has been too much meddling into operational mat- ters and too little technical and conceptual guidance for the lower level units. · An adequate structure for service delivery of BPN Pusat to the local Land Offices/Dinas Pertanahan will have to be established (the former Kanwil may or may not be the nucleus of such a structure) 16 There are, however, exceptions to that rule, like the case of the former Head of the Surabaya Municipal Land Office, Mr.Purnomo, who in 1997 flatly refused to leave his post for several months, despite an instruction of the Minister of Land Affairs to take on a post at the Kanwil BPN in NTT province. Press reports had it, that Mr.Purnomo was backed by the East Java governor. Although Mr. Purnomo finally had to leave his post, the Minister finally cancelled his instruction about his successor and installed a person more to the liking of the municipal and provincial administration. 17 Staff figures are based on the evaluation of the BPN Pusat database, which reflects approximately the situation as of end 1999. It is not completed, seven provinces in the Eastern part of Indonesia (South Sulawesi, Southeast Sulawesi, Bali, NTB, NTT, Moluccas and Irian Jaya are missing from the database and covered in this calculation by extrapolated data. 16 · The mentality of "representative of Jakarta in the region" has to be replaced by an attitude of being part of local government, accountable to the local population in the interest of the region. This does not mean that professional standards should be betrayed, BPN Pusat should continue be a point of reference for professional standards for its former staff wor- king in the Dinas Pertanahan of their regions, but administrative loyalty has to be with their local government. Practically this attitude will have to be translated into upholding professional standards in a continuous and at times probably controversial dialogue with the other parts of local administration. · The scope and nature of services (e.g. customary land rights varying from one region to another, see Chapter 3) has to be adjusted to the demand in the regions, without undermi- ning the unity of the entire jurisdiction (Republic of Indonesia) · The institutional structure, the allocation of human resources and of equipment have to be at the same time adapted to the demand of the respective region, and to be designed in a way, that national common minimum standards are met. · Reallocation of staff with the double difficulty that many BPNemployees are reluctant to go to lower level administrative units or to regions off Java, and many local governments are not particularly keen to receive staff from outside their region. Table 1 : The financial performance of the totality of local Land Offices by province in the 1997/1998 Fiscal Year Province Municipal District KP Balance of province Balance of province KP incl. KANWIL (000) without KANWIL (000) West Java 6 20 53.967.751 55.939.462 Central Java 6 29 2.615.642 4.997.630 DIY 1 4 441.780 1.487.947 East Java 8 29 28.171.303 30.144.947 Aceh 2 8 -1.139.390 -494.198 North Sumatra 6 11 9.307.234 9.691.702 West Sumatra 6 9 -1.471.785 -388.718 Riau 2 5 11.636.916 12.759.140 Jambi 1 5 -2.050.374 -637.565 South Sumatra 2 8 1.894.933 3.320.061 Lampung 1 4 3.248.259 3.327.875 Bengkulu 1 3 -1.446.135 -616.152 West Kalimantan 1 6 -188.322 889.450 South Kalimantan 1 9 -2.322.196 -839.076 East Kalimantan 2 4 2.850.111 3.593.661 Central Kalimantan 1 5 -1.172.610 -82.153 North Sulawesi 3 4 -2.099.606 -989.328 Central Sulawesi 1 4 -1.482.749 -481.322 South Sulawesi 2 21 -2.242.235 -1.088.915 Southeast Sulawesi 1 4 -1.228.9 57 -314.056 Moluccas 1 4 -2.336.939 -1.236.980 NTB 1 6 -2.122.474 -1.205.875 Bali 1 8 2.669.309 3.655.178 NTT 1 12 -4.155.816 -2.782.731 Irian Jaya 1 11 -2.500.950 -878.815 · While assuring that staffing policy does not alienate the regions (providing for a fair share of jobs in the land administration for locals), a degree of mobility has to ensured, especial- 17 ly for technical specialists and managerial staff to assure professional development, and job satisfaction through career opportunities · Mechanisms of conflict resolution and co-ordination in land administration questions bet- ween districts/municipalities have to be developed. This can mean that a line of command is established to another administrative unit [in the sense of §9, section (1) of the Law No.22/1999on administrative decentralisation, which stipulates that the provinces are charged with taking care of matters involving more than one district or municipality] or in establishing mechanisms of horizontal co-ordination by the regions themselves like the Working Committee of the Surveying Authorities of the States of the Federal Republic of Germany (AdV)18 · A substantial communication effort will be needed on the part of both BPN and the Minis- tryof Home Affairs and Regional Autonomy to familiarise local government decision ma- kers at least with the basics of land administration to enable them to manage this new field properly, lest - after the abolishment of the supervisory function of Kanwil BPN - the management of local Land Offices goes from bad to worse. · A viable system for financing land administration services throughout the country has to be developed. Until the Fiscal Year 1998/1999 BPN as a whole has been profit generating. 19 However, this overall picture hides the fact, that the cost recovery rate of individual local Land Offices varied between less than 5% (certain local Land Offices in Eastern Indonesia) and more than 1.000% (like Surabaya or Semarang Muni- cipality). Ten out of 25 pro- vinces could theoretically try to balance the finances of local Land Offices on a provincial base. As Table 1 shows. the situation on Java and Bali is without problems, the picture in Sumatra and Kalimantan is a more mixed one with 50% of the provinces in both cases Figure 1 : Clipping from the national newspaper KOMPAS, March 8, 2001, de- being in a surplus situation, and scribing the failure of putting a new Head of the Kolaka Land Office in place the situation in Eastern because local BPN staff insisted on the District Head approving the appoint- Indonesia (Sulawesi, ment, rather than the Head of the BPN Kanwil. 18 Information about tasks and organisation of AdV can be obtained the organisation's homepage http://www.adv-online.de/english/index.htm 19 This means that the income from service fees (Penerimaan Sewa dan Jasa , with sewa= rent being a negligible quantity) has been superior to the combined expenses for the Kegiatan Rutin (running costs) and Kegiatan Pembangunan (investment expenditures) 18 Nusa Tenggara, Moluccasand Irian) being most difficult. Major issues which have to covered include: § service fees at the local level (for which a national guideline is to be developed) § financing local Land Offices/Dinas Pertanahan in areas where these do not achieve adequate levels of cost recovery by themselves: through cross subsidy within the land administration system ? through the general subsidy from the central government (Dana Alokasi Umum) ? by slashing cost through downsizing of economically ill- performing local Land Offices ? § financing BPN Pusat Working out solutions for these challenges will be a complex process that will demand not only sound craftsmanship in terms of technical and manageria l/administrative aspects, but also in terms of political negotiating skills. 1.2.2.3 Twists and turns in decentralising the land administration system The above mentioned resistance against the change demanded by the decentralisation policy has made its impact felt also on the decentralisation efforts for Indonesia's land administration system. Whereas the precise actors in the political power game for control of BPN remain largely opaque, the legal framework for the land administration system has experienced re- peated changes along the execution of this study and at present finds itself in a situation of profound ambiguity and uncertainty, not the least because of the enactment of sometimes contradicting pieces of legislation pertaining to land administration matters. In the months following the promulgation of KEPPRES 95/2000 and PP 25/2000, some local governments started discussing the desired organisational set up for that body, mostly favou- ring a transformation of the former local land offices into Dinas Pertanahan within the local government structure20. Even some draft Local Regulations (PERDA) on its functioning were circulated. Among the local LO staff, sometimes a transformation into a Badan (Agency, le- gal form mostly used for government institutions with cross-sectoral tasks) was favoured, in order to avoid the downgrading of their civil-service ranks. This discussion quickly came to an end after in September 2000 Government Regulation No.84/2000 (PP 84/2000) about the Guidelines on Regional/Local Government Institutions was issued. The civil service ranks of local and regional government officials were raised, this time raising fear among local LO staff, that senior positions could be targeted by local elites to be staffed with people of their political choice rather than with competent BPN staff. On the other hand, this regulation also created frustration among local governments which feared that only central level people could fulfil the civil service guidelines requirements for filling the senior positions in the new local land administration institutions. In mid-November a new element to the discussion was added with the Minister of Home Af- fairs and Regional Autonomy's Decree No.50/ 2000 (Keputusan Menteri Dalam Negeri dan Otonomi Daerah No.50 Tahun 2000), Guidelines for the Organisational Structure of Regio- 20 The law says that the bidang(field) has to be taken responsibility of, it further stipulates that the decen- tralised institutions become part of the local government apparatus and their assets be transferred to t he local government (§ 119, 2&3), but the decision on the concrete structure of the local government appa- ratus according to UU 22/1999 is determined by Local Regulations (Peraturan Daerah/ Perda) (§ 68) which have to be endorsed by the local parliament. A Dinas Pertanahan is the most likely form of the decentralised Land Offices, but not explicitely mentioned in the legislation. 19 nal/Local Government Institutions, which suggested that the new local land administration institutions should take the form of a Dinas ("Service", which is the usual organisational form for sector institutions on Provincial and District/ Municipal level) with a structure thatwas annexed to the Decree (see ANNEX 5 to this report). It said that the formation of regional go- vrnment institutions has to be done through a District Head/ Mayor/Governor Decree which in turn has to be based on a PERDA, in line with the central government's guidelines (§ 2). In another section of the Decree (§ 21) the guidelines were said to constitute a "reference" (acuan) for the regional/local governments to organise their administrative apparatus. Sabtu, 24/02/2001 - 22:01 WIB With regard to the above mentioned minis- Kerja BPN Macet Ada Dua Pimpinan, Tolak Tanda Tangan terial decree the question emerges, what it's legal status actually is, as in the Act of the BANYUWANGI People's Consultative Assembly No.3/ Semua pengesahan sertifikat di Badan Pertanahan Nasional (BPN) Banyuwangi macet terhitung sejak 1 Februari 2001. 2000 on the hierarchy of legal provisions Sebab mulai saat itu, ada dua kepala kantor BPN Banyu- (TAP MPR No.III/MPR/ 2000 Tentang wangi, yakni Drs Soehirto dan Drs Nawala. Sumber Hukum Dan Tata Urutan Peraturan Hal tersebut terungkap setelah fraksi PDI Perjuangan Perundang-undangan) only 7 types of (FPDIP) dan Fraksi Partai Persatuan Pembangunan (FPPP) DPRD Banyuwangi meminta bupati mencabut Perda tentang ranked legal products are mentioned (§ 2): Susunan Organisasi dan Tata Kerja Dinas Pertanahan. Ketua FPDIP, Yadi Yatok Pramono menga takan, awalnya ada keluhan tentang kinerja BPN. ''Setelah ditelusuri, BPN 1. The Constitution (UUD 45) Banyuwangi macet,'' ujarnya. 2. Acts of the People's Consultative Ketua FPPP M Ikrom Hasan menambahkan, tumpukan ser- Assembly (TAP MPR) tifikat tidak bisa disahkan BPN. Sebab, terdapat dua pemim- 3. Laws (Undang-Undang) pin di lembaga BPN Banyuwangi. Kedua orang itu, beber dia, sama-sama tidak berani tanda tangan di sertifikat. ''Se- 4. Government Regulations Substituting bab, mereka takut berbenturan dengan aturan,'' jelasnya. Laws (Perpu) Menurutnya, kondisi tersebut merugikan masyarakat. Bah- 5. Government Regulations kan, dia memprediksi macetnya kerja BPN menyebabkan macetnya ekonomi. Sebab, semua transaksi sertifikat di be- 6. Presidential Decrees berapa bank tidak bisa berjalan. ''Tidak menutup kemung- 7. Regional/Local Regulations (Perda) kinan hal itu berimbas pada duinia perdagangan Banyuwa- ngi. Kita tahu, banyak pedagang yang menjamin sertifikat- nya untuk memutar modal,'' urainya. Ministerial decrees and a host of other re- Yadi menjelaskan, kondisi itu diawali oleh langkah Pemkab gulations are only mentioned as legal pro- Banyuwangi melantik kepala BPN dengan dalih penerapan Otda. Pemkab menganggap BPN (sekarang Dinas Pertanah- ducts that must not be in contradiction with an) merupakan sebagian aset yang dikelola daerah. Bahkan, any of the 7 above mentioned types of le- mekanisme pengangkatan tersebut dilandasi oleh Perda no- gislation (§ 4). This means, that any Perda mor urut 7 (dari 41 Perda) yang disahkan tanggal 7 Novem- ber 2000, tentang Susunan Organisasi dan Tata Kerja Dinas would override the Ministerial Decree, Pertanahan. ''Selanjutnya, Bupati Banyuwangi menunjuk which thus has no binding character. As, Soehirto sebagai kepala Dinas Pertanahan,'' papar Yadi. however, the Ministry of Home Affairs and Ditambahkan, pemerintah pusat mengeluarkan Keputusan Regional Autonomy still wields con- Presiden (Keppres) nomor 10 tahun 2001 yang menyatakan bahwa pemerintah pusat masih berwenang atas pengelolaan siderable power21 and any PERDA "in BPN. Peraturan tersebut ditindaklanjuti oleh Kanwil BPN contradiction with public interest" can be Jawa Timur dengan menunjuk Nawala sebagai Plt Kepala annulled by the central government (Law BPN Banyuwangi. ''Akibatnya, terjadi dualisme kepemim - pinan dalam tubuh BPN,'' sesalnya. 22/1999, § 114), it remains to be seen what Kepala Dinas Pertanahan Banyuwangi Soehirto terlihat the actual margin of manoeuvre (and the enggan ditemui beberapa wartawan. ''Saya tidak berani willingness to use it) is on the part of local berkomentar. Biar kahumas saja,'' dalih Soehirto. (bay) Figure 2 : Report from the online edition of the regional newspaper Jawa Pos about the break down of operations in governments. the local Land Office/DinasPertanahan of Banyuwangi in East Java, causedby the presence of two rival Heads of Office, one installed by the Bupati, one by the Kanwil BPN 21 Among others because it exercises the supervisory functions stipulated in the Law No.22/1999on behalf of the central government, and the Minister is ex officio chairperson of the Advisory Council for Regional Autonomy Affairs (Dewan Pertimbangan Otonomi Daerah ) advising the President on all matters pertaining to regional autonomy, going as far as the abolition of administrative units (§ 115). 20 In January 2000 Presidential Decree No.10/ 2001 was issued, stipulating essentially, that as long as no further Government Regulations on land administration had been issued to elaborate on the tasks of local governments in this field, all instructions of the Head of BPN should remain in force. Presidential Decree No. 62/2001, issued in May 2001, in § 1, clause 6, even stipulates - although in fairly ambiguous language - that BPN shall continue to execute its land administration functions in the regions until all necessary legal regulations are in place, but not longer than 2 years. It is not clear, however, whether these Presidential Decrees could stand against an appeal of any local government to the High Court, as one could argue, that they contravene at least to some extent the Act of the People's Consultative Assembly No.3/2000 on the hierarchy of legal provisions.22 The Association of Local Governments (APEKSI) has called upon the Minister of Home Affairs and Regional Autonomy for having the Presidential Decree No.10/2001 with its annexed letter by the minister withdrawn. At the time this report was presented to regional workshops in Bukittinggi (for the Sumatra sample regions) and Semarang (for sample regions on Java, Bali, Lombok and Kalimantan), the affair had created considerable confusion and frustration. The future organisational set up of BPN at central level also remains unclear. After the initial transformation from a vertical non-departmental institution towards an ordinary23 non- depart- mental institution (LPND) by Presidential Decree 95/2000, a series of Presidential Decrees (No. 166/2000, 173/2000, 178/2000) was issued regulating tasks and structure of LPND, thus affecting also BPN. In the latest of these Presidential Decrees (No.178/2000), however, it is only stipulated that the precise structure of BPN shall be defined in a separate Presidential Decree to be issued not later than 6 months after No.178/2000 (which means in May 2001). Some observers interpret this situation as an indicator, that BPN will remain a so called "ver- tical institution", that is an institution which is from the Headquarters down to district/muni- cipal branch office under the jurisdiction of the central government. This seems also to be the preferred solution of at least part of BPN decision makers at central level and the steady stream of ambiguous legal products can be taken as an indicator for intense lobbying. It would, how - ever, be premature to state that the above mentioned Presidential Decrees hint clearly into that direction, as the point of reference in both KEPPRES 178/2000 and KEPPRES 10/2001 re- mains the Government Regulation No.25/2000 (PP 25/2000) which is definitely a centrepiece of the decentralisation legislation. Moreover it seems, that not only there is a faction of BPN staff in the region that supports decentralisation (see newspaper report about BPN Kanwil Southeast Sulawesi staff preventing their superior appointing a Head of local Land Office, Figure 1), some local governments act - even against resistance from local party representa- tives - to put local regulations (PERDA) pertaining to the establishment of Dinas Pertanahan in practice (see report on case of Banyuwangi/East Java, Figure 2) and sometimes the de- centralisation even becomes a social movement among lower ranking official, like in Pati/ Central Java district, where an organisation of the district's village officials put the Head of 22 The Government Regulation No.25/2000 describing (limiting) the tasks of the central government in land administration entered into force in May 2000. Even if the transitional provisions are invoked [Article 9 (1) Regarding the. authority of a regional administration which is stipulated in this government regula- tion and for which there are no provisions on policies, standar ds, norms, criteria, procedure and guide- lines from the government, a regional administration shall have to wait for the issuance of the said pro- visions before exercising it. (2) The provisions as meant in sub-article (1) shall be stipulated at the latest within six months as from the stipulation of this government regulation.], the delay for putting additional legislation in place expired in November 2000. 23 Non-departmental institutions do not normally have any units in the regions, BPN was an exception to that rule, along with the Bureau for Statistics (BPS) and the BKKBN (National Family Planning Board) 21 Selasa, 10 April 2001 Jawa Tengah - Muria Batal Menyegel Kantor Pertanahan Ganti Menjebol Pintu Ruang Pimpinan PATI - Setelah Sabtu (7/4) lalu batal menyegel Kantor Pertanahan Kabupaten Pati, Senin kemarin anggota Parsatuan Kepala Desa Se-Kabupaten Pati (Pasopati) Persatuan Perangkat Desa (Perkasa) menjebol pintu ruang kepala kantor lembaga tersebut. Pasalnya, mereka mendapat informasi, Pelaksana Tugas (Plt) Yahman SH pergi membawa kunci ruang itu. Akibatnya, sampai kemarin, Kepala Dinas Pertanahan Kabupaten Drs Koesmari belum bisa masuk dan menempati ruang pimpinan. Tindakan tersebut, oleh mereka, dinilai sebagai upaya sabotase. ''Karena itu, tidak ada upaya lain, kecuali beramai-ramai menggiring mereka mengambil tindakan tegas, demi tegaknya konstitusi dan wibawa daerah,'' ujar Koordinator Pasopati Perkasa H Sudir Santoso. Dengan demikian, katanya, terhadap dampak hukum akibat tindakan tersebut, dia bertanggung jawab sepenuhnya. Di samping itu, pihaknya tidak tahu urusan antara pejabat daerah dan pusat, secara hukum masalah pertanahan tersebut kewenangannya ada pada siapa. Namun, ujung konflik itu, rakyatlah yang dirugikan. Apalagi, Bupati sebagai atasan kepala desa (kades) telah menyatakan produk sertifikat yang ditandatangani Plt Kepala Kantor PertanahanKabupaten tidal sah. Namun di sisi lain, sebagai aparat bawahan Bupati, sudah selayaknya Pasopati Perkasa mendukung putusan atasan. Yakni, mengakui keberadaan Kepala Kantor Dinas Pertanahan Kabupaten. ''Soal kebenaran hukum antara keberadaan Kantor Pertanahan Kabupaten dan Dinas Pertanahan Kabupaten, perlu diuji secara material.'' Seusai berorasi di teras depan lembaga itu, Koordinator Pasopati Perkasa memanggil Ketua Pasopati, Djuhdi, untuk mengantar Drs H Koesmari memasuki ruang pimpinan. Namun ketika sampai di depan ruangan tersebut, pintunya terkunci. Dicegah Karena tidak ada karyawan kantor yang tahu kunci ruangan itu, massa yang berjubel tidak bisa mengendalikan diri. Apalagi, setelah ada yang mendapat informasi kunci ruang pimpinan hilang, emosional massa memuncak. Mereka tidak percaya kunci itu hilang. Upaya Puji Priyono SH dari Kantor Satpol Polisi Pamong Praja bersama beberapa petugas dari Polres untuk mengendalikan emosi mereka, gagal. Dengan dua kali dobrak, pintu ruangan tersebut terbuka dan hanya rusak pada bagian lubang kunci. Setelah didudukkan di kursi ruang pimpinan, Drs Koesmari dibawa lagi ke teras depan. Massa menghendaki semua karyawan berkumpul di tempat tersebut untuk mendengarkan penjelasan, tapi tidak ada yang bersedia karena merasa cukup diwakili oleh unsur pimpinan. Dalam kesempatan itu, Kepala Dinas Pertanahan Kabupaten menjelaskan, sejak dilantik untuk memegang jabatan tersebut, Januari lalu, pihaknya telah melakukan sosialisasi, inventarisasi, menyerap aspirasi, dan informasi dari semua pihak. ''Yang menjadi tuntutanmasyarakat ternyata soal biaya penyertifikatan tanah yang jelas serta waktu yang tepat, cepat, dan akurat,'' katanya. Sudir Santoso kembali mengingatkan kades dan perangkat desa bahwa hari itu mereka mengantarkan Koesmari, untuk menempati ruang kerja pimpinan. Namun, jika nanti ternyata tidak bisa memberikan layanan yang baik kepada masyarakat, pasti akan mereka keluarkan lagi dari ruangan itu. Hal tersebut ditanggapi oleh Asisten I Sekda Endro Soewarno SH yang datang menyusul, sangat diperlukan adanya kerja sama. (ad- 20c) Figure 3: Report from the online edition of the regional newspaper Suara Merdeka (Semarang) about the action taken by the association of village officials of Pati District to enforce a solution to the deadlock bet ween the Head of local Land Office appointed by Kanwil BPN and the Head of Dinas Pertanahan appointed by the Bupati Dinas Pertanahan (appointed by the Pati District local government but not recognised by the Kanwil BPN) into his office by physical force (see report reproduced in Figure 3). To what extent decentralisation will be implemented in the field of land administration is dif- ficult to judge at this point. What is, however, quite clear, is the fact that the system faces 22 most of the above mentioned challenges regardless from what precise form of future organi- sation it chooses. 1.2.2.4 Options lying ahead for the land administration system under decentralisation Whether the arguments of both the supporters and the opponents of immediate decentralisa- tion of the land administration system stand scrutiny in terms of legal and political validity, philosophical coherence etc., is of secondary importance. The most important question to be answered by political decision makers, both inside and outside BPN, will be "how can a land administration system whose performance meets public expectations can be put in place?". The study will show that for simple managerial reasons some form of decentralisation will be an unavoidable part of the answer to that question. Hence the most feasible options for tack- ling the politically critical issue of decentralising the land administration system are 1. To proceed immediately with the decentralisation of the land administration system on the lines of the Decentralisation Law No.22/1999 and the Government Regulation No.25/2000 and try to put the pieces of legislation still lacking in place as soon as possible 2. To postpone the decentralisation of the land administration system and to promulgate the necessary legislation first during the next two years 3. To first decentralise a limited number of relatively well run and financially independent local Land Offices as pilot projects in the near future (like the decentralisation in general had its pilot areas like Solok District long before January 1st, 2001), then step by step putting in place the necessary legislation (the process of law making could in this case profit from practical experience in the pilot areas) and finally, within the delay set in the Presidential Decree No. 62/2001 In terms of a smooth process, option 3 seems to be preferable, as an immediate full scale de- centralisation could create considerable problems in those regions financially and politically less well prepared to take over, whereas a postponement seems to be politically unacceptable to many regions and could become an obstacle for reform within BPN. Past experience also seem to make option 2 hard to accept: 40 years after the promulgation of the Basic Agrarian Law (UUPA), the necessary supporting Government Regulations are still not complete, in the case of Government Regulation No.25, the delay for completing legislation has already ex- pired too. The recommendations for system development (on all levels - government as a whole, BPN and local Land Offices/Dinas Pertanahan) put forward in this report would also be most effective if carried out within a political settinglike described in option 3. 1.3 Cadastral Reform Although Indonesia hosted one of the major events of the international movement for cadas- tral reform, the 1996 UN and FIG sponsored Bogor Conference which gave birth to the mile- stone Bogor Declaration, the envisaged overhaul of the country's land administration system has been largely stagnating. 23 The Bogor Declaration stated that ...a key to a successful cadastral system is to ensure that the three main cadastral processes of adjudication of land rights, land transfer and mutation (subdivision or consolidation) are undertaken efficiently, securely and at affordable cost and speed, in support of an efficient and effective land market. (...) The success of a cadastral system is not dependent on its legalor technical sophis- tication, but whether it protects land rights adequately and permits those rights to be traded (where appropriate) efficiently, simply, quickly, securely and at low cost. However if the resources are not available to keep the cadastral system up- to-date then there is little justification for its establishment. Besides the immediate problems linked to the quality of service delivery, also the Bogor meeting's recommendation to all national governments To recognise the fundamental role that cadastral maps, either in paper or computer form, play in a national spatial data infrastructure. As such it is very important that cadastral surveying and mapping is based on a national geodetic framework common to all spatial data sets thereby permitting the integration of spatial data, particularly topographic data, and supporting the establishment of land and geographic information systems. has never seen any follow -up with its consequences for the technical quality of the system. Of the major trends in cadastral reform in most countries, i.e. · Introduction of digital cadastral maps based on national reference systems; · Transformation of land registry information into digital form · Introduction of title registration systems instead of deed registration systems; · Embedding of the cadastre into land information systems by linking different data bases · Regionalisation and increased involvement of the private sector very little has so far been implemented in Indonesia. A balanced improvement, which combines a holistic view on the national system with a fair degree of decentralisation and sound technology with a demand oriented approach, will be needed. A too much technology focussed approach risks to end up like the system of the Dutch East Indies, which in the 1920s had established a network of triangulation points supe- rior to the one in place today and which already contemplated the use of photogrammetry, but failed to attract any interest from the Indonesian population in using its services. Without a sound infrastructure for surveying, data processing and data storage on the other hand mass adjudication risks to be not only a wasteful activity but even to become counter-productive in a medium perspective, as it will give rise to more rather than less uncertainty and conflict. 24 As the debate on Land reform has been reopened and BPN is currently working on a draft for a revision of the Basic Agrarian Law (Undang-Undang Pokok Agraria) called the Draft for a National Land Law (Rencana Undang-Undang Pertanahan Nasional), it is high time also to speed up cadastral reform to provide the necessary technical and legal instruments for a suc- cessful Land reform. Some modest progress has be en achieved in regulatory terms, like · Government Regulation 24 of 1997 on Land Registration (PP 24/1997 Tentang Pendaftar- an Tana h) has simplified procedures for registration (essentially concentrating land admi- nistration procedures at the village level) and brought some additional security (protection of a title to land which has been acquired in good faith, registered and not been claimed by anybody else for five years, see § 32), but implementation still leaves to be desired. · With regard to collective rights of communities basing their relationship with the land on customary law (adat) regulations, the Minister of Land Affairs' Decree No.5 of 1999 (Ke- putusan Kepala BPN/Menteri Agraria No.5/1999) signals some progress in the implemen- tation of the spirit of the Basic Agrarian Law which strives to protect traditional commu- nities from being forced into the straightjacket of legal perceptions based on Western laws introduced by the Dutc h. In its explanatory note, the diversity of customary law percep- tions with regard to land is explicitly recognised, as are the roles of local authorities, in- formal leaders and NGOs (§5, §6). However, as a ministerial decree its force is doubtful, especially after the promulgation of the Act of the People's Consultative Assembly No.3/ 2000 on the hierarchy of legal provisions (TAP MPR No.III/MPR/ 2000 Tentang Sumber Hukum Dan Tata Urutan Peraturan Perundang-undangan). What is more, the hak atas ta - nah (land right) to be registered under § 4 of the decree is not mentioned in the list of re- cordable rights given in Government Regulation 24 of 1997 (§ 23). It is difficult to un- derstand, why such a centrepiece of implementation of the Basic Agrarian Law has been introduced by Ministerial Decree and not by a Government Regulation (Peraturan Peme- rintah). Secure tenure for adat communities still remains to be established by a more solid legalfoundation. but real momentum for the overdue fundamental overhaul of the system with tangible results for its users has yet to develop. If real progress is to be booked with regard to the core pro- cesses of · cadastral surveying and mapping · building andmaintaining the title registry a number of questions for reform will have to be given serious thought, regardless whether or not the land administration will finally be decentralised: · how can the integration of the spatial component of the land administration system (geo- detic framework, topographic data, administrative boundaries data, cadastral database) be improved, given the institutional separation of responsibility for its major elements be - tween BAKOSURTANAL and BPN · how can the cadastre be completed, given the "out of bounds" status of forest lands for cadastral surveyors · how can the co-ordination between agencies involved in managing land use (land use planing, permits/assignment of land use rights etc.) be improved 25 · how can the linkages between the various "layers" (property, use, fiscal etc.) be establi- shed, without which efficient and transparent land administration will remain elusive For these questions, although there is rich international experience and a number of models and principles derived from them24, no instant solution can be offered, as requirements of process design and questions of political feasibility are specific to each individual country. The objective, however, should be clear: Cadastral reform basically strives to improve the land administration system's performance. Which functions are better kept centralised and which functions should be decentralised is thus an issue to be openly debated. Blocking such debate with the argument that land registration "has something to do with law" and should therefore rest in the hands of the central government neither convinces people in the regions 25 nor is it particularly helpful for finding out how to improve Indonesia's land administration. However, if this is meant as proposing to place BPN under the Ministry of Justice like its predecessor Djawatan Pendaftaran Tanah (Land Registration Office) up to 195526, the question has to be raised whether this ministry is able to handle such an enormous additional task at a time when it is hard to see, how it can handle its main burden, the reform of Indonesia's judicial system. 