Juridical Review of The Prohibition Against Descent Citizen

From Owning Land in Special Region of Yogyakarta

Yuanismah Nur Asma*

Bachelor of Law Study Program, Faculty of Law, Diponegoro University
E-mail : yuanismah27@gmail.com

Abstract
Right of ownership of land are strong rights. Based on article 20 paragraph (1) of the
UUPA, Right of ownership are the strongest, fulfilled, and hereditary rights. In Indonesia,
based on Article 9 paragraph (1), only Indonesian citizens are allowed to own right of
ownership of land. However, it is different from the regulations on land ownership in the
province of Yogyakarta, not all Indonesian citizens can own land ownership rights due to the
Instruction of the Deputy Governor of the Special Region of Yogyakarta No. K. 898 / I / A /
1975, regarding uniform policies on granting land rights to non-native Indonesian citizens.
The method used in this writing uses the normative method by analyzing existing legislation
and literature. This study aims to analyze why descent people are prohibited from owning
land in Yogyakarta, and how the prohibition of descent from owning land in Yogyakarta is
related to the UUPA. From this research it is known that the prohibition of descent from
owning land in Yogyakarta is an act of discrimination that is against the UUPA as well as the
principle of nationality, which is contained in Article 1 of the UUPA.

Keywords: Right of ownership, Descent citizen, Yogyakarta, Land ownership rights.

1. INTRODUCTION
1.1. Background
The land is a very basic human need and is important in human
activities because the land is one of the places for humans to exercise their
rights and obligations as citizens. The land is so important to human life so
that it is not surprising that every human being wants to own and control
it.1
Law No. 5 of 1960 concerning the Basic Basic Agrarian Regulations
stated that land in Indonesia has a function known as a social function.
2This means that the arrangement of land tenure by the state is directed so

that its utilization can bring about social justice for all Indonesian people.
Apart from social functions, land also has an economic function. The two
functions of land, namely social and economic functions by Boedi Harsono
interpreted as a gift from God Almighty to the Indonesian people, and are
one of the main sources for the survival and livelihood of the nation

1I Gusti Agung Dwi Satya Permana, I Ketut Sandi Sudarsana, “Kepastian Hukum Sertifikat
Hak Milik Atas Tanah Sebagai Bukti Kepemilikan Bidang Tanah” Jurnal Universitas
Udayana ,1-2
2 Undang-Undang Nomor 5 Tahun 1960 Tentang Peraturan Dasar Pokok- Pokok Agraria
Indonesia. Lembaran Negara Republik Indonesia (LNRI) Tahun 1960 Nomor 10, Tambahan
Lembaran Negara (TLN) Nomor 2043, Pasal 6.

 throughout the ages in achieving the greatest prosperity of the people who
are just and equitable. This means that the allotment and use of natural
resources carried out by the state must be able to guarantee every citizen to
have access to their rights to land which becomes their living space and
source of livelihood.3
The land is given to and owned by people with the rights provided by
the UUPA, to be used or utilized.4 Therefore, ownership of land rights is very
profitable. Ownership of land rights or right of ownershipe of land is a
strong rights. Based on article 20 paragraph (1) of the UUPA, right of
ownership are the strongest, fulfilled, and hereditary rights. Article 9
paragraph (1) of the UUPA, states that only Indonesian citizens can have a
full relationship with the earth, water, and space. Based on Article 9
paragraph (1), it means that only Indonesian citizens are allowed to own
land rights.
However, this is different from the ownership of land rights in the
Special Region of Yogyakarta. Not all Indonesian citizens can own land
rights in Yogyakarta. With the Instruction of the Deputy Governor of the
Special Region of Yogyakarta No. K. 898 / I / A / 1975, regarding the
uniform policy of granting land rights to non-native Indonesian citizens,
ownership of land rights in the Special Region of Yogyakarta cannot be given
to non-Indigenous Indonesians. Based on this provision, what is meant by
“Non-Indigenous Citizens” are Indonesian citizens of descent. Based on the
explanation of Mr. Bogi Nugroho, S.H, the Indonesian citizens of descent in
question are citizens who have mixed descent such as Chinese, Indian,
Turkish, etc. However, non-Indigenous Indonesians residing in DIY are
mostly Indonesian citizens of Chinese descent, so what is meant by Non-
Indigenous Indonesians in the DIY Regional Head Instruction Number K.898
/ I / A / 75 is more identified with Indonesian citizens of Chinese descent.
Land rights that can be granted to “Non-Indigenous Indonesians” are
Building Use Rights (HGB).5 This shows the existence of discriminatory
behavior based on race and ethnicity against Indonesian citizens of Chinese,
Arab, European, or other descent because it is not possible for Indonesian
citizens of this descent to own land with ownership rights in the Yogyakarta

