Guiding
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| Orientierungsrahmen: Bodenrecht und Bodenordnung |
Deutsche Gesellschaft für Technische Zusammenarbeit Abt. 45 / Div. 45 |
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Ulrich Löffler,
(1996): 4.2 Institutions involved in conflict resolution When solving conflicts, many institutions are involved and resolutions are sought on many levels which are described in brief in the following section: a.) Courts General Courts The judiciary in Indonesia consists of four divisions: General courts, religious courts, military courts and administrative courts. The Mahkama Agung (Supreme court) in Jakarta is the highest court for all divisions of the judiciary. [FN 161] At the Province level, one finds the Pengadilan Tinggi (High Courts). The Pengadilan Negeri (District Courts) are situated at the Kabupaten level. The Pengadilan Negeri are the courts which are involved in land disputes at the District level. A judicial case at the Pengadilan Negeri starts with an oral hearing (siddang) in which the witnesses can be questioned and other parties can be heard after the formal registration of the legal dispute and the perusal of the files by the judges. The formal procedures of such a legal case are complex and lengthy and bound up with multiple administrative snares. Aspects of Adat Law are involved especially in land disputes. The judges only have little knowledge of Adat Law as a rule and can acquire this knowledge only in a limited manner since they usually remain in the same court for a few years before being transferred. In addition, they only rarely understand the local language. Some authors doubt that the general courts are able to play an important role in the solving of land disputes at all due to qualifications of the personnel and the procedures. As a rule, judges are only insufficiently prepared for the form of these land conflicts in which one party can consist of thousands of people, or in which thousands of local people want to be members of the community which is suing for higher compensations. In addition, the decisions according to winner and looser of a court battle do not fit in with the necessity of finding innovative, locally specific and flexible solutions and compromises which do not go against the interests of all concerned. This, however, appears to be an important prerequisite for long-lasting solutions. But the judges also try to find solutions for land disputes through informal negotiations and advice in advance. Additionally the chief judge of a district court is also chairman of a legal extension committee which operates under Kanwil Kehakiman (Regional Office of the Justice Department). The two basic aspects of this legal extension committee are the Pusat Hukum Masyarakat (Public Law Centers) and the field extension programs carried out by Hakim Musak Desa (Judges). This committee, if implemented at all, suffers from being completely inadequately financially equipped, and only has standard advisory material available which is completely unsuitable for the outer islands. Religious courts The religious courts (Pengadilan agama) mainly deal with inheritance problems. They can be asked for advice when property is to be divided between heirs after the death of the head of the family. The court dispenses a fatwa (advisory opinion). This fatwa can be issued in writing and can be discharged as a "Document of heirs" or as "Documents concerning Division of Inheritance by agreement".[FN 162] Problems connected to inheritance, which are the reason of real land disputes, can also be brought before the Islamic courts. The advantage of Islamic courts is their fast decision making progress, in contrast to civil courts with usual procedures over several years. [FN 163] At least on Java it is possible at any time to deny the jurisdiction of Islamic courts and force a complete rehearing in a pengadilan negeri.[FN 164] b.) Government Institutions BPN In the BPN, the Land Rights Directorate is responsible for the granting, extension, renewal and termination of legal rights to land and for the resolution of land rights disputes which are connected with such a termination. There are, however, no set procedures and rules for regulating disputes in the BPN The land committee (Panitia A) meets regularly or on an ad hoc basis. This land committee can meet in an open session, or can be handled by one-to-one consultations. The first formal step is usually, the filing of a consultation form (Lembaran Konsultasi). In practice, however, there are informal discussions and other possible forms of resolution for land conflicts.
