Interim Report II Justice for the Poor Project: Research Paper on Community Access to Justice and Village Judicial Autonomy January 2005

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1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized The World Bank INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT INTERNATIONAL DEVELOPMENT ASSOCIATION WORLD BANK SOCIAL DEVELOPMENT OFFICE, JAKARTA Jalan Cik Ditiro 68A, Menteng Jakarta Pusat Telephone: (62-21) Facsimile: (62-21) Interim Report II Justice for the Poor Project: Research Paper on Community Access to Justice and Village Judicial Autonomy January 2005 The Village Judicial Autonomy research paper is being developed in cooperation with the Supreme Court as part of the Justice for the Poor project to strengthen informal 1 dispute resolution mechanisms at the local level. The paper has a particular focus on the experiences of poor and marginalised members of the community. This second interim report presents the main findings of the field research carried out in Central Kalimantan, Maluku, West Nusa Tenggara (Lombok) and West Sumatra and a desk study of East Java from April December Discussions and interviews have been held with over 400 people and 40 cases studied. Detailed information on the methodology and the impact of regional autonomy on local dispute resolution institutions is set out in the first Interim Report. The final research paper is due in mid Summary of main findings Villagers have a range of resolution options available when faced with a dispute. They tend to choose informal mechanisms because they are cheaper, faster and more accessible than the formal system. Informal dispute resolution mechanisms vary across the regions studied but tend to consist of a mediation process led by prominent individuals in the village. Accordingly, the effectiveness of informal dispute resolution and the quality and consistency of decisions depends on the varying individual capacities of the actors 3 and their power relations with the parties involved. Weaker parties have less financial resources, information and social networks so tend to be marginalized in disputes. The lack of a comprehensive system of accountable procedures, checks and balances and enforcement mechanisms increases the susceptibility of the informal system to manipulation by powerful parties. The unclear distinction between the informal and formal dispute resolution systems adds to the uncertainty and may be utilised by powerful parties to further their own interests. The primary goal of informal dispute resolution is to preserve the harmony between the parties and their families. This can take preference over the protection of individual rights. The goal of harmony interpreted through the lens of local traditions and cultural norms can at times result in discrimination against ethnic minorities who may be new to or not fully accepted into local traditions and women. The underrepresentation of women in dispute resolution procedures makes it difficult for women to protect their rights. Generally, informal dispute resolution procedures do not deal effectively with inter-ethnic disputes and disputes with very powerful parties (such as land disputes with resource companies). This paper offers suggestions on how to capture the clear benefits of informal dispute resolution while addressing some of the negative aspects. 1 Informal dispute resolution means any dispute resolution which occurs outside the formal state apparatus of courts, prosecutors and police and includes, but is not limited to, adat mechanisms. 2 This interim report necessarily contains some generalisations. The complete case material is found in the individual provincial field reports. 3 Actor is used to refer to a person who handles disputes whose role may include that of a mediator, arbitrator, conciliator, advisor or judge. January

2 Analysis of main findings 1. What informal dispute resolution mechanisms are available at the local level? The most common disputes encountered and studied by the team relate to land, divorce, inheritance, petty crimes and crimes against women. 4 A range of dispute resolution options may be available at the local level. Villagers most frequently use neighbourhood leaders (RT/RW), hamlet heads (Kepala Dusun), village heads (Kepala Desa) and adat leaders to assist them to resolve disputes in the regions studied. Religious leaders and youth leaders tend to play a more limited role in the resolution of disputes with a moral nature such as adultery, except in East Java where the kyai is the dominant player in dispute resolution. Adat dispute resolution actors apply laws based on oral tradition incorporating notions of peace, fairness, harmony and common sense. A decision is usually reached by means of a musyawarah 5 and may be written and signed by the parties. The role of adat varies greatly between the regions studied and will be highlighted in the section on Local Initiatives below. Parties often have a flexible choice of actors but will usually select the actor accessible at the lowest level which incorporates both parties. So, for disputes between parties from different hamlets, the head of the village would be a likely choice. However, not all choices are equally available to everyone, as discussed below. 