Corresponding Author: Asnat
Juljana Luturmas
E-mail: [email protected]
INTRODUCTION
Every society in the world believes that territory and
worldviews have a deep and noble wisdom value, become a source for its society
and are followed as a culture for its citizens. This wisdom is then adapted to
continue and form knowledge of structured tools so that it is a necessity that
the importance of the presence of structures in society also provides
protection for the territory and also for the survival of the community within
it. The UN Declaration on the Rights of Indigenous Peoples refers to indigenous
peoples as "peoples" with the right to self-determination. ILO
Convention 169 of 1989 explains that indigenous peoples have the right to self-determination
(Buana, 2017). Based on this right, they freely determine their
political status and freely develop their economic, social and cultural
progress. In addition, indigenous peoples, in exercising their right to
self-determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means to fund
their autonomous functions.
In Paraguay, the Committee of Experts noted that
statistics conducted by the government since the 2002 census show the
indigenous population in the country by region and ethnic group. In Mexico, in
a government report, the indigenous peoples of Mexico constitute the largest
number in Latin America, as estimated by the National Council of Population
(CONAPO) from a survey of 12.7 million people comprising 62 indigenous peoples.
In northwest greenland for the expansion of thelu airbase in May 1953 the ummannaq
people claimed special rights to land in the greenland region, and it was
questioned at the time whether the ummannaq people were indigenous with clear
title to the land or whether they were part of the wider indigenous peoples of
greenland. In Nepal, the NFDIN and the umbrella organization of indigenous
peoples, the Nepal Federation of Indigenous Nationalities (NEFIN), are
organizations of representation, consultation and participation. It is believed
that with these organizations, they can occupy national organizations and their
administrators can be key holders of indigenous consultation and participation
processes. If some communities feel under-represented by organizations they
will tend to seek recognition as indigenous peoples themselves to gain better
access to government (Davidson et al., 2010).
The importance of the existence and recognition of
indigenous governance structures is directly linked to the rights of indigenous
peoples themselves, by Supreme Decree 23858 (1994). The criteria outlined in
ILO Convention 169 define indigenous peoples as: peoples descended from
populations settled before conquest or colonial times and within national
boundaries. Having territorial boundaries, having a common history,
organization, language or dialect and cultural characteristics; paying
attention to territorial attachment in the sense of managing habitat and
social, economic, political and cultural institutions. It turns out that
understanding the existence of indigenous peoples is not enough because the
important thing to strengthen recognition of the territoriality of indigenous
peoples is the existence of their customary governance structures, so this
needs to be considered for continuity and regulation in the legal order of the
state, especially in Indonesia, which implements the application of local wisdom
in the implementation of good governance.
It is explained that because maintaining national
security in Indonesia requires policies that regulate the management of land,
waters and airspace and have supported the development of Indonesia's national
resilience (Suwarno et al., 2021). The author feels that this previous research cannot
be considered to answer the territorial protection of indigenous peoples. As we
know that in the implementation of a government that has diverse patterns and
characteristics of culture and customs, the thing that should be strengthened
is actually a customary government structure based on local wisdom as a form of
protection for the territorial layer below, even this needs to be supported by
guarantees of legal certainty. It is clear that there are government affairs at
the central level and at the regional level, which at the regional level must
not exceed the authority at the central level (RI, 2020). The position of indigenous villages/villages is
actually very important, especially there are zones of indigenous territories
which from the point of view of indigenous peoples have strong ties to their
existence in an area both on land, sea and in the air including under the sea (Margie Elza Maciline
Tahapary, 2020). In fact, there is often a problem of disparity
between the central government as a stakeholder and the government in the
regions, this can be caused by the limited space of indigenous peoples'
territories that have not been regulated in the Republic of Indonesia so that
there are often many problems whose information for the community cannot be
accepted by them to do so (Gordan et al., 2024).
The theory explains that the powers that are higher
than the customary law community are powers that cover areas that are wider
than the territory of one legal community such as the powers of kings, heads of
curia, nagari and so on (Siombo & SH, 2016). In addition, Prof. Djojodigoeno in his book
Principles of Customary Law writes that the basis of Indonesian customary law
is the conclusion of the power of the state government or one of its joints and
the power of the community arises directly as a statement of the culture of the
indigenous Indonesians, strictly speaking, as a statement of a sense of justice
in a selfless relationship (Djojodigoeno, 1958).
