1. The Role and Status of Jural Communities in Indonesian National Legal System BONO BUDI PRIAMBODO

2. 1945 Const. Art. 18 (original) The division of Indonesian territory into regions big and small with their forms and structures of governance shall be stipulated with Law, while considering and bearing in mind (i) the consultative basis of State governance system; and, (ii) distinct aboriginal rights of the regions.

3. …elucidation (i) i. Because Indonesia is een eenheidsstaat, there will be no regions within its territory to have the nature of staat. ii. Indonesian territory shall be divided into provinces, and provinces shall be divided into smaller regions. iii. Autonomous regions (streek en locale rechtsgemeenschappen) and/or administrative regions, shall be stipulated in Law. iv. Regional representative bodies shall be established in autonomous regions because regional governance shall be based open the consultative basis as well.

4. …elucidation (ii) i. Within Indonesian territory, there are no less than 250 zelfbesturende landschappen en volksgemeenschappen, such as desa in Jawa and Bali, negeri in Minangkabau, dusun and marga in Palembang etc. This regions have original structures, therefore should be considered as special regions. ii. The Republic of Indonesia shall respect the status of those regions and all State’s laws concerning the regions shall be based upon the beschikkingsrecht of those regions.

5. BAL Konsiderans a. Pertaining to the above-mentioned considerations on the necessity to have a national agrarian law, that is based on Adat Land Law, that is simple and guarantees legal certainty to all Indonesian people...

6. Legal Bases 1945 Const., Transitional Rules, Art. II. 1945 Const., Art. 18 Law 5/60 BAL, Art. 3 and 5. Law 41/99 Forestry, Art. 1, 4, 5 and 67. Law 18/04 Horticulture, Art. 9. Law 4/09 Mining, Art. 67-68.

7. Human Rights Perspective ILO Convention No. 107 and Recommendation No. 104, 1957 jo. Convention No. 169, 1989 1945 Const. Art. 18B and 28I TAP MPR XVII/98 Human Rights, Art. 41 TAP MPR IX/01 Agrarian Reform, Art. 4 Law 39/99 Human Rights, Art. 6

8. 1945 Const. Tr. Rules, Art. II “All state organs and legal stipulations are still applicable, before being revised according to this Constitution.” Hence, all Netherlands Indies legal stipulations concerning the applicability of Adat Law, based on this Article, still prevail, before being revised according to this Constitution.

9. 1945 Const., Art. 18B (1) The State acknowledges and respects regional governance units that are special (khusus) and distinctive (istimewa) as stipulated with Law. (2) The State acknowledges and respects jural communities with their traditional rights, as long as (i) they exist in reality, and (ii) in accordance with societal development, and (iii) in accordance with the principle of Unitary State of the Republic of Indonesia, as stipulated with law.

10. UUD 1945 Pasal 28I (3) Cultural identities and the rights of indigenous people shall be respected in accordance with advancements in civilization.

11. BAL Art. 3 Pursuant to Art. 1 and 2, Implementation of hak ulayat (right of disposal/ right of allocation) by jural communities... As long as they exist in reality, Shall be done in manners that... i. are in accordance with State’s and national interests, based on national unity, and; ii. are not violating any legal stipulations of higher hierarchy.

12. BAL Elucidation to Art. 3 “…basically, hak ulayat shall be regarded, as long as it exists in reality… [However] it cannot be justified if, based on a claim of hak ulayat, a community tries to prevent the granting of Right to Cultivate, Whereas the granting of such right is intended for a wider interest...”

13. BAL Art. 5 Agrarian Law applicable to land, water and air space is Adat Law, as long as... not in conflict with State’s and national interests, based on national unity; with Indonesian Socialism; and, stipulations in this Law; and, other legal stipulations; while paying good attention to elements from religious laws.

14. BAL Elucidation to Art. 5 vide General Elucidation III (1) Adat Law = People’s Legal Conscience. Most Indonesians are subjected to Adat Law, therefore agrarian law should be based upon adat legal rules, as the original law, But enhanced and adapted to (i) public interests in a modern state; and (ii) matters pertaining to international relations; and (iii) Indonesian socialism. As is known, Adat Law in its development is not sterile from political influcences of capitalistic colonial societies and feodalistic self-ruling societies.

15. Law 41/99 Forestry Article 1 number 6 “Adat Forest is State Forest within the territory of a jural community." Article 4 paragraph 3 “State’s control over forests shall pay attention to the rights of jural communities, as long as they exist and recognized in reality, and not in conflict with national interest."

16. Law 41/99 Forestry Article 5 paragraph (2) to (4) On Forest Status “State Forest can be Adat Forest. Government stipulates on the status of a forest, and Adat Forest shall be recognized as long as in reality the concerning jural community still exist and is recognized. If in its development said jural community no longer exist, the right to manage the forest returns to government."

