After the ruling comes the hard follow-up act - Warief Djajanto Basorie
Delete one word and you get a landmark change. “Customary forests are state forests located in the areas of custom-based communities.” This was the wording of Article 1, clause (6), of the 1999 law on forestry. On May 16, the Constitutional Court announced the wording invalid. In a 188-page verdict, the court rewrote Article 1(6) to read: “Customary forests are forests located in the areas of custom-based communities.”
In short-hand, the law now states customary forests are not part of state forests. Indigenous people or custom-based communities have the legal right to manage the customary forest where they live.
Business interests that want to convert custom-based land into oil palm plantations or other ventures must seek the consent of the community that lives in it.
The process to legally remove that one word, “state”, took 14 months. On March 26, 2012 the registrar of the Constitutional Court received a petition from AMAN, the Alliance of Indigenous Peoples of Indonesian Archipelago, seeking an amendment to the forestry law to recognize the land rights of custom-based communities located in forest areas.
After numerous court hearings, the panel of nine justices ruled in favor of AMAN in a consultative meeting March 26, 2013. The decision was later announced to the public at a plenary session May 16.
The ruling itself is a detailed examination on the situation of indigenous people in forest areas and the arguments for their rights based on AMAN’s submission and supporting testimony from legal experts.
The ruling also documents the government’s argument that the term “state” is justified. The Constitutional Court has the function to test the validity of existing laws against the 1945 Constitution.
The court finally ruled in favor of the petitioner in citing especially two articles of the Constitution. Article 18B (2) states the state recognizes and respects traditional communities along with their traditional customary rights. Article 2(4) states the cultural identities and rights of traditional communities shall be respected.
The Constitutional Court ruling brings light to government’s failure to recognize the rights of indigenous people over their customary land. This failure has led to clashes. As many as 48 conflicts occurred in 2011 alone, Prodita Sabarini writes in a three-story post-ruling report on East Kalimantan in The Jakarta Post on June 24. Large-scale land acquisition that displaces and disadvantages forest communities has led to their conflict with business interests and local governments.
AMAN Secretary General Abdon Nababan summed up the plight of indigenous people in remarks before a Tropical Forest Alliance meeting in a Jakarta hotel June 27.
The meeting, a workshop on promoting palm oil and pulp and paper sustainability, was attended by leaders in those business sectors. President Susilo Bambang Yudhoyono was also present. Abdon was both confrontational and conciliatory.
Demolishing customary forest and turning them into oil palm plantations is in complete violation of international human rights standards including the United Nations Declaration on the Rights of Indigenous People, Abdon told palm industry chiefs.
He called the Constitutional Court ruling “the renewed dawn” of customary forests in Indonesia. “Endless denial and doubt from many including from our own government regarding the existence of indigenous people in Indonesia are no longer valid,” he declared.
Abdon nonetheless extended a hand for cooperation to forest conversion investors. “AMAN is open and committed to dialogue on how this can be done in a legal, equitable, sustainable and mutually beneficial way,” he said.
In implementing the court ruling, the President pledged at the same forum he will take the necessary next move toward a “full recognition” of land and resources rights of adat or custom-based communities.
“I am personally committed to initiating a process that registers and recognizes the collective ownership of adat territories in Indonesia. This is a critical first step in the implementation process of the Constitutional Court’s decision,” SBY exclaimed.
Indeed, more steps are needed. Palm oil and paper companies can contribute to sustainable forestry by adopting a forest conservation policy. In Indonesia the Sinar Mas group has done this. Asia Pulp & Paper, a subsidiary, announced in June 2012 a sustainability roadmap that operates on HCV standards.
Legal recognition of forest community rights can work when internationally accepted principles like the FCIP an HCV are robustly applied on the ground.
FCIP, free, prior and informed consent, is the idea that an extractive business that wants to develop an area belonging to a custom-based community must first secure the community’s approval without coercion.
HCV, high conservation value of forests, is a standard concept in sustainable forest management. An industry, let’s say a pulp and paper maker, must adhere to six HCV principles in working a forest area.
Three principles are recognition of the forest’s biodiversity, its function in environment protection, and the meeting of the basic needs of the people living in it. So a firm that gets a forest permit can only work on those areas that are not affected by the six HCV principles.
The government, the private sector and civil society including custom-based communities have a common and shared responsibility to make the Constitutional Court ruling work on the ground. After removing one word from a legal clause, however, the demanding follow-up act can be daunting and debilitating. - The Jakarta Post, July 21, 2013.
* Warief Djajanto Basorie teaches at Dr. Soetomo Press Institute (LPDS), Jakarta.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.