Noer Fauzi Rachman
A Paper presented at the Conference of “Property and Citizenship in Developing Societies”, University of Copenhagen, 28-31 May 2013.
On 16 May 2013 the Constitutional Court ruled that customary forest (hutan adat) is no longer part of the state owned forest. This means that customary communities (masyarakat hukum adat) are recognized as rights bearing subjects. The ruling came in response to a judicial review submitted by the alliance of indigenous peoples of Indonesia's archipelago (AMAN). It fundamentally validates customary communities' position in their scattered struggle over land, resources, and territory. In contrast with the market fundamentalism adopted by certain state institutions, the Constitutional Court Ruling represents "a social State." It has opened up the possibility for changing the trajectory of the systemic agrarian conflicts which are chronic and pervasive in Indonesian archipelago. At the same time it provides a popular opportunity to fix the citizenship status of the customary communities in Indonesia archipelago.
Introduction
The Constitutional Court of the Republic of Indonesia recently made a remarkable and historic influence for Indonesian agrarian politics, especially related to the existence of customary communities (masyarakat hukum adat)and their right to have rights over lands, natural resources and territory. On May 16, 2013, the Court declared that customary forest (hutan adat) is no longer part of the state owned forest (hutan negara). They decided to delete the word “state” from article 1.6. of the Forestry Law No. 41/1999. Now, the article reads “Adat forests are state forests located in customary communities’ territory”. The Constitutional Court has decided to move the category of forest status within which “customary forest” (Hutan Adat) belong to. “Customary forest” has been taken out of “state forest” (Hutan Negara), and it has moved into “forest subject to rights” (Hutan Hak) (see table no. 1.). By locating “customary forest” within “forest subject to rights” means that customary communities (masyarakat hukum adat) are recognized as a rights bearing subject.
The Court ruled in the case number 35/PUU-X/2012, regarding a judicial review proposed by the Indigenous Peoples' Alliance of the Archipelago (AMAN) with two of its community members in March 2012, some 14 months ago. With more than 2000 community members, 20 provincial regional branches, and 81 district offices spread throughout the Indonesian archipelago, AMAN is in a good position to articulate and amplify their concerns, including by submitting the judicial review to challenge the constitutionality of article 1.6, and several other articles, of the Forestry Law no. 41/1999 (see table no.1). Thus, the Court has done its job in making the Indonesian Constitution work to respond customary communities’ position in their scattered struggles over land, resources, and territory in Indonesian archipelago.
The reader may ask what were gone wrong with previous forest regulations, policies, and practices in relation to the live of customary communities. In the Constitutional Court, on June 5th of 2012, I made an expert testimony that included answering briefly the question. The Forestry Law No. 41/1999 provided legal foundation for the Ministry of Forestry of Republic of Indonesia to treat customary communities’ territories (wilayah adat) as a resources-rich frontier, biodiversity hotspot, or other reasons, and categorizing customary communities’ territories as part of state (owned) forest (Kartodihardjo 2012). By doing these actions, the Ministry of Forestry has used its legal authority to include the customary communities’ territories into areas allocated for logging, industrial tree plantation, conservation, ecological restoration or other purposes, and issued forestry licenses for corporations to operate in those areas without the consent of customary communities. Since then, these communities have been struggling against what they basically perceive as land and resource grabs by concessionaries. Agrarian conflicts become chronic because of their persistent and disruptive challenges against concessionaries.
Since its establishment in 1999 AMAN and its supporters has been invoking the politics of indigeneity by which they frame the Indonesian customary communities as “indigenous peoples” as defined international human right instruments (See ICRAF, AMAN, FPP 2003, Colchester et al 2003). In my previous works elsewhere (Rachman 2011, 2012) I initially show that in the context of chronic, pervasive, and systemic agrarian conflicts, AMAN has invoked struggle for Tanah-Air, and at the same time also struggle for inclusive citizenship, for Indonesian customary communities, as well as for Indonesian nation state.
In order to make struggle for inclusive citizenship easy to digest, I invoke the concept of struggle for tanah-airelsewhere (Rachman 2012a, 2012b, 2013), and AMAN adopted this. Tanah literally means land, and air means water. When we put them together become tanah-air, the meaning goes beyond vital resources for human life, but it means symbolically and materially as territorial struggle for motherland/native land as well as struggle against political oppression, economic colonization, and cultural domination.
I argue that the Court Ruling of May 16, 2013 is a landmark event that not only open up the possibility for changing the trajectory of the agrarian conflicts, but also it has contained popular opportunity to fix the citizenship status of Indonesian customary communities. This argument is deeply connected to the current literature on state formation and land control, which needs to be seen as institutional contestation and negotiation over political subjectivities and the authority to create a structural framework of rules through which collectively binding decisions on land and resource allocation are made and enforced (e.g. Baitenmann 2005, 2011; Sikor and Lund 2009; Lund 2011; Peluso and Lund 2011). In fact, various forces within and outside of statutory institutions state to define and enforce collectively binding decisions on members of society never have been a coherent whole, but that they have always been pluralized, fragmented, and contradicted (Lund 2011:887).
