Legal Pluralism and the Disposition of Abandoned Properties: Assessing Baitul Mal’s Custodial Authority over Tsunami Victims’ Assets in Aceh

Abstract

The tragedy of the earthquake and tsunami that struck the Province of Nanggroe Aceh Darussalam on 26 December 2004 created a humanitarian crisis as well as an unprecedented void in civil law within the Indonesian legal system. The hundreds of thousands of lives lost instantly triggered the phenomenon of commorientes, whereby the testator and all their heirs died simultaneously, thereby drastically severing the line of inheritance. This academic article comprehensively examines the legal framework established by Baitul Mal Aceh (BMA) in managing the assets of tsunami victims whose owners or heirs are no longer known (harta kalalah or mafqud), unravelling the legal and empirical issues encountered, and analysing the status of such heirless land through a comparison of the perspectives of Islamic Inheritance Law and National Agrarian Law. Using a normative legal research method with both a statutory approach and a conceptual approach, this study finds that the BMA’s exclusive authority is established by the principle of ‘lex specialis derogat legi generali’ through the provisions of Law No. 11 of 2006, Law No. 48 of 2007, and the Aceh Qanun No. 10 of 2018, as amended by Qanun No. 3 of 2021. The main issues on the ground include overlapping executive powers with the Inheritance Assets Office (BHP), the loss of authentic land certificates, and the stagnation in the utilisation of ‘escrow funds’ for urban reconstruction compensation. Under Islamic law, the Baitul Mal assumes ownership of public property based on the principle ‘Baitul Mal waritsu man la waritsa lah’. Within the framework of national law, Supreme Court Circular (SEMA) No. 1 of 2022 has harmonised jurisdictional disputes, ensuring that property without heirs belonging to Muslim beneficiaries ( ) in Aceh is not confiscated as State Property under the authority of the BHP, but is instead administered as Religious Property under the BMA to be utilised for the public good and the sustainable alleviation of poverty amongst the community.