The beschikkingsrecht (“right of avail” or right of disposal over unappropriated land) in Atjeh was, in the analysis of D. W. N. de Boer in Het recht op den grond in Atjeh (1931), a right of a fundamentally different form, scope and intensity from the right of the same name in the Toba-Batak lands: it “bestaat in Atjeh van huis uit niet in dien vorm, met die strekking, tot die bemoeienis” — did not from the outset exist in Atjeh in that form, with that tendency, to that degree of interference. It was weakest of all in the directly governed territory of Groot-Atjeh, and strongest, contrary to the opinion of Van Vollenhoven, in the zelfbesturende landschappen (self-governing territories).
Why the right was weak in Atjeh
De Boer traced the weakness of the Atjehnese right of avail to the territorial rather than genealogical origin of the Atjehnese keradjaäns. Because the Atjehnese states had arisen as territorial units, and because the oeléëbalang had become “gezaghebbers over bewoners van een zeker gebied… zonder onderscheid van kawoms of soekëë” (De Atjehers, Vol. I, p. 62), no chief depended for his position on a following of kinsmen, and none therefore needed the watchful, defensive right of avail that the Batak Radja Hoeta required. The Atjehnese village chiefs — the Keutjih and the Peutoeha — had no outward independence, and the division of the land had not followed genealogical lines. In consequence there were, so far as was known, never any village boundary disputes in Atjeh, though boundary disputes between the zelfbesturen (self-governing territories) were common.
In Groot-Atjeh
The right made itself least felt in the directly governed territory, the so-called Groot-Atjeh, where the sovereignty of the oeléëbalangs had formerly been subordinate to that of the Sultan and was now subordinate to that of the Gouvernement, and where they were developing more and more into onderdistrictshoofden (sub-district heads) with the three Panglima Sagi — of the XXV, the XXVI and the XXII Moekims respectively — above them as districtshoofden (district heads). In this part of Atjeh, De Boer wrote, the already feeble right of avail and everything connected with it was doomed gradually to give way to “het Al-Maleische liberale recht” — the general Malay liberal law — which would finally be laid down in an Agrarisch Reglement imposing practically no restrictions at all upon the indigenous inhabitant.
The indifference of the self-governing chief
For a zelfbestuurder (self-governing ruler) whose authority ran, in the proverbial phrase, “van af de blauwe bergen tot daar, waar men nog met sleepnetten visschen kan” — from the blue mountains to where one can still fish with drag-nets — and whose attention was absorbed by weightier political business and by the scrupulous supervision of the inflow of all wathé due to him (import and export duties and other adat incomes: De Atjehers Vol. I, p. 122; Adatrecht p. 164), it mattered little which rajat, of whatever kawom or soekëë and from wherever, took waste land into use in his territory, provided it was not done in secret; nor were mutations of landholding among his own subjects of particular interest to him. On the contrary, free immigration was desirable to the oeléëbalang in view of future growth of wathé, and he had no need to screen and bind the individual as the Radja Hoeta was obliged to do, provided the immigrant contributed to the prosperity of the landschap and to the income of its head. Clearance was accordingly made as easy as possible for the indigenous inhabitant, who could even obtain agricultural credit — especially for laying out pepper gardens, but also for sawah construction — against a previously stipulated and locally customary percentage of hasil. Such credit was granted very willingly, since, as De Boer observed, the lender acted not out of charity but from the consideration that it was one of the best investments available: “In Atjeh gaat het alleen om economische perspectieven, geenszins om idealistische.”
Estates without heirs and the bait ul-mal
Nor was it, at least as a matter of adat-lawful rule, the oeléëbalang’s prerogative to annex for himself the lands left by persons dying without heirs or by deceased strangers — the gross arbitrariness of many zelfbestuurders (self-governing rulers) notwithstanding (compare Adatrecht, p. 198). In this strictly Mohammedan country, De Boer wrote, such unadministered estates were seized ex officio by the oeléëbalangs on behalf — at least according to the formula — of the bait ul-mâl, the fund out of which the needs of the mosque and the honoraria of its pegawai’s were to be met. The transfer took place after the deceased’s ghafan — literally the shroud, used pars pro toto for all funeral costs appropriate to his rank and station — had been defrayed from the proceeds of the goods he had left (the so-called eeang male). That a more or less considerable part of such proceeds sometimes remained in the oeléëbalang’s treasury, or that a windfall inheritance was followed by sudden changes among the interested mosque personnel through dismissal for unfitness or otherwise, was not, De Boer noted drily, to be regarded as a proper local deviation from the general rule just stated.
The defensive aspect before the Company period
In its defensive sense, the right of avail found expression in Atjeh in the vóór-Compagniestijd — the period before the coming of the Company — only when a person to be regarded as an enemy or an enemy’s agent (a spy) wished to settle within the territory of the ruler, and especially when he sought to do so near the frontier.
