People’s rights in this country are still neglected. Conflicts, expropriation of traditional territories are often accompanied by violence, intimidation and criminalization. There is still no clarity on the special Law on Indigenous Peoples, even though the process began in 2009.
In fact, the 1945 Constitution, Article 18B paragraph (2) clearly states, the state recognizes and respects indigenous peoples as an entity. Also Article 28 I paragraph (3) states the state’s obligation to respect the existence and rights of indigenous peoples.
Sardi Razak, Chairman of the Daily Executive of the Alliance of Indigenous Peoples of the South Sulawesi Archipelago, said during a discussion in Makassar that the state had not carried out the constitutional mandate regarding the formulation of the Indigenous Peoples Law.
“Currently, there are 32 sectoral laws and regulations to legalize confiscation of customary territories,” he said, at the end of last July.
At the same time, the government actually created long and complicated conditional recognition for indigenous peoples, among others, through Law 41/1999 on forestry, Permendagri 52/2014, as well as the establishment of regional regulations and decrees from regional heads.
The process of this recognition, he said, had been going on since 2009 through a draft bill initiated by AMAN and civil society networks. In 2010-2011, there were consultations with experts, public consultations in seven regions, dialogue with the government and the DPR.
Then, in 2012, it was proposed to the DPR through the PDIP faction, processed in the legislative body through the formation and discussion in the special committee. Ironically, after this process, in 2014, at the end of SBY’s term, this draft failed to become law.
In 2014, AMAN provided support to Joko Widodo, who at that time ran as a presidential candidate who was later elected president.
Jokowi adopted six demands from indigenous peoples to be included in the Nawacita, including the ratification of the Indigenous Peoples Law.
The first period of Jokowi’s administration, from 2015-2019, has been in the DPR process with the initiation of the Nasdem Party, accompanied by various public consultations, there has also been no ratification of the law. From 2019-present, there is still no clarity on this ratification, even though the initiative has been pushed back to the DPR. This bill, he said, had been discussed in the legislative body, and the Legislative Body plenary session.
“The draft has not been sent to the president, so the president has not been able to issue a surpres.”
This bill has repeatedly entered the priority national legislation program (prolegnas). In his first leadership era , Jokowi also issued a presidential decree (presidential letter) ordering the acceleration of the Indigenous Peoples Law. Still, the result is nil.
According to Sardi, there are five reasons why the Indigenous Peoples Bill has not been ratified until now, namely, diverse interests, diverse experience and knowledge, limited commitment, communication barriers and ineffective participation.
Regarding the substance of the bill, there are a number of things that have become the focus of AMAN and civil society organizations, such as the determination of indigenous peoples by the minister, and the recognition mechanism is complicated and expensive.
Another thing highlighted by Sardi is related to the harmony of sectoral policies. So far, he said, procedures for recognizing indigenous peoples have been prepared by sectoral policies.
The Indigenous Peoples Bill regulates a procedure for recognizing indigenous peoples which at the same time states that the recognition procedure must follow the Law. In addition to the recognition procedure, this law will become a reference for various protection, empowerment and other programs.
“Overlapping sectoral regulations must be repealed and declared invalid in the Indigenous Peoples Law.”
In line with Rukka Sombolinggi, Secretary General of AMAN in a recent discussion in Jakarta. He said, even though it has been 14 years, the draft Indigenous Peoples Bill is still far from being able to protect indigenous peoples.
Because of that, he said, substantial changes were needed in the draft so that one day it could become a strong legal umbrella to protect indigenous peoples.
Abdon Nababan, an indigenous peoples activist, thinks that bringing indigenous peoples into the country is still difficult, expensive and completely uncertain. The state, he said, is still trapped in sectoralism which regulates objects of rights without subjects.
The Basic Agrarian Law No. 5/1967 regulates customary rights over agrarian resources as customary rights. Then, Forestry Law No. 41/1999 also regulates customary rights over forests in the form of customary forests, and there is Law on Environmental Protection and Management (PPLH) No. 32/2009 which also states customary rights to organize PPLH based on customary knowledge and local wisdom.
The various sectoral laws, said the former Secretary General of the Archipelagic Community Alliance (AMAN) for several periods, have been compartmentalized with their own implementing regulations.
Then there is the decision of the Constitutional Court No. 35/2012 which also confirms the existence of indigenous peoples through regional regulations. There have been government breakthroughs, one of which is Permendagri No 52/2014 concerning Guidelines for the Recognition and Protection of Indigenous Peoples.
According to Abdon, the Indigenous Peoples Law is necessary to restore state relations with indigenous peoples, positioning indigenous peoples as citizens equal to other citizens in Indonesia. Also, restoring the constitutional rights of indigenous peoples that were neglected for 78 years.
The Indigenous Peoples Bill already has a constitutional foundation. Unfortunately, said Abdon, the formulation is far from clear and certain, both in the use of different terms and in the absence of a definition.
He gives an example of the Golkar party elite, who think this bill will hamper development and disrupt investment. Or the PDI-P, which once advocated for this bill but was worried about bringing feudal ideology back to life in Indonesia.
