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Down to Earth No. 46, August 2000

Indigenous communities and democratic control

The rights of Indonesia's tens of millions of indigenous people are not properly recognised under Indonesian law and forest-dwellers are at a particular disadvantage. Although some attention is given to customary law (hukum adat) in the 1999 Forestry Act and in other pieces of legislation, adat land rights are not recognised in forest areas because all forests are categorised as state-owned.

In March 1999, the inaugural Congress of the Indigenous Peoples of the Archipelago saw the creation of Indonesia's first national-level indigenous peoples' alliance. One of the main demands which came out of the conference concerned the need for recognition of adat rights under Indonesian law.

"The political rights of indigenous peoples to control our own economies, societies, laws and culture must be restored, including our rights over land, natural resources and other sources of livelihood. This should be done through a new law specifically on this issue." (See Congress's main demands DTE Special Issue October 1999)

Key points of interest for Indigenous Peoples

  • There is no longer an insistence on uniform system of Javanese model of 'villages' throughout Indonesia. It may be possible to use this legislation to reinstate traditional village boundaries/identities and decision-making bodies;

  • villages can be called by their original customary names e.g. nagari, kampong:

  • there will be two aspects to village governance - the village head/admin apparatus + the village assembly (pemerintahan desa) which has a legislative function;

  • the village head will be chosen by the people and appointed by the village council. S/he is responsible to the people, not to the sub-district head (camat) or district head (bupati);

  • village assembly members will be elected directly (but they must fulfil certain conditions/criteria);

  • village regulations do not have to be formally approved by the bupati - s/he only has to be informed;

  • However the village assemblies and village heads have not been elected yet and elections may be postponed - hence a vital element of local democracy is missing while the rest of the local autonomy agenda moves on. Unless village assemblies are in place there will be no real local accountability.

The 1999 law on regional autonomy sends mixed signals to indigenous peoples. A debatable level of autonomy is restored to adat communities at village level. Here, unclear wording can lead to very different interpretations. For example, where the law sets out changes to village level government, a village is defined as "a legally recognised community entity which has the authority to control and take care of the needs of the local community according to its origins and culture." This is encouraging in that it implies scope for the re-establishment of the diverse village government systems that existed before the imposition of uniformity in 1979. However different meanings attributed to the law's definition of a village as "part of the National Government system" have given rise to debate about how far village communities will really be able to enjoy autonomy in the way they run their affairs.

The re-introduction of adat law at village level is bound to meet limitations since local government and village laws must not conflict with national laws - which exclude or downplay adat rights - and these apply at all levels of government. In theory, this means that if an autonomous area government wished to recognise adat rights over forest, for example, it would not be able to do so, since this would conflict with the national forestry law. Policies, drawn up by central government on how Indonesia's natural resources should be managed - with all their emphasis on large-scale commercial activities - would almost certainly conflict with the full recognition of adat rights.

A further area of conflict would be where existing commercial projects like mines or timber concessions, whose contracts must be honoured according to central government, were located in areas where adat resource rights were recognised.

There is also the matter of financial autonomy at village level. According to economist Anne Booth, it looks likely that villages will lose the so-called 'INPRES' grants which they have been receiving ever since 1969. They will become completely dependent on the districts for both routine and development funds.

"Greater autonomy at the district could thus mean sharply reduced capacity at the village level."*

"Adat law could become positive law"

Adat law and adat governance could become positive law in autonomous areas, according to Andi Mallarangeng, one of the architects of the regional autonomy law, and senior official in the regional autonomy ministry in Jakarta, speaking at a discussion on special autonomy and Free Papua in March.

Several countries, such as India and the Philippines, have applied customary law in certain areas, he said, so he "fully agreed" with applying it in Indonesia. (Republika 27/Mar/00)

Adat law: potential problems

If indigenous communities use the village autonomy as a means of restoring adat (customary) law - there is a need to consider the potential problems of trying to fit adat into the wider government system. Indigenous peoples' customary systems of inheritance, land ownership, natural resource management and use are poorly understood by central and local governments and do not fit with national legal and administrative systems. There needs to be a strong system of checks and balances on traditional leaders to ensure that, as part of the government administration system, they do not become more answerable to the government hierarchy than they are to the indigenous group they represent.

According to indigenous rights campaigner and Forest Peoples Programme Director, Marcus Colchester, "the only real guarantees of equitable development are dynamic, inclusive (especially women and lower 'caste'/class groups), open, transparent and accountable decision-making at the community level. Customary institutions work best when they work parallel to and not as part of the public administration. (pers com 28/Mar/00)

* A. Booth, 'The current regional crisis in Indonesia: were economic policies to blame?' School of Oriental and African Studies, University of London, June 2000.

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