2. What are the benefits of informal dispute resolution? In all regions studied, informal dispute resolution mechanisms are widely accepted as cheaper, faster, more flexible and more accessible for poor people than the formal system. While the sanctions imposed may amount to a high monetary cost, the resolution process is usually much less expensive than the formal system. 6 While the goal of harmony is open to misuse and manipulation to force weak parties to accept negotiated agreements, informal dispute resolution unquestionably is effective in restoring relations between parties to a dispute. In the research areas, the family of a murderer enjoys good relations with the family of the victim. A market trader and official who clashed violently work side by side with no fear of revenge. Such outcomes were achieved through mediation, and are unlikely to have been reached through the courts. 3. The benefits of informal dispute resolution are not accessible for all A. Experience of women In all the regions researched, women face particular obstacles in achieving justice through informal dispute resolution mechanisms. There are several reasons for this: (i) Women are not represented in informal dispute resolution mechanisms It would be easier [to report problems] with a woman. Sometimes we re embarrassed with men. Housewife, Desa Sembuluh II, Central Kalimantan Women are poorly represented in positions of village government, adat and religious institutions and as family or lineage heads. For example, in the research areas there is only one female village head in Maluku, one damang in Central Kalimantan and one village head in Lombok. By definition there are no females on the Adat Councils in West Sumatra. The lack of representation makes hearing women s perspectives more difficult and enables the perpetuation of the unequal treatment of women. 4 A description of dispute typologies is set out in Annex 1. 5 A musyawarah is a deliberation, conference or discussion where typically a decision is attempted to be reached by consensus. 6 One exception is Central Kalimantan where the indigenous Dayak adat leaders, known as damang, may receive several hundred thousand rupiah for handling the case plus 10% of any monetary fine or compensation ordered. January

3 (ii) Female disputants may not be able to represent their own case or appoint their own representative In West Sumatra, women have a strategic position as holders of lineage property, but they are not able to prevent the selling of their land by male relatives because they have no access to, or representation on, the Adat Council which approves the sale of lineage lands. Women do not represent themselves in disputes, but are represented by their male lineage head. Accordingly they are held subject to his interests and the power he holds over all aspects of clan life, including the marriage of children. (iii) Cultural norms can be biased against women It [domestic violence] happens here. Quite often too. [But] the victim stays quiet. The perpetrator stays quiet. Just wait until everything cools off, and the problem s settled. A community leader in Desa Hanive, Central Kalimantan In the other regions studied women may represent themselves in their disputes but cultural norms often make women feel powerless to make reports, object to decisions made by men or raise their points of view in maledominated musyawarah. The goal of community harmony is one of the benefits of informal over formal dispute resolution and often an imperative in inter-dependent rural communities. It means, however, that individual human rights and enforcement of punitive law are not prioritised. Accordingly, wrongs against women are frequently downplayed. In a rape case in Maluku the crime was not at issue in the dispute resolution process. The primary aim was to restore harmony between the families of the victim and perpetrator with the result that the victim s family actually received a fine for verbally offending the perpetrator s family. Cultural norms particularly discourage women from standing up for their own interests in relation to sexual assault and domestic violence. Domestic violence disputes are usually handled by religious leaders in West Nusa Tenggara who ask the parties to keep quiet and do not issue sanctions. Informal dispute resolution norms can be highly biased against women for example with respect to their rights to property, spousal support, inheritance and divorce settlements. In one West Nusa Tenggara case studied, a woman had been abandoned by her husband and became pregnant to another man. She approached the hamlet head to demand that the father of her unborn child take responsibility. The outcome of her complaint was that she and the father were