Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaplace and attempts to harmonise them are undertaken with differing degreesof success. Dutch colonial rulers had a strong grasp of the pluralistic legalsystems in Netherlands East Indië - the name of Indonesia at that time. Theyinvested resources into researching local systems of law to guide policymakingin the colony. The general understanding of the colonial governmentwas that State (colonial) law was to be separate from peoples’ law. Thelatter consisted of customary (adat) and religious (mainly Islamic) laws.Indonesian independence on August 17 th 1945 led to a fundamental changein the legal system. A national legal system was set up to replace thecolonial one. The dualism of State and peoples’ laws as recognised duringthe colonial period was now denied. Adat law and in certain cases Islamiclaws were now considered to be the pillars of national law. The BasicAgrarian Law (Law 5/1960), for example, clearly states that the nationalagrarian (land and natural resources) law is based on adat laws.In Suharto’s New Order period, however, adat law was never considered aspart of national laws. Several laws on natural resources either ignored orlimited the recognition of adat laws. A revival of adat laws – and alsoIslamic laws – took place in the beginning of reformasi – a period after theresignation of Suharto. Some district regulations were enacted to recognisecertain adat communities and their land. A law on special autonomy wasalso enacted in 2001 for Papua, recognising the role of adat institutions andthe implementation of adat law in that province. Similarly, after a peaceagreement between Indonesia’s government and Aceh separatistorganisation GAM, Gerakan Aceh Merdeka (Aceh IndependenceMovement) a law on special autonomy for Aceh was enacted, allowing theimplementation of Islamic law in that region.It appears that gradually, the State law has adopted both adat and Islamiclaw. Yet, in many fields, people continue to struggle to get their adat lawsrespected and recognised by the State. The three case studies presented inthe meeting illustrated how these attempts were carried out.In addition to the fact that State and peoples’ laws are often in tension witheach other, the case of Indonesia also highlights the pluralistic nature of127
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaState laws on land and natural resources, a field in which numerousdisharmonised laws coexist. For general provisions/directives concerningland tenure, environmental management and spatial planning, the followingdocuments are of relevance:- Decree of the Consultative People’s Assembly (TAP MPR) NumberIX/2001- Law 5/1960 (Basic Agrarian Law, BAL)- Law 26/2007 (Spatial Planning)- Law 32/2009 (Environmental Protection and Management)For specific natural resource management, the following laws exist:- Law on Forestry (Law 41/1999)- Law on Conservation of Natural Resources (Law 5/1990)- Law on Plantation (Law 18/2004)- Law on Water Resources (Law 7/2004)- Law on Fishery (Law 31/2004)- Law on Coastal Management and Small Island (Law 27/2007)- Law on Oil and Natural Gases (Law 22/2001)- Law on Geothermal (Law 27/2003)- Law on Mineral and Coal Mining (Law 4/2009)Each law established an independent regulatory system implemented bydifferent State agencies at different levels.In addition, we also find that so-called customary (adat) laws consist ofseveral types:- Customary law in-use (the actual practices of customary/adat norms ineveryday life of communities)- Customary laws as interpreted by communities’ leaders- Judge-made customary laws (as in court decisions)- Jurist-constructed concept of customary law- State-formulated customary laws (customary law in legislation, see e.g.Law 5/1960).128
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Divers Paths to Justice - English - Forest Peoples Programme

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