The Problems of the Protection for the Adat People
3. The Problems of the Protection for the Adat People
According to all previous description and observation above, we can find some main problems regarding the protection for the Adat People.
The first one is the conceptual problem. As we already know that there are various regulations about the existence of Adat People contained by various Indonesian legislations, but such regulations are based on different fields as what each legislation talks about, meanwhile there hasn’t been any general concept about what the Adat People is which makes the regulations about the existence of Adat People are sporadic and not connected each other. This problem is quite fundamental because according the regulations of the Indonesian Constitution and the regulations of the Indonesian Law of Human Rights regulating about the existence of Adat People, it is perceived that the Adat People is a distinct kind of people which needs to be protected and treated specially due to its particularity. However, there is no general concept explaining The first one is the conceptual problem. As we already know that there are various regulations about the existence of Adat People contained by various Indonesian legislations, but such regulations are based on different fields as what each legislation talks about, meanwhile there hasn’t been any general concept about what the Adat People is which makes the regulations about the existence of Adat People are sporadic and not connected each other. This problem is quite fundamental because according the regulations of the Indonesian Constitution and the regulations of the Indonesian Law of Human Rights regulating about the existence of Adat People, it is perceived that the Adat People is a distinct kind of people which needs to be protected and treated specially due to its particularity. However, there is no general concept explaining
It doesn’t mean that there should be a strict guidelines explaining about the concept of Adat People because it may lead into too strict protection coverage, which is also a problem. What needed here is a quite general guidance explaining about the concept of Adat People so such concept can be implemented into various legislations and thus can provide broad protection coverage.
The second problem is a legal centralism paradigm which is embedded in the consciousness of most Indonesian legislators which makes this paradigm is contained almost in all legislations regulating about the existence of Adat People.
Legal centralism paradigm is what Griffiths argues as major paradigm embedded in the mind of most jurists and lawyers (Griffiths 1986, p. 14) perceiving that law is and should be the law of the state, uniform for all persons, exclusive for all other law, and administered by a single set of state institutions (Griffiths 1986, p. 3). So, according to this paradigm, law is an exclusive, systematic and unified hierarchical ordering of normative propositions, which can be look at either from the top downwards as depending from a sovereign command as what Bodin, Hobbes, and Austin argue, or Legal centralism paradigm is what Griffiths argues as major paradigm embedded in the mind of most jurists and lawyers (Griffiths 1986, p. 14) perceiving that law is and should be the law of the state, uniform for all persons, exclusive for all other law, and administered by a single set of state institutions (Griffiths 1986, p. 3). So, according to this paradigm, law is an exclusive, systematic and unified hierarchical ordering of normative propositions, which can be look at either from the top downwards as depending from a sovereign command as what Bodin, Hobbes, and Austin argue, or
All of things described as what Griffiths called as legal centralism paradigm above can clearly be seen in all legislations regulating the existence of Adat People that we’ve observed before, even in the regulations of the Indonesian Constitution especially in the article 18B section 2. According to the article of 18B section
2, it can be said that since the country of Republic of Indonesia has been established and therefore it has been the prominent political organization of the Indonesian people, any existence of Adat People should not be contradictory with the existence of the Republic of Indonesia as a nation state. Thus, any existence and interest of a community of Adat People can be recognized as long as they are not contradictory with the existence of the state with all its interest.
Such notion can be traced further both in the Indonesian Agrarian Law and the Indonesian Forestry Law. As what observed before, those legislations clearly regulate that the rights of Adat People over land and forest (the ulayat right) is recognized limitedly, which is as long as not contradictory with the national interest due to the fundamental notion of the article 33 section 3 of the Indonesian Constitution as the basis of those legislations Such notion can be traced further both in the Indonesian Agrarian Law and the Indonesian Forestry Law. As what observed before, those legislations clearly regulate that the rights of Adat People over land and forest (the ulayat right) is recognized limitedly, which is as long as not contradictory with the national interest due to the fundamental notion of the article 33 section 3 of the Indonesian Constitution as the basis of those legislations
According to regulations regulating about the existence of Adat People contained by all legislations observed above, the state laws are clearly perceived as the supreme law regulating the behavior of all Indonesian people. Thus, the rights and duties of all Indonesian people, which is supposed including the Adat People, is firstly and primarily regulated by the state laws, and therefore any other laws regulating differently about such matters should be and factually disregarded.
Unfortunately, such notion has factually been the major cause of the disregard over the existence of Adat People which obviously results in a marginalization of their life. The prolonged conflict in Papua due to the existence of Freeport mining company is a clearest picture of the problem above (Arif 2007).
There have been also other pictures showing problems as what has been happening in Papua, such as what happened to the Suku Anak Dalam in Jambi in which the life of such people has been dramatically endangered due to the transformation of the Taman Nasional Bukit Dua Belas and the Taman Nasional Bukit Tiga Puluh as the forest where this people are living in to become areas of palm tree plantation, forest concession for wood industry, and housing (Kompas 2008), or the contemporary issue happening to the Sedulur Sikep community in Pati, Middle Java, in which their land has been proposed to be transformed into a limestone mining area by the Semen Gresik company which is fully supported by the There have been also other pictures showing problems as what has been happening in Papua, such as what happened to the Suku Anak Dalam in Jambi in which the life of such people has been dramatically endangered due to the transformation of the Taman Nasional Bukit Dua Belas and the Taman Nasional Bukit Tiga Puluh as the forest where this people are living in to become areas of palm tree plantation, forest concession for wood industry, and housing (Kompas 2008), or the contemporary issue happening to the Sedulur Sikep community in Pati, Middle Java, in which their land has been proposed to be transformed into a limestone mining area by the Semen Gresik company which is fully supported by the