Mirza S Buana
T.C. Beirne, School of Law, the University of Queensland
mirza.buana@uq.net.au
Abstract
This paper examines the development of indigenous cultural rights in a pluralistic nation-state, Indonesia. The examination is conducted in both theoretical and historical-doctrinal aspects. The history of Indonesia’s legal pluralism discourse has fallen in and out of favour. Indonesia experienced harsh cultural segregation in the Dutch colonial era, and overly-formalistic attitude resulting into a top-down network of legal centralism in Suharto authoritarian regime. Today’s State law mingles with diverse customary laws, namely adat laws and other indigenous traditions. The relationship is dynamic, in which they are likely to interact, overlap or even clash. Constitutionally speaking, the State law and administration embrace the idea of legal pluralism by acknowledging indigenous peoples’ rights including their cultural right. The latest legislation which is considered as a culturally-driven legislation is the 2014 Village Law which recognises indigenous villages as ‘semi-autonomous social fields’.
On paper, indigenous peoples can exercise and preserve their genealogically-based rights, including their indigenous traditions. However, the Law does not simply lessen the tension between State law vis-a-vis adat law and indigenous peoples’ aspirations, because before indigenous peoples can enjoy their rights, they must undergo bureaucratic procedures delegated to local government for the recognition of indigenous village. As a result, until now there have been no indigenous villages that have been recognised. The local government argues that the State procedure is still needed for assessing ‘cultures’, whether the culture is constructive or not. In this decentralised setting, the locus of the problem is in local administration. In this respect, embracing legal pluralism alone is insufficient. Thus, this paper argues that the governance network theory can contribute to the development of legal pluralism and advocacy of indigenous peoples’ rights by creating a culturally-responsive public policy.
This paper aims to illustrate what values of governance network theory that can contribute to the process of culturally-responsive public policy. By having a more inclusive public policy, the tension between State law and indigenous peoples’ aspiration can be lessened. This paper examines the case with a purpose to provide alternative and transformative approaches for managing pluralism.