1.4 Purpose of the Study The overall purpose of the present study is to provide decision makers on all administrative levels with some inputs for developing viable options in the process of transforming BPN into a functioning national system of land administration, which so far remains at a relatively early stage. The study tries to take a holistic view on the question of how this process of change that involves at least two major threads, i.e. · decentralisation (i.e. BPN's process of change as part of and interacting with other processes of change within the broader decentralisation process) · general cadastral reform can be designed in a way that really enhances the system's performance. In order to do so, the study more specifically pursues three major objectives · to analyse the population's demand for land administration services · to analyse local governments' demand for land administration services · to analyse local land offices capacity in delivering land administration services 24 See Williamson, I.Institutional Framework Reforms for Land Administration. International Comparative Review. Report for Land Administration Project - Part C (IBRD Loan No. 3792 - IND). Jakarta: BAPPENAS(2000) 25 See article "Pusat Gandole Urusan Tanah, Walikota Protes" from Surabaya Post, March 28, 2001, docu- mented in Vol. 2 of this report 26 On the early institutionaldevelopment of Indonesia's land administration system see Lembaga Adminis- trasi Negara, Almanak Organisasi Negara Republik Indonesia 1960. Jakarta: Lembaga Administrasi Negara (1962), p. 550 (on the Djawatan Pendaftaran Tanah), see also p 327 (on the Kant or Perantjang Tata Bumi = Land Use Planning Office) and pp.544-549 (on the Departemen Agraria = Ministry of Land Affairs) 26 This analysis will allow an assessment of the preparedness of local government to manage their future Dinas Pertanahan and to cope with the challenge of a decentralised land admi- nistration system. With the developing local democracy, the performance of local govern- ments will be judged by the electorate at least partly in terms of the quality of services ren- dered to the population. The study will also establish the contribution needed from BPN Pusat to make the system fit for the delivery of acceptable services to the population. To make the study's results easier to digest, the presentation will, where this is possible, be processed in a such a way as to specifically address different target audiences, i.e. From the local demand side: · Local assembly members concerned with land questions (in some cases completed by information from NGOs working on land administration issues) · Local governments From the local supply side: · Local governments (decision making level) · Local Land Offices/Dinas Pertanahan From the central supply side: · GOI · BPN decision makers · Donor agencies wishing to support the development of Indonesia's land administration system During the process of the study, the consultants tried to facilitate some horizontal communi- cation among local stakeholders, both between different sectors at a given locality and bet- ween different places. This process should be continued by adequate forms of dissemination of this study. However, as the process of change towards the establishment of a sound land administration system cannot be the work of local level institutions alone but demands various forms of conceptual and technical support and guidance from the national level, perhaps even more important is the effort of giving an input to decision makers of BPN for the ongoing reform process of the land administration system. 1.5 Organisation of this Report This report is split into 2 volumes to provide for more convenient reading. Volume 1 contains the main report, with 27 · Section 1 elucidating the purpose of the study, its background and the structure of the report. · Section 2 giving some brief methodological explanations, limited to the minimum required for proper understanding of the findings; an account of the development phase can be found in the Report of Survey Method Development Phase, reproduced in Volume 2. · Section 3 presents the findings from the field study (combined with the analysis of BPN Pusat data and other sources) on both local land offices and BPN Pusat · Section 4 highlights Good Practices for various processes in land administration that have been found in the field study and the analysis of supplementary material. · Section 5 puts forward recommendations derived from the field study and the supplementary analysis. Volume 2 contains · Material pertaining to the sample areas visited · databases containing nation-wide data on a variety of parameters · other relevant material (legal texts, newspaper clippings, other documents) which the authors deemed important as references but the inclusion of which would have made the main report too bulky and difficult reading. As the material presented in Volume 2 may be of interest for further digital processing, it has been put on a CD which is attached to Volume 1. 28 2 Basic Concepts and Methodological Considerations In this section some basic concepts and a number of methodological considerations are briefly presented that underlie the collection and evaluation of the empirical material presented in Section 3. 2.1 Basic Concepts In order to avoid lengthy discussions of theoretical concepts here but at the same time fix a conceptual framework in which the empirical material is to be placed, we refer to a set of basic concepts laid down in a number of important documents emanating from the interna- tional discussion on cadastres and their future development during the last decade. For the definition of what is to be understood by the term cadastre, the present study follows the FIG27 definition as laid down in the FIG STATEMENT ON THE CADASTRE(1995)28: A Cadastre is normally a parcel based, and up-to-date land information sys- tem containing a record of interests in land (e.g. rights, restrictions and res- ponsibilities). It usually includes a geometric description of land parcels linked to other re- cords describing the nature of the interests, the ownership or control of those interests, and often the value of the parcel and its im- provements. It may be established for fiscal purposes (e.g. valuation and equitable taxa - tion), legal purposes (conveyancing), to assist in the management of land and land use (e.g. for planning and other administrative pur- poses), and enables sustainable development and environmental protection. With regard to the principal tasks of land administra- tion systems, basic principles and quality indicators for their work, and major lines for their future develop- ment, the BOGOR DECLARATION (1996)29 is the main point of reference. In partic ular the following points have informed the present study as a sort of underlying Figure 4 : The Cadastral Concept, assumptions: from FIG Statement on the Cadastre 27 FIG = Fédération Internationale des Géomètres (International Federation of Surveyors) 28 The statement was prepared by the FIG's Commision 7, responsible for cadastre and land management, which was established at the organisation's Melbourne Congress in 1994 29 The BOGOR DECLARATION was the final statement of The United Nations Interregional Meeting of Ex- perts on the Cadastre, convening in Bogor, Indonesia, from March 18-22, 1996. The document was a milestone for the international debate on cadastre reform, especially in the efforts of establish a ba- lanced shared vision among experts from developing and from developed countries, taking into account both the diversity of problems faced and the common vision to be pursued. 29 1.7 The meeting also recognised that a key to a successful cadastral system is to ensure that the three main cadastral processes of adjudication of land rights, land transfer and mutation (subdivision or consolidation) are undertaken effi- ciently, securely and at affordable cost and speed, in support of an efficient and effective land market. [emphasis added by the author] (...) 4.4 The resulting cadastral infrastructu re will facilitate access to land, support secu- rity of tenure and allow land rights to be traded, where appropriate, in an effi- cient and effective way and at affordable cost. 4.5 The infrastructure can support a vast array of legal, technical, administrative and institutional options in designing and establishing an appropriate cadastral system, providing a continuum of forms of cadastre ranging from the very simple to the very sophisticated. Such flexibility allows cadastres to record a continuum of land tenure arrangements from private and individual land rights through to communal land rights, as well as having the ability to accommodate traditional or customary land rights. [emphasis added by the author] 4.6 The cadastre will include all land in a state or jurisdiction, including all state and private lands. It will cover both urban and rural areas within a unified sys- tem. Each land parcel will be uniquely identified. 4.7 The spatial cadastral framework (usually a cadastral map) will be a fundamen- tal layer within a nation's spatial data infrastructure thereby allowing the inte- gration of different forms of spatial data. [emphasis added by the author] This conceptual frameworks means among others, that no difference between land register and cadastre is made, that customary rights are perceived as part of the legal information to be recorded in a cadastre and that the cadastral system is regarded as part of a country's spatial data infrastructure. 2.2 The Quality Management Approach as Conceptual Framework Ultimately the objective of this study is to give inputs to decision makers who in their efforts to improve the quality of delivery of land administration services by making them more de- mand responsive and more professional. It is the idea of what the system could be like and should be like against which if not explicitly then implicitly the material collected will be measured. Therefore, the quality management model proposed below serves in a first step as a conceptual framework for selecting parameters that candefine "service delivery capacity" and in a second step lead to a more focussed and more coherent selection of items to be included under the recommendations section. Unfortunately, coherent models for quality management specifically in land administration have not yet emerged, and for Indonesia no models for different types of Land Offices have been developed. However, there are a number of documents and research work with provide some input. First, the FIG STATEMENT ON THECADASTRElists a number of quality indicators for cadastral systems: 30 · Security: (...) there should be certainty of ownership and parcel identification. The system should also be physically secure with arrangements in place for duplicate storage of re- cords in case of disaster and controls to ensure that unauthorised persons cannot damage or change information. · Clarity and Simplicity: To be effective the system should be clear and simple to under- stand and to use. (...) · Timeliness: The system should provide up-to-date information in a timely fashion. The system should also be complete; that is all parcels should be included in the system. · Fairness: In development and in operation, the Cadastre should be both fair and be per- ceived as being fair. As much as possible, the Cadastre should be seen as an objective system separated from political processes, such as land reforms, even though it may be part of a land reform programme. Fairness also includes providing equitable access to the system through, for example, decentralised offices, simple procedures, and reasonable fees. · Accessibility: Within the constraints of cultural sensitivities, legal and privacy issues, the system should be capable of providing efficient and effective access to all users. · Cost: The system should be low cost or operated in such a way that costs can be reco- vered fairly and without unduly burdening users. Development costs, such as the cost of the adjudication and initial survey, should not have to be absorbed entirely by initial users. Low cost does not preclude the use of new information technologies, as long as the tech- nology and its use is appropriate. · Sustainability: There must be mechanisms in place to ensure that the system is main- tained over time. This includes procedures for completing the Cadastre in a reasonable time frame and for keeping information up-to-date. Sustainability implies that the orga- nisational and management arrangements, the procedures and technologies, and the re- quired educational and professional levels are appropriate for the particular jurisdiction. Especially the first indicator, security, can be linked to four basic legal principles that are ge - nerally recognised, regardless of the particular nature of the cadastral system30: · The booking principle implies that a change in real rights on an immovable property, especially by transfer, is not legally effectuated until the change or the expected right is booked or registered in the land register. · The consent principle implies that the real entitled person who is booked as such in the register must give his consent for a change of the inscription in the land register . · The principle of publicityimplies that the legal registers are open for public inspection, and also that the published facts can be upheld as being more or less correct by third par- ties in good faith, so that they can be protected by law. · The principle of specialtyimplies that in land registration, and consequently in the docu- ments submitted for registration, the concerned subject (man) and object (i.e. real proper- ty) must be unambiguously identified. 30 Cited from Henssen, J. "Basic principles of the main cadastral systems in the world", paper presented at the Modern Cadastres and Cadastral Innovations Seminar of FIG Commission 7 in Delft, Netherlands, May 16, 1995 31 From the work of FIG Commission 7 members a number of additional indicators can be ex- tracted, like · comprehensiveness of coverage of land by the cadastral system (both in terms of cadastral surveying and in terms of registration) · the professional surveyor/population ratio, · the level of remuneration of surveyors and lawyers employed as civil service personnel in the cadastral system compared to private sector professionals and compared to GNP per capita.31 To provide a coherent conceptual framework that - apart from the immediate requirements of this study for a guiding concept - will also be useful to give a more concrete content to the nu- merous calls for quality management system to be established in documents pertaining to BPN's work, the EFQM32 model for excellence has been chosen, (slightly) adapted to the land administration system's specific features (Figure 5). While most recognised quality manage- ment systems like ISO, Charter Marks etc. may be important steps towards achieving excel- lence, only the EFQM model relates to the organisation as a whole.33 Enablers Processes Results Vision & strategy * Ajudication Results for staff Key Performance Institutional structure * Registration of conveyance Results: Regulatory framework * Registration of * Number of deeds mutation Results for customer processed per annum Human resources * Others * percentage of parcels Leadership registered Hardware Result for society * cost recovery rate Partnerships Innovation and learning Figure 5: An adapted EFQM-model for land administration services Most terms of the model are self-explaining, only the distinctions drawn in the result area and the enabler "partnerships" merit a few remarks: · Results for customers refers to the value produced for the end users of the systems servi- ces (security, clarity/simplicity, timeliness, accessibility, cost are among the most impor- tant indicators) 31 Steudler, D. et al. "Benchmarking Cadastral Systems", in: The Australian Surveyor, Vol.42 (1997), No.3, pp. 87-106 32 European Foundation for Quality Management, information on the EFQM model for excellence available at the EFQM's website http://www.efqm.org 33 It has to be noted however, that the EFQM model, like any other model, constitutes an effort to reduce real world complexity and therefore produces itsown particular blind spots. In terms of human resour- ces management, for example, there are certainly more sophisticated models that explain the relation- ship between staff performance and satisfaction in a more convincing manner. 32 · Result for staff refers to the advantages produced for the system's employees (e.g. remu- neration, career opportunities, working conditions etc.) · Result for society refers to the value produced on a macro-level (like better land informa- tion, fairness [which might in turn be measured by the incidence of social conflict], sustainability etc.) · Partnerships refers to the quality of relations with other agencies concerned with land questions (BAPPEDA for spatial planning, BAKORSURTANAL for geodetic and carto- graphic issues etc.) with avoidance of double work/work not being taken care for, flow of information etc. being possible indicators A brief look at the model shows, that it can not only conveniently incorporate the above men- tioned indicators from various sources, but already at this very early stage of reflection consi- derably enlarges the view on the system by bringing the "enabler" section and the results for the staff into the picture. It has the additional advantage of allowing an important reduction in complexity when dealing with macro-system quality management involving organisations on different levels with a relatively high de gree of autonomy (see Figure 8, p.53 below). The model provides the basic framework for the selection of data to be collected and also for their analysis that informs the recommendations for improvement. It has to be noted in this context, that for the EFQM model to become more than a mind map- ping tool and a conceptual framework for organising a study, the core element of the method are self-assessment procedures. The self-assessment procedures do not simply compare actual achievements with a set of indicators/targets but follow what is termed the RADAR-logic: · Results: Are they based on benchmarking ? Do they show positive trends? Cover all rele- vant stakeholders? Show cause and effect link with approaches? · Approach: Is it sound and based on a clear rationale? Focused on stakeholder needs? Commensurate/in harmony with policy and strategy? supported by well defined proces- ses? · Deployment: Are the approaches implemented in a systematic (not incidentally or only in parts of the organisation) way? · Assessment: Is there regular measurement of the effectiveness of approaches and deploy- ment? · Review: Do learning opportunities lead to continuous improvement? RADAR establishes for each element analysed whether it follows the management cycle of planning -implementing - monitoring - adjusting, and thus whether the organisation is really penetrated by a culture of continuous improvement. The process of continuous learning and improvement is closely related to the idea of horizontal learning, based on systematic bench- marking within a given sector. Based on the results of the self-assessment, priority projects for improvement can be defined, implemented and again been assessed, gradually transforming the organisation into a learning organisation where continuous improvement becomes an integral part of the organisations culture. 33 In a future effort to enhance the performance of the land administration system, BPN could draw upon the results of some earlier efforts, i.e. · For transforming the generic sub-criteria for self assessment included in the EFQM model (a useful exercise preceding the self assessment) into more specific sets of indicators for the main categories of the model, existing data bases of indicators (see the internal BPN working paper reproduced in ANNEX 8) could be used. · The core processes have been described systematically in the Instruction of the State Mi- nister of Land Affairs/Head of BPN No.3 of 1998 (Instruksi Menteri Negara Agraria/Ke- pala BPN Bo.3 Tahun 1998), and could easily be reviewed. · Although benchmarking, i.e. the com parison among different units within the system or with other systems for the parameters defined by the performance indicators, remains a difficult issue due to the long tradition of strong "verticalism", at least some of the local Land Offices involved in the LAP may be able to contribute building blocks for a Good Practices data base. This in turn could be a starting point for intensifying horizontal ex- change that at some point in the future will make benchmarking possible (for the process towards benchmarking see Figure 38, page 92 below). The architecture of the study process has tried to emulate steps of an EFQM based process of change: · The interviews were designed in a way that tried to stimulate self assessment rather than to pass judgement by the study team · In the workshops following the study (in Bukittinggi and Semarang, May 2001) the par- ticipatory development of performance indicators as well as the identification of good practices has been given priority; the study itself has tried to popularise the idea of hori- zontal learning by presenting Good Practices found during the site visits (see Chapter 4, though these Good Practices are based on more or less anecdotal evidence) · The recommendations given (see Chapter 5) consist mainly of a set of change projects which are geared towards enhancing the learning capacity of the system rather than only listing isolated items for improvement. The above described approach is a largely inductive one, whereas to make both the empirical study more meaningful (what does it mean, if a given local land office has x computers, y ve- hicles and z trained surveyors) and to complete the Quality Management approach, it would have been helpful to draw on models with a number of well defined core processes with esta- blished benchmarks for at least the most important parameters of performance and identified Good Practices for each process. However, such material on neither the Indonesian nor the in- ternational "state of the art" is readily available at this point. 34 2.3 The Study as an offer of support to a process of change For more than a decade, there have been numerous efforts to address the problems that until now still bedevil Indonesia's land administration system. Numerous studies have been produ- ced by renowned experts in many fields of land administration. Still, the impact has been marginal. As nobody could challenge the quality of BPN's services - at times even High Court rulings were simply ignored - quality simply didn't matter, and so did processes, structures, human resources etc. Organisational Development under conditions such as prevailing under the New Order couldn't but fail, BPN is certainly not the only institution in Indonesia going through such an experience. Things started to change when the New Order regime fell and people gradually became more daring in voicing their grievances and formulating expectations with regard to public services. Having gone through a period of intense feelings of insecurity in 1999 - when the very exis- tence of BPN was challenged by some forces in government, the Bureau of the Minister for Land Affairs abolished - BPN was psychologically ill prepared to take up the chance of transforming itself into a modern customer oriented service provider when the decision about its decentralisation came in mid-2000. The current situation of BPN is a typical example of an adaptation crisis of an organisation which can lead to a positive evolution towards new role and functions if handled in a pro-ac- tive way, or to decline and disintegration if met with passive resistance without perspective. The future for BPN could not look brighter if the challenge is taken up: high demand for land administration services in a vast market, practically no serious competition from other public or private sector...The current resistance against change is normal, as long as it does not be- come stubborn and destructive and can be turned into a constructive force within the process of transforming BPN into a well performing modern land administration service, customer oriented, cost efficient and excellent in service delivery. This study is in itself not an innocent activity, it should not be taken as a simple act of know- ledge generation. In fact, it does, like most its predecessors, generate little knowledge which had not been present in the system before. It rather tries to focus attention on a selection of features which will be crucial in the process of restructuring Indonesia's land administration system. The study should be seen as an effort of raising questions, rather than of providing solutions which it will take much more to develop than collecting and analysing data for a couple of months. Its primary concern has been the intensive interaction with the clients (BPN, local government, civil society) that may open perspectives of creatively taking up the challenge of participating in the establishment of a demand driven system of land administra- tion. Talking about a system means - this has to be stressed it this point - the positive interac- tion between technical and policy inputs from the centre and practical administrative execu- tion in the regions. The study team has met with great openness by local governments and legislators as well as provincial and local BPN staff, its constant effort to stimulate participation from the central level started to meet with some measure of success towards the end of the study. It would greatly enhance the study's value, if finally a more intense dialogue could be realised, invol- ving all levels of BPN and its client system. 35 2.4 Survey Design 2.4.1 Data sources and data collection approach The survey which was designed during a pilot phase in June 2000 which included visits to 4 sample areas (see report in the Data Volume) is a combination of a data survey andcase study approach. The data survey included the · evaluation of data from BPN Pusat and BPS (Bureau of Statistics) · evaluation of legal texts · evaluation of other sources: documents, newspaper reports etc. and resulted in the following products: · National Database of local Land Offices (finance, performance, HR, hardware) · National database on public finance of districts and municipalities · National database on economic and demographic situation in districts and municipalities · Descriptive study of BPN Pusat (legal foundations, tasks, organisational structure, HR, hardware, finance) The case studies were based on · interviews with different target audiences · dataevaluation · rapid appraisals from visits to 27 districts and municipalities in 10 provinces from June 2000 to April 2001. Based on this material more in depth profiles were developed, typical problems defined and good practices filtered. The presentation of the materials in Sections 3, 4 and 5 is an aggregation of both the data survey and the case study approach. 2.4.2 Sample selection At the core of the present study were the field visits to 20 districts and 7 municipalities in ten provinces spread over the Islands of Sumatra, Kalimantan, Java, Bali and Lombok (see Table 2). Sulawesi and other regions in East Indonesia were left out for logistical constraints, the original intention to include West Kalimantan dropped for security reasons. Two districts, i.e. Solok in West Sumatra and Wonosobo in Central Java, as well as two municipalities - Sama- rinda in East Kalimantan and Surabaya in East Java, were visited during the pre-study (in June 2000) during which the survey methodology was developed and tested. 22 more regions were visited from September to December 2000, the last one, Bogor District was visited in April 2001 as a case for comparison to add some insight into the practical impact of the re- gional autonomy in force since January 2001. 36 Table 2 : Sampl e regions visited by survey teams Province Districts Municipalities West Java Sumedang District Bandung Municipality Bogor District Central Java Wonosobo District Semarang Municipality Kudus District Kendal District Pati District Semarang District East Java Sidoarjo District Surabaya Municipality Lamongan District Bali Badung District Nusa Tenggara Barat Lombok Barat District East Kalimantan Kutai Induk District Samarinda Municipality Pasir District West Sumatra Solok District Sawahlunto Municipality Pasaman District Bukittinggi Municipality Limapuluhkoto District Riau Kampar District Pekanbaru Municipality Jambi Bungo District Merangin District North Sumatra Tapanuli Selatan District The selection of regions to be visited was based on several parameters, i.e. the urban/rural na- ture of the region, its economic status and the relative importance of customary rights based claims on land tenure. A balanced distribution for each of the three parameters has been sought to make the sample reflect as far as possible the overall situation of Indonesian second level administrative regions (districts and municipalities). The categorisation in itself is not without problems. A formal categorisation into rich and poor regions based on GRDP per capita yields results incongruent with the overall economic reality on the ground (see first row in Table 3). The reason for this kind of distortion is in most cases the presence of big companies domiciled in an otherwise not to rich region (e.g. coal mining companies in the case of Sawahlunto Municipality). The other way round, rich regions will sometimes appear as poor in the GRDP statistics, because their the main economic actors are domiciled in another place (e.g. Bogor District). Therefore a complex proxy indicator, consisting of GRDP per capita34, status of public finance and level of activity of the land mar- ket (as reflected in fees collected by the local Land Office) has been used (see second, shaded row in Table 3). Quite a number of regions visited displayed only a fairly limited deviation from the national income average. Therefore in cases where the national average was excee- ded by less than 25%, the region has been categorised as rich, but its name put in brackets; the other way round, were a region fell short of the national average by less than 25%, it has been categorised as "poor", but its name put in brackets. Besides "rich" and "poor" there is thus also a considerable group of regions which could be categorised as "medium". The division into the w[ith]/"ulayat" and w[ith]/o[ut] "ulayat" is equally difficult. To some extent it is a division along the lines Java/off Java, although the regions on the island of Java 34 Figures for GRDP per capita at current prices 1998 according to the Central Statistics Bureau (BPS) 37 do have their share of problems with the friction between adat based and national law based legal perceptions towards land rights. It is only relative to the strongly adat influenced areas in West and South Sumatra that these and a few other regions get their classification as w[ith]/o[ut] "ulayat". Table 3 : Categorisation of regions visited Kotamadya Kabupaten (Municipality) (District) Rich Poor Rich Poor Rich Poor W/ "ulayat" W/"ulayat" W/O "ulayat" W/O "ulayat" Bandung, (Pekanbaru), Badung, Kutai (Limapuluhkot Kudus, Pasir, (Bogor), (Kendal), (Se- (Bukittinggi), Induk o), Pasaman, Sidoarjo marang), (Tapanuli Se- Samarinda, Solok latan), Bungo Tebo, Sawahlunto, Kampar, Lamongan, Semarang, Lombok Barat Mera- Surabaya ngin, Pati, Sumedang, Wonosobo Surabaya, Sawahlunto, Badung, Kutai Bungo Tebo, Kudus, Sido- (Tapanuli Selatan), Semarang, (Bukittinggi) Induk Merangin, Pa- arjo, Pasir, (Sumedang), Kampar, Bandung, (Pekanbaru) saman, Solok, (Bogor), (Se- Pati, Lamongan, Samarinda (Limapuluhkot marang), Wonosobo o) (Kendal), To include regions with different profiles into the sample has proved to be an advantage in the sense that the obviously existing differences in land tenure patterns do make themselves felt in land administration and some phenomena were indeed to be observed only in regions with a somewhat stronger presence of "ulayat" lands. On the other hand, however strongly the in- tensity and motivation of the demand for land administration services might vary, the expecta- tions with regard to the quality of such services show considerable uniformity: reliability/se- curity, transparency, timeliness and reasonable fees are expected basically everywhere. As the technical and managerial requirements for adequate service delivery are virtually the same for all categories and regions, and with regard to demand it is rather intensity and mo- tivation of demand that differs than the nature of the services demanded, the presentation and analysis of data will not be differentiated along the lines of the categories which informed the sample selection. Wherever specific regional features have been noticed which are of general interest, these have been integrated into the presentation and analysis. 38 3 Major Findings from the Survey 3.1 Introduction The presentation of the major findings of the survey is divided into four major descriptive parts · Demand for land administration services · Capacity for service delivery · Financial viability of the land administration system and a section where conclusions are drawn. The demand section (3.2) is divided into demand by the public and demand by government institutions. As the question of traditional land rights is essentially a problem of an unsatisfied demand for the delivery of adequate land administration services, it has been treated in the demand section. In order to avoid an either too academic approach (separating some essential conceptual considerations about the traditional land rights question and putting them into the basic concepts section) or the usual inconsequential "traditional rights are important, we have to consider them" adored with some empirical material, in section 3 the presentation of some field material is woven into some more basic reflection on the issue. The capacity for service delivery section (3.3) had to be limited to a number of key indicators particularly closely linked to the quality of services demanded by the users and covering the major elements of the EFQM model for excellence in order to pin down the most urgent areas of necessary future improvement. The financial viability of the land administration system (Section 3.4) is an important element for the quality of the system, it provides additional insight into the demand question and pro- vides some idea about the potential for investment from self-generated funds in the future. A summary and major conclusions are presented in Section 3.5, together with the Good Prac- tices in Section 4, this section forms the basis for the final recommendations. A description of BPN Pusat before the start of decentralisation has been given in Section 1.2.2.1 above and additional information can be found in ANNEX 6 to round off the analysis of the system. The limited scope of this study which did not allow an analysis of a sample of Kanwil (as part of the Pusat structure) leaves this part somewhat incomplete. As BPN Pusat will play in important role for policy development, standard setting, technical support and human resource development for the system in the future to make the delivery of high quality service by the decentralised units possible, this gap should be filled as soon as possible. 