Powerless or Protected? Legal Standing of Customary Law Communities in State Administrative Law Jurisprudence

Recognition of Customary Law Community

Customary law community is defined under the Law Number 32 of 2009 on Environmental Protection and Management (“Indonesia Environmental Law”) and the Regulation of the Minister of Home Affairs Number 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities (“MoHA Reg. on Customary Community”). Customary law communities are Indonesian citizens who have distinctive characteristics, live in groups passed down from generation to generation in accordance with its customary law in a specific geographical area due to the binding in origin of ancestor and/or shared place of residence, have strong connection to the land and environment, and have a system of values determining economic, political, social and legal structures, as well as the use of certain area passed down from generation to generation.

The recognition of customary law communities was previously established in Law Number 5 of 1960 on Basic Agrarian Principles (“Agrarian Law”), which essentially acknowledges the existence of the customary law communities’ rights, particularly through the recognition of their rights to exercise ulayat rights.

Read Also: Registration of Ulayat Rights: Recognition and Protection by the Government for Customary Law Communities in Indonesia

Superior to the above regulations, state recognition of customary law communities has essentially been declared through Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (“1945 Constitution”), which states:

“The State shall recognize and respect entities of the customary law communities along with their traditional rights to the extent they still exist and are in accordance with the development of the society and the principle of the Unitary State of the Republic of Indonesia, which shall be regulated by laws.”

Recognition of the existence of customary law communities signifies that they also have a clearly acknowledged legal standing before the law. Consequently, when a legal event occurs that concerns them or even results in harm, customary law communities may claim their rights, whether through criminal, civil, or even state administrative mechanisms, which will be the focus of discussion in this writing.

When the legal standing of customary law community is already established, what may then potentially become an issue when they file a claim before the State Administrative Court?

Legal Standing of Customary Law Community

Similar to the issue of the claimant’s legal standing in the common state administrative disputes, it is sometimes difficult to determine the existence of an interest and what kind of interest may serve as the basis right to file a claim, as a legal standing for a customary law community to be recognized before the State Administrative Court.

Before discussing further, it should be noted that regarding the legal standing of customary law communities, there are some laws and regulations that stipulate the determination and/or confirmation of customary law communities by legal means. As stipulated in Article 234 paragraphs (1) and (2) of Government Regulation Number 23 of 2021 on Forestry Management, which regulates the confirmation of the existence of customary law communities within forest areas determined by Regional Regulations, as well as the confirmation of customary law communities outside forest areas determined by Regional Regulation or decision of governor or regent/mayor in accordance with their authority.

Read Also: Customary (Adat) Forest Recognition: The State’s Commitment to the Protection of the Rights of Indigenous People in Indonesia

Prior to that, Law Number 41 of 1999 on Forestry (“Forestry Law”) through Article 67 paragraph (2) also stipulated that the confirmation of the existence of customary law communities shall be determined by Regional Regulations. Whereas when looking at the provision in a general sense, Article 6 paragraph (2) of the MoHA Reg. on Customary Community has stated that the confirmation of recognition and protection of customary law communities is carried out by the regent/mayor based on the recommendation of the customary law community committee through a Regional Head Decree.

Concerning that matter, it may then be questioned, can any party claiming to be a representative of a customary law community file a lawsuit? To analyze this matter further, we will discuss the Decision Number 248 K/TUN/2016 jo. 01/B/2016/PT.TUN.MKS jo. 22/G/2015/PTUN.Kdi.

In this case, the Claimants claimed to be the traditional leaders (pemangku adat) of the Saumolewa customary law community, South Buton Regency and filed a claim against a Decision of the Head Office of Agriculture, Animal Husbandry/Livestock, Plantation and Forestry regarding the issuance of a Timber Utilization Permit (Izin Pemanfaatan Kayu/IPK) under the name of a certain private company.

The Claimants, who claimed in their standing to act as a representative of the Saumolewa customary law community residing around the forest for generations, argued that their interest have been harmed by the object of dispute issued by the Defendant over customary land and forest controlled by the majority of the customary law community.

In response to the Claimants’ claim, the Defendants in one of their points of exception, essentially stated that the Claimants, as a customary law community, did not have a clearly established legal standing. This was based on the fact that the Claimants were not a part of the customary law communities whose existence had been formally recognized by the government through a Decree or Regional Regulation. Moreover, the Defendants argued that the Claimants’ standing was merely a personal claim without any legal basis.

