Section IV Forging the Middle Ground: Embracing Strengths and Addressing Weaknesses Conclusions & Recommendations 59
SECTION IV: FORGING THE MIDDLE GROUND:EMBRACING STRENGTHS AND ADDRESSING WEAKNESSES -CONCLUSIONS & RECOMMENDATIONS A. Conclusions The objective of this research was to document the workings of non-state justice at the village level, with a particular focus on social inclusion and the perspectives of the marginalized. The paper also sought to understand the dynamics of change and how to translate them into a framework that embraces the strengths and addresses some of the shortcomings of informal dispute resolution. Main Conclusions Primary form of dispute resolution; crucial for livelihoods of the poor. Informal justice is the primary form of dispute resolution. How disputes are resolved has significant economic and social consequences for the poor. Informal justice mechanisms have clear strengths. The research suggests that for small intracommunal disputes, non-state justice operates rapidly and effectively. High satisfaction rates reflect this success. But also significant weaknesses. As the stakes are raised and power relations intervene, the lack of clear standards, absence of upward or downward accountability, opaque interface with the formal system and the systemic under-representation of women and minorities combine to create significant arbitrariness. In such circumstances, local power relations and social norms dictate processes and outcomes, often to the disadvantage of the weak and disempowered. Disputes over land are the most complex and difficult to resolve. Positive examples of change exist, albeit few and far between. Political openness and democracy are creating progressive dynamics which some local groups are exploiting to create more innovative and inclusive models of dispute resolution. The crux of the findings was that non-state justice is the primary mode of dispute resolution. The combination of accessibility and social authority means that informal justice systems mediation and negotiation though village heads, religious leaders, traditional customary systems and community leaders are the exclusive experience of justice for the vast majority of Indonesians. Consequently, state-centric approaches alone to reform of the justice sector in Indonesia are inadequate, as the locus of justice is at the village level, not the courts. The second key message is that how non-state justice operates is crucial to the livelihoods of the poor. The cases documented covered access to land and natural resources; property disputes over marriage, divorce and inheritance; serious crimes and inter-communal violent conflict. Individuals and communities unable to resolve these disputes suffer significant social and economic consequences. For the majority of minor, petty cases, informal justice processes are both appropriate and largely effective. Communities express satisfaction with the performance of non-state justice mechanisms over the courts, prosecutors and police. But while social legitimacy and authority are the key to the popularity of non-state justice, the unchecked exercise of social authority is simultaneously its main weakness. This can lead to the exclusion of marginalized groups, arbitrary decision-making and dispute outcomes determined 61
by power relations and social norms rather than rule of law. Non-state justice tends to reflect and entrench existing power relations at the expense of rights and justice for women and minorities. And yet it is precisely this kind of injustice that can trigger broader violent conflict. Disputes over land given the significant economic interests at play are both the most likely to trigger conflict and the most difficult to resolve. The issue, therefore, is simply too important to ignore. Failure to support more inclusive nonstate justice will mean continued inequality, economic disenfranchisement and potential for conflict. And yet formulating a response is far from simple. Significant variations in procedure and substance mean that developing a framework to engage with non-state justice systems is inherently complex. It was not surprising, therefore, that no examples of wholesale change or innovation to open up opportunities for women or minorities were found in the course of this research. That said, political openness and democracy are creating progressive dynamics which some local groups are exploiting to create more innovative and inclusive models of dispute resolution. Local constituencies for change on a policy level and grassroots examples of change exist both within government and civil society and need to be supported. Understanding Non-State Justice in Indonesia: Key Findings Non-state justice is the primary form of dispute resolution While often referred to as alternative dispute resolution, non-state justice is almost the sole experience of justice for most Indonesians. Village heads, village government officials and religious, traditional customary and community leaders were reported by most villagers as the main dispute resolution actors. By comparison, only two percent reported contact with the courts. Prosecutors and lawyers were equally almost invisible. There is a critical link between justice, stability and poverty Non-state justice systems handle a broad range of disputes, including those most central to social stability and livelihood. Criminality, land conflict, inheritance, marriage and divorce and domestic violence were the most commonly reported forms of legal problem. Equitable resolution of these disputes helps women to secure property division on divorce and ensure their children have legal identity necessary for access to health and education services. And of course nothing is more fundamental to security and livelihood than certainty of tenure over land. Non-state justice systems are dominated by social norms While there are many paths to justice, informal dispute resolution is on the whole not a comprehensive and coherent system, but a set of processes run by a range of influential individuals. 62