3Ratih Lestarini, “Kebijakan Pertanahan Bagi WNI Keturunan Tionghoa Di Yogyakarta:

Diskrimasi Atau Diskriminasi Positif”. Jurnal Hukum & Pembangunan Fakultas Hukum
Universitas Indonesia 48 No. 1 (2018): 45.
4Boedi Harsono. Hukum Agraria Indonesia : Sejarah Pembentukan Undang—undang Pokok
Agraria, Isi dan Pelaksanaannya (Jakarta : Penerbit Universitas Trisakti, 2013), 18
5 Astrid Paramudita Harianto. “Ketentuan Pemberian Hak Atas Tanah Kepada Seorang WNI
Non Pribumi Di Daerah Istimewa Yogyakarta Ditinjau Dari Asas Persamaan Hak Menurut
Ketentuan UUPA.” Jurnal Hukum Fakultas Hukum Universitas Atma Jaya Yogyakarta
(2017): 8.

 region. Based on different regulations in the Special Region of Yogyakarta

Province with the provisions of the UUPA regarding Indonesian citizens as
the subject of property rights, this paper intends to criticize this and discuss
further in terms of juridical.

1.2. Research Problem

1. Why are descent citizen of Indonesia prohibited from owning land with
property rights in the Special Region of Yogyakarta?
2. How does the prohibition of descent from owning land and property
rights in the Special Region of Yogyakarta relate to the main Agrarian
Law?

1.3. Purpose of Research

1. Knowing the reason why descent citizen of Indonesia are prohibited from
owning land with property rights in the Special Region of Yogyakarta.
2. Knowing the relationship between the prohibition of descent citizen of
Indonesia from owning land and property rights in the Special Region of
Yogyakarta with the main Agrarian Law.

1.4. Research Methods

A method is a method or path that must be traversed by everyone
conducting research. Research is a translation from English, namely
research which comes from the word re which means return, and search
which means looking for. Thus logawiyah means seeking again.6
The approach method used in this legal research is the normative
juridical legal approach, namely the approach method used for research
that emphasizes legal science but also looks at the reality that applies in
society and legal research is carried out by examining library materials, or
secondary data only.7
The specification used in this research is descriptive, namely research
that describes the applicable laws and regulations in relation to legal
theories and practices of positive law implementation concerning the above
problems. In addition to describing the object that is the problem, it also
analyzes the data that has been obtained from the research and concludes

6Joni Oktavianto, R. Suharto, Triyono, “Tanggung Jawab PT. Pegadaian (Persero) Atas
Kerusakan Dan Kehilangan Barang Gadai di PT. Pegadaian (Persero) Kota Semarang”.
Diponegoro Law Journal. Vol. 5 No. 3, Tahun 2016, 11.
7Artha Polma Naibaho, Nyoman Serikat P, Budi Ispriyarso, “Paksa Badan (Gijzeling)
Sebagai Instrumen Penagihan Pajak (Kajian Yuridis) Dari Prespektif Hukum Pidana)”.
Diponegoro Law Journal. Vol. 5 No. 3, Tahun 2016, 6.

 according to the problem.8 Therefore, this research will describe and explain
matters relating to the issues raised, which will then provide a thorough and
thorough explanation of the prohibition of descent from owning land in
Yogyakarta.
In this legal research, because the approach method used is the
normative juridical method, the data used is secondary data which includes:
1. Primary Legal Materials
Primary legal materials are binding legal materials consisting of positive
legal materials including legislation.9
2. Secondary legal materials
Secondary legal materials are materials that are closely related to primary
legal materials and can help analyze and understand primary legal
materials, such as draft laws, scientific works and research results.10
3. Tertiary legal materials
Tertiary legal materials are materials that provide instructions and
explanations for primary and secondary legal materials, including legal
dictionaries, Indonesian dictionaries, encyclopedias, surfing the internet,
and others.11
Data obtained from the results of data collection will be analyzed
juridically, which emphasizes the science of law as well as seeing the reality
that applies in society.

