Indigenous Peoples in Indonesia’s Constitutionalism Context

Triyanto and Rima Vien P. H.

Civic Education, Sebelas Maret University, Surakarta, Central Java, Indonesia

Keywords: Indigenous Peoples, Constitutionalism

Abstract: Focus of this research is examine the position of indigenous peoples in the context of Indonesian

constitutionalism. This research is theoretical using literature review method based on literature and

combined with bibliographic research that focuses on the ideas contained in the theory. This study shows

normatively Indonesia still recognises the exixtence of Indonesian indigenous peoples as evidenced by the

wording of the Indonesian 1945 Constitution Article 18B (2) and 28i (3). The arrangement of indigenous

peoples to date has also spread in various laws and regulations. Characteristics of existing legislation are

sectoral, contestation. From a number of legislation on indigenous peoples, it can be seen that the situation of

irregularity that raises many interpretations about the position of indigenous peoples and their social units.

The conclusions of this study indicate that understanding indigenous peoples in the context of Indonesian

constitutionalism is not limited to understanding the articles of the constitution, but rather placing on the

dynamics of legal politics, namely how the law (product of the constitution to operational rules) and its

control (development function, law enforcement) and the system it must not completely suppress the rights of

indigenous peoples. So the entrance of indigenous peoples in the context of Indonesian constitutionalism is

against all forms of oppression and rights of indigenous peoples.

1 INTRODUCTION

The question of who is indigenous and the

recognition of the existence of indigenous peoples is

one of the key issues in the discourse on adat and

indigenity in Indonesia in the past few decades.

Customary issues have risen in contemporary

Indonesian society and even occur everywhere. This

shows that the indigenous community movement is

not not a straight line of historical development, but

an iterative process that uses past history as a form of

contemporary identity. Therefore, an understanding

of the subjectivity of indigenous peoples, in this case

the legal position of indigenous peoples in the

Indonesian legal system from the constitution to its

operational regulations becomes very important.

2 THE PROBLEM

How the position of indigenous peoples in the context

of Indonesian constitutionalism ? Based on the

formulation of the problem, focus of this research is

examine the position of indigenous peoples in the

context of Indonesian constitutionalism.

3 METHOD

This research is theoretical with type of library

research based on literature or based on library

focusing on reading and analysis of the primary and

secondary materials and combined with bibliographic

research that focuses on ideas contained in the theory.

This research used a statutory approach (statue

approach) and concept approach.

The legislative

approach is carried out the examine various laws and

regulations ranging from the constitution to various

legislative regulations governing indigenous peoples.

4 WHO ARE INDIGENOUS

PEOPLES

The term indigenous people has been widely known

and has been mentioned in a number of international

Library based, focusing on reading and analysis of the

primary and secondary materilas. See Jhony Ibrahim.

2006. Teori dan Metodologi Penelitian Hukum Normatif,

Malang : Bayu Media Publishing, page. 46.

Abdulkadir Muhammad. 2004. Hukum dan Penelitian

Hukum.Bandung : PT.Citra Adiyta Bakti, page. 113.

482

Triyanto, . and P. H., R.

Indigenous Peoples in Indonesia’s Constitutionalism Context.

DOI: 10.5220/0009022900002297

In Proceedings of the Borneo International Conference on Education and Social Sciences (BICESS 2018), pages 482-485

ISBN: 978-989-758-470-1

agreements, namely: Convention of International

Labor Organization Concerning Indigenous and

Tribal People in Independent Countries (1989),

Declaration of Cari-Oca on the Rights of Indigenous

Peoples (1992), Declaration of the Earth Rio de

Janairo (1992), Declaration on the Right of Asian

Indigenous Tribal People Chianmai (1993), De

Vienna Declaration and Program Action formulated

by the United Nations World Conference on Human

Rights (1993). Now the term indigenous people is

increasingly officially using it with the birth of the

United Nations Declaration on the Rights of

Indigenous People in 2007.

In terms of terminology, many experts are trying

to define who is indigenous. Maria Rita Ruwiastuti,

for example, stated that the community is a

community group whose ancestors were beginners in

that place, whose relationship with agrarian sources

was regulated by local customary law.

F.D.

Hollenmann in Husen Alting, constructs 4 (four)

general characteristics of indigenous peoples, namely

religious, communal, concrete and cash.

The debate about the terms and definitions of

indigenous peoples still continues to this day both at

the international level and at the national level of

Indonesia. At the Indonesian national level, there

have been many laws and regulations governing

indigenous peoples quantitatively, although until now

there has been no specific law on indigenous peoples.

Starting from constitutional norms, laws, ministerial

regulations and even local regulations that have

regulated many indigenous peoples and their

traditional rights, but among the various laws and

regulations have not been aligned with one another.

There are various terms used, ranging from the

terms indigenous peoples, indigenous law

communities, customary law community units,

traditional communities, remote indigenous

communities, traditional villages or other names. Of

the various terms that exist, the term customary law

community is most widely used. The term customary

law community is used as a category of grouping of

people called customary law communities

(rechtsgemeenschappen) which is a community

where all members of the community are bound as a

whole based on the law used, namely customary law.