It seems that policies alone are not enough to solve
problems that become issues in society, because indigenous peoples in their
existence in the territory of Indonesia already have control of land, waters
and airspace and even land under the sea. This is because they are born in an
environment that is bound by blood and territorial terotirial or territorial
genelogical within the power of the alliance, so that actually policy is not
enough as in previous research conducted by dhiani but there must be strengthening
of structures that recognize the existence of government both in villages and
in traditional villages/other names, it is just that it is felt that it has not
been maximized and it is also possible that some have regulated well but some
have not regulated well the continuity of government structures in the village.
It is clear that both the past research of Soerojo
wignjodipoero, Prof. Djojodigoeno and the research conducted by dhiani
puspitawati indicate the importance of a territory that is strengthened by the
existence of customary governance structures based on local wisdom. It can be
clearly seen that Indonesia is a country that is luxurious in its diversity in
the regions with the basis and nature of Indonesia.� This research is so important because the
current target of regional autonomy is to advance the region at the lower level
with the provision of various funding support and legal guarantees, especially
the implementation of government at the village/customary village level, while
in reality the most difficult thing is also how to overcome the impact of
ownership of territories that recognize territorial autonomy so that it is
necessary to strengthen the position of structures at the village/customary
village/designation according to the area of origin which becomes local wisdom.
Based on the background
description above, the purpose of this research is to review and analyze the
importance of the existence of local wisdom-based customary governance
structures in supporting the territorial recognition of indigenous peoples in
Indonesia, as well as exploring policies and laws that support or hinder the
implementation of customary governance. The benefits of this research are to
provide policy recommendations that can strengthen the position of indigenous
peoples in the national government structure, as well as provide a deeper
understanding of the relationship between local wisdom and good governance in
Indonesia. This research is also expected to serve as a reference for policy
makers in formulating regulations that are more inclusive and favorable to
indigenous peoples, so as to create a balance between national interests and
the rights of indigenous peoples.
METHOD
The approach used
in this research is the non-doctrinal approach method (Wignjosoebroto, 2002), especially the micro approach as a meaningful reality developed
by interactionists (Wignjosoebroto, 2002). For this reason, the Strengthening of Customary
Government Structures Based on Local Wisdom in Protecting the Territorial
Rights of Indigenous Peoples will be studied, as a study area in Maluku
Province, especially in the Kei Islands and in Ambon City, whose studies
include: 1). Formulating the importance of strengthening customary government
structures based on local wisdom 2). Establishing a customary government
structure based on local wisdom in protecting the territorial rights of
indigenous peoples.
RESULTS AND DISCUSSION
Strengthening Indigenous Governance Structures Based on Local Wisdom
Recognition of the Enactment of Customary Governance Structures
In article 1 paragraph (1) of the 1945 Constitution, the
State of Indonesia is a unitary state in the form of a republic. The principle
of a unitary state means that the supreme power over all state affairs is the
central government without any delegation or delegation of power to local
governments (Lubis, 2015).� Article 18
paragraph (1) of the 1945 Constitution which is the substance of the division
of regions in the Unitary Republic of Indonesia is divided into provinces, and
the provinces are divided into regencies and cities, each of which has a
regional government regulated by law. Ni'matul Huda added that the provisions
of Article 18 paragraph (1) have a close relationship with the provisions of
Article 25A regarding the territory of the Unitary State of the Republic of Indonesia
(Ni'matul Huda, 2014).� If we look at
the existence of these two articles (the provisions of Article 18 paragraph (1)
and the provisions of Article 25A), it is clear that the position of the
government is closely tied to the territory, especially when the government has
established a structure that is used as a form of recognition of inherent
authority. This is even the case at the village/indigenous village level of
government.