3.2 Demand for land administration services This section covers three major topics, i.e. · Demand by the local population (including, where this could be verified, local banks) · Demand by local government 39 · The adat question in land administration The question of customary law perceptions towards land rights has been included into this section as they are at the root of a demand that has so far been not been fully recognised, let alone been adequately catered to. Designing land administration services that caters to the needs of communities which base their relationship to land on local customary law concepts is one of the central challenges for cadastral reform in Indonesia. 3.2.1 Demand for land administration services from the local population Due to the limited resources available for the field survey, the local population's demand for land administration services could only be determined through a set of proxy indicators, i.e. · interviews with Local Assembly members (cross checked with results from interviews with local Land Office staff and local government officials) · statistics on deeds · financial data · others, like newspaper reports, NGO publications etc. Although the function of the local assembly members as representatives of the aspirations of the local population and as supervisors of the local executive maybe still in a fairly early state of development, the discussions during the teams' visits to the regions made clear, that it would be equally mistaken to perceive them as mere annexes to the local government. This is especially true for the many areas where the last election has significantly altered the compo- sition of the local assemblies. The option to organise real enquetes with actual local users of land administration services was discarded as not feasible during the test run of the survey, but may be a useful undertaking for the future. It should be noted, that the users of land administration services who together constitute the "public demand" are not just those having their land registered for first time certification or conveyance. It does also include for example local banks providing credit against land certi- ficates as collateral.35 The following discussion considers to aspects of public demand, i.e. · The motivation for demand: why do people look for land administration services (certifi- cates etc.) ? · What kind/quality of service they wish to get ? It should be noted, that demand for land administration services that concern BPN's second major function (besides its cadastral tasks in surveying and registration of land), i.e. land use management, in particular the issuing of permits for particular commercial use (izin lokasi) will not be dealt with in this section, as demand for such services is not voluntary. 35 This does not mean, however, that in terms of quality management (see model in Section 2.2) the lines between "Results for customers" and "Results for society" should be blurred. While banks make direct use of BPN services (precise and reliable information about land rights), the general interest of society in sound land administration (for avoiding conflict, stimulating investment, making land resources management easier etc.) is something different. 40 3.2.1.1 Major motivations for public demand for land administration services · Collateral for credit This is the most frequently cited reason for land registration (in Sumatra almost across the board, on Java at certain places like Kudus, with a strong trader's community or Sidoarjo, where economic activity is heavily influenced by the adjacent Surabaya metropolitan re- gion). Although there have been cases of banks being cheated with false certificates36, ge- nerally land is most popular as collateral with the banks, especially in the case of family owned Small and Medium Enterprises (SME). However, in some areas the collateral fac- tor is not as strong a motivation for have one's land registered, as for example in Sume- dang District/West Java the local People's Bank (BRI) accepts girik status land as collate- ral for credits below 10 million Rupiah. · Legal security Together with the wish to use land as a collateral with banks, legal security was a top sco- rer among the motivations for having land certified or registered under the new owner's name after conveyance. Although people are aware of the possibility of abuses like double certificates and the like, the confidence in the land administration system is not as deeply shaken as in certain other institutions, it is still regarded worth the (often considerable) ef- fort to obtain a certificate for one's land. In many places, even relatively poor people in- volve in mass certification schemes at their own expense (PRONA swadaya) in conside- rable numbers, like in Semarang Municipality where in the three Fiscal Years 1995/1996- 1997/1998 2788 parcels were registered through PRONA swadaya, whereas the stronger subsidised PRONA37 scheme during the same period only resulted in 600 parcels regis- tered, or in Semarang District which has also seen systematic registration through self-fi- nanced schemes in 46 villages. In Solok district/West Sumatra although the total number of deeds registered per month lags behind the standard common on Java, the local popula- tion is prepared to pay for their Land Offices services, as application for (self-financed) PRONA swadaya matches ordinary PRONA applications. In some poorer areas of Java, e.g. in Pati District, migrant workers invest the relatively high earnings they get from their jobs overseas in land in their native area. As this investment is normally meant to build capital for later business or as savings for their old age and at the same time the persons in question cannot look after the land themselves, security is a particularly important issue to them. · Land easier to sell The fact that land might be easier to sell if already titled and the related argument that it might fetch a higher price was did appear (like in Sidoarjo District/East Java, but was less frequently voiced than other arguments. This finding tallies with the fact, that generally the proportion of adjudication among the total monthly deeds is superior to that of the re- gistration of conveyance. The reason for this is not entirely clear; a hypothesis is, that most holders of land plots not yet registered are villagers who do not sell their lands ex- cept in case they need cash. This case is normally not exactly foreseeable and if it occurs, the land holder will have neither the time nor the resources to go through the certification process. Land for them is not normally a commodity that is easily sold for profit. 36 A high profile case catching the headlines in East Java in late 1997 involved certificates issued by Sidoarjo District local Land Office, which were used as collateral for credits obtained from the BANK PERKREDITAN RAKYAT (People's Credit Bank) "Lawang Makmur" in Malang (see, or for more exten- sive press documentation Vol. II). 37 PRONA is an acronym for Proyek Operasi Nasional Agraria [National Land Operation Project] 41 Whether demand should be qualified as relatively strong or weak is open to debate, especially as there are no generally accepted indicators for such a categorisation. However, the majority of different stakeholders interviewed - if they voiced an opinion on this matter - would rather qualify demand as strong then as weak. Apart from the subjective assessment, there is some reason for such a qualification: · Indonesia's land administration system had, at least until 1998, a cost recovery rate supe - rior to 100% (total running costs and investments against revenues from service fees), which puts the country into the leading group by international benchmarking. Such reve - nue levels alone would allow to qualify demand as high. · Basic infrastructure for the land administration system, like the expansion of the network of geodetic control points, normally regarded as an initial investment into the land admi- nistration system from the government's tax income rather than an item to be covered by service fees, is included in the above mentioned calculation of cost. · As, like other civil servants, BPN staff has been dramatically underpaid during the period analysed and the levying of unofficial fees is a widespread practice (see Section 3.3.7.6on this point), the users of land administration services were even prepared to pay substan- tially more than the official balance states. 3.2.1.2 Major quality expectations by the public with regard to land administration services Although the team's interlocutors had on an average relatively little knowledge of land admi- nistration, but their perception from a user's perspective about what land administration should look like is fairly close to the set of quality indicators defined by professionals (see Section 2.2): · Security: The title obtained is expected to be legally valid, protected against abuse like duplication ("sertifikat ganda"), and to be protected by permanently and reliably stored documents (cases of certificates of which no trace can be found at the local Land Office continue to pop up). Security of tenure is also expected (and fought for) without a registered title, e.g. for land which had been tilled for a prolonged period of time (as "penggarap"), but even in this cases, the handing over of certificates assumes both legal aspect and the quality of a po- litical ritual. It should not be overlooked that also in regions where perceptions of land rights are domi- nated by customary law (adat) concepts, legal security is an issue. Examples given to the team included the passing away of adatleaders (elder members of the community respec- ted as authorities on adat questions) leading to the loss of sources of information and ar- bitrage on land rights, or the use of natural boundary markers (trees etc.) which subse- quently disappear, leading to boundary conflicts.38 38 In those cases found in the field visits, the problem of natural boundary markers disappeared was simply portrayed as a technical problem, like in Pasaman District/West Sumatra. It appears that in other cases, particularly in the conflicts between local communities and immigrant communities in Kalimantan, there is a problem of suspicion regarding manipulation of natural boundary markers, see Petebang, E. et al. eds., Konflik Etnik di Sambas.Jakarta: Institut Studi Arus Informasi (2000) pp.155 f. . Whether this suspicion is founded in facts or just rumours is of secondary importance if it comes to community clashes. 42 Lagi, Sertifikat Palsu · Transparency Sidoarjo, JP.- The demand for transparency (or com- Kasus sertifikat palsu di Sidoarjo, bertambah lagi. Se- plaints about its absence) has been omni- telah sebelumnya BPN Sidoarjo mensinyalir Sertifikat present in the interviews. Although the No 88 milik BPR Lawang Makmur (LM), palsu, kini muncul kasus yang sama. Korbannya pun sama, yakni term has become somewhat of a catch- BPR LM tersebut. Kali ini yang diduga palsu adalah word since the beginning of the demo- Sertifikat No. 12 berupa tanah tambak seluas 59.480 cratisation in Indonesia, normally it was M2 di Desa Rangkah Kidul, Sidoarjo. given two fairly concrete meanings in Sertifikat tersebut atas nama Ny Amanah, warga Ke- the context of the quality of service de- tapang RT 03 RW 06, Tanggulangin. Diterbitkan BPN Sidoarjo tanggal 8 Juni 1983, gambar situasi tertanggal livery of the local Land Offices: 14 September 1983 nomor 2651/1983, dengan nomor Transparency of processes: users of land buku 8552631. administration services want to get pre- Sertifikat yang juga memakai stempel berlogo garuda cise and reliable information about the itu, ditandatangani Kepala Seksi Pendaftaran Tanah, administrative requirements they have to saat itu, Soenarjono. Namun, kepala BPN, R Soehar- tijo, tidak membubuhi tanda tangan atau kosong, hanya fulfil, the length of time to process their `ttd'. application and the cost involved; they `'Yang saya sangsikan, mengapa orang lain --termasuk want to get reliable information about si pemalsu-- begitu mudah mendapatkan data-data me- the status of the processing of their appli- ngenai sertifikat yang dikeluarkan BPN Sidoarjo. Ka- cation at any given time rena mudahnya mendapatkan data itulah, mengakibat- kan `penjiplakan' sertifikat milik orang lain,'' tanda Transparency of the land register: Tony Arif, staf ahli BPR LM, kemarin. people wanting to buy land or banks wi- Sertifikat yang kini dipegang BPR LM itu, dijaminkan shing to check about the validity of a oleh Ny Molawati, warga Jalan Mangga 7 Malang, 27 certificate want easy access to and reli- Juli 1991. Sebagai jaminan atas kreditnya sebesar Rp able information from the land register 20 juta. Sedangkan pemindahan hak tanah itu, dari pe- miliknya Ny Amanah ke Ny Molawati, dikuatkan no- taris Koemalasari SH, Malang Jalan Ade Irma Suryani · Time no 9-11 / A-1. As the period for display alone in the Ditambahkan Tony, sebelumnya, BPR LM sudah me- case of an initial registration is two lakukan rechek ke lokasi. Bahkan, untuk meyakinkan month, no express processing can be ex- luasnya, pihaknya juga melakukan pengukuran. `'Saat rechek itulah kami menyempatkan untuk memfoto lo- pected. However, processing time of one kasi tambaknya,'' ujarnya. year or longer frequently leads to pro- Sementara itu, Kepala BPN Sidoarjo Tondo Subagjo tests. Interlocutors from non-BPN sour - SH dimintai konfirmasi di rumahnya Minggu petang ces tended to cite individual cases of kemarin, sedang istirahat. `'Maaf bapak sedang istira- particular slow service, whereas answers hat,'' papar salah seorang penerima telepon. Namun beberapa saat kemudian, dihubungi kali kedua, Tondo by local Land Office staff tended to eva- sudah tidak ada di tempat. `'Maaf, bapak sedang pergi sive. Probably relatively realistic assess- ke gereja,'' jelasnya. (fik) ments were given by BPN Kendal which http://library.jawapos.co.id/jplalu/des97/10desember/m stated that "so far only 50% of the appli- e10d6.htm cations can be processed within the tar- size 2548 bytes - 12/09/1997 12:06:06 PM GMT geted time limit of four months" or by BPN Semarang District (both Central Figure 6 : Report in the online-edition of the re- gional newspaper JAWA POS about false certi- Java) which stated that "processing time ficates issued by BPN Sidoarjo and used to obtain between 6 and 12 months will still be credits from a bank in Malang tolerated by the population". In Sidoarjo District/East Java the systematic regis- tration schemes are liked by the population not because the processing is particularly ra- pid, but their is a clear time limit, everything has to be finished by the end of the Fiscal Year (apart from this, the low cost is also an important factor). The processing time for a girik plot of land with a clear history of ownership (silsilah) and undisputed ownership at that office was given with 4-6 months. 43 · Cost The official fees for land administration services are not deemed excessive by most users, even relatively poor people form groups for systematic adjudication on their own expense (PRONA swadaya). However, the widespread practice of unofficial fees by either go- betweens (most often the village administration) or BPN officials are judged negatively. · Convenience From complaints being voiced by users or by indirect conclusions from measures taken as a remedy for the problems it appears that in a number of areas (e.g. Pasaman, Solok/West Sumatra, Sumedang/West Java) travel distance from parts of the district to the local Land Office in the district's capital is a grievance. As in most cases several visits are needed to have an application for adjudication or registration of conveyance been processed, users want to have the Land Office or a branch of it in their vicinity. The picture that emerged from the interviews is supported by other sources, like the statement of the village officials organisation in Pati District/Central Java that recently enforced the ta- king office of the Head of Dinas Pertanahan appointed by the local government based on a Local Regulation (PERDA) which demanded that the processing application for certificates should be done rapidly, according to the promised schedule, carefully and at transparent cost (see report reproduced in Figure 3, page 22). In an online polling in mid-2000 about the per- formance of public services by Media Indonesia Online, · about half of the more than 1300 respondents had had first hand experience with BPN ser- vice · 91,5% rated this service as "slow" or "very slow", · 88,6% complained about BPN officials acted as go-betweens charging illegal fees · 48,7% value transparency on the part of BPN as the most important remedy, rather than just taking disciplinary measures against individual officials (37,7%).39 These findings confirm the complaints heard from the interviewees the team met in the sam- ple regions, although sociologically, while displaying the same gender and education level bias (more than 80% male respondents, higher than average education level), the Media Indo- nesia respondents included a much higher proportion of private sector employees. It is difficult to assess, how forcefully dissatisfaction about past land administration services or frustration about future service delivery not meeting the expectations outlined above will translate into political action. However, there are some indications. Whereas middle class people like the majority of respondents in the above cited polling may or may not display shifts in their electoral behaviour, in case of dwellers of poor city quarters, peri-urban low income areas or villagers from rural areas since the beginning of the reform era40a general trend towards radicalisation can be observed as the following examples from the survey areas may illustrate: 39 The complete questions and results can be found at http:\\www.mediaindo.co.id under " Harapan dan Penilaian Anda Terhadap Public Service di Indonesia" in the polling section, the polling was done between June 20-27, 2000 40 The periodisation of recent Indonesian history is in itself an issue politically charged, here the stepping down of Suharto from the presidency is assumed as being the watershed between the old and the new regime 44 · In late December 1999, people from the Gunung Anyar quarter in Surabaya Municipality/ East Java whose certificates had been withheld by the municipal Land Office threatened to occupy that office if their demand for immediate restitution would not be met. · In Sidoarjo District/East Java, in June 1999 inhabitants of the Kepuh Kiriman village blocked the road to Rewwin real estate to add fresh force to their demand that compensa- tion should be paid by the developer for village land used. · In Lamongan District/East Java, people from the villages of Karangkembang and Nguwok who had made a living from small scale lime stone mining in early 2000 sent a protest let- ter to the President after an exclusive permit for use of the quarries had been given to a big national company and the company closed the area altogether to the population. · In Kendal District/Central Java, peasants in conflict with a state plantation over land rights in July 1998 marked the plantation land they claim and planted coffee trees on it. Up to the visit of the team, Kendal District has at least weekly, if not daily demonstrations on land cases, often involving state plantations. · In Pasaman District/West Sumatra the local population looted a plantation company ac- cused of occupying adat land obtained by informal leaders not properly representing the aspirations of their communities on that question. It can thus be safely assumed, that local governments face some real political pressure for improved delivery of land administration services. 3.2.2 Demand for land administration services from local government institutions Basically there are two types of services that local governments expect from their Land Offices: · Cadastral services · Technical services in land use planning as a support for the spatial planning (tata ruang) of the Local Development Planning Boards (BAPPEDA). The awareness of the importance of land questions in general - i.e. the idea that land is · an economically important resource in a still predominantly agrarian society · a scarce resource as in many regions visited population density tends to be extremely high · a resource that is charged with cultural and political significance beyond its economic value the teams found with their local government interlocutors is almost without exception high. However, if it comes to practical questions of land administration, their knowledge was, by and large, fairly limited. There are exceptions to the rule, like in Pasir District/East Kaliman- tan, where the local government did link their tax share income from BPHTB to the local Land Offices work and used part of these funds for upgrading the office's (or their future Di- nas Pertanahan's) facilities even before the era of regional autonomy started in January 2001. However, this attitude is not representative of the bulk of local governments visited. For esta- blishing the local governments' demand for land administration services this situation did have its advantages, the teams' interlocutors gave their answers from a more or less pure user 45 perspective, unspoiled by managerial considerations for the future. The most important expec- tations of local governments with regard to local Land Offices'/future Dinas Pertanahan's work are: · Avoid to create trouble So far, in the majority of regions, the number one cause of complaints to the Local Assem- bly (DPRD) and of demonstrations have been land questions. Although BPN is not held responsible for all of them, local governments expect more timely service delivery and refrain from abuses (especially unofficial service fees), lest new conflicts might arise. BPN is also expected to provide necessary information for solving old cases and to correct its own errors, wherever those have played a role in creating land conflict. Other quality re- quirements were not cited, as local governments apparently are not yet aware of the poten- tial danger of inadequate storage facilities for archives, technically unsound surveying and other weaknesses of the system. An active role as mediator in land conflicts (e.g. between different claimants like plantations and local peasants) was not among the expectations of the teams' interlocutors with regard to the local Land Office/Dinas Pertanahan's services. · Help to make the region attractive for investors Beyond the more modest expectation that the work of the local Land Office/Dinas Perta- nahan should not create trouble/security problems, some local governments expect a posi- tive contribution of their new agency in preventing conflict, creating a higher degree of legal security in land matters and providing easy to retrieve information (register, cadastral maps) as a measure to bolster investor confidence in their region. This was the actual moti- vation underlying the above mentioned Pasir District's local government's move to upgrade the local Land Office's facilities from local budget funds in late 2000. A similar view, al- though not accompanied by measures as bold as those of the Pasir local government was voiced by the Kudus District/Central Java local government, which regards the local Land Offices/Dinas Pertanahan's role in spatial planning as important for enhancing the regions attractiveness for investors, especially in view of the very limited land resources of Kudus. · Be co-operative Practically all local governments stress, that land administration should be in harmony with the work of other local government services and with policy lined out by the local govern- ment. This concerns in the first place the support local land resources management, in which the local land office plays in important role both through its function as the agency issuing permits for land use by companies (HGU) and through its technical support in land use for the spatial planning of the local Planning Board (BAPPEDA). As to the extent that this is seen as a continuation of harmonious collaboration in the past or as an objective to be achieved through a future process of change, the picture is mixed. At least a couple of local governments had gone through experience of sometimes intense conflict with BPN (like Surabaya Municipality, Lamongan district, Tapanuli Selatan district). Without excep- tion, however, teams' interlocutors welcomed the integration of the local Land Offices into the local government apparatus. · Contribute to local tax income Although some interlocutors from local governments explicitly stressed, that the increase of local tax income was not their primary concern with regard to the local Land Office's integration, some also voiced their expectation that the local Land Office in the future might contribute to improve public finance in their region. However, only in isolated cases the relation between the local Land Offices activity and the totality of land related local government revenue (apart from direct service fees of the local Land Office the substan- tially higher income from the region's share in the tax levied on conveyance of land and the improvements on it [BPHTB] and from the region's share in the Land and Buildings 46 Tax [PBB]) was seen. One of the most crucial questions in this context, i.e. to what extent better service provided by the local Land Offices/Dinas Pertanahan could broaden the tax base for the Land and Building Tax (Pajak Bumi dan Bangunan/PBB) and the Tax for Conveyance of Land and its Improvements (Bea Perolehan Hak atas Tanah dan Bangun- an/BPHTB) and could improve tax collection efficiency. It is obvious, that the fiscal cadastre maintained by the Land and Building Tax Office (Kantor PBB/KPBB)41 is much more comprehensive than the BPN's land rights cadastre. However, according to some of the teams' interlocutors, tax evasion seem to occur by collusion between tax payers and KPBB officials, with the amount of tax due deliberately fixed too low and the KPBB official paid a reward from that "discount". In this context also the fact that estimates of the total number of plots of land in many provinces are substantially higher than the number of plots registered in the KPBB's fiscal cadastre (which pretends to be more or less complete) merits some further investigation. In this connection the case of Kendal District is interesting. The local government of Kendal District has been charged with collecting the Land and Buildings Tax (PBB) on the basis of invoices produced by the KPBB in Se- marang.42 In order to monitor the tax base, the Local Government Revenue Agency (Dinas Pendapatan Daerah/Dipenda) has established its own database, which at times is used to re- check the data from the KPBB. The question to what extent evasion of BPHTB is a major problem is not entirely clear. According to the teams' interlocutors, if registered land (with certificate) is conveyed, the new owner would normally immediately try to have the land register updated and his name be registered as the rightful owner (balik nama). In case of land not registered at BPN, however, it seems to be frequent, that the transaction is not re- ported43 to the village authorities who keep the "Book C" (Buku C), which forms the basis also for collecting PBB. The best solution seems to be to ensure the establishment of data exchange between the local Land Office/ Dinas Pertanahan and the KPBB, which would facilitate efforts to § Expand the database more speedily for BPN § To reconcile the different sets of data § To enhance transparency One of the Java Team's interlocutors estimated improving exchange and transparency of land related data sets would be the single most important short term step for raising tax collection efficiency. Efforts into this direction have been taken e.g. in Semarang Munici- pality, but the requirements in terms of system design, data processing hardware and hu- man resources are considerable . It should be noted, that more efficient co-operation bet- ween the local Land Office/Dinas Pertanahanand the KPBB would also help to fulfil the individual users' expectation with regard to speedy service delivery, as there are cases where a district does not have a KPBB of its own (e.g. Lamongan), which means that in cases of conveyance of land the receipt for payment of BPHTB, the Surat Setoran Bea takes a long time to process in the KPBB of the neighbouring district capital. An expectation shared by individual users of land administration services, local governments, local assemblies and the general public is increased respect of the land administration and its representatives on all levels for all kinds of land administration stakeholders they are dealing 41 This office belongs to the Ministry of Finance and hence is not subject to devolution. 42 As in the case of Lamongan District, Kendal District does not have its own KPBB, because the law only requires the capitals of a larger administrative unit (Karesidenan), now no longer existing in the admi- nistrative system, to have a KPBB. The collection of PBB by the Dipenda is not an isolated case, the same situation was reported to the team in Sidoarjo district /East Java. 43 by either the local camat [Heads of Sub-district] or other PPAT [official entitled to give legal recogni- tion to a land sale] or notaries 47 with. Cases like the municipal land office of Surabaya, where applicants over weeks once were told that certain forms are simply not available, the office's Head declined to appear be - fore the local assembly, ignored the mayor and flatly refused to obey by orders from the local Administrative Court up to the Republic of Indonesia's High Court (Makamah Agung) do not enhance the institution's image in public. The fairly strong motivation that the teams' found on the part of local governments to act on the issue of the quality of land administration services is fed by · Security considerations, like the frequent demonstrations and radicalisation of peasants taking the law in their own hands · Pressure from local assemblies who start to take political initiatives of their own on land questions (see Section 3.3.7.1below) · Impatience with continued meddling and a weak spirit for co-operation on the part of central institutions 3.2.3 The question of land administration services for land under hak ulayatstatus The term hak ulayat which figures in the Basic Agrarian Law (§ 3) is in itself not without pro- blem, as it is as a term of customary law only applicable to West Sumatra, other areas like Aceh or Java using different terms.44 The same law states that it is adat law which governs soil, water and air space (§ 5) 45, but it does not explain what adat law is, which adat (cus- toms) is to be used and what the relationship with hak ulayatis.46 The problems of modern legislators to come to terms with these categories is, however, nothing new, in 1917 van Vollenhoven wrote: "Should anyone wish to learn what Javanese land law is not, he should preferably read how the ordinance on mortgage facilities (Sb. 542/1908) imagines it to be."47 44 See the remarks of van Vollenhoven, the pioneer of systematic study of on Indonesian customary law, on customary/traditional land law in Aceh, West Sum atra and Java/Madura in Holleman, J.F. (ed.), Van Vollenhoven on Indonesian Adat Law, KITLV, Leiden, 1981, pp.95-105, pp.137-139, pp. 179-198 45 Ironically, before adat land can be registered under the system of the Basic Agrarian Law, it hasto lose its adat land status first through a document called Surat Bukti Pelepasan Tanah Adat /Certificate of Annulation of AdatStatus for Land (see Löffler, U. "Land Tenure Developments in Indonesia" Report for GTZ Division 4250, Eschborn: GTZ (1996) Chap ter: 8., Section 8.4 Registration of ADAT land rights 46 Hak ulayat was translated in Dutch legislation and anthropological research as beschikkingsrecht which has been translated into English as "the right of avail". In his landmark publication "Misconceptions of Adat-Law" (1909), van Vollenhoven gave the following summary of nature and content of this right which until now has not been fundamentally challenged by new research: "The right of avail ...applies when an indigenous jural community, whether territorial (native munici- pality, self-governing chiefdom) or genealogical (family, lineage, clan) claims to have within a certain area the exclusive right to avail itself of the land. In general, the manifestations of this right are six: first the community and its members may freely exploit any virgin land within this area (e.g. clearing it for agriculture, founding a village, gathering forest produce); secondly, outsiders may do these things only with the communities permission, and commit an offence (maling utan) without this; thirdly outsiders, and sometimes even members, must pay some compensation (sewa bumietc.) or tribute (ulu taon) for such exploitation; fourthly, the community retains to a greater or lesser extent some control over culti- vated lands within this area; fifthly, it is held liable for unaccountable delicts within the area (e.g. when the perpetrators remain undetected); sixthly - and this is not the least remarkable feature of the right of avail - it cannot be permanently aliena ted." (quoted from the translation privided by Holleman, op. cit., pp. XLVI f. 47 Quotation based on the translation given by Holleman, op. cit., p.198 48 To make matters still more complex, there are in the perception of the population not only individual "modern" land rights, hak ulayat and adat, but also rights originating in sultans of various kingdoms all over the archipelago infringing upon land rights of communities, esta- blishing royal lands.48 The survey team found land conflicts based on claims to royal lands in at least two regions, i.e. Sumedang (West Java) and Kutai Kartanagara (or Kutai Induk, East Kalimantan). The abuses which occurred during the New Order regime further complicated this already fragmented picture. In Kendal (Central Java), the district with the highest number and in- tensity of land conflicts in that province, many involving plantation companies, protests in- volve · communities bullied to release their lands during the Dutch period, now citing customary law as a basis for demands for restitution · peasants forced to relinquish their land during the New Order period against unfairly low compensation · people who voluntarily released their land, but now claiming to be among the victims of the New Order regime It is important to note that even on the island of Java, with its relatively long tradition of in- dividual avail from land and use of land as a commodity, adat concepts of land rights are still quite alive49. Nevertheless, this situation tends to result in demands for sound land administra- tion rather than in rejection of cadastral activities. 