17. Law 41/99 Forestry Article 67 On Rights, Existence and Dissolution of Jural Community “Jural Communities, as long as they exist in reality and is recognized, shall be recognized by Regional Regulations."

18. Law 18/04 Horticulture Pasal 9 ayat (2) On the acquisition of rights over land for horticulture enterprise “Where the land required is land under hak ulayat of jural communities that still exist in reality, before granting of rights, applicant shall consult the jural communities having hak ulayat and other residents having rights over concerning land, to achieve agreements on land transfer and compensations."

19. Law 18/04 Horticulture Elucidation to Article 9 paragraph (2) “Jural community exists in reality if following elements are substantiated. (a) The form of which is paguyuban (rechtsgemeenschap), (b) Institution of legal functionaries exists; (c) Clear adat territory; (d) Legal rules and institutions exist, particularly adat tribunal that is acknowledged; and, (e) Recognized in a Regional Regulation.”

20. Procedure to Jur. Comm.s Recog. Implementation of Law 41/99 Art. 67 (3) Scope: a. Recognition of Jural Communities existence; b. Recognition of Adat Forest; c. Adat Forest management by jural communities; d. Rights and obligation of Jural Communities; and e. Dissolution of Jural Communities and Adat Forests.

21. Recognition Procedure a. PROPOSAL by Jural Community, Minister, Regional Government to Bupati/Walikota and/or Gubernur b. RESEARCH by Adat Law experts, public figures, government, to substantiate (i) rechtsgemeenschap (ii) legal functionaries (iii) territory (iv) legal rules and institutions, (v) subsistent forest gathering (vi) no conflict (vii) technical assessment of forest area. c. RECOGNITION Bupati/Walikota and/or Gubernur may agree/refuse after consideration from Ministry of Internal Affairs and Ministry of Forestry  stipulated in Regional Regulation of written refusal and reasons.

22. Jural Community a. Self-governing autonomous jural community; b. Organized based on common ancestry, kin and marital relations, for generations reside in specified geographical area; and c. Having culture, values and mutual- communalistic system adhered to by its members.

23. Legal Functionaries a. Structured and respected functionaries who manage the sustainability of the community; b. In possession of common properties both tangible and intangible, in the form of local wisdom; and, c. Consultative.

24. Territory a. Specified territory related to oral history on kinship and affinity; b. Only source of livelihood; and c. Clear boundaries “stipulated” by Adat law, respected by generations.

25. Legal Rules and Institutions a. Values and norms system governing all aspects of its members’ daily lives; b. Compliance/ enforcement; c. Adat decision-making procedure; and d. Acknowledged decision-makers.

26. Forest Produce Gathering a.Subsistence forest produce gathering and/or sustainable use of forest resource; b.Dependence to forest resource; c.Socio-cultural ties to forest resource; and, d.Forest resource still feasible to sustain community’s life.

27. Legal Reasoning For the sake of Legal Certainty, it is important to distinguish these concepts: (i) Adat, (ii) Adat Law, (iii) Indigenous People, (iv) Jural Community. What’s important for Law are the ones which entail legal consequences  Must be Certain!

28. Adat and Adat Law Adat = Custom Hukum  Consequence arisen from relations among legal subjects in the forms of rights and obligations. Hukum Adat = Custom arisen from relations among legal subjects that entails rights and obligations.

29. Jural Communities Indigenous People = People who give birth to, and preserve, certain customs. Jural Community = Communities that apply certain customs which have legal consequences to themselves and their living space.

30. Examples of Legal Definiton Adat is custom that is acknowledged, respected and institutionalized, and preserved by local indigenous people for generations. (Law 21/2001, Art. 1 letter o) Adat Law is unwritten rules or norms that live within jural communities, governing, binding and preserved, and having sanctions. (Law 21/2001, Article 1 letter q)

31. Examples of Legal Definition Indigenous People are Native Papuans living in the Island of Papua and bound and subjected to certain adats with high solidarity among its members. (Law 21/2001, Article 1 letter p) Jural Community is native Papuan who resides in certain region from his/her birth, bound and subjected to certain adat law with high solidarity among its members. (Law 21/2001, Article 1 letter r)

32. Examples of Legal Definition Indigenous People are groups of coastal community reside in certain geographical area for generations due to ties of common ancestry and strong relation to coastal and small islands resources, as well as the existence of value system which governs economic, political, social and legal institutions. (Law 27/2007, Article 1 number 33) Traditional Community is traditional fishing communities whose traditional fishing right is recognized in order to conduct capture fisheries or other activities within a certain water in accordance with international law of the sea. (Law 27/2007, Article 1 number 35)

33. What Actually Happens? New ‘Traditionalism’– Transnational political movement to claim civil, political, economic and socio- cultural rights based on local cultural identities. Separatism – Political and/or armed movement to gain political independence based on local cultural identities. Anarchy – ‘adat’ thuggery, local violence for personal or group interest under ‘adat’ claim, or deliberate negligence/ disobedience to State Laws in remote areas.