There are locations, notably West Sumatra, where local customary law tribunals are wellestablished, with a set structure and written laws and procedures. But even more common are processes such as those found in Kalimantan and Maluku, whereby village heads or powerful religious leaders resolve disputes based on local conceptions of justice or fairness or subjective notions of what constitutes an appropriate outcome. No reference is made to state, religious or traditional law. Social norms and power relations determine outcomes. This lack of definition can provide non-state justice actors flexibility to secure resolutions and impose sanctions that are in line with local customs. But it can also lead to arbitrariness that discriminates against the weak. Harmony imperative can lead to impunity The ability to restore harmony through non-adversarial mediation is one of the core strengths of non-state justice. However, the harmony imperative is often corrupted, becoming synonymous with maintenance of the status quo. In clan-based societies in particular, restoration of harmony revolves around balancing communal relations. The search for harmony can come at the expense of individual human rights and justice. As evident in the Sepa case where the family of a seventeen year old rape victim was forced to apologize to the perpetrator, the subjective nature of what constitutes harmony can be abused to suppress legitimate complaints of the weak. The absence of effective oversight means that there is little recourse to appeal for the powerless in such circumstances. The harmony imperative also drives the sanctions imposed by non-state justice systems. Sanctions for both civil and criminal disputes are usually monetized, combining a punitive element together with restitution for any material damage. Fieldwork also documented isolated instances of physical punishment, including whippings and beatings, which legally are beyond the authority of non-state justice actors. Again, in the absence of effective oversight, such draconian sanctions can be and are imposed with impunity. Strengths: Accessibility and Social Legitimacy This combination of flexibility and local legitimacy and authority carries many advantages. In addition to being more popular than formal justice, community members reported higher levels of satisfaction (69% to 59%) with the performance of informal dispute resolution actors over their formal counterparts. Small, petty disputes within a community are generally resolved rapidly. Of fourteen such cases documented in this study, eleven were resolved without major difficulty. In such cases, the accessibility, flexibility, low expense and speed of non-state justice represent significant advantages over formal justice. Cases studied were resolved on average in two-three weeks, often less. Case filing and hearing fees are usually small. 63
Voluntary and consensus-based, it is also able to restore harmonious relations in a way courtbased adjudication cannot. In the Kalimantan stabbing case, a win-win resolution was secured and the families of the perpetrator and victim now share amicable relations following adat resolution. The core strength of non-state justice lies in the social authority and legitimacy of its actors. The inherent legitimacy of village heads, religious leaders and community figures brings disputants to settle and is fundamental to enforcement of mediated outcomes. Weaknesses: Power Imbalances and Lack of Accountability While social legitimacy underpins the strengths of non-state justice, its unchecked exercise can equally lead to arbitrariness. This can be exploited by the powerful, who utilize their influence to set the norms and processes of dispute resolution. As evident in the Adat Insult case in West Sumatra, norms can be applied selectively depending on the authority of disputants. The Market Fight and Anggeng cases also show that powerful disputants can be immune from enforcement. Women Lack Representation Women and minorities are under-represented in village dispute resolution institutions. Village and hamlet heads are the main dispute resolution actors, but only 3% and 1% percent respectively are female. This does not make access to justice impossible, though many women echoed the thoughts of a female villager in Sembuluh II in Central Kalimantan, It would be easier [to report problems] with a woman. Sometimes we re embarrassed with men. The Kalimantan divorce case and several land cases from West Sumatra show that women s lack of representation in the institutions of informal justice leaves them vulnerable to exploitation. It also means that women s legal problems are regularly overlooked or not taken seriously. More serious still, for sensitive cases such as domestic violence, many women simply do not complain at all for fear of social repercussions. Inter-ethnic, trans-communal and third party disputes difficult to resolve Disputes that cross ethnic or religious divides can be difficult to resolve. Particularly in the case of traditional, adat-based mechanisms, dispute resolution actors are almost always indigenous ethnic elites. Ethnic minorities and transmigrants often have second class status under customary law. The conflict between Batak and local Minang groups in Kinali, West Sumatra, and views of Madurese returning to Central Kalimantan raise concerns over the ability of systems based on traditional customary law to meet the justice needs of modern, heterogeneous Indonesia. Minority groups, particularly in post-conflict areas, consistently expressed a preference for the formal justice sector, seeing it as relatively neutral and unencumbered by political influence and ethnic prejudice. 64
Disputes that cross territorial boundaries are equally problematic. Non-state justice actors are rarely able to project authority beyond territorial or social boundaries. This reality is exacerbated by low levels of social trust across village boundaries. Fifty-eight percent of villagers stated that everyone in their own neighborhood could be trusted, but that figure dropped to 36 percent for people from surrounding villages. The extraordinary Berlin Wall case in Lombok is an extreme example where, in an idyllic resort island, warring kampung have been divided by a three-meter high wall. Local leaders lack authority to stop the violence. The Centrality of Land Disputes Minor intra-village disputes over land boundaries are usually resolved without major difficulty through non-state justice systems. However, as the Gunung Sari mine case and several disputes tracked between communities and palm oil plantations in Central Kalimantan attest, the problems are accentuated when powerful external interests are at play. Village institutions are usually powerless to prevent environmental problems and land disputes where private sector companies often backed by government are involved. This powerlessness can spill over into horizontal conflict at the local level, as evident in Sampung village near Sari Gunung and in research locations across Central Kalimantan. National and regional government