1.5. Theoretical Framework

1.5.1 Land
In the Land Law, the term “land” is used in a juridical sense, as a
definition that has been legally defined by the UUPA.12
In article 4 it is stated that based on the right to control from the
State ... it is determined that the various rights over the surface of the earth,
which are called land, can be given to and owned by people …13
Thus it is clear that, in the juridical sense, land is the surface of the
earth (paragraph 1). Meanwhile, the right to land is the right to a certain part

8 Ibid.
9 Ibid.
10 Ibid.
11 Ibid.
12 Harsono, loc.cit.
13 Ibid.

 of the earth's surface, which is bounded, with two dimensions with a length
and width.14
Land given to and owned by people with the rights provided by the
UUPA, is to be used or utilized. The giving and possession of land with these
rights will be meaningless if its use is limited to land as the surface of the
earth. For whatever purposes it is inevitable, it is also necessary to use a
part of the earth's body underneath and the water and space above it.
Therefore in paragraph (2), it is stated that land rights not only give the
authority to use a certain part of the surface of the earth concerned, which
is called “land”, but also the body of the earth under it and the water and
space on it.15
Thus, what is owned by the rights to the land is the land, in a sense a
certain part of the earth's surface.16
According to the Big Indonesian Dictionary (KBBI) (1994) land is:
1. The surface of the earth or the layer of the earth which is on top of once;
2. The state of the earth somewhere;
3. The demarcated surface of the earth;
4. Materials from the earth, the earth is partly the material of something
(sand, rock, marl and so on).17
1.5.2 Right of Ownership
Right of ownership according to article 20 paragraph (1) UUPA are
hereditary, strongest, and full rights that can be owned by people by
considering the provisions of Article 6. Hereditary means that ownership
rights over land can continue as long as the owner is still alive and when the
owner dies. world, then the ownership rights can be continued by the heirs
as long as they meet the requirements as the subject of Property Rights.
Strongest means that the right to own land is stronger than other land
rights, does not have a certain time limit, is easily defended from
interference by other parties, and is not easily erased. Fulfilled means that
the right of ownership over land gives the broadest authority to the owner
when compared to other land rights, can become the parent of other land
rights, does not have other land rights, and the use of the land is wider than
the right to land. another.18
Right of ownership over land can be owned by individual Indonesian
citizens and legal entities appointed by the Government. In using the right of

14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid, 19.
18 Urip Santoso. Hukum Agraria Kajian Komprehensif (Jakarta: KENCANA, 2017), 92-93.

 ownership over land must pay attention to the social function of the land,
namely in using the land it must not cause harm to other people, the use of
land must be adjusted to the circumstances and nature of its rights, there is
a balance between private interests and public interests, and the land must
be properly maintained so that increase fertility and prevent damage.19
Provisions regarding Property Rights are referred to in Article 16
paragraph (1) letter an of the UUPA. It is specifically regulated in articles 20
to 27 of the UUPA. According to Article 50 paragraph (1) of the UUPA,
further provisions regarding property rights are regulated by law. The law
ordered here has yet to be formed. For this reason, Article 56 of the UUPA is
enforced, that is, as long as the Law on Property Rights has not been
established, the provisions of local Customary Law and other regulations are
applicable as long as they do not conflict with the UUPA.20
1.5.3 Descent Citizen
Descent Citizen referred to in this study are Indonesian citizens (WNI)
who have the blood of other nationalities, such as Chinese, Arabic,
European, and others. An example is a citizen of Chinese descent, which
means this person has Chinese blood.