In order to show the fuller meaning of the Constitutional Court Ruling in validating and advancing customary communities’ position in their struggles for their tanah-air, as well as struggle for inclusive citizenship at the same time, I have to explain dynamics of social forces that work at particular conjuncture. In doing so, the organization of the paper goes into the following order: the role of AMAN in relation to systemic, chronic and pervasive agrarian conflicts in contemporary Indonesia, a theoretical discussion on struggle for inclusive citizenship, and some concluding reflections.
The role of AMAN in making customary communities visible, their rights respected, and their citizen status fixed
Since their first national congress that took place in Jakarta in March 1999, the Indigenous Peoples' Alliance of the Archipelago (AMAN) has grew and expanded their membership bases. 2,243 customary communities have registered as members of AMAN in 2013. In conducting its work, AMAN set up 20 provincial regional branches, and 81 district offices spread throughout the Indonesian archipelago. Since the beginning, AMAN agendas has been shaped by every day experience of customary communities dealing with agrarian conflicts.
The harsh realities experienced by many customary communities under the New Order regime and its successors are caused by the situation where their territories are treated as a resources-rich frontier. The State frequently is present, and their presence significantly transforms the lives of customary communities in remote and rural areas, terrestrial and coastal, through coercion and social engineering, including by granting licenses to private- or state- owned corporations or government agencies to establish land, mining, plantation and forestry concessions, as well as conservation areas. All these were usually accompanied by the dispossession and displacement of customary communities from their customary territory, with or without resettlement projects.
Customary communities have special characteristics as the owner of their territories because of their original rights (hak-hak asal usul). As an archipelagic country, Indonesia is well-known for varied socio-ecological characteristics of indigenous territories: dense-forested, river and lake landscapes, agro-forestry in lowland and upland areas, coastal and marine customary territories, savanna grasslands, etc. The diversity of the regions also influences indigenous livelihoods, which range from hunting and gathering forest products, fishing and collecting marine resources, rotational cultivation, sedentary farming, etc, and various combinations of these. Customary communities are among the population groups who were directly victimized by, and subsequently suffered from the regulations, policies and practices of the New Order regime in granting land, mining, forestry and plantation concessions from 1967 onward.
Granting concessions is of course located within the government’s legal authority. The problem stems from the fact that in the decisions made by government officials, customary communities’ lands and territories are included within the licenses/permits/use rights they give to corporations/national parks. This might have not been a problem if the customary communities whose lands and resources were affected had been able to exercise their right to Free, Prior and Informed Consent as stated in the UN Declaration on Indigenous Peoples Rights. In most cases, corporations and government agencies that have licenses to manage natural resources decide to displace the communities by force. The competing claims starts when the licenses/permits/use rights holder acts to delegitimize the existence of the communities, their territorial rights, and rights to access land and resources, and then communities resists. Thus, it can be said that the main source of agrarian conflicts lies in the decision of public officials who have the authority to allocate land/natural resources to state-owned or privately-owned companies/institutions involved in producing global commodities, and or ecological services.
In the expert testimony I delivered at the Constitutional Court I also showed two mechanisms by which masyarakat adat are dispossessed. First of all, categorization; customary lands and indigenous territories are defined to be included in the rubric of State Land (Tanah Negara) or State Forest Zone (Kawasan Hutan Negara). I call this categorization ‘state-izing’ customary communities’ lands and territory (negara-isasi tanah-tanah dan wilayah adat). The second mechanism involves the exercise of bureaucratic power to produce permits/licenses/use rights to particular corporations/government agencies after they have completed all eligibility requirements. Then, after the corporations/government agencies get the permits/licenses/use rights completely or partially, they start to mobilize their resources to work on the field. It is at this point that their field officers are confronted with actual expressions of local claims over lands, resources, and territory within the concession where they work (Rachman 2012c; Mahkamah Konstitusi Republik Indonesia 2013:66-68).
In the Constitutional Court, AMAN’s lawyers demonstrated the way the existence of customary communities were denied and their rights were violated through testimonies of six community leaders who served as witnesses. They represent the following cases: (i) Bentian case in Kutai Barat District, East Kalimantan Province; (ii) Manggarai case, East Manggarai District, East Nusa Tenggara Province; (iii) Talang Mamak case, Indragiri Hulu District, Riau Province; (iv) Semunying case, Bengkayang District, West Kalimantan; (v) Sekatak case, Bulungan district, East Kalimantan Province; and (vi) Pagaruyung case of Bukit Dua Belas National Part, Jambi Province. Through these witnesses, AMAN lawyers showed various typical examples by which customary communities suffered because of their customary territories are categorized as part of state forest. It is clear that they point to the practice of the State that denying of their existence as the full owner who has rights to have their indigenous territories; and because of that, their territories have been targeted as the areas of natural resources concessions without any respect to their rights to be informed on the plan, and their rights to freely decide whether they provide consent or not to the plan. Using the popular language of human rights, their rights to Free and Prior Informed Concent (FPIC) were violated.
