In commemoration of World Land Day, December  5,  2020, the Center for Agricultural Land Resources (BBSDLP) conducted a series of activities with the theme “Keep soil alive, protect soil biodiversity”. The Head of BBSDLP, Husnain, hopes that the theme can raise awareness of the importance of maintaining a healthy ecosystem and realize the high challenges in land management that can reduce soil biodiversity. “We want to be able to become agents to promote awareness of the importance of land in all aspects so that it can encourage various parties including government, organizations, universities, students, the general public, communities and individuals to help promote the movement of land awareness,” he said. Husnain (SuaraTani.com, December 3, 20020).

The theme of maintaining biodiversity is very important and interesting, because we are currently experiencing problems of deforestation, land conversion, and the weakness of land support for food self-sufficiency (The Economist, 2018). But what is more important is: how to maintain sovereignty over land, which includes food agriculture land, plantations, or forests? Therefore, we take up this theme in this discussion. In particular, we want to look at it from an Islamic perspective. The “Sovereignty” in this case we define as managerial control over land independently without interference or interests of other parties, either directly or indirectly. We hope that the land remains functional for the welfare of the citizens. On the other hand, we do not expect control of the land to be under a few people or a group of people. We also do not expect control of the land to come under big investors, especially if their existence is under the shadow or an extension of a foreign country. We are fully aware that the sovereignty of a country exists as long as the country has full control/power over land, sea and air territories within the boundaries that are under its authority. If the land area – part of which is agricultural land, plantation and forestry – is under the control of another party, then it is feared that the country is gradually “amputating” its sovereignty.

Protecting the Land Which Does not Protect

For this reason, we need to study several laws related to land protection. In 2009, the Government and the DPR passed Law no. 41/2009 concerning the protection of sustainable food agricultural land (PLP2B). This law mandates all regional governments in Indonesia to allocate land as a center for food production that cannot be converted in a regional spatial plan (RTRW); and the land is referred to as “Sustainable Food Agriculture (LP2B)”. The farmers who dare to change the function of LP2B that have been determined based on Regional Regulations, the farmer will be jailed for five years or pay a fine of up to one billion rupiah (Article 72).

Referring to Article 5 of the Law, the agricultural land that can be designated as LP2B is technically irrigated land, reclaimed land for tidal and non-tidal swamps and/or non-irrigated land. In addition, related to the expansion of land potential that can be converted into LP2B, the Government has the authority to convert non-agricultural land into food-agricultural land (Article 29 Paragraph 1). What is meant by non-agricultural land in this case is abandoned land and land formerly forest areas that have not been granted rights over the land according to legislation (Article 29 Paragraph 3).

Thus, this Law illustrates the spirit of the Government to protect food-agricultural land, create adequate food availability for citizens, and realize food self-sufficiency. In line with that, this law provides legitimacy to create new rice fields originating from former land of forest concession rights (HPH) or other potential lands such as tidal or non-tidal swamps. However, what needs to be paid attention to in this case is that technically irrigated or non-technically irrigated rice fields are fields belonging to individual farmers that they have had for generations since centuries ago. The history of rice fields in Indonesia – especially in Java – comes from the efforts made by individuals to open forests and make them productive fields. In the traditional provisions of Javanese society, it is that individuals who clear a forest that does not yet have an owner, then that individual has the right to the rice field and can be inherited to his family, as long as the farmer family and their descendants are able to maintain the productivity of the land. If the individual is no longer able to maintain land productivity and leaves the land neglected, then the ownership rights of the rice fields will be transferred to the village communal property. This is evident from a survey conducted by the Dutch East Indies Government for two years, between 1868 to 869 (Kano, 2008).

Therefore, this Act actually seeks to maintain the sustainability of food agricultural land by pressing small farmers as land owners, namely forcing them to keep their land functioning for farming activities. In other words, this law has taken away individual farmers’ rights of freedom in managing land according to their interests. It is not surprising, therefore, that many farmers reject the plan to form LP2B, especially the farmers who are highly educated and farmers who see opportunities to use paddy fields for more profitable non-agricultural activities (Afriyanti, 2018). But on the other hand, the LP2B Law also states that agribusiness actors who can manage and develop LP2B as food centers are communities or companies whose main activities are in the field of food crop agribusiness, either in the form of cooperatives or nucleus-plasma companies (Article 27).