2. RESULT AND DISCUSSION

2.1. The reason why descent citizen of Indonesia is prohibited from

owning land with property rights in the Special Region of Yogyakarta
Yogyakarta is one of the regions in Indonesia that has special features,
apart from being the capital of Indonesia in 1946 and 1949.
Yogyakarta is a province that has a strong relationship with the local
royal leadership system. The existence of Yogyakarta is always associated
with the charismatic role of two local kings, namely Sri Sultan
Hamengkubuwono and Sri Paduka Paku Alam. the leadership of both
regional kings not only shows local wisdom but also influences government
leadership, namely as governor and deputy governor. Besides, the
Yogyakarta Palace has very strong sacred values because of the local king
and became the center of civilization for the people of Yogyakarta. Likewise,
Yogyakarta has its characteristics as one of the Special Regions in
Indonesia.21

19 Ibid,93.
20 Ibid,92
21Arief Aulia Rachman. “Dinamika Kerukunan Umat Beragama Dalam Kepemimpinan
Kesultanan Yogyakarta” AKADEMIKA, Vol. 19, No. 01, Januari -Juni 2014 : 1.

 Yogyakarta is also known for its privileges because it is a sultanate

area. Kasultanan Yogyakarta was born from the Giyanti agreement in 1755
with the status of a self-governing legal entity. Regarding the land tenure
policy was carried out based on the claims of the Sultanate and Pakualaman
on territorial ownership in 1918 (domein verklaring) to fulfil the needs of the
kingdom (to save civilian costs of the colonial government, including the
Sultan's salary).22 This means that for all land in Yogyakarta where there is
no proof of ownership according to eigendom rights (property rights
(according to Agrarische Wet 1870), then the land belongs to the king. The
people only use it (anggaduh). They are obliged to surrender part of the land
to the king if the land is agricultural land, or doing forced labor if the land is
a homestead. This condition continued until Indonesia became independent
on August 17, 1945, which was then followed up by the establishment of the
Republic of Indonesia. Sri Sultan Hamengkubuwono IX actively participated
in the establishment of the Republic of Indonesia, even affirming the Region
Special Yogyakarta is part of the Republic of Indonesia.23 After Indonesian
independence, existing royal and colonial laws no longer apply in Indonesia
which were replaced by the enactment of national agrarian law, namely the
Basic Agrarian Law.
After the enactment of the UUPA on September 24, 1960, not all
regions in Indonesia immediately enforced it in their respective regions,
including Yogyakarta. The UUPA was declared fully valid in Yogyakarta in
1984 based on Presidential Decree No. 33 of 1984 concerning the Fully
Enforcement of Law No. 5 of 1960 in the Province of DIY and Perda DIY No.
3 of 1984 concerning the Fully Enacted Implementation of Law No.5 of 1960
in DIY Province.24
In terms of agrarian law or based on the fourth Dictum of the UUPA,
the lands controlled by the former Sultanate were turned into lands
controlled by the state. Moreover, the status of the autonomous region was
removed after the enactment of Law No. 3 of 1950 which changed the
autonomy of the Yogyakarta Sultanate and the Duchy of Paku Alam into the
Special Region of Yogyakarta. Land controlled by the Sultan or Paku Alam
as the head of the extended family became the land owned by the extended
family, while the land of the former Sultanate became land directly
controlled by the state. The enactment of the UUPA in the Special Region of

22Lestarini, Ratih. “Kebijakan Pertanahan Bagi WNI Keturunan Tionghoa Di Yogyakarta:

Diskrimasi Atau Diskriminasi Positif.” Jurnal Hukum & Pembangunan Fakultas Hukum
Universitas Indonesia 48 No. 1 (2018): 6.
23 Endang Pandamdari. “Mengkritisi Diskriminasi Pemilikan Tanah Di Provinsi Daerah
Istimewa Yogyakarta.”Jurnal Fakultas Hukum Universitas Trisakti : 2.
24 Harianto, op.cit, 4.

