The State and \'Adat\' Communities

SUPRIYANTO

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Before we reach any clear resolution on the much-debated Land Bill, we are faced with another problem: the Indigenous Peoples Bill.

Many are busy discussing its content, responding to such discussions and pondering who should be involved in such talks. At the same time, there are concerns among businesspeople regarding the bill. Perhaps due to frustration or deep-seated conviction, many have joined in seemingly unending talks about the bill. If I am not mistaken, regulations on adat (indigenous) institutions, including laws, villages and peoples have existed across many laws. Apart from in the 1960 Agrarian Law, relevant stipulations on indigenous people can be found in the Forest Law, the Farming Law, the Environment Law and the Village Law. The currently under deliberation Land Bill also includes stipulations on the issue.

Much more than just recognition of indigenous peoples’ existence, these various laws and bills have accommodated various forms of indigenous institutions and indigenous peoples’ rights and authorities, especially in terms of land access and use. The problem now is how to encourage the issuance of derivative regulations to put existing laws into practice. Surely, because of the presence of multiple laws on the issue, integration in describing concepts is important to avoid any legal contradictions.

Because of the prevalence of stipulations in laws and bills, this opinion piece will not focus too deeply on technical and content-related issues. Instead, I wish to talk more about the core and fundamental issues at the root of all the discussions. In terms of laws, especially legal politics, the ultimate question is: what more do we want to achieve and realize through an Indigenous Peoples Bill? Even if existing regulations are not perfect, is creating an entire new bylaw the right answer?

Outside of cases pertaining to indigenous people’s access to and right over land and its resources, which has been encompassed in many existing bylaws and the Land Bill, what aspects do we wish to clarify further through a separate Indigenous Peoples Bill? It will be good if politicians – both those in political parties and in legislative bodies, especially the House of Representatives – can first elaborate on this issue, before hastily talking about technicalities, such as compiling a problem inventory list (DIM) and other issues. As for the government, it would be good if the Law and Human Rights Minister, the Home Minister, the state secretary and the cabinet secretary reviewed the bill’s intended goals before delivering it to the President.

Land issues will seemingly be an important national issue that must be addressed for the good of the nation. It is never wrong to talk about geopolitics and Indonesia’s position as a global maritime power, the rupiah’s fluctuating exchange rate, the importance of weaponry for the armed forces and the National Police, the current account deficit, import policies and other matters. However, we need to be aware that it will be land issues that give us the worst headaches in the future if they remain unresolved.

From the perspective of welfare development, production and productivity increase, achieving smooth development, justice, human rights and political and security stability, land issues should always be prioritized in fundamental resolutions. Prevailing problems may persist as a result of poor policies and poor implementation.

However, diverting such administrative problems, in the form of poor governance or policies, into issues of oppression, strong-versus-weak, protection of marginalized communities and other such issues may end up leading us to unnecessary problems later on. Using these issues in the approach toward compiling the Indigenous Peoples Bill may end up being an overdose – to use a medical term.

Using such an approach should be considered carefully, especially in terms of nurturing diversity in Indonesia. The spirit of forming “a government of the state of Indonesia that shall protect all the people of Indonesia and their entire native land, and in order to improve the public welfare, to advance the intellectual life of the people” et cetera, requires an approach based on citizens’ rights and responsibilities, instead of an approach based on social groups that may seem to divide the people. In short, national unity must be seen as most important.

Respect for traditional communities’ rights and cultural identities

If we look at the Indigenous Peoples Bill, we will get the impression that the Constitution’s Article 28-I (that’s a capital “i”) is used as the formal foundation on stipulations that substantially go beyond the principle of respect mandated by the article. The last article in Chapter X-A on human rights reaffirms the principle that traditional communities’ rights and cultural identities be respected in line with changing times. However, we should also be observant and wise in realizing that the character and spirit of Article 28-I is not static.

It does not stop at respecting traditional communities’ rights and cultural identities. It goes beyond in delving deep into societies’ underlying spirit and dynamic values. When societies’ values and ways of living change socio-culturally and traditional groupings dissipate, we need to be modest in reading the meaning of Article 28-I of the Constitution in a dynamic perspective.

Perhaps, the mandate of Article 28-I should be further clarified. Traditional communities’ rights and cultural identities should always be respected. This is clear. However, in line with this, there should also be sustainable efforts toward achieving a more progressive, modern and prosperous national life. Fundamental and noble traditional values, as well as good norms accepted nationwide should be promoted in creating regulations, as foundations in determining the direction of national life. The same applies for indigenous laws.