48 The eminent Indonesian historian Sartono Kartodirdjo describes the role of land tenure arrangements in the process of class formation in local society in the 19th century and the interaction with colonial rule in his analysis of the peasants' revolt in Banten (Northwest Java) in 1888 [Kartodirdjo, S., The Peasant's' Revolt of Banten in 1888. Its Conditions, Course and Sequel - A Case Study of Social Movements in Indonesia. Verhandelingen van het KITLV No. 50, The Hague: Martinus Nijhoff (1966)]. Some sort of documentation on local pre-colonial land administration (taxation, grants etc.) does exists in the form of ordinances of Javanese rulers, like the Pranatan pajeg bumi desa (Ordinance on land rent/tax) of 1837, the land rent regulation for land leased by Dutch planter in 1837 from the Sultan of Surakarta or the list of apanage lands granted to members of the royal family and to royal servants of the Yogyakarta Sul- tanate at about 1830 mentioned by Pigeaud [Pigeaud, T.G.Th., Literature of Java. Catalogue Raisonné of Javanese Manuscripts in the Library of the University of Leiden and Other Public Collections inthe Netherlands. 3 Vols. The Hague: Martinus Nijhoff (1968), Vol.II, p.729, 735 and 745], but it is doubtful whether these materials tally with present day perceptions in local society. As for the extent of claims to royal grants or apanages, the mission found 2 instances (in Sumedang and Kutai Kertanegara) and there are known cases at the former Dutch Residence Sumatra East Coast, dating back to agreements between Dutch planters and the sultan of Deli (present day Noth Sumatra province). The latter's policy with re- gard to his subject's land rights already created considerable tension in the 1930s (see Reid, A.., The Blood of the People. Revolution and the End of Traditional Rule in Northern Sumatra. Kuala Lumpur: Oxford University Press (1979), pp. 70 ff. and probably helped to lay the foundation for the physical destruction of the Malay nobility along Sumatra's East coast in 1946 (see op. cit. pp. 230 ff.). As for certain parts of Java, there might also be more conflict in store, as early in the 20 th century there were still about 1.700 apanage holders in the Yogyakarta Sultanate alone (van den Haspel, C.Ch.. Overwicht in Overleg. Hervormingen van justitie, grondgebruik en bestuur in de vorstenlanden op Java 1880- 1930. KITLV Verhandelingen No.111. Dordrecht : Foris Publications (1985). p.71. 49 See discussion of communal land use and ownership arrangements on Java in Löffler, loc. cit., Chapter 3, Section 3.3.1, the representative of the Semarang District government even classified adat percep- tions as "dominant" in land questions in his region 49 On the other hand, in the rural districts of West Sumatra visited by the survey team, even re- gistration of land is viewed with suspicion by the community, as a person seeking a certificate is believed to prepare for one of the worst infraction on customary law, i.e. the permanent Figure 7: Different categories of adat land rights in Minangkabau society (West Sumatra) alienation (sale) of community land. Whereas in Java community rights could be called "an also present undercurrent not to be neglected", in all ten regions visited in Sumatra, except Pekanbaru Municipality, community rights ownership patterns (clan, marga, nagari ulayat etc.) are dominant. Even land belonging to individual core families (ganggam nan bauntuak , see "D" in Figure 7) cannot be sold as it belongs to the clan land (tanah ulayat suku, see "B" in Figure 7) and the rights of the family to it do not include the right to permanent alienation, as this would constitute an infringement upon the rights of the clan. The graphic also shows a factor that frequently leads to land conflicts in the area: forest land close to a human settle- ment is perceived as village land (tanah ulayat nagari, see "A" in Figure 7), a sort of "strate - gic reserve", whereas the government perceives it as government land under the authority of the Ministry of Forestry and Agriculture. If a forestry concession is given to a company, chances are that this is perceived as a violation of the adatcommunity's rights. Internal (inter-insular) migration provides another source of conflict, as migrants would not automatically adapt to the customary law of their new environment. The collision between land right perceptions like the semi-traditional hak penggarap (right of the tiller) on Java and Madura and land right perceptions based on local adat law in Kalimantan are a drastic example of this. There, immigrant groups from Madura having received permission from the local population to use land perceived to belong to the adat community after a prolonged tenure period eventually came to believe that these lands rightfully belonged to them. This misunderstanding ranked quite important among the reasons for the repeated bloody ethnic clashes (in West and Central Kalimantan) during the last decade. 50 As a consequence, the most important conclusion is, that the heterogeneity/diversity of the situation in the regions with regard to perceptions of the relation between man and land is acknowledged. Koentjaraningrat in his book on the intellectual history of Indonesian anthro- pology described van Vollenhovens struggle in terms of the following dual effort ...the struggle to gain recognition for the existence of adat law both on the part of lawyers and specialists on Indonesia, and on the key figures in the Dutch colonial government, and the simultaneous fight against attempts to standardise adat law or replace it by Western law.50 Van Vollenhoven in a first still very preliminary assessment tried to categorise the existing adat law systems into 19 zones; judging from today's knowledge, we can be almost certain, that van Vollenhoven underestimated the diversity of the countries legal culture, e.g. by not sufficiently taking into account the different local traditions on Java resulting from different degrees of penetration of former royal jurisdiction into village land management. It should further be noted, tha t the inclusion of adat perceptions in land legislation is not a relapse into pre-modern patterns of social organisation, but an effort to harmonise legal per- ception actually dominant in society or certain sectors of it with the codified norms that form the corpus of national legislation. During the visits of the team to West Sumatra, an important step in this sense was taken by the provincial government which reorganised village adminis- tration to become congruent with the basic unit of adatpolitical and territorial organisation, the nagari. And the study of pre-colonial law texts reveal that for the field of land laws the process of codification was well under way51 when the social fabric of different areas was distorted by colonial penetration. A better way of dealing with adat based land rights perceptions would not only be beneficial to communities wishing to protect the lands they perceive as rightfully theirs against encroach- ment by outsiders but also to society at large as the following examples from the survey areas may demonstrate: · Although most adat land rights perceptions are based on the principle of land being inalie- nable 52, this does not mean that rights for using the land are not tradable. In Pasaman, for instance, the team found intense conflicts (involving repeated looting) between the local population and plantations which had obtained the right of use for clan land from adat- leaders. As these had either passed away without leaving written proof of the agreement on behalf of their adat-community or ceased to represent their adat-community, the trans- actions were disputed. A registration of adat rights on land and transactions involving the transfer of certain parts of such rights could be beneficial to all parties. · In the Tapanuli Selatan district (North Sumatra province), because of the many (and often contradicting) adat claims on land, certification has so far been slow and difficult (in na- 50 Koentjaraningrat, Anthropology in Indonesia. A Bibliographical Review . KITLV Bibliographical Series No.8. The Hague: Martinus Nijhoff (1975) 51 See for example the Undang-UndangMelaka (Laws of Malacca) which until the 19 th century played an important role practically in the whole Malay world including those parts which later became part of Indonesia and which contained relatively detailed regulations about land rights (lease etc.), in Liaw, Y.F., Undang-Undang Melaka. The Laws of Melaka. Bibliotheca Indonesica No.13. The Hague: Martinus Nijhoff (1976) pp. 107-117 52 And even this rule knows its exceptions. In West Sumatra which among the regions visited has the re- putation of being most adat-oriented, clan land can be sold in certain cases of defined "adat-emergen- cy", like to raise the funds for marrying a female clan member perceived to be in danger of becoming an "old maid" or for repairing the clan's adat house. 51 tional BPN statistics on the numbers of certificates issued per district/municipality, Tapa - nuli Selatan is usually left blank, to the team the almost unbelievably low cumulative fi- gure of 3.000 registered plots of land, with an annual increment of about 100 certifica- tions, is given). Therefore, local camat(Heads of sub-district) or other PPAT (official entitled to give legal recognition to a land sale) issue a document called surat alas hak , basically a confirmation of somebody's (traditional) right to a plot of land. The document is accepted by certain banks, like BPD (Bank Pembangunan Daerah = Regional Develop- ment Bank, government owned), as collateral for credits, although it does not have the same legal force as a certificate. The team's interlocutors reported relatively frequent cases of multiple surat alas hak issued for the same plot of land. In this case again, the absence of a locally promulgated and binding legal regulation for adat-rights on land creates problems and encourages abuse. The task of the land administration system emerging from this picture is a twofold one: · Defining a framework system of land registration that adapts to the needs of the people, including the protection of community rights and the rights of indigenous populations · Filling this framework with adequate regulations in each region. There seems thus to be a strong point for both decentralisation of the immediate task of land administration to cater for all those diverse local aspirations, and a role for a technically gui- ding institution on nationallevel assuring that a common national framework is retained and the system remains technically sound in all regions.53 53 This point was also stressed in the LAP-C's report on institutional framework reforms for land adminis- tration, see Williamson, op.cit. p.30 52 3.3 Capacity for service delivery Whereas in the previous section requirements for quality of services by customers of the local Land Offices' capacity was highlighted, in this section a broader look is taken on the functions of the land administration system necessary to deliver such services and on the quality of the system as a whole. This analysis is not comprehensive but focuses on a limited number of essential features, which are most directly linked to decentralisation (see Table 4) and most relevant to produce the results expected from the user groups discussed in section 3.2above Table 4 : Parameters covered in the field study and their relatedness based on the EFQM model Enablers Processes Results Regulatory framework: Data exchange Data on output and · Problem of authority over forest lands future workload Partnerships: Corruption Financial performance · Involvement of village administration (-> section 3.4) Vision and strategy: Conflict resolution Remuneration of staff · Development planning of local Land Offices Leadership: · Problems in the chain of command Human resources Infrastructure and hardware: Geodetic framework, Physical infrastructure, Mea- suring equipment, Computerisation, Ve- hicles The focus in the presentation is on the local Land Office/Dinas Pertanahan. Within the land administration system there are also service provider ­ customer relationships to be found between the different levels, results on the BPN Pusat level can become enablers on the local Land Office/Dinas Pertanahan level. In order to provide for more convenient reading, the material has been organised along conventional (non-QM) lines, the non-technical topics grouped under the heading of "Managerial issues" although belonging to different categories in terms of quality management. Legislation and E P R interinstitutional LIS policy level Policy and standard E P R setting level within cadastral system (BPN) E P R Working level ( Dinas (including for Pertanahan ) end users) E P R Local Government (Municipality/District) Figure 8 : Inter-level links affecting quality of service to end-users in the land administration system 53 Based on data both collected from the field visits and obtained from diverse databases at the national level, each of the above mentioned dimensions has been measured by a number of key indicators. Although this is certainly an approximative approach, it allows the establish- ment of a reasonably accurate overall picture with relatively limited resources. It should be noted, however, that the spirit of quality management, and in particular that which is based on the EFQM-model, values self-assessment higher than external assessment. Although the following findings have been established in dialogue with members of the organisation concerned, this inherent methodological limitation and its limiting impact on the capacity of such an analysis in stimulation reflection towards change should not be ignored. 3.3.1 Geodetic framework A geodetic framework, that is in the first place a grid of reliably defined reference points (ground control points), is a pre-condition for establishing sound cadastral mapping. Although most cadastral experts support the principle "monuments over measurements", in an environ- ment like Indonesia where the physical properties of buildings (frequently recommended as boundary markers) are only loosely controlled54 and control reference marks not systematical- ly built for boundary demarcation55, cadastral maps could be helpful as supportive evidence in boundary definition, especially in urban or peri-urban environments where boundary defini- tion by consultation of witnesses will probably become increasingly difficult.56 For any other purposes than establishing rights to land (multi-purpose cadastre) it is obvious that monu- ments are witnesses do not help much for the cadastral data base. In terms of meeting demand, the geodetic framework is closely linked to the question of security, as technically unsound measurements will sooner or later produce the danger of overlapping plots. For a substantial part of Indonesia the grids of triangulation points down to the 3rd order had been established by the mid-1920s, but the system has been largely lost, so BPN in the 1990s started a new effort to establish a nation-wide basic geodetic infrastructure. Unfortunately, the old institutional problem of excluding forest and plantation land from the cadastre (and even from coverage by the geodetic infrastructure) which originates in the colonial time still haunts today's system to the effect, that BPN's jurisdiction only stretches over about 30% of the terri- tory. Of this part about 45% are now covered by the grid of reference points of the second order and about 2,6% by the grid of reference points of the third order. If the sometimes sub- stantial number of excess coverage in certain regions (more 3rd order points established accor- ding to statistics than needed for the grid),is deducted the picture might look even grimmer. Table 5 shows the coverage of the provinces except the metropolitan area of Jakarta with grids of reference points of the 2nd and 3rd order. During the field visits, the survey team's interlocutors from the local Land Offices were ge- nerally not aware of the coverage of their respective areas by triangulation points of the se- 54 In theory, the establishment or modification of a building needs a permit, the IMB, but regulations on this matter are rarely enforced systematically. 55 Sometimes even trees or shrubs are used as boundary marks, like the study team found in Pasaman District (West Sumatra) where this practice leads to frequent conflicts about the boundaries between customary law based tenures. 56 A successfull pilot project for establishing a so called co -ordinated cadastre (where boundaries are defined by co-ordinates) have been run in Malaysia, see Kadir, A.M.bin A., "Towards the Imple- mentation of Coordinated Cadastral System for Malaysia: An analysis of Results of a Pilot Study in the State of Melaka", Paper presented at the Symposium on Cadastral Systems in Developing Countries, Penang/Malaysia 1997 54 cond, third and fourth order. The second and third order points have so far been takencare for by BPN Pusat, so that data on the coverage of the regions visited could be completed from centrally available databases. Points of the fourth order are not monitored on the central level, so no information could be gathered on this matter. The sample presented in Figure 9 below is a reduced one, as figures for the districts of Bogor, Semarang, Pati and Sidoarjo and the muni- cipalities of Bandung, Pekanbaru and Bukittinggi showed anomalies. But basically the picture emerging does not deviate much from the national situation, a basic geodetic infrastructure so far is virtually absent even in not too remote regions of Western Indonesia. Semarang Munici- pality forms an exception, both with regard to the infrastructure in geodetic control points and with regard to some progress in cadastral mapping, as it has been included in the LAP-pro- ject's efforts for systematic registration and institution building. So far no strategic alternative to the completion of the conventional control point grid has emerged and none of the regions visited reported the use of GPS based equipment for sur - veying.57 Cadastral mapping so far covers only slightly over 1% of the Indonesian territory, the team found no instance (except Semarang Municipality) of systematic mapping during its field visits. Coverage by 3rd order point grid 7 0 6 0 5 0 % in 4 0 3 0 Coverage 2 0 1 0 0 Tebo Kutai Pasir Solok Kampar Kendal Kudus Merangin Pasaman Selatan Bungo Lamongan Sumedang Wonosobo Limapuluhkoto MunicipalityMunicipality Tapanuli SawahluntoSemarang Region Figure 9: Coverage of sample regions by 3rd order point grid As a consequence of this situation, surveyor's certificates (surat ukur) cannot bear the number of the cadastral map where the plot should be inserted and remain therefore somewhat provi- sional. This situation is aggravated by the fact, that in the past in many cases adjudication campaigns have been executed as political events before general elections, with high quantitative targets that could only be fulfilled by compromising on the quality of surveying work. The first land disputes arising from these adjudication campaigns from the 80s and 90s now start to emerge. 57 As a contrast, Albania which is economically not necessarily much stronger than Indonesia, when esta- blishing its cadastre in the 90s (supported by World Bank, EU and USAID), invested substantially in surveying and mapping first improving the already established network of geodetic control points, ba- sed on clear strategy. This approach later paid off in much higher quality and efficiency. The strategies have been documented in the University of Wisconsin Land Tenure Center's Albania Series (see Bibliography). 55 Table 5 : Coverage by reference points of 2nd and 3rd order (by province)58 Province Estimate Established Deficit (absolute) Coverage (%) 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd order order order order order order order order DI. ACEH 335 7.355 180 0 155 7.355 54 0,0 North Sumatra 426 9.366 355 366 71 9.000 83 3,9 West Sumatra 255 5.601 191 315 64 5.286 75 5,6 Riau 523 11.493 191 150 332 11.343 37 1,3 Jambi 299 6.562 218 75 81 6.487 73 1,1 Bengkulu 139 3.051 116 160 23 2.891 83 5,2 South Sumatra 620 13.613 291 433 329 13.180 47 3,2 Lampung 203 4.470 218 80 -15 4.390 107 1,8 West Java 455 9.222 466 3.293 -11 5.929 102 35,7 Central Java 320 6.482 311 3.100 9 3.382 97 47,8 D.I. Yogyakarta 32 656 35 730 -3 -74 109 111,3 East Java 457 9.266 470 1.935 -13 7.331 103 20,9 Bali 54 1.098 75 196 -21 902 139 17,9 South Kalimantan 159 3.302 125 140 34 3.162 79 4,2 East Kalimantan 756 15.709 125 350 631 15.359 17 2,2 Central Kalimantan 592 12.292 60 110 532 12.182 10 0,9 West Kalimantan 568 11.792 125 75 443 11.717 22 0,6 South Sulawesi 295 5.608 125 240 170 5.368 42 4,3 Southeast Sulawesi 181 3.441 55 100 126 3.341 30 2,9 Central Sulawesi 299 5.680 105 147 194 5.533 35 2,6 North Sulawesi 126 2.389 125 140 1 2.249 99 5,9 West Nusa 127 3.093 100 80 27 3.013 79 2,6 Tenggara East Nusa Tenggara 292 7.104 125 75 167 7.029 43 1,1 Moluccas 300 6.196 25 0 275 6.196 8 0,0 Irian Jaya 1.600 33.066 25 0 1.575 33.066 2 0,0 Total 9.413 197.907 4.237 12.290 5.176 185.617 Average: Average: 63% 11% 3.3.2 Physical infrastructure Besides the lacking geodetic infrastructure, another major obstacle to improved performance of Indonesia's land administration system are the insufficient office facilities whichdo not only have a negative impact on working conditions of the staff (thereby adversely affecting timeliness of service), but also create serious problems for the proper storage of records, thereby further eroding the reliability of the system. On average, the local Land Offices visi- ted have only 64% of the required minimum office space actually at their disposal, although that deficit varies considerably: The local Land Office for Pati District in Central Java has only 18% of the required office space, whereas Wonosobo District or Sawahlunto Munici- pality have suf ficient office space. In explaining what poor office space means in terms of working conditions (which sooner or later will not fail to influence performance of even the most dedicated staff) probably the photographs from the Land Office of Badung (Figures 5,6) , one of the richest regions of Indonesia, reproduced left and below, are more eloquent than the than the statistics above. 58 Figures of above 100% do not indicate excess establishment of reference points but hints to some persisting areas in the database of BPN Pusat (oral information from BPN staff) 56 Percentage of minimum required office space actually available 100 Kab. Pati Kab. Limapuluh Koto Kab. Wonosobo Sawahlunto Municipality Kab. Pasir 90 Semarang Municipality Kab. Bungo Tebo Kab. Sidoarjo 80 Kab. Kudus Bukittinggi Municipality 70 Kab. Semarang 60 Bandung Municipality Kab.Kendal Kab. Pasaman Kab. Solok Pekan Baru Municipality Kab. Merangin % 50 Kab. Kampar Kab. Lamongan 40 Kab. Tapanuli Selatan Surabaya Municipality 30 Kab. Sumedang Samarinda Municipality 20 10 - TeboKampar KendalKudus Pasir Pati Solok Kab. KotoMerangin PasamanKab. BungoKab. Kab. Lamongan Kab.SemarangSidoarjo Kab. Kab. Kab. SumedangSelatan Wonosobo Municipality Municipality Municipality Municipality Municipality Municipality Municipality Kab. Kab. LimapuluhKab. Kab. Kab.Tapanuli Kab. Baru Kab. Kab. Bandung Bukittinggi Surabaya Pekan Samarinda Sawahlunto Semarang Region Figure 10: Office space available in % of minimum requirement according to BPN regulations The local government of Badung would be easily in a position to provide better facilities and as the la nd market in the area is well developed, this might be a most useful investment for promoting local economic development. The question of adequate facilities is one of the points where the weakness of centralised management of all aspects of the land administration become most obvious. It is precisely the relatively affluent regions which need better infrastruc- ture because of their higher workload in connection with their more developed land Figure 11: The drawing room of Badung Land Office markets. To upgrade all faci- lities at once overstretches the 57 financial capacity of the Central Government. Local Land Offices in the more affluent regions could easily be taken care of administratively by the respective local governments, including the provision of the necessary funds for investments. The quality of record keeping facilities partly depends on sufficient office space, besides the quality of that space (protection against humidity, fire and theft) and the availability of adequate shelves.59 Unfortunately data on storage facilities in local Land Offices are not available at BPN Pusat. There has been some upgrading going on like the programme for equipping local Land Offices with movable archive shelves, sometime also local initiative brings some improvement. Below (Figure 13-Figure 16) the range of storing facilities observed during the field visits can be seen at a glance. Figure 12: Another office room in Badung Land Office Figure 13: Simple but organised shelves and n Figure 14: Movable shelves for record storage effort towards proper maintenance of record (Sidoarjo Land Office) volumes (Lombok Barat local Land Office) 59 The quality of record keeping as a whole is , of course more complex, as questions of organisation and budgeting (inadequat e funds for physical maintenance of records etc.) enter into consideration. In this section the physical infrastructure is focussed upon. 58 Figure 15: A storage room for land records in Badung Land Office 3.3.3 Measuring equipment Cadastral surveys in the Land Offices visited use theo- Figure 16: Another storage room for dolites when high precision is required, , but in many records in Badung Land Office cases also simpler measuring equipment is used. Inci- dences of use of technologically advanced equipment like total stations were not found. Servi- cing of measuring equipment tends to be difficult outside major cities. 3 5 0 , 0 2 5 3 0 0 , 0 2 0 2 5 0 , 0 1 5 2 0 0 , 0 1 5 0 , 0 1 0 1 0 0 , 0 5 50,0 0,0 0 T a p a n u l i L o m b o k B a r a t S u m e d a n g S e m a r a n g K e n d a l K u d u s L a m o n g a n S e m a r a n g S e l a t a n M u n . Ratio deeds/staff staff/theodolite Figure 17: Staff efficiency and ratio of staff per theodolite for selected local Land Offices No clear influence of the relative number of theodolites (in Figure 17 represented as number of staff for every theodolite in a local Land Office, thus high values representing less adequate equipment) in a land office on its efficiency (annual number of deeds/staff) could be esta- blished. It is not clear, however, whether this means, that other factors are the major obstacles to increased efficiency for land offices where it remains low, or whether this unrelatedness is 59 caused by varying degrees of preparedness to compromise on the quality of surveying, a point made by some of the teams' interlocutors. Whether or not current measuring equipment is suf- ficient or not and what are the technological choices and their financial implications for the future can only be determined after a serious debate on the quality requirements for surveying and their enforcement. 3.3.4 Computerisation There are different models of computerisation of land offices. The BOGORDECLARATION (Tech- nicalOptions, section 8.5.2) sees a stepwise transition were computerisation progresses from simple alphanumerical data processing towards graphical databases and automatic mapping: It is likely that emphasis will be given first to the computerisation of indexes, then to textual data sets, moving through graphical data conversion, the esta- blishment of the fundamental spatial data bases and ultimately leading to an automated mapping capability. Malaysia's cadastral system currently embarks on an ambitious computerisation drive60, consisting of an integrated Cadastral Data Management System which mainly consists of · the Computer Assisted Land Survey system (CALS) used to build a digital cadastral database (DCDB) · a Quality Assurance System for the checking of out-sourced data before they enter the DCDB · a Document Image Management System (DIMS) for the establishment and maintenance of a Document Image Library where digital images of legal survey documents that show graphical and textual information of lots are stored · a Counter Service System (CSS)for dissemination of digital spa tial data to end-users. The situation found at the field visits in the sample regions in Indonesia showed a different picture · A few local Land Offices (Semarang District, Sidoarjo) which participate in the LOC (Land Office Computerisation) Programme are equipped with high performance HP-servers and PC- workstations and try to process all information - textual as well as graphical - with that system. Figure 18: Server room in Sidoarjo Land Office 60 On Malaysia's computerisation drive in land administration see Zain bin Mohd. Yusof, N.M., "The National Infrastructure for Land Information System (NALIS) - Applying Information Technology to Improve the Utilisation of Land Data in Malaysia", paper presented to the Symposium on Cadastral Systems in Developing Countries, Penang/Malaysia 1997, and Mohamed, Dato A.M.B. et al., "Cadastral Reforms in Malaysia", paper presented to the 21st FIG Congress, Brighton, 1998 60 · The bulk of local Land Offices has a few PCs used basically to do typing work. Although at first sight the solution introduced by the LOC seems to be a very progressive one, the team's interlocutors advanced numerous complaints about the practical implications of having to use that system: · The system needs 24h/day air conditioned environment, expenses for electricity are a considerable burden for the Land Office's budget · As for each workstation connected to the server software license fees have to be paid, the number of workstations (terminals) for data input have to be limited, to the effect, that for example in Semarang District operators work in three shifts day and night to make full use of the limited number of workstations connected to the system · The system is frequently down and service is only to be obtained from Jakarta, in difficult cases even Singapore. Telecommunication expenses alone for calls on the service hotline are prohibitive. · As system administrators only experienced UNIX specialists can be used, which poses a serious human resources problem. By and large, even those who have "mastered" the system (like in Semarang District) are not particularly happy with it. The "small scale computerisation" going on in most Land Offices usually with stand alone PCs, although normally not yet leading to digital capture of neither textual nor graphical cadastral data, still can contribute to enhanced efficiency by · semi-automatic production of certificates: data filled in a mask, transferred into the certificate form and printed out · simple customer information systems (see Section 4) · making typing work easier · e-mail communication The technological "big leap forward" does not seem to be feasible in the short run. Although some Land Offices have remarkable achievements to their credit (like the self-designed and programmed customer information system in Semarang district and Semarang Municipality and even some GIS applications), this is normally the work of a few talented autodidacts ra- ther than the result of systematic development. A typical local Land Office from the sample visited would have five PC-units, i.e. one for each unit, without a LAN and a few peripherals. The true problems might be even bigger than the statistics suggest, as cases like in Solok, where of the few computers procured not all are operational because of maintenance problems and even the number operational surpasses the number of qualified operators might not be isolated ones. At the other end of the scale (yet not be part of the "pioneer" group in compu- terisation) there are Land Offices like Lombok Barat with an average of two PC-Units per di- vision and a fair degree of use in daily administrative routine. 61 1. Procurement of a limited number (at least one, better two for each unit) of PC of reasonable quality, with simple periphery (printers, scanner, modem), with a set of commercial off-the shelf software: Windows 2000 or Windows NT operating system (to prepare for future network solutions and to familiarise staff with basic safety standards from the outset), MS Office application software and - for one or two workstations, a mapping software (e.g. AutoCad) Training of an adequate proportion of staff for essential computer literacy 3. Computerise typing work, building simple databases, e.g. for stocktaking 4. Training of a limited number of staff as future system operators (as preparation for introduction of LAN) 5. Establishing LAN (server based if local situation with regard to funds, human resources and service infrastructure allows, otherwise peer-to-peer), upgrading periphery Establish a tracking system for requests and a simple Customer Information System for the status of re- quests 7. Start to establish databases for indexes of parcels and for textual information 8 ff. Process graphical information: Document Image Library, Digital Cadastral Data Base, automatic mapping, GIS etc. Figure 19: Phased approach for Land Office computerisation A phased approach for low cost initial computerisation adapted to the situation of the average Land Office (a few Land Offices like Semarang Municipality and Semarang District might be more advanced) visited could progress along the lines shown in Figure 13. It should be noted, however, that the pattern explained here does not include other preparatory steps (especially 62 for the latter steps 7, 8), that me be more time and money consuming than the actual compute- risation. The land offices visited covered the whole range of the above described steps towards compu- terisation. Approaches difficult to implement because of their technical sophistication and un- likely to produce tangible results in a reasonable delay are definitely not the state of the art in computerisation of cadastral systems in developing countries.61 Even in industrialised coun- tries, e.g. for building the National Integrated Land System62 the use of commercial off-the shelf software and PCs are increasingly seen as an effective and economical option. 