LEGAL REVIEW
SOCIAL CONTRACT : THE INDIGENOUS PEOPLE
VS THE GOVERNMENT
LAND DISPUTES IN INDONESIA
BY NORMIATI
FACULTY OF LAW – HASANUDDIN UNIVERSITY
The Social Contract
The Constitution as a legal document is the result of a social contract all the components within a country. This social contract doctrine taught by Thomas Hobbes, John Locke and J.J. Rouseau.[1] Thomas Hobbes claimed that the agreement was necessary to tie all those who are in the country in order to minimize the nature of “violent” man who tends to harm others. This is because, according to Hobbes human nature is an enemy to the other man, called homo homini lupus. In relation to the existence and rights of indigenous people, the Hobbesian view requires the presence of the constitution in order to avoid clashes between different groups in society, including the conflict between indigenous people avoid that, it would require building a supra-political existence is surpassed and overshadowed the existence of socio-political units of customary law communities, namely the state. John Locke stated that the contract or agreement as a measure to evaluate the running of the government, if the government ran out of what has been promised, then the citizens have the right to dissent. In conjunction with this, the guarantee of the rights of indigenous peoples in the constitution is a benchmark to assess whether the government’s actions have been in accordance with the guarantees in the constitution. If not, then the indigenous peoples have the right to dissent and urged the government to fulfill their rights that have been guaranteed in the Constitution.[2]
But what if one party breaks the social contract? What if the government passes the limits of social contract agreed upon in the beginning? As well as the conflict between the government and its communities, in this case is the indigenous peoples. In practice the government often being unfair to the indigenous people and taking their customary lands, without customary release. Governments often have to give authority to companies to manage communal land. In fact, it was customary rights granted to local indigenous communities to manage the land they occupy for the welfare of the indigenous people themselves. This is why the indigenous people whom depend their livelihood from the land are losing their livelihoods. Their right to occupy the state on the land in accordance with what is stated by Rousseau that when individuals do social contract, then the individual give up some rights to be regulated by an agency called the state. Basically, the community does not mind if his land is taken over for development purposes that aim for the common welfare, but the practices of land expropriation has been often used by certain groups for their own interests under the guise of public interest since they are usually the meaning of “public interest” in various regulations that had been there. The government’s unilateral action has created doubts on civil society whenever there expropriation of land for public purposes. In this case is land dispute which is happen between Indonesia and its indigenous people.
Land Disputes
One of the cases is land dispute that happened between PT. Peputera Mastrindo and domo ethnic in Kampar Regency, Riau, Kalimantan, Indonesia. The conflict is that when domo ethnic wants to have one-party oil palm field ownership. Unfortunately, the company opposes it that emerges a conflict. The conflict somehow insists the local government to get conflict resolution but many attempts fail to overcome the conflict.
Another case, Land dispute that happened in east of Indonesia, Papua, in district of Nabire, namely the release of its Wate tribe’s Land right to the Government. But then, by the heirs of the parties who signed the decreer, did a unilateral claim on the invalidity of the letter, so they asked for a compensation for land which has been submitted to the State (Government of Nabire Regency), such us the existence of Nabire airport that located on the ground which is being the object of the land dispute.[3] And there’s still so many of land diputes out there that cant be mentioned one by one.
Basic regulation
Basic Agrarian Law no. 5/1960 is the most important regulations on which the arrangements of indigenous people and traditional rights to land, called customary rights. BAL claimed that the state control over natural resources derived from the appointment of the Indonesian nation customary rights over land, water and natural resources contained therein. This provision seemed to make people lose control over customary rights and the state becomes the sole holder of the rights.[4]
With the enactment of this Basic Agrarian Law, unwritten customary law is declared to be the applicable law of the land, water and airspace (Article 5). This means that part of the rights that had been governed by written laws (the rights according to the legal system of the west), it is now no longer be governed by written laws. That its content in relation to other rights, to the rights of other people and so, in many cases there will be doubts would not be denied. With an unwritten customary law, more or less influence the uncertainty. Whereas the BAL maker itself firmly suggested, as one of the main subject of the regulations that is legal uncertainty must be eliminated.[5]
However, the provisions in the BAL also provides restrictions that associated with the existence of customary rights of indigenous people. As these limits are along by the fact still exist, in accordance with national and state interest, and should not be in contradiction with the higher laws and regulations.. The lack of clarity and overlapping laws and the authority that makes the conflict of indigenous people keeps drag on without any settlement.[6]
On May 16, 2013, the Constitutional Court issued Decision No.35 / PUU-X / 2012. In this ruling, the Court removed the word “state” of the phrase “state of indigenous forests,” which is to returning the management of the community forest to the customary law communities. This historic ruling should be followed by a variety of government policies and actions which included changes in the process, approachment and the recognition of the right of the indigenous people to follow-up the meant ruling.[7]
Relating to the handling of disputes and conflicts customary rights of indigenous people has been published Regulation of the State Minister of Agrarian / Head of BPN No. 5 of 1999 on Guidelines for Solving Problems Land Rights of Indigenous People and the Head of BPN Instruction No. 2 of 2000 on the Implementation of Regulations the Minister of Agriculture.