programs to massively expand palm oil plantations across the archipelago are certain to exacerbate an already difficult and complex problem. And yet neither the formal nor informal justice systems are working effectively to resolve these disputes. Non-state justice fails due to the power imbalances mentioned above. Formal justice fails both for the same reason but also because the disputes are often over more than pure legal issues. Communities regularly wish to collaborate with private sector companies through joint land use agreements. Other times the issues are less legal and more about equity and social justice squatters who have been living for long periods on state-owned land; communities who have been unofficially permitted to settle in an area but are forced to resettle. These issues require flexible mediated outcomes based on the broader public interest. Informal justice mechanisms are not functioning as an effective forum to mediate these disputes, so an alternative mechanism is necessary. Such a mechanism should be based on mediation and bring together the broad range of interests at play government, private sector, civil society organizations and communities. Unclear interface between formal and informal systems The absence of a clear interface between informal and formal justice, particularly with respect to jurisdictional authority, creates legal ambiguity and opens up scope for rent-seeking and manipulation of disputes. As evident in the Kalimantan divorce case, police pick and choose when to mediate or prosecute a case, unguided by official procedures. As the Anggeng and carok cases show, the courts also decide unilaterally whether to accept or reject local customs and practices, without the application of clear criteria. This ambiguity 65
leaves the weak and uneducated who are not adept at understanding or moving between the systems open to exploitation. The absence of a clear right of appeal to the formal system also undermines the accountability function of the state legal apparatus. Regional Autonomy is an Opening for Change Regional autonomy represents an opportunity to address some of these weaknesses. Decentralization laws have bestowed authority on district governments to regulate the form and structure of village governance, including dispute resolution mechanisms. This could potentially see new structures established to tackle inter-ethnic conflict, enhance women s representation and address complex trans-communal disputes. However, no such examples of institutional reconfiguration were discovered during the fieldwork. In fact, in West Sumatra, Maluku and Central Kalimantan, this authority has been utilized to revive traditional governance structures based on adat. The reversion to the old ways is not only a means of reaffirming indigenous cultural identity, but also epitomizes romantic ideals of what the past represents. As Benda-Beckmann has observed with regard to West Sumatra, adat has acquired great symbolic and rhetorical importance and is the magic charm that will bring a better future. 78 The findings of this paper suggest that the revival is unlikely to tackle the major problem identified, namely, the need for more equitable treatment of women and minorities. But positive examples of change do exist The research identified some innovative examples of grassroots change. Women s groups in West Sumatra have grasped the emancipatory potential of legal awareness and community mobilization. Having informed themselves of the intricacies of adat law, they have now secured acceptance in the community and an effective position in dispute resolution. The Perekat Ombara village alliance in West Lombok embraces a progressive view of adat which acknowledges the need for local custom to adapt to modern realities, including representation for women. It has developed a clear structure and mechanism for dispute resolution, with written norms and procedures and the right to appeal. Legal awareness and legal education have been shown to open up options and make the formal system more accessible for all. By reducing the monopoly of non-state justice actors, rights awareness can empower the marginalized to secure better justice outcomes. Examples from neighboring countries such as the Barangay Justice System of the Philippines and the Community Justice Liaison Unit of Papua New Guinea also offer inspiration for policy-makers interested in strengthening the effectiveness and inclusiveness of the informal justice mechanisms that represent the core of justice provision in Indonesia. 78 Benda Beckmann (2001), above n.22, p.33 66
And while concrete examples on the ground are limited, discussions with hundreds of government officials, parliamentarians, activists, village leaders and ordinary community members during the course of the research demonstrated that there are constituencies for change. These constituencies can and should be supported. B. Recommendations Main Recommendations Combine grassroots action and policy change. Forging a meaningful middle ground requires a mix of policy, regulatory and grassroots change. Strengthen downward accountability. Empower weak and marginalized groups to demand better quality service from informal justice. Improve the quality of non-state justice. Develop the capacity and technical skills of nonstate justice institutions and actors. Enlarge the shadow of the law. Enhance access to the formal justice system in order to increase options for dispute processing at the local level. Enhance upward accountability. Establish national guidelines to strengthen the interface with the formal sector and regional regulations that institutionalize a core set of principles that promote equity and are consistent with constitutional standards. The primacy of non-state justice dictates that a comprehensive strategy for supporting rule of law in Indonesia must look beyond the courts. Lawyer, litigation and formal justice sectorbased strategies alone will not reach out to the rural poor. But designing a strategy to do this is complicated by the vast array of actors, institutions, and processes involved. Such reform would inevitably impinge on established social norms and power structures which cannot be simply legislated out of existence by regulations or policy statements. Recommendations to reform local institutions can also easily be dismissed as unfeasible or centrist social engineering and meddling in well-established social structures. Indeed, it could be argued that the complexity of informal justice is such that nothing should be done. According to this view, the problems are intractable. Supporting non-state justice would merely entrench poor justice for the poor. Thus, resources should be directed to making the formal system work effectively. 