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| Illustration by Ai |
A new legal study by Zakaria Putra Arifian, Milda Istiqomah, and Hendarto Hadisuryo from Universitas Brawijaya finds that Indonesia's regulations governing land rights for non-public cemeteries remain inconsistent, creating uncertainty for religious and social organizations responsible for managing burial grounds. Published in 2026 in the Jurnal Multidisiplin Madani (MUDIMA), the research concludes that conflicting government regulations have resulted in different legal treatment for similar cemetery lands across the country. The authors argue that harmonizing these rules would strengthen legal certainty, protect organizational assets, and ensure cemetery land continues to serve its intended social and religious purposes.
Growing Demand for Cemetery Land Raises Legal Questions
Indonesia's growing population has increased demand for cemetery space, particularly in urban areas where available land continues to shrink. While local governments manage public cemeteries, many burial grounds are operated by religious institutions, foundations, and other social organizations. These sites are known as Tempat Pemakaman Bukan Umum (TPBU), or non-public cemeteries.
Because these cemeteries serve religious, cultural, and community functions over long periods, the organizations managing them require clear legal ownership or land-use rights. However, determining which type of land right should apply has become increasingly complicated due to overlapping regulations.
According to the researchers, uncertainty over land status not only complicates land registration but also affects the long-term protection of cemetery land as an organizational asset dedicated to public service.
How the Research Was Conducted
The study used a normative juridical legal research approach rather than field surveys or interviews. The researchers examined Indonesian land laws, government regulations, legal doctrines, judicial principles, and academic literature relating to agrarian law and land registration.
Primary legal sources included the 1945 Constitution, the Basic Agrarian Law of 1960, Government Regulation No. 9 of 1987 on cemetery land, Government Regulation No. 38 of 1963 concerning legal entities eligible to own land, and other land registration regulations.
The legal materials were collected through library research and analyzed using descriptive legal interpretation and systematic comparison to identify inconsistencies between existing regulations and their implementation.
Key Findings
The study identifies several important legal issues affecting the management of non-public cemetery land in Indonesia.
Conflicting regulations create legal uncertainty
The researchers found that two government regulations provide different legal interpretations regarding land rights for non-public cemeteries.
Government Regulation No. 9 of 1987 generally requires non-public cemetery land to receive Right of Use (Hak Pakai) status, except for cemetery land established as waqf, which may receive Right of Ownership (Hak Milik).
Meanwhile, Government Regulation No. 38 of 1963 allows religious and social legal entities to hold Right of Ownership over land used directly for religious and social activities.
Because non-public cemeteries are managed by religious and social organizations, uncertainty arises over whether cemetery land should be treated as ordinary social land or as a special category governed by cemetery regulations.
Similar cemeteries receive different legal status
The researchers found that implementation across Indonesia has been inconsistent.
Some cemeteries managed by religious organizations have been registered with Right of Ownership, while others performing similar functions have been granted only Right of Use.
Examples cited in the study include:
- Sunan Ampel Cemetery in Surabaya, registered under Right of Ownership.
- Husnul Khotimah Muhammadiyah Cemetery in Yogyakarta, also holding Right of Ownership.
- Sunan Bonang Cemetery Complex in Rembang, registered under Right of Use.
According to the researchers, these differences demonstrate that similar legal objects are not always receiving consistent legal treatment.
Legal certainty remains difficult to achieve
The study explains that legal certainty requires regulations to be clear, predictable, and consistently applied.
Because existing regulations do not clearly define whether non-public cemeteries qualify as land directly supporting religious or social activities, land administration offices may interpret the law differently when processing registrations.
This ambiguity can expose religious and social organizations to legal uncertainty regarding the long-term management of cemetery land.
Ownership rights remain limited by public interest
The authors emphasize that even if a religious organization receives Right of Ownership, the land cannot be treated like unrestricted private property.
Under Indonesian agrarian law, all land carries a social function. Cemetery land must continue to serve burial purposes and cannot be freely converted into commercial property or used outside its intended religious and social role.
The study also refers to the legal principle of nemo plus juris, meaning that legal entities cannot transfer rights exceeding those legally granted to them.
Why Regulatory Harmonization Matters
One of the study's central conclusions is that Indonesia needs clearer coordination between the regulations governing cemetery land and those governing land ownership by religious and social organizations.
The researchers recommend applying the legal principle of lex specialis derogat legi generali, under which more specific regulations take precedence over more general ones.
Under this interpretation, Government Regulation No. 9 of 1987 should remain the primary legal basis for determining land rights over non-public cemeteries because it specifically regulates cemetery land. Government Regulation No. 38 of 1963 should continue recognizing the legal capacity of religious and social organizations to hold land rights but should not override the cemetery-specific framework.
Implications for Government and Religious Organizations
The findings have practical implications for Indonesia's Ministry of Agrarian Affairs and Spatial Planning/National Land Agency (ATR/BPN), local land offices, religious foundations, and community organizations.
The researchers recommend issuing technical guidelines that clearly distinguish:
- the legal capacity of religious and social organizations to own land;
- the special legal function of cemetery land;
- uniform standards for land registration across Indonesia.
Such clarification would reduce conflicting administrative decisions, improve protection of organizational assets, and provide greater certainty for communities relying on non-public cemeteries.
The study also suggests future research should examine how regional governments implement cemetery regulations and evaluate whether local policies adequately preserve the social and religious functions of burial grounds.
Author Profiles
Zakaria Putra Arifian
Milda Istiqomah
Hendarto Hadisuryo
Source
Article Title: Uncertainty in Land Rights for Non-Public Cemeteries
Journal: Jurnal Multidisiplin Madani (MUDIMA)
Publication Year: 2026
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