In my expert testimony at the Constitutional Court, after hearing testimonies of two witnesses, a Dayaks indigenous leader from the Bentian Case, and a Cocol indigenous leder from Manggarai cases, I stepped back to show how these agrarian conflict cases occur. Locating chronic agrarian conflict cases in a larger context to find the structural cause of the conflict led me to point out large scale land acquisition policies and practices for investments in infrastructure, plantations, mining and forestry. Using a more partisan term, those are policies and practices of land grabs.
At the Constitution Court, I also showed that the conflicts were chronic because government institutions have had no political will to resolve competing claims over rights to access to particular land/resource/territory between rural communities on one side, and concession holders on the other side. Moreover, each opposing side takes direct or indirect actions to delegitimize/negate the claims of the other, including direct and persistent oppositions on the part of local people — whether facilitated by local leaders, or civil society organization such as AMAN and its NGO supporters — to challenge forceful transfer of land control, forced exclusion of the local population, or limiting of existing access to the land and natural resources.
One of the consequences of the land grabbing is the way it precipitates socio-ecological crises, including forcing villagers to migrate to new areas to seek new farmland or to join the ranks of the urban poor. This migration has gender dimension. Certain cases in various areas show that the migration of women from land grabbing areas has a dimension of gender-based violation. In these cases, young female villagers have been trapped into women’s trafficking circles. In this way, rural conflicts become the source of new problems in the cities. Moreover, articulation of agrarian conflicts can take other forms too, including disputes between landowning farmers and plantation workers, ethnic conflicts between local communities and migrants, and inter-village conflicts.
The way the state laws are applied, by using force and criminalizing local community figures, combined with manipulation, fraud and coercion, are all used widely and systematically. These tactics are often used to deny local people’s land claims or to transfer control over land, natural resources and territories into the hands of these giant corporations for their projects/concessions. They also exclude local people from, or limit their access to, land, natural resources and territories. When the violent conflict breaks out between corporations, the security forces and local people, it becomes a matter of civil and political rights violations.
Then, the prolonged conflicts have created a significant decline in people’s ability to fulfill their daily needs independently through farming. It marked the early stages of the transformation of their existence as “peoples with lands”, farmers with diverse livelihoods, towards a state of landlessness. Some of them have become and will continue to become wage laborers and others will be unemployed or underemployed.
In chronic systemic agrarian conflicts, members of the customary communities critically question what the government position is and what role it plays. They can sometimes feel there is no protective or supportive government at all. In the early stages of the conflict, they protest against the government. When they are then criminalized, and sometimes their community members were injured because of the physical clashes with security guards of the concession holders and the use of military and police forces against them, they feel that the government is against them. In turn, the loss of their trust to the government erodes the victims’ sense of being Indonesian citizen.
In every agrarian conflicts the competing parties then seek and act to get recognition from powerful institutions, including government institutions, and civil society organizations, in various simple or complex ways. In the simplest and most typical way, the concession holders mobilize their own resources and make alliances with government institutions that are in the privileged position of producing regulations, and have the power to enforce and legitimize them, including by deploying security apparatus and criminalizing those who dispute the legality of those licenses/permits/use rights. The communities, on the other hand, mobilize themselves to develop alliances with various parties, including social movement organizations such as AMAN, to legitimize their claims and position.
For customary communities, AMAN does not only serve as a good ally to articulate their position and concerns, but AMAN also provides a frame, a stage, resources, network, and political leverage by which customary community leaders could strategically use the rubric of masyarakat adat and their identity as customary leaders in their everyday struggle over land, resources and territory. Masyarakat adat in Indonesia is not a self-evident category I argue, to assert as a masyarakat adat, communities have to bring themselves in relation with civil society organizations, like AMAN, to a particular type of politics embracing the notion of indigeneity, which resonates well with the experiences and aspirations of many dispossessed rural communities in Indonesia and “indigenous peoples” in the world (Afiff and Lowe 2001, Li 2010).
AMAN has started to establish its politics of indigeneity since the First Congress of Indigenous Peoples of the Archipelago (KMAN) in mid-March 1999 in Jakarta. The Congress was initiated by networks of communities based organizations supported by Indonesian and international NGOs. It formed AMAN as a formal organization to represent customary communities from all over the Indonesia’s archipelago, and find ways to make their existence visible, their rights respected, and their citizen status fixed.