Provincial Government At the Province level, the Biro Hukum dan Hubungan Masyarakat (Law and Public Relations Bureau) plays an important part in the resolution of land conflicts. The Biro Hukum is located within the Provincial secretariat (Sekretariat Wilayah / Daerah Tingkat I - SETWILDA). The tasks of the office are, amongst others:
The tasks of the legal representative of the Provincial Government can often only be inadequately carried out due to restricted financial and personnel resources. The Biro Hukum represents the provincial Government in court cases and also gathers data and documents about land cases through the Legal Aid Section (Bagian Bantuan Hukum) of the Biro Hukum. The Biro Hukum might be involved in several hundred land disputes per year. Local Government Local government officials, the village headman, the Camat and the official from the Department Kehutanan, are also frequently involved in the resolution of land disputes. Especially at the lowest administrative level that they are asked for advice. There exists no fixed pattern of regulations for the various participants, but rather they act according to traditional patterns of decision, "musyawarah and mufakat" (consultation and consensus). The influence of these local leaders is strongly dependent upon their personalities and their level of recognition amongst the local population. Sometimes it is doubtful whether they are more interested in the rights of the local population or in carrying out the development programs and projects which the higher administrative levels would like to see done quickly and unproblematically. In addition, knowledge of the BAL and Adat Law is either not very deep, or varies greatly from official to official. c.) Non-Government Organizations A multitude of non-governmental organizations are involved in land issues and dispute resolution. Many large non-government institutions, which deal first and foremost with the protection and conservation of nature and community development have become involved in land tenure issues. Examples of these are SKEPHI (Secretariat Kerjasama Relawan Pengendalian Pencemaran) and WAHLI (Wahana Lingkungan Hidup Indonesia) [FN 166], which achieve public notice through numerous undertakings and publications. E.g. a meeting in September 1995 between MoF DJAMALUDIN and WALHI representatives was conducted at which WALHI representatives presented 6 conflicts between local populations and HTI plantations, thus, the Minister of Forestry promised the "establishment of a conflict resolution forum".[FN 167] The Legal Aid Institute (Lembaga Bantuan Hukum-LBH) offers legal advice. The main office is in Jakarta with sub-offices in several urban centers: Bandung, Banjarmasin, Jambi, Medan, Menado, Padang, Palembang, Semarang, Surabaya, Ujung Padang, Yogyakarta. They explain and advice on rights to locals.[FN 168] The larger offices, along with the director and secretarial staff, have on average 10 full-time and part-time lawyers.[FN 169] The objectives of the LBH can be summarized as follows:[FN 170]
There is likewise an Indonesian Center for Environmental Law (Lembaga Pengembangan Hukum Lingkungan Indonesia) in Jakarta which carries out advisory and publicity work for environmental laws in the broadest sense. This Centre is in contact with, amongst others, the IUCN in Geneva and the Environmental Law Center of the IUCN in Bonn. Non-governmental organizations can play an important part as mediators for example in land conflicts between the government and local people since they are looked upon as "neutral" parties. As outsiders they can even act as negotiators in conflicts between Adat leaders. There are now many specific NGOs which deal with problems incorporated in rural development and consider their prime task in strengthening and setting up of community institutions. ZERNER reports that "in the early 1990s, a well-known Indonesian environmental and indigenous rights lawyer was reputed to be visiting Holland to obtain Dutch-era maps of territories under the control of specific ethnic groups in Kalimantan. These ethnically based, topographically inscribed representations were to be used in a campaign to secure recognition of contemporary community claims to control areas of forest in Kalimantan then under the control of timber concessions. The assumption underlying such a tactic was that colonial maps, like colonial codification of "customary law", constituted transparent reflection of realities "on the ground", as it were, rather than politically constructed representations freighted with assumptions about the nature of property, ethnicity, and maps."[FN 171] A report from Ambon states that HUALOPU (a non-governmental environmental organization on Ambon) for example financed a survey of sasi-like[FN 172] practices in the Maluku Province in 1991 / 92 in order to find out local institutions and values for the controlling and the access to natural resources.[FN 173] Church NGOs in particular frequently play the role of negotiator in Indonesia in land conflicts. An example here is the Delsos committee of the Catholic Church in Sorong / Irian Jaya and the Church World Service (see box 6). Representatives of religious institutions often live for decades in rural areas on the outer islands and often possess profound knowledge about local Adat regulations and are often seen in addition as an authority by the local Adat leaders and are turned to for advice. Box 6: Involvement of the Delsos Committee and the Church World Service in land issues in Irian Jaya [FN 174]
d.) Adat institutions Adat institutions, of course, contribute to the resolution of traditional conflicts between and within the various Adat communities. Adat councils can, for example, be very significant when separating up overlapping Adat rights to land. It must be made certain here that the rightful Adat leaders take part, this indeed being those who have the mandate from the local population to represent their interests. Adat institutions also play an important part in the taking of Adat land for development projects and the conflicts which result therefrom. The Adat institutions are, however, frequently not in a strong bargaining position when it comes to conflicts between Adat authorities and the national government. In this case only damage limitations is being dealt with, i.e. the amount of the compensation being negotiated for the taking of the land.
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