Article 18 of the 1945 Constitution before the amendment
or before the change in the chapter on regional government in its explanation
explains the division of Indonesian regions in provinces which are further
divided into smaller regions, there are regions that are autonomous (streek and
locale rechtsgemeenschappen) (Yamin, 2019).�
After the Second Amendment, Article 18B of the
Constitution of the Republic of Indonesia states, (1) The State recognizes and
respects units of regional government that are special or special in nature as
regulated by Law. (2) The State recognizes and respects the units of customary
law communities and their traditional rights as long as they are still alive
and in accordance with the development of society and the principles of the
Unitary State of the Republic of Indonesia, which are regulated by Law. From
this provision through the regulation of Article 2 paragraph (8) and paragraph
(9) of Law No. 32 of 2004 concerning regional governance states, (8). The state
recognizes and respects units of regional government that are special or
special in nature which are regulated by law. (9). The state recognizes and
respects the units of customary law communities and their traditional rights as
long as they are still alive and in accordance with the development of society
and the principles of the Republic of Indonesia. In the elucidation of this
article, for the principles of autonomy and assistance tasks, the
implementation of government affairs by the regions can be carried out directly
by the regional government itself and can also be assigned by the provincial
government to the district/city government and villages or assignments from
district/city governments to villages. As a note in the explanation of this
article there is also an understanding of regional competitiveness which is a
combination of factors of regional economic conditions, the quality of regional
public institutions, human resources, and technology, which as a whole builds
the ability of regions to compete with other regions. In this article there is
also the intention of explaining the regional relations that occur as a
consequence of the establishment and disposal of autonomous regions organized
in the territory of the Republic of Indonesia. Thus, the regional area is a
whole and unified state territory. This arrangement further emphasizes that in
the order of government in the region, in this case starting from the Province,
Regency/City to the village and in its development including indigenous
villages/other names, especially in the framework of the needs of indigenous
village structures/other names, of course, need to be clearly positioned
because it is also binding on the structure of government carried out. The
reality in the field in areas that are in accordance with the mandate of the
Constitution of the Republic of Indonesia and in accordance with the provisions
in the Village Government Law through its development up to the Village Law
should be a dual implementation of the government system between the needs of
the village government before the mandate of the Village Law and after the
mandate of the Village Law there is recognition for indigenous villages/other
names. As is known, in terms of legal position, the actual attachment between
the village government structure and the territory is limited to 12 nautical
miles, However, in the order of customary governance in the description of
customary villages/other names as in Maluku in 11 district/city administrative
areas with their government characteristics, there are also customary villages/other
names so that the position of the territory is based on the boundaries of
petuanan either individuals/families/families/fam/clans/alliances which in
their legal position are bound by the customs of indigenous peoples in their
territory which includes land, sea, air and even areas under the sea and/or sea
surface as far as the eye can see, as well as in air space. The position of
customary government institutional structures (customary villages/other names)
formed within the district/city is mutatis mutandis bound by the series of
government operations in the region.
Historically, villages/traditional villages/other names
are the forerunners of the formation of society and government in Indonesia (Supriadi, 2015). The community groups within the village are autonomous
institutions with their own deeply rooted traditions, customs and laws, and are
relatively independent from the interference of outside power entities (Rosidin, 2019).
The general elucidation of Law No. 6/2014 on Villages,
abbreviated as the Village Law, through an amendment to the 1945 Constitution
of the Republic of Indonesia, states the recognition of customary law
communities (Laike, 2019). It is clearly illustrated that in the Village Law there
is a combined construction of the function of self-governing community with
local self-government, which is the fact that customary law communities, which
have been part of the Village area due to the implementation of various laws,
must be reorganized in such a way as to become villages and customary villages/other
names (Herdiana, 2019). Through the Village Law, indigenous villages have
government functions, village finances, village development and receive
facilities and guidance from the Regency/City government (Maulidiah, 2016). In this position, villages and villages receive the
same treatment from the government and local governments. Therefore, at this
time, indigenous villages can make changes to the face and effective
governance, the implementation of effective development and community
development and community empowerment in their territory.
Indigenous villages/other names are in principle the
heritage of local community governance organizations that have been maintained
for generations, which are still recognized and fought for by leaders and
communities of indigenous villages/other names in order to function to develop local
welfare and socio-cultural identity (Nugraheni & Indarja,
2016). Indigenous villages have origin rights that are more
dominant than village origin rights since the indigenous village was born as an
original community in the community. An indigenous village is a customary law
community unit that historically has territorial boundaries and a cultural
identity formed on a territorial basis that is authorized to regulate and
manage the interests of the village community based on the right of origin (Timothy, 2018).� Basically,
customary law communities are formed based on three basic principles,
genealogical, territorial, and/or a combination of genealogical and
territorial. The determination of customary villages is basically guided by the
Law while still considering the dualism of determining customary villages in
indigenous communities that are bound by customary rules and territories, In
addition to the establishment of indigenous villages within the framework of a
government that is bound by administrative expanses of territory, the absolute
requirement for clear boundaries needs to be resolved by the presence of local
governments at the provincial and district/city levels to accommodate by
providing regulatory guarantees that support the implementation of indigenous
village governance as a rule of government, namely the existence of government
(standardized structures required by law and other regulations in addition to
customary structures bound in government containers), other devices, and
coupled with other institutions in the life of indigenous peoples such as
common feelings, property and customary governance institutions. In this case,
if the local government has not been able to facilitate the legal needs for the
implementation of customary governance structures, it can be implemented
properly by not conflicting interests between adat and positive law, but can
also include it in the decree of the customary village leader/other names, as a
bridge for harmonious implementation. This is actually a legal necessity in all
regions in the Republic of Indonesia which has not been clearly regulated and
often causes legal problems up to the court level for indigenous peoples who defend
their territory as referred to in Maluku petuanannya/territory claimed rights
based on territorial control from their father/family/fellowship.
