Fulfillment of Indigenous Community Rights through the
Formulation of Regional Regulation
Annurdi Annurdi and Budimansyah Budimansyah
Faculty of Law, Universitas Panca Bhakti
budimansyahmh@gmail.com
Keywords: Indigenous people’s right, local regulation.
Abstract: The Constitution recognizes the existence of indigenous people as long as it is alive and accordance with the
principle of the Unitary State of the Indonesia Republic which is the regulated in law. The existence of
indigenous people can not be separated by traditional rights which are hereditary inherent in everyday live
which sees that their life and life can not be separated from the values of relegio-magical. The indigenous
people’s right in practice are not all accommodated in legislation so that indigenous peoples can not got the
full fulfilment of their right, even explicitly recognized in the constitution but without further regulation, these
rights will be difficult to obtain. This study is a normative juridical research, where the data used in this study
is secondary data in the form of books, legislation, documents and other writings relating to the problems
under investigation. Based on the research, it is found that the presence of local regulations in the fulfilment
of the rights of indigenous peoples is very important considering that these rights can be obtained if the regions
have made arrangements in the form of local regulations that recognize and protect the existence of customary
law communities and their rights.
1 INTRODUCTION
The existence of customary law community within
the framework of the Unitary State of the Republic of
Indonesia (NKRI) is a necessity. Long before the
existence and the enactment of the law of the state
(the law), the customary law is compatible with the
existence of customary law communities in various
regions in Indonesia. This empirical reality then
confirms that Indonesia is an archipelagic country as
well as a country rich in tradition and culture and then
forming its laws with different characteristics.
Indonesia as an archipelagic country in which
there are various ethnics in each of the islands and
even in various islands in an archipelago there are still
many ethnicities and then in one ethnic sometimes
there are differences in tradition because it is
influenced by the geographical background of the
region and its origin. This fact confirms that
Indonesia is established with diversity not uniformity
and the existence of indigenous and tribal peoples and
their traditional rights can not be ignored by the State.
In its development the Portuguese first came to
Malacca in 1509 there had been conflicts and
evictions against indigenous and tribal peoples who
were poured in the form of colonial and political
policy of sheep fighting. This can be seen from the
history of the Padri War in West Sumatra and the
contradiction between customs with one another and
the contradiction between customary law and
religious law as well as customary law and religious
law are two sides of the poles that are impossible to
meet and will not apply harmoniously.
The eviction of customary law values including
traditional rights was followed by Christian Snouck
Hurgronje's theory with Receipt theory which did not
want the presence of customary law and Islamic law
in the Dutch East Indies. Customary law and Islamic
law would only be applicable if it were not contrary
to the laws of the then state (law) and customary law
and Islamic law as if it were a second class law that
was rearranged by the Dutch East Indies government.
Customary law in various regions which is the
original law of the Indonesian nation must be
defeated by Dutch colonial law because it is
considered to give birth to disintegration, legal
pluralism so that the birth of legal uncertainty here
and there or even feared will raise awareness of the
law of the people so that indigenous people will
collectively reject the legal presence Dutch colonial.
Post of the independence of Indonesia, the
existence of indigenous peoples must return to lose
because of the enforcement of colonial law is
Annurdi, A. and Budimansyah, B.
Fulfillment of Indigenous Community Rights through the Formulation of Regional Regulation.
In Proceedings of the Annual Conference on Social Sciences and Humanities (ANCOSH 2018) - Revitalization of Local Wisdom in Global and Competitive Era, pages 249-255
ISBN: 978-989-758-343-8
Copyright © 2018 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
249
reinforced by the laws that were born by the
Indonesian nation itself. It can be proven that the
application of the Criminal Code, Civil Code, KUHD
and some other legislation that in fact comes from the
Dutch colonial government. The enactment of the
1945 Constitution of the State of the Republic of
Indonesia (the 1945 Constitution of the Republic of
Indonesia) on August 18, 1945 has provided a place
for the recognition of indigenous and tribal peoples
but in its development until the amendment of the
1945 Constitution of the Republic of Indonesia of
1945 recognition of society customary law and
traditional rights are still abstract, that is, it is only
existed without any derivative regulations in various
regions in the form of local regulations (Perda) which
acknowledge more concretely to indigenous and
tribal peoples, especially with regard to the law. The
enactment of Emergency Law Number 1 Year 1951
on Temporary Measures to Organize Unity The
Power and Event Arrangements of Civil Courts are
also half-hearted to be applied because in reality the
recognition is still of an abstract nature and the
customary courts have not been implemented
properly.
