Traditional Communities in Indonesia: Law, Identity, and Recognition (Routledge Law in Asia)

This book explores the ambiguous legal status of traditional–__adat__–communities in Indonesia and their informal, traditional rights to communal–__ulayat__–land. It discusses the lack of recognition of __adat__ communities and their legal rights in the Indonesian constitution, surveys legal consideration of informal legal rights both in Indonesia and elsewhere, and examines how thinking about these issues has evolved over time in Indonesia. It provides an in-depth study of the ways that government policies on __adat__ communities are developed, changed and implemented, and how different actors give meaning to these policies, particularly government bodies with authority to manage land and forests, which exercise discretion as to the operational implementation of ideas about __adat__ groups as legal persons and __ulayat__ land rights as land title, thus enabling their exploitation by government and business. The book highlights how these issues are becoming more pressing as problems relating to legal personhood and rights to traditional customary land are increasingly giving rise to violent conflict, dispossession and marginalisation. It also demonstrates how __adat__ communitiescan take action, and are doing so, to protect their legal positions. Traditional Communities in Indonesia Cover -1 Half Title 2 Series Page 3 Title Page 4 Copyright Page 5 Contents 6 Preface 7 Tables 10 Chart 11 Images 12 Abbreviations 13 Legislation 15 Constitution 15 Decisions of the MPR (Ketetapan MPR) 15 Codes (Kitab Undang-Undang) 15 Laws of the DPR 15 Emergency Interim Law (Perppu) 16 Government Regulations (Peraturan Pemerintah, PP) 16 Presidential Instruments 16 Ministerial Instruments 16 Regional Regulations 17 Court Regulations 17 Colonial Regulations 17 Court Decisions 17 1. Introduction 18 Background and Context 18 The Problem with Group Legal Personhood 22 Main Arguments of the Book 23 Doctrinal and Empirical Approach to Analyse Group Personhood 26 Research Locations 30 The Baduy 31 The People and their Customary Law 31 The Ulayat Land 32 The Minangkabau of Nagari Sungai Buluh 33 The People and their Customary Law 33 The Ulayat Land 34 Empirical Data Collection 36 Structure of The Book 38 Notes 40 2. Groups as Legal Persons 45 Introduction 45 Literature on Groups as Legal Persons 45 The Origin of Groups as Legal Persons 46 Methods to Establish Groups as Legal Persons 50 Attributes of Groups as Legal Persons 53 Group Will 54 Ability to Make Decisions and Act 54 Representation 55 Public Legal Persons and Private Legal Persons 55 Influences in Indonesian Law 57 Conclusion 61 Notes 62 3. The Status of Persons and Land Rights in Indonesian Law 67 Introduction 67 Legal Arrangements for the Status of Persons in Different Periods in the Indonesian Legal History 67 The Dutch Colonial Period (1595-1942) 67 Post-Independence Period (1945-1960) 71 The Basic Agrarian Law Period (1960-1966) 72 The Development Period (1967-1998) 76 The Reform Period (1998-2013) 80 Conclusion 83 Notes 83 4. Redefining and Reinterpreting The Adat Group as A Legal Subject 89 Introduction 89 The Adat Movement in Indonesia 89 Recent National Policy Dynamics 92 Setting the Foundation Through the Amendment of the 1945 Constitution 93 Changes Through Legislation 94 Changes Through Court Decisions 95 The Role of Regulatory Instruments in Interpreting Basic Norms 97 Regulations Under Land Law 98 Regulations Under Forestry Law 103 Conclusion 106 Notes 108 5. The Baduy and Minangkabau Adat Communities 113 Case Study Contexts 113 The Baduy Adat Community 114 Claims for Legal Recognition 114 The Minangkabau in Nagari Sungai Buluh 117 Claims for Legal Recognition 119 Relations Between Adat Groups and the State 122 Ulayat Land and State Borders 122 Mapping and Demarcation of Ulayat Land 125 Legal Implications of Recognition 127 State's Preference of Group Entity 128 Groups' Ability to Act 129 Conclusion 134 Notes 135 6. Adat Group Entities as Legal Persons 142 Introduction 142 Legal Construction of Adat Group Entities 143 Adat Group Legal Entities in Practice 148 Group Will and Objective 150 Group Ability to Act and Autonomy 153 Group Representation 157 Group Membership 161 Conclusion 163 Notes 164 7. Conclusion 168 Legal Definitions of Group Personhood 168 Asserting Group Personhood and Rights to Land 170 Asserting Group Legal Personhood 172 Asserting Group Land Rights: Modern Legal Treatment to Traditional Land 175 Adat Group Perspectives 177 The Use of an Empirical Approach Towards Groups Legal Personhood 179 Concluding Remarks and Recommendations 180 Recommendations 181 Notes 182 Bibliography 184 A Articles and Books 184 B Theses 190 C Reports and Unpublished Materials 191 D Others 192 Annexure 193 Index 195 "This book explores the ambiguous legal status of traditional - Adat - communities in Indonesia and their informal, traditional rights to communal - ulayat - land. It discusses the lack of recognition of adat communities and their legal rights in the Indonesian constitution, surveys legal consideration of informal legal rights both in Indonesia and elsewhere, and examines how thinking about these issues has evolved over time in Indonesia. It provides an in-depth study of the ways that government policies on adat communities are developed, changed and implemented, and how different actors give meaning to these policies, particularly government bodies with authority to manage land and forests, which exercise discretion as to the operational implementation of ideas about adat groups as legal persons and ulayat land rights as land title, thus enabling their exploitation by government and business. The book highlights how these issues are becoming more pressing as problems relating to legal personhood and rights to traditional customary land are increasingly giving rise to violent conflict, dispossession and marginalisation. It also demonstrates how adat communities can take action, and are doing so, to protect their legal positions"-- Provided by publisher