imprisoned. The father married another woman and she receives no support from either father of her two children. She now awaits the possibility of her husband returning from Malaysia in the years to come to bring an adat case against her for adultery. (iv) Women are often seen as the objects of disputes rather than the victims or the perpetrators Crimes involving women are often not viewed as criminal acts. Rapes and domestic violence are typically considered to be domestic affairs, not ones for criminal action. Accordingly, even if crimes against women are reported to the police, the police frequently refer the cases back to the informal system where women s interests may be subjugated to the goal of harmony as described above. In Central Kalimantan where a woman becomes pregnant before marriage the father will be required to pay a fine but the mother will not be punished as it s not possible that a woman would have been responsible for the pregnancy. While the lack of punishment may appear to benefit the woman, it epitomises the protective rather than empowering paradigm of local laws and customs towards women. B. Inter-ethnic and larger-scale disputes Adat-based dispute resolution processes are typically not suitable for inter-ethnic disputes. The provinces studied vary greatly in ethic composition and issues related to minorities. Central Kalimantan has experienced large conflicts between Dayaks and Madurese. As the revival of adat is largely identified with the majority Dayak population, ethnic minorities regard adat dispute resolution as partial and express a preference for resolution by local government leaders when involved in disputes against Dayaks. Similarly in Maluku migrants do not always January

4 recognise the raja, the local equivalent of the village head 7, so adat does not always represent a means of resolving disputes involving non-indigenous people. The absence of an effective dispute resolution mechanism to handle inter-ethnic disputes increases the risk that these disputes will again erupt into serious conflict. And yet in postconflict areas, local government initiatives to strengthen dispute resolution have focused almost solely on adat structures and processes. Inter-community disputes are also difficult to solve through informal dispute resolution mechanisms which usually only extend to the level of head of the village. Such disputes may be handled by local government but their efforts are not always effective at addressing the root cause of a dispute. In a land dispute between two West Nusa Tenggara villages which erupted into a cycle of revenge attacks, the government s response was to separate the villages by replicating public services so villagers no longer needed to enter the neighbouring village. Disputes with powerful external parties, such as plantation and logging companies, are rarely able to be resolved through informal mechanisms. Some of these disputes go to court but many remain unresolved. Sometimes the government mediates, but rarely fulfils this role independently, often acting as an agent of the external party against the interests of the community. In other cases communities have disputes with the government itself, such as the simmering and long-standing dispute over corrupt and inconsistent issuing of land titles in Maluku. Current informal resolution mechanisms do not offer effective options for these disputes. C. The impact of power imbalances Power relations are key to informal dispute resolution. The flexibility of actors in their roles sometimes acting as advisor, mediator and judge is at times a strength of informal dispute resolution, but can compromise impartiality. In Central Kalimantan damang receive monthly salaries from the district government. The potential for conflicts of interest is high when the damang handles a dispute between a community and government or government-backed third party interests. In Maluku, decisions of the raja are based on their own notions of fairness and common sense and given that they are perceived by many to have supernatural powers their decisions are rarely questioned. This raises the potential for abuse of power and manipulation. In West Nusa Tenggara, community leaders are given sanctions twice as harsh as others under adat and their sanction may even include complete withdrawal from public life and being barred from public services. This has encouraged the making and supporting of complaints against community leaders for breaching adat for political purposes. Informal actors rarely look into the background and motivations for seeking informal resolution. The team found examples of powerful parties pressuring less powerful parties to agree to informal dispute resolution, for example so that the police would allow a complaint to be withdrawn, or refusing to submit to informal dispute resolution knowing that the formal system is not accessible for the weaker party. Chinese, Batak, Mentawi and Javanese ethnic minorities and newcomers are particularly marginalised in adat