The government – on the basis of this law – has the legitimacy to provide forests to be cleared for food centers, as well as inviting private companies to engage in food production at upstream level. The government, among others, has formed the MIRE Program (Merauke Integrated Rice Estate) which later changed to MIFEE (Merauke Integrated Food and Energy Estate) with plans to clear more than one million hectares of forest to maintain national food security. The types of commodities to be cultivated in the Cendrawasih Earth are rice, corn, soybeans, peanuts, sago, sweet potatoes, vegetables and fruits (mango, orange and banana). This program has actually been initiated since 2008, but with the ratification of the UUPL2B, this program has become more legitimate. MIFEE is planned to involve 36 private investors. Through PP  (Government Regulation) No. 26/2008, Presidential decree (Perpres) No. 5/2008, which was developed with PP No. 18/2010, MIFEEE plans to clear and develop 1.23 million ha of forest (DEMA Pertanian UGM, May 28, 2016).

Thus, it is feared that the UUPL2B will tend to pressure farmers to keep their land functioning for farming activities. But on the other hand, this law becomes a legitimator for the transfer of control of plantation and forest lands to various private companies. The DEMA Pertanian UGM (2016) reminds MIFEE not to repeat the mistake of the “thousand hectare peat” program which is only an excuse for deforestation, where we lose 56 million m3 of wood, while the rice fields are not realized. However, what we need to pay attention to is that the company that operates LP2B has the majority of its shares belonging to Indonesian citizens (Article 27). In addition, if this company transfers the land function to non-agricultural activities, it will receive a prison term of seven years or a fine of at least two billion and a maximum of seven billion rupiah (Article 74). It’s just that, precisely with these signs, it seems that this Law is considered less friendly to investors.

The Release of Land Protection

The existence of the LP2B Law since 2009 has not had a significant effect on efforts to hold back the rate of conversion of paddy fields. As we know, from 2003 to 2013, Indonesia lost more than 50 percent of its rice fields, from 16 million hectares in 2003 to 8 million hectares in 2013; even the remaining rice fields are currently only 7.4 million hectares, including the results of the new rice field making program by the Ministry of Agriculture. In addition, The LP2B has not yet been formed in a number of regions in Indonesia, due to various interests to change the function of rice fields into various other uses. The rate of land conversion is expected to continue in various regions.

Therefore, by the spirit to achieve food self-sufficiency in the shortest possible time, the Government and the DPR have passed Law no. 22/2019 concerning Sustainable Agricultural Cultivation Systems. The ratification and enactment of this law was carried out on the same date, namely October 18, 2019. This law is essentially no different from the PL2B Law, namely the regulation and control of the conversion of paddy fields.

For more detail, this Law emphasizes the prohibition of conversion of land functions that has been designated as agricultural cultivation land (Article 19 Paragraph 1). However, in the case of public interest, agricultural cultivation land can be converted (Article 19 Paragraph 2) with several requirements that before being converted it is necessary: (a) carrying out a strategic study; (b) a land conversion plan is prepared; (c) ownership of rights from the owner is freed; and (d) replacement land is provided for the agricultural cultivation land which has been converted (Article 19 Paragraph 3). The transfer of land functions is exempted for technical irrigated agricultural land (Article 19 Paragraph 4). This means that this law prohibits the conversion of the function of technically irrigated rice fields, such as rice fields in Bekasi which are irrigated from the Jati Luhur Dam.

However, the law no. 22/2019 – especially regarding the prohibition of land conversion -, only one year, one month and two days old, which ends when the Work Creation Law – which is often called the Omnibuslaw Law – passed on November 2, 2020. If the LP2B Law is considered  “less friendly ” for investors, the existence of Law no. 22/2019 is of course considered a stumbling block for investments that require land.

The prohibition of land function conversion for technically irrigated rice fields is a significant obstacle for investment activities. Likewise, the necessity to find replacement land for converted agricultural cultivation lands is considered a very difficult, and almost impossible to do. So, the question is: does the government still provide protection for food agricultural land or hand over the land control to investors? For that, we need to pay attention to Law no. 11/2020 concerning Job Creation. It is often said that this law provides a “red carpet” for investors rather than protecting agricultural land.

