April 03, 2020
By May Rahmadi
The Omnibus bill on job creation, submitted by the government to the legislatives in mid-February 2020, is once again drawing criticism from civil society groups. This time, criticism came from a number of non-governmental organizations which focus on customary societies.
The bill that is composed of 1,22 articles, is seen by the groups as a mean to maintain the legal uncertainty currently faced by customary societies and the weak recognition these communities get. It is also seen as potentially further adding to the chaos already besetting the many overlapping rights over customary territories in Indonesia and of ignoring the need to protect these customary societies as well as the environment.
In a policy paper issued by the Organization for he Renewal of Laws based on Societies and the Ecology (HuMa) and obtained by Ekuatorial.com, the bill on job creation is said to be principally oriented towards facilitating and accelerating the flow of investment into the country as part of efforts to create jobs.
This however, is achieved among others, by ignoring the protection of the environment and human rights, including those of customary societies.
A research by HuMa showed that the Omnibus bill was using a host of different terms when it concerns customary societies and their rights to customary land. This is giving rise to concerns that it may further add to the complexity of the current process to recognize and protect the rights of customary societies.
“The different terms are there because the many sectoral laws that this draft bill seeks to revise, use different terms to denote customary societies and their traditional laws. This bill seems to be giving this a pass,“ HuMa Director Dahniar Andriani said during a discussion for the launch of the “Paper on the Policy of Regulating and Protecting Customary Society in the Omnibus Law on Job Creation,“ in Jakarta in early March.
The paper was produced in collaboration with researchers on customary laws from a number of universities, including the Gadjah Mada University and the Andalas University, and journalists.
For example, when talking in the context of law, the bill used a number of different terms such as customary law society, customary society, local society and traditional society. Meanwhile, in discussing regulations of customary societies, terms such as custom-derived land rights, traditional rights, customary territory, customary village, customary village territory and areas under the management of customary law society are mentioned.
The bill used the term Customary Law Society 23 times, customary society five times, local society five times, traditional society six times, local wisdom 10 times, custom-derived rights three times, traditional rights twice, customary territory twice, areas under the management of customary law society twice, customary village once, customary-derived land rights four times, customary land twice, customary field once, customary-owned land once, customary property rights once, customary territory once and customary building structure three times.
This gave rise to the suspicion among civil society groups that there is an effort to maintain the uncertainty in procedures. And this does not even cover the substantive requirement that limits the definition of customary societies that is also maintained in the bill.
As an example, Article 38, point 2, requires customary law societies to be in the form of an institution.
“The main problem is a recognition that comes with procedural and substantive requirements will makes it difficult for customary law societies to enjoy their traditional rights. Meanwhile, the 1945 Constitution strives to allow customary law societies to enjoy their traditional rights,“ explains Rikardo Simarmata, an expert on customary law of the Gadjah Mada University in Yogyakarta.
Problems are also found in the regulating of customary territories. For example, the definition of custom-derived tenurial rights is reduced to only an authority to make use of customary territories, while according to HuMa, it should also include the authority to manage and own.
“A number of conclusions can be drawn, that the bill on Job Creation that the government is waving around as a mean to resolve overlaps in regulations, actually does not resolve any existing sectoral nature of the current regulation of customary law societies and their rights to customary territories,“ said Kurnia Warman, an expert on customary law of the Andalas University.
Warman also said that the lack of clarity in recognizing customary law societies is making these groups vulnerable to land appropriation in the name of investment interests. Rather that encourage the settlement of agrarian conflicts, the Omnibus bill actually continues the domination of land and natural resources that are not in favor of customary law societies.
A calamity for customary society
Many see the Omnibus bill as having failed to recognize the role that customary societies play in the development of the economy in the region and the conservation of the environment. Therefore, if passed, this bill will only put customary societies in a much worst condition.
Wahyubiantara Fernandez, Advocacy Manager for Rimbawan Muda Indonesia (Young Foresters of Indonesia), said that this bill ignores the existence of customary communities which are most vulnerable to the impact of investment. For example, the provision of land for business activities poses the biggest threat to customary societies.
“The land acquisition will be mandated through the Land Bank, which is included in the Bill without being based on a special study in its academic text,,“ said Fernandez in a written statement.
He explained that one of the authorities held by the Land Bank, as stipulated in Article 171, is to acquire assets in the form of permits or concessions rights on land that had been left neglected for more than two years. The Land Bank can also issue Land Use Permits (HGU), Building Use Permits (HGB) and 90-year Usage Permits.
Fernandez then pointed out to the rising potential of land conflicts due to land appropriation in customary territories because the bill does not position customary societies as subjects.
A research conducted by the Indigenous Peoples Alliance of the Archipelago (AMAN) in 2018 showed that customary societies made concrete contributions to the economy in the regions. The economic value of natural resources managment (SDA) in six customary regions, for examples, reached Rp 159.21 billion per year while the value of environmental services reached Rp 170.77 billion per year.
“And this can push the economy in their regions,“ said Muhammad Arman, Director for Advocacy of Legal and Human Rights Policies at AMAN.
He cites a number of examples such as village cooperatives of the Dayak ethnic group in West Kalimantan, a form of cooperatives that eventually spread to Papua, East Nusa Tenggara and Java. But the protection of customary societies is still seen as a half-hearted drive.
“People still see customary societies not in their entirety, they recognize their dances but views their beliefs and knowledge in contempt,“ said Bona Beding, an activist of the Coastal Customary Society Forum.
AMAN believed that the government ignored the existence of customary societies too often, even though the 1945 Constitution clearly recognizes and protects them as stipulated in Article 18 B point (2) and Article 28 I, point (3). A position that remains evident in the Omnibus bill.
Aside from emboldening the complex and strenuous processing of recognition of customary societies, AMAN believed that the bill will also further eliminate traditional jobs of customary societies such as non-irrigated farming, honey gathering or sea fishing.
“The Cilaka (an acronym for job creation) draft bill does not provide a framework for the safeguarding, prevention and settlement of conflicts in customary regions. This will further threaten defenders of the rights of customary societies with criminalization,“ AMAN Secretary General Rukka Sombolinggi said in the group’s official website.
AMAN notes that there have been 125 members of customary societies in 10 provinces who have been victims of criminalization over forest areas. Those provinces are Bengkulu, South Sumatera, North Sumatera, South Kalimantan, North Kalimantan, West Nusa Tenggara (NTB), East Nusa Tenggara (NTT), South Sulawesi, Central Sulawesi and North Maluku.
The crimes that are often leveled against members of customary societies include trespassing into the concession land, destruction, illegal uses of plantation land, violence against others, or against properties and illegal occupation of land.
The Indonesian Legal Aid Foundation (YLBHI) notes that in a number of specific cases, customary societies are accused of restraining people’s freedom of movement on public roads, threatening others, or engaging in unpleasant deeds.
“The Cilaka bill was prepared behind closed doors. AMAN and other civil society groups, especially those working on agrarian and environmental issues, were never involved,“ Sombolinggi said.
“What is urgently needed at present for the customary societies is a Law on Customary Societies that would harmonize current overlaps between the various laws and regulations related to customary societies,“ Sombolinggi said. Ekuatorial.