Divers Paths to Justice - English - Forest Peoples Programme

More documents

Recommendations

Info

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaGiven these legal developments, it must be understood that legal pluralismin Indonesia is not a dualism of State versus peoples’ law, but rather acomplex situation in which laws of both the State legal system and people’snormative systems interact and coexist. The following sections elaborate onthe impact of these complex systems on securing the rights of local people.Conflicting land and forestry laws in national legislation and otherchallenges of legal pluralismThe 1945 Constitution of Indonesia and its amendment recognises the rightsof adat communities to their local identities, culture and land. The BasicAgrarian Law (BAL) clearly states that the national land and naturalresources law is based on adat law. However, as previously stated, otherlaws tend to ignore the adat law. Forestry laws - the old and present ones -are clear examples of this neglect. By incorporating forest controlled byadat communities into State forests, Law 41/1999 undermines the existenceof adat communities and their laws. In this respect, Law 41/1999 is alsocontrary to the BAL.Overlapping and contesting claims of adat communities and the State occuras a result of conflict between State law - in this case the Forestry Law - andadat laws, and conflict among State laws (Forestry Law vs. BAL). Inseveral respects, the BAL and a regulation enacted by the Ministry ofAgrarian Affairs (Ministerial Regulation 5/1999) are more progressive interms of recognising the land rights of adat communities. Nevertheless, thisMinistry also threatens the existence of communal lands of adatcommunities through its policy of land titling – partly supported by theWorld Bank.Without adequate regulations and existing legal concepts concerningcommunal land rights, fragmentation of such communal land rights intoindividual rights is occurring. Contestation of adat and State laws reoccur inthe cases of land conflicts within an adat community. Initiatives to find alegal solution have been carried out, particularly in West Sumatra amongother places, by issuing land titles in the name of adat leaders or by129
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiarecording all the names of adat community members in the title. Ratherthan resolving the problem, this initiative leads to new problems of abuse ofpower by community leaders. As a result, internal conflicts within adatcommunities have arisen.Seeking a comprehensive solution in recognising adat communities’ rightsto their land and in resolving conflicts of State laws on land and resourcetenure is necessary for Indonesia. The existence of the Decree of People’sConsultative Assembly Number IX/2001 provides one option, but there hasbeen no political will expressed yet on the part of the Government ofIndonesia to implement this Decree in an effective or consistent manner.Integrating adat and sharia into State law in AcehAs noted earlier, Aceh is a special autonomous province (Law 18/2001).The Law states that sharia (Islamic law) can be the source of law and beimplemented in governmental and social affairs in Aceh. In addition to this,adat law of the Acehnese has an important function in everyday life. Thechallenge for the Aceh government is thus to reconcile State law, adat lawand sharia. These efforts can be seen in the formation and function of thelocal government structure. The lowest level of this local government isgampong (village) and mukim (federation of villages). Interaction betweenState law, adat law and sharia clearly exists at the gampong and mukimlevels.Conflicts between adat, sharia and State laws are likely to emerge. Thegovernment of Aceh has attempted to limit these conflicts by integratingadat and sharia into State law. Local legislation called qanun is an arena forsuch integration. The government’s policy states that sharia and adat laware the sources of qanun-making. A regulation concerning ‘qanunmechanism’ states that qanun must not contravene sharia and adat law.Furthermore, according to article 19 of Qanun Pidie 8/2007, several casescan be resolved by adat authorities, such as inter-family conflicts,inheritance, fighting, livestock, agriculture-related disputes, distribution ofricefield water, border rice fields, land disputes, borderlands, ill-treatment,130
Page 2 and 3:
Divers Paths to Justice: Legal plur
Page 4 and 5:
Page 6 and 7:
Page 8 and 9:
Page 10 and 11:
Page 12 and 13:
Page 14 and 15:
Page 16 and 17:
Page 18 and 19:
Page 20:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80: Divers Paths to Justice: Legal plur
Page 129: Divers Paths to Justice: Legal plur
show all

Divers Paths to Justice - English - Forest Peoples Programme

Create successful ePaper yourself

Delete template?

Save as template?