In an increasingly open and progressive social life, it becomes increasingly difficult to deny that the role of indigenous laws is fading. Nevertheless, the essential traditional values and good norms in indigenous laws must be promoted as the soul of national laws.

It needs to be acknowledged that collective interpretation and understanding remains necessary on several main ideas and philosophical foundations regarding the goals, proper form and organization of the state in the Constitution. It is not impossible that many are still confused about understanding the significance of the Constitution’s new articles included in the four amendments and how they connect to the original articles prior to the amendment. Many who try to understand the amended constitution may be at a loss after the erasure of the Annotations chapter in the Constitution. This is not impossible, as we have seen how people often use their own interpretation on core and crucial stipulations in the Constitution.

Take, for instance, a main idea originally in the Annotations chapter – but that has now been erased – regarding special regions in Indonesia: “In the territory of Indonesia there are approximately 250 self-governing regions (zelfbesturende landschappen) and village communities (volksgemeeschappen), such as the desa (village) in Java and Bali, the nagari in Minangkabau, the dusun and marga in Palembang and other social-administrative units. These regional units have their own indigenous social systems and thus may be considered special regions. The Republic of Indonesia respects the status of the special regions and any government regulation on these regions shall have due regard to their hereditary rights.”

Regardless of the problems related to the semantics and linguistics of a bygone era, there are two mentions of “special regions” in the stipulation. This citation is part of the Constitution’s Annotations that were erased in the amendment. The problem is that, the word “special” in the two phrases has different meanings. There has never been any interpretation, while a collective understanding has also never existed. In such a condition, three special regions were established using “situational” interpretations in order to resolve existing political problems.

The absence of all of this often leads to people talking about the branches of a tree without actually knowing what the trunk and the roots looks like. It is like people are building rooms of a dormitory on top of a foundation intended for a joglo (a traditional Javanese house with a unique cone-shaped roof). Another prominent example is the discrepancy in the Constitution’s philosophy within its structure and functions as found in its body.

The new order of state governance, in which the People’s Consultative Assembly (MPR) is given the authority to amend the constitution, is built recklessly on top of old designs for MPR as the state’s highest body and the holder of people’s sovereignty – concepts no longer of use today. Similarly, as many are pondering the need for some sort of a state guideline (GBHN), MPR members are now forced into a conundrum of whether they actually have the authority to establish it. The Regional Representatives Council (DPD) often touts itself as the house of senators but has seemingly never justified its existence in a state that has always been intended as unitary.

Integration in village law

Indigenous peoples, villages and laws are institutions. Similar to states, they are entities. They have structures, functions, apparatuses, orders and authorities, both to carry out and protect their functions. It used to be that our people lived in such entities that numbered in the hundreds. However, in our journey toward establishing the Unitary State of the Republic of Indonesia, principally all of these older entities should mesh into the order of the state without forgetting their origins, traditional values and other aspects that make them special. Under such vision and understanding, there should be no state within a state.

As the unitary state is arranged in a structure of government and regional divisions, all citizens as subjects of their original entities, be it self-governing or indigenous communities, mesh as one. As the underlying vision, the creation of our government stipulates a protection of all the people and their entire native land and government services are provided using a citizenship approach. The subjects are citizens and not members of social groups. In this approach, as the structure and order of government is manifested through the central government, regional administrations (provinces, regencies and cities) and villages, then the provision of administrative services, protection, public order and others should be carried out under such a structure. In this approach, the provision of services for all citizens is carried out within the framework of the government of Indonesia.

Law No. 4/2014 on villages is more than enough to regulate villages and clearly stipulates indigenous villages as a type of village. The law even gives the authority for regional heads to establish indigenous villages in their jurisdictions. Like other types of villages, indigenous villages are given the authority to self-govern and to develop the local community based on their own initiatives in line with prevailing indigenous laws and original rights. The law’s chapter XII stipulates special rules for indigenous villages and Article 96-111 stipulates the establishment, organization, merger, authority and change of status of indigenous villages. Why should we even create a new law for this?

Therefore, even if the existing laws are not perfect, it is more than enough to improve the Village Law or to elaborate it further through derivative regulations. Most importantly, such an approach will not lead to political complications for the unity of the nation. Apart from preventing legal inflationary effects, the state should not turn into a state of bylaws.

Bambang Kesowo, Lecturer in the postgraduate law school at Gadjah Mada University and chairman of the board of supervisors of the National Resilience Institute Alumni Association (IKAL Lemhannas).