In connecting to similar struggle in the world AMAN and its NGOs supporters decided to translate the term “masyarakat adat” (customary communities) into “indigenous peoples”. They also has defined masyarakat adat with a reference to international definitions of indigenous people, which focus on historic continuity, distinctiveness, marginalization, self-identity, and self-governance (See Dove 2006:1) AMAN define customary communities as a group of people who have lived in their ancestral land for generations, have sovereignty over the land and natural resources, govern their community by customary law and institutions which sustain the continuity of their livelihood.
In their “Pandangan Dasar” (Fundamental View), AMAN showed the juxtaposition between Indonesian State and the existence of customary communities.
"(L)ong before the Republic of Indonesia was established, a variety of customary communities has lived scattered around Indonesian archipelago. We, customary communities, are living based on ancestry for generations upon an indigenous territory, which has sovereignty over land and natural resources, and traditional institutions that manage the sustainability of community life” (AMAN 1999).
The establishment of AMAN has enabled the scattered customary communities around archipelago to develop a unified collective action frame which was represented in AMAN’s motto: “If the State do not recognize us, we do not recognize the State.” The motto concisely and precisely represents the position AMAN decided to show, i.e. their problematic and contingent relation to the State. The 1999 Congress formulated that the prima causa of their suffering experience is “the denial of the existence of customary communities as part of the citizens of the Republic of Indonesia”.
“It is clearly (that the State) recognized the diversity of indigenous culture across the nation, as it has been formulated in terms of national unity. But, in fact, we did not obtain recognition of sovereignty. Customary communities in the Republic of Indonesia have experienced serious hardships. Suffering is essentially derived from the non-recognition of the sovereignty of Customary communities by the sovereignty of the Indonesia State through various government practices" (AMAN 1999).
It is clear that since the beginning of its establishment, AMAN has been struggling against the state denial of the unconditional citizenship status of customary communities. They realized that under current practice and legal arrangement set up by the Indonesian Government, customary communities have no unconditional citizenship status although their existence has been guaranteed by the Constitution of the Republic of Indonesia. In contrast, the denial of their citizenship status would be fatal for the fate of these groups. They have underwent a bitter experience , and then a great struggle to get real and legal recognition of their lands, natural resources, and their territory - which I refer to as tanah-air of customary communities. They have prolonged troubles because statutory institution have blocked their trajectory to transform their position from a population (a group of people living in an area within the State) to be a citizen (who has constitutional rights that must be realized and protected by the State). The State has come and entered to customary communities’ territories through various licenses for corporations or government agencies in the business of huge plantation, mining, forestry, infrastructure, etc., and treat territory as downstream side of global commodity production. Put simply, the Indonesia state appears and has been perceived as usurpers-usurper of their tanah-air, and they again rely on bonds of localities such as customs and ethnicity as a reference for the face of the usurper.
Since 1999, AMAN leaders have changed overtime their working strategies because of the changing political spaces within which they work. AMAN has succeeded to develop effective networks within indigenous peoplesorganizations at regional and international levels. When Indonesian government has moved to introduce democratic-decentralization governance, AMAN leaders and its NGO supporters develop workable mechanisms to seize local political opportunities, which includes advocating for local regulations to recognize and protect customary communities’ territories and bringing customary leaders to become local parliament members. The role of CSOs in international human rights and environmental regimes have strengthened overtime. The presence of AMAN as national organization of “indigenous peoples” in the largest archipelagic country in the world is important and influential in global meetings for human rights, sustainable development, and climate change negotiations. AMAN congresses and national workshops which always have taken place in district or provincial cities and well attended by their national and also international supporters. They have gotten credible coverage at local and national newspapers.
In their last Congress in Tobelo, North Maluku in 2012, AMAN set-up two autonomous sister-organizations: the Indigenous Women’s League of AMAN and the Indigenous Youth’ League of AMAN. AMAN initiated to push legislative body at national parliament (DPRRI) to take initiative in drafting a new law on the Recognition and Protection of Indigenous People Rights. After a year drafting process, in April 2013 the General Assembly Meeting of Indonesian National Parliament decided the draft as official one and submitted it to the Indonesian President.
Struggle for Tanah-Air, Struggle for Inclusive Citizenship
I approach the issue of citizenship not simply in a legal term, or as a question of formal rights inscribed in the state laws, but rather as an everyday practice term. At conceptual level, I follow Margaret R. Somers’ effort to rework Hanna Arendt’s conception of citizenship as “the right to have rights” which is “not any single civil, juridical, or even social right, but the primary right of recognition, inclusion, and membership both in political and civil society“ (Somers 2008:25). I use the framework she offers on the relationships among the state, the market and civil society. Her main argument is that market fundamentalism is deeply corrosive of the foundations of citizenship by making social inclusion dependent upon successful participation in market transactions; in other words, the market transforms “inalienable citizen rights” into "conditional privileges" contingent upon successful labor market performance.