79 Others adopt an entirely different stance, idealizing local practices and arguing for blanket state recognition of informal justice mechanisms. 80 This approach is equally flawed, as it overlooks the absence of minimum standards and lack of effective oversight identified as weaknesses by this paper. 79 Hohe and Nixon distinguish between idealists, who hold out for a perfect justice system, and realists, who are more inclined to work with what currently exists. See Tanja Hohe & Rod Nixon (2003) Reconciling Justice: Traditional Law and State Judiciary in East Timor (Working Paper prepared for United States Institute of Peace, January 2003), 38. For a general typology on stances the state can take towards non-state justice mechanisms, see Connolly (2005), above n.11. 80 There are elements of this approach in the recent LP3ES study on village mediation: Widodo S. Dwi Saputro, Burhanuddin, Adnan Anwar & Badrus Sholeh (2007), Balai Mediasi Desa: Perluasan akses hukum dan keadilan untuk rakyat, Jakarta: LP3ES & NZAID. 67
Lying somewhere in between is a more realist perspective. Non-state justice is the primary means of dispute resolution. It has proven highly resilient. Engagement with informal systems, therefore, should be a central element of any program supporting rule of law. The key, to paraphrase Xanana Gusmao, is to grow the positive and weed out the bad. Arguably, and if not by design then by default, the government has with the advent of decentralization effectively created space for adopting a partial incorporation approach to non-state justice systems. However, this approach has not yet been translated into concrete actions. Where action has been taken at the regional level, more often than not the response has been to return to the old ways, which are exclusionary and socially regressive. This paper proposes a framework for forging a meaningful middle ground between the current practices of non-state justice and the formal justice system. This approach seeks to marry the social accessibility, authority and legitimacy of informal processes with accountability to the community and the state. This approach recognizes the legal pluralist reality of Indonesia and that a blanket model for non-state justice would be neither preferable nor feasible. This middle ground, therefore, accommodates different socio-cultural contexts, customs and habits but at the same time introduces common principles to protect the marginalized. Thus, in this final section, we lay out some recommendations to forge this middle ground. It aims not to create ideal or perfect non-state justice, but to target the two key weaknesses (i) redress arbitrariness and balance social authority with social accountability; and (ii) to improve the performance of non-state justice in serving women and minority groups. The recommendations are directed towards government at national and regional level, civil society organizations active in this field and the donor agencies that support them. Combine Grassroots Action and Policy Change The case studies, analysis and examples of change presented earlier suggest that forging the middle ground requires a mix of policy, regulatory and grassroots change. This change should empower the weak and marginalized, enhance the quality of justice delivery through informal justice mechanisms and stipulate clear minimum standards through regulatory reform. Accordingly, the recommended action is at four levels. 1. Firstly, work at the grassroots level to support downward accountability and empower weak and marginalized groups to demand better quality service from informal justice. This is the most important priority as it tackles the main weaknesses head on. 2. The second priority is to work at the mezzo level to develop the capacity and technical skills of non-state justice institutions and actors. 3. The third priority is to look beyond the village to enhance access to the formal justice system in order to open up options and enlarge the shadow of the law. 68
4. To underpin the grassroots work, the final priority is national and regional government policy change to support upward accountability through the establishment of (i) national guidelines that strengthen the interface with the formal sector; and (ii) regional guidelines to institutionalize a core set of principles for equitable and inclusive non-state justice that it is consistent with constitutional standards. Table 3: Framework of Engagement Level Priority Action Grassroots/Community Empower women and minorities through rights awareness Make dispute resolution actors accountable downward by making them electable by the public Open up access to the formal system through legal literacy and circuit court programs Support social mobilization and organization to address transcommunal disputes Village Institutions and Non-State Justice Actors Build the skills and capacity of non-state justice actors to resolve disputes professionally Support clarification of structures and norms Support representation for women and minorities in village institutions District Level Establish a regional regulatory framework that enshrines constitutional standards ensuring right of appeal, humane sanctions and representation for women and minorities Build upward accountability by supporting civil society and government monitoring and oversight of non-state justice National Level Issue court regulations clarifying the jurisdiction of non-state justice vis a vis the courts Establish a Community Justice Liaison Unit in the Ministry of Law and Human Rights to encourage compatibility and consistency between non-state and state justice (along the lines of the Papua New Guinea model) 1. Create Downward Accountability: Empower the marginalized to demand better justice The examples of change indicate that the most effective means of bringing about reform are grassroots actions to level the playing field and empower the weak and marginalized to demand better justice services. Afrida s case demonstrated the power of legal information to push for representation in adat deliberations. Specific recommendations include: Legal rights awareness: legal literacy programs that focus on the main types of disputes identified in this research (land, domestic violence, family law issues) will help communities to understand their rights and how to enforce them. It also protects the weak and marginalized against being manipulated and tricked by the powerful. Social mobilization: particularly for disputes involving powerful external interests, communities must learn how to take collective action. Assistance should be provided to 69