The Job creation Law has amended Article 19 of Law no. 22/2019 regarding the prohibition of changing the function of agricultural cultivation land. More specifically, based on the Job Creation Law, the sale and purchase of land between investors and land owners is legally allowed. The provisions regarding the permissibility of buying and selling land which is categorized as agricultural cultivation land are already listed in Article 19 of Law no. 22/2019, and this provision was adopted in Job Creation Law. This means that investors can buy land from the owners according to the agreed price. However, the necessity to find replacement land for converted agricultural cultivation lands – which is stated in Article 19 of Law no. 22/2019 – annulled in Job Creation Law. Likewise, the prohibition of conversion of functions for technically irrigated agricultural cultivation lands is also removed. This means that investors are allowed to buy land from the owners, can convert it according to their interests, even though the rice fields are technically irrigated; and investors are not obliged to find replacement land. In connection with the transfer function of technically irrigated rice fields, investors are only required to maintain the existing irrigation infrastructure. This means the irrigation infrastructure, which was originally intended for irrigation of rice fields, after the conversion of the field can be used for irrigation of housing, offices, or industry.

In short, with the enactment of the Job Creation Law, managerial control from the Government of land has been significantly reduced. Conversely, the control over land tends to be in the hands of investors. The Job Creation Law is certainly very “friendly” to capital owners but brings out the question the fate of agricultural land in this law.

Indeed, the UULP2B (Law No. 41/2009) is not included in the revised Job Creation Law. This means that the existence of the PL2B Law is still intact. However, it does not have a significant meaning because the almost similar Law, namely Law No. 22/2019 has been revised. However, it is possible that in an autonomous region there will be a Regional Government that still adheres to the LP2B Law in land use planning. However, what we need to pay attention to is that the authority to grant investment permits relating to land, according to the Job Creation Law, is entirely under the Central Government. In addition, according to this law there is no obligation to allocate land for food agriculture in the preparation of a regional spatial plan (RTRW). Regarding agriculture, in licensing plantation business, determining the area of land for investors is the full authority of the Central Government. Therefore, it is estimated that land use change will progress out of control.

Land Protection in Islamic View

The ratification of the Job Creation Law appears to illustrate that control over agricultural land, plantations, or even forestry was entirely in the hand of investors. It is as if they have become the true “holders of sovereignty” over the land that spreads across Indonesian soil. However, optimistically, it is possible that a change will occur. Therefore, the alternative concepts are still needed to maintain control over the land. The Islamic conception can be an alternative solution, which can benefit all citizens.

Referring to Husein Abdullah (1990), in Islam there is public ownership concept, which includes various strategic assets and public needs. Forests and mining goods that have significant deposits are categorized as public ownership. From a managerial perspective, this public ownership may not be privatized, but managed by the state, but the state does not take the profit, but is fully returned to the people. Of course, in the management of public ownership, it pays attention to professional aspects related to management, research and development costs. In this context, what needs to be paid attention to is the prohibition on investment that leads to control the land by individuals/groups of individuals for the management of natural resources contained in land, such as coal, gold, nickel, tin, petroleum, and others. Thus, the state will have complete sovereignty over the stretch of land under which is contained mining goods which have a very large deposit. In addition, the common ownership assets will be functional for the welfare of society, and will avoid opportunities for gaps that make the country dependent on investors.

Referring to the same source, Islam recognizes the state assets. Among these are lands whether for agriculture, plantations, or various other things. Referring to mamankh.com (2020), the categories of land belonging to the state are: desert, mountains, beaches and inanimate land that has no owner; and swamps, namely land covered by water such as that between Kuffah and Basrah in the era of Umar bin Khathab. Reportedly, these lands were covered by water from the Euphrates and Tigris rivers, after part of the river embankments were damaged, so that the area was inundated and no longer suitable for agriculture.  While, previously, these lands were garden areas, residences and agricultural land. This puddle of water began to appear during the time of Kubab bin Fairuz, then expanded because Kubab neglected to take care of these lands due to the busy war against the Muslims. Reportedly, the area of ​​the abandoned land reached 30 farsakh X 30 farsakh or an area of ​​27,225 km2 because each farsakh is 5.5 km as a traditional Arabic count. Due to the inundation, the land became unsuitable for agricultural function.

The land that is considered as a state property in the view of Islam is what is called as-shawafi. The side who first introduced the term as-shawafi was Amirul Mukminin, Umar bin Khaththab. And, what is meant by as-shawafi is the land that was liberated by the Muslims, then the land is managed by the Muslim baitul mal (The Center of Muslim Asset Manager).

