24.Mar.2008
Anthropological Approach to State Law and Customary Law/Custom in the Post-Suharto Era
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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 adat.

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.

Conclusion

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.


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TAKANO Sayaka

(PhD Program, Graduate School of Arts and Sciences, The University of Tokyo) 6.Feb.2008