On 16 May 2013, the Constitutional Court of the Republic of
Indonesia ruled that customary forests (hutan adat) were no longer to be regarded as part of state forests (hutan negara). The Court ruled to delete the word “state” from article 1.6 of Forestry Law No.
41 of 1999. The article now reads “Adat forests
are state forests located in the territory of
customary law communities (masyarakat hukum adat).” The ruling determines the category of forest to which a “customary forest” (Hutan Adat) belongs. “Customary forest” has been removed from the category
of “state forest” (Hutan Negara), and moved into “forest subject to rights” (Hutan Hak). The Constitutional Court Ruling of Case Number 35/PUU-X/2012
is a landmark achievement for the forest reform process in
Indonesia.
This chapter presents a critical analysis of the Constitutional
Court Ruling, particularly the implications of the ruling in
favour of masyarakat hukum adat
[1] and their adat forests, as well as the
implication it has for state institutions in implementing the
ruling. This chapter identifies the ways in which the ruling was
influenced by civil society, which advocated for the recognition
of the rights of masyarakat adat over lands,
natural resources, and territory. We contextualize the struggle
over lands, natural resources, and territory in the context of
territorialization of forest control in Indonesia.
We argue that the Constitutional Court ruling is a remarkable and
historic landmark in Indonesian agrarian politics, especially in
relation to the status of masyarakat hukum adat (hereinafter we use the term: masyarakat adat) as
rights-bearing subjects, in which they have a “right to have
rights”, including rights over lands and territories. Treating
“customary forest” in the category “forest subject to rights”
means that masyarakat adat are recognized as
rights-bearing subjects that have the legal authority to exercise
rights, duties and capacities as they pertain to those
forests.
In analyzing the Indonesian Constitutional Court Ruling, this
chapter discusses the concept of “the right to have rights” that
we adopt from Hanna Arendt through the work of Margaret Somers
(2001). Based on Arendt’s idea that citizenship is the necessary
condition for all types of right-bearing, we argue that AMAN
advocates for inclusive citizenship, calling on the Ministry of
Forestry and other Indonesian statutory institutions to recognize
the status of masyarakat adat as rights-bearing
subjects.
As we illustrate in this chapter, we adhere to a point of view of
critical legal studies as follows:
(R)ights take shape and are constituted by and through struggle.
Thus, they have the capacity to be elements of emancipation, but
they are neither a perfect nor exclusive vehicle for emancipation.
Rights can only be operative as constituents of a strategy of
social transformation as they become part of an emergent ‘common
sense’ and are articulated within social practices ... They
articulate a vision of entitlements, of how things might be, which
in turn has the capacity to advance political aspiration and
action (Hunt 1991: 247).
Moreover, in line with the above approach, we 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)
This chapter also illustrates how the Constitutional Court ruling
challenges the state’s territorialization of forests in Indonesia
and at the same time provides an opportunity for changing the
trajectory of systemic agrarian conflicts. In analysing the
state’s territorialization of forests and inhabitants in
Indonesia, we adopt the concept of state territorialization of
forest and inhabitants as defined by Peter Vandergeest and Nancy
Peluso (1995) in their historical analysis of territorial control
over forests of Thailand since the late nineteenth century. Their
article addresses the way in which state power is territorialized
within the borders of a politically defined space and the
relationship of this process to the allocation and realization of
resource access rights in addition to control over the people who
use such resources (Vandergeest and Peluso 1995: 387). They employ
Robert Sack’s concept of territoriality as “the attempt by an
individual or group to affect, influence, or control people,
phenomena, and relationships by delimiting and asserting control
over a geographic area” (Sack 1986: 19). It is about inclusion and
exclusion of people and activities within a circumscribed,
delimited area, and the space of the state is further defined as
abstract space. In a separate article, Vandergeest defines
territorialization as “the process by which states
attempt to control people and their actions by drawing boundaries
around a geographical space, excluding some categories
of individuals from this the space, and proscribing or prescribing
specific activities within the boundaries of that space”
(Vandergeest 1996:
159).
Vandergeest and Peluso (1995: 391) examine the territorialization
of resources and people in rural areas, particularly in three
following processes: the territorialization of civil
administration in rural areas of Siam/Thailand, state attempts to
control the use of major portions of national territory by
demarcating it, and finally defining it as forest. In another
article, Vandergeest (1996) further asserts three stages of
territorialization of the state’s control of forests. First, the
state claims all lands considered as ‘”nobody's land” as state
property. At this stage, the state intends to earn income from the
extraction of natural resources. The next stage is the
establishment of the boundaries of the land declared as the state
property in order to assert the state’s territorial control over
natural resources. After the territorial boundaries of a certain
area are established, the state forbids anyone access the area and
its natural resources unless the state issues a permit or a
concession to the land. The final stage of territorialization of
state’s control of forest is when the state launches a program
that can be called “functional territorialisation”. In the case of
Thailand, this approach was established in 1960; it was
also adopted in the U.S. in land use management models whereby
states divided forests into types suitability for various
functions or exploitation based on scientific criteria, such as
slope, rainfall and soil type. The main output of this program was
the zonation of the area aimed to regulate the types of activities
that would be allowed in each zone (Vandergeest 1996).
The aforementioned processes in the state’s territorialization of
forests and their inhabitants have also occurred in Indonesia.
Indonesia’s territorialization practices took root during its
colonial period and continue into the contemporary era. This
process has not been linear, but full of dynamics and has been
operationalized through negotiation and interaction between state
institutions and actors with those of non-state ones over certain
periods. The establishment of state territorialization during the
colonial era was preceded by the extensive use of tropical timbers
from the Indonesia’s archipelago as raw material for the Dutch
shipbuilding industry.
This chapter starts with an historical overview of the state’s
territorial claim to — and control over — forests. It also
describes the contemporary process of the government’s claim to
and control over forests in Indonesia, including the establishment
of “kawasan hutan” (“forest zone”), and how this approach
was influenced by the approach taken by Indonesia’s former
colonial government. In the second part of this chapter, we
closely analyse the struggles of masyarakat adat and the role AMAN has played in agrarian conflicts in the
Indonesian archipelago. AMAN’s agenda has largely been influenced
by masyarakat adat’s experience of being excluded
from their own lands and territories, and of being criminalized by
the Ministry of Forestry, other statutory institutions, and
concession holders. We focus on the ways in which AMAN’s
significant contribution hass contributed to giving the masyarakat adat visibility and to garnering respect for their rights. This
action.T includes the 2013 petitioning for a judicial review of
Forestry Law No. 41 of 1999 by the Constitutional Court. The third
part of this chapter contextualizes the Constitutional Court
Ruling as a landmark in the trajectory of Indonesian agrarian
politics.
...
[1] The term of masyarakat adat was officially adopted in the first congress of the Indigenous Peoples Alliance of the Archipelago (AMAN) in 1999. AMAN define masyarakat adat as “a group of people who have lived in their ancestral domain for generations, have sovereignity over the land and natural resources, and govern their community by customary law and institution which sustain the continuity of the livelihoods.” In the context of social movements, we follow AMAN’s translation of masyarakat adat into indigenous peoples, or indigenous communities. Indonesian legal scholars inherit the concept of masyarakat hukum adat (adatrecht gemenschap) as a particular legal personality in Indonesia (previously the Netherlands East Indies) from the literature of adat studies developed by colonial adat scholars. See: Van Vollenhoven (1981),Ter Haar (1962). See also Hooker (1981). In this report, we use the term of masyarakat hukum adat, masyarakat adat, and indigenous peoples or indigenous communities interchangeably.
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