3.3.5 Vehicles Among the hardware important for satisfactory service delivery by local Land Office are vehicles, as field visits for surveying tend to be extremely time consuming if the BPN staff has to rely on public transport, especially in rural areas. Vehicles owned by local Land Offices 16 14 12 10 8 6 4 2 0 Pati PasirSolok Kab. Koto Kudus Kab. Kab. Kampar Kab. Semarang TeboMerangin Kendal Sidoarjo Municipality Municipality Lamongan Kab.Municipality Municipality MunicipalityKab. Kab. Municipality Limapuluh Kab. Kab.Tapanuli Kab. SelatanWonosobo Kab.PasamanBungo Municipality Kab.Kab. SumedangKab. Baru Bandung Kab. Surabaya Sawahlunto Kab. Bukittinggi Pekan Samarinda Semarang 4 wheeled vehicles 2 wheeled vehicles Total number of vehicles Figure 20: Number of vehicles owne d by local Land Offices To go into more detail on the issue of vehicles (establish ratios between number of vehicles, total surface of area covered, accessibility, number of technical staff etc.) would most probab- ly not lead to much more than "imagined objectivity", suffice it to say that almost unisonously 61 See Hawerk, W., "Cadastral Systems in Developing Countries - Technical Options", paper presented at the FIG's Symposium on Cadastral Systems in Developing Countries , Penang,/Malaysia, 1997 62 A consortium of federal, state, local government and private sector representatives, led by the U.S. Department of the Interior Bureau of Land Management (BLM), the U.S. Department of Agriculture Forest Service (USF S), Oakland County, Michigan, and Fairview Industries, in co-operation with Environmental Systems Research Institute (ESRI) trying to develop a common data model and tool set for managing land records. The goal is to facilitate the collection, management, and sharing of essential cadastral information across all levels of government and the private sector [extracted from the vision statement on NILS homepage] 63 the teams' interlocutors cited the lack of vehicles as an inhibiting factor for a more speedy sur- veying and the figures recorded suggest that their complaint may be well founded. Apart from Sidoarjo and Kampar, two fairly rich districts, only municipalities enjoy a rela- tively big number of vehicles, especially four wheeled ones. Lamongan with difficult terrain, or Pasaman, Solok and Sumedang with considerable travel time to the remoter parts of the area would be in more urgent need. 3.3.6 Human Resources Apart from the hardware, also human resources are a formidable problem for Indonesia's land administration system. This was confirmed by the management of virtually every local Land Office visited. The general level of education (see Figure 21 below) is relatively low for an institution with a task as technically demanding as the one shouldered by BPN. What is even more problematic is the virtual absence of qualified63 surveyors from many local Land Offi- ces. From the roughly 30% of BPN staff in the sample regions that had a tertiary level of edu- cation, only about 7 % had specialised in geodesy or related sciences (Figure 23). In 30% of the local Land Offices there was no qualified surveyor at all. Most of the higher qualified non-technical staff were graduates from the law faculties of va- rious universities. The BPN run Highschool for Land Administration (STPN) in Yogyakarta and a number of land administration academies now defunct only to a quite limited degree contribute to the staffing of the land administration system, their share being 25% of staff with tertiary education level (see Figure 22), whichmeans roughly 7,5% of total staff. Level of general education Master Degree and Junior High School or above lower University B.A./B.Sc. 0% 16% 19% Vocational School 10% Academy 10% Senior High School 45% Figure 21: Level of general education Although an important step forward, the accreditation of licensed surveyors will probably not 63 Qualified in this section means engineer level. This is not to imply that surveyors below that degree are unqualified. 64 bring a remedy to the shortage of qualified technical manpower in the short run. Up to now the total number of licensed surveyors remains below 200 and only very limited activities were reported by the survey team's interlocutors in the sample areas. Moreover it remains un- clear how with their very limited resources of qualified technical staff BPN could assure effective supervision of private sector surveyors. The shortage of qualified surveying, map ping and land administration staff is a problem that may be easier to address if inter-institu- tional co-operation with BAKOSURTANAL were increased. Percentage of staff with tertiary education Municipality Municipality Municipality Municipality Municipality Municipality Municipality Selatan Barat Tebo Kampar Bandung Merangin Kendal Pekanbaru Surabaya Lamongan Sidoarjo Kudus Bungo Wonosobo Pasir Samarinda Tapanuli Badung Pati Kutai Solok Bukittinggi Sumedang Semarang Pasaman Semarang Lombok Limapuluhkoto Sawahlunto 60 50 40 30 20 10 0 Figure 22: Percentage of sample Land Offices staff with tertiary education Human resource development is one of the areas which could be a focus of future BPN Pusat activities. Apart from rethinking the role of the Highschool for Land Administration, systema- tic co-operation with private survey- Fieldoftertiaryeducation Geodesy, ors, BAKOSURTANAL and univer- Cartography sities will be important. But to bring Others 7% LandAdm- about improvements an internal mo- 27% inistration dular competence based training and Sciences skill recognition system needs to be 25% introduced as soon as possible. The regional distribution of staff with tertiary education did not display any Law obvious patterns along Java/off-Java, 41% district/municipality, rich area/poor Figure 23: Field of tertiary education area lines. This does not mean, how- ever, that there will be no problems in the future, as the particularly unattractive remote districts of Eastern Indonesia did not form part of the sample. With regard to administrative seniority (i.e. not the structural rank, but the 65 Civil Civil Civil Civil service service service service grade I grade IV grade I grade IV 5% 1% 11% 4% Civil service grade III Civil Civil 38% Civil service service service grade III grade II Bogor District Land Office grade II 42% 56% 43% Limapuluhkoto District Land Office Figure 24: Composition of staff in terms of Civil Service grades in Bogor and Limapuluhkoto Land Office grade on the I-IV scale of the Indonesian Civil Service) small local Land Offices tend to have a composition superior in grad to that of big ones, as for the structural leadership positions (which are limited in number, regardless of the size of the office) for all offices the same requirements apply. The offices of Limapuluhkoto/West Sumatra (smallest office in the sample) and of Bogor (biggest office in the sample) may illustrate this point. In terms of international benchmarking, Indonesia ranks fairly low among the countries sur- veyed by an FIG working group some years ago64 as the indicators of professional surveyors, technician surveyors and lawyers/solicitors active in the cadastral system per 1 million inha- bitants (in full time equivalents) show: Figure 25: Number of professional surveyors active in the cadastral system per 1 million inhabitants Figure 26: Number of lawyers/solicitors active in the cadastral system per 1 million inhabitants 64 Steudler et al., loc. cit. For a list of countries participating in the survey (list of abbreviations used in Figure 14) see Annex 2 66 Many professionals, especially those aspiring to climb up somewhat on the career ladder, worry about the reduced career opportunities for land administration staff under decentralisa- tion, as it may not only become difficult to rotate to a higher rank in another area, but there may also be increased competition for managerial positions from civil servants of other local government agencies. Such a development could also worsen the quality problem in the field of human resources by blocking the road to exchange of experience and personal development for professionals and managerial staff. When working out guidelines for minimum require- ments for Land Administration staff, it might therefore be a good idea to make them open enough to attract some qualified staff from other agencies but at the same time specific enough to make the qualifications of BPN staff a sufficient comparative advantage as to ensure their ability to apply successfully for out of home area jobs. Such guidelines could also be used as a leverage to stimulate interest in technical further training, rather than continuing the past strong focus on administrative courses, which used to be more popular as they formed an important requirement for promotion. 3.3.7 Managerial issues Managerial issues treated in this section include the very basic regula tory issue of BPN's (lacking) authority over forest lands (Section 3.3.7.1), the partnerships with the village ad- ministration (Section 3.3.7.2) and the Land and Building Tax Office/KPBB (Section 3.3.7.4), and the leadership problems created by the ill-designed chain of command (Section 3.3.7.7). Problems affecting the processes adjudication, mutation and consolidation treated here are conflict resolution (Section 3.3.7.5) and corruption (Section 3.3.7.6). 3.3.7.1 Authority over forest lands The degradation of forests, one of Indonesia's most precious natural resources, under the inef- fective forest management of the New Order administration is one of the most sinister aspects of that period. But beyond that problem, which is not the topic of the present study, major policies for the forestry sector also adversely affected the land administration system. In 1967 the Basic Forestry Law was promulgated, which in the eyes of forestry experts, "subverted" the Basic Agrarian Law.65 The regulations of this (and likewise the new forestry law, enacted in 1999) produce the absurd situation, that roughly 70% of Indonesia's land is under the au- thority of one poorly controlled agency, the Ministry of Forestry/Ministry of Forestry and Es- tate Crops. What is more significant for the cadastral system, is the de facto exclusion of the forest lands from the country's cadastre, as BPN surveyors are normally denied access to fo- rest lands, including plantations of the public PERUMPERHUTANI estate company. This situation makes for example in Kendal District/Central Java (with about 13% of total surface covered by plantation forest) conflict resolution between estates and the surrounding population immensely more difficult (Kendal is the most land conflict ridden district of Cen- tral Java with 9 hot spots of looting of plantations), as the cadastral situation is almost impos- sible to establish. The local government suspects that the teak plantations owned by the cen- tral government have considerable exceeded the boundaries of the lands rightfully theirs. The local government expects the future Dinas Pertanahan to identify such lands and issue certifi- cates for its tillers that can generate tax income for Kendal District. The Wonosobo District (another field survey region in Central Java) local assembly recently convened a Java/Madu- 65 Blomkvist, L.-G.A./Djuwadi, Forest/Non -Forest Land Issues in Indonesia. Report for Land Adminis- tration Project - Part C (IBRD Loan No. 3792 - IND). Jakarta: BAPPENAS(2000) , p. i. 67 ra-wide conference of local assemblies to discuss the possibility of developing a common at- titude of the districts and municipalities in dealing with PERUMPERHUTANI. Semiloka Temu Inisiatif DPRD se-Jawa dan Madura Perhutani Tak Memberi Manfaat bagi Daerah Wonosobo, Kompas Kehadiran Perum Perhutani di daerah dinilai tidak memberikan manfaat bagi perkembangan daerah dan kesejahteraan masyarakat. Partisipasi perusahaan milik negara ini masih sangat rendah. Dengan spirit otonomi daerah, saat ini berkembang pemikiran mengenai status Perhutani di Jawa. Apakah masih dapat dipertahankan, atau dilikuidasi menjadi Dinas Kehutanan Kabupaten. Bahkan muncul pemikiran ekstrem, Perhutani sebaiknya dihapus saja. Demikian benang merah yang muncul dalam Semiloka Temu Insisiatif DPRD se Jawa dan Madura yang berlangsung atas kerja sama DPRD Kabupaten Wonosobo dengan Forum Komunikasi Kehutanan Masyarakat. Semiloka yang berlangsung hari Jumat-Sabtu (16-17/3) diikuti 90 Ketua DPRD II se Jawa dan Madura, serta lembaga swadya masyarakat. Menurut C Krustanto, ketua penyelenggara yang juga Ketua Komisi B DPRD Wonosobo, semiloka dengan topik Pengelolaan Sumber Daya Hutan Lestari, Adil dan Demokratis dalam Era Otonomi Daerah ini merupakan pertemuan keenam. Munculnya pemikiran ekstrem yang menghendaki Perhutani dihapus antara lain karena selama ini Perhutani bersikap tidak adil dalam pembagian manfaat dengan masyarakat dan pemerintah daerah kabupaten. Menurut San Afri Awang, Dosen Pascasarjana Fakultas Kehutanan Universitas Gadjah Mada (UGM), dalam praktiknya pengelolaan fungsi hutan selama ini ditetapkan pemerintah pusat sehingga cenderung mengatur pemanfaatan hutan berdasarkan kepentingan dan pembagian kekuasaan "orang - orang Jakarta" dengan menghilangkan makna fungsi hutan untuk kepentingan rakyat banyak. Awang juga menyoroti penjarahan hutan yang belakangan ini marak, dan Perhutani tidak melakukan upaya yang lebih demokratis atau lebih simpatik guna menyelesaikan masalahnya. Data menunjukkan, kerusakan dan perusakan hutan selama ini menyebabkan 73 juta hektar hutan di Tanah Air rusak. Area hutan yang rusak itu luasnya sama dengan empat negara Eropa. Ciri khas Pokok-pokok Semiloka menyoroti aspek pengelolaan sumber daya hutan di Jawa dan Madura oleh Perhutani yang sentralistik dan hanya berorientasi pada hasil hutan kayu yang lazim disebut paradigma timber management. Paradigma sejak zaman kolonial harus diubah menjadi paradigma forest ecosystem management (FEM) yang lebih mengutamakan konservasi dan perlindungan sumber daya hutan. Dari aspek hukum dalam pelimpahan wewenang dan pelaksanaan pengelolaan sumber daya hutan (PSDH), daerah mengalami banyak hambatan karena adanya ketidakselarasan dan pertentangan peraturan perundangan. Untuk mewujudkan otonomi PSDH, semiloka mendesak agar Peraturan Pemerintah (PP) Nomor 53/ 1999 tentang Perusahaan Umum Hutan Negara (Perhutani) dan UU Nomor 41 Tahun 1999 diamandemen. Untuk menanggulangi gangguan keamanan hutan yang makin marak di Jawa dan Madura, semiloka berpendapat agar dicari cara penyelesaian melalui dialog terbuka dengan pihak terkait. Dalam hal ini Perhutani harus meningkatkan kerja sama dengan pemerintah kabupaten. "Tidak seperti sekarang jika diundang ke DPRD, Perhutani lebih memilih tidak datang menghadiri forum yang membahas pengelolaan PSDH," ujar Krustanto mengomentari sikap Perhutani di daerahnya. (Kompas, 19-3-2001) Figure 27: Report in the national daily KOMPAS about the all Java and Madura Conference of local assembly chairpersons to discuss the management of forest resources under decentralisation (reproduced from: LAP-C Hot News No. 140 Vol. IV March 27, 2001) Whatever the outcome of this conflict may be, the inclusion of all forest land into the national land registration system is a basic necessity for the development of Indonesia's land resources management. As the Ministry of Forestry has not only less resources to do the surveying and has already produced a major scandal with its outsourcing efforts66, it seems to be an obvious 66 The timber tycoon Mohammad "Bob" Hassan, a notoric crony of former president Suharto, was jailed in March 2000 on charges of corruption in connection with the photogrammetric surveying and mapping 68 solution to transfer both the surveying and registration of forest lands to BPN, with technical details to be negotiated between the central government and the regions and fixed in one of the Government Regulations to be promulgated soon on the details of decentralisation in the land administration sector. 3.3.7.2 Development Planning of Local Land Offices Some local Land Offices have established quite well designed planning and monitoring sys- tems. The office in Lamongan District/East Java has had regular planning and evaluation exercises for each budget year with precise targets for each section, and has also established such a working plan and a budget proposal for the Fiscal Year 2001, when it should have al- ready been transformed in a Dinas Pertanahan. Others, like the Lombok Barat District local Land Office, have at least established a budget proposal for submittal to the local government and assembly. In Kutai Kertanagara District/East Kalimantan, the local Land Office together with the local government established a development strategy, including broader purpose (en- hancing attractiveness of the region to investors) major undertakings (cartography and land registration) and technological choices (GPS). 3.3.7.3 Involvement of village administration In many regions the teams visited, grievances about the collaboration with the village admi- nistration were voiced: · many local Land Offices complained that village officials act as go-betweens to handle applications for land certification, frequently charging exaggerated fees and blaming it on BPN officials · in Lombok Barat even if the applicants deal directly with the local Land Office, the vil- lage administration staff would not give the signature required by the Government Regu- lation 24 of 1997 on Land Registration (PP 24/1997 Tentang Pendaftaran Tanah) · local governments, especially the Dinas Pendapatan Daerah (Dipenda = Local Public Revenue Agency), are unhappy with land transfers not involving the village administra- tion, as this tends to make it difficult to trace absentee land owners for levying the Land and Buildings Tax (PBB). Press reports confirm, that these findings are not isolated cases. Although the Government Regulation No. 24 of 1997 on Land Registration (PP 24/1997 Tentang Pendaftaran Tanah) provides an adequate regulatory framework in terms of the processes described, the dualism in the line of command (local Land Office under the central government, village administra tion under the local government) so far prevented effective implementation. One of the most obvious consequences of these problems are the increase in the backlog of PBB collection, as the example from Kudus District/Central Java in Figure 28 illustrates. project for forest areas in Kalimantan on behalf of the Ministry of forestry (see Kompas on-line, March 30, 2000) 69 300 250 200 Backlog in PBB collection in150 million IRP 100 50 0 1996 1997 1998 1999 Urban areas Viallages Year Figure 28 : Development of backlog in PBB collection in urban and rural areas of Kudus District/Central Java (1996-1999) With the decentralisation of land administration a unified supervision of all the institutions involved in land administration at the working level (the Dinas Pertanahan and the village administration are both under the Bupati/District Head) is established and thus the framework for a better management created. In addition, as village heads are normally directly elected by the population an element of direct accountability at grass-roots-level might also strengthen the motivation of the village administration to collaborate with the local Land Office/Dinas Pertanahan to provide better land administration services to the population. That this is not a mere theoretical reflection is shown by the village officials' determined action to defend the newly established Dinas Pertanahan in Pati District and their warning, that they might strike again if quality of service delivery should leave to be desired in the future (see newspaper re- port reproduced on page 22 above). 3.3.7.4 Data exchange with Land Tax Offices (KPBB) The separation between the title register and the fiscal cadastre in Indonesia reaches back in the colonial period. The Land Tax Offices (Kantor Pajak Bumi dan Bangunan/KPBB) are under the Ministry of Finance and will therefore not automatically be decentralised. What could be a strategic partnership for improving at the same time the cadastre and tax revenue, in practice takes on many different shades between cordial collaboration and mutual fencing off. Whereas · the local Land Office in Badung District/Bali complains about zero co-operation from the KPBB's side and · the local Land Office in Lombok Barat/NTB deplores the fact that in spite of regular data flow to the KPBB that institution just doesn't improve its messy data management, 70 · in Semarang District the backlog in not yet collected PBB amounts to almost 900 million Rupiah there are also positive examples like · in Kendal, where collection of PBB has been delegated to the local government whose value assessment and land data base prevail over those of the KPBB67 · in Semarang Municipality, where a joint information system involving both the local Land Office and the KPBB is currently established A unified database of the BPN and the KPBB cadastres would yield · a more complete data set for both especially for the local Land Office/Dinas Pertanahan a quick expansion of their database, although in a rough form could be achieved, sometimes in terms of large scale maps · transparency with regard to tax revenue · transparency between region and centre 80 70 60 50 % 40 30 20 10 0 Pati Badung Mun. KudusKendal Solok Barat Mun. Bogor Pasir Kutai Mun. Mun. Mun. Mun. Tebo Kampar Sumedang SidoarjoSemarang Mun. Wonosobo SelatanLamongan Pasaman Merangin Bungo Semarang Lombok Bandung Surabaya BukittinggiPekanbaru Limapuluhkoto Sawahlunto SamarindaTapanuli PBB+BPHTB share in total locally generated government revenue 98/99 Figure 29: Land related revenue's share in total locally generated revenue The issue is urgent, as the share in PBB and BPHTB constitute an important proportion in overall locally generated income (PAD = Pendapatan Asli Daerah) of the regions 68, as is 67 For legal reasons, the formal invoice where the amount of tax owed is stated, is still issued by the KPBB in Semarang. 68 In some cases another land related revenue item, the fee collected for granting rights on government land (Pemberian Hak atas Tanah Pemerintah) can yield considerable amounts of income too, like in 71 shown in Figure 29 above. Except in a few cases where extraordinary income from sources like tourism (like in Badung/Bali) boost the local taxes, the PBB and BPHTB tax share forms a very substantial part of local government revenue. As a consequence, a broadening of the tax base by more complete coverage of parcels and transactions and improvement of collec- tion efficiency by more precise, reliable and trans parent data could have a considerable posi- tive impact on public finance. 3.3.7.5 Conflict resolution Processes of land surveying and registration as well as land use rights allocation frequently demand a measure of conflict resolution. The conflicts occurring in that context can be rough- ly categorised as follows · Errors by authorities: Sidoarjo District/East Java local Land Office has a long list of unre- solved conflicts (19 by late 1999), part of it caused by erroneous surveying or registering. · Abuses by authorities: BPN involved in scams where companies obtain lands by coercion, State companies or military units using their position of power to advance their interest in land rights at the expense of local peasants · Differences in legal perception: between authorities and tenants, like the case of eigendom verponding in West Jakarta, where tenants in terms of formal legal requirements have foregone their rights to the land they occupy, but these formal legal requirements were un- known or not acceptable to the majority of the population · Competing claims: When different parties from civil society claim a certain piece of land in court, or the right of local informal leaders of giving adat land to a third party is accep- ted by part of the community but rejected by another part (like in the earlier described case of Pasaman/West Sumatra) As the Indonesian land registration system is so far no title system (the state does not guaran- tee a registered title), particular accuracy in recording and monitoring conflicts is required, as otherwise the register is worthless for potential investors or individuals willing to purchase land. Some local Land Offices keep track of conflicts, others don't, a unified standard could be helpful. Although it appears from the interviews conducted, that there is no intention of assigning an active role as mediator in land conflicts to the local Land Offices/Dinas Perta- nahan, accurate information will be a precious contribution to conflict resolution. 3.3.7.6 Corruption Land rights are, as Wallace points out69, not a relationship between persons and plots of land, but rather more precisely relations between humans which determine who will be allowed to do what with which pieces of land by his or her community. Land rights are thus power rela- tions. Making a politically poorly controlled and grotesquely underpaid bureaucracy the ar- Semarang Municipality, whe r this item yielded 1,6 billion Rupiah in 1998/1999 Fiscal Year, or roughly 2,5% of total locally generated income, but such cases are not frequnt enough to merit inclusion into broader analysis. 69 Wallace, J., "A Methodology to Review Torrens Systems and Their Relevance to Changing Societies from a Legal Perspective" Paper presented at the UN and FIG's International Conference on Land Tenure and Cadastral Infastructures for Sustainable Development, Melbourne 1999, p.9 72 biter in the management of those power relations amounts to a virtual invitation to have the universal currency of power - money - converted into a more specific form of power, i.e. land rights. Under the conditions of no democratic control over the bureaucracy (a state of affairs which has started to change) and the distorted remuneration scheme for civil servants (which has not yet changed meaningfully) abuses of all kind have not been a deviation from the norm, but rather an in-built element of the system.70 Only transparency and empowerment of both civil society and civil servants can substantially change this situation, occasional crusades are doomed to failure, as repeated efforts in this direction have demonstrated. Corruption in land administration has a long history, and part of this history is the capacity of such abuse to stir social unrest. Already in the early years of the implementation of the Basic Agrarian Law the already tense political situation in the Javanese countryside deteriorated further due to such practices.71 Even before the start of Land Reform, the process of the state bureaucracy ascending to a position of ever more overwhelming power in administering land resources since the take over of Dutch plantations in 195772 started to bring its share of abuse. These problems persist and were aggravated by the many cases of expropriation of peasants by force and fraud during the New Order era. As in direct conversation with their different interlocutors the field teams were only told in very vague terms about problems of abuse, this section is based on additional research in other sources, primarily press reports. An across the board evaluation of sources available on this point being beyond the scope of this study, one of the provinces visited ­ East Java ­ has been selected as a sample. This selection was based ­ apart from technical considerations like the easy availability of sources ­ also on the fact, that East Java has been termed a model re- gion in terms of its land administration system's performance. As the subject tends to be sen- sitive, such a selection could help to avoid the impression that a particular problematic exam- ple has been picked to support a biased view on the issue. It should also be pointed out, that the authors do not pass any moral judgement on the perpetrators of certain irregularities. While it is true that certain parts of the bureaucratic elite, including that from the land admi- nistration system, indulges in a flamboyant lifestyle most probably financed by illegal reve- nue73, the endemic corruption as a whole is a quite complex sociological phenomenon. As far as it is committed in order to merely compensate underpayment (to achieve levels of income congruent with market prices), the illegal fees could even be interpreted as an undeclared tax levied by the government to sustain its apparatus.74 70 For a brief discussion of this combined budgetary, economic and cultural phenomenon see Sundhaus- sen, U. "The Military: Structure, Procedures and Effects on Indonesian Society", p.54 f. 71 See Sulistyo, H., Palu Arit di Ladang Tebu. Jakarta: Kepustakaan Populer Gramedia (2000), p. 152 72 For a general discussion of the Indonesian economy of that period and the role played by the plantation sector in it see Mackie, J.A.C. "The Indonesian Economy 1950 -1963" in B.Glassburner (ed.), The Eco- nomy of Indonesia. Selected Readings. Ithaca/New York: Cornell University Press (1971), pp.16-70; Robison pointed to the strong position that the military assured in a development that was called the "decline of constitutional democracy" by Herbert Feith (Feith, H., The Decline of Constitutional Demo- cracy in Indonesia. Ithaca/New York: Cornell University Press [1962]) and in particular vis-à-vis the state corporations into which the Dutch companies, including the plantations, had been transformed (Robison, R. Indonesia: the Rise of Capital. Canberra: Asian Studies Association of Australia (1986), especially Chapter 3) 73 On the Purnomo case see "Cases in Surabaya"-section in the documentation on irregularities contained in Vol.II 74 This view is supported by two factors: 1. the unwillingness of the government for decades to take any serious steps to curb such practices; 2. the fact, that the amount of illegal payments demanded depends not in the first place (or at least not exclusively) from the kind of service demanded but from the estimated wealth of the person demanded to pay. 73 Lest the impression of injustice emerges, it has to be pointed out that · The cases listed in Table 6 are reported in the press (so a "yes" in the Indication for cases column means "there are press reports about irregularities"), it was beyond the scope of this study to ask for the opinion of the parties involved, so all case descriptions in the last column have to be read with "allegedly...." · Not all the cases involve corruption, some have to do with other irregularities · Even where abuse has obviously occurred, it is rarely exclusively to blame on BPN (nor- mally BPN guilty of irregularities acts as complices of village officials etc.) · BPN (especially BPN Pusat) has made some effort to correct past injustice like in the Sumberpetung75 case However, it would not be equally mistaken to belittle the problem, even top officials at nume- rous occasions called for change, like the former Minister of Land Affairs and Head of BPN (Menteri Negara Agraria/Kepala BPN) Soni Harsono, who offered those officials wishing to get a "wet assignment" (jabatan basah = Indonesian metaphor for a government job that of- fers plenty of opportunity to obtain illicit revenue) to personally throw them into the sea (see report in online edition of regional newspaper Jawa Pos reproduced in Figure 30). Table 6 : Cases of irregularities in East Java districts and municipalities Indication Short description Region for cases Kodya Surabaya yes Manipulation of certificate in the Yahya Sumarno case, attempt to extort bribes in Gunung Anyar case and others Kodya Mojokerto yes Case of village land in Gunung Gedangan sold by village head Kab. Gresik yes Manipulations involving government land in Sumengko village and other places Kab. Mojokerto yes Investigation of local assembly and local government into illegal fees levied by local Land Office staff, especially from entrepreneurs and people of Chinese descent Kab. Sidoarjo yes Fictive certificates used as collateral Kab. Jombang yes Case of land at Ceweng village, where BPN was perceived of not giving adequate protection to rightful owners Kab. Bojonegoro yes Complaints about absenteeism of Head of local Land Office slowing down the processing of application, unspecified cases of BPN staff "cheating" (main curang) Kab. Lamongan yes Cases of cement mill in Karangkembang village, "Solo Valley" Kab. Tuban yes Cases in Kerek, Siwalalan, Tasikmadu etc. Kodya Kediri no Kodya Blitar no Kab. Kediri yes Head of local Land Office refuses transfer to new assignment in NTT; BPN staff caught gambling by Nganjuk police Kab. Blitar yes Case of Dukuh (hamlet) Bulu, where certificates for land was given to another village after manipulation of documents Kab. Nganjuk yes Delay in processing certificates in Nglawak village Kab. Tulungagung yes Surveyors of local land offices accused of extorting money from villagers participating in systematic registration Kab. Trenggalek yes According to local assembly members, BPN fails to show any attention for the land cases in the districts, files have been submitted to BPN T renggalek but no specific cases are given Kab. Bondowoso yes One case of BPN staff asking for an outrageous advance payment for sporadic registration, then embezzling the money, several cases of village officials 75 On the Sumberpetung case see reports from JAWA POS online 25.1.2000, 2.2.2000,30.3.200 reproduced in Vol.II of this report. 74 registration, then embezzling the money, several cases of village officials cheating in PRONAswadaya schemes. Kab. Situbondo no Kab. Jember yes Sukorejo case, villagers protest plan to alienate their lands for a shooting range Kab. Banyuwangi yes Irregularities in connection with the extension of the land use permit for PT Makarti company; although the decision itself was taken by the KANWIL in Surabaya, at an early stage the local Land Office must have been involved Kodya Madiun no Kab. Madiun yes Mass certification scheme in Mruwak village in an impasse, suspicion of em- bezzlement, BPN accuses village head as exclusively responsible Kab. Ngawi yes Kendung village case: village land taken as private property by former village head, BPN reluctant to revoke illegal certificate Kab. Magetan yes Case of government land sold to local civil servants for housing, some senior officials having bought more then one parcel Kab. Ponorogo yes Case of government land given to local senior civil servants for a token fee, BPN suspected of having supported cover up Kab. Pacitan no Kodya Malang yes Case of Kalisari government land issued private property certificates; extra- ordinary personal assets of present and former Head of local Land Office Kodya Pasuruan no Kodya Probolinggo no Kab. Malang yes Manipulation of a certificate in Hotel Purnama case; irregularities in issuing a commercial use (HGU) cerificate for village land in south Malang to state plan - tation PTPN XII/Kalibakar, intransparence during conflict resolution efforts Kab. Pasuruan yes Case of "double certificate" in Sukorejo, "Alastlogogate" case (land of villa- gers registered under the name of an outsider individual Kab. Probolinggo yes Local Assembly deplores obstructive attitude of BPN in elucidating the Paiton sugar factory land case; BPN gives government land to well-to-do outsider and has long term squatters evicted Kab. Lumajang yes BPN staff acting as go-between for land certification yes Majungan case: BPN staff suspected of illegally issuing certificates for govern- Kab. Pamekasan ment land to outsiders Kab. Sumenep no Kab. Sampang yes High proportion of applications for certification rejected by BPN because of village heads hiding or embezzling the "Buku C" (village fiscal cadastre) Kab. Bangkalan yes Illegal fees collected by BPN staff for mass certification scheme in Martajasah village The above cited cases display several different patterns of unlawful practices76: 1. Manipulation of certificates: · helping outsiders to circumvent the regulations protecting village communities · pave the way for government officials or business people to get state land cheaply · outright forgery of certificates 2. Levying of illegal fees · BPN staff asking participants of low-cost mass adjudication for supplementary fees · BPN staff acting as go-betweens · BPN staff asking for money to process applications for sporadic registration or permits 76 The complete documentation that has been resulted from the survey for East Java can be found in ANNEX 6 (Vol.II of this report). 