Implementation of Customary Government Structures in Maluku
The guarantee of recognition of the unity of Masyarakat
Hukum Adat through the provisions of Article 18B paragraph (2) and in
accordance with the Village Law, has established that the need for customary
governance institutions is very important for regions within the Republic of
Indonesia which, although carrying out the construction of a combined function
of self-governing community with local self-government, still hold firmly to
their customary governance institutions as the right of origin and then continue
to carry out their customary governance structures which are still maintained
in the context that basically indigenous peoples are formed based on three
basic principles, genealogical, territorial, and/or a combination of
genealogical and territorial.
Maluku is one of the provinces that is varied in its
local wisdom, because administratively it consists of 2 cities and 9 regencies.
Geographically divided from large islands and medium to small islands,
including Ambon Island administratively divided into Ambon City and Central
Maluku Regency, and Seram Island which is often called the mother island is
divided into 3 districts; Central Maluku Regency, West Seram Regency and East
Seram Regency. Buru Island is administratively divided into Buru Regency and South
Buru Regency. Other Islands are the administrative areas of Tual City and
Southeast Maluku Regency, Aru Island which became Aru Islands Regency is a
Regency adjacent to Southeast Maluku Regency and Tual City, Saumlaki Island as
the administrative area of Tanimbar Islands Regency and the last is Lemola
Island (Leti, Moa Lakor) precisely on Moa Island Tiakur City as the center of
Southwest Maluku Regency. Meluku is a province that also has a diversity of
naming customary government structures in its designation and implementation,
which is tied to its territory. Kusumadi Pujesewoyo explains that adat, which
is the basis of community life, is passed down from one generation to another,
through a process of socialization (Timothy, 2018). And that process produces institutions. The point is
that indigenous peoples are essentially something that arises spontaneously in
a certain area, for this reason, human life has traditional ties according to
the structure (structure) that has been passed down from generation to
generation and there are advanced (modern) ties in the form of a regular
association organization, this tendency is strong among indigenous peoples
based on kinship, neighborliness or regionalism, so the process of forming customary
institutions is present to coordinate all these tendencies.
Soejono Soekanto provides an understanding of social
structure as a reciprocal relationship between social positions and between roles
(Soekanto, 1986). According to Teer Haar, talking about customary
institutions means talking about groups that have a fixed and eternal structure
and the people in that group each experience their life in their group as a
natural thing, a matter of nature (Soekanto, 1986). No one of them has the possibility to dissolve the
group.� By F. H. Utila that customary
institutions must be supported by the organizational structure of the village
government/customary village/other names in the development of law in Indonesia
(Pujesewojo, 1978).
Implementation of Customary Government Structure Based on Local Wisdom in
Maluku
Maluku as a province that is often called a thousand
islands, making the sea and islands a unified area until now, especially this
is clearly found in the position of the customary government structure that is
still maintained in 11 districts/cities. If observed, this customary government
structure is still implemented based on local wisdom even though it has not
been maximally implemented. It is undeniable that the 1999 incident that
occurred in Maluku has always been imagined as a religious conflict, and the
way it was resolved has also helped connect the red thread of the adat
government structure with the existence of religion as a solution, another fact
that the adat government structure contains blood ties beyond the basis that is
bound by the birth of the existence of religion in customary customs so that
the position of the adat government structure also bridges and answers that the
territory is not only in the aahal that can be seen in human nature but in
areas that are bound by the sacredness of traditional ceremonies. This kinship
relationship basically all negeri in Maluku have a customary government
structure called negeri/ohoi government structure led by the head of the negeri/raja
(Sumarsono, 1993). One example is in Ambon City in Maluku Province in the
chart below:
Figure 1. Customary
Government Structure called State Government Structure
With the enactment of
the previous Law No. 22 of 1999 on Local Government and Law No. 32 of 2004 on
Local Government, there were several adjustments in implementation, from
institutions such as the LMD which in the position of the structure applies to
the BPD and up to the existence of customary institutions in customary
governance, namely Saniri Negeri in Maluku in the Ambon City area, and the
leadership of the country from the Village Head to the title of Raja according
to the Village Law. Tuan Adat (Landlord) and Kewang and Malesi are structural
devices that make up the territory and the important role of MHA territories in
areas that are related to proof according to the law both positive law and
customary law are bound to that part of the territory. Another comparison of
the basic structure of Customary Government in the Kei Islands according to the
level or level of territory� (Silubun, 2020):
Basic Structure of Customary Government in Kei Islands
by level or region
A Lor or Ratskap is a collection of several Utan headed by a "Rat or
Raut" (King). Utan is one or more ohoi headed by a "Orang Kaya"
or Rongkai. While Ohoi is a settlement unit inhabited by several faams headed
by a "Soa Head" or Rengtu, thus forming a basic system of customary
government in the Kei Islands which is tiered according to the level of the
region.
