There have been significant changes introduced to the Indonesian Constitution with respect to the existence of the traditional community in Indonesia. The amended 1945 Constitution entails two provisions, Article 18 B and 28(3) that are relevant to the indigenous communities. Article 28(3) safeguards the rights and identities of the traditional communities and this recognition and respect is valid so long the traditional communities acts in conformity with the principle of the Unitary Sate of Indonesia and shall be regulated by law. Article 28(3) stipulates that the cultural rights and identities of the traditional communities shall be recognized and respected with the development of time and civilizations[1].
A closer look at Article 18 of the amended constitution and its former version clarifies the intention of the legislature which is to respect and recognize the rights, existence and democracy of several regions of Indonesia along with their diverse traditional culture. This amendment implies that the Constitution guaranteed the existence of the traditional community under any circumstances[2]. However, the effect of the amendment made in the Indonesian Constitution was that the rules embedded in the constitution guaranteed to safeguard the traditional communities so long they are in existence that is, so long they could live which implies that the amendment lacked complete absence of commitment to maintain and safeguard The Traditional Communities.
The emptiness of the statute governing the adat community as embedded under Article 18B has caused the legal capacity and status of the adat community to remain vague which caused the community to be unable to develop their community economically. This vagueness or uncertainty causes the third parties to doubt the legal status and capacity of the adat community. Hence, they usually feel reluctant to conduct economic activities or business with the traditional community. However, the situation has been improved owing to several researches performed by universities and the outcome of such research with respect to the status of the adat community as a legal entity can be observed in Bali[3]. In Bali the traditional community are entitled to enjoy full legal capacity in fair dealing business relation.
However, in Bali, the local government has maintained the spirit of the former constitution and in order to keep the original existence of the traditional community, the Government of Bali has amended the Province Government of Bali to the effect that the statute respects and recognizes the state over the adat community including their diverse cultural rights. The Province Government of Bali has also adopted Financial Institution of DESA Adat (FIDA) which is known as the Lembaga Perkreditan Desa. The act governing the adat community in Bali has improved the legal status of the adat community in Bali where the traditional communities enjoy full legal status as a legal person[4]. Most of the desa adat who own business cooperates with the private sector or the government and the state law of contract governs the business dealing between the parties and the customary law governs the internal affairs of the desa adat subject to certain restrictions.
Legal pluralism refers to the situation where there is an existence of the distinct legal systems or laws within a particular country. Legal pluralism can exist without recognizing the dominant legal system as was the case of the aboriginal customary laws after the British settlement in Australia or the legal pluralism can exist in a recognized way as is the case for several countries where their legal system recognizes the indigenous customary law beyond the introduction of the legal system introduced by colonization.
Legal pluralism implying the recognition of multiple obligations and laws refers to a description of variety of legal techniques that can be used to accommodate the fact of diversity whether in terms of belief, culture or geographic separation. Hence, it is neither desirable nor an undesirable concept[5]. In a country, where distinct value systems, social structures or cultures coexist, it will often be enviable for the dominating legal system to take steps to respect, recognize, and adjust with the different value systems.
The recognition, although limited, of the existence of traditional customs and laws in Australia has paved the way for increased acceptance and use of the indigenous customary law within the common law. Nevertheless, the existence of legal pluralism has also led to several social and legal complexities that restrict the efficacy of the indigenous law in Australia. The recognition of the indigenous customary laws within the common law system is evident from the Mabo Case where the concept of the terra nullius was rejected and the customary laws was accepted and recognized[6]. This form of pluralism is often referred to as ‘weak pluralism’ as the common law system of Australia was superior to the Indigenous customary law.
The existence of different legal systems in the Australia disabled the indigenous people to satisfy the requirements of the common law system that must be fulfilled in order to establish the customary laws of the indigenous groups. Although the customary laws of the indigenous people has been recognized by the Common law but due to the lack of any formal legislation or policy for recognizing the admission of evidence of Indigenous customs and laws[7]. It makes it difficult for the aboriginals to establish their laws to be customary owing to the uncertainty in the process as was held in the Yorta Yorta v Victoria [2002].
The limited recognition of the customary law have created a type of legal pluralism as there is no formal legislation that accepts the admission of their customary laws and they have to fulfill the requirements of the common law system to accept the admission of their customary laws. The superiority of the common law system over the customary laws has caused several Indigenous tribes to lose their connection to the land owing to the difficulty in establishing their customary laws under the common law system.