Students of Indonesian agrarian politics learn how the global market has come to life since the rise of the New Order, a counter-revolutionary regime established after the bloodily political transition in the mid of 1960s, and the ways the market changed relations between Indonesian State, indigenous and local rural peoples, and land/natural resources which partly depended on macro economic policy orientation of the ruling regime. During the period when the New Order regime was in power from 1966 to 1997 (before Indonesia was hit by Asia financial crisis), Indonesia’s macro-economic policy was shaped mainly by four major paradigms which were competing with one another, namely nationalism, populism, predatory bureaucratism, and liberalism (Robison 1986, 1997, Rosser 2002). The configuration of oligarchic powers in Indonesia has changed drastically since the fall of President Suharto, after 32 years in power, including because of political liberalization and democratic decentralization policy (Hadiz 2001, 2006, 2010).
Since Presiden Susilo Bambang Yudhoyono came to power in 2004, central and local governments decided to expand and accelerate sites for extraction and production of natural resource based commodities, by expanding and extending large- and middle- scale concessions, including oil and gas, nickel and bauxite, cooper, manganese, silver and gold, coal, palm oil, ply-wood, and pulp-and-paper, and wood-chip and pallet, etc. Indonesian government’s Master Plan for Accelerating and Expanding Economic Development (MP3EI) 2011-2025 was set up as the official frame of reference by which massif infrastructure development projects are designed, through public and public-private investment schemes, in the so-called economic corridors. It is very clear that the market fundamentalism gets privilege to dominate in the MP3EI. Observing the MP3EI, I see the efficacy of Ellen M. Wood’s notion of “market-as-imperative” (Wood: 1994, 2002) to understand how state institutions allocate licenses to companies, thereby preventing customary communities to access their land, resources, and territory. Agrarian conflicts occur in unprecedented scale because of communities’ persistent, disruptive and collective challenges against statutory institutions and concession holders that rely on force, regulation, money, and legitimation, to shape their “power of exclusion” (Hall et al 2011).
My approach to examine this struggle for tanah-air as well as at the same time struggle for citizenship is through everyday contestation, negotiation, and struggle over land and land policies at multiple sites of policy processes in Indonesia, especially in relation to the existing systemic agrarian conflicts. I conceive the systemic agrarian conflicts as prolonged competing claims on who have the right to have rights over lands, natural resources, and territories, between rural communities and land, plantation, forestry, mining and infrastructure concession holders. This type of conflicting claims arises from the granting of licenses to corporations by public officials—including the Minister for Forestry, Minister for Energy and Mineral Resources, the Head of the National Land Agency (BPN), regional governors and local district heads—which sanction them to exclusively use land, natural resources and territories for extraction, production and infrastructure projects as well as conservation. The problem occurs because the concession holders discontinue the existing customary accesses to lands, resources and territories which are located within their concession areas. The conflicting claims are protracted because of persistent resistance of community leaders to mobilize their community, and significant role of Civil Society Organizations (CSOs) such as AMAN, in delegitimizing concession holders’ domination. Theoretically speaking, this effort is a form of counter-movements against the market movements (Polanyi 1957, Block 2008).
CSOs are not autonomous of state institutions. Actually CSOs, such as AMAN, need a particular character of state institution, what Somers calls “a social State”. The Constitutional Court of Indonesia has performed and promoted such character. AMAN leaders and their NGO supporters are very aware about their power to influence state institutions. They have observed, and actively and continuously shaped, the ways state institutions work differently, and many time contradictorily one to another, in relation to their position and agendas. They are aware that the mainstream view of the state institutions is to produce space for global commodity production as promoted by the central government’s Master Plan (MP3EI). On the other hand, they are also aware that the state institutions are not monolithic and homogenous units. There are state institutions, such as the Constitutional Court that clearly stands for constitutional rights of Indonesian citizen. The Constitutional Court has proved its function to revise defective existing laws by which government practices endangered constitutional rights of Indonesian citizen.
It is obvious that Constitutional Court Judges approach their role as constitutional guardian through the lenses of “responsive law” (Nonet and Selznick 2001), and “progressive law” (Raharjo 2006) by which they criticize the practice of the market fundamentalism that endanger constitutional rights of Indonesian citizen. In the context of systemic agrarian conflicts, it is important to understand their concerns on social injustices because of the growing economic discrepancy that state institutions created by giving licenses to control land and natural resources in the hands of both private and state-owned corporations on one hand, and on the other hand by annexing customary rights over land and resources.