 Yogyakarta has resulted in individuals with the status of Indonesian citizens

being allowed to have freehold rights.25
However, in Yogyakarta, this is not the case. Until now, although the
UUPA has been fully implemented in the Special Region of Yogyakarta, the
fact is that non-indigenous Indonesians cannot own land with freehold
status. Based on the Instruction of the Deputy Governor of the Special
Region of Yogyakarta Number 898 / I / A / 1975 made by Paku Alam VIII,
namely the Head of the DI Yogyakarta Region on March 5, 1975, which in
essence contains the following: If there is a non-Indigenous Indonesian
citizen who buys freehold land the people, it should be processed, as usual,
is through the relinquishment of rights, so that the land returns to State
land which is directly controlled by the DIY Regional Government and then
those with an interest/release should submit an application to the Head of
the DIY Region to obtain a right.26 So Indonesian citizens who are not
indigenous include "Europeanen" (European / white); "Vreemde
Oosterlingen" (Foreign East) which includes Chinese, Arabs, Indians, and
other non-Europeans in DIY are not allowed to own land rights, they can
only have use rights.
There are two reasons why non-indigenous Indonesians are not
allowed to own land titles. First, historical reasons. Second, because of the
fear that the land will be controlled by non-indigenous Indonesians.27 The
legal culture factor in Yogyakarta City is also the reason why non-native
Indonesian citizens are not allowed to own land rights, namely because of
differences in understanding of the legal concept in the Yogyakarta
Government, especially the Yogyakarta City Land Office, there is still a
strong value of order in the form of obedience and the integrity of the
community. Yogyakarta, that all of the Sultan's commands are aimed at
peace in social life and the perception that has long been ingrained in the
minds of Yogyakarta residents that Indonesian descendants are foreigners in
Yogyakarta City.28 Another reason is because Indonesian citizens of non-
native descent, especially Chinese, are considered to have strong economies,
it is feared that non-indigenous citizens will control land in Yogyakarta,

25 Pandamdari, op.cit.,3.
26 Harianto, op.cit, 4.
27 Pandamdari, loc.cit.
28Riza Anggun Listya Irawan. “Perlindungan Hukum Terhadap Warga Negara Indonesia
Non-Pribumi Untuk Memperoleh Kepastian Hak Milik” Jurnal Cakrawala Hukum, Vol.7,
No.2 Desember 2016, 250.

 while Indigenous Indonesians who are considered to have weak economies

are feared that they will not be able to own property rights in DIY.29

2.1 The prohibition of descent citizen from owning land and property
rights in the Special Region of Yogyakarta related to the main Agrarian
Law?
In accordance with the principle of nationality as referred to Article 1
of the UUPA, namely, "The entire territory of Indonesia is the unity of the
homeland of all the Indonesian people, who are united as the Indonesian
nation"30 If its viewed and connected with the statement stated in article 9
paragraph (1) and (2) UUPA, namely, "(1) Only Indonesian citizens can have
a full relationship with the earth, water, and space, within the limits of the
provisions of articles 1 and 2. (2) Every Indonesian citizen, whether male -
Men and women have the same opportunity to obtain a right to land and to
get benefits and results, both for themselves and their families.31 So only
Indonesian citizens can have ownership rights over land.
The UUPA as the elaboration of Article 33 paragraph (3) of the 1945
Constitution which regulates agrarian politics for the prosperity of the
people, adheres to the principle of equality for every Indonesian citizen, both
men and women can have a legal relationship with the land, and no longer
differentiate the origin of the descendants of Indonesian citizens.32 In
accordance with what is stated in Law No. 5 of 1960 concerning Basic Basic
Agrarian Regulations which states that land in Indonesia has a function
known as a social function. If the status of the subject is an Indonesian
citizen, then the person concerned is allowed to own land with ownership
rights with regard to that social function.
The advantages of freehold rights compared to other land rights are
clearly stated in Article 20 paragraph (1) of the UUPA which states that
property rights are hereditary, strongest, and fullest rights that can be
owned by people over land, bearing in mind that all land rights have a social
function.33
Seeing the fact that Indonesian citizens of descent in the Special
Region of Yogyakarta have not been able to have land ownership rights
because of the DIY Deputy Governor Instruction No. K. 898 / I / A / 1975

29 Harianto, op.cit, 8.
30Undang-Undang Nomor 5 Tahun 1960 Tentang Peraturan Dasar Pokok- Pokok Agraria
Indonesia. op.cit, article 1 paragraph (1).
31 Ibid, article 9 paragraph (1) and (2).
32 Pandamdari, op.cit.,4.
33 Ibid, 2.