The establishment of the Majelis Utalis Desa Pakraman has not created any type of stare decisis form of authority in the Balinese customary law[8]. Despite the fact that the Constitution affords an autonomous right with respect to the indigenous community, it must be ensured that these rights should not be in conflict with the constitution of Indonesia as a state. The indigenous communities are subject to restrictions that are imposed by the constitution and the local government of Bali is no exception to those restrictions although it has managed to enact certain legislations such as the Financial Institution of DESA Adat (FIDA) which is known as the Lembaga Perkreditan Desa.
The Majelis Utalis Desa Pakraman plays the role of a mediator with respect to several customary cases. The purpose of the role is to reinstate the harmony in the Pakram village and is not related to litigation, which is a common practice that that is prevalent in modern courts of law[9]. It acts as a dispute resolution that facilitates the parties to dispute to avoid the legal costs that is incurred while hiring a trained lawyer and it also spares the indigenous) involved from being trialed by a sophisticated legal Judge who has inadequate knowledge about the community and its laws[10]. The Majelis Utalis Desa Pakraman mediates cases which cannot be solved at the village level and this process of resolving disputes is different from the resolving cases by applying the doctrine of stare decisis as in the former case, the case is resolved by the religious and traditional leaders; whereas in the latter case, the case is solved by well-trained lawyer who has received western education.
Since the Majelis Utalis Desa Pakraman deals with cases that are not resolved at the village level it does not at all establish the doctrine of stare decisis or precedent. The doctrine of precedent may be defined as legal principle that determines litigation in accordance with legal precedent which is a common practice under the Common Law System. However, Indonesia as a country with its Dutch history of colonization and patterns of the civil legal system’s family and contrary to precedent doctrine, although Bali is autonomous but the decisions taken under Balinese customary law are neither binding nor enforceable[11]. To sum up, although cases that are referred to MDP against the decisions taken the high court of the village are binding upon the lower court of same jurisdiction, the establishment of the Majelis Utama Desa Pakraman does not create any form of stare decisis or the doctrine of precedent.
The case of Yorta Yorta Aboriginal Community v Victoria (Yorta Yorta) is a significant case involving customary law in Australia. In the case, the Yorta Yorta people claimed a native title to an area of waters and land in Northern Victoria and Southern New South Wales and the Federal Court had dismissed such claim. The claim was dismissed on the ground that the evidence presented before the court established the fact that the Yorta Yorta people had ceased to occupy their traditional lands in accordance with their traditional customs and laws that was in existence prior to the end of the 19th century[12]. The court further asserted that ‘the tide of history has indeed washed away any real acknowledgement of any original observance of their traditional customs and their traditional laws.
The Yorta Yorta people appealed before the High Court claiming that the trial judge had erred in requiring the claimants to establishing continuous acknowledgement and observance of traditional customs and laws with respect to land. The High Court had considered the meaning of the phrase ‘traditional laws and customs’ while reading its decision. The High Court considered section 223(1) of the Native Title Act which states that in order to claim native title of the Aboriginal peoples or Torres Strait Islanders in relation to the land and waters, the Aboriginals must establish that their rights and interest with respect to such land and waters acknowledges the traditional customs and laws and there is an observance of their customs.
The court further emphasized that the term traditional does not imply any right that is transferred by word of mouth from one generation to another; rather traditional laws and customs must be based in pre-sovereignty laws and customs that is observed and acknowledged by the ancestors of the claimants during the acquisition of the European sovereignty[13]. The claimant stated that due to the European settlement there have been changes in the way the Yorta Yorta used to exercise their laws and customs. In the case, the evidences signified that in the 19th century the Yorta Yorta people had ceased to occupy their land in accordance with their traditional laws and customs and they have also ceased to function as a recognizable traditional community.
The Court held that in case there is a significant change in the laws and customs, it shall not be described as ‘traditional laws and customs’ and the claims of the native shall not be justified. The court further asserted that attempting to revive laws and customs which were lost in the past was not adequate to establish the claim. The evidence of the break in the continuity was a significant change in their traditional customs and laws hence, the claim of the native title was dismissed.
The court should have decided the case differently and given the claimants an opportunity establish their customary laws as it was difficult for the natives to establish their native title, in particular, over the areas of land which has been subject to intensive European settlement. The High Court should have considered the fact that in several cases, it was difficult for the claimants to adduce historic and oral evidence that was necessary to meet the requirement which as set out by the High Court.
Traditional Indigenous people were very organized and the people within the community abided by several ancestral laws and regulations. The aboriginal group believed that all their customary laws were established during the time of creation by their ancestors. These laws shall determine the appropriate behaviors of different people within the tribe. The Indigenous community did not have any governmental system and in order to resolve any disputes and punishments, the elders of the group were entitled with the responsibility to resolve the dispute as they were considered as knowledgeable and their opinions were highly respected. The Torres Strait Islander and the Aboriginal people have always been connected to the Australian land. The aboriginals led harmonious life as people lived together and worked together with common motive however, in the event of crimes and offences, the accused person was punished as per the decision of the elders in the tribe. The elders were respected for their experiences and their knowledge about the sacred matters; hence their decision was always respected.
The recognition of the aboriginal laws into the common law system is controversial and the common law system has provided a criterion to be fulfilled if the native title claimant is to establish native claim with respect to their lands and water[14]. The court requires the aboriginal so establish their acknowledgement and observance of their traditional customs and laws with respect to their claimed lands and water. In other words, the recognition of the traditional custom and law that gives rise to the connection to land and waters is the primary legal test for determining the native title claims under the Native Title Act.
However, to know and study about the natives of Australia is advantageous as it would provide knowledge to the Australians about their natives and their connection with the Australian land. In the modern era, people are so busy with their day to day activities and have become so self –reliant that they work to achieve their individual dreams and goals of life. Unlike the modern era, the people in the aboriginal community lived in harmony and worked for a common objective[15]. They consider the Australian land sacred and that they do not own the land that has been passed to them through generations instead they believe that the land owns them and it is their responsibility to look after the land. In this modern era of technology, people hardly find time for their family, let alone their connection with the land.
Therefore, the aboriginal group and the traditional customs have a lot to learn from such as living in harmony, working for a common object and feel connected to the land and to save it from being destroyed. The recognition of the aboriginals implies recognition of the competence of the Australians and identifying the strength that is derived from the culture, which is the core identity of the Australians.
Reference List
Altman, Jon, and Sue Jackson. “Indigenous land and sea management.” Ten commitments revisited: securing Australia’s future environment. CSIRO Publishing, Canberra (2014): 207-216.
Barlinti, Yeni Salma. “Inheritance Legal System in Indonesia: A Statutory and Practical Review.” Indonesia Law Review 1 (2014).
Carey, Timothy A., et al. “The Australian Psychological Society’s Apology to Aboriginal and Torres Strait Islander People.” Australian Psychologist 52.4 (2017): 261-267.
Coleman, Elizabeth Burns. Aboriginal art, identity and appropriation. Routledge, 2017.
Cunneen, Chris, Fiona Allison, and Melanie Schwartz. “Access to justice for Aboriginal People in the Northern Territory.” Australian Journal of Social Issues 49.2 (2014): 219-240.
Demian, Melissa. “On the Repugnance of Customary Law.” Comparative Studies in Society and History 56.2 (2014): 508-536.
Griffiths, Anne. “Space and legal pluralism: an introduction.” Spatializing Law: An Anthropological Geography of Law in Society 68 (2016): 1.
Hosen, Nadirsyah. “Sharia, State and Legal Pluralism in Indonesia: How Law Can You Go?.” Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of MB Hooker (2017): 208.
Kelly, Danial. “The legal and religious nature of aboriginal customary law: Focus on madayin.” U. Notre Dame Austl. L. Rev. 16 (2014): 50.
Kelly, J. “The intersection of Aboriginal customary law with the NT criminal justice system: the road not taken.” Proceedings of the NTBA conference, Dili. 2014.
Krishna, Vijesh V., et al. “Land markets, Property rights, and Deforestation: Insights from Indonesia.” World Development (2017).
Malinowski, Bronislaw. The family among the Australian Aborigines: a sociological study. Vol. 1. Library of Alexandria, 2015.
McConnachie, Kirsten. Governing refugees: justice, order and legal pluralism. Routledge, 2014.
Moore, David. “Unfriendly terms in court: Aboriginal languages and interpreting in the Northern Territory.” Indigenous Law Bulletin 8.12 (2014): 8-10.
Sheleff, Leon Shaskolsky. The future of tradition: Customary law, common law and legal pluralism. Routledge, 2013.
Taylor, Katherine Selena, Bradley J. Moggridge, and Anne Poelina. “Australian Indigenous Water Policy and the impacts of the ever-changing political cycle.” Australasian Journal of Water Resources (2017): 1-16.
Tobin, Brendan. Indigenous peoples, customary law and human rights–why living law matters. Routledge, 2014.
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