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22 December 2011

Mesuji, land conflict and legal pluralism

Joeni Arianto Kurniawan

The writer is a researcher and lecturer at Airlangga University’s Faculty of Law, Surabaya. His book, Legal Pluralism in Industrialized Indonesia: A Case Study of Land Conflict Between Adat People, the Government, and Corporations regarding Industrialization in Middle Java, was published in Germany by VDM Verlag Dr. Müller.

We are shocked by the reports of violence in Mesuji, which borders Lampung and South Sumatra. Controversy, however, has shrouded the case, after video footage depicting heinous mass killings were played before the House of Representatives, some parts of which turned out to be taken in the rebellious south Thailand region of Pattani, according to CBS News.

Whether or not the controversial video footage is really associated with the Mesuji killings, violence occurred in the area as a result of a land conflict between local people and an oil palm plantation company, as emphasized by human rights group Kontras (The Jakarta Post, Dec. 12, 2011). As investigations to find the root cause of the violence are under way, a land dispute as the trigger of the conflict should be taken into consideration.

Land affairs are governed under Law No. 5/1960, which is popularly known as the Indonesian Agrarian Law (UUPA). It is clear in the law that, according to the Constitution, the earth, water and all resources fall under the state’s control (Article 2) and therefore the state has the authority to award rights over land to the people, either individuals or corporations (Article 4).

So, according to the law, the right of land can only be obtained if it is given by the state.

However, in the sense of positive law, the UUPA is the primary law regulating all matters of land in Indonesia, and empirically there is also customary (adat) law, as legislation regulating land among the customary societies. Customary law is unwritten law that has existed in our society since a long time ago, composed of traditional values, emergent from daily customs of the people and inherited by ancestors.

Adat law regulated the daily conduct of our people before the Indonesian state was born. It is a fact we can’t disregard that some of our people still believe in adat law more than any other law, and thus they will only obey their adat law and ignore other laws, including state laws.

This happens not because of the spirit of separatism or disobedience to the state, but because adat law is the law reflecting the cultural values of the people.

So, adat law is part of their cultural identity and therefore it is the law closest to their life.

Generally, most adat laws in Indonesia stipulate that land is a property owned collectively by a community of customary people, and thus a right of land is a communal right, derived from the existence of a community of adat people, which is commonly called an ulayat right.

Furthermore, according to adat law, land is not merely perceived as material goods, but is something sacred because it is perceived as “the mother” that gives birth and feeds all people living on the land (Koesnoe, 2000).

As “their mother”, none of the adat people will give up the land to anyone, including the state.

Under agrarian law, the ulayat right of a community of adat people is recognized as long as it is not contradictory to the state’s interest (Article 3).

In other words, if particular land is possessed by a community of adat people with their ulayat right while the state has an interest in such land, the ulayat right of the customary people can be ignored.

Under agrarian law, land is perceived simply as material goods that can be utilized for development by the state as the authorized owner of the land.

The presence of agrarian law and customary law not only demonstrates a conflict, but also a plurality of laws in such a diverse country like Indonesia.

However, the government, the legislature, law enforcers, lawyers and even judges often neglect the fact that plural laws govern land matters and tend to consider the state’s positive law as the most prominent and thus the most powerful law.

They simply take for granted a notion that the state’s positive law should be the only legislation that regulates the society and therefore they ignore the most important element of the law itself, which is the people, who might have enforced their own law for generations before a positive law emerged.

Holding such perceptions, which is referred to as a “legal centralism paradigm” (Griffiths, 1986), the state and other stake holders of this country simply fail to understand society.


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