One of the Judges of the Constitutional Court, Ahmad Sodiki, has a clear view on this issue:
“From the perspective of the constitution, this creates increasing social injustices, that rooted in misallocation of the existing natural resources. When we apprehend this issue through the lens of article No. 33, point 3, of the Constitution, it is the state obligation to ensure that natural resource allocation, i.e. land, water and natural resource, are utilized for the sake of people prosperity (fair and equitable). This aim could not be achieved by enforcing the existing land and natural resource related laws because the laws are defective; When such defective laws are enforced, it will create social injustices. Enforcing such defective natural resource laws will endanger the existence of customary communities who are vulnerable to be excluded by those who have power in the name of the State or by permissions of state institutions” (Sodiki, 2012). (Underlined words are added by author)
The Constitutional Court has established the constitutional norm that the State recognizes and respects the rights of customary communities as clearly written in the Constitution of the Republic of Indonesia, especially article 18b. By taking customary forest out of “state owned forest” (hutan negara) category, and moving it into “forest subject to right” (hutan hak) category, the Court recognize customary community as right bearing subject.
What case is this? This is the case of undoing categorical inequality.
I refer the concept of categorical inequality to Tilly (1998:8) as quoted in the beginning of the paper. Tilly identifies four basic mechanisms to make inequality durable, i.e. exploitation, opportunity hoarding, emulation and adaptation. He argues that “(e)xploitation and opportunity hoarding favor the installation of categorical inequality, while emulation and adaptation generalize its influence” (Tilly: 10). Exploitation take place when people in one social group expropriate a resource produced by members of another social group, and prevent them from realizing the full value of their effort in producing it. Opportunity hoarding take place when one social group restricts access to a scarce resource, either through outright denial or by exercising monopoly control that requires out-group members to pay rent in return for access. Either way, opportunity hoarding is enabled through a socially defined process of exclusion. Moreover, Tilly (2008) explains that within any social structure setting, exploitation and opportunity hoarding are reinforced by emulation and adaptation. Emulation occurs when one group of people copies a set of social distinctions and interrelationships from another group or transfers the distinctions and interrelationships from one social setting to another. Lastly, adaptation occurs in every day behaviors which follow ranked categories in ways that assume the existence and importance of asymmetric social categories. Emulation and adaptation work over time to institutionalize categorical distinctions and make them embed in social relations.
Coda
Undoing categorical inequality through policies toward recognition requires a particular visibility of the existence of customary communities and their actual control over customary territory. It also need a kind of participation and representation in formal policy processes at statutory and non-statutory institutions at multiple arenas and levels. Adequate visibility, representation, and participation are three key determinants in actual struggle not only for strengthening their position in systemic agrarian conflicts, but also for fixing their citizenship status. I have showed how AMAN has performed its role to advance local struggles over land, resources and territory across Indonesian archipelago, and up-scaled those into national arena, including through recent effort to submit the judicial review to test the constitutionality of state-izing customary forests.
What I have showed also a partial effort to explain the potentiality of the Court Ruling that opened up the possibility for the significant change of the trajectory of systemic agrarian conflicts. Prior to the Constitutional Court Ruling, the National Parliaments (DPRRI), the Senates (DPDRI), the National Human Right Commission (Komnas HAM) and some statutory institution under the President authorities have started to work to produce advises/recommendations to the President how to handle agrarian conflicts. Two month before the Constitutional Court Ruling released, the twelve central government institutions signed a memorandum of joint actions on Forestry Sector Governance Reform which initiated by Corruption Eradication Commission (KPK) in the Presidential Palace, Jakarta. The President, The Vice President Boediono and the chairman of President Delivery Unit for Development, Monitoring, and Oversight (UKP4) witnessed the signing of memorandum of joint actions.
By making customary communities have “right bearing subject” status, the Constitutional Court Ruling create significant pressure to opens possibility to fix their right to have rights, including right to control customary territory. Because of the nature of my analytical object as highly dynamic on-going processes it is too early to know what is the specific and concrete impact of the Ruling possibly produces on the way the President uses his discretionary authority. It will be also very interesting and challenging to observe what are further impacts the Ruling possibly produce on the ways statutory institutions change their works in relation one to another, and the role that actually CSOs, including AMAN, played.
The Forestry Ministry secretary-general, Hadi Daryanto, provided initial response through Jakarta Post as written below:
(T)he Ministry had launched a program in 2010 to allocate 2.5 million hectares of forest areas as village forests, as a substitute for customary forests for indigenous people. The program is slated to be completed in 2014.
“With the annulment by the Constitutional Court, we will redefine the designated areas of village forests that are not located in state forests or private forests,” he said. Hadi added that customary forest areas could not be regulated by the central government as, according to Article 67 of the Forestry Law, customary forests were to be regulated under by law. “Article 67 of Law No. 41/1999 on forestry was not annulled by the MK [Constitutional Court] and currently, no regional administration has issued a bylaw on customary forests,” Hadi told The Jakarta Post. He said it was the ministry’s task to draft a government regulation to force local administrations to acknowledge customary forests in bylaws; something that has long been requested by several parties.