The search for where the customary law
community enter the new phase that is since the birth
of Decision of the Constitutional Court Number:
Number 35 / PUU-X / 2012 where the Alliance of
Indigenous Peoples of Nusantara (AMAN), Unity of
Customary Law Community of Kenegerian Kuntu,
Unity of Customary Law Society Kasepuhan Cisitu
tested several the norm in Law Number 41 Year 199
regarding Forestry and in the Decision of the
Constitutional Court Number: Number 35 / PUU-X /
2012 recognizes customary law not State law.
Acknowledgment of indigenous and tribal peoples
and their traditional rights is almost acquired but must
again be hampered because the Constitutional Court's
ruling is still abstract so that it does not have concrete
values of how the mechanism of recognition of
customary forests and so on while the legal regulation
is still missing and on the other hand customary
forests are factually everywhere even in various
regions of Indonesia still recognize and recognize
customary forest and customary law.
The existence of indigenous and tribal peoples
still has to be fought through the formation of
concrete rules that not only acknowledge in general
but do not provide technical guidance on how the
recognition is made. Acknowledgment and granting
of customary community rights can not be fulfilled
only by regulation at the law level only or the laws
and regulations of Government Regulation,
Presidential Regulation and Ministerial Regulation
because the regulation is still general and applicable
to all Indonesian people while existence indigenous
and tribal peoples are characteristic of their distinct
regional and cultural characteristics in each region so
that it is not possible to be formed only by general
rules. Departing from the above reality, the authors
are interested to conduct further research on the
fulfilment of customary law community rights
through the formation of local regulations.
1.1 Problem Formulation
The problem in this research is "How is the
fulfillment of Indigenous People's Rights that
performed through the formulation of Local
Regulation?”
2 METHOD
This study aims to reveal the urgency of fulfilling the
indigenous people’s rights through the formulation of
local regulations. This research is normative law
research, data source used in this research is in the
form of secondary data that is book, journal,
legislation, documents and other writings related to
the problem under study.
As for the laws and regulations that are used as
secondary data in this study, among others, the
Constitution of the Republic of Indonesia, Law
Number 12 on 2011 about The Establishment of
Legislation Regulation, Law Number 23 on 2014
about Regional Government, and other regulations
related to this research.
3 RESULTS AND DISCUSSION
Indonesia is a unitary state in the form of a republic
(NKRI) as contained in the constitution. In the
implementation of the Republic of Indonesia in the
form of the republic embraced decentralization
system is not centralized. Syarif Hidayat and
Bhenyamin states that as a concept, decentralization
grows and evolves with the demands and demands of
democracy for a long time (Huda, 2013). The concept
of decentralization has been much debated, especially
in developing countries in the 1950s. In this period it
can be said that the first "wave" of the concept of
decentralization has received special attention, and
has been articulated as the most relevant concept for
strengthening and empowering local governance. The
second wave of the decentralization movement,
ANCOSH 2018 - Annual Conference on Social Sciences and Humanities
250
particularly in developing countries, was in the late
1970s. Furthermore, Harry Friedman explains that
decentralization is the principle of governance that is
opposed to centralization. Decentralization produces
local governance, where it occurs "....a" superior
"government one encompassing a large jurisdiction-
assigns responsibility, authority, or function to 'lower'
government unit-one encompassing a smaller
jurisdiction-that is assumed to have some degree of
autonomy ".
Local regulation is a regulation established by the
local government that is Governor, Regent, Mayor
together with DPRD. The implementation of regional
government is carried out with the principle of
autonomy as far as possible, but within the framework
of NKRI there are some authorities that should not be
taken by local government that is as contained in
Article 10 of Law Number 23 on 2014 about Regional
Government namely foreign policy, defence, yustisi,
monetary and fiscal national and religion.
