|Anthropological Approach to State Law and Customary Law/Custom in the Post-Suharto Era|
|TAKANO Sayaka ★|
On January 27, 2008, the news of former Indonesian president Suharto's death was announced to the world. During his regime, a strong central administrative framework was established, but by the 1990s, strains on this framework were surfacing in the form of economic instability and uprisings calling for democratization, with an influence that began to have a major impact on various areas of society.
On January 27, 2008, the news of former Indonesian president Suharto's death was announced to the world. Even though a decade has passed since his resignation, in Indonesia the debate over his successes and crimes has grown even more active. During his presidency, a strong administrative framework was established with the goal of ensuring stability and development. By the 1990s, however, distortions in this structure had led to a backlash, in the form of economic instability and uprisings calling for democratization. The fall of the regime in 1998 was followed by a rapid decentralization movement, with an influence that had a major impact on various areas of society. Naturally, this has drawn significant attention from scholars studying Indonesia.
Decentralization, Adat (Custom), Hukum (Law)
The most direct change brought about by decentralization involved
the role of local governments following the weakening of presidential
power, a topic that has been vigorously studied by political scientists.
On the other hand, the ways in which this decentralization of power
has affected people's lives is also of potential interest. Looking
at these trends in the decentralization of power, the movement of "adat
revivalism," which has taken place in various regions across Indonesia,
has emerged as one of the focal issues.
While normally translated as "custom," the Indonesian word
adat is a broad concept that has the meaning of tradition, ritual,
and culture. The decentralization of power has awarded adat a new position.
Under the centralized regime, there was a tendency to avoid shedding
light on the differences between each ethnic group in the name of adat
because it was considered that this could potentially encourage such
groups to act against the regime, leading to its breakup. However,
in recent years, a movement to reevaluate adat, considered to be on
the verge of disappearing in the midst of modernization and globalization,
is growing stronger in every region of the country.
Adat, which is currently undergoing a major transformation, was first
established as a subject of research in the early 20th century by Dutch
legal scholar Cornelis van Vollenhoven. At the time, van Vollenhoven
argued, from a position critical of measures directed at the enactment
of a common legal code for all of the Dutch East Indies, that the diversity
of adat in various regions should be taken into consideration. The
Dutch school of customary law, centered around van Vollenhoven, produced
a vast accumulation of research on "adat law." Starting from
criticism of what is referred to as the study of substantive law, which
focuses on statutory law, this was a major contribution to the development
of legal anthropology, a field that treats customs and standards as
equivalent to national laws.
As mentioned earlier, however, with the later growth in the influence of state law under the Suharto regime, the relative influence of adat weakened, doomed to eventually be confined to the realm of tradition and culture. With the refocusing of light on the word "adat" within the trend toward decentralization, what is the relationship between adat and hukum, a law that represents centralization? This is the subject of the investigation that the author has been pursuing in the field of the district court, a contact point between hukum and adat.
Medan District Court, North Sumatra
The research site is the city of Medan, North Sumatra, the largest city on Sumatra Island with a population of over two million. Medan is inhabited by a mixture of Javanese, Chinese, Batak and people of various other ethnic backgrounds. The district court, located in the city center, is a rather imposing building constructed during the colonial era. It is seen as a place to be avoided if possible, and many people do not know where it is located. The position of the district court, however, has also changed over the past 10 years; in some cases one can catch a glimpse of struggles between the central government/state and traditions, through, for example the lawsuits concerning land ownership described in the following section.
Dispute over the Concessions by the Sultanate
Lawsuits have been filed by descendants of the royal family of the
Deli Sultanate, who ruled Medan and its surrounding areas from the
17th to 19th centuries. Also involved in this dispute are indigenous
peoples' organizations, which have made claims for rights based on
BPRPI is an organization that has been disputing the nationalization
of the ancestral "adat land" in the area adjacent to Medan
since just after the independence of the Republic of Indonesia. Its
criticism has been targeted at the national plantation company which
continues to own the land, as well as the Indonesian government, which
has approved this ownership. It has carried out protests centered on
demonstrations, as well as more radical direct action, including mass
relocations into the disputed land. In addition, since 1999 its members
have found grounds to support the legitimacy of their claim within
the global movement for the protection of indigenous peoples.
At the time the BPRPI joined the indigenous peoples' movement, the
Deli Sultanate and other interested groups, who had become increasingly
active around the same time, were introducing new perspectives into
the land dispute. It was not the nationalization of the plantation
land that they saw as the problem. Rather, the problem as they saw
it was that the land had been resold during the process of nationalization,
in spite of the fact that the nationalization was an extension of the
usufructuary right to extract profits from the land. In this case,
adat receded into the background, and the problem became whether a
particular plot of land was originally "concessions", land
leased by the sultanate.
The logic of the ancestral "adat land" articulated by BPRPI
in support of its position has reached an impasse due to the difficulty
of clearly identifying land boundaries and the agents of communal ownership.
In the latter half of the 2000s, the BPRPI, aiming to break the deadlock,
and those alongside the Sultan, hoping to strengthen evidence for its
position, may grow closer together, resulting in a tightening of cooperative
relations. As a result, the concessions by the sultanate are becoming
a point of contention, with the chain of lawsuits dragging out due
to the problems caused by this form of legal procedure, which goes
back as far as the 19th century.
What these lawsuits show is the complicated relationship between hukum and adat, namely that in order to claim rights stemming from ancestral adat, one must rely on hukum.
In this way, amid the major transformation toward the decentralization
of power, a process is taking place not of hukum or adat being completely
subsumed by the other, but rather of the pair becoming co-dependent
on each other while maintaining their respective originality. Furthermore,
while not addressed in this manuscript, the introduction of new theories
such as ADR (alternative dispute resolution) are making the situation
yet more complicated. The author plans to keep a close eye on developments
within this situation.
(PhD Program, Graduate School of Arts and Sciences,
The University of Tokyo) 6.Feb.2008