 regarding uniform granting of land rights to non-native Indonesian citizens,

In essence, this instruction regulates that Indonesian citizens who are non-
native citizens cannot be granted ownership rights over land in DI.
Yogyakarta, whereas based on the above description, the UUPA confirms
that Indonesian citizens are the subject of land ownership rights. This
shows discrimination among Indonesian citizens in land ownership and is
against the provisions of the UUPA.
Discrimination in land ownership in the Special Region of Yogyakarta
is also very clearly contrary to the 1945 Constitution of the Republic of
Indonesia, especially Article 28 D paragraph (1) which states that "everyone
has the right to recognition, guarantees, protection and legal certainty that
is just and equal treatment in before the law”34 Furthermore, this is
contrary to Article 28 H paragraph (2) which regulates that“ everyone gets
special facilities and treatment to get the same opportunities and benefits in
order to achieve equality and justice ”35 This means that all people are equal
before the law and are entitled to the same protection of the law without
discrimination. All are entitled to the same protection against any form.
Discrimination in land ownership is also contrary to Article 28 I paragraph
(2) which states that "everyone has the right to be free from discriminatory
treatment on any basis and is entitled to protection against discriminatory
treatment"36
So in the Special Region of Yogyakarta which prohibits descent
Indonesian citizens from owning land, this is not only against the UUPA but
also contrary to Law No. 40 of 2008 concerning the Elimination of Racial
and Ethnic Discrimination, which basically regulates that every citizen has
the right to receive equal treatment to obtain rights. - civil, political,
economic, social, and cultural rights in accordance with the provisions of
laws and regulations without distinction of race and ethnicity. According to
Article 1 of Law No. 40 of 2008, racial and ethnic discrimination is any form
of discrimination, exclusion, limitation, or election based on race and
ethnicity.37
From the description above, it is known that in reality, the
implementation of the UUPA as mandated by Presidential Decree No.33 of
1984 does not automatically happen. The continuity of Instruction K.898 /
1975 was further strengthened when the Government issued Law No. 13 of
2012 concerning the Privileges of the Special Region of Yogyakarta (UUK).In

34 Undang-Undang Dasar Republik Indonesia, article 28 D Paragraph (1).

35 Ibid, article 28 H paragraph (2).
36 Ibid, article 28 I paragraph (2).
37 Pandamdari, loc.cit.

10

 fact, this Law is the main reason for the change in the structure of land
tenure in DIY, which is characterized by the revival of the meaning and
spirit of the 1918 Rijsblad and the restoration of the implementation of DIY
Regional Head Instruction No. K.898 / 1975.38
The reasons used by the DIY Regional Government in maintaining its
land policy can be seen in the issuance of a Certificate issued by the DIY
Provincial Government dated May 8, 2012, No: 593/00531 / RO. I / 2012,
which says 28: "DIY Regional Head Instruction No. . K.898 / 1975 until now
is still in effect and is an affirmative policy whose aim is to protect
indigenous people so that land ownership does not shift to residents or
financially stronger or more capable investors.39
The reasons used by the DIY Regional Government in maintaining its
land policy can be seen in the issuance of a Certificate issued by the DIY
Provincial Government dated May 8, 2012, No: 593/00531 / RO. I / 2012,
which says 28: "DIY Regional Head Instruction No. . K.898 / 1975 until now
is still in effect and is an affirmative policy whose aim is to protect
indigenous people so that land ownership does not shift to residents or
financially stronger or more capable investors.40
Furthermore, in the same letter, several reasons for the imposition of
the limitation provisions for the Chinese group on ownership of land rights,
namely:
1. Instruction K.898 / 1975 is still in effect and is an affirmative policy
whose aim is to protect indigenous people so that land ownership does
not transfer to residents or financially capable investors.
2. The philosophy of the publication of Instruction K.898 / 1975 is:
• Most of the land acquired by residents in DIY comes from the land given
by the Yogyakarta Palace.
• During the era of the independence struggle, Chinese citizens asked for
protection from Sri Sultan HB IX and contained in the inscription on the
Kraton which was signed by the Chinese community at that time and there
was a "loaned" monument as a gift from citizens of Chinese descent.
• H. Budi Styagraha has filed a lawsuit against Instruction K.898 / 1975
and has there is a decision of the Supreme Court of the Republic of
Indonesia Reg. Number 281K / TUN / 2001 rejected the appeal for
cassation related to the request to transfer the title of title to part of the

