Legal pluralism and issues over adat lands
Fiqh Vredian – 13 Nov 2017
At the CRCS-ICRS Wednesday Forum on October 4th, 2017, Linda Yanti Sulistiawati, lecturer at the Faculty of Law, Universitas Gadjah Mada, delivered a presentation about legal pluralism in adat (indigenous) land conflict resolution based on case studies in Manggarai, East Nusa Tenggara. The crucial issues arise when adat land is contested, either under the power of the state and national or international companies or within indigenous communities themselves. Sulistiawati examines how methods of conflict resolution based on the concept of legal pluralism can work in these kinds of situations.
Sulistiawati began her presentation by discussing how the Indonesian legal system influenced by colonial Dutch law acknowledged the diversity of legal systems, including the adat law. Although the national law remains superior above other forms of laws, adat law is alive well in Indonesia’s legal pluralism.
Adaptation of the adat law in various national laws can be seen in the Constitution (article 18, paragraph 2), agrarian law (Law No. 5/1960, article 5), forestry law (Law No. 41/1999, article 67[1]), and the recent village law (Law No. 06/2014, article 107). At the local level, in Manggarai, people have the option for choosing which law they prefer to represent their sense of justice before the court, either adat law or national law.
However, Sulistiawati showed that there are some legal problems and vulnerabilities faced by indigenous communities on the adat land ownership issues. First, the borders of the adat land ownership are indistinct and, as such, cause disputes. Because of unclear borders, the conflict between two adat communities has elevated into ‘fight to the death’ in Wewo Village, Manggarai.
Second, along with modernization, written documents, such as certificates, are regarded as more reliable than verbal proof from witnesses to legitimize ownership over lands. Sulistiawati discovered that only around 4 percent of Manggarai people have certificates for their land and yet all of them have legal security because everyone recognizes each land. However, trouble can arise when somebody else such as a company brings “an official letter from Jakarta” and takes over the land. Written documents have a bigger chance to win in the court.
Third, productive lands are becoming scarce because of increasing population, developments, investment, and so on. Fourth, there is no clear understanding of “land transfer methods” like the conflict of land ownership between government and heirs of the lands in Pasar Puni, Ruteng District, Manggarai. Fifth, unfortunately, some adat rules in Manggarai are not responsive to gender equality, e.g. a woman could not inherit the land. Nevertheless, in one case, a woman who had disputes with her step-brothers was able to win over the rights to become the heir of Philomena (head clan of Tiwu Lina) in Maukeli, Manggarai, even though that is not customary.
Based on her case studies, Sulistiawati showed at least two mainstream options of the adat land conflict resolution. The first option is using the adat law through negotiation, mediation, and arbitration by the elders, which may or may not involve sanctions. The second is the national law which is very formal and ends mostly in the court. These vary based on the complexity of the case, parties involved, background of the case, and which mechanism benefits more. Both ways are acknowledged within the framework of legal pluralism. Practically, the adat law often becomes the first choice, yet as subsidiary law it is frequently challenged by the national law.
In the Q&A session, a participant asked about non-litigation ways that can be utilized to advocate for an indigenous community that is powerless against both the state and a company. Sulistiawati explained that, on international level, Indonesia is one of the signatories of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and, as previously discussed, acknowledged adat law in the constitution and several laws. Nevertheless, the primary problem relates to the issue of development versus environment or community. Considering Anthony Giddens’ notion on the third way, she discussed the possibility of sustainable development discourse. In imbalanced conditions, how to give understanding to the big companies for fulfilling the rights of indigenous people who would be evicted and lost their livelihood is very crucial, especially in compensating what they had, including incentives, houses, education, and so on. No less important, people’s social bonds with their neighborhoods, their sacred places, and their places of work must be taken into consideration. Above all, educating indigenous people to understand, articulate and implement their rights is of utmost necessity, so that they can defend themselves in court.