and by NGOs to build up local organizing and advocacy skills to help match the power of private sector and other strong external interests. Election of village-level informal justice actors: Where possible and supported locally, informal justice actors should be elected to ensure downward accountability to end-users. This could be enshrined in either a village or district-level regulation. However, it may not always be appropriate in certain areas where local norms and practices for determining informal justice actors are well-entrenched, such as West Sumatra. 2. Improve Quality: Develop capacity and facilitate structural change In many parts of Indonesia informal mechanisms have ceased to function adequately. This was particularly evident in research locations in Central Kalimantan, where many damang felt they lacked the resources and technical skills to resolve disputes effectively. Direct engagement with local level institutions to address some of these needs should focus on: Training and skills development: Specific training programs on mediation, gender and documentation would be useful. Training and skills development should naturally focus on those local actors identified as most commonly involved in informal dispute processing community and adat leaders, village heads, and the police. Similarly, training and skills development should focus on resolving the most common forms of dispute criminality, land conflict, inheritance and divorce, and domestic violence. An accreditation program for informal justice actors: Training and skills development should open pathways to accreditation by the Supreme Court. Training should cover the basic procedures and substance of the formal justice system while simultaneously providing mediation and dispute resolution skills. Such a program would assist to raise the legitimacy of the informal in the eyes of the formal and vice versa. Tackle representation through sustained engagement with specific marginal groups: Tackling representation requires a two-pronged approach. Firstly, means for representation for women and marginalized groups must be developed. Examples from West Sumatra and also of the female village head in Maluku show that lobbying and representation can make a difference. Simply stipulating minimum levels of representation, however, will not guarantee impacts on the ground. Representation needs to be made meaningful. Ensuring the participation of marginalized groups such as women, and ethnic and religious minorities requires targeted empowerment and capacity building activities. The example of the women s group in West Sumatra indicates how this can be done. Support existing codification initiatives: Clarifying the procedures and structures of informal mechanisms has several advantages. It can shift power within the village by making mechanisms more transparent and understandable for the local community. It can also facilitate a smoother interface with the formal justice system. However, there also significant risks. Codification can stymie the inherent flexibility of informal mechanisms. It can also entrench elite perceptions of informal mechanisms and power relations. Nonetheless, the fieldwork indicates that codification is increasingly common. Where 70
there is demand for codification, support should be provided by civil society and donors in order to mitigate some of the negative consequences. Concretely, this can include: (a) support for participatory processes that include all local stakeholders, particularly women and minorities; and (b) gender and human rights analyses of local substantive and procedural norms. Capacity building for inter-village forums: The capacity of village-level justice mechanisms to resolve inter-village disputes and disputes that involve outsiders is particularly weak. Inter-village forums that exist should be provided with capacity-building similar to that recommended above for village institutions. Establish a Community Justice Liaison Unit in the Ministry of Law and Human Rights at the National and Regional Levels: The purpose of the Unit would be oversight and capacity building of non-state justice actors, awareness raising programs for marginalized groups and documentation and dissemination of interesting local initiatives at the international, national and regional levels. The Unit would promote harmonization and consistency between state and non-state justice systems that is, be an agent to actively forge the middle ground between the two domains of justice. 3. Enlarge the Shadow of the Law: Make the formal justice system more accessible The primacy of non-state justice does not obviate the need to create an accessible and independent judiciary. Although rarely utilized, the courts operate as an accountability mechanism. If a party is dissatisfied with the outcome of an informal process whether for technical, political, corruption or normative reasons the decision can be appealed or reviewed in the formal system. Many women and ethnic minorities expressed a preference for the formal system in serious cases. Helping to improve access to the courts will in turn enhance oversight over non-state justice. Legal education: The GDS data shows that people who are aware of their rights are more likely to use and trust the formal legal system. Legal education, therefore, is an essential first step towards making the formal system accessible. Community legal awareness programs should aim to demystify and simplify the formal justice system, convey its scope and authority, and present it as a genuine alternative forum. Increase paralegal programs as informal-formal intermediaries: Awareness of rights is of limited value without access to resources to enforce them. Paralegals are ordinary community members trained in the legal process who act as a first point of call for legal assistance. The quantitative findings indicate that although the presence of paralegals is low, they enjoy very high satisfaction rates. They can help to provide organizational skills and open up access to the formal system. Support viable and sustainable legal aid outreach, particularly for vulnerable groups: For access to the formal system to be meaningful, paralegals and disputants require a network they can tap into for legal assistance. This is more important for some types of dispute than others, such as serious crimes, repeated offences, disputes involving local power figures, and 71