AMAN’s General Secretary, Abdon Nababan, immediately released his political statements. After acknowledging the quality of the Ruling, and showing how this paves the way for a wider recognition of customary communities' rights over their territory in the archipelago, he demanded that the government annul any regulation or program they have produced based on article 1.6 and other related articles of the Forestry Law No 41/1999. Abdon Nababan stated that the Court Ruling served as “a golden opportunity to rebuild customary communities’ trust to the government, and to restore sense of citizenship of customary communities who have lived in insecurity because of the legal status of their customary forest”. Moreover, he made a political statement urging that the Indonesian government, c.q. President Susilo Bambang Yudhoyono, makes a public apology for the past forest-related regulations, policies, and practices that have devastated the life of customary communities including “thousands of indigenous leaders who went to jail”, and to acknowledge the responsibility of his government to take remedial actions and to start “national reconciliation between customary communities and the government“. One of the proposed remedial actions delivered by a coalition of NGO activists and scholars who support AMAN is that the President uses his discretionary authority to make an amnesty for customary leaders who are in jail because of their previous actions to defend their territories.
The maneuver of AMAN’s secretary general and its supporters is very important and interesting because of its motive aimed to test whether the President recognizes the citizenship status of customary communities, contrasted with their previous position as targeted population.
Copenhagen, May 27, 2013
Revised version on June 4, 2013
Acknowledgement
Many thanks for Christian Lund, Jesse Ribot, Gerry van Klinken, Mia Siscawati of the Sajogyo Institute, Siti Rahma Herwati of HuMA, Carolyn Marr of the Down to Earth, and Marcus Colchester of Forest People Program for direct and virtual conversationsat multiple times during my stay at Department of Food and Resource Economics, University of Copenhagen, since 10 May 2013. This revised version also is made possible after commentaries made by participants of a panel organized in the Conference of “Property and Citizenship in Developing Societies”, University of Copenhagen, 28-31 May 2013. All of these enrich and clarify my argument and explanation, and prevent me to have mistake. Usual disclaimer apply.
Table 1.
Constitutional Court Ruling 35/PUU-X/2012, 16th May 2013
(Judicial Review of articles in Forestry Law 41/1999).
What was changed | Original Indonesian wording in Law 41/1999 | English translation (unofficial translation) | Indonesian revision by Constitutional Court | English revision (unofficial translation) |
Article 1.6 | Hutan adat adalah hutan negara yang berada dalam wilayah masyarakat hukum adat. | "Adat" forest means state forests located in indigenous peoples’ territories. | Hutan adat adalah hutan yang berada dalam wilayah masyarakat hukum adat. | "Adat" forest means forests located in indigenous peoples’ territories. |
Article 4.3 | Penguasaan hutan oleh Negara tetap memperhatikan hak masyarakat hukum adat, sepanjang kenyataannya masih ada dan diakui keberadaannya, serta tidak bertentangan dengan kepentingan nasional. | Forest control by the State shall respect the rights of indigenous peoples, as long as they exist and their existence is recognized, and does not contradict national interests. | Penguasaan hutan oleh Negara tetap memperhatikan hak masyarakat hukum adat, sepanjang masih hidup dan sesuai dengan perkembangan masyarakat dan prinsip Negara Kesatuan Republik Indonesia yang diatur dalam undang-undang. | Forest control by the state shall respect the rights of indigenous peoples, as long as they remain in existence and are compatible with societal development, and with the principle of the Unitary State of the Republic of Indonesia as regulated by law. |
Article 5.1 | Hutan berdasarkan statusnya terdiri dari: a. hutan negara, dan b. hutan hak. | Forest status consists of two types:
a. state forest, and
b. forest subject to rights | Hutan negara sebagaimana dimaksud pada ayat (1) huruf a, tidak termasuk hutan adat | State forest as referred to in paragraph (1) point a, does not include adat forest. |
Article 5.2 | Hutan negara sebagaimana dimaksud pada ayat (1) huruf a, dapat berupa hutan adat. | State forest as referred to in paragraph (1) point a, can be in the form of adat forest. | -- | -- |
Article 5.3 | Pemerintah menetapkan status hutan sebagaiman a dimaksud pada ayat (1) dan ayat (2); dan hutan adat ditetapkan sepanjang menurut kenyataannya masyarakat hukum adat yang bersangkutan masih ada dan diak ui keberadaannya. | The Government shall determine the status of forest as referred to in paragraph (1) and paragraph (2); and adatforest shall be determined as long as the indigenous peoples concerned remain in existence and their existence is recognized. | Pemerintah menetapkan status hutan sebagaimana dimaksud pada ayat (1); dan hutan adat ditetapkan sepanjang menurut kenyataannya masyarakat hukum adat yang bersangkutan masih ada dan diakui keberadaannya. | The Government shall determine the status of forest as referred to in paragraph (1); and adat forest shall be determined as long as the indigenous peoples concerned remain in existence and their existence is recognized. |
Source: Mahkamah Konstitusi Republik Indonesia (2013) “Putusan Nomor 35/PUU-X/2012”. Thanks for Carolyn Marr of the Down to Earth to allow me using this table.
