Noer Fauzi Rachman
The Constitutional Court of the Republic of Indonesia recently made a remarkable and historic judgment for Indonesia's indigenous peoples (masyarakat adat). On May 16, 2013, the Court declared that customary forest is no longer part of the state forest zone (kawasan hutan negara). They decided to delete the word “state” from article 1.6. of the 1999 Forestry Law. Then, the article become “customary forests are state forests located in indigenous peoples’ territory”. The Court ruled in the case number 35/PUU-X/2012, regarding the lawsuit proposed by the Indigenous Peoples' Alliance of the Archipelago (AMAN) with its two community members in March 2012, some 14 month ago. With more than 2000 community members, 20 provincial regional branch, and 81 district offices spread through Indonesian archipelago, AMAN has a good position to articulate and amplify their concern, including by submitting the lawsuit to challenge the constitutionality of article 1, paragraph 6, and several other articles, of the Law no. 41/1999 on Forestry. Thus, the Court has done its job in making Indonesian Constitution works to respond indigenous peoples’ struggle over land, resource, and territory.
I see this event as the landmark that open new period of indigenous peoples’ struggle for their tanah air (Rachman 2012). It deeply connected to what social science literature calls state formation, which need to be seen as institutional contestation and negotiation over the authority to create a structural framework of rules through which collectively binding decisions are made and enforced. In fact, the abilities of various forces within and outside of the state to define and enforce collectively binding decisions on members of society are not a once coherent whole; they are subsequently pluralized and fragmented (Lund 2011:887).
In this context, it is very important and interesting to observe AMAN’s General Secretary, Abdon Nababan maneuver immediately after the judgment was released. After acknowledging the quality of the judgment, and showing how this pave the way for a wider recognition of indigenous peoples' rights over territory in the archipelago, he demand government to unlearn any regulation and program they have produced based on the article 1.6. of Forestry Law No 41/1999. Moreover, he made a political statement to request the Indonesian government, c.q. President Susilo Bambang Yudhoyono, to make a public apology because of past forest regulations, policies, and practices that have devastated the life of indigenous peoples, and to acknowledge the responsibility of his government to take remedial actions.
The reader may has a question what’s wrong with previous forest regulations, policies, and practices in relation to the life of masyarakat adat. In the constitutional court, on June 5th, 2012, I made an expert testimony that include to answer the question in a dense briefing. I am qualified to testify because of my long and continues engagement as a scholar activist on the Indonesian agrarian policies and movements, and my doctoral training in University of California at Berkeley in agrarian political ecology.
I argue that Indonesian indigenous peoples (masyarakat adat) has been struggling to make themselves visible, and subsequently, their citizenship rights are fully recognized. The harsh reality was experienced many indigenous peoples under the New Order regime because of the State presence over their territories that were treated as resourceful frontier. The State present and affects the lives of indigenous peoples in remote and rural areas, terrestrial and coastal, through coercion and social engineering, including through corporate owned land, mining, plantation and forestry concessions, as well as national parks. The crude practice that accompanies all was dispossession and displacement from their living area, including with or without resettlement projects.
Indigenous peoples have special characteristics as the owner of their territories. As an archipelagic country, Indonesia was known for varied socio-ecological characteristics of indigenous territories: dense-forested, river and lake landscapes, agro-forestry in lowland and upland areas, coastal and sea customary territories, savanna grasslands, etc. The diversity of the regions also affect their forms of livelihoods, ranging from hunting and gathering forest products, fishing and collecting marine resources, circular cultivation, sedentary farming, etc. The indigenous peoples are among the population groups who are directly victimized and subsequently suffered because of the regulation, policy and practice of New Order regime in granting land, mining, forestry and plantation concessions since 1967.
Granting concessions is of course a part of government legal authorities. The problem starts because in public decisions government officials made, they include indigenous peoples’ land and territory within licenses/permits/use rights they gave to corporations/national parks. It would not be a problem when the licenses/permits/use rights holder decide to allow indigenous peoples communities live in harmonious peaceful coexistence situation. In the most cases, they decide to displace the communities by force. The land conflict starts when the licenses/permits/use rights holder act 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 the agrarian conflicts lies in the decision of public officials who has the authority to allocate land/natural resources for state-owned or private-owned companies/institutions that work for producing global commodities, and or ecological services.
In the expert testimony at the Constitutional Court I showed two mechanisms by which masyarakat adat are dispossessed. First of all, is categorization; Customary lands and indigenous territory are defined to be included in the rubric of State Land (Tanah Negara) or State Forest Zone (Kawasan Hutan Negara). I name this categorization as state-izing indigenous people’s lands and teritory (negara-isasi tanah-tanah dan wilayah adat). The second mechanism involves the exercise of bureaucratic power to produce permits/license/use right to particular corporation/government agency after they completed all requirements and eligibility. Then, after the corporation/government agency get the permits/license/use right completely or partially, they starts to mobilize their resources to work on the field. Then, their field officers realize actual expressions of local claims over lands, resources, and territory within the concession they work.
In this context, the land conflicts can be understood as protracted conflicts arising from opposing claims over rights to access to particular land/resource between indigenous communities and concession holders; and where each opposing side take direct or indirect actions to delegitimate/negate the claims of the other. Competing parties then seeks and acts to get legitimacy from legitimate institutions, including government agencies, in various simple or complex ways. In the most simple and typical way, the concession holders mobilize their own resource and make alliance with government institutions that have privilege to produce regulation, and have legitimacy and power to enforce it, including by criminalize those who resist against the legality of license/permit/use rights they got. The communities mobilize themselves to develop alliances with various parties, including social movement organizations such as AMAN, to get legitimacy over their claims and position.
AMAN’s leaders have worked with environmental lawyers to submit the judicial review to test constitutionality of state-izing customary forests. The judges of the Constitutional Court have established the constitutional norm that the State must recognize the rights of indigenous peoples as clearly showed in the Constitutions, especially article 18-b. This must be a paradigm shift that open a new round of forest tenurial reform within the Ministry of Forestry and other government agencies.
Bibliography
Lund, Christian. 2011. “Fragmented Sovereignty: Land Reform and Dispossession in Laos,” Journal of Peasant Studies 38(4): 885-905.
Rachman 2012 “Masyarakat Adat dan Perjuangan Tanah-Airnya”, Kompas 06/11/2012
___________
*) Noer Fauzi Rachman, PhD, is the Director of Sajogyo Institute, member of expert council of Konsorsium Pembaruan Agraria (KPA), and lecturer on Indonesian land policies, and agrarian politics and movements at Bogor Agricultural University (IPB).
No comments:
Post a Comment