disputes involving significant economic resources. This is particularly important for women, who are often constrained by social pressures from seeking legal assistance. Support regular circuit court programs: circuit courts, whereby judges travel to sub-district and village levels to hear simple civil and criminal cases enhances accessibility and opens up access to appeal from non-state to state justice. 4. Enhance Upward Accountability: A Policy and Regulatory Framework A policy and regulatory framework would lay out a broad set of principles and minimum standards to embrace the strengths and address some of the weaknesses of non-state justice. Improving the policy and regulatory legal framework would not bring about immediate action on its own. Indonesia, like most developing countries, is replete with examples of unimplemented laws, regulations and policies. But such a regulation would represent a powerful statement of intent. It would also provide the starting point to guide the work of government, NGOs and donors to deliver capacity building, training and other interventions geared towards improving the quality of justice delivered at local level. National Policy Guidelines: The National Development Planning Agency (Bappenas) is developing a National Strategy on Access to Justice for inclusion in the 2010-2014 Medium- Term Development Plan. The current 2004-2009 plan includes standard rhetoric regarding the importance of non-state justice, but no guidelines on appropriate strategies to enhance the interface with formal justice and to support upward and downward accountability. The 2010-2014 plan should include a framework for change to give meaning to the policy rhetoric, empowering regional governments to regulate to that effect. Supreme Court Regulations to Facilitate Formal-Informal Interface: The administration of justice remains a central government function. Thus, while regional governments possess the authority to regulate the structure of non-state justice mechanisms, it is the Supreme Court which has the jurisdiction to establish regulations and policies that facilitate formal and informal engagement. This could be achieved by: (a) clearly defining the extent of the jurisdiction of non-state justice mechanisms; (b) expanding the Supreme Court Annexed- Mediation program to extend accreditation to village-level mediators; (c) facilitating the involvement of local provincial and district courts in regional regulatory development related to non-state justice; and (d) establishing a clear mechanism and guidelines for reviewing appeals from informal justice to local courts. Establish a Regional Regulatory Framework: Regulation does not lead immediately to action but remains a necessary step to translate national policy into locally appropriate minimum standards and a framework of accountability. The paper recommends the passage of district regulations that would enshrine principles capable of universal application but leave space to accommodate local customs and practices. District governments are recommended to issue regulations governing informal justice systems that cover the following key areas: 72
Jurisdiction: Clearly establish the respective jurisdiction of informal and formal justice systems. Representation: Ensure that all members of society have the opportunity to be represented in informal justice mechanisms, including women and minorities. Actor Selection: The framework should create downward accountability by establishing clear procedures for electing or selecting informal justice actors. Basic Procedures: The framework should indicate in general terms the process of informal deliberation and dispute processing. This would go no further than ensuring voluntariness, the right to hear and be heard. Trans-communal disputes: Specific mechanisms for resolving trans-communal disputes should be established to address inter-village conflict and disputes between communities and external third parties. Appeal: The framework should establish a clear pathway and criteria for appeals from the informal to the formal system. Sanctions: Ensure sanctions imposed by non-state justice systems are humane and do not contravene standards laid down in the constitution. Establish local multi-stakeholder forums/land mediation: To improve communication and oversight of village justice, multi-stakeholder forums comprising judges, prosecutors, police and informal justice actors should be formed at the district level. By meeting on a regular basis, the forums create space for addressing particular disputes, building mutual understanding, facilitate dialogue on legal and regulatory reforms and introduce an element of oversight from the state over non-state justice institutions. These forums could also form the basis of a fresh mechanism to address complex land and inter-ethnic disputes, where mediation is likely to be more effective than adjudication in light of the sensitivities and vulnerability to violence. The recommendations presented above attempt to embrace the strengths and address the weaknesses of informal justice. They are based on a realistic expectation of incremental change that can gradually enhance equity for the marginalized. The Justice for the Poor program is following up this study in two ways. The first is in a policy sense by integrating the findings and recommendations into the National Access to Justice Strategy currently being developed by the Government of Indonesia under the leadership of the National Development Planning Agency. The second means is more operational, by attempting to implement the recommendations in collaboration with a rich and varied group of collaborating partners in West Sumatra and West Nusa Tenggara provinces. During the course of this research, working groups were established in these locations comprising senior provincial and district government officials, parliamentarians, judges, prosecutors and police, civil society organizations, village heads, adat leaders and religious organizations. Together with these groups, programs have been developed to help improve the operation of non-state justice in a set of pilot villages, drawing on the recommendations above. The 73