38 Ratih, op.cit, 8.
39 Ibid, 9.
40 Ibid.

11

 land he purchased so that it has definite legal force. In formal juridical

terms, the DIY Regional Head Instruction is still valid and has the power.41
Even though the instruction was based on the history of Chinese
citizens who helped the Dutch during the war against the people of
Yogyakarta, which resulted in the not being given land ownership rights in
DIY to Chinese citizens (as punishment), the government should have
looked at the facts in modern times where citizens of Chinese descent or
citizens of other descent are included in Indonesian citizens who have the
same rights as other Indonesian citizens. Providing opportunities for
Indonesian citizens of descent to enjoy ownership of land rights, especially
in DIY.42
Several legal efforts that have been made by Indonesian citizens of
Chinese descent have not been successful, while the progressive legal theory
taught by Satjipto Rahardjo states that the government in making a
regulation is indeed required to always be based on pro-justice and pro-
people laws, can stop there but have to analyze the legal consequences of
the application of the rules that have been made.43
For example that happen is until now, although the UUPA has been
fully implemented in the Special Region of Yogyakarta, the fact is that non-
indigenous Indonesians cannot own land with freehold status. A number of
names that have had problems related to Chinese land ownership, namely
H. Budi Setyagraha and Willie Sebastian who proposed land ownership in
2001, then Tan Susanto Tanuwijaya, R. Wibisono, and Ong Ko Eng, which
were widely reported in 2015. They keep trying to file a lawsuit prohibiting
ownership of land title certificates because so far they can only have
Building Use Rights certificates. But until the Supreme Court, it also failed.
In fact, the last one was the Yogyakarta District Court Judge on February
20, 2018, rejecting Handoko's lawsuit suing the Governor of the Special
Region of Yogyakarta for carrying out the Instruction of the Deputy Governor
of the Special Region of Yogyakarta No. K. 898 / I / A / 1975 dated March 5,
1975. Memories of appeals have been registered at the Yogyakarta High
Court with Number 132 / Pdt / G / 2017 / PN.Yyk. Previously Handoko had
also fought against the discriminatory policy, namely through a judicial
review at the Supreme Court in 2015, and filed a lawsuit against the
Yogyakarta State Administrative Court in 2016. However, both attempts
failed. The Supreme Court rejected the judicial review, because the

41 Ibid.
42 Harianto, op.cit, 11.
43 Irawan. op.cit, 254.

12

 Instruction was not a statutory regulation, while the Yogyakarta PTUN could
not accept the lawsuit, arguing that it was not under its authority.44

3. Conclusion (and Recommendation)

The UUPA stipulates that ownership rights over land can be owned by
Indonesian citizens and Indonesian legal entities.
In accordance with the statement of the Yogyakarta Special Region
Government to fully enforce the UUPA, since April 1, 1984, with the
enactment of Presidential Decree No. 33 of 1984 concerning the Full
Enforcement of Law No. 5 of 1960 in the Special Region of Yogyakarta
Province, the government of the Special Region of Yogyakarta is obliged to
implement the UUPA in the Region Special Yogyakarta, including the
ownership of land rights for Indonesian citizens regardless of their descent.
Instruction of the Deputy Governor of the Special Region of
Yogyakarta No. K. 898 / I / A / 1975 regarding uniform policies on granting
rights to non-native Indonesian citizens, provisions for granting land rights
to a non-native Indonesian citizen in DIY based on the Instruction of the
Head of the DIY Region Number K.898 / I / A / 1975 are not allowed to own
land, both agricultural and non-agricultural lands with the status of Hak
Milik land.
The Instruction of the Regional Head of DIY PA.VIII / No.K.898 / I /
A / 1975 basically aims for justice so that Indigenous Indonesians have the
same opportunity to improve their standard of living by having ownership
rights over land in Yogyakarta City. But the provisions in this instruction
contain discrimination and class differentiation of land ownership. Although
the application of these provisions also aims to protect Indigenous
Indonesians who are feared they will not be able to control ownership rights
if non-Indigenous Indonesians are allowed to control Freehold land in DIY.
In addition, the provisions for granting land rights to a non-native
Indonesian citizen in DIY based on this DIY Regional Head Instruction after
being reviewed based on the UUPA have provisions that are inconsistent
with or contrary to the principles of equality of rights, the principle of
nationality, and social functions in the UUPA.
Although the enactment of the Instruction Letter for the Head of the
DIY Region No. K. 898 / I / A / 1975 (SNK No K.898 / I / A / 1975) deviates
from the UUPA, the provisions in this instruction letter continue.
Conflict aspects of justice and certainty that occur in matters of land
in Yogyakarta City must be resolved immediately by finding a way out, such
as revising the content of the DIY Regional Head Instruction No. K. 898 / I /
A / 1975 (SNK No K.898 / I / A / 1975) so that there is legal protection for

44 Pandamdari , op.cit, 3.

13

 the people of Yogyakarta without differentiating between Indigenous

Indonesians and non-indigenous Indonesians.
Yogyakarta as one of the cultured areas in Indonesia should have
eliminated policies that contained discrimination. In the end, the
discrimination policy will only hinder development in the area.