The land of as-shawafi which is very famous in history is the black soil (as-sawad) which is the fertile land around the Euphrates River in Iraq. It is called “black soil” because of its high fertility, so the land is very suitable to be used as an agricultural area/food center. The black soil came from: (1) land belonging to the enemy killed on the battlefield; (2) land of people who fled from war, (3) land owned by the king of Persian Kisra who was defeated by the Muslims, (4) land owned by members of the Kisra family, (5) land of water infiltration, and (6) land where the monks lived. The grouping of land as-shawafi by Umar bin Khaththab refers to the narration of Abu Yusuf who reported that Abdullah bin Walid told him about Abdu Abdillah bin Hurrah, where he said that Umar bin Khaththab had classified the land of as-shawafi on the land of as-sawad into ten groups, based on the origin of ownership and the condition of the land. The six of them are what has been mentioned above. The rest is not clearly disclosed, but the land was usually designated as facilities for Kisra’s life as the supreme leader of the Persian Empire.

The management of state-owned land is fully under the authority of the head of state. The state can provide state-owned land to individual citizens who need it for equity. But the state still controls the given land. In agriculture, for example, the state can withdraw land rights granted if the land is left unproductive for two years. The state avoids the possibility of fragmentation of state-owned land which will reduce the country’s sovereignty. Umar bin Khaththab refused the request of the commanders to share the conquered land in Iraq, Egypt and Syria for fear of land fragmentation of, and the next generation would lose access to the land which was already controlled by commanders and their descendants (Al-Haritsi, 2014) .

Regarding the management of individual-owned land, the state fully leaves it to individual citizens, even though the state still controls so that the state does not lose sovereignty over the land. The individual land owners must always maintain the productivity of the land. If the individuals leave their land for more than two years unproductive, then the state can withdraw the rights of land belonging from that individual. The prohibition on land leases in Islam can be understood as an instrument of control for the possibility of landlords (feudalism) that would interfere with a country’s sovereignty. Rasulullah SAW had distributed the land of Khaibar to his companions to cancel the practice of jahiliyyah (pre-Islamic era), where the rights to land were only in the hands of the landlords.

For Indonesia, the agenda that can be done is to restructure the work contract (kontrak karya) for the management of mining and management of forest concession rights (HPH) based on the principles of managing public property assets. In addition, it is necessary to restructure state-owned land, and the agrarian reform can be carried out to equalize land ownership for productive farmers, so that farming will be more effective and efficient. Furthermore, the Government can encourage the productivity of individual-owned land with the diffusion of appropriate technology that will encourage efficiency and effectiveness of farming. In this context the Government must also immediately establish state-owned food centers and distribute their products and monitor them so that food shortages will not occur. However, this agenda is expected to cause negative reactions from various parties with an interest in the management of Indonesia’s natural resources. Therefore, this agenda must be built on laws which are based on strong Islamic teachings, and should be supported by large political forces.

Thus, our land agenda in commemoration of world land day is not just preserving biodiversity but preserving land sovereignty. This of course requires further discussion and exploration.***

Reference

Apriyanti, Liana, 2018. “The Response of Farmers to the Plan for the Establishment of Sustainable Food Agricultural Land in Bangodua District, Indramayu Regency, Thesis of the Agribusiness Study Program, Faculty of Science and Technology, UIN Syarif Hidayatullah Jakarta.”

Al-Haritsi, Jaribah bin Ahmad (2014), Al-Fiqih Al-Iqtishadi li Amiril Mukminin Umar bin Al-Khththab, Indonesian Edition translated by Asmuni Solihan  Zamakhsyari, Jakarta: Pustaka Al-Kautsar

DEMA Pertanian UGM (2016)

Kano, Hiroyoshi (2008), “Sistem Pemilikan Tanah dan Masyarakat Desa  di Jawa pada Abad XIX,”  [Land Ownership System and Village Communities in Java in the XIX Century] in SMP Tjondronegoro and Gunawan Wiradi (Editors), Dua Abad Penguasaan Tanah: Pola Penguasaan Tanah Pertanian di Jawa dari Masa ke Masa, Jakarta: Yayasan Obor Indonesia;

Maman Kh. (2020), “Lahan Milik Negara dalam Islam” [Land Ownership in Islamic View] in mamankh.com.

SuaraTani. com,  December 5,  20020

The Economist, 2018, Global Food Security Index 2018: Building Resilience in the face of Food Security Risk, a report from the economist intel ligence unit