Indonesia The case of Bali

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I.4. Research Methodology

This research is using normative methodology with the primary and secondary sources of law. The primary sources of law are contained cases law, international instrument and statutes Acts and Local Regulations. The secondary sources of law are journals, books and articles internet. This collaboration research is using the comparative approach, the fact approach, the case approach and the statute approach. Those sources of law are collected by card systems. The facts, cases law and the sources of law are analyzed in qualitative. The researcher are collected those materials, explained the relationship between the facts and the sources of law and made some law argumentation for the legal issues in this research. II. How are Indonesia the case of Bali and Australia protecting the indigenous culture? II.1. International Instruments Both Bali and Australia derive some of their domestic laws pertaining to indigenous peoples from international instruments. Jointly they have ratified the International Covenant on Economic, Social and Cultural Rights 1966 ICESCR 7 and endorsed the United Nations Declaration on the Rights of Indigenous Peoples 2007 UNDRIP 8 . In addition to the ICESCR and UNDRIP the International Labour Organisation ILO Convention on Indigenous and Tribal Populations 1957 No. 107 9 and the ILO Convention on Indigenous and Tribal Peoples 1989 No. 169, although not ratified, are indicative of how the international community views the economicsocialcultural rightsstatus of indigenous peoples. It is often the principles espoused in these instruments that have been implemented in domestic laws.

II.2. Indonesia The case of Bali

Bali is one of the Indonesian provinces which have a lot of Desa AdatDesa Pakraman Indigenous Village as well as being a favorite tourist destination in the world. Indigenous 7 Indonesia ratified the ICESCR on 23 February 2006 8 Australia endorsed the declaration in 2009. 9 This conventions was a first attempt to codify international obligations of States in respect indigenous and tribal populations 5 peoples as the member of Desa Pakraman in Bali or other Indigenous Villages in all over the world exist and are recognized at the International level. In Indonesia, there are some regulations which govern the indigenous peoples and their rights. According to Stufenbau Theorie by Hans Kelsen, there is a hierarchy of regulations and the basis of legislation drafting is from the higher law. It is ongoing until the grundnorm as the basic norm. 10 The Indonesian systems of law adopted that theory to draft the Indonesian legislations. It reflected in Article 7 paragraph 1 of the Indonesian Legislations Drafting Act No. 12 Year 2011: the hierarchy of Indonesian Rules are Indonesian Constitutions 1945 UUD 1945, Decree of the People’s Consultative Assembly Ketetapan Majelis Permusyawaratan Rakyat, Act Undang-UndangPeraturan Pengganti Undang-Undang, Government Regulations Peraturan Pemerintah, President Regulations Peraturan Presiden, Province Legislations Peraturan Daerah Provinsi, Regency Legislations Peraturan Daerah KabupatenKota. The source of law of the Indonesian legislation is Pancasila which is the basic norm of the Indonesian regulations. 11 There are four directly relevant regulations related to the indigenous peoples and their culture. The most significant law is the Indonesian Constitutions 1945. Desa Adat and their indigenous peoples are recognized and respected under the Indonesian Constitutions 1945. 12 It means all of the Desa Adat in Indonesia which existed prior to Indonesian independence are recognized and respected under the Indonesian Constitutions 1945. Desa Adat and their indigenous peoples have the same rights and obligations as other Indonesian peoples. They have civil, political rights and economic, social cultural rights. According to Indigenous culture related to the economic, social and cultural rights are govern in Article 28 C paragraph 1 13 , Article 28 I Paragraph 3 14 and Article 32 15 of the Indonesian Constitutions. It means the Balinese indigenous peoples could maintain, develop and enjoy the benefitsof culture. 10 Kelsen, Hans, General Theory of Law and State, With a new introduction by A. Javier Trevino New Brunswick [U.S.A] London [U.K], 3 rd printing, 2009. xxvii 11 See Article 2 of the Indonesian Formatting Regulations Act No. 12 Year 2011 12 It reflected in Article 18 B paragraph 2 : “The state shall recognize and respect customary law hukumadat community units along with their traditional rights insofar as they are still in existence and are in conformity with the development of society and the principle of the Unitary State of the Republic of Indonesia, as regulated by law” 13 Every person shall have the right to develop himherself through the fulfillment of their basic needs, shall have the right to obtain education and to enjoy the benefits of science and technology, arts and culture, for the enhancement of the quality of their life and for the welfare of the humankind 14 The cultural identity and the rights of traditional communities shall be respected in conformity with the development of time and civilization 6 Second is the Indonesian Human Rights Act No. 6 Year 1999, specifically Article 6 paragraphs 1 and 2: 1 In the interests of upholding human rights, the differences and needs of indigenous peoples must be taken into consideration and protected by the law, the public and the Government; 2 The cultural identity of indigenous peoples, including indigenous land rights, must be upheld, in accordance with the development of the times. The Act is giving protection to the differences and needs of indigenous peoples including the cultural identity and indigenous land rights on basis on human rights. If there is an individual, group of peoples or stakeholders do not respect and protect the existence of the indigenous peoples then they breach the human rights. Third is the Indonesian Tourism Act No. 9 Year 2010. According to Article 1 5 of the Indonesia Tourism Act: Tour attraction power shall be all matters having uniqueness, beauty, and value in the form of variety natural wealth, culture, and the man made product as the target or objective of the tourists visit. The culture is being the power of tour attraction in Indonesia. As the power of the tour attraction, the indigenous peoples could take a part to maintain and develop the culture. 16 The development of the culture is based on Indonesian Tourism principles with due observance with the diversity, uniqueness and typical culture and nature, and the human needs for tourism. 17 The Balinese Province Legislation No. 2 Year 2012 as the fourth regulation that governs about Balinese Cultural Tourism. The objectives of the Balinese Cultural Tourism are to conserve Balinese culture which imbued by Hindhu values, to increase economic growth, to increase social welfare, to create employment, to conserve the nature, environment and resources. 18 From those objectives, the primary basis of the Balinese Cultural Tourism is culture itself. If the Balinese culture is maintained in goodly it would be increase social welfare and create the employment. It means the culture has commercialeconomic value. In fact, the cost of 15 The state shall advance the national culture of Indonesia amidst world civilization by guaranteeing freedom to the society in preserving and developing its cultural values 16 See Article 5 e of the Indonesian Tourism Act 17 See Article 6 of the Indonesian Tourism Act 18 See Article 3 of the Local Regulation of Balinese Province No. 2 Year 2012 concerning Balinese Cultural Tourism 7 daily ceremonies that spent by the Balinese indigenous peoples to preserve the culture is not giving the benefit to them. The benefits are going to flow only to the Government and the private sector. That injustice condition is caused by no regulation has treating the culture as an economic resource.

II.3 Australia