In the formulation of local regulations can come
from the order of legislation that is above it then
called with delegate authority and the formation of
local regulations derived from regional initiation
because it is a requirement of each region. The
authority of the regional government in forming a
regional regulation with the authority of attribution
can not be separated from the juridical basis of the
authority given by the legislation so that it can not be
contradictory vertically and horizontally with other
laws and regulations. In the formation of a good law,
it must follow the governance of the formation of
good legislation that is in terms of principle, aspect,
authority and material content. Jazim Hamidi said
that the establishment of good legislation should meet
the following requirements (Hamidi, 2011):
1) Philosophical Foundation (Philosofische
Grondslag)
A formulation of legislation should have an
acceptable justification (rechtvaardiging) if
examined philosophically. The justification must
be in accordance with the ideals of truth (ideee der
waarheid), and the ideals of justice (idee der
gerechttigheid), and the ideals of decency (idee
der zederlijkheid).
2) Sociological Foundation (Sociologische
Grondlag)
A legislation must be in accordance with public
belief or legal awareness. Therefore, the law
established must be in accordance with living law
in the community.
3) Juridical Foundation (Rehctsgrond)
A statutory ordinance must have a legal basis or
legal basis or legality contained in other higher
provisions. The juridical foundation can be
divided into the following two (i). The formal
juridical basis of formal aspect is the provision
which grants the authority (bevaoegheid) to an
institution to establish it, and (ii) the judicial basis
of which material aspect is in the form of a matter
or issue to be regulated.
4) Political, Ecological, Medical, Economical, and
Other
Platforms conform to the types or objects
governed by the laws and regulations. There is
another consideration that needs to be considered
by legislators that basically a legislation is created
must be supported by an accurate research order
Isering called the making of research-based
legislation).
In the sciens of legislation that the
establishment of good legislation must meet the
principles of the establishment of good state
regulations. I.C. Van der Vlies as quoted by Maria
Farida Indrati S., dividing the foundations in the
formation of good national regulations into formal
and material bases, the formal bases include
(Farida, 2007):
the principle of clear objective;
the principle of the right organ;
the necessity principle;
the principle of enforceability;
the principle of consensus.
Material basics cover:
the principle of clear terminology and clear
systematics;
the principle of know ability;
the legal equality principle;
the principle of legal certainty;
the principle of individual administration of
justice.
The local government as an autonomous region
granted by the central government has the authority
to form a special regulation, one of which is the
regulation of the fulfilment of customary community
law rights. The formation of a regional regulation
whose material content contains the fulfilment of
customary community rights can be seen in Article 6
of Law Number 12 Year 2011 on the Establishment
of Legislation Regulation, the "national principle" is
further explained in the explanation that the meaning
of "national principle" is that the content of legislation
should reflect the pluralistic nature of the Indonesian
nation (diversity) while maintaining the principle of
the Unitary State of the Republic of Indonesia. "The
principle of bhineka tikaa lika" referred to as "single
bhineka ika principle" means the content of
legislation should pay attention to the diversity of the
Fulfillment of Indigenous Community Rights through the Formulation of Regional Regulation
251
population, religion, tribe and class, special
conditions of the region, and culture especially
concerning sensitive matters in the life of society,
nation and state, so the existence of a living law is
clearly not contrary to this law.
Furthermore, the local government which is given
the authority in organizing government in the region
in terms of making a special law is a necessity
because ignorance of this can result in a regulation
that is far from the legal consciousness of the people.
Eugen Eurlich states that a positive law will have
effective force when it is in harmony with the law
within society (Hamidi, 2011). Furthermore, a
political organization called a state in addition to state
law in the form of legislation, also apply religious
law, people's law, and local regulatory mechanisms
that also serve as a means of social control. Often the
government ignores the phenomenon of local wisdom
in establishing a legislation. The reality of legal
pluralism is displaced by the ideology of legal
centralism adopted by the government in the politics
of legal development directed to create legal
unification, codification of law, and legal uniformity
with the stamp of national law as one- the only law
applicable to all citizens throughout the territory of
the Republic of Indonesia (Hamidi, 2011).
