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Mirza Satria Buana LLB; LLM

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Mirza Satria Buana LLB; LLM State Courts, Traditional Dispute Resolution and Indigenous Peoples in South Kalimantan: A Socio-Legal Study Mirza Satria Buana LLB; LLM. A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2017 TC Beirne School of Law Abstract This thesis investigates the issues of recognition and protection of indigenous peoples through the local perspective from the Province of South Kalimantan. In Indonesian law, one of the essential prerequisites for recognition of indigenous peoples is an ability to reconcile disputes arising within their indigenous areas. The prerequisites are formally stated in State legislation. Without this essential prerequisite, indigenous peoples are considered as not having ‘legal and political’ elements, only ‘cultural’ elements, which are inadequate to be granted legal status. To settle disputes arising within their own indigenous areas, indigenous peoples use Traditional Dispute Resolution (TDR) which employs cultural, sociological and legal approaches. Indigenous peoples and TDR are under a great burden to become more formalised, because the Indonesian government tends to impose the typical western concepts of a ‘legally-based’ status on indigenous peoples and a ‘tribal court’ on their TDR. Legal formalism contributes to this mindset by controlling almost all aspects of indigenous peoples, particularly their legal recognition. The government will only recognise indigenous peoples as having legal status if they have a formalised TDR, namely peradilan adat or a tribal court. Moreover, State Courts merely employ legal analysis while disregarding a socio-cultural analysis of indigenous peoples’ issues, which may cause injustice. Meanwhile, indigenous peoples whose TDR does not adopt a ‘legal’ approach are not legally recognised as ‘a distinct group’, thus the cultural and sociological approaches of TDR are weakened. The process of recognition of indigenous peoples based on the state’s prerequisites is thus state-centred as the government makes a subjective assessment in identifying indigenous peoples. This condition provokes tension between legal formalism within State law and legal pluralism supporting adat law in general, and State Courts and TDR in particular. This thesis investigates how both the State Courts and TDR settle disputes involving adat law and indigenous peoples within their respective jurisdictions, with a view to finding ways of addressing the tension between legal formalism within State law and legal pluralism supporting adat law and TDR. In order to answer these questions, this thesis applies both a legal and a social science perspective, and a legal and historical analysis of legislation and court decisions. Data from interviews which demonstrate legal reasoning processes are presented in order to give an empirical dimension to judgment analysis. This thesis also shows law in action, by demonstrating how the tribal chiefs and judges implement their policies and approaches to settle disputes. ii It is argued in this thesis that in regard to the implementation of legal pluralism, state linkage is needed to validate living laws via ‘rules of recognition’, either through legislation or court decisions. State law pluralism becomes the more realistic option for Indonesia. It is argued that indigenous peoples would obtain greater protection and benefit if legislators and judges used a pluralist approach which considered adat law alongside legislation. Moreover, the western- formalistic definitions being used to depict the characteristics of indigenous peoples and their TDR need refinement. The formal definition and criteria of indigenous peoples have been used as barriers to the recognition of indigenous peoples. This thesis suggests a more inclusive concept of indigenous peoples. iii Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. iv Publications during candidature Mirza Satria Buana, ‘Living adat law, Indigenous Peoples and the State Law: A Complex Map of Legal Pluralism in Indonesia’ (2016) Vol 1, 3 International Journal of Indonesian Studies 104-119. Publications included in this thesis Mirza Satria Buana, ‘Living adat law, Indigenous Peoples and the State Law: A Complex Map of Legal Pluralism in Indonesia’ (2016) Vol 1, 3 International Journal of Indonesian Studies 104-119. It was partially incorporated in Chapter 1 and 2. Contribution Statement of contribution Mirza S Buana (Candidate) Wrote the paper (100%) Contributions by others to the thesis No contributions by others Statement of parts of the thesis submitted to qualify for the award of another degree None v Acknowledgements After more than 4 years, this thesis is finally re-submitted. I personally believe this PhD is not only an intellectual exercise, but more a ‘spiritual journey’. It enriches me academically and spiritually. This PhD thesis would not have finished without the help and support of number of individuals and institutions. First and foremost, I would like to acknowledge my principal supervisor Professor Jennifer Corrin and secondary supervisor Associate Professor Ann Black. I also would like to thank to my proofreaders, Loretta de Plevit and Annaelle Barnes. My thanks are also due to the authority of the Lambung Mangkurat University, Banjarmasin, Indonesia for granting me study leave in Australia for the completion of this work. My PhD study was funded by Aus-AID through the Australian Leadership Award Scholarship (ALAS) Program in 2012. I would express my gratitude to Aus-AID for this wonderful opportunity to study in Australia. I am indebted to my friends in Brisbane, particularly Winter Travellers 2012, and the UQ Indonesian Student Association (UQISA); thank you for being my family away from home. I owe a debt of gratitude to all friends who helped me during my fieldwork in Kotabaru, Barabai (South Kalimantan), Jakarta, Semarang, Bandung, Yogyakarta and Rembang. My special thanks to my key informants. This PhD thesis would have been impossible without the help of my informants who trusted me to share their knowledge, experience and opinions. Finally, I would like to acknowledge my father, Saladin Ghalib and my beloved mother Sri Ellya Krasna, thank you for the gift of education. This thesis would not have been completed without the constant moral support of my beloved wife, Ira Setiana Khairunnisa and my first son, Daniel Muhammad Buana (born in 2015). This thesis is dedicated to their love and support. Banjarmasin, 2017 Mirza Satria Buana vi Keywords state courts, traditional dispute resolution, adat law, legal formalism, legal pluralism Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 180119, Law and Society, 50% ANZSRC code: 180120, Legal Institutions (incl. Courts and Justice Systems), 50% Fields of Research (FoR) Classification FoR code: 1801, Law, 80% FoR code: 1899, Other Law and Legal Studies, 20% vii TABLE OF CONTENTS ABSTRACT ……………………………………………………………………………………. ii DECLARATION BY AUTHOR ……………………………………………………………… iv PUBLICATION DURING CANDIDATURE ...……………………………………………… v PUBLICATION INCLUDED IN THIS THESIS ……………………………………………. v CONTRIBUTION BY OTHERS TO THIS THESIS ………………………………………... v STATEMENT OF PARTS OF THIS THESIS SUBMITTED TO QUALIFY FOR THE AWARD OF ANOTHER DEGREE ……………………………………………... v ACKNOWLEDGEMENT …………………………………………………………………….. vi TABLE OF CONTENTS ……………………………………………………………………… viii LIST OF TABLE ………………………………………………………………………………. xiv LIST OF ABBREVIATIONS …………………………………………………………………. xv GLOSSARY ……………………………………………………………………………………. xvi CHAPTER 1 – INTRODUCTION ……………………………………………………………. 1 I INTRODUCTION ……………………………………………………………………………. 1 II RESEARCH QUESTIONS …………………………………………………………………… 5 III RESEARCH SCOPE …………………………………………………………………………. 6 IV RESEARCH APPROACH AND METHODOLOGY ……………………………………….. 6 A Collection and Analysis of Documents…………………………………………………. 7 B Interviews………………………………………………………………………………... 9 1 Interviews in State Courts…………………………………………………………….. 10 2 Interviews in Indigenous Peoples’ Villages…………………………………………... 12 C Observation and
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