75 3. Others `'Ingin Posisi Basah, Nyebur Aja ke Laut'' Sambut Wisuda, Soni Harsono Sindir Lulusan STPN · Slow down/obstructing Yogyakarta, JP.- investigations into irregularities Ingin jabatan basah, jangan minta ke Meneg Agraria/Kepala Badan Pertanahan Nasional Ir Soni Harsono. Kecuali kalau ingin dicebur- committed by other parties kan ke laut. `'Saya sampai kini prihatin jika mendengar atau meli- hat sendiri banyaknya lulusan STPN yang menginginkan lahan ba- · Resisting court orders sah, yang banyak duitnya. Kalau memang diantara wisudawan saat ini ada yang mau ditempatkan di lahan basah biar saya cemplung- Apart from irregularities committed by kan di Laut Banda atau Teluk Cendrawasih agar basah sekalian,'' tandas Soni disambut ger wisudawan. BPN staff, from the above listed cases Soni menyampaikan hal itu saat memberi sambutan dalam wisuda another strong feature emerges, that of Program D1 Pengukuran dan Pemetaan Kadastral dan Program D4 manipulations by the village Pertanahan, STPN (Sekolah Tinggi Pertanahan Nasional) Yogya- karta, kemarin. administration. There are few cases of Menurut dia, tugas seorang staf BPN sangat strategis karena me- unlawful practices in land nyangkut penghidupan rakyat banyak. Sehingga seorang staf BPN administration (except the taking of diwajibkan untuk bekerja dengan tulus mengabdi kepada kepen- tingan rakyat, jangan hanya mengejar materi semata. money for speeding up procedures) `'Pegawai BPN itu urusannya jangan hanya materi melulu. Soalnya where BPN staff acts alone, often they BPN adalah institusi yang sangat penting bagi kepentingan masya- are not even as prime actors, leaving rakat yang berhubungan dengan masalah tanah. Masalah ini sangat peka, jadi diperlukan tenaga yang profesional, tidak hanya memi- this role to village officials. Although kirkan perut dan uang saja,'' ujar Soni. there is no guarantee for success, Dia mengharapkan agar pegawai BPN memiliki etos kerja yang decentralisation of land affairs can be tinggi. Tidak mempermainkan masyarakat yang membutuhkan bantuan. Apalagi jika seorang staf mempersulit masyarakat untuk helpful to redress this situation, as both mengambil keuntungan semata. the village officials and the Dinas `'Sering saya dengar kalau banyak staf yang menginginkan lahan Pertanahan will be under the same basah. Jika memang ingin lahan basah ya itu tadi ditempatkan di laut terdalam di Indonesia biar keplepeken sekalian. Kalian sebagai leadership (the District Head/Bupati) lulusan baru STPN harus memegang janji yang baru saja diucap- who in turn is responsible to the elected kan jangan hanya ngurus perut sendiri tanpa menghiraukan kepen- local assembly. "Pingpong" between tingan yang lebih besar, yakni melayani masyarakat yang berhu- bungan dengan pertanahan,'' tutur Soni kembali ditimpali tawa. different institutions or administration Dalam wisuda kemarin, STPN mewisuda sebanyak 122 lulusan levels and other forms of evading dari program D1 dan D4. Soni hadir untuk memberikan ijazah dan responsibility can thus be substantially memberi `'bekal'' pada lulusan baru STPN tersebut. Dikatakan pula, sebagai staf pertanahan, harus menguasai semua reduced. bidang. `'Jika tidak menguasai, lebih baik gelar yang disandang saat ini dilepaskan saja, percuma,'' katanya. Soni berjanji bagi lulusan yang belum mendapatkan pekerjaan harap segera melapor ke BPN Pusat untuk ditem patkan. `'Namun harus mau ditempatkan di seluruh pelosok tanah air. Karena BPN tidak hanya mengurusi 3.3.7.7 Problems in the chain of pertanahan di Jawa dan kota-kota berpenduduk padat saja,'' command katanya. (iwa) http://library.jawapos.co.id/jplalu/okt97/ten31o3.htm A problem which has been cited by size3483 bytes - 10/29/1997 11:04:46 PM GMT several local governments visited during the field survey, but also by some local Land Office staff, is the Figure 30 : Minister of Land Affairs/Head of BPN warns future land administration professionals not to succumb to problem of the chain of command. temptations of corruption Apart from a couple of high profile cases like · the one involving Mr.Purnomo, the former Head of the Municipal Land Office of Sura- baya, who for months played off the BPN leadership against local authorities and flatly refused to be mutated to a new post deemed unattractive 77, or 77 Press documentation on that case can be found in Vol. II of this report, there are in fact a couple of similar cases, involving Surabaya BPN staff refusing to move to the Land Office of neighbouring Gresik District 76 · the case of the certificate of Yahya Sumarno, which saw the Municipal Land Office of Surabaya even resisting a High Court decision after the plaintiff had been pingponged between the Municipal Land Office and the Kanwil for quite some time78 there is a general feeling among both "end users" of land administration services (the local population) and local governments - cited in many interviews with the survey team - that the long and at times fragile chain of command from Jakarta through the provincial Kanwil down to the local Land Office should urgently be replaced by simpler and more stringent relations of accountability for the benefit of both the users and the land administration staff. 3.3.8 Data on output and future workload of local Land Offices Data on annual output and on proportion of the total number of plots tend to be not particularly reliable: · The common estimate for the total number of parcels in Indonesia (55-60 million, with about 17 million registered79) will probably ha ve to be revised, as the number of population/number of parcels ratio shows an abnormal high value for Indonesia (Williamson, op.cit. p.12) · There are vast discrepancies between the numbers (and estimates) to be found in the fiscal cadastre data and in BPN data bases. · For some areas, like Tapanuli Selatan, there are not even estimates about the total number of parcels. · Figures for completeness of the register found in the survey for a certain sample area dif- fer between 35-40% (according to the Head of the local Land Office interviewed) and 75% (figure reported by the same person in the internal BPN survey of 1999). The teams got the impression, that data manipulation (see page 47) accounts only for the smal- ler part of these incongruencies, it appears that there is really nobody able to give any even approximately reliable figure. What can be concluded fairly safely is, that the estimate of 25% of all parcels being registered is on the optimistic rather than on the pessimistic side. The real problem, however, seems to be, that the rise in number of parcels each year (by splitting up existing larger parcels) eat up most if not all of the progress achieved in registration. At the same time, some medium sized (and relatively well managed80) local Land Offices like for in- stance Lombok Barat District, do not dare to do a lot of campaigning for registration among the local population, as they worry that substantially increased demand could not be met with the current service delivery capacity. 78 Also docum ented in Vol.II of this report 79 See Bogor Report (Country Report Indonesia) or Walijatun, Dj., "The Indonesian Land Administration Project. Strategies and Issues.", paper presented to the FIG Singapore Conference 1997 80 This statement is a "rapid appraisal" result and should not imply that other local Land Offices visited are not well managed. It seems, that the local governments of the area Lombok Barat District and Mataram Municipality do make an effort for good governance, as not only there is financi al support for the local Land Office, but also other public facilities, like the Public Water Works have earned a reputation for decent management. 77 As a conclusion it can be stated, that at the current capacity even the task of initial registration (let alone coping with future vibrant land markets) forms a challenge of sort for the system for decades to come. With regard to the annual output (performance) of local Land Offices a fairly heterogeneous picture can be found in the sample regions. The large range of 100 (Tapanuli Selatan) - 40.000 (Sidoarjo, Semarang Municipality) in the figure for annual deeds registered shows how extremely different the requirements for land administration services are between the areas visited. Figure 31 shows the annual output of local Land Offices against their staff numbers and their degree of computerisation.81 From the data in this diagram several conclusions can be drawn: 1. There are relatively clear-cut categories in annual output (marked as critical, small, small- medium, medium, large). The category "critical" has been established for local Land Offi- ces processing less than 50 deeds a month, as in these cases the question of economic via - bility of the current organisation model poses itself sharply. This is, however, not to im- ply, that land administration services are not important for the regions in question, as they derive an important proportion of their local governments' revenue from land related sources (PBB and BPHTB). 2. There are also clearly distinguishable levels in staff productivity. 3. There is a tendency for bigger local Land Offices (in terms of number of staff) to have higher staff productivity. However, the categories for output are not congruent with cate- gories that are discernible from the graphic in terms of staff size. Staff size for the catego- ries critical and small are roughly equal, as is staff size for the categories of small-medium and medium. There are certainly other factors (nature of terrain, social environment etc.) influencing productivity, but it appears that the question, whether or not staffing arrange - ments so far have been adequate and flexible, is worth to be pursued. 4. In each category the local Land Office with the highest staff productivity has the least fa- vourable value for its computerisation index.82 Even if we concede, that quality factors like timeliness of service and conve nience of data retrieval and other parameters probably influenced in a positive sense by computerisation have been left out here, it seems safe to conclude that the potential for productivity gains through computerisation have not yet been optimally exploited. 81 The computerisation index is the number of staff members divided by the numbers of computers, in other words it indicates, how many people (theoretically) have to share one computer 82 Indexes for vehicles and measuring equipment have not been included here, as these have to be measured against factors like accesibility of surveyed terrain, quality required in siurveying etc. which would demand a bigger sample to find enough comparable cases. 78 45 400 large 40 350 35 300 medium 30 250 25 200 small- 20 medium small 150 15 critical 100 10 5 50 0 0 Pasir Solok Barat Kendal Kudus Mun. Selatan Pasaman Sidoarjo Sumedang Lamongan Semarang Lombok Tapanuli left scale Semarang right scale computerisation index annual deeds (in 1000) total staff Ratio deeds/staff Figure 31 : Output and productivity of local Land Offices More detailed analysis for each individual case will be needed to assist local governments to optimise their decisions with regard to structure, staffing and equipment of their Dinas Per- tanahan after having defined the precise tasks of that institution. Such assistance and prefe- rably a guide for self -analysis should be produced by BPN Pusat. 3.3.9 Remuneration of BPN staff In many conversations with the survey teams BPN staff of all levels complained about their insufficient remuneration. The phenomenon as such is well known in all kinds of reform projects in Indonesian public administration and therefore does not require any in depth dis- cussion here. However, as quality management without attention to the staff's job satisfaction (for which decent payment is a crucial factor) is a lost cause from the outset, a brief reflection of the issue seems to be useful here. Figure 32 shows the average monthly income of BPN staff in the local Land Offices visited and its relation to the regional income level. It has to be pointed out, that 79 600.000 250 500.000 200 400.000 150 IRP 300.000 % 100 200.000 50 100.000 0 0 SolokMun. Pasir Kutai Pati Mun. Bogor MeranginMun. Mun. KamparTeboPasamanMun. SidoarjoBarat Mun. Badung Mun. KudusKendal Selatan Bungo Sumedang LamonganSemarang Wonosobo SawahluntoBukittinggi Pekanbaru Bandung Samarinda SurabayaLimapuluhkoto Lombok Tapanuli Semarang left scale right scale average monthly income monthly income in % of the regional average monthly income of a worker below supervisor level Figure 32: Remuneration of BPN local Land Offices staff (nominal and in relation to local income level) · The remuneration is not only the cash income, but includes the monthly rice ration, overtime and other allowances. · In particular the lower medium and junior ranks' income is considerably below the average · The regional income against which the BPN staff remuneration has been measured is the average regional wage for workers below supervisor level (thus not matching the BPN staff's level of qualification), which is at least close to the official subsistence level. It is difficult to put it mildly to imagine a real quality drive in the land administration system without the problem of the deplorable material condition of the agency improved. As the land administration sector is only one among many important sectors of public administration, this task is not a particularly easy one. However, local governments have to be creative to address the matter. There may be several ways: 1. As the quality of the local Land Offices/future Dinas Pertanahan staff has a direct bearing on local income, incentives could be paid, tied to the actual improvement of the yield from PBB and BPHTB. Figure 33 illustrates that with a comparably very modest proportion of the local land related revenue the material condition of the land administration staff could be substantially improved. It seems to be realistic, not only to cover such an improvement 80 entirely from the additional tax revenue obtained from increased efficiency in collection, but also to make important gains for the local fiscus. 2. In one of the local Land Offices visited, the staff puts its private surveying equipment at the disposal of its employer. Whether or not this is a noble gesture to be emulated shall not be the focus of interest here, but the fact, that this staff · involves in gainful activity in surveying beside the job with the local Land Office and · the employer knows about this The interesting point is, that in a situation where the government finds it difficult to pay decent salaries to its employees and there is also still a serious deficit of private sector cadastral surveyors83, this arrangement provides an avenue of fresh thought: why not legalise such secondary activity (which is the only alternative to supplementary income from abuse) and establish clear rules instead of only tolerating, or worse, selectively banning it ? 250 200 150 % 100 50 0 Pati Kudus Mun. Kendal Barat Solok Bogor Pasir Kutai Mun. Mun. Badung Mun. Mun. SidoarjoMun. Tebo Kampar Mun. Wonosobo SemarangSumedang PasamanLamongan Bungo MeranginSelatan Bukittinggi Lombok Limapuluhkoto Bandung Sawahlunto Pekanbaru Semarang Samarinda Tapanuli Surabaya Figure 33: Potential income boost for land administration staff (in %) for every 1% of local land related government revenue used to increase salaries 83 At the time of the survey only about 180 had been registered nationally. 81 3.4 Financial viability of the land administration system The Indonesian land administration system as a whole took - at least until 1998/1999 Fiscal Year a quite unique position internationally in terms of its financial performance. From fees for service and permits alone, that is without · PBB (the Land and Building Tax), · BPHTB (the Tax for Conveyance of Land and Buildings), · fees for granting rights on state lands, · revenue from the auctioning of rights to till communal village lands (bengkok)and · income tax on profits from land sales BPN was one of the few land administration systems with a cost recovery rate far exceeding 100%84 (see Figure 34). However, the dis- tribution of income within the system shows extreme disparities, the rate of cost recovery for individual local Land Offices ranging between less than 1% and more than 2.500% in 1997/ 1998 Fiscal Year, with nation wide about one third of the local Land Offices attaining full cost recovery in that year. the peak value some- Figure 34: Cost recovery rates in international what dropping under the influence of the eco- benchmarking (from Kaufmann/Steudler, Cadastre nomic crisis to 1.700 % (see Figure 35). Net 2014. FIG Commission 7 (1998) p.12 profit of the system (revenues without taxes) was 40 billion Rupiah in 1997/ 1998 Fiscal Year, with 2.280 billion Rupiah in Land and Buildings Tax (PBB) collected in 1996/1997 Fiscal Year. Besides the large differentials in cost recovery there is also a considerable variation in costs per deed (see Figure 36), which show a more or less reciprocal relationship with the staff effi- ciency, as staff costs normally constitute the bulk of a local Land Offices expenses. Neverthe- less, it would be mistaken to conclude, that for those areas where local Land Office efficiency and cost recovery is low, there is no need for land administration services. The regions with the four lowest scoring Land Offices in terms of cost and staff efficiency (Tapanuli Selatan, Pasir, Pasaman and Solok) derive between (close to) 50-70% of their local government reve- nue from land related income. The pr oblem of financing a decentralised land administration is thus not a problem of funds but of arriving politically at a system that is 84 Practically the entire service fee structure has changed since then and audited figures available to the team for whole Indonesia were for 1998/1999. This is, however, not a disadvantage, as by using this data one gets a better idea about ability to pay and willingness to pay for land administration services than with some newer figures. Anyway the service fee structure is still hotly debated and it is not sure that the situation prevailing since the Fiscal Year 1999/2000 will prevail for long as there is no point for local governments to incur deficits with the devoluted land administration institutions, whereas the central government had made it a cash cow for a considerable time. 2.000 1.800 1.600 1.400 1.200 % 1.000 800 600 400 200 0 Pati Mun. Mun. Mun. Solok Pasir Kutai Sidoarjo KamparBadung Mun. Mun. Bogor Kudus Kendal Mun. Barat Mun. PasamanS.Bangko Baru Lamongan SemarangSumedang WonosoboSelatan SurabayaSemarangBandung M.Bungotebo Samarinda Limapuluhkoto Pekan BukittinggiLombok Tapanuli Sawahlunto Cost recovery rate (in %) of local Land Offices in 1998/1999 Fiscal Year Figure 35: Cost recovery rate (in %) of the local Land Offices in the survey sample · demand oriented: offering adequate services to the local population while providing a set of minimum standard land administration services all over the country · cost efficient: scaling the service delivery structure in accordance to desired output levels · socially balanced: providing a reasonable arrangement for cross-subsidy within the land administration system to ensure, that the minimum level for land administration services can be upheld also in poor regions To demonstrate what that could mean, the following model calculation may be helpful. A hypothetical Sumatran local government wishes to set up a Dinas Pertanahan with an annual output of 1.500 deeds. By way of benchmarking the following parameters are established: · a medium level of cost efficiency of IRP 50.000,- per deed (attained by offices like Kudus or Kendal, which do neither profit from economy of scale nor from big city style land markets) · a medium level of staff efficiency of 150 deeds/staff (slightly below the level of Kendal or Kudus) which would mean annual total costs of IRP85 75 million, with a staff of 10 and, at an average remuneration level of IRP 500.000/month, annual staff expenses of IRP 60 million, thus a 85 Indonesian Rupiah, current exchange rate approximately 1,00 US$ =IRP 12.000 83 3000 45 300,0 40 250,0 35 30 200,0 25 150,0 20 15 100,0 10 50,0 5 0 0,0 Pasir Solok Kendal Kudus Selatan Pasaman Barat Sidoarjo Mun. Sumedang Lamongan Semarang Lombok Tapanuli Semarang left scale: right scale: annual deeds (in 1000) cost per deed registered (in 1000 IRP) Figure 36: Total cost per deed for selected local Land Offices share of 80% of staff expenses in total cost. At such a level, the cost recovery rate of a Land Office like Pasaman/West Sumatra would jump from 20% to roughly 60% and about 0,1%86 of the land related local government revenue would be sufficient to cover the deficit. It would, of course be preferable to use modestly more than this proportion of the revenue to improve conditions above this very minimalistic level and increase land related government revenue. As it has been mentioned earlier, the above mentioned calculations are based on figures from before the enactment of Ministerial Regulation No. 7 of 1999 Concerning the Abolishment of Certain Fees in the Land Administration Sector (PERMEN Agraria No.7 Tahun 1999). Du- ring the filed survey, many of the teams' interlocutors complained about the abolition of many service fees which was perceived as putting the future Dinas Pertanahan in the unpleasant position of being a newcomer and a burden at the same time within the local administration. A number of local governments had plans prepared to adjust the tariff structure. It is not ob- vious, why cost recovery should be abandoned at a time, when local governments are pushed to establish that very principle in other sectors, like public water works. Unlike in the latter case, not only the ability, but also the willingness to pay is clearly there, especially if the substantial rate of additional, unofficial fees is considered. Wherever complaints were made about land administration services being expensive, the reference was always to the latter fees, never to the official ones, and no interlocutor made a "former tariffs-present tariffs" distinction in this respect. As for future prospects, it seems that there is still a wide margin for improving land related revenue: 86 All figures in this example under 1997/1998 budget structure conditions 84 80.000 120 70.000 100 60.000 80 50.000 40.000 60 30.000 40 20.000 20 10.000 0 0 Pati Sumedang Semarang Kendal Samarinda Sidoarjo Semarang Surabaya Mun. Mun. Mun. right scale in million IRP: left scale: left scale Total BPHTB 98/99 PBB+BPHTB PBB+BPHTB %total locally generated government revenue 98/99 (3) Ratio PBB/BPHTB Figure 37 : Development of PBB/BPHTB ratio as indicator for maturity of land market · Although the fiscal cadastre maintained by KPBB presently is more complete than the BPN's land register, it is highly probable that a more systematic registration approach could yield substantial additional income. · Preventing fiscal losses caused by tax evasion through artificially low value assessment will be another area of improving public revenue. · Indonesia's land markets are in an embryonic stage in most regions. If the yield from BPHTB is used as an indicator, only big cities at present can reap any significant income from that tax levied on conveyance. With maturing land markets, however, both service revenue from land administration service fees and from BPHTB can reach considerable levels (see for example Surabaya and Semarang municipalities in Figure 35 and Figure 37). 85 3.5 Conclusions As it has been set out earlier, the overall purpose of this study ­ consisting of both the field survey and the analysis of supplementary data from BPN, other government agencies and the press - is to provide decision makers on both local and central level with inputs for developing viable options in the process of transforming BPN into a functioning national system of land administration. Before turning from analysis to the discussion of options for action ­ in the two final Chapters 4 and 5 ­ a conclusion has to be drawn from the material prevented in answering the set of questions defined at the outset summed up as: · What is the demand for land administration services ? · What is the service delivery capacity ? and an assessment made what (and whether) decentralisation and other reform moves can contribute to enhanced system performance. Demand From the results of the field survey, the analysis of financial data and other sources it can be safely concluded, that public demand for land administration services is · on a national basis strong enough to let the land administration system operate even with profit · particularly strong in most urban areas and the economically more developed and densely populated areas on Java and Bali · relatively weak in certain areas in Sumatra and Kalimantan, though it should be noted, that even there in six out of 13 areas surveyed sufficiently strong demand could be ob- served to let the local Land Offices operate with more than 100% cost recovery. · not yetas developed as it could be, because § the (legal) products (i.e. forms of rights adjudicated) are not yet customised to the clients needs and preferences, especially in areas where customary perceptions (adat) towards land rights play an important role § the quality of service delivery still scares off many potential clients · far from being satisfied in terms of quality, with major elements of the quality of land administration being defined by the clients as security/reliability, transparency, timeliness, affordability/transparency of pricing, convenience in obtaining services From the local governments' side demand for the services of the land administration system is · strong, in the sense that every local government is on a general level conscious of the im- portance of land questions, not the least because land related revenue (the Land and Buil- dings Tax/PBB and the Tax for Conveyance of Land and its Improvements/BPHTB) constitutes a substantial part of its income (nation wide an average 11% of total local government income, and 53% of locally generated revenue) 86 · focussed on the issues of conflict prevention, attractiveness to investors and improvement of tax revenue · not particularly specific, as detailed knowledge about the mechanisms of land administration, is rather limited 3.5.2 Service Delivery Capacity Service delivery capacity is the decisive problem of the Indonesian land administration sys- tem, rather than a lack of demand. In a very general sense it can be stated, that the products offered by the system are only partly demand responsive. 40 years after the promulgation of the Basic Agrarian Law the laws very essence, to reconcile codified law on land issues with legal perceptions actually living in society (adat law dominated for many regions), has still not been properly put into political and administrative practice. The most important quality feature demanded by the public, legal security, is not given, and can, under the given circum- stances hardly be achieved, unless the present deed system is transformed into a title system. Apart from the legal products offered by the land administration only selectively meeting de- mand, quality of the products/services delivered is another major point of concern. On the working level, the local Land Offices (or future Dinas Pertanahan) display serious deficien- cies in all major fields related to quality87: Enablers: Most Land Offices (and their future superiors in the local government) do not have any vision or strategy for their work. The regulatory framework is Institutional structure at the local level with its separation between local government agencies, the Land and Buildings Tax Office (KPBB) under the Ministry of Finance and the local Land Office under the BPN is not condu- cive to high quality service de livery. Human resources are highly problematic, as is the hard- ware (buildings, equipment etc.) Processes The core processes of adjudication, registration of conveyance and registration of mutation are saddled with problems of insufficient co-operation with the village bureaucracy, corrup- tion, a lack of data exchange. This makes quality requirements from the demand side like security/reliability or timeliness difficult to meet. Results In terms of results achieved the picture is a mixed one. Customer satisfaction is definitely low, · With regard to deeds being registered: because of slow services, intransparency in terms of requirements to be fulfilled and fees to be paid. · With regard to the keeping of the register: because of intransparency (slow and unreliable information) which constitutes a risk for banks being offered certificates as collateral, for people or companies buying land that is actually disputed or belongs to persons other than the one pretending to be the rightful owner and for land owners who see their land being taken away by persons having obtained in illegally issued certificate for it. 87 The quality concept used here is the EFQM one, for which see Chapter 2, page 32 f. 87 The same factors that influence adversely the fulfilment of private customers expectations will also in the future lead to dissatisfaction on the part of local governments if no improve- ments are realised. Staff satisfaction is equally low, because of severe underpayment and the low public esteem in which the institution finds itself. The only existing survey on the general public's satisfaction withBPN's work (see page 44) and the comments obtained from local assembly members during the field survey suggest, that sub- jectively the results for society are judged fairly negatively. This view is supported by a more technical assessment, the contribution of BPN to a functioning Land Information System has been modest indeed so far, in terms of completeness, reliability, accessibility and convenience of retrieval of information. 88 With regard to its financial performance the system scores high even by international standards. However, on the local level, financial performance varies from local Land Offices being to- tally dependant on subsidy to others being virtual goldmines to the Treasury. In terms of non-financialperformance, · with regard to the number of deedsprocessed some achievement can be booked in certain areas · the percentage of existing parcels registered approaches a satisfactory state of affairs in a couple of areas, but remains unsatisfactory in a national perspective (see "results for society" above). On the central level, which according to the provisions of the Government Regulation No. 25/2000 (PP25 Tahun 2000) should provide strategic guidance and services, the situation is not much better: · Visions and strategies are hardly existant. · The geodetic infrastructure is not sufficiently provided. · Technical and organisational guidance to local Land Offices is insufficient. · Adequate standards for tariffs are still waited for by the local governments. · Human resources development is deficient. Local governments have so far been rarely involved in day to day land administration. How- ever, it seems that up to this point the awareness of the challenges at the working level of land administration is fairly limited, a major boost in awareness building will have to be organised to put local decision makers in a position to manage the integration of the Land Offices into local administration. 