Furthermore, the basis of the legitimacy of the
formation of local regulations in the fulfilment of the
rights of indigenous and tribal people’s lies
hermitically in legislation in Indonesia ranging from
the 1945 Constitution to the lowest level can be
shown as follows:
1) Indonesia Constitution on 1945;
Article 18B paragraph (2) "The State recognizes
and respects the unity of indigenous and tribal
peoples along with their traditional rights as long
as it is alive and in accordance with the
development of society and the principle of the
Unitary State of the Republic of Indonesia, as
governed by law".
Article 28I Paragraph (3) "The cultural
identity and the rights of traditional society are
respected in harmony with the times and
civilizations".
Article 32 Paragraph (1) "The State promotes
the national culture of Indonesia in the midst of
the civilization of the world by ensuring the
freedom of the people in maintaining and
developing its cultural values" while in paragraph
(2) "The State respects and maintains the regional
language as the national cultural treasure".
2) TAP MPR No. IX on 2001 about Agrarian
Reform;
3) Article 4 letter j states "Agrarian reform and
management of natural resources shall be carried
out in accordance with the principles of: ... j).
Recognize, respect, and protect the rights of
indigenous and tribal peoples' cultural diversity of
agrarian / natural resources ".
4) Decision of the Constitutional Court Number 35 /
PUU-X / 2012 stating that customary forest is no
longer state forest;
5) Law Number 5 on 1960 about Basic Regulation of
Agrarian Principles;
Article 2, paragraph 4, "the right of control of
that State above its execution may be authorized
to the Swantra and customary law communities,
as necessary and not contrary to the national
interest, in accordance with the provisions of
legislation".
6) Law Number 39 on 1999 regarding Human
Rights;
Article 5 Paragraph (3) "Every person,
including a vulnerable group of people, is entitled
to receive recognition and protection more with
respect to its specificity".
Article 6 Paragraph (1) "in the context of the
enforcement of human rights, the differences and
needs of indigenous and tribal peoples shall be
observed and protected by law, society and
government".
Article 6 Paragraph (1) "The cultural identity
of customary law communities, including
customary land rights is protected in harmony
with the times".
7) Law Number 24 on 2003 regarding the
Constitutional Court
Article 51 "The applicant is a party who deems
his / her constitutional rights and / or authority to
be impaired by the coming into effect of the law,
namely:
Individual Indonesian citizen;
Unity of customary law community as long
as it is alive and in accordance with the
development of society and the principle of
Unitary State of the Republic of Indonesia as
stipulated in law;
Public or private legal entity; or
State institutions.
8) Law Number 20 on 2003 regarding National
Education System;
Article 5 paragraph (3) "citizens in remote or
backward areas and remote indigenous peoples
are entitled to special service education".
Article 32 Paragraph (2) "Specialized
education services constitute education for
learners in remote or backward areas, isolated
ANCOSH 2018 - Annual Conference on Social Sciences and Humanities
252
indigenous peoples, and / or natural disasters,
social calamities, and economic inadequacies".
9) Law Number 23 on 2014 about Regional
Government;
10) Law Number 39 on 2014 about Plantations;
11) Government Regulation Number 78 on 2011
about Ratification of Convention on the
Protection and Promotion of the Diversity
Cultural Expressions (Kovensi on Protecting and
Promoting Cultural Expression Diversity);
12) Regulation of the Minister of Agrarian Affairs /
Head of National Land Agency Number 5 Year
1999 concerning Guidance on Completion of
Problem on Customary Land Rights of Adat Law;
Article 1 "hak ulayat that is authority which,
according to customary law, belongs to a certain
customary law community over a certain area
which is the environment of its citizens to take
advantage of natural resources, including land in
the territory for their survival and life, inner and
outward and inherent between the people of the
customary law and the territory concerned ".
Article 2 "the exercise of customary rights
insofar as they still exist, is committed by the
indigenous peoples concerned in accordance with
the provisions of local customary law. The ulayat
right of customary law community is still exist if:
There is a group of people who still feel
bound by their customary legal order as
citizens with a certain legal partnership that
recognizes and implements the terms of
fellowship in daily life;
There are certain ulayat lands that are the
environment of the citizens of the legal
community and where they take their daily
necessities; and
There is a customary law arrangement
regarding customary land ownership,
control and use of communal land and
obeyed by the citizens of the law
community.