While the conditions in the field, there’re still so many rights over land and permits that have been issued on the territory of the land of the customary law people. Such as the land reclaim by the name indigenous people that is still happening. And there is no such a clear solutions toward the claim problem that resulted so many horizontal conflicts appearing on the field.
The Policies toward Issue
Actions that can be done is to provide a strong affirmation of the recognition and protection of the indigenous people, which could be more upheld by the government with some policies such as ; to develop capacity by open the active participation space for the indigenous people in the implementation of various programs and activities of the government.[8] And also there must be representative institutions of indigenous people that was created by the government.
Also to effort the settlement of the conflicts related to the presence of indigenous people as well as to anticipate the potential of conflicts in the future in order to ensure legal certainty for the protection of the rights of every citizen. And to strengthen the capacity of the institutional and the authority of various parties, including those responsible party and served to make the recognition and protection of indigenous people whether in national area or regional.[9]
Conclusion
Social contract which is created between the government and the public should be carried out by mutual agreement as the beginning. People adhere to the government as well as the government must protect the welfare of its people. Especially to the indigenous people. The root causes of indigenous people conflicts in Indonesia are generally caused by a lack of synchronization of the rules of law relating to the protection of customary rights of indigenous people.[10] One of the causes of land conflicts between indigenous people and other parties is because there is no certainty of customary lands. It needs existence of equation of perception between local government with customary law public about existence and customary right for land rights legal status by way of improvement of cauntselling of law in land area, especially related to community land.[11] In addition to solving the problems of overlapping arrangement, the Bill on the customary law community should also translate the essential principles of the development of international legal instruments regarding indigenous people and resolve concrete problems faced by traditional law community over the years.[12] The point is, we must always go back to a first agreement.
BIBLIOGRAPHY
Reza A. A. Wattimena, Beyond the State of Law Classics. Yogyakarta: Canisius Publishers, 2007
Team Final Report Assessment of the Constitutional Law on the Protection Against Society Under the Work Team Leader Dr. Herlambang P Wiratraman, SH, MA : Jakarta 2014
Arizona, Yance dan Erasmus Cahyadi. 2013. “The Revival of Indigenous Peoples: Contestations over a Special Legislation on Masyarakat Adat”, dalam Brigitta Hauser-Schäublin, Adat and Indigeneity in Indonesia Culture and Entitlements between Heteronomy and Self-Ascription, Göttingen Studies in Cultural Property, Volume 7. Gottingen University, Germany.
National Law Development Agency (BPHN). 2013. Customary Justice in Indonesian Law System. Assessment reports. Jakarta: BPHN
Rahardjo, Satjipto. 2005. Customary Law in the Republic of Indonesia (Perspective of Sociology of Law), in Hilmi Rosyida and Bisariyadi (edt), Inventory and Protection of the Rights of Indigenous People, (Jakarta: National Human Rights Commission, the Constitutional Court, and the Ministry of the Interior, 2005.imarmata, Rikardo. 2006.
Simarmata, Legal recognition for Indigenous People in Indonesia. Jakarta: UNDP, 2006
Constitution Number 5/1960 about Basic Law of Agrarian
Regulation of the State Minister of Agrarian / Head of National Land Agency Number 5 of 1999 regarding Guidelines for Issue Resolution Land Rights of Indigenous People
[1] More about the differences of three views of this figures; read: Reza A. A.Wattimena,”Beyond the State of Law Classics.”
[2] Team Final Report Assessment of the Constitutional Law on the Protection Against Society Under the Work Team Leader Dr. Herlambang P Wiratraman, SH, MA Jakarta 2014 pg.14
[3] Amahorseya, Ronald. Land Dispute Settlement Of Communal Right In The District Nabire, Papua (Case Study Airport Land Dispute Nabire). Masters Thesis, Post-Graduate Program Diponegoro University. 2008
[4] See the Basic Agrarian Law, para 2 article 4
[5] udargo Gautama,Op.cit.pg 15
[6]E-journal The Customary Rights of The Indigenous People pg.1 by NN, visit jayapura.bpk.go.id/wpcontent/uploads/2014/12/Hak–Ulayat-Papua.pdf
[7] William Sabandar The Recognation and Protection of Indigenous People pg.19
[8] Ministry of Environment and Forests: Circular of the Minister of Forestry, 2014
[9] Permendagri 52 2014 Minister of the Interior on Guidelines for Recognition and Protection of Indigenous People through the Directorate General of Community and Village on July 7, 2014
[10] E-journal The Customary Rights of The Indigenous People pg.8 by NN, visit jayapura.bpk.go.id/wp-content/uploads/2014/12/Hak–Ulayat-Papua.pdf
[11] Amahorseya, Ronald. Land Dispute Settlement Of Communal Right In The District Nabire, Papua (Case Study Airport Land Dispute Nabire). Masters Thesis, Post-Graduate Program Diponegoro University. 2008
[12] Team Final Report Assessment of the Constitutional Law on the Protection Against Society Under the Work Team Leader Dr. Herlambang P Wiratraman, SH, MA Jakarta 2014 pg.65