In the first level of court, the Claimants’ claim was granted. Judex Facti’s of the first level of court through Decision Number 22/G/2015/PTUN.Kdi, argued that the Claimants did indeed possess an interest and therefore had a legal standing to file a claim, by taking into consideration, among other things:

• The Panel of Judges based the recognition of the Claimants as a customary law community on the Certificate from the Village Head and the Head of the Customary Institution;
• Although the object of dispute was not directly addressed to the Claimants, and the Claimants were third parties, the Panel of Judges held that this did not mean the Claimants had no interest in disputing the object of dispute, where they could no longer utilize the area in question;
• The Claimants were also authorized to represent the interests of the customary law community in the Saumolewa

Nevertheless, the decision was subsequently overturned on appeal and later upheld at the cassation level. At the appellate level in Decision Number 01/B/2016/PT.TUN.MKS, the Judex Facti, by referring to a doctrine, considered that a legally protected interest, only exists when such interest is clear that:

• There is a connection to the claimant.
• The interest must be personal.
• The interest must be direct.
• The interest must be objectively identifiable, both in terms of its scope and intensity.

The Judex Facti at the appellate level was then argued that to assess this element of “interest”, the existence of the Saumolewa customary law community must be proven to exist and be legally recognized.

In this regard, the court at both at the appellate and cassation levels did not uphold the consideration of the first level of court, which assessed the validity of the Claimants’ status as a customary law community based solely on a Certificate from the Village Head and the Head of the Customary Institution. Given that the object of dispute concerns a forest area, thus by referring to the Article 67 of Forestry Law, the Judex Facti at the appellate level and the Judex Juris essentially argued that the Claimants’ standing as a customary law community could not be determined solely based on a Certificate from the Village Head and the Head of the Customary Institution. Their legal standing can only be recognized and entitled to their legal rights, if they have been confirmed through a Regional Regulation. Therefore, in this case, the Claimants’ legal standing at the time the claim was filed, was deemed unilateral and still requires further legal recognition.

Judex Juris argued in Decision No. 248 K/TUN/2016:

“that the Claimants cannot prove that they are customary law communities whose interests have been harmed by the issuance of the disputed object. The Claimants’ argument as customary law communities is only a unilateral statement that requires legal recognition through Regional Regulations as stipulated in Article 67 of Law Number 41 of 1999 on Forestry.”

In regard to this jurisprudence, therefore, in order to assess the validity of the existence of a customary law community, reference must be made to the provisions under Article 67 paragraph (2) of the Forestry Law, which stipulates that the confirmation of the existence and elimination of customary law communities is determined by regional regulations.

Under the Elucidation of Article 67 of the Forestry Law, it is stated that the existence of the customary law community shall be acknowledged, in the event that it satisfies the following elements:

1. The communities are still in the form of associations (paguyuban);
2. There are institutions in the form of customary law institution;
3. Clearly encompassed in the jurisdiction of customary law;
4. There is an institution and apparatus of law, specifically customary law courts, that are still adhere to;
5. Forestry levies are still conducted in the surrounding forest areas to their daily sustenance.

Furthermore, it was clarified that Regional Regulations shall be set forth by taking into account the results of the research by experts in the field of customary law, the aspirations of the local community, and customary law figures in the area concerned, as well as agencies or other parties concerned.

Assessing Legal Standing of Customary Law Community

Essentially, the existence of customary law communities is indeed recognized by the state, which among them expressed under the 1945 Constitution, Agrarian Law, Indonesia Environmental Law, Forestry Law, MoHA Reg. on Customary Community. In addition to this recognition, they are also granted explicit rights stipulated under the prevailing laws and regulations, including the legal standing to file a claim in a state administrative dispute. However, as illustrated in the jurisprudence above, not every party who claims to be a part of a customary law community would automatically be granted the legal standing in any state administrative dispute.

Despite the acknowledgement of customary law communities’ right to bring a claim before the State Administrative Court, the Court must still assess their legal standing aspects in relation to the dispute in question. Accordingly, any claim filed by a customary law community must be supported by evidence, providing that they have a clear legal standing to act as an interested party in relation to the object of dispute. As reflected in the jurisprudence above, which requires the Claimants, who claim to be a customary law community affected by the object of dispute, to meet certain procedural requirements regarding the formal legal recognition of customary law communities set under Article 67 of the Forestry Law before they can have their rights recognized, and to subsequently exercise their rights provided under the relevant laws and regulations.

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Sources:

• 1945 Constitution of the Republic of Indonesia.
• Law Number 32 of 2009 on Environmental Protection and Management.
• Law Number 5 of 1960 on Basic Agrarian Principles.
• Law Number 41 of 1999 on Forestry.
• Government Regulation Number 23 of 2021 on Forestry Management.
• Regulation of the Minister of Home Affairs Number 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities.
• Supreme Court Decision Number 248 K/TUN/2016.
• State Administrative High Court Decision Number 01/B/2016/PT.TUN.MKS.
• State Administrative Court Decision Number 22/G/2015/PTUN.Kdi.