13) Regulation of the Minister of Home Affairs
Number 52 on 2007 concerning Conservation and
Development of Customs and Social Values of
Cultural Society;
14) Regulation of the Minister of Home Affairs
Number 52 on 2014 concerning Guidelines for the
Recognition and Protection of Indigenous
Peoples.
Indigenous and tribal peoples are societies that
can not be separated from society as part of
society in general but have characteristic and
characteristic which is distinct and different from
each other. Discussion on indigenous and tribal
peoples can not be separated from the law, adat
law as an integrated part of the indigenous system.
Each customary law community has different
legal and cultural characteristics and then
different copyrights, works and initiatives.
Koentjaraningrat means that the word "culture" is
derived from the Sanskrit word buddhayah, i.e.
the form of jama from buddhi meaning "mind" or
"mind". Thus culture can be interpreted as "things
with reason". More Koentjaraningrat said that the
culture there are three manifestations, namely
(Koentjaraningrat, 2013):
The form of culture as a complex of ideas,
ideas, values, norms, rules and so on.
The form of culture as a complex of activity
and the patterned actions of humans in
society.
Beings of culture as objects of human works.
The recognition and protection of indigenous and
tribal peoples and their traditional rights is done
through the establishment of legislation both at the
central and regional levels. The recognition of
indigenous and tribal peoples other than
constitutional mandate is also a social reality that is
not omitted or ignored by the state as an organization
of power. Dewi Sulastri said that the social reality of
Indonesian society shows that there is more than one
legal system that effectively works to regulate the life
of the people, in this case based on the reality of
socio-cultural pluralism that is often claimed as the
characteristic of this nation (Sulastri, 2015). One form
of social-cultural pluralism that led to the existence of
a legal system outside the formal legal system that the
state is the existence of the existence of indigenous
peoples with customary law system. As part of the
social reality of Indonesia, the existence of these
indigenous peoples clearly can not be undermined its
meaning, even then the tendency that their existence
must be maintained and strived to be more prominent
as a result of the introduce cultural rights as part of
the human rights that have become the agreement
together in the association of the nations of the world
to be obeyed.
The fulfilment of the rights of indigenous and
tribal peoples is a form of the constitutional rights of
citizens individually or collectively. Some rights of
indigenous and tribal peoples are rights relating to the
existence and sustainability of daily life (customary
law community life), these rights consist of:
Recognition and protection of rights in the form
of music art, art, sculpture, clothing and other
forms of work of indigenous and tribal peoples;
Acknowledgment and protection of rights in the
form of traditions carried out from generation to
Fulfillment of Indigenous Community Rights through the Formulation of Regional Regulation
253
generation such as robo 'robo' culture in
Mempawah District, carbide cannon tradition in
Pontianak and others;
Recognition and protection of rights in
customary law;
The recognition and protection of indigenous and
tribal peoples over the law is the imposition of
customary law and customary courts in various
regions. Recognition of customary law as a living law
in the community is accommodated not only in the
formation of local regulations in each region but in
the case of RKUHP Article 2 Paragraph (1) "the
provisions as referred to in Article 1 paragraph (1)
shall not reduce the enforcement of the living law
within (2) "the enactment of a living law within the
society referred to in paragraph (1) to the extent
consistent with the values contained in Pancasila, the
right human rights, and general legal principles
recognized by the peoples of nations " (Law Number
16 on 2004 regarding Public Prosecution Service;
Law Number 48 on 2009 regarding Judicial Power;
Law Number 23 on 2014 regarding Regional
Government).
Recognition of the existence of customary court
through the formation of local regulations is also a
fulfilment of the rights of indigenous and tribal
peoples. It is understood that indigenous and tribal
peoples can not be separated from their legal system
and how to implement the legal system in the form of
judgment against people who violate customary law.
Customary courts are still there and strong in various
regions in Indonesia, for example in Minangkabau,
West Kalimantan, Papua and several other areas.