BIBLIOGRAPHY
A. Book
Harsono, Boedi. Hukum Agraria Indonesia : Sejarah Pembentukan Undang-
undang Pokok Agraria, Isi Dan Pelaksanaannya. Jakarta: Penerbit
Universitas Trisakti, 2013.

Santoso, Urip. Hukum Agraria Kajian Komprehensif. Jakarta: KENCANA,

2017.

B. Journal Article
Harianto, Astrid Paramudita. “Ketentuan Pemberian Hak Atas Tanah
Kepada Seorang WNI Non Pribumi Di Daerah Istimewa Yogyakarta
Ditinjau Dari Asas Persamaan Hak Menurut Ketentuan UUPA.”
Jurnal Hukum Fakultas Hukum Universitas Atma Jaya Yogyakarta
(2017): 1-14.

Irawan, Anggun Listya. “Perlindungan Hukum Terhadap Warga Negara

Indonesia Non-Pribumi Untuk Memperoleh Kepastian Hak Milik”
Jurnal Cakrawala Hukum, Vol.7, No.2 Desember 2016, hlm. 247–256.

Lestarini, Ratih. “Kebijakan Pertanahan Bagi WNI Keturunan Tionghoa Di

Yogyakarta: Diskrimasi Atau Diskriminasi Positif.” Jurnal Hukum &
Pembangunan Fakultas Hukum Universitas Indonesia 48 No. 1
(2018): 44-63.

Naibaho, Artha Polma, Nyoman Serikat P, Budi Ispriyarso. “Paksa Badan

(Gijzeling) Sebagai Instrumen Penagihan Pajak (Kajian Yuridis) Dari
Prespektif Hukum Pidana).”Diponegoro Law Journal 05, no. 3 (2016):
1-16.

Oktavianto, Joni,R. Suharto, Triyono. “Tanggung Jawab PT. Pegadaian

(Persero) Atas Kerusakan Dan Kehilangan Barang Gadai
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Journal 5, no. 3 (2016): 1-15.

Pandamdari, Endang. “Mengkritisi Diskriminasi Pemilikan Tanah Di

Provinsi Daerah Istimewa Yogyakarta.”Jurnal Fakultas
Hukum Universitas Trisakti : 1-5.

Permana, I Gusti Agung Dwi Satya, I Ketut Sandi Sudarsana. “Kepastian

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 Hukum Sertifikat Hak Milik Atas Tanah Sebagai Bukti

Kepemilikan Bidang Tanah ”Jurnal Fakultas Hukum Universitas
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Rachman, Arief Aulia. “Dinamika Kerukunan Umat Beragama Dalam

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Indonesia. The 1945 Constitution of the Republic of Indonesia.

Indonesia. Undang-Undang Nomor 3 Tahun 1950 Tentang Pembentukan

Daerah Istimewa Jogjakarta.

Indonesia. Undang-Undang Nomor 5 Tahun 1960 Tentang Peraturan Dasar

Pokok-Pokok Agraria. Lembaran Negara Republik Indonesia (LNRI)
Tahun 1960 Nomor 10, Tambahan Lembaran Negara (TLN) Nomor
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Indonesia. Undang-Undang Nomor 13 Tahun 2012 Tentang Keistimewaan

Daerah Istimewa Yogyakarta. Lembaran Negara Republik Indonesia
(LNRI) Tahun 2012 No 170.

Yogyakarta. Instruksi Kepala Daerah Istimewa Yogyakarta No.K.898/I/A

1975 Perihal Penyeragaman Policy Pemberian Hak Atas Tanah Kepada
Seorang WNI non Pribumi, tanggal 5 Maret 1975.

15