approach is deliberately low-key and incremental, working with existing institutions. The approach is tailored to realities on the ground, acknowledging that openings for reform vary in each location. In West Sumatra, policy advocacy is the current main focus as district regulations governing non-state justice are in the process of being amended. In NTB, most attention is on defining dispute resolution structures, processes and norms, as this is where the appetite for reform lies among local stakeholders. Thus, the framework for engagement outlined above offers a range of options applicable to different extents in different locations. It must, therefore, be suitably tailored to local conditions and grounded firmly in realism. The Government of Indonesia is also implementing some of the recommendations of this paper through the design of a stand alone component on community legal empowerment under the Support for Poor and Disadvantaged Areas project. 81 This paper has highlighted the centrality of non-state justice to social stability and economic livelihood at the local level. A comprehensive strategy to support rule of law simply must acknowledge reality and engage with village justice mechanisms. The broad-based recommendations identified here can complement national level reforms in a manner which focuses assistance at the level where it is most needed, enabling the poor and marginalized to resolve their disputes and support Indonesia s drive for reform. 81 See http://p2dtk.bappenas.go.id/ 74
ANNEXES ANNEX 1: Regulatory changes related to village governance and non-state justice systems in the research locations since Regional Autonomy Province Provincial & District Action Village Level Implementation West Sumatra Central Kalimantan Province: Regulation 9/2000 on the Basic Rules of Nagari Governance. The province reverts to the nagari as the lowest form of local governance, reversing Law 5/1979 on Village Governance. District: Of the 12 districts, 8 have passed regional regulations implementing 9/2000; 3 are newly formed districts and are currently following their old districts. The other is in the ethnically distinct Mentawai islands, which have their own system. Province: passed Regulation 25/2000 on the Jurisdiction of the Government and the Provincial Government as an Autonomous Region. District: a number of districts have passed regulations on the same topic, including Pulang Pisau Regulation 11/2003 on the Formation and Empowerment of Dayak Adat Institutions and East Kotawaringin Regulation 15/2001 on Adat Institutions in East Kotawaringin. The traditional clan-based nagari administration is largely back in place in West Sumatra. The Lembaga Adat Nagari (LAN) has official responsibility for dispute resolution, but this is in practice split with the state village head (wali nagari) as well. Has given greater credence to the customary law leaders (damang) and the role of adat law in dispute resolution. On the ground, the revival of adat is half-hearted and unsupported by concrete action. Does not alter governance structure, but strengthens the status of adat law and adat leaders (damang). East Java No change Local leaders have become more politicized by democratic changes. Islamic identity also strengthening. West Nusa Tenggara Maluku Province: Regulation passed to define the role and structure of village governance, but varies little from the previous arrangements. No changes with respect to dispute resolution. District: Some districts are considering passing regulations to recognize adat institutions and adat law. Province: Regulation 14/2005 on the Return to the Negeri stipulates a return to traditional governance structures, known as the negeri, to be headed by a raja. This provides a degree of enhanced authority to the raja for dispute resolution. District: only Central Maluku has already passed an implementing regulation. Ambon City has prepared a draft and four more districts are doing the same. Some community-led initiatives have grasped the spirit of regional autonomy to create stand alone village adat tribunals, with clearly defined structures and codified adat procedures and laws. Limited impact at village level. As per the pre-1999 situation, the raja retains a high level of acceptance in some areas, mainly rural, but variable authority in the cities. 75
ANNEX 2: CASE MATRIX Location/ Timing Disputants Description of dispute and process of resolution Actors supporting resolution 1 Kuala Kapuas, Central Kalimantan 2003 Claimant: Kombit, a market official; ethnic Dayak. Respondent: Marhat, a reasonably successful trader; ethnic Banjar. Marhat s stronger bargaining position allows him to force an unwanted resolution Marhat was warned several times by Kombit not to trade in prohibited areas in the market. Marhat eventually protested these warnings and hit Kombit, causing injuries. Kombit and his boss reported the incident to the police. Inaction ensued as Marhat attempted to bribe his way out of trouble. Marhat s friends intimidated Kombit into referring the case to the damang and to withdraw the police complaint. The damang did not realize that Kombit had been forced to accept adat resolution. Formal: Police and Kombit s boss at the market Informal: Damang, adat council and Kombit s boss 2 Panangguan, Pamekasan East Java 2001 Claimant: Amir Respondent: Halim Bargaining power equal; village head forges a compromise outcome Halim, Amir s cousin sold land claimed by Amir for Rp 8 million. Attempts by Halim s brother to resolve the dispute failed. The case was referred to the village head. The village head referred to documentation on ownership of the land in question and to resolve the tension, split the land, pressuring Amir to accept the decision by threatening to take all the land for the village. Informal: relatives, village head 1-2 weeks 3 Souhoku, Seram Island, Central Maluku 1997 & 2003 Case I: Udin & Haryadi against Minggus Tamaela Case II: Udin against Lahamaku Case I: Udin and Haryadi bought land off Among Pieters. The land was registered, but Among did not hand over the certificate at the time of sale. The land was adjacent to another plot, owned by Minggus Tamaela. Later, Among asked Udin and Haryadi to cut down a tree on the land. After they did this, Minggus protested that the tree was actually on his land. He made threats towards Udin and Haryadi if they did not return the tree. Udin and Haryadi reported the incident to the Raja. Informal: Raja and his staff Case II: Udin got into a fight with Lahamaku over the boundaries Outcome & Enforcement Formal: investigation dragged without result for over 4 months Informal: resolution achieved in 2 weeks. Marhat apologized and agreed to pay Rp 6 million compensation. Case fees were Rp 600,000. Marhat paid only Rp 1.5 million. Damang took no action to enforce. Although neither an ideal nor legal resolution, the village head adopted a sensible decision to reduce tension. Lack of legal certainty could see the dispute recur. Case 1: the Raja requested Among and Minggus to pay to have the land boundaries measured. Case 2: Udin was correct, so Lahamaku paid for some land and 76