dispute resolution in West Sumatra. Regardless of ethnic and religious background, all people have to be adopted into a local lineage and are expected to submit to the adat of the Minang majority. The head of the lineage can represent the newcomer in the Adat Council, but the entailing privileges in terms of access to land and protection by the lineage head are not necessarily extended to newcomers. A female newcomer to a village was given a high fine by the Adat Council for disrespecting a lineage head. A Council member later admitted that this was partly due to the lineage head s resentment towards the woman s success in business. The potential for manipulation is heightened in West Sumatra by the fact that parties do not represent themselves in adat resolution, but are represented by lineage heads who may have different interests to the parties. 7 The raja plays an adat as well as a government role in many, but not all, Maluku villages. Some regard the raja s powers as supernatural. January

5 4. What are the procedural weaknesses of informal dispute resolution? A. Lack of accountability/right to appeal The right to appeal is integral to an accountable and transparent legal system but is not always present in informal dispute resolution mechanisms. Where resolution cannot be reached at a particular level, sometimes parties may seek assistance at the next level up, such as sending a dispute from the head of the hamlet to the head of the village. However, this does not always mean that decisions, once actually reached, can be appealed within the informal system. For example in West Sumatra where an adat decision is reached by the lineage heads it cannot be appealed to higher levels within the adat system. Recourse is open to the formal legal system, but expense, distance, lack of legal awareness and corruption are powerful disincentives for poor villagers to use it. B. Interaction between the formal and informal systems A party dissatisfied with the informal resolution of a dispute may be able to refer the dispute to the formal system. The research showed cases where the prosecutors and courts took informal resolution into account, as they are required to do by law and according to internal institutional regulations. For example, the sentence for manslaughter was reduced in a court case in Central Kalimantan because the case had been dealt with previously through mediation. There are countless examples of cooperation between informal mediators and the police in handling cases. Police often refer cases back to adat or community leaders. Cooperation between the police and informal dispute resolution actors is usually viewed as a positive feature. For example, in Maluku the police and informal dispute resolution actors frequently coordinate their efforts, such as by sharing information and legal knowledge and holding joint musyawarah especially for minor criminal offences. However, the lines are blurred between informal and formal dispute resolution. The formal and informal systems may use different sources of law and state courts usually favour state law over adat law. The courts may completely ignore the outcomes of an informal resolution, carrying a risk of dual punishment for the same offence. Further, communities regularly do not accept that a court s decision overrides the informal decision. For example, in West Nusa Tenggara a community continued to deny community rights to an individual as decided by adat, despite a contrary ruling by the state court. The unclear boundary and interaction between the informal and formal systems not only limits access to justice but has the potential to inflame disputes. Where a dispute is reported to the police, the police may decide not to pursue the case if they consider it to be a matter for the informal system, despite the wishes of the parties. Yet, both the police and informal mediators need to do more to understand the motivations of disputants in choosing dispute resolution forums. In a domestic violence case in Central Kalimantan, the case was withdrawn from police investigation against the will of the female victim. In an assault case, the victim referred the case to the damang only after being threatened by the perpetrator s friend to withdraw his police complaint. Others used informal dispute resolution to seek more favourable treatment from the police and courts. Yet, both the police and actors were rarely aware of these facts as they resolved the case. C. Enforcement of informal decisions Execution and enforcement of informal decisions is difficult. Where informal dispute resolution processes are carried out by people respected and trusted by the local community, the enforcement process is most successful. For example in Maluku where the raja is highly revered by many, parties tend to abide by decisions. Many actors, such as the damang in Central Kalimantan, see their role as limited to facilitating agreements rather than enforcing implementation, even when agreements are written and signed by the parties. Enforcement of informal dispute resolution is particularly problematic for weaker parties, such as women. In West Nusa Tenggara the perpetrator of adultery refused to pay the fine imposed under adat and preferred the police to deal with the problem by sending him to jail for a short time. In Central Kalimantan, a divorce agreement to provide land and funds to the woman was not fulfilled and the adat fine not paid in full in an assault case. The mediators did nothing to follow up on enforcement in these cases. January

