PROTECTION OF INDIGENOUS LEGAL COMMUNITY RIGHTS IN THE BORDER AREA OF THE SOUTH PAPUA

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1 International Journal of Mechanical Engineering and Technology (IJMET) Volume 9, Issue 12, December 2018, pp , Article ID: IJMET_09_12_026 Available online at ISSN Print: and ISSN Online: IAEME Publication Scopus Indexed PROTECTION OF INDIGENOUS LEGAL COMMUNITY RIGHTS IN THE BORDER AREA OF THE SOUTH PAPUA Julianto Jover Jotam Kalalo Faculty of Law, Universitas Musamus, Merauke, Indonesia. ABSTRACT Legal protection of the rights of indigenous peoples is very important especially for indigenous peoples who live in the area of the Indonesian border. Indigenous peoples living in border areas in the past few years have not been paid attention to the fulfillment of their rights as citizens. The condition of the border areas inhabited by customary law communities that seem to receive less attention both in terms of infrastructure, education, health and respect for their customary rights. This paper uses normative research methods in an effort to analyze the urgency of the protection of indigenous peoples in the area of the land border, especially Merauke Papua. The results of the analysis revealed the urgency to protect the rights of indigenous peoples in border areas is very important considering that border areas are the leading regions in a country, and protection in the form of legislation should be specifically regulated by the government where protection, recognition and respect for customary law communities realized in the form of law. Keywords: Protection, Rights, Customary Law Society, Border Areas. Cite this Article: Julianto Jover Jotam Kalalo, Protection of Indigenous Legal Community Rights in the Border Area of the South Papua, International Journal of Mechanical Engineering and Technology, 9(12), 2018, pp INTRODUCTION The customary law community has its own culture, traditions and customs. Throughout history, the lack of respect for these cultures in many cases throughout the world has led to social conflict. In Indonesia, although the rights of indigenous peoples are recognized in the 1945 Constitution of the Republic of Indonesia, there is no specific national regulation that protects the rights of indigenous peoples (ILO, 2018). The fact shows that frequent conflicts that always marginalize the rights of indigenous peoples are inseparable from legislation relating to indigenous peoples that have the potential to harm indigenous peoples, the lack of professionalism in regulating legal norms, such as conflicts over natural resources in several regions in Indonesia, occurring normative conflict between customary law and State law (Alting, 2010). The constitutional protection of indigenous peoples is very important to ensure the survival and preservation of the culture that lives in the community, so that the characteristics of editor@iaeme.com

2 Julianto Jover Jotam Kalalo indigenous peoples are in accordance with the prevailing laws and regulations. This issue is very important and must have a protective container, one of which is law, because the customary law community is that the community is still strong in its grip on values that are environmentally responsible. The existence of indigenous peoples on the border is very alarming because of the lack of attention from the government, both the central government and the regional government. The border area is the spearhead of the development of the NKRI, there have been many policies carried out in the development and management of the Border, but still lack of government attention to the existence of indigenous peoples in the border areas. The land border areas between countries, namely Indonesia and Papua Nuew Gunea (PNG), which are in the Papua Province with 4 (Four) Regencies / Cities namely Jayapura City, Merauke Regency, Jayawijaya Regency, and Boven Regency are digul. In the border area, there are indigenous people who inhabit certain areas that have direct access to borders. Merauke Regency in Kondo Village, Naukenjerai District, People in the RI-PNG border area need development, if seen from historical values, Kampung Kondo is a history of the birth of the Marind culture. This area is said to be a sacred village, a place where Marind people believe that their ancestors began living in Kampung Kondo. This village is directly adjacent to the State of PNG, a distance of more than 100 kilometers from the city of Merauke (Suluh Papua, 2017). The limited facilities and infrastructure, socio-economic, education and health in the border region are very low. The state in this case the provincial government and local government does not facilitate the process of building roads to open the isolation of border areas, the lack of supporting facilities and infrastructures in the education process so that the education conditions of indigenous tribal children are far from the knowledge of reading and writing. and the absence of medical and health personnel in border areas for years so that public health is far from expectations. The lack of attention of the government towards the protection of the rights of indigenous peoples in land borders both in terms of facilities, health, education and traditional rights can destabilize the sovereignty of the State and the Unitary State of the Republic of Indonesia, where border regions become strategic objects for neighboring countries to acquire The area is even more so that the area has the same style of custom and race as the color of the State of Indonesia in the border area. Based on the problems above, the author takes the issue that must be examined, namely the urgency to protect the rights of indigenous peoples in the area of the southern part of Papua. 2. METHODS The type of research used is normative (Soekanto, 2012) legal research using the approach of the law approach (statute approach), conceptual approach, historical approach and philosophical approach (Marzuki, 2011). The study was conducted with library research / documentation and then analyzed qualitatively based on primary legal materials (statutory regulations), secondary legal materials (library materials and scientific journals) and tertiary legal materials (legal dictionaries) (Betaubun et al., 2018a, 2018b; Fitriani et al., 2018; Kalalo, 2018; Kore et al, 2018; Kotta et al., 2018; Lamalewa et al., 2018a, 2018b). 3. RESULTS AND DISCUSSION 3.1. Right of Customary Law Community in the border area Indonesia is the State of Indonesian State Law which is a legal state as mandated in the 1945 Constitution of the Republic of Indonesia (hereinafter referred to as the 1945 Constitution of the Republic of Indonesia) as stipulated in Article 1 paragraph (3). This provision has been used as a editor@iaeme.com

3 Protection of Indigenous Legal Community Rights in the Border Area of the South Papua constitutional basis, in the sense that every state administration must be based on applicable legal provisions. The source of national law is based on written provisions (state law) and Pancasila, As a philosofische grondslag, Pancasila essentially as a source of legal order in Indonesia. In its position, Pancasila as source of elaboration in the process of law drafting in Indonesia. Pancasila that it contains religious values, the value of moral law, the value of natural law, and religious value as a legal source material for the positive law of Indonesia (Inggit et al., 2017) in the legal sense made by the state consisting of legislation. Whereas the source of state law which is not made by the state (non-state law) such as religious law, customary law, customary law also includes having binding power to every Indonesian citizen. The opening of the 1945 Constitution of the Republic of Indonesia in paragraph IV has stated that... "The Government of Indonesia which protects the entire Indonesian nation and the entire Indonesian bloodshed and for advancing public welfare..." in this opening the phrase "Protecting the entire Indonesian people" states that the State has an obligation to protect all communities are no exception to indigenous peoples in the border regions. The position of indigenous peoples in the State of the Republic of Indonesia has been formulated in legislation. The Indonesian Constitution in the 1945 Constitution states that the State recognizes and respects indigenous and tribal peoples and their traditional rights insofar as they are alive and in accordance with the development and principles of the Unitary State of the Republic of Indonesia, which is regulated in law. Besides that, it is also regulated in Article 28 I paragraph (3) which states that "Cultural identity and the rights of traditional communities are respected in accordance with the times and civilizations." Customary Law Society has one of the most important rights related to its living space, namely "communal rights" as stated in Article 3 of the LoGA; Bearing in mind the provisions in Article 1 and Article 3 stated that; implementation of customary rights and similar rights from customary law communities, as long as in reality there are still, must be such that they are in accordance with national and state interests, which are based on national unity and may not conflict with other laws and regulations higher. Conditional Recognition (Rizal. (2008)) that has been applied by the government (insofar as it exists and does not conflict with laws and regulations), as stated in the 1945 Constitution of the Republic of Indonesia, this is very detrimental to the existence of indigenous peoples. This is due to the limited form of recognition that the requirement for recognition is submitted by the political head of State law in recognizing and protecting the rights of indigenous peoples. Thus, it can be said that there has been a subordination of customary law to State law, which Griffith called weak legal pluralism, namely the application of customary law can only be made possible with the recognition of state law first. Recognition is an attempt by the state to recognize the autonomy of the community to fully implement its tenure system. Although said autonomy is recognized through a state legal instrument, but the state does not intervene in the community in implementing its tenure system. This recognition indicates the state's political recognition of the existence of a group of people who have the authority to regulate land, natural resources and traditional relations in the region. It is called political recognition because with this recognition the state recognizes that there are community rights taken by the state. The formation of a national state and the enactment of a national legal system have caused such rights to be lost from the host communities. If it is associated with the existence of indigenous peoples in the border areas as long as they are not regulated in law and are not in accordance with the laws and regulations, the existence of indigenous peoples in border areas is still in a blurry or unclear condition in the Indonesian legal system. The existence of customary communities in border areas, especially Papua in Merauke is very thick with the continuation of indigenous Papuan life based on their customary law. Communities in border areas still live and are subject to the existence of customary law and editor@iaeme.com

4 Julianto Jover Jotam Kalalo natural life in Papua so that with the provision of this recognition the State provides a return of the rights held by indigenous and tribal peoples in their management. Indigenous people recognize land rights which include the alliance rights which van Vollenhoven called beschikkingsrecht, the right to the position, the right to withdraw the results, usufructuary rights, and lease rights. The right of fellowship to land is communal rights that allow alliances and members to withdraw profits from land and everything that grows and lives on the land (processing, building, herding livestock, collecting food, hunting and fishing). In general, indigenous and tribal peoples are vulnerable to violations or neglect of their human rights. Therefore it is necessary to get legal protection specifically in the form of legislation from the state. The state has the responsibility to promote, protect and uphold human rights for its citizens. This can be seen in the 1945 Constitution, namely the protection, promotion, enforcement and fulfillment of human rights are the responsibility of the state, especially the government. Indigenous communities in border areas are less concerned in efforts to fulfill their life needs, many children who do not go to school and the existence of public health under the standard makes them feel marginalized by the government. The State's obligation to uphold human rights is still far from certain. Indigenous people are entitled to the maintenance of natural resources, including the right to participate in the management, utilization, conservation of these resources. As such, the realization of the implementation of the rights of indigenous people is a State obligation. The 1945 Constitution mandated that the Earth, and water and natural resources contained therein be controlled by the state and used for the greatest prosperity of the people. The greatest understanding of people's prosperity shows that the people must receive benefits from natural resources in Indonesia. The state has an obligation to regulate natural resources to be used to improve people's welfare and achieve happiness based on Pancasila life. In the logic of shortterm development that emphasizes the promotion of economic growth, the environment tends to be positioned as a provider of natural resources rather than as having a certain carrying capacity limits Policies, plans and programs for environmental degradation control and natural resources by the government (central and local) tend to be detached or separated from policies, plan and program for regions development and sector, not embedded or not-integrated (Irwansyah, 2017). Mastery by the State in this case is enough to make the rights of indigenous peoples marginalized by the existence of this article. Indigenous peoples are not free to explore and use their rights in managing natural resources. In fact, according to the author, the existence of this article will greatly help the community Between the central government, regions and indigenous peoples who have rights in natural resource management. Indirectly the philosophy of the people of the indigenous people of Papua in Merauke is very strong towards the mastery of the earth's water and natural resources, indigenous people consider the earth's water and natural wealth in their customary territories to be very sacred and must be used beneficially. The status of indigenous peoples has long been denied recognition as rights holders and owners of indigenous territories. The Constitutional Court Decision Number 35 / PUU-X / 2012 states that compared to two other legal subjects, namely the government and companies holding land rights, customary communities are treated differently because the rights to land and forests for customary communities are not clearly regulated by Law Number 41 of "With this different treatment, the customary law community has the potential, or even in certain cases factually, to lose its rights to the forest as a natural resource for its life, including its traditional rights, so that the customary law community experiences difficulties in fulfilling its forest needs as its source. Even the rights of indigenous peoples are often lost in an arbitrary manner, so it often causes conflicts involving the community and right-holders. " editor@iaeme.com

5 Protection of Indigenous Legal Community Rights in the Border Area of the South Papua This set of requirements has led to the lack of clarity about the Customary Law Society further. As a result, if there is a violation of the rights of the Customary Law Community, there is no legal basis that can be used to compile and implement special advocacy efforts for this group in order to protect their rights. The rights referred to are: a) Individual rights as citizens, as citizens, citizens of customary law communities have the same human rights as other citizens; b) Collective rights as Customary Law Communities, as an anthropological community, customary law communities have collective rights, which are needed both to build and develop the human potential of their citizens to achieve a higher standard of living, especially rights to communal land; c) Right to Development, the right to development is part of the Right to Development, according to the United Nations Declaration on the Right to Development, 1986 and the 1989 ILO Convention on minority groups and indigenous and tribal peoples in independent