4 Palengan Daja & Poreh, Pamekasan Distrist, East Java 1996 5 Sumpur, West Sumatra 2003 6 Ruhua, Seram Island, Central Maluku Dec 2003 7 Sepa, Seram Island, Central Parties: Sammat and Sardiman Bargaining power roughly equal Parties: Gus, village newcomer & Datuk Rangkayo Basa, local lineage head Unequal bargaining position Parties: Halue Sunawe and village of Haya Victim: P, a 17 year old woman Perpetrator: P s of their respective land plots. Udin reported the case to the Raja, who this time sent his own land team from the saniri negeri to measure the land boundaries and determine the outcome. A land dispute over inheritance, which crossed village boundaries. The land in question was located in Sammat s village but used by Sardiman. Following a series of complex family links and inheritance issues, Sammat felt that part of the land was rightfully his. Sammat tried to assert this claim by marking the plot of land with stakes. Sardiman countered, claiming the land was his. Initial attempts by Sammat s village head to resolve the case were not well received by Sardiman. Later attempts on neutral ground also failed and came close to mass violence between each party s respective supporters. Incident occurred after Gus and Datuk Rangkayo sons fought in the street. Gus was upset and in complaining to Rangkayo she referred to him as you instead of the respectful datuk. This was overheard and reported to the KAN. A hearing was held and Gus was represented by her husband s mamak. Gus was ordered to pay gold money of Rp. 300,000, serve rice to the entire village, and publicly apologize. Halue Sunawe, a youth from Ruhua, went to pick cloves in a nearby village, Haya. Haya had been engaged in a longstanding feud with the village of Tehoru. Some people from Haya suspected Halue was from Tehoru and beat him. Halue responded by gathering some friends and stoning a public transport vehicle owned by people from Haya. The owner of the vehicle reported the incident to the police. P was raped by her brother-in-law. When she reported the incident to her husband, he beat her. Her parents took up the case, creating tension with the husband s family. Insults and threats of violence were exchanged. Subsequently, the Informal: Village head, respected community figure, armed groups supporting each party. Informal: Adat Council Informal: Police, Raja, Village Secretary Informal: village head, adat leader the matter was closed. Udin dissatisfied, but accepted the Raja s decision due to the lack of an alternative. Outcome: No successful resolution. Violence was just averted by the village head and community leaders. Outcome: Matter resolved. Datuk Rangkayo was satisfied, but Gus was dissatisfied with the outcome as she too had been insulted. Both parties apologized and signed a written settlement. Halue was fined Rp 500,000 to cover damage to the vehicle. He was pleased, as the process was rapid and avoided the court. Outcome: both families were fined for making threats. The rape was raised. It was also not 77
Maluku 2003 8 Jenggala Village, West Lombok NTB 2002 9 Blumbungan, Pamekasan, East Java January 2005 10 Lampung 2007 brother-in-law P is a young woman against a powerful family Parties: H. Anggeng Aswadi, a member of the local parliament and an adat council Anngeng, a powerful community member, is able to ignore the harmony imperative Perpetrator: Paidi, Victim: Wardi P did spend time in prison, but his connections bullied W into a settlement Parties: two village youths husband s family reported the case to the village head. He in turn referred the case to the local adat leader, as both families were part of the same clan. When a deliberation was held (in public), the adat leader ignored the rape and concentrated on the threats made by P s family towards her husband. The rapist was not called to appear. The adat leader was, incidentally, another of P s brothers-in-law. Anggeng s daughter was kidnapped by Sahrudin to be married, in line with local adat practice. Anggeng approved, contingent on payment of an Rp.5 million adat fine for the kidnapping. Anggeng tracked down his daughter to verify that she did indeed wish to marry Sahrudin. She was later found back at his house as well. This was viewed by the community as contrary to adat. Consequently, Anggeng was fined by the adat council. He rejected this decision and took the case to the District Court, which declared the sanction invalid. In response, the adat council increased the sanctions further, including evicting Anggeng from the village for three years and denying him his civil rights for the same period (no access to ID cards, adat functions, etc). Strangers, P and W, exchanged insults on the street following a car accident. P and his father then threatened W with a knife. W reported the matter to the police and refused attempts at peaceful dispute resolution by a kyai. The police detained P. The case was then reported to the village head who held a musyawarah. A few days later the village head, local military officer, a local gang member and a number of other community leaders, all from P s village, gathered at the village head s house. They had a pre-prepared written statement in which Wardi agreed to drop the police complaint. Feeling intimidated, he refused to settle. Ultimately, the gang member convinced both parties to settle. Pak Nuri is a farmer from a rural village in Lampung province. One day, his son got into a fight with a school classmate. That child s father stepped in and beat Nuri s son. Rather than report Informal: Hamlet chief, neighborhood chiefs, adat leaders at hamlet and village level. Formal: District Court Formal: Police detained Paidi Informal: police, lurah, gang member, kyai, community leaders & babinsa were all involved in attempts to resolve the case Informal: Parmin and Bejo, paralegals reported to the police. The victim was very dissatisfied with the process, as her case was announced publicly and then ignored. Outcome: Anggeng remains in the village and continues to be part of the community, despite the sanctions imposed upon him. Outcome: Ultimately a resolution was achieved, which saw P and his father apologize to W. P was released from jail and the matter considered closed. A mixture of social sanction and physical intimidation brought about the resolution. Outcome: successfully mediated resolution 78