6 Initiatives This paper starts from the assumption that effective dispute resolution mechanisms should meet the following criteria: Non-discriminatory Humane sanctions Satisfy basic precepts of justice such as the right to hear and be heard and the right of appeal Achieve community acceptance and local ownership. There are undoubted benefits inherent in a strengthened role for informal local justice mechanisms along democratic and inclusive principles. Any initiatives need to open up multiple avenues to justice taking into account the following factors: The weak position of women The marginalised status of ethnic minorities The different nature of internal and external problems faced by communities Difficulties with enforcement of informal decisions. 5. What initiatives are being taken to strengthen local informal dispute resolution? A. Revival of adat dispute resolution procedures With the onset of regional autonomy, many regions are revitalising the role of adat in informal dispute resolution. Central Kalimantan: Local government is attempting to revive the role of adat in the province, but the impact has been limited so far. The intensity of public acceptance of the damang and adat law is highly varied. Unlike adat leaders in other regions studied, the damang sit at the higher kecamatan level and this makes them less accessible. Adat dispute resolution, managed by the damang assisted by his let adat at the village level, is a combination of mediation and arbitration, not unlike a court session. The damang will call all parties and propose a resolution. Where agreement is reached among the parties, they sign a written agreement. West Nusa Tenggara: Three authorities the village government, Adat Legislative Council and Religious Council form a tri-partite institution of village governance (Wet Tu Telu) in West Nusa Tenggara. Informal dispute resolution may involve all three institutions but the level of involvement and formalisation of the three authorities varies throughout the province. In northern Lombok, the Adat Community Organisation (Perekat Ombara) is a significant new initiative which aims to strengthen adat. It was set up in 1999 in response to environmental damage by forestry companies and involves 29 villages. An adat court and legislative council have been established providing a mechanism of dispute resolution at a level higher than the village. Maluku: Adat and the role of the raja in dispute resolution is being strengthened in some areas, with varying degrees of government support. A regional regulation has been drafted to establish the adat concept of the negeri as the smallest administrative unit and state the responsibilities of the raja as its head, including to promote adat law and resolve disputes. West Sumatra: West Sumatra stands out as the most unique region for informal dispute resolution largely due to the enduring strength of Minangkabau adat and lineage arrangements. Disputes are usually solved at the lowest possible level within the lineage with a musyawarah between the parties, but if resolution is not successful, meetings will be held at the higher level of the clan or possibly at the male-dominated Adat Council. The parties do not represent themselves directly in the meetings, but are represented by their male lineage representatives. The process is highly formalised and controlled and rigorously defended by the adat and political leadership. January

7 B. Local regulations and codifying adat laws The strength of adat law and related dispute resolution mechanisms varies among the provinces studied. Regional autonomy has encouraged the regions to pass local regulations to strengthen dispute resolution. In Maluku one location has drafted a regulation reviving adat village governance structures which, among other things, mandate a role for the raja and the Adat Council to act in a judicial-type role. Similar regulations exist in Central Kalimantan where some local governments fund the operations of damang from district budgets. Regulations have been passed in some locations to codify adat laws regarding issues such as management of natural resources, marriage and divorce, and adat ceremonies and dispute resolution. This process is sometimes done in a progressive way: in some locations in West Nusa Tenggara, adat laws are being codified which provide for specific sanctions against perpetrators of domestic violence, grant women property rights on divorce and provide that divorce has to be done through a village session (and not just be verbally expressed by the husband as was the traditionally accepted practice). One result of the codification of sanctions is that it allows the village head to intervene in domestic violence disputes which have traditionally been a private matter. The process of passing local regulations and codifying adat laws can be problematic. In many cases traditionally accepted laws are passed with little consideration of whether they remain appropriate, for example the impact on women or ethnic minorities. Lack of local governance capacity means that regulations may be passed at the village level which are inconsistent with regulations at the higher kabupaten or provincial levels and so on. This has been particularly apparent in West Sumatra where the regulations make inconsistent distinctions between adat and government authority in dispute resolution and this uncertainty has been exploited by certain interests to use the local regulations as a political instrument, for example with respect to common land disputes. C. Support by NGOs NGOs are actively supporting communities in disputes with external parties in the regions studied. Empowerment on an individual basis has also resulted in better access to justice for women confronting male opponents in land cases in West Sumatra. A group of women supported by an NGO have been active in mediating disputes, such as domestic violence and civil disputes, as well as mobilising community support to lobby the local government. NGOs have empowered women in the Adat Women s Organisation (Bundo Kanduang) in some West Sumatran villages and facilitated adat training by the members of the provincial level Adat Women s Organisation so the local members can stand up to the male-dominated Adat Council. 6. What new initiatives are being considered? During field trips to West Nusa Tenggara, West Sumatra and Central Kalimantan in December 2004, seminars were facilitated by the Justice for the Poor team to disseminate and seek validation for interim findings from the study and gain input from stakeholders on initiatives to strengthen informal dispute resolution. The interim findings were generally accepted. Initiatives proposed varied in the different regions studied, although there were some common themes. It is widely accepted that villagers need to be educated on legal rights and social mobilisation to bring communities together to enforce their rights against powerful third party interests and strengthen the position of weaker parties in disputes. This could be achieved by empowering NGOs and strengthening the position of women and ethnic minorities in informal dispute resolution mechanisms. Most stakeholders supported building the dispute resolution capacity of actors through training such as in mediation skills. Another common theme was addressing problems of enforcement by seeking acknowledgement of the state of informal dispute resolution processes and decisions. This would also help to define the lines between formal and informal systems. This could be done by passing new regional and village regulations regarding informal dispute resolution, but might also require national legislation. Central Kalimantan: In Central Kalimantan many respondents support a stand alone village mediation institution which is more representative of women and different ethnic groups. To improve the January

8 interrelationship between informal and formal dispute resolution and improve enforcement, consideration should be given to register mediators from the new dispute resolution body with the District Court to give decisions of the village body the enforceability of a court order, pursuant to Supreme Court Regulation 2/2003. Alternatively it was proposed to develop a memorandum of understanding between the local government and the courts delineating the jurisdiction of the new institution to enhance cooperation and reduce duplication. Other specific recommendations arising out of the seminars and research include strengthening and formalising the role of the village council (BPD) and adat in local dispute resolution; establishing an independent multi-stakeholder team at the kabupaten level to mediate land conflicts; and furthering the reach of circuit courts and court-annexed mediation to the village level. Pemda is receptive to future collaboration with the Justice for the Poor team to strengthen informal dispute resolution mechanisms. West Nusa Tenggara: As a result of the seminar in West Nusa Tenggara, a local committee has been established to plan future initiatives to strengthen informal dispute resolution. The first step will be a workshop bringing together key government and NGO figures with 50% female representation. The workshop will consider specific initiatives: codifying adat laws and formalising adat mechanisms into the structure of village governance; passing regional regulations to provide a legal umbrella for informal dispute resolution; empowering court-annexed mediation; empowering local women s organisations and