Seeking Middle Way to Managing Customary Communities

KOMPAS/DIDIE SW

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Over the past 25 years since 1993, numerous opinion pieces have been published in Kompas on the crucial issue of regulations needed to manage customary communities (masyarakat hukum adat; MHA) and their rights.

As the House of Representatives has placed the deliberation of the customary community bill on its agenda, perhaps a comprehensive explanation of the background, key points and regulatory urgency on the issue is needed.

Cases concerning customary communities and their access to their lands and forests, as well as other related cases in many regions – especially those involving third-party conflicts and disputes – are often mismanaged and never reach resolution. Conflicts and disputes may erupt between customary communities and private companies or government institutions, or even among different communities to protect their borders or ownership of certain lands. The absence of a comprehensive regulation that recognizes and protects these communities and their rights add to the complexity in resolving these cases.

Sectoral laws rarely or partially mention customary communities in only one or two articles. Are these comprehensive enough to protect their rights? A study on the harmonization of 26 laws on natural resources and the environment (GN-PSDA KPK Team, 2018) noted at least three differences in sectoral laws and MHA regulations.

First is the different terms used. Sectoral laws generally use the term customary community or MHA, but the Spatial Planning Law, for instance, uses the term indigenous community (masyarakat adat, MA) and the Oil and Gas Law uses both terms. Second are the different requirements for recognizing a customary community, which could lead to one community being recognized by certain government institutions but not by other institutions. Third are the different degrees of protection applied to customary lands.

Further analysis of partial MHA regulations shows that the principle of social justice, as defined through various indicators, has not been achieved. This can be seen in the absence of guaranteed recognition of customary communities and their protection, equitable access to natural resources, compensation for the communities’ loss of access to natural resources utilized by other parties, and their right to approve and reject plans regarding natural resource use. In addition, various sectoral laws are yet to include the right of customary communities to access information on, and their participation in, planned natural resource use.

Sectoral laws are yet to provide clear regulations on corporate responsibility in empowering and establishing cooperation with customary communities, including equitable distribution of revenue from natural resource use and sanctions for companies that utilize natural resources on customary lands without permission.

I believe it is clear that these matters essential to MHA recognition and protection are yet to be regulated across many prevailing laws. Therefore, a comprehensive regulation is needed to fulfill the state’s duty as mandated by the Constitution.

Harmonization and unification

There are at least 13 international conventions on customary communities, from the 1945 UN Charter to the UN Declaration of the Rights of Indigenous People of Sept. 13, 2017. In Asia, the Philippines issued in 1997 The Indigenous Peoples Rights Act as lex generalis in regulating MHAs and their rights as state subjects. Mining regulations, for instance, include a formula on the royalties and compensation indigenous peoples are eligible for in the event that mining activities are carried out their lands. Furthermore, all mining activities on customary lands require the company to first obtain approval from the relevant community.

In Indonesia, recognition and protection of MHAs are found in Article 18 B, Point (2) and Article 28 I, Point (3) of the 1945 Constitution. The Constitutional Court (MK) formulated an explanation on the recognition of MHAs through its decision No. 10/PUU-I/2003 on the judicial review of Law No. 11/2003. Customary communities are provided legal recognition through four criteria: (1) the presence of living members; (2) adherence to social development; (3) adherence to the principles of the Unitary State of the Republic of Indonesia (NKRI); and (4) legal regulation. The MK has provided a detailed explanation on each of these four requirements. With regard to “legal regulation”, do existing laws provide enough regulatory certainty for customary communities?

Analyses on sectoral laws containing partial and disharmonized stipulations on MHAs point to the need for a single law that acts as lex generalis that provides comprehensive and integrated regulation on MHAs. The stipulations on MHAs in sectoral laws must later be readjusted to conform to the new lex generalis in accordance with the spirit of the Constitution and relevant MK rulings. They must also consider that the MK has recognized customary communities as legal subjects through its decisions No. 34/PUU-IX/2011, No. 45/PUU-IX/2011 and No. 35/PUU-X/2012.

At present, at least four bills regulate customary communities and their rights, whether comprehensively or in part: the Customary Communities (MHA) Bill, the Indigenous Peoples Rights Protection (PHMA) Bill, the Land Bill and the Customary Communities Customary Rights Bill. The first two bills contain some similarities.

KOMPAS/DEDI MUHTADI

Residents of Kampung Banceu in Sanca village, Subang regency, West Java, hold Ngaruwat Bumi ceremonies every year. The customary rituals that have been held since the 1800s are expressions of community gratitude for abundant agricultural products.

The MHA Bill contains stipulations on the following: (1) recognition of the rights of customary communities; (2) protection of MHAs; (3) MHA rights to land, natural resources, belief systems and culture, the environment, and customary duties; (4) MHA empowerment; (5) MHAs’ right of access to information; (6) the rights and duties of central and regional governments; (7) customary institutions; (8) dispute resolution; (9) funding; (10) public participation; (11) restrictions and (12) crime. Meanwhile, the PHMA Bill contains the following stipulations: (1) indigenous peoples’ rights (under 15 categories); (2) the advancement of indigenous peoples’ rights, including their empowerment, development, preservation and use of these rights; (3) institutions, including the rights and duties of central and regional governments and information systems; (4) public participation; (5) monitoring; and (6) funding.

Some substances regulated under separate chapters in the MHA Bill are combined under one sub-chapter in the PHMA Bill. Examples include dispute resolution, empowerment, rights and duties of central and regional governments and information systems. The PHMA Bill does not substantively regulate customary institutions, restrictions or crime.

The Land Bill stipulates the option of granting access to customary lands upon written approval from the community that manages it and upon fulfilling several other requirements. On the other hand, the MHA Customary Rights Bill mandates the recognition of customary rights. With regard to recognition, the legal relationship between MHAs and their lands are categorized as either public-private or wholly private.

The differentiation affects further regulations on recognition, registration, transfer and encroachment. Furthermore, the MHA Customary Rights Bill regulates the right to customary lands; encroachment and transfers; compensation; and waiving customary rights.

Wisdom

Regardless of the substances of these bills that are open to debate, how can we find the middle way in MHA regulations? First, in the House’s deliberations of the MHA Bill, related stipulations in the PHMA Bill must be harmonized with and accommodated in the MHA Bill to create a comprehensive law to act as lex generalis. The name of the bill can be retained or, if possible, changed into the MHA Rights Bill.

Second, with regard to the legal stance of the MHA Customary Rights Bill: if this bill can include broad outlines or the core issues stipulated in the three previous bills, then the MHA Customary Rights Bill can be issued as a government regulation to implement the MHA Bill. However, if the MHA Customary Rights Bill contains essential points that are not regulated in other bills, it can be refined and issued as the lex generalis for all regulations on the customary rights of customary communities. Achieving harmonization of the laws will enrich their substance and prevent conflicting regulations.

Finding a middle way to unite the regulations on customary communities is a substantive need and not merely technical. The resulting legal product should be based on sociological, anthropological and historical research on customary communities. An objective perspective on Indonesian diversity is necessary for recognizing that a comprehensive regulation on customary communities fulfills the state’s duty to recognize and protect the country’s customary communities.

It is possible that customary community ties may loosen over time and they may one day be lost to history. If such an event should come to pass, let it be through the communities’ individual legal awareness and not through external forces, whether through policies or actions.

Maria SW Sumardjono, Professor, School of Law, Gadjah Mada University; Member, Indonesian Academy of Sciences (AIPI)