Boundaries, concessions and revenue
The right continued to assert itself against other beschikkingskringen (spheres of avail) where pepper, pinang or other plantations were laid out in the frontier districts, from which wathé would in due course be leviable; and most boundary disputes between the zelfbesturen had their origin in this. The exercise of the right of avail as an emolument of the sovereign — and with it the regulation and fixing, through the mediation of the Netherlands administration, of the several zelfbestuur (self-government) boundaries — became genuinely important, De Boer judged, only when European capital began to interest itself in these lands and the right promised to become for the self-governing rulers a Deli-like source of income, on account of the not inconsiderable share allotted to them of the pachtschat (rent, canon, quit-rent: Staatsblad 1919 No. 61 jo No. 281), vastrecht (fixed due) and cijns (quit-rent) of land and mining concessions. See also Politiek Beleid en Bestuurszorg in de Buitenbezittingen, Second Part B, chapter IV, p. 113 ff.
The division of those revenues for Atjeh was: six-tenths for the Gouvernement and four-tenths for the landschap (territory); and of the latter, seven-tenths for the oeléëbalang and three-tenths for the landschapskas.
Obligations of the indigenous clearer
With respect to the indigenous inhabitant, the right of avail resolved itself in the first place into the duty to inform the oeléëbalang or his deputy in advance of an intention to undertake new clearance, with a request that he be pleased to grant the intended parcel of waste land. For this grant the clearer had further to pay a small tariffed recognition, the haq radja taléë.
Evasion and its punishment
Evasion of the right of avail was in former times punished by confiscation of what had been cleared without permission. In some districts — for instance in the landschap Sawang, onderafdeeling (subdivision) Lho’ Seumaweh — a system of fines developed alongside, namely confiscation of ten per cent of the harvest, or of the proceeds in the event of sale or other alienation of the land in question. This fine was called adat moeda or adat baroe; the Malay name, and the absence even of a proper Atjehnese term, pointed, in De Boer’s judgement, to the newness of the institution. The levy was said to be applied only in respect of gardens, which he explained by the practical impossibility of laying out a new sawah clandestinely, whereas the laying out of a garden in the forest or in the mountains could long remain unnoticed, so that in practice evasion would be attempted only with gardens.
Application to non-indigenous cultivators
Towards non-indigenous natives — Chineezen and Kingaleezen — the right of avail asserted itself somewhat more strictly, requiring in addition to the haq radja taléë the conclusion of a thiplah-tano contract. De Boer noted in a footnote that alienation to “niet tot de Inheemsche bevolking behoorende personen” — persons not belonging to the indigenous population — had since been taken in hand by the Gouvernement: see art. 15 sub I in conjunction with art. 29 sub 3 of the Zelfbestuursregelen, and compare Politiek Beleid pp. 111 ff. and 233 ff.
Dispute with Van Vollenhoven
Professor Van Vollenhoven had written (Adatrecht, p. 196) that “een verbleekt of slapend beschikkingsrecht bestaat hier niet” — a faded or sleeping right of avail does not exist here. De Boer answered that this was not correct as regards the Zelfbesturende Landschappen, as the rest of his study would show. He likewise rejected Van Vollenhoven’s treatment of the Atjehnese grazing usage as “het eigenaardige recht,” possibly surviving from a village right of avail (Adatrecht, pp. 196, 198): in reality, he held, it was no right but a mere usage grounded on economic considerations, a sober exchange of economic goods giving the cattle-owner free pasture near his gampong and the owner of the pasture free manuring of his land. The village, he emphasised, played no part at all in the sphere of rights in land in Atjeh.
Significance
The Atjehnese beschikkingsrecht as described by De Boer was less a communal right than a fiscal and political prerogative of the territorial chief: a device for registering, taxing and encouraging settlement rather than for restricting it. Its transformation under Netherlands rule — from a levy on clearance into a share in concession rents — marks the point at which Atjehnese customary land law was drawn into the colonial economy of plantation and mining concessions.
See Also
- Het recht op den grond in Atjeh (De Boer)
- Haq radja taléë
- Thiplah tano
- Milik
- Oeleebalang
- Zelfbesturende landschappen
- Groot-Atjeh
- Adatrecht (Van Vollenhoven)
- Toba-Bataklanden
- Baitul mal
- Adat moeda
- Agrarisch Reglement
Source
Het recht op den grond in Atjeh, by D. W. N. de Boer, dated Scheveningen, November 1931, pp. 59-80. Offprint DLP-141, Koninklijk Instituut voor Taal-, Land- en Volkenkunde, ‘s-Gravenhage; Bibliotheek KITLV accession 0060 4460 60 081470 428.