88 Especially for the indicator "completeness of registration", data set C in Steudlers evaluation of an international benchmarking survey on the performance of cadastral systems show that the Indonesian system's position internationally is on the lower end of the scale (Steudler et al., op cit., data set C) 88 3.5.3 Implications for reform The centralised land administration system, be it under the Ministry of the Interior or as inde- pendent BPN, has failed to provide demand responsive services of an adequate quality. This holds true for the performance in providing services to individual clients and for the overall performance in establishing well organised land administration in Indonesia. There is no con- vincing concept how this state of affairs can be changed in the foreseeable future with the existing structure. And it is hard to see, how the problems resulting from · over-standardisation (too big/expansive structures for areas with small demand like in certain Sumatran regions, structures totally worn down by continuously running above capacity, like in Badung/Bali) · ambiguities in the line of command and the resulting problems of intrans parency · co-ordination problems with local government agencies · lack of direct accountability to the local community and the resulting quality problems could be overcome under the present structure. On the other hand, it is obvious, that a completely decentralised system (like for example in the Federal Republic of Germany) would be from both a technical and managerial point of view hard to implement in Indonesia: · Professional standards · Human resources development · Establishment of control points · Technical and managerial strategy development are major areas were the individual local units could not do without support from the central structure. Options for the future can be best measured against the simple question "How can the system be modified in a way that leads to service delivery meeting demand to a higher degree than before ?" In this sense, a fairly clear picture - although without pretence to being a ready so- lution - of how to address the above mentioned set of problems emerges from the survey. Like it has been outlined in Government Regulation No.25/2000 (PP 25 Tahun 2000), · the working level, the local Land Offices (Kantor Pertanahan), should be devoluted and become part of the local government, with the precise structure preferably to be deter- mined by the local governments themselves with "consultant" assistance by BPN Pusat · the policy making, standard setting and support service providing function should rest at the central level, that is with BPN and a set of deconcentrated service delivery units to be determined (it would be thoroughly mistaken to interpret the absence of provisions for provincial land administration institutions as an invitation to simply dismantle the BPN Kanwils) But decentralisation by itself will not solve a lot of problems, solutions will have to be deve - loped for many basic questions (see page 16 f. above) in dialogue between local government, BPN and other concerned central government agencies. Apart from this, many detail improve- 89 ments can be achieved by horizontal exchange (see Chapter 4 on Good Practices) which can progressively stimulate the growth of a culture of continuous organisation learning in the land administration sector. From an Organisational Development point of view, two concluding remarks seem to be important: Processes of change, especially if far-reaching structural change is involved, always instill fear which leads inevitably to resistance expressed in a plethora of different forms. There are few institutions whose services are and will be more in demand than BPN's and the Dinas Pertanahan's, though, provided these services become more demand responsive than in the past. If the conclusions of this study are to be summed up in one sentence, this would be: Don't be afraid of change, be afraid that its pace may be too slow. The worst obstacles to change are emotionalised, heavily patterned images governing our thought, one may call them ideologies. Indonesia's land administration sector for a long time has been bedevilled by this phenomena. The relationship of love and hate of government, professional community and the population towards the Basic Agrarian Law is an example hopefully not to be repeated. Had it been implemented, Indonesia's peasantry would not find itself in paradise like some had hoped, neither would stalinism hold sway over the country like many had feared. There is a real danger that the debate about the reform of land adminis- tration will be ideologised a second time, this time replacing the cold war discourse by the nationalist discourse about the unity of the country. However, it is not the devolution of working level functions which endangers the land administration and subsequently national unity. A caring centre is needed and will be appreciate d, including the standards it sets, thereby in fact strengthening the sense of belonging that is so vital to preserve national unity these days. It has been ruling without caring that has antagonised many in the regions, as it is a way of doing things thatis at loggerheads with Indonesian leadership culture. No abstract rhetorics about the need for a "strong centre" are helpful in this context. If anything, historical analogy shows the opposite: Mataram, Java's "strong Centre" in the early 17th century, be ing more powerful than the small but prosperous regional kingdoms at the Javanese North coast, could subdue them by force but not keep them in line by persuasion. As Mataram could bring destruction over the Pesisir region but was too weak to sustain those territories' level of eco- nomic development, the whole kingdom easily fell prey to the Dutch in the 18th century...89. 89 For Matarams strong handed expansion and its later negligence of the vasall areas see Pigeaud, T.G.Th./ de Graaf, H.J. Islamic States in Java 1500-1700. A Summary, Bibliography and Index, Verhandelingen KITLV 70. The Hague: Martinus Nijhoff (1976). pp. 8-16 90 4 Good Practices The previous chapter presented the overall situation in the sample regions (and sometimes beyond) with regard to a set of parameters. Although that presentation conceptually was not intended as a bottleneck analysis of the system, the picture that emerged from the material exposed was not too bright, reflecting the somewhat desolate shape in which the system cur - rently finds itself. However, the description would not be complete, and, what is more, the most decisive information for future change would be lost, if the many examples for creative problem solving - singular in their field, may be, but not insignificant - were not be presented also. The relatively small size of the sample (regions visited) naturally limits the wealth of material for a topic where it is the singular quality of a particular practice that matters rather than its being typical or representative of the system as a whole. As this latter feature makes the material presented here different from the main approach of the study - the analysis of a representative sample to gain insight into the state of the system on the threshold to decen- tralisation - a separate chapter seems to be justified. Where that was possible the findings of the field survey were completed by other sources, but it is obvious, that the bulk of the work in this field remains to be done. The Good Practices presented here are meant · to provide from an empirical point of view a few more "building blocks" as a small addi- tion to the wealth of material produced under the LAP project · to give practical examples for the potential of horizontal exchange as a means of organi- sational learning · to introduce the concept of Good Practices as a future tool for system wide Quality Mana- gement 4.1 The concept of Good Practices The concept of Good Practices as horizontally exchanged "success stories" about ways of handling particular tasks and problems has gained substantial ground over the last years as a relatively informal approach to achieve continuous improvement in organisations. It is easier (and cheaper !) to handle than complex and highly formalised benchmarking procedures and the establishment of Best Practices for an industry.90 The internet has been instrumental to the mushrooming of networks of professionals in all sectors, where net wide brainstorming, data- bases of Good Practices and other ways are explored to organise a process of collective lear- ning. Organisers of such networks reach from international organisations like IDB, ILO or UNDP to individual universities trying to improve their standards of teaching. The establish- ment of a communication network on Good Practices good be a first step towards future ser- vice standards grown out of the professional community (see Figure 38) instead of arbitrarily fixed from the top of the system. The ongoing horizontal communication within a profession, the feedback cycles linking once agreed upon standards to benchmarking and again new standards is a powerful mechanism for continuous improvement. 90 In certain contexts, however, the term is used in a highly formalised way too, like t he Good Manufac- turing Practices requirements for the certification of medical devices by the US Food and Drug Admi- nistration (FDA) 91 high profession a feedback within formal standards Best Practices communication bench- horizontal marking of Intensity Good Practices low early process of network development advanced Figure 38 : The "Good Practices" tool in the process towards standard setting 4.2 Good Practices/"Success Stories" found in the survey The bulk of Good Practices presented here naturally was found in local Land Offices/Dinas Pertanahan, as local governments had not enjoyed any real say about land administration matters up to the time of the field study was completed. BPN Pusat, as a singular unit, by nature is not in the same position for horizontal exchange as the local institutions.91 The pre- sentation of success stories given in this section is not meant as an in depth analysis of the in- dividual case, but rather an effort to stimulate curiosity and motivate to intensify horizontal exchange. The focus is on no-cost and low -cost measures simple to implement. Ideally either BPN Pusat or one of the bigger Dinas Pertanahan could open a website with a database of Good Practices for various fields of activities in land administration. In that case a set of criteria should be provided (to be gradually developed by the participants of the net- work) like · enhancing speed/efficiency/quality of services, · being innovative · having an enduring impact · being easily transferable and a format for contributions like 91 It would be, however, of interest to establish networks for such exchange of experience on an international basis. 92 · title · location · objectives · description By spreading such information · ideas for improvement could be quickly and easily disseminated · the development of a culture of continuous learning and improvement would be supported · self-assessment as an important element in quality management would be supported by giving people an idea about the "state of the art" in what they are doing In the following presentation of good practices is organised along the lines of the quality management model introduced in Chapter 2 to stimulate the use of these examples for quality improvement drives at the local level. 4.2.1 Improving enablers for the work of local Land Offices/Dinas Pertanahan Good practices have been identified from the material collected from the field service for the fields of vision and strategies, leadership, partnerships and hardware. It is hoped, that in future exchange between local Land Offices/Dinas Pertanahan not only the material for the cate- gories covered here will be substantially enriched, but also the missing categories (institutio- nal structure, regulatory framework, human resources) be represented with examples to be emulated. 4.2.1.1 Vision & Strategies Although as a whole, the Indonesian land administration system lacks a vision and strategies for development with regard to legal products, human resources, technologies to name just some core elements, some municipalities have developed visions for their immediate institu- tional context, or development strategies or at least elements thereof. Vision of land administration as part of the overall local development vision Solok District has developed a vision of land administration as part of the overall local development vision, in economic (land resource management), political (re- conciling the formal land administration system with adat perceptions) and socio- cultural terms. By doing this, land administration is squarely placed in the frame- work of local government tasks and acceptance created in the local government apparatus for cross-sector collaboration or budgeting issues involving the new "fa- mily member". It has further worked out a clear description of the kind and quality of land administration services available and a plan for the upgrading of these services, published as "Land administration services for the public in Solok District" by the local government. 93 Company profile In Semarang Municipality a company profile "Welcome at the Land Office" has been developed by the local Land Office and published as a booklet on its own initiative. It contains a clear description of the structure, processes, performance figures and basic facts on human resources and hardware, which gives the local government, potential partners or the general public a reasonably clear picture of the organisation. A business plan, demanded by the local government, remains to be developed. 4.2.1.2 Leadership Examples in this section are very limited because of the brevity of the interaction of the teams with each individual local Land Office, but there are important contributions from the national level which could have a substantial bearing on the quality of leadership in the local level. Controlling Probably the weakest point in the land administration system so far has been controlling, both on the strategic and the operational level. For the latter two useful instruments have been put at the local Land Offices managers' disposal, i.e. ·The definition of core processes by the Instruction of the State Minister of Land Affairs/Head of BPN No.3 of 1998 (Instruksi Menteri Negara Agraria/Kepala BPN Bo.3 Tahun 1998), which describes with organisational flow charts the main processes in surveying, adjudication, conveyance and mutation of land parcels (both sporadic and systematic, for different legal categories) and in the issuing of land use permits, monitoring as an essential management function can be made much easier for the Heads of local Land Offices/Dinas Pertanah- an and their division heads. ·The collection of a list of possible performance indicators by a BPN Pusat team (see Annex 8) 4.2.1.3 Partnerships Partnerships are vital to manage correctness and smooth flow of data to be put into the local Land Offices/Dinas Pertanahan's data base. In this connection strategic partnerships involve the Land Taxes Offices (KPBB) and the village administration, at a so far embryonic stage also private licensed surveyors. 94 Unified Land Information System Semarang Municipality is establishing a unified Land Information System (LIS), the Sistem Informasi Tanah Perkotaan Kota Semarang (SITP Kota Semarang = Urban Land Information System of Semarang Municipality) covering the data from five institutions, the Municipal Development Planning Board (BAPPEDA, as lead agency), the local Land Office, the Land Taxes Office (KPBB), the Urban Planning Agency (Dinas Tata Kota) and the Urban Architecture Development Agency (Dinas Tata Bangunan). The architecture of the system will be a simple PC-based LAN-intranet at the major's office with WAN-connection to the KPBB and the local Land Office with modems. The system at its final stage will be ac- cessible to other local government agencies and the general public. Monitoring of Land and Buildings Tax (PBB) collection by local government In Kendal District, the Local Government Revenue Agency (Dinas Pendapa tan Daerah/Dipenda) has established its own data base, to monitor the Land and Buil- dings Tax (PBB) collection that it executes on behalf of the Land and Buildings Tax Office (KPBB). Although this example can only be emulated where this col- lection mechanism is in place and its in fact an emergency solution (a direct data link like in Semarang Municipality would be preferable), this effort is a step to- wards a local government taking control over its sources of revenue. 4.2.1.4 Hardware Adequate hardware, in terms of building facilities, measuring equipment, data storage and processing equipment and general office equipment is a crucial factor for the quality of ser- vice delivery in a socio-technical system like the Land Offices. Although hardware improve- ment alone will not solve any problems and any investment has to be carefully tailored to the actual requirements of local service delivery, without such improvement, in many local Land Offices there is no use for any efforts in other areas, if these are not accompanied by a sub- stantial upgrading in at least building facilities and office equipment. Setting adequate priorities in hardware procurement By setting adequate priorities in hardware procurement, like in Lombok Barat District local Land Office, even w ith modest means a decent working environ- ment can be established. As the data base (be it in digital or in paper form) is the major asset of a Land Office, the investment in a set of shelves for the volumes containing the land records can make the difference between disaster and proper functioning (see photographs in section 3.3). 95 Revenue from PBB and BPHTB invested to upgrade facilities A more managerial and less (state) budget oriented view on funds for the develop- ment of the local Land Office like displayed by the Pasir District local government can be beneficial for al parties: based on the reasoning that better performance of the local Land Office will increase local government revenue from PBB and BPHTB, fund were used from that land related revenue to upgrade facilities even before the regional autonomy regulations entered into force on January 1st, 2001. 4.2.2 Improving processes within local Land Offices/Dinas Pertanahan The processes for which Good Practices are to be presented here are divided into aspects which have a direct link to customer relations and those which are of a strictly internal nature. If at a later stage a more consistent quality management approach will be pursued by a sufficient number of local Land Offcices/Dinas Pertanahan, a three-pronged division into · Core processes (processes directly creating customer value) · Support processes (like procurement, maintenance, human resource development etc.) · Leadership processes (processes for steering both core and support processes) will be preferable. For the sake of producing an immediate input at an initial stage of horizontal communication, however, the simplified form of presentation chosen will be more wor kable. 4.2.2.1 For customer relations The Good Practices described in this section are simple but effective means of enhancing transparency and convenience for the users of services of the land administration system. Customer information systems Both Semarang Municipality and Semarang District have established simple cus- tomer information systems, where at a terminal in the waiting room applicants can screen the status of their application by simply putting their name or address into the system and will get the relevant information without ha ving to consult any of the officials. The system has been realised with extremely modest means: an old 486-CPU PC with a DOS based software or a slightly more advanced Pentium-Sys - tem with a simple MSWindows application (both programmed by the staff itself, and a monitor. Besides increasing customer satisfaction, this system enhan ces efficiency (the staff don't not to handle the requests in person) and reduces opportunities for off-counter direct contact with applicants, which is a potential source of abusive arrangements being concluded. 96 Outreach to customers in remote areas Several examples of Good Practices have been found for enhancing outreach to cus- tomers in remote areas: · Solok Districtlocal Land Office has established a branch office (already functioning since 1999/2000 Fiscal Year), · Semarang Municipality is going to establish three branch offices with their respective Heads on the same level as a Camat/Head of Sub-District), · PasirDistrict will integrate land administration service delivery into the one roof service facilities going to be established in each of the 15 sub-district capitals, · Kudus District will create a branch office in the form of a UPTD at one of its important Kawedanan92 Information to customers Badung District Land Office has published an easy to read brochure (see Figure 39) which clearly indicates · the documents to be submitted and other requirements to be fulfilled for each type of land registration · the length of time that the processing of each type of application takes · the fees that have to be paid for each transaction This is a very good step to make service easier and more efficient and to establish transparency with regards to cost involved. Lombok Barat District/NTB has published similar information in the form of a series of single sheets (see Figure 40) Elimination of go-betweens Many applicants for land registration have been deceived in the past by allkinds of go-betweens, sometimes notaries or even persons without any offcial connection to the land administration system, sometimes by civil servants like village officials, BPN staff etc. In Sumedang District local Land Office the staff at the counters has been instructed not to accept any applications submitted by go-betweens. This is a bold move (and perhaps, if anybody takes the matter to the administrative court one that may not be entirely enforcable) against abuse and it would be useful if such arrangements could be given a legal base through Local Regulations (PERDA). 92 UPTD [Unit Pelaksana Teknis Daerah = Regional Technical Working Unit] is a special form of govern- ment administration unit which is more flexible in design than for example a Sub-Dinas(Branch of a local sectoral agency); the kawedanan is an administrative u nit of the pre-independence period, which did not figure in the Law No.22/1948 on regional autonomy which defined the basic territorial units. Whereas the kecamatan (sub-district) level, also not given a function in that adminstrative reform, was later revived, thhe kawedanan remained dysfunct. However in daily life, many Javanese still perceive the old kawedan- an structure as a local sub-centre, being positioned somewhere in between a district (kabupaten) and a sub- district(kecamatan) 97 Figure 39: Information brochure of Badung District/Bali Land Office for applicants seeking land certificates 98 Figure 40: Information sheet for applicants for first time registration of Land in Lombok Barat Land Office 99 Participatory mapping Surveying and cadastral mapping are not innocent activities, as they imply certain perceptions of how a society deals with its land resources. For this reason alone, and especially in thhe light of many traumatic experiences of adat-communities in many regions, participatory mapping is the tool of choice to meet the aspirations of the population without postponing ad infinitum the establishment of a proper land data base. There are participatory mapping activities in Kutai Kertanegara and Pasir Districts supported by an NGO called PLASMA (acronym for Environ- ment and Human Resources Development) based in Samarinda/East Kalimantan93. In Solok District the local government in collaboration with the local Land Office runs a pilot project for participatory boundary marking between the nagari which is at the same time an adat community and the lowest administrative level. The boundaries are fixed in a consensus between adat leaders of both communities, whose mandate to represent the community has been verified prior to the proceure. 4.2.2.2 For internal processing of applications It was beyond the scope of this study do determine whether - and if, in which way - processes could be streamlined in the local Land Offices. However, the examples presented here are interesting for · the tracking of applications found at Sidoarjo is an effort to structure the process, which can, together with tools described in the "leadership" section above considerably improve speed and quality, · the inventory of conflicts kept at Solok can be fed back into the registration process for quality improvement. Tracking of applications Sidoarjo District/East Java Land Office has developed a "Tracking Card" (Kartu Kendali), which allows to track the processing of an application from the time of it being received at the counter to the point where the certificate is delivered to the applicant. For every major process, a time target has been set and the major process stages defined. Each time the processing passes from one unit to another, receipt has to be acknowledged in the form by the receiving unit, making it possible to monitor not only total processing time but also the performance of each individual unit. In addition, a mechanism for the handling of complaints has been established, where every complaint has to go directly to the Head of Office's desk. The Head of Office will then use the tracking system to identify the bottle-neck. 93 Under the biodiversity protection project of Kemala Foundation, for profile see http://www.bsp - kemala.or.id/plasma.htm 100 Figure 41: "Tracking Card" introduced in Sidoarjo District Land Office 101 Keeping track of land conflicts In Solok District/West Sumatra a register is kept of land conflicts in the service area of the land office and the development of cases (non-litigative + litigative) is tracked and included in the reporting system. This allows feed backs for improve- ment of the handling of registration processes in a region where the uneasy co-exis- tence of the national land administration and adatperceptions of land tenure relatively easy lead to conflict. 4.2.3 Improving results Basically most of the Good Practices described in the previous sections will in some way or another improve results, in particular with regard to customer satisfaction. However, there is one specific result area which merits a special focus, i.e. the results for the land administration staff. In one particular local Land Office94 a peculiar situation was observed: the majority of computers and measuring equipment where privately owned, put at the disposal of the Land Office by employees pursuing the surveying activities as private small entrepreneurs after office hours. The question may be asked why this state of affairs is treated in the "Good Practices" section and not in a "miscellaneous abuses" chapter. The reason is simple: the private surveying business of some staff with private instruments is a Good Practice, because · it generates revenue by useful professional work rather than by extracting additional income from abusive practices in a situation where remuneration is too low to make a decent living, let alone face the temptations of the "big money" environment that the land administration system is · practise for its staff in decent surveyingis a gain for BPN, especially in view of the acute shortage of qualified surveying capacity within BPN; before starting to outsource (or at least parallel to the outsourcing process), BPN needs to develop adequate supervision capacity · civil servants pursuing additional gainful activities besides their job in state administration is a phenomenon that can be observed in many countries (including industrialised countries where civil service remuneration does not create a poverty problem), even whe re civil service remuneration allows a decent living. The important thing is not to prevent such additional gainful activities, but to regulate and to manage them in order to become compatible with the requirements of orderly state adminis- tration. This means, that there are a couple of requirements which should be met before it is resolved to tolerate the above described situation: · the government job should not become a secondary job (which is presently under the con- dition of strict rules prohibiting such engagement not exactly a rare exception), denying an applicant the service sought in one's function as civil servant only to offer that person the same services privately after office hours has to be avoided: 94 For obvious reasons it has been decided to anonymise this particular example. 102 · functional conflicts of interest will have to be avoided, for example if local Land Offices are charged with supervising the work of private licensed surveyors (a surveyor should not supervise himself) These conditions may have to be amended, but it is important that the discussion will be opened for the sake of transparency. 103 5 Recommendations The recommendations presented here have been developed not from a specific subject perspective (institutional set-up, forestry, community land rights etc.), like the theme cycles of LAP I-C, but rather from a level-specific perspective (local Land Offices in the sample) on the system. Although these two perspectives are partly overlapping ­ mostly mutually reinforcing, rather than contradictory - they are also complementary. So the first and foremost recommendation is to avoid reinventing the wheel: · The work of the 3 LAP I-components merits a systematic evaluation from the Indone- sian side in the light of the changed environment under decentralisation. An important element of such an evaluation would be to determine the "building blocks" from the policy component (LAP-C) that can be helpful for strategy development in the new context · An evaluation of the institutional strengthening measures (LAP-B) would almost cer- tainly yield interesting material for the enrichment of the "Good Practices" examples presented in section 4 above · Although it should be clear from the analysis about demand and service delivery ca- pacity that investments into mass adjudication should be second priority (only to be reconsidered after upgrading the system), a systematic evaluation of the LAP-A com- ponent could yield interesting insights into the future handling of systematic adjudi- cation in areas that wish to launch such programmes. The quality management approach presented as conceptual framework of this study has, apart from all recommendations for particular aspects of the system, some far-reaching general implications for future programmes, regardless what their source of funding might be. To be successful, efforts to enhance the quality of service delivery have to be · Comprehensive : if only individual aspects are tackled (computerisation, human re- sources development, building facilities etc.) the impact will normally fall short of expectations · Participatory: Quality concerns everybody in the system · Multi-stakeholder: the concept of partnerships as enablers, the splitting into a tech- nical supervision level (BPN Pusat) and a working level (Dinas Pertanahan), catering to the needs of different customer groups as well as a generally more customer orien- ted service delivery are all factors that demand multi-stakeholder approaches To systematise the presentation of the specific recommendations, they have been organi- sed along the lines of the target audiences to which they are addressed95: · Policy level: GOI with BPN and other institutions involved in Land Information Sys- tem building and Land Resources management · BPN Pusat with local governments and their respective Dinas Pertanahan · Local governments together with their Dinas Pertanahan, supported by BPN Pusat 95 cf. also Figure 7 on inter -level linkages in the land administration system 104 As the current study has also found itself in a more concrete context of preparation for a sequel to the LAP than originally anticipated, some remarks are also addressed to those who are going to design that programme on the part of both the Indonesian government and the World Bank (Section 5.4), some remarks on the process of possible future imple - mentation conclude this section and the report. 5.1 Policy level: GOI with BPN and other institutions involved in Land Information System building and Land Resources management The absence of vision and strategies is one of the most serious quality management pro- blems of the land administration system. The following fields are among those requiring urgent action: 5.1.1 Develop a better division of tasks between different institutions involved in land questions The past division of tasks between the economic planning agencies on local leve l (BAPPEDA) the District Head/Mayor and the local Land Office with regard to land use and land allocation issues has failed to produce a system that is both customer friendly and supportive of sound spatial planning. In addition, it constitutes also an additional work load for the local Land Office/Dinas Pertanahan in a situation, where the proper execution of the latter's cadastral tasks will ask a substantial and sustained effort. Reduce the role of local Land Offices in land use permits to technical support (providing data etc.), this would · Significantly reduce the role of BPN as a target in case of conflicts · Relieve BPN from a task for which it is not particularly well equipped (e.g. the number of soil science and spatial planning experts in local Land Offices is almost insignificant) · Reduce resistance to giving BPN the right to survey and register forest lands · Make land use management easier to co-ordinate · Close a loophole for corruption It is also not quite clear, whether the arrangement of the Minister of Home Affairs and Regional Autonomy acting ex officio as Head of BPN Pusat is the optimal institutional arrangement. It brings the Minister in a potential role conflict: on one hand, he supervises the regional administration, on the other hand he is a sort of manager of a service delivery unit of which the regional governments are clients/customers. The confusion in many re- gions created by the letter of the Minister annexed to the Presidential Decree No.10/2001is an indicator that such role conflict is not completely hypothetical. 5.1.2 Develop a viable mid-term decentralisation concept for BPN For the cadastral system itself, it will be important to develop a mid-term decentralisation concept, that creates the necessary regulatory framework and administrative procedures to 105 put an efficiently working cadastral system in place. This demands collaboration of the legislative and several government agencies apart from BPN itself, like the Ministry of Home Affairs and Regional Autonomy, BAKOSURTANAL and the Ministry of Finance. Whereas action is needed mainly by institutions of the centre to bring about the major part of this change, its concrete shape should be worked out in close consultation with the regions. Important points in the decentralisation concept include: 1. Demand responsive services · Offering the legal products demanded by society: in the first place a possibility for the registration of customary law based community land rights in accordance with local perceptions should be provided (see also Section 5.1.3 below). · Tailoring the organisation to the requirements of service delivery: Whereas it seems useful (as stipulated by Government Regulation No.25/2000) to maintain nationally uniform standards of services, requirements for professional qualification etc., the actual structures for service delivery should be made more flexible to meet the needs of customers in the regions and the financial capacity of the regions. · For the delivery of support services by BPN Pusat to the Dinas Pertanahan, a concept of de-concentrated units will have to be devised. This could be built upon a reorgani- sed Kanwil structure, without, however, making a dogma of maintaining aLanwil in every province. 2. Finance Whereas the system as a whole had, at least until the FY 1998/1999, an excellent rate of cost recovery even by international standards (>100%), the distribution of income among local LO has always been extremely uneven. Mechanisms for · raising income levels or cutting costs at the low -efficiency units will have to be devised. · cross-subsidy within the system will have to be developed in a way that does not re- ward inefficiency but guarantees a minimum level of availability of land administra- tion services all over the country. The revision of the fee system in 1999 should be reconsidered, as this in practice means, that the previous system of full cost recovery has been abandoned in favour of subsidised service delivery. Although it can be argued, that income from PBB and BPHTB is more than sufficient to sustain the land administration system, it would be preferable to use this income only for the necessary major investments into the system for upgrading human resources, geodetic infrastructure, building facilities etc. If a small proportion of the land related tax revenue is used for performance based incentives for land administration staff that is a different matter, as such expenses will be recovered by increased collection effi- ciency. A matter presently discussed is the transfer of BPN Pusat assets in the local Land Offices. According to the Decentralisation Law No.22/1999, these assets become automatically assets of the respective local governments as part of the devolution. However, the formal transfer has not yet taken place and there are voices demanding recompensation from the 106 local governments for the assets transferred. Apart from the considerable difficulty of as- sessing the value of these assets, such a procedure would be in contradiction with the De- centralisation Law No.22/1999's spirit and place an additional burden on public finance in the regions which are in many cases already in a critical state. 