Local Wisdom-Based Customary Government Structure in Protecting Indigenous
Peoples' Territorial Rights
Regional Guarantees in Strengthening the Position of Indigenous Government
Structures Based on Local Wisdom
Since the reformation, the second amendment in the MPR annual session in
2000 to Article 18 has resulted in several articles, one of which is Article
18B Paragraph (1) and Paragraph (2) of the 1945 Constitution of the Republic of
Indonesia which describes: the state respects and recognizes special local
government units and the unity of MHA and their traditional rights in
accordance with the principles of the Republic of Indonesia. The consequences
and legal guarantees provided by the 1945 Constitution of the Republic of
Indonesia mandate that every state regulation or legislation does not ignore
the rights of origin and original arrangements.
The guarantee of the continuity of the pluralism of village governance up
to the existence of indigenous villages was previously regulated in several
laws including: the enactment of Law No. 5 of 1979 concerning Village
Government, Law No. 22 of 1999 concerning Regional Government, Law No. 32 of
2004 concerning Regional Government, and the birth of Law No. 6 of 2014
concerning Villages, which is called the Village Law, not only provides legal
certainty but also provides a special place for indigenous villages or what is
called by other names. based on Article 1 Paragraph (1) of the Village Law
which emphasizes the elements of villages and indigenous villages or what is
called by other names, has territorial boundaries, there are government affairs
(Sukriono,
2010). The interests of the
community are based on community initiatives, rights of origin, and/or
traditional rights (local self-reliance) that are recognized and respected in
the system of government of the Unitary State of the Republic of Indonesia (Margie
Elza Maciline Tahapary, 2020). The legal requirements of
Article 97 Paragraphs (1) and (2) of the Village Law explain that the
establishment of a customary village must fulfill the following requirements:
the existence of a customary law community unit along with its traditional rights
that are actually still alive, both territorial, genelogical, and functional in
nature and customary government institutions (Valendani,
2015).� The importance of establishing and
structuring indigenous villages as mandated by the Village Law provides access
to regional policies to immediately carry out regional arrangements and
formulations in accordance with the continuity in the current MHA order.
Implementation of Customary Government Structures in Accordance with Local
Wisdom in Protecting the Territorial Rights of Indigenous Peoples
Article 1 paragraph (1) of the Village Law guarantees the implementation
of the right of origin and traditional rights in regulating and managing the
interests of indigenous peoples. Ahimsa Putra defines local wisdom as a set of
knowledge owned by a community that comes from previous generations as well as
from its experience in dealing with the environment and other communities, to
solve various problems and/or difficulties faced. This means that local wisdom
is dynamic and varied because in addition to being obtained from previous
generations, it is also enriched by various experiences and knowledge of the present
(Sukirno,
2024). to realize local security
stability between Law No. 23 of 2014 on local government and Law No. 6 of 2014
on Villages has not been fully supported by Law No. 30 of 2014 on Government
Administration, particularly in relation to the implementation of the Law on
Local Government. 30 of 2014 concerning Government Administration, especially
in the General Principles of Good Governance Article 10 paragraph (1) AUPB has
not contained local wisdom as an AUPB, because AUPB can be seen as unwritten
legal rules, especially in matters of government has a space of discretion, so
that a cultured country to avoid conflict requires a system that is regulated
definitively in its position as a law so that local wisdom must be a priority
of the legal ideals of the Republic of Indonesia. Basically, changes will
continue to occur, policies and autonomization are not a solution that touches
on the lowest level of society, because the important lesson is that to save
the territory of the Republic of Indonesia must start from regulating the
structure of customary government (customary village / other names) which is
part of its jurisdiction and inseparable.
CONCLUSION
The importance of the existence and
recognition of the existence of customary government structures is directly
connected to the rights of the indigenous people themselves, customary
government structures based on local wisdom as a form of protection for the
lower layers of territory, even this needs to be supported by guarantees of
legal certainty so that it is necessary to form Regional Regulations on
Customary Government Structures according to their territories along with their
authority. There is a need for territorial arrangements that elaborate between
customary territories and agrarian laws and sea area laws to maintain the
security, unity and unity of the territory of the Republic of Indonesia which
is measured from the territory of the Customary village or other designation.
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