The term indigenous peoples is used in the Human

Maria Rita Ruwiastuti, 2000, Sesat Pikir Politik Hukum

Agraria : Membongkar Alas Penguasaan Negara atas Hak

– Hak Adat, Yogyakarta: Kerjasama Insist Press, KPA dan

Pustaka Pelajar, page. 177.

Husen Alting, 2010, Dinamika Hukum dalam Pengakuan

dan Perlindungan Hak Masyarakat Hukum Adat Atas

Tanah , Yogyakarta: LaksBang PRESSindo, page.46.

Rights Law, Forestry Law, Plantation Law and

Environmental Protection and Management Law.

This term is a translation of the

Rechtsgemeenschaapen Customary term popularized

by Ter Haar.According to Ter Harr, the indigenous

community is devided into two groups: a culturally

based indigenous community, which is independent

from the State structure, and a legally -based

indigenous community, which is politically-based

and functions within the State structure. Only the

second group can be recognissed by the State as a

legal subject and these are futher divedid into the

subgroup of genealogic, territorial and mixture of the

two.

The term indigenous peoples is used in the Law

on the Management of Coastal and Small Islands.

Indigenous Peoples are defined as coastal groups that

have traditionally lived in a particular geographical

area due to their ties to ancestral origins, a strong

relationship with coastal resources and small islands

and a value system that determines economic,

political, social and law.

The term community is traditionally used in

Article 28I paragraph (3) of the 1945 Constitution, in

the Law on the Management of Coastal Areas and

Small Islands. Traditional communities are defined

as traditional fisheries communities whose traditional

rights are still recognized in carrying out fishing

activities or other legitimate activities in certain areas

that are in archipelagic waters in accordance with the

rules of international sea law.Meanwhile the term

indigenous remote community in Presidential

Regulation No. 186 of 2014 concerning Social

Empowerment of Remote Indigenous Communities,

is defined as a group of people who are bound by

geographical, economic and or cultural unity, and are

poor, remote, and / or socio-economic vulnerable.

The traditional village in the Village Law is

defined as a customary law community unit which in

addition to exercising its origin rights, also plays a

role in running government administrative

affairs.Various terms and definitions supported by

different agencies and different approaches in

looking at indigenous peoples show that when talking

about indigenous people, it is actually talking about

the contestation of concepts, legislation and

institutions that regulate indigenous peoples.

Haar, T.B, 1948, Adat Law in Indonesia, New York:

Institute of Pacific Relations.

Indigenous Peoples in Indonesia’s Constitutionalism Context

483

5 THE RISE OF INDIGENOUS

PEOPLES IN INDONESIA

Jamie S. Davidson and David Henley at Yance

Arizona said there were at least 4 (four) factors of the

rise of indigenous peoples movements in Indonesia.

First, the indigenous peoples' movement is a

contribution to the development of discourse and

encouragement from international organizations. The

indigenous community movement is a continuation

of the anti-imperialism movement which reflects

something new from the previous "left movement"

because of its intention to maintain cultural diversity.

Internationally, the rise of adat is something that is

real and global. Starting in 1968 in Denmark by

professional anthropologists by forming the

International Work Group for Indigenous Affairs

(IWGIA), then the World Council of Indigenous

Peoples (WCIP) in 1975. In Indonesia, the emergence

of indigenous peoples organizations such as the

Indigenous Peoples Alliance of the Archipelago

(AMAN) is important efforts, because AMAN is not

only involved in international level activities but also

a place for scholars and various activists to discuss

the issue of indigenous peoples. Second, pressure and

oppression under the New Order. Indigenous

movements in Indonesia rose from a common

awareness that they were victims of development

programs during the New Order regime. Third, the

factor of openness after the New Order, meaning that

the collapse of the New Order opened up massive

spaces of mass involvement in Indonesia, including

that it had been used by indigenous community

activists to establish AMAN in 1979 which became

an important milestone for the changes that occurred

with the distinctive character of the indigenous

peoples movement contemporary, namely that

indigenous peoples want to be valued as part of the

state, not to separate themselves from the state.

Fourth, the ideological heritage of customary law

thinkers in the colonial period was primarily from

Cornelis Van Vollenhoven; a professor at Leiden

University since 1909 and the father of "Leiden

Shcool" which gave birth to key concepts in

indigenous discourse to date.

Yance Arizona, 2016, “Memahami Masyarakat Adat :

Pendekatan Evolusionis Versus Pluralis, Makalah

disampaaikan dalam Focus Group Discussion (FGD)

Perlindungan Konstitusional Masyarakat Hukum Adat

yang diselenggarakan oleh Pusat P4TIK Mahkamah

Konstitusi, Jakarta, 21 Juli 2016.