legal training for actors. Pilot projects will be proposed. West Sumatra: Adat dispute resolution mechanisms in West Sumatra are well entrenched. Thus, most suggested initiatives involve improving existing structures, such as increasing the mediation capacity and gender awareness of the Adat Council, clarifying the boundaries of authority between adat and local government and encouraging the state courts to recognise adat decisions. Similarly, many support strengthening the role of women in adat structures, such as by empowering the Women s Adat Council and other women s organisations to better represent and enforce women s interests in the male-dominated Adat Council. A working group has been formed which will consider priority activities and propose projects to empower women and enhance the conflict resolution capacity of adat leaders and village heads in collaboration with local NGOs, the Adat Councils, and the local government and courts. 7. Next steps This report will be discussed with central stakeholders including the Supreme Court and Bappenas in early Support from central stakeholders is necessary in the regions studied to encourage a high level of participation of Pemda and the judiciary for initiatives at the local level. Additional field trips to fill in research gaps and gain input from local stakeholders will be conducted in Maluku and East Java in February A comparative study tour will be conducted to the Philippines and Bangladesh in April-May 2005, possibly with key stakeholders from the national level and research locations. Following consultations and the completion of additional research, the final report is due to be completed by mid For more information, please contact Matt Stephens from Justice for the Poor: World Bank Office Jakarta Jalan Cik Ditiro 68A Menteng Jakarta Pusat INDONESIA Tel: ; Fax: Mobile: mstephens@worldbank.org January

9 Annex A - Dispute Typologies Common dispute typology by source of conflict Most disputes are identical across the provinces, as are the means to solve them locally. Where special actors are present, this is indicated. When a type of dispute represents a special category in an area, this is also indicated. Typology Dispute Resolution Actors Related Issues/Assessment Petty criminality, public disorder, fighting, minor thefts, damage to property, minor traffic accidents Social crimes (East Java, Maluku) Affairs Gambling Alcohol abuse Santet (black magic) Domestic violence, violence against women, and sexual assault NTB: Permidangan (courting) Merariq (Marriage by elopement) Extramarital pregnancy and adultery Sexual harassment Divorce and inheritance RT/RW/Village Head (all provinces) Wali nagari, wali jorong (West Sumatra) Head of Pemuda (youth organisation) (West Sumatra, Maluku) Adat leaders (all provinces) Police (all provinces) Babinsa (military) Raja (Maluku) Trusted informal leaders: (East Java) such as Kyai (Pamekasan) and Tomas (Ponorogo) Religious leaders (NTB) Kyai (East Java) Village Head (East Java) Police (East Java) Raja (Maluku) Family or adat leaders Police (if outsiders involved) RT/RW/Village Head and wife (Central Kalimantan) Religious leaders (Christian community) Religious leaders and wife (Central Kalimantan) NGOs (West Sumatra) Religious leaders, and Village Head (Maluku and NTB) Adat Chief (Maluku) RT/RW, Hamlet and Village Heads Adat leaders Religious leaders Police P3N (marriage clerks) Youth leaders Religious leader (Central Kalimantan, NTB) West Sumatra: quick response, often oppressive, legal basis for reprisals not clear, often adat based. A certain amnesty given for first time offenders. Police last resort. Central Kalimantan: usually can be effectively resolved, sometimes with an oppressive approach. Quick to respond where accessible and for small cases. Not always impartial. Police in particular can be paid off. East Java: can often result in vigilantism if not dealt with; bajingan are sometimes used to buy the Village Head. NTB: can be solved quickly, in some cases the police leave it to the kepala lingkungan. Maluku: Most of these cases are handled quite successfully by the Rajas, sometimes in conjunction with the police. Where pride is involved, men often utilise carok as a resolution process (in Pamekasan, see below) Not accepted as crimes, difficult to prove according to adat or national law. Public process with no women directly involved in resolution, or closed process within extended family. Women often urged to comply and accept or be accused of causing problems. NGOs may support women to find an acceptable solution. Adat is highly patrilineal and this is rarely considered as a serious problem. Women often pressured to accept solution, without the case being raised. Police often return the case to the parents of the parties concerned, or the Village or Hamlet Head (NTB). Adat laws (and sometimes village regulations) make women the object in the process, accepting whatever solution is reached by the men. In the case of rape, the solution resembles a lottery, and women are marginalised as the party considered to have misbehaved. Most counselling over divorce will be offered by religious leaders. Adat leaders will be called upon to try to prevent a breakdown or to January