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For the first time here, I translate masyarakat hukum adat or masyarakat adat as customary communities for literal translation. In the context of social movement activism, I follow the translation of masyarakat adat into indigenous peoples, as AMAN has been using since its first Congress on 1999, for communication and political reasons.
In order to make struggles against political oppression, economic colonization, and cultural domination easy to popularized, AMAN leaders reuse Trisakti mantra or Three Principle, which was invented by the first President of Indonesia, Sukarno: “Politically sovereign, economically autonomous, and culturally dignified” (Berdaulat secara politik, mandiri secara ekonomi, dan berkepribadian secara budaya).
I follow Stuart Hall’s methodological advice that
“(T)he social forces at work in any particular conjuncture are not random. They are formed out of history. They're quite particular and specific, and you have to understand what they are, how they work, what their limits and possibilities are, what they can and cannot accomplish. … But what is the outcome of the struggle between those different contending relations or forces is not 'given', known, predictable. It has everything to do with social practice, with how a particular contest or struggle is conducted” (Hall 2007:280).
A 2011 study by Institut Titian Perdamaian shows that the majority of large-scale ethnic and religious conflicts that occurred during and after Indonesia’s transition to democracy (1998-1999) were rooted in struggles over land, natural resources and territories (Tohari et al 2011).
Li (2000) shows how the ‘tribal slot’ was used by indigenous peoples movements in Indoensia. The ‘tribal slot’ is a term she has taken from Michel-Rolph Trouillot’s ‘savage slot’ (1991).
“Jauh sebelum Negara Republik Indonesia berdiri, telah hidup bermacam-macam Masyarakat Adat dalam komunitas-komunitas yang tersebar di se-antero Nusantara. Kami Masyarakat Adat, adalah komunitas-komunitas yang hidup berdasarkan asal-usul leluhur secara turun temurun di atas suatu wilayah adat, yang memiliki kedaulatan atas tanah dan kekayaan alam, dan lembaga adat yang mengelola keberlangsungan kehidupan masyarakat.”
“Diakui dengan jelas bahwa adanya keanekaragaman budaya Masyarakat Adat di seantero Nusantara, sebagaimana yang telah dirumuskan dalam istilah Bhineka Tunggal Ika. Tapi, kenyataannya, kami tidak memperoleh pengakuan atas kedaulatan. Kehidupan Masyarakat Adat dalam Republik Indonesia mengalami penderitaan-penderitaan yang serius. Penderitaan itu pada pokoknya bersumber dari tidak diakuinya kedaulatan Masyarakat Adat oleh kedaulatan Negara Republik Indonesia dalam berbagai praktek-praktek penyelenggaraanya.”
“It is important to not treat that the Civil Society is against the Market all the time. “A healthy civil society is not autonomous of markets and states. Indeed the contrary is true; civil society’s very capacity for resistance against external market incursions requires support from the state in the form of market regulations, social insurance policies, public services,redistributive tax schemes and mechanisms to institutionalize and enforce the rights to livelihood” (Somers, 2008:31).
“Dalam perspektif konstitusi, hal ini menimbulkan pelebaran ketidakadilan sosial, yang bersumber pada ketidakadilan pemanfaatan sumberdaya alam yang tersedia. Hal ini jika dikaitkan dengan Pasal 33 ayat (3) UUD 1945 menjadi tugas negara bagaimana pengusahaan sumberdaya alam yakni bumi, air dan kekayaan alam yang terkandung di dalamnya dimanfaatkan untuk sebesar besar kemakmuran rakyat (secara adil dan merata). Hal itu tidak dapat dicapai dengan menegakkan hukum semata karena ternyata hukum yang berkenaan dengan sumberdaya alam mengandung cacat yang, jika ditegakkan, justru akan menimbulkan ketidak adilan sosial. Penegakan hukum sumberdaya alam yang tidak adil akan mengancam eksistensi masyarakat hukum adat yang sangat rentan penggusuran oleh mereka yang mengatasnamakan atau ijin dari negara” (Kata-kata bergaris bawah dari penulis)
The following are some statutory institutions that have started to work in producing recommendation/advise to the Indonesian President and Vice-President on how to adequately handle systematic agrarian conflicts:
