Constitutional law expert from Pattimura University Ambon, Jemmy Jefry Pietersz, speaking at a webinar on the constitutional rights of indigenous communities over marine areas with the Law Faculty of the University of Bengkulu, Friday (7/19/2024). Photo by MKRI.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a webinar on “The Constitutional Rights of Indigenous Communities over Marine Areas” in collaboration with the Law Faculty of the University of Bengkulu on Friday, July 19, 2024. The Court featured constitutional law expert from Pattimura University Ambon, Jemmy Jefry Pietersz, as a speaker at this webinar.

Pietersz explained that the existence of indigenous communities is currently based on Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (UUD 1945). It states that the nation recognizes and respects indigenous community units and their traditional rights as long as they live in accordance with the development of society and the principles of the Unitary Nation of the Republic of Indonesia (NKRI), which are regulated by law.

“Constitutional interpretation of this means that this recognition is the basis of respect, or this respect must be based on recognition, and that recognition must be documented in writing,” he said.

He added that the words “recognize” and “respect” are conditional because the indigenous communities must meet the conditions “as long as they live in accordance with.” This provision is further regulated in Article 3 of Law No. 5 of 1960 on Basic Agrarian Principles (UUPA), which essentially recognizes communal rights as long as they are in accordance with the times and adhere to the principles of the NKRI.

Based on Article 1 point 1 of the Minister of Home Affairs Regulation (Permendagri) No. 52 of 2014, an indigenous community is defined as Indonesian citizens who have distinctive characteristics, live in harmonious groups according to their customary laws, have ties to ancestral origins and/or common residential areas, have a strong relationship with the land and the environment, and possess a value system that determines economic, political, social, cultural, and legal institutions, and utilize a specific territory inherited through generations.

Then, Article 1 point 2 of Permendagri No. 52 of 2014 defines customary territory as customary land, which includes land, water, and/or waters along with the natural resources on it with specific boundaries, owned, utilized, and preserved continuously and sustainably to meet the needs of the community, obtained through inheritance from their ancestors or claims of ownership such as communal land or customary forests.

Meanwhile, there are customary rights which, according to Article 1 paragraph (1) of the Minister of Agrarian Affairs Regulation No. 5 of 1999, are defined as the authority held by certain indigenous communities according to customary law. This authority allows them to benefit from natural resources, including land, within their territory for their survival and livelihood. These rights arise from an unbroken, generational relationship, both physical and spiritual, between the indigenous community and their territory.

The rights of indigenous communities over marine areas include the coast and the sea, such as wetland areas during low tide, the sea as a fishing area, and an imaginary line extending as far as the eye can see into the sea. There are customary laws governing the sea, such as prohibitions on exploitation, protection of natural resources, and traditional agendas and ceremonies.

Institutionally, indigenous communities can oversee and impose sanctions, as well as conduct traditional ceremonies. Sanctions are applied to those who violate these rules.

However, Pietersz, said there are still issues regarding the application of state and customary laws on the rights of indigenous communities. This includes the notion of state control rights, which are often interpreted as ownership, whereas ownership is a characteristic of customary rights.

“That’s why we often see signs saying ‘this land belongs to the state,’” he said.

State control rights are intended for regulation, determination, and administration, not for ownership. Some areas or territories recognized as belonging to indigenous communities are still under state control.

In addition, Pietersz mentioned that indigenous communities currently have legal standing to challenge laws before the Constitutional Court. In Decision No. 35/PUU-X/2012, the Court affirmed that the indigenous communities acting filing the petition had legal standing to challenge Law No. 41 of 1999 on Forestry.

The petitioners included the Indigenous Peoples of the Archipelago (AMAN), the Kenegerian Kuntu Indigenous Community Association, and the Kasepuhan Cisitu Indigenous Community Association. The decision was related to the customary land rights of these indigenous communities.

“This means that indigenous communities have legal standing to file petitions with the Constitutional Court,” Pietersz said.

Author              : Mimi Kartika
Editor               : Nur R.
Translators        : Naomi Andrea Zebua/Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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