10 Typology Dispute Resolution Actors Related Issues/Assessment RT/RW/Village Head (Central Kalimantan, NTB) KUA (Religious Administrative Office) (Central Kalimantan) P3N (marriage clerks - NTB, Maluku) resolve distribution of property once divorce is inevitable. Many divorces are done without process (only a verbal divorce said by the husband). Women often do not get property after divorce (but there is a codified adat law in NTB where women get half the share of the men). In inheritance, women do not get their share unless they claim it. Inheritance of lineage land and titles (West Sumatra) Land disputes (Central Kalimantan) Land disputes (East Java) Land disputes (Maluku) Land disputes (NTB) Nagari land (ulayat) and natural resources (West Sumatra) Natural resources conflicts (Central Kalimantan) Family and adat leaders District Court (court ruling or mediation) Adat leader and staff Village Head Police Courts Village Head Kyai (inheritance related and often witness) Raja (Village Head) Courts RT/RW, Hamlet and Village Heads Adat leaders Adat leaders Government (Camat, Bupati, Governor) Police and military NGOs Adat leader and staff Village Head Police Courts The most common type of conflict, often running for decades. Land conflicts related to holding of adat titles and positions. Adat leaders often both the offender and supposed defender of land. Execution of adat or court decisions not always effective. Generally individual (or familial) but not communal. More prevalent in Pamekasan. Types of conflict are land boundaries, land rights between migrant and locals, land rights between state and locals. Conflicts with third parties (private investor or government). Communities have poor understanding of legal basis for land use. Joint demonstration and physical blockade is a last resort. Adat leaders and government often have vested interests and are not neutral. This type of conflict appears to be increasing as forested land becomes an object of investment. Not always impartial. Conflicting and confusing legal frameworks. Communities lack effective unifying force to confront powerful third parties. Government interests often contrary to local communities. Water resources (East Java) Village Head Management of water resources causes frequent conflicts. Water and land resources (NTB) Corruption Village and Hamlet Head Adat leaders Perekat Ombara (Adat Community Organisation) Police Village Head Community leaders Absentee land ownership and exploitation by logging companies are issues. NGOs active in advocacy. People wish to reclaim adat forest and beaches, which may cause future conflicts. Use of the security forces is more dominant than locally based or court solutions. Inaction and bribery often associated with police investigations into corruption. Use of informal negotiation to resolve corruption etc. Many villagers do not know where to go to solve corruption cases. Related to aid programs. Police involved in solving related defamation and threat cases (NTB). January

11 Typology Dispute Resolution Actors Related Issues/Assessment Disputes surrounding Village Head elections including incidents of intimidation (East Java) Carok (East Java - Pamekasan) Inter-ethnic disputes (Maluku) Camat/Bupati Police Community leaders Election officials Village Head Kyai Raja Court Political issues are resolved by higher political powers eg the Bupati. These disputes are distinguised for their use of politicised dispute resolution mechanisms (eg requiring agreement between candidates). In collaboration with security apparatus and Kyai; a process of reconciling disputing parties; often utilised for disputes involving pride. Dispute typology by nature of parties Outside-community Inter-community Intra-community Land disputes with plantation companies/private investors/ government Rights to compensation for use of natural resources (lake, river, sand and soil) with government Pollution cases with private investors Work conditions and pay disputes with plantations Road damage and pollution disputes with plantations Administrative disputes with government Mixed marriages between Hindus-Buddhists-Muslims (NTB) Claim to public facilities (graves) (NTB) Land and village boundary disputes Public disorder and violence (fighting, drugs, minor thefts) Crimes against women Ulayat rights (resources) eg fishing grounds, access to water supply. Elopement (ngiwat) (NTB) Land: boundary disputes, inheritance rights, sale and pawning of land Public disorder and violence (fighting, drugs, minor thefts) and domestic violence. Familial disputes (marriage, divorce, inheritance, domestic violence) Adat or moral violations such as insult, breaking of moral protocols, sexual harassment and assaults, sexual relations before marriage. Resource disputes (eg fishing rights and management) January