3. Division of tasks between BPN Pusat andDinas Pertanahan Whereas a framework has been set for the division of tasks by Government Regulation No.25/2000, the detailed arrangements will have to be further specified. This will be an extended process of trial and error as well as considerable need for negotiating. Some pragmatic principles for this process are proposed here · Those matters where the regions do (administratively) better than the central government (BPN) -> let the regions do them. · Those matters that only the central government (BPN) is able to do technically or for administrative reasons -> let the central government (BPN) improve itself to do it · Guidelines `(human resources: minimum qualifications, composition in a LO etc.; tariffs: ranges for minimum/maximum, base for calculating etc.; procedures: especial- ly for guarding quality of core processes etc.; basis data structure: unified parcel identifier system) are urgently needed and can at the present stage only be provided by BPN Pusat · Decentralisation offers a chance (not a guarantee) to curb the rampant corruption which marked the system in the past. Only if the victims of abuse in the regions can hold its perpetrators accountable trough mechanisms directly controllable (i.e. through parliamentary control in the region), is there a chance of curbing corruption and reducing the number and scope of land related conflicts. Therefore, day to day routine tasks should be with the local Dinas Pertanahan, without interference from the Pusat, regardless the size of plots. · BPN Pusat should stay in charge of question related to geodetic infrastructure, other- wise the country risks to get a collection of 300 or more isolated Torrens systems rather than a seamless cadastre Decentralisation would force the measure of external structural change upon the orga - nisation that could induce an internal defreeze, enabling the management to push through real reforms and change the mindset of its staff. In this sense, decentralisation should be perceived as an opportunity rather than a threat, 5.1.3 Improve legal security of land tenure Legal security was the most important quality feature for land administration services as seen from the demand side. Apart from upgrading the Dinas Pertanahan's service deli- very capacity, improving legal security of land tenure will be essential to meet that de- mand. To this end, two measures are of strategic importance: · Define appropriate ways of adjudication for customary law/adat rights onland, which means bringing codified law and formal administration in line with social norms of communities (like in the restoration of nagari administration in West Sumatra). By 107 doing so it could be avoided to compromise on the necessity of building a compre- hensive cadastral system, but adapting the cadastre to the needs and perceptions of the population. National legislation should provide a framework, to be filled by local as- semblies with Local Regulations (PERDA) adapted to the situation in their respective region. · Gradual transition towards a positive title system, this could provide the kind of secu- rity of tenure that really advances conflict prevention and enhances attractiveness for investors. It should be noted, however, that for the protection of land owners really to reach satisfactory standards, a parallel improvement of the procedures for suing the government at administrative courts would be required. Other issues, like private land property (hak milik) for companies, demand thorough study with regard to its socio-economic impacts before decisions of far reaching consequences are taken. Comparative studies in that field would be useful to be undertaken not only in transitional systems like Eastern Europe, but also e.g. Malaysia which has achieved re- markable economic success without totally privatising land tenure (and is among the most advanced cadastral systems in the region). 5.1.4 Improve legal framework for addressing major managerial issues For improving the performance of the system in terms of results for the staff and results for society, a number of legal regulations in different fields would have to be revised. These include the fields of civil service administration, public finance and legal proce- dures within the government apparatus: · Promulgate regulations for secondary jobs, incentives and other measures for impro- ving the material situation of BPN staff in a legally acceptable way. · Require KPBB to transfer all data from fiscal cadastre to Dinas Pertanahan, and taxes to be levied by KPBB based on transparent information from Dinas Pertanahan. · Give BPN the right of investigation into dubious files submitted for registration pur - poses These are only the most far-reaching and urgent issues, many more can be expected to appear on this list once first experience with the working of decentralised system become available. 5.1.5 Develop a strategy for integrating BPN into the National Geographic Infor- mation System (SIGNAS) Up to now, BPN has played a somewhat marginal role in the National Geographic Infor- mation System (SIGNAS). As without sound cadastral information that system will be crippled from the outset, finding ways towards a more intensive integration of BPN, tech- nically and institutionally, would be helpful, especially as a complement to the efforts of improving the quality of spatial planing withthe establishment of a national co-ordina tion body at the Economic Planning Board (BAPPENAS). 108 5.2 BPN Pusat with local governments and their respective Dinas Pertanahan It would be a bad service to the land administration system to misunderstand the decen- tralisation measures as a means of creating a rift between BPN Pusat (including its decon- centrated service delivery units in the regions) and the Dinas Pertanahan. Ideally, the opposite should be the case: By offering demand responsive services in fields like human resource development, technical support or managerial consultancy, BPN Pusat could become a much sought after partner of the Dinas Pertanahan, no longer being perceived as the meddlesome supervisor of old. 5.2.1 Develop a demand responsive and comprehensive "Business Plan" for BPN Pusat as a service and standard setting unit BPN Pusat has so far failed to develop a clear concept of how to fulfil the tasksset out in Government Regulation No.25/2000. For the land administration to function well, it will have to substantially improve its performance in terms of technical back-up, working out of service standards, policy development etc. Therefore a viable business plan should be developed as soon as possible, including suitable service delivery structures (which can be built by reorganising the Kanwil network). Points of departure for the process of developing such a business plan are · defining in close collaboration with the Local Governments (of which local Land Offices are part) the services that are needed from BPN Pusat to enable the local land administration to deliver the desired services to the end users · in addition to these "felt need" analysis, define important additional requirements by way of international benchmarking 5.2.2 Develop a framework for quality management in the land administration system In the past many efforts to improve land administration services on all levels have failed not only because of the not too condusive political framework conditions, but also be- cause of the often rather piecemeal approaches in addressing what are highly complex systemic problems. A Total Quality Management approach, like the EFQM model pre- sented in this report with its strong focus on continuous organisational learning processes could help to redress this situation. Levels of intervention for the building of a quality management system would be · System wide · For local Land Offices · For the service units at the central level As it will be impossible to address the whole multitude of factors influencing the quality of the system at once ­ the way to excellence is a thorny one, even in private sector com- panies with already highly sophisticated management ­ a limited number of issues could be used as entry points, i.e. 109 · drawing up a human resources development strategy · improving public relations · establish mechanisms of horizontal communication and learning · develop a tool for taking investment decisions at Dinas Pertanahan · an assessment and streamlining of the core processes of land registration To elaborate even an outline of the process of implementation of that process would lar- gely surpass the scope of this study, but quite a number of "building blocks" could be gathered from the interviews with land administration staff in the regions. These are briefly presented in the following five sections, which can also be understood as initial projects to be undertaken as steps to build a quality management system in the medium and long term perspective. 5.2.2.1 Define a Human Resources Development (HRD) Strategy This is an issue of great potential for stimulating organisational learning processes, as it opens the eyes for many related questions like organisational structure, results achieved for the staff (remuneration etc.). It also addresses an immediately visible problem, the acute shortage of qualified staff in most regions. The strategy could include the following HRD elements: Placement: · Reduce number of Kanwil, establish supra-provincial regional service centres (as de - concentrated service delivery units of BPN Pusat) and use the staff set free to streng- then local land offices · Providing career opportunities by making sure that talented staff doesn't get "stuck" on the local Land Office level because of decentralisation Incentives · Incentives (salary bonus, accelerated promotion, training schemes, secondary job op- portunities etc.) for technically qualified staff (including specialist in land administra- tion) to become more attractive especially for surveying experts and to boost motiva- tion Adapted training schemes: · CBT96 · Modular skill recognition system The development process for the HRD strategy is particularly well suited to the use of self assessment procedures in the different units of the system, which will be a core fea- ture of the entire process of building the quality management system. 96 Competence Based Training 110 5.2.2.2 Improve Public Relations The improvement of public relations might seem an issue of secondary importance at first sight, but it is important as a learning tool for overcoming the at times somewhat autistic organisational culture of BPN. What is more, learning to look outward always sharpens the sight for looking inwards. Concrete tools in the process could range from · a homepage to start with... · regular active participation in communication structures on land administration at all levels to more far reaching steps, like · systematically participating in non-litigative conflict resolution processes on land questions · moves to correct past errors, establish mechanisms (e.g. "Truth Commission") for correcting past errors/abuse to clean up the system (trace existing false certificates etc.), lest they become time bombs haunting the system for years to come 5.2.2.3 Establish mechanisms of horizontal communication and learning Continuous organisational learning as a corner stone of quality management is unthinka - ble as a vertical one way (top-down) process. Horizontal communication between profes- sionals is essential to stimulate reflection upon one's work (where is my position as com - pared to what is "state of the art" or more general, what are the others doing), which is in turn the quintessential pre-requisite for processes of learning and improvement. One of the important general observations during the field studies was, that the · negative public image of BPN · the fervent, but not always very informed critic from outside of its work · the generally low self-esteem of the staff (virtual absence of professional pride) · the relative isolation from one another in which the different units operate · the deplorable working conditions, both in terms of the organisation's environment and the internal situation create a highly stable system of negative thought, in which the focus is always towards deficiencies, bottlenecks or problems without offering alternative routes of positive thought. To provide creative disturbance to such a system which can become impulses for change, it is necessary to confront the system with the possibility of the positive as a way to subvert the stability of the negative. On the level of concrete tools, the Good Practices approach is a means of providing such disturbance. Thus, as a sequel to the report and the regional workshops, it is suggested, that either BPN Pusat (e.g. the R&D unit Litbang) or any Dinas Pertanahan establish a Good Practices network, either by means of a home- page or a newsletter, where a systematic data base is built for Good Practices from the regions which can be called upon by all Dinas Pertanahan. This will also provide a first 111 step towards future benchmarking, identification of Best Practices and standard setting. In a medium term perspective, such a network can become one of the strongest drivers of organisational learning. 5.2.2.4 Develop a tool for taking investment decisions at Dinas Pertanahan Most of the important investment decision have so far been taken at the central level, with sometimes insufficient consultation of the local Land Offices. In the future, investment decisions will have to stand the scrutiny of local governments and local assemblies to get funds earmarked for it, or, in case that Dinas Pertanahan are given the right of retaining some income for investment, will have to be justified ex post. To empower these units for meeting the challenge, the participatory development of a tool (e.g. by a working group of BPN Pusat through a series of regional workshops, ultimately taking the form of a manual or the like) for arriving at valid investment decisions could be a process that yields lear- ning experience beyond the immediate improvement of procurement projects. By analy- sing parameters like (list is not exhaustive) · Customer value created by new hardware · Classical micro-economic considerations like return on investment, costs incurred through depreciation etc. · incremental costs incurred (requirements for physical environment, maintenance, electricity, license fees etc.), · human resources development costs incurred by each technological choice, · connectivity of the technology (cost for data exchange with other systems, e.g. fiscal, land use management, general public etc.), · cost incurred for proper risk management for each technological choice, · proper sequencing of investments (e.g. priority for areas promising a relatively quick and high return on investment, the interlinkedness of the different fields can be concretely grasped. The general module could be complemented by specific modules describing how to arrive at proper choices for surveying, data storage and processing technology, providing feasible models for Dinas Pertanahan with different capacity requirements, different stages of development and different resources for investment. 5.2.2.5 Improve core processes Core processes for land registration have been defined in the Instruction of the State Mi- nister of Land Affairs/Head of BPN No.3 of 1998 (Instruksi Menteri Negara Agraria/Ke- pala BPN Bo.3 Tahun 1998). As these procedures have an immediate bearing on the le- gality of the products (certificates) of the land administration on the one hand and an im- portant impact on the quality of service delivery (timeliness, cost etc.) on the other hand, it would be a classical task for BPN Pusat (in close consultation with a representative choice of Dinas Pertanahan) to review these processes and if possible, streamline them. Apart from the immediate internal processing, the improvement of the processes should also involve among others 112 · appropriate ways of involving the village administration in the adjudication process · the integration of community participation mechanisms at different stages (like participatory mapping, non-litigative conflict resolution etc.) This project could give a positive impetus to the maintenance of an adequate degree of national uniformity in land administration by providing a flexible framework, with de- fined corridors and options. 5.3 Local governments together with their Dinas Pertanahan, supported by BPN Pusat Even within the margin of manoeuvre that the present system offers to the local govern- ments and their Dinas Pertanahan, i.e. before major changes on higher levels, conside- rable improvements can be implemented in various fields97. Some of the improvement projects suggested below could also be a powerful means of advancing the learning pro- cess in local governments and local assemblies with regard to how to cope with the new task of managing land administration. 5.3.1 Establish a medium term development plan for the Dinas Pertanahan Both to take the administrative responsibility that comes with the integration of the Land Office into the local government apparatus and to establish a general framework for other improve ment projects, the local government would profit from drafting a medium term development plan for its Dinas Pertanahan. Important issues to be addressed in this deve- lopment plan at the present stage could include: · Analysis of the local "market" for land administration services and establishing of income projections from service fees, PBB and BPHTB · Analysis of the cost structure (costs per deed, staff efficiency etc.), determine measures for enhancing efficiency (e.g. adequate organisational structure, adequate staffing) · Working out a medium term projection for routine budgets · Analysis of hardware requirements (building facilities, office equipment, measuring equipment, vehicles), establish a medium term investment plan To anchor this development plan firmly in the local development strategy, its major ele- ments should be incorporated into the region's Renstra98. Financial targets and strategies to increase local income can be co-ordinated with the Dinas Pendapatan Daerah and BAPPEDA, the investment plan has to be closely co-ordinated with BAPPEDA to make 97 In extremis ­ should there occur a backlash in decentralisation ­ some of the improvements could even implemented by the local Land Office 98 rencana strategis = strategic [development] plan, an official medium term planning document 113 sure it fits into overall local priorities. Ideally, co-operation with the local assembly will be sought already during the preparation of the plan, if that is impossible, it can be used as a base for the local government's lobbying for budgets for its Dinas Pertanahan. 5.3.2 Improve customer relations Direct evidence from the field survey, described already in the Good Practices section above, proves, that at least in the following fields immediate action can (and should) be taken · Customer information system in the Dinas Pertanahan · Municipal intranets (the not yet entirely satisfactory progress in implementing the model in Semarang Municipality should not be taken as a principal argument against the endeavour) · Outreach by establishing branch offices, mobile units etc. · Improve complaint management It should be notices that these measures are all to be located in the low cost category, this applies even to the establishment of branch offices if it draws on existing infrastructure like the Sub-District administration. 5.3.3 Participation Mechanisms Although NGOs have played a pioneering role in pressing for more community partici- pation, in the medium and long term, this participation will have to be formalised. This formalisation process is a task of the democratically elected bodies in the region. Some options, partly taken from existing examples in other sectors may be considered for the field of land administration: · Establish a Supervisory Board like the Badan Pengawasfor PDAM (Public Water Works) · User Committees: draw on the idea of Komite sembilan (Committee of 9, cross- sector body with some non-government representation) for compensation issues, but make it less government and more community oriented · Take up and develop existing participatory approaches like "participatory mapping" (pemetaan partisipatif) or participatory boundary fixing between adat communities, like between different nagari99 in Solok District/West Sumatra. 99 Lowest administrative unit in West Sumatra province, which has replaced the desa/village of the pre-decentralisation system and which is congruent which an adat/customary law unit 114 5.3.4 Manage the PPAT100 system and the role of the village administration As the local governments on district and town level have some measure of authority over the lower level units, they can bring about some improvement in this sector as well, both by issuing local regulations and by stepped-up monitoring · Camats (sub-district heads) should not automatically be PPAT, to avoid role conflicts and involvement of persons not having adequate legal training for that function · Regulate what function village administration staff should and should not have with regard to applications for land registration (e.g. not acting as go-betweens) · Public display of titling requests in the villages/urban quarters of the plot to be registered, not only at the local Land Office/Dinas Pertanahan · Improve complaint management with regard to the functioning of the village administration The unified chain of command, which brings the former land office and the village administration under the same management (i.e. district or town administration), supervised by an elected body, the local assembly, is an improvement with considerable potential if wisely used. 5.4 GOI with World Bank The experience of LAP I and the results of this study allow to establish a few "lessons learnt" for the design of future projects in land administration. The past project has been marked by · A misguided focus: the bulk of the funds went into the adjudication programme which only marginally improved the proportion of land registered during the period of implementation · A not too satisfactory unit price (cost per deed) in its adjudication part · A lack of system building (the institution building, policy advice and adjudication component did not form an integrated approach for enhancing the land administration system's capacity) · An approach that lacked a clear understanding of the roles of advisors and clients: consultants sometimes did BPN's work, sometimes they worked parallel with BPN, many of the interesting results basically remained un- or underutilised. To avoid such problems in the design of a future programme, the following approach is proposed: 1. Start the new programme with low input measures, like 100 Pejabat Pembuat Akte Tanaha function for legalising land transfers 115 · the change projects proposed under section 5.2 above for BPN Pusat (the approaches are participatory and can yield tangible results with only very limited input in consul- ting services) · business plans for a few selected local Land Offices 2. Evaluate these projects and have priorities for investment defined by BPN and local Land Offices 3. Select projects that promise a contribution to build the system by · Providing examples to be emulated not just by upgrading hardware, providing training or streamlining structures, but by setting examples for a systematic process of change · Strengthening horizontal exchange (Good Practice network via internet, workshops etc.) · Strengthening the service delivery capacity of BPN Pusat for supporting the regions Large scale projects more or less directly subsidising service delivery to the end user like the adjudication scheme are inefficient and just keep a system going that rather needs a fundamental overhaul. A full fledged user survey for the land administration was unfortunately out of the scope of the present study. However, as an element of · the inception process to a future sequel to the Land Administration Project · the building of a quality management system for land administration such an undertaking would be highly desirable. Such a survey could be based on a sample derived from · Data from BPN (ask for smooth cases and for problematic cases) · Data from BPN: applicants selected at random to be interviewed · Data from LBH101: citizens being involved in land conflicts · Interviewees selected at random from the public phone directory or the like Such a survey could at the same time validate the findings on the demand structure and specify them (by income group, by professional group, for rural/urban population etc.). 5.5 Notes on the Process of Putting the Recommendations to Work The degree to which the above mentioned recommendations can be implemented at once - if the respective target audiences wish so ­ varies considerable. Especially the more far reaching restructuring measures suggested in Section 5.1 need certain legal products on 101 Lembaga Bantuan Hukum (Legal Aid Institute): The biggest and most professional NGO in Indonesia delaing with land related legal cases 116 the level of central government to be promulgated. A (provisional) list of such legal products is given below to indicate the pre-requisites for the processes described: 1. A revised Basic Land Law (Undang-Undang Pokok Pertanahan, currently under discussion) that replaces both the Undang-Undang Pokok Agraria and (at least) the relevant sections of the Basic Forestry Law: · For providing a framework for local regulations that allow the registration of com- munity rights/customary law rights to be registered in a way that is commensurate with the aspirations of the local communities · For clearly defining the role of different agencies in land administration (like giving responsibility for the cadastral surveying and registering of all lands, including forest lands to BPN+local Dinas Pertanahan, re-assigning the function of planning and permit issuing for land use, etc.) 2. A Government Regulation (Peraturan Pemerintah/PP) based on the Decentralisation Law No.22/1999 and completing PP25/2000, which regulates human resources related issues in the decentralised land administration system. 3. A Government Regulation (minimal), referring to the relevant legislation on civil service organisation which enables local governments to promulgate Local Regulations (PERDA) for defining the conditions under which their staff are allowed to involve in gainful activity besides their duties as government officials 4. A Government Regulation based on the Decentralisation Laws No.22/1999 and No.25/1999, completing PP25/2000, which regulates the financing of the system. Other issues can be dealt with in local regulations or do not require regulatory measures. 117 ANNEX : Bibliography Bibliography Barnes, G. et al., GPS Methodology for Cadastral Surveying and Mapping in Albania. Working Paper No. 17, Albania Series. Madison: University of Wisconsin Land Tenure Center (1998) Blomkvist, L.-G.A./Djuwadi, Forest/Non-Forest Land Issues in Indonesia . Report for Land Administration Project - Part C (IBRD Loan No. 3792 - IND). Jakarta: BAPPENAS (2000) Feith, H., The Decline of Constitutional Democra cy in Indonesia. Ithaca/New York: Cornell University Press (1962) Fourie, C./Nasution, A.A., "The Institutional Setting for Land Management Policy - Indone- sia" Report for Land Administration Project - Part C (IBRD Loan No. 3792 - IND). Jakarta: BAPPENAS (2000) Hawerk, W., "Cadastral Systems in Developing Countries - Technical Options", paper presented at the FIG's Symposium on Cadastral Systems in Developing Countries, Penang,/Malaysia, 1997 Henssen, J., "Basic principles of the main cadastral systems in the world", paper presented at the Modern Cadastres and Cadastral Innovations Seminar of FIG Commission 7 in Delft, Netherlands, May 16, 1995 Holleman, J.F. (ed.), Van Vollenhoven on Indonesian Adat Law, Leiden: KITLV (1981) Jazoj, A. et al., Surveying and Mapping Strategy for Supporting the Emerging Land Market in Albania. Working Paper No. 2, Albania Series. Madison: University of Wisconsin Land Tenure Center (1997) Kadir, A.M.bin A., "Towards the Implementation of Co-ordinated Cada stral System for Malaysia: An analysis of Results of a Pilot Study in the State of Melaka", Paper presented at the Symposium on Cadastral Systems in Developing Countries, Penang/Malaysia 1997 Kahin, G. McT., Nationalism and Revolution in Indonesia. 3rd ed. Ithaca/New York: Cornell University Press (1955), Kartodirdjo, S., The Peasant's' Revolt of Banten in 1888. Its Conditions, Course and Sequel - A Case Study of Social Movements in Indonesia. Verhandelingen van het KITLV No. 50, The Hague: Martinus Nijhoff (1966) Kaufmann, J. and Steudler, D. (eds.), Cadastre 2014. A Vision for a Future Cadastral System. Working Group 1 of FIG Commission 7 (1998) Koentjaraningrat, Anthropology in Indonesia. A Bibliographical Review. KITLV Biblio- graphical Series No.8. The Hague: Martinus Nijhoff (1975) 118 ANNEX : Bibliography Legge, J.D., Central Authority and Regional Autonomy in Indonesia: A Study in Local Administration1950-1960. Ithaca/New York: Cornell University Press (1961), pp.28-52 Lembaga Administrasi Negara, Almanak Organisasi Negara Republik Indonesia 1960. Jakarta: Lembaga Administrasi Negara (1962) Liaw, Y.F., Undang-Undang Melaka. The Laws of Melaka. Bibliotheca Indonesica No.13. The Hague: Martinus Nijhoff (1976) Löffler, U. "Land Tenure Developments in Indonesia" Report for GTZ Division 4250, Eschborn: GTZ (1996) Mackie, J.A.C. "The Indonesian Economy 1950-1963" in B.Glassburner (ed.), The Economy of Indonesia. Selected Readings. Ithaca: Cornell University Press (1971), pp.16-70 Mohamed, Dato A.M.B. et al., "Cadastral Reforms in Malaysia", paper presented to the 21st FIG Congress, Brighton, 1998 Mortimer, R.A., The Indonesian Communist Party and Land Reform 1959 -1965. Monash Papers on Southeast Asia No. 1. Clayton/Victoria: Centre of Southeast Asian Studies, Monash University (1972) Paulus, J. et al. (eds.) Encyclopædie van Nederlandsch -Indië. 7 vols. (4 main + 3 supple- ments). The Hague: Martinus Nijhoff (1917-1935) entries: Decentralisatie, Grond (Rechten op de), Kadaster, Kaartbeschrijving, Landmeters, Topogra- phische Dienst, Triangulatie Petebang, E. et al. eds., Konflik Etnik di Sambas. Jakarta: Institut Studi Arus Informasi (2000) Pigeaud, T.G.Th., Literature of Java. Catalogue Raisonné of Javanese Manuscripts in the Library of the University of Leiden and Other Public Collections in the Netherlands. 3 Vols. The Hague: Martinus Nijhoff (1968) Reid, A., The Blood of the People. Revolution and the End of Traditional Rule in Northern Sumatra. Kuala Lumpur: Oxford University Press (1979) Robison, R. Indonesia: the Rise of Capital. Canberra: Asian Studies Association of Australia (1986) Schrieke, J.J., De Voornaamste Wettelijke Bepalingen Betreffende de Decentralisatie van 1903 en de Inlandsche Gemeenten en hare Grondbeginselen, Batavia: Landsdrukkerij (1917) Spit, H.J., De Indische Zelfbesturende Landschappen . Hun Mate van Zelfstandigheid., Ph.D. Thesis (1911?) Steudler, D. et al. "Benchmarking Cadastral Systems", in: The Australian Surveyor, Vol.42 (1997), No.3, pp. 87-106 119 ANNEX : Bibliography Sulistyo, H., Palu Arit di Ladang Tebu. Jakarta: Kepustakaan Populer Gramedia (2000) Sundhaussen, U. "The Military: Structure, Procedures and Effects on Indonesian Society", in Jackson, K.D./Pye, L.W. eds. Political Power and Communications in Indonesia . Berkeley: University of California Press (1978)pp. 45-81 Tjondronegoro, S.M.M., "The Utilisation and Management of Land Resources in Indonesia, 1970-1990", in Harjono, J. ed., Indonesia ­ Resources, Ecology, and Environment. Singapore: Oxford University Press (1991) van den Haspel, C.Ch.. Overwicht in Overleg. Hervormingen van justitie, grondgebruik en bestuur in de vorstenlanden op Java 1880-1930. KITLV Verhandelingen No.111. Dordrecht: Foris Publications (1985). Walijatun, Dj., "The Indonesian Land Administration Project. Strategies and Issues.", paper presented to the FIG Singapore Conference 1997 Wallace, J., "A Methodology to Review Torrens Systems and Their Relevance to Changing Societies from a Legal Perspective" Paper presented at the UN and FIG's International Conference on Land Tenure and Cadastral Infrastructures for Sustainable Development, Melbourne 1999 Williamson, I. Institutional Framework Reforms for Land Administration. International Comparative Review. Report for Land Administration Project - Part C (IBRD Loan No. 3792 - IND). Jakarta: BAPPENAS (2000), p.30 Zain bin Mohd. Yusof, N.M., "The National Infrastructure for Land Information System (NALIS) - Applying Information Technology to Improve the Utilisation of Land Data in Malaysia", pa per presented to the Symposium on Cadastral Systems in Developing Countries, Penang/Malaysia, 1997 Documents: "Bogor Report" Report of the United Nations Meeting of Cadastral Experts Held at Bogor, Indonesia, 18-22 March 1996 120 ANNEX 2: Participating countries FIG benchmarking survey Countries participating in the FIG benchmarking survey for quality of cadastral systems A-ACT Australia-ACT IRE Ireland ALB Albania ITA Italy A-NSW Australia-NSW JPN Japan A-QLD Australia-QLD KOR Korea (Rep. of) ARM Armenia KRG Kyrgyzstan A-SA Australia-SA LAO Lao PDR A-TAS Australia-TAS LAT Latvia AUT Austria LIT Lithuania A-VIC Australia-VIC LUX Luxembourg A-WA Australia-WA MAY Malaysia BLR Belarus NED Netherlands BRA Brazil NOR Norway BRU Brunei-Daruss. NPL Nepal CAN Canada NZL New Zealand CZE Czech Republic PHI Philippines DEN Denmark PNG Papua-New G. EGW England & Wales POL Poland EGY Egypt SA South Africa FIJ Fiji SEY Seychelles FIN Finland SIN Singapore FL Liechtenstein SUI Switzerland GER Germany SWE Sweden GRE Greece THA Thailand HNK Hongkong UGA Uganda HUN Hungary VIE Vietnam IDO Indonesia YUG Yugoslavia ZAN Zanzibar 121