6 RESULTS AND DISCUSS

Studying constitutionalism so far has only been done

to the extent that it is stated on the basis of one or two

articles in the constitution, which is considered as a

basis or "hook". Moreover, pursing is limited to a

word link from a particular article. Studies that limit

such perspectives are so strongly embedded in the

legal thinking of formalism or doctrinal perspectives

that the approach used is still "old constitutionalism".

Studying constitutionalism thus must be done with a

new approach or perspective called "new

constitutionalism".

How is this disscussion related

to indigenous peoples in the context of Indonesian

constitutionalism?

Arrangements regarding the existence and rights

of indigenous peoples in Indonesia are contained in

the 1945 Constitution, laws and other legislations.

This shows that the existence and rights of

indigenous peoples have actually been accepted

within the prevailing legal framework in Indonesia

even though a number of laws and regulations

regarding the existence and rights of indigenous

peoples can reveal the existence of an irregular

situation which gives rise to many interpretations of

the position of indigenous peoples. in the end it

becomes an obstacle to the fulfillment of the

constitutional rights of indigenous peoples.

Apart from being referred to as any entity,

indigenous people or customary law communities,

traditional communities, and so on, the "entrance" of

constitutionalism must be the same which is against

all forms of oppression and the seizure of the rights of

indigenous peoples. With this similarity in

perspective, the development of constitutionalism of

indigenous peoples in Indonesia should: 1) go beyond

the debate about the terms used in the constitution

and legislation, unless the legal and political

consequences allow for oppression and deprivation of

rights; 2) It is not sufficient to be based on Article

18B and 28I paragraph (3) of the 1945 Constitution.

Both of these articles must be placed in a position

related to the articles relating to the limitation of the

authority of the state administration as well as the

articles relating to guarantees of basic rights; 3) The

idea of constitutionalism is thus not limited to

constitution, let alone about text (written constitution

and written norms). Constitutionalism is not

interpreted as limited in formulation or law

formation, but comprehensively questions the extent

to which the process of legal formulation,

institutionalization, policy making, and overseeing

Stephen L Elkin and Karol Edward Soltan, 1993, A New

Constitutionalism: Designing Political Institutions for a

Good Society.

BICESS 2018 - Borneo International Conference On Education And Social

484

the implementation process and constitutional

development functions are carried out

simultaneously; 4) Indonesian constitutionalism must

not be exclusive in protecting only one indigenous

community entity, but rather focusing on how to

strengthen its protection position as its position is the

same as the other when indigenous peoples' rights are

seized.

7 CONCLUSION

To understanding indigenous peoples in the context

of Indonesian constitutionalism is not limited to

understanding the articles of the constitution, but

rather placing on the dynamics of legal politics,

namely how the law (product of the constitution to

operational rules) and its control (development

function, law enforcement) and the system it must not

completely suppress the rights of indigenous peoples.

So the entrance of indigenous peoples in the context

of Indonesian constitutionalism is against all forms of

oppression and rights of indigenous peoples.

REFERENCES

Abdulkadir Muhammad. 2004. Hukum dan Penelitian

Hukum.Bandung : PT.Citra Adiyta Bakti

Haar, T.B, 1948, Adat Law in Indonesia, New York:

Institute of Pacific Relations.

Husen Alting, 2010, Dinamika Hukum dalam Pengakuan

dan Perlindungan Hak Masyarakat Hukum Adat

Atas Tanah , Yogyakarta: LaksBang PRESSindo.

Jhony Ibrahim. 2006. Teori dan Metodologi Penelitian

Hukum Normatif, Malang : Bayu Media Publishing

Maria Rita Ruwiastuti, 2000, Sesat Pikir Politik Hukum

Agraria : Membongkar Alas Penguasaan Negara

atas Hak – Hak Adat, Yogyakarta: Kerjasama Insist

Press, KPA dan Pustaka Pelajar.

Stephen L Elkin and Karol Edward Soltan, 1993, A New

Constitutionalism: Designing Political Institutions

for a Good Society.

Yance Arizona, 2016, “Memahami Masyarakat Adat :

Pendekatan Evolusionis Versus Pluralis, Makalah

disampaaikan dalam Focus Group Discussion

(FGD) Perlindungan Konstitusional Masyarakat

Hukum Adat yang diselenggarakan oleh Pusat

P4TIK Mahkamah Konstitusi, Jakarta, 21 Juli 2016

Legislation

The Indonesian 1945 Constitution (After Amendments)

Law No. 41 of 1999 concerning Forestry

Law No. 39 of 1999 concerning Human Rights

Law No. 32 of 2009 concerning Environmental Protection

and Management

Law No. 1 of 2014 concerning Amendment to Law No. 27

of 2007 (UU Nomor 27 tahun 2007) on the

Management of Coastal Areas and Small Islands

Law No. 23 of 2014 concerning Regional Government

Law No. 6 of 2014 concerningVillage

Presidential Regulation No. 186 of 2014 concerning Social

Empowerment of Remote Indigenous Communities

Indigenous Peoples in Indonesia’s Constitutionalism Context

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