Hilman Hadikusuma states that the term "judiciary"
(rechtspraak) basically means the discussion of law
and justice conducted by the court system (consent)
to settle cases outside the court and / or in court
(Hadikusuma, 2003). If the discussion is based on
customary law, it is called "Customary Law Court" or
"Adat Court" only. Customary Tribunals may be
exercised by individual members of the community,
by the family / neighbors, heads of kin or adat head
(customary judges), village head (village judges) or
by organizational board members, as mentioned
above in the peaceful settlement of the indigenous
delict to restore disturbed community balance.
The fulfilment of the rights of indigenous and
tribal peoples through the existing regulation is
deemed incapable of accommodating the fulfilment
of the rights of indigenous and tribal peoples. This is
because the regulation of the legislation (other than
the Perda) only regulates general but unworkable
matters, in other words can only be the juridical basis
but in concrete application to provide the fulfilment
of the rights of indigenous and tribal peoples is not
possible held. Such conditions require the presence of
the state through local governments in formulating
local regulations that provide the fulfilment of the
rights of indigenous and tribal peoples such as art
rights, gifts, traditions and even their laws through
customary court.
The fulfilment of customary community rights
and traditional rights is the mandate of the
constitution which must be fulfilled by the State, the
denial of the constitutional mandate is a form of
denial of our state ideals as contained in the Preamble
to the 1945 Constitution of the Republic of Indonesia.
The form of fulfilment of the rights indigenous and
tribal peoples is the formation of a regional regulation
that establishes regional regulations that
accommodate the rights of indigenous and tribal
peoples. The arrangement is done in 2 (two) form of
arrangement that is:
1) Fulfilment of customary community law rights in
a common law
Regulation of local regulation in fulfilling the
rights of indigenous and tribal peoples in a general
arrangement, this is done in one heterogeneous
region where the regional regulation only
regulates and recognizes the existence of
indigenous and tribal peoples and traditional
rights but the further implementation is related to
the specificity of the fulfilment of such rights shall
be effected by the formation of a Bupati
Regulation or a Decree of the Regent. One
example can be addressed in the recognition and
protection of certain regional cultures in which
within the area there is acculturation and ethnic
diversity so it is more appropriate if the
recognition and protection in general.
2) Fulfilment of customary community law rights in
special regulations
Regulation of local regulation in fulfilling the
rights of customary law community in special
arrangement, this is done in one homogeneous
area so that the contents of the law mention
explicitly about the recognition and protection of
the rights of customary law community. One
example that can be presented as in Kapuas Hulu
District, West Kalimantan is the recognition and
protection of some customary forests in a
Kecamatan in Kapuas Hulu District, it is effective
and efficient by explicitly mentioning the
recognition and protection and the name of the
region because there is a homogeneous ethnicity
in the area.
ANCOSH 2018 - Annual Conference on Social Sciences and Humanities
254
4 CONCLUSIONS
Based on the description in the above discussion it
can be concluded that the fulfilment of customary law
community rights through the formation of local
regulations is very important. It is based on the
embryonicity of indigenous and tribal peoples
existing before the existence of NKRI then must be
lost due to the presence of foreign law (colonizers)
with the theory, laws and policies at that time. The
rights of indigenous and tribal peoples enter a new
phase when Indonesia mardeka and recognized the
existence of indigenous and tribal peoples in the
constitution and then the birth of Decision of the
Constitutional Court Number: Number 35 / PUU-X /
2012 whose ruling is to recognize customary forest is
no longer state forest. Although the juridical
existence of indigenous and tribal peoples has been
recognized but in practice the rights of indigenous
and tribal peoples can not be immediately fulfilled,
this is because the existing legislation is still
considered abstract and has not been able to fulfil the
rights of indigenous and tribal peoples.
Considering such condition, it is necessary to
formulate a law as an effort to fulfil the rights of
customary law community in each region.
Constitutional legislation is permissible and even
delegated to regions to make local regulations to fulfil
the rights of customary law communities. The
formation of local regulations on the rights of
indigenous and tribal peoples is done in 2 (two) ways
namely first, recognition with the fulfilment of
customary law community rights in general, namely
the law only acknowledges but the implementation is
followed up in Bupati or Bupati Decree, the rights of
indigenous and tribal peoples through Perda with
content material of the law which gives special rights
such as recognition of customary forest and
customary courts in various regions in Indonesia.
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