countries. Such conditions which include the existence of recognition of community rights are becoming less clear. In this way, this means that indigenous peoples are recognized as half-measures in the Indonesian legal system. The issue of recognition is still general for indigenous peoples in general, whereas in particular indigenous peoples are divided again, the customary community lives and develops together with the development of the times and people who live close to themselves in the development of zama. In general circumstances, the rights as citizens have not been protected, especially the existence of customary communities in more border areas, especially in the border areas of the country which may not be touched by technological developments. Indigenous territories throughout the Indonesian archipelago have a variety of characteristics: ranging from rural, inland, to coastal areas; both lowlands and highlands; wilderness landscape to savanna grasslands. The diversity of the region influences the way of life of production for indigenous people to meet food needs, starting from hunting and collecting forest products, farming-farming, to farming settled by working on rice fields. The difference in landscape forms a difference in how to meet the needs of life through the production-consumption system, which is directly or indirectly related to the system of governance over land. Customary law communities have special characteristics as owners of indigenous territories. The face of indigenous people is often displayed romantically as a homogeneous unit and represented idyllic in a picture that is beautiful and harmonious with the surrounding environment, and separated from the world of global markets, local politics, and discourse and development practices. Philosophically, in recognition of the local communities of the two provinces, they are collectively referred to as Papua Land through pledges and commitments such as; "Two for one and one for two". Two for one-one for two, meaning one Papua Special Autonomy Law for two provinces, namely Papua and West Papua, two provinces for one development, namely Papua. Historically, the culture and civilization of indigenous Papuans who inhabited the area of West Papua and Papua had the same past experience in the Unitary State of the Republic of Indonesia (NKRI). It is the similarity of past experience that makes why the implementation of Special Autonomy (OTSUS) is given by the central government and applies absolutely in both provinces both Papua and West Papua (Deda and Mofu, 2012). The developments in the border area carried out by indigenous peoples' associations became a suspicion that made the indigenous communities in the border areas increasingly increasingly interpreted, the fulfillment of rights that should have been obtained by indigenous peoples until they had not been properly fulfilled. In the author's opinion, State Sovereignty is on the border line and those who maintain the sovereignty of the State in border areas are people who live and live in border areas. Indigenous peoples in border areas are even a society that is quite editor@iaeme.com

6 Julianto Jover Jotam Kalalo marginalized with everything they use. All these limitations should make the government pay more attention to the condition of the people living in the border area. The importance of protecting the rights of indigenous peoples that exist on the border is just as important as maintaining the integrity of the unitary state of the Republic of Indonesia, because the border is an area that is the frontier region of a territory of the country Urgency for the Protection of the Rights of Indigenous Peoples in the Land of the Borders Indonesia is a country that has a lot of resources and lives a variety of tribes and customs, moreover there are countless numbers of indigenous people living and developing in Indonesia. Communities that live in border areas are also very large and have not yet been identified as the total number who live permanently or move around in border areas. However, if it is noted more clearly the forms of protection obtained by indigenous peoples in border areas are very lacking, especially in recognition of the rights of indigenous peoples that are inherent, both their constitutional rights, traditional rights and communal rights. With the many problems that occur between indigenous peoples and the government shows that Indonesia does not yet have a standard of protection against the rights of indigenous peoples, the Indonesian government has a lot of information relating to indigenous peoples but to date there has not been a specific form of protection, even though so far The draft law on the protection of the respect and recognition of the community Customary law is still in the form of a draft and until now it has not been legalized as a law. Urgency The protection of remote indigenous peoples, especially in Indonesian legal alignments, still merely regards remote indigenous peoples as isolated tribes which are Indonesian cultural assets that must be protected without seeing respect for the rights of indigenous peoples as Indonesian citizens who should receive the same portion in the eyes law and other legal instruments such as other Indonesian communities. Violations and harassment of customary rights of indigenous peoples are still common, and the severity of this is done by those who feel themselves educated and far from underdevelopment. The existence of indigenous communities has actually received a portion of law in every national and even international legal