The Indigenous Peoples Bill was fought for since the 1999 Congress of Indigenous Peoples of the Archipelago (KMAN) in Jakarta to KMAN VI in Tanah Tabi, Papua. As a former AMAN Secretary for four years, AMAN Secretary General for 10 years and five years as the National AMAN Council, Abdon admits the failure to mobilize and allocate sufficient organizational resources to ensure the ratification of the Indigenous Peoples Bill into law. Based on this experience, Abdon suggested that bill advocacy be more systematic and intensive.
AMAN needs to strengthen cooperation with independent state institutions such as Komnas HAM, cross-sectoral ministries and together with the coalition guarding the Indigenous Peoples Bill to expand cooperation with universities in Indonesia.
Makbur Marbun, Director of Regional Legal Products, Ministry of Home Affairs discussed the Job Creation Law. He said the government was facilitating the legal relations of indigenous peoples in managing forestry through the Job Creation Perppu, followed up with PP No 23/2021 concerning Forestry Management.
The government, said Makbur, continues to guide and supervise the formation of legal products in the regions. “The mandate is to accelerate,” he said.
For now, he said, the government will still refer to Law No. 23/2014 which regulates the division of authority for forest management areas and Permendagri No. 52/2014 concerning guidelines for recognizing and validating indigenous peoples. In that rule, the establishment of customary forests is through regional regulations.
In essence, said Makbur, the recognition of indigenous peoples depends on the current law and on the existing budget.
As long as they are required by law, the Otoda Director General will expedite the completion of regional regulations.
Amanah Asri, Director of Harmonization of Legislation, Ministry of Home Affairs, said that indigenous peoples existed before Indonesia existed.
“Legality must be crystal obvious only in nations where the rule of law applies. Not disowned but to clarify existence.”
As of July 2023, 631 indigenous peoples have been facilitated by the Ministry of Home Affairs and 21 coastal indigenous peoples.
Sukri Tamma, Dean of the Faculty of Social and Political Sciences at Hasanuddin University, stated that the government needs to immediately pass the Indigenous Peoples Bill as a form of the country’s commitment and good will.
In addition, indigenous peoples can determine themselves, regulate themselves, are independent, and are no longer marginalized, because they are regulated at a higher policy level with various consequences through laws.
“Indigenous peoples can participatively strive for a better life, non-discrimination, and achieving equality and justice for the rights of indigenous peoples, wherever they are.”
According to him, there are three important aspects for the existence of indigenous peoples. First , freedom means that there is no coercion or intimidation on the value system and form of life of indigenous peoples.
Second , attention means that as a unique and distinctive community, he said, society gets attention for various forms of existence and dynamics as a consequence of uniqueness.
Third , appreciation means that the existence of indigenous peoples is accepted as an objective condition of a plurality of nations that requires appreciation for their various forms of uniqueness.
Yance Arizona, Lecturer at the Faculty of Law at Gajah Mada University, said that from the 2020 draft, indigenous peoples were not seen as social facts and anthropological realities but as “corporations.” Their existence and rights depend on approval or recognition by government agencies.
For this reason, said Yance, the Indigenous Peoples Bill needs to be pushed forward by expanding political support. Substantially the corporate approach and “recognition” in the Bill need to be replaced with a ‘data collection’ approach.
The regulatory substance regarding indigenous peoples needs to prioritize a rights approach such as the Law on Empowerment and Protection of Farmers and the Law on Migrant Workers.
According to him, it is necessary to revamp the bill by considering the omnibus law method as an alternative to building an integrated, synchronous and harmonious regulatory framework.
Indigenous women’s collective rights
In addition, Devi Anggraini, General Chairperson of AMAN Women, said that the rights of indigenous women as part of their community have not received recognition in various practices, legal products and other policies.
“Even Law No. 7/1984, which is the legal reference for eliminating discrimination against women, is unable to protect the rights of indigenous women,” she said.
Management of rights is still limited to individual rights as citizens. This law, he said, has not been able to touch the protection of indigenous women’s collective rights to knowledge, authority, and management areas.
In 2015, Perempuan AMAN changed the academic text of the Indigenous Peoples Bill to include collective rights that are built from three aspects of governance, traditional knowledge and authority.
Devi said that the meaning of collective rights is not based on the perspective of individual ownership. Indigenous women’s territory in this view places a particular landscape and culture as the main space for indigenous women to build family and community resilience.
This collective right, he said, has two types of tenure, namely, utilization rights, management including development and maintenance, as well as control rights which are the authority of the utilization of natural resources in areas managed by indigenous women.
Notes by AMAN women, the vulnerability of indigenous women is reflected in more than half, or around 56% and 58.% of indigenous women get rice and side dishes by buying. Only 20.8% of indigenous women still hunt and use nature. Only 6.1% of indigenous women grow their own paddy rice and dry land rice.
“The Indigenous Peoples Bill needs to be present as a participation to regulate, manage, utilize and care for the areas managed by indigenous women and traditional knowledge owned, practiced and developed by indigenous women,” he said.
In order to fulfill the obligation to respect, protect the fulfillment and guarantee the collective rights of indigenous women, said Devi, this law can also prevent punishment for practicing traditional knowledge as long as it is in accordance with human rights. Also, regulates the terms of approval of indigenous peoples and state administration as well as facilities for empowering indigenous women.
Yance’s view is that currently legally the arrangements regarding the protection of indigenous women are sectoral in nature, overlapping due to differences in nomenclature and approaches.
Socially, there is no legal protection, but there are conflicts due to uncertainty of rights, poverty, marginalization and criminalization.