instrument, however, there are still many debates and interpretations of the content and implementation of articles that regulate respect, recognition and protection of the rights and obligations of indigenous peoples as part of Indonesian citizens. The limitations of the socio-economic facilities and infrastructure in the border region are followed by the lack of investment activities, the low optimization of natural resource use, low employment creation, regional isolation, community dependence on social and economic services from neighboring countries (especially those adjacent to more developed neighboring countries the economy), high cost of living, and low quality of human resources. The limited facilities and infrastructure in the border region are feared to erode the sense of nationalism, especially for indigenous groups who still have a sense as a group or indigenous community that is separated by national borders. Feeling unnoticed and far from cheap and decent living facilities are actually felt by all the people who live on the border (Indonesian borders in this matter) and are mainly felt by indigenous people in the border region. In conditions in the middle of a country, legal protection is still lacking, especially with their conditions at the border. Indigenous peoples in border areas are remote indigenous communities which are social (cultural) groups that are local and scattered and are not or have not been involved in networks, services, both social, economic and political. Indigenous peoples in this area have not received recognition from the government in the form of recognition of the existence of remote indigenous communities, recognition of the social and economic rights of indigenous communities in border areas, recognition of the protection of traditions and customs of remote indigenous communities editor@iaeme.com

7 Protection of Indigenous Legal Community Rights in the Border Area of the South Papua and recognition of remote indigenous community empowerment programs, through national and regional legal products that protect the rights of remote indigenous peoples and the State's obligation to recognize and protect the rights of remote indigenous communities. The importance of the legal basis for the existence of Indigenous Peoples is explained by LG. Saraswati must be in line with the universal declaration of human rights. The ideal of humans who are free to enjoy civil and political freedom and freedom from fear and poverty can only be achieved if conditions are created where everyone can enjoy civil and political rights as well as economic, social and cultural rights. With this in mind, the urgency of legality is present in the form of a law on the rights of indigenous peoples. The law should also emphasize the rights of the people with the original structure to be recognized, protected and influenced by the State, especially the Government. Legal recognition of the existence and rights of indigenous peoples does not stop when regional regulations, governor regulations, regent regulations, or other forms of legal recognition have been established. Law is a tool to achieve goals. Similarly, in the context of legal recognition of indigenous peoples; legal instruments are only a means of struggle. The struggle is not finished with the presence of legal instruments of recognition. The struggle continued after the birth of the legal instrument of recognition. The struggle to oversee implementation is sometimes far more severe than the struggle to present a policy of recognition (Arizona, 2014). 4. CONCLUSION Urgency for the protection of community rights customary law in border areas must be considered and respected and protected so that the indigenous people in the border area feel concerned by the central government and the existing regional government. By being protected by the rights of indigenous peoples in border areas, they can maintain and maintain the integrity of the Republic of Indonesia from Sabang to Merauke. REFERENCES [1] Andi Bau Inggit AR, A. Pangerang Moenta, Marwati Riza, Hamzah Halim. (2017). Local Regulation Review in Realizes Legal Order of the Local Governance. Journal of Law, Policy and Globalization, ISSN (Paper) ISSN (Online), Vol.59, [2] Andreas Jefri Deda dan Suriel Semuel Mofu. (2012). Masyarakat hukum adat dan hak ulayat di provinsi papua barat sebagai orang asli papua di tinjau dari sisi adat dan budaya; sebuah kajian etnografi kekinian, Jurnal Administrasi Public, vol. 2, oktober [3] Betaubun, M., Madya, S. and Margana (2018)a. Reconceptualization of English Learning in the Border Region of the Republic of Indonesia-Papua New Guinea, International Journal of Mechanical Engineering and Technology, 9(9), pp [4] Betaubun, M; Madya, S; Margana. (2018)b. Description Of English Language Learning In The Border Of Merauke - Papua New Guinea, International Journal of Mechanical Engineering and Technology, 9(11), pp [5] Fitriani; P Betaubun; EA Pure; D Tikson; EE Maturbongs; TWA Cahyanti; RF Waas. (2018). Relationship of Employee Ethnic Background in Validation of Situational Leadership Theory. Indian Journal of Public Health Research & Development 9 (4): [6] Husen Alting. (2010). Dinamika Hukum Dalam Pengakuan Dan Perlindungan Hak Masyarakat Hukum Adat Atas Tanah (Masa lalu, kini dan Masa Mendatang), Yogyakarta: LaksBang PRESSindo. [7] ILO. accessed 1 February 2018 [8] Irwansyah. (2017). Research-Based Environmental Law: The Debate between Ecology versus Development. Sriwijaya Law Review. Vol. 1 Issue 1, January 2017, pp: editor@iaeme.com

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