FORGING THE MIDDLE GROUNDnew

iForging The Middle Ground: Engaging Non-state Justice In Indonesia

FORGING THE MIDDLE GROUND:ENGAGING NON-STATE JUSTICE IN INDONESIA

MAY 2008WORLD BANK INDONESIA

SOCIAL DEVELOPMENT UNITJUSTICE FOR THE POOR PROGRAM

www.justiceforthepoor.or.id

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ii Forging The Middle Ground: Engaging Non-state Justice In Indonesia

iiiForging The Middle Ground: Engaging Non-state Justice In Indonesia

FOREWORD

Legal and judicial reforms are essential for sustainable development, effective governance and poverty reduction – the heart of the World Bank’s mission.

The government of Indonesia, with support from the international community, is implementing a series of reform programs to improve the delivery of justice through state institutions – the Supreme Court, the Public Prosecutors and the Police. Significant institutional reforms have been made in recent years through the work of the Anti-Corruption Commission, the establishment of the Constitutional Court and ongoing implementation of the Supreme Court Blueprints for Reform.

In a country with a rich and varied culture and a strong history of legal pluralism like Indonesia, however, justice is not merely the purview of the state. The vast majority of legal grievances are in fact resolved out of court through community-based mechanisms. The sole experience of justice for most citizens is not a courthouse, but village meeting halls, customary law councils and mediation practiced by religious leaders and village heads. It is the day-to-day disputes that arise at this level – land, labor, inheritance, marriage and divorce – that have major socio-economic impacts on the lives of most Indonesians. If such disputes are not resolved efficiently and fairly, they can blow up into violent social conflict.

Hence, a policy focus on non-state justice systems is an important element of a comprehensive strategy for legal and judicial reform. This report, a product of the World Bank’s Justice for the Poor program, was launched to develop a policy and operational framework to enhance the effectiveness and social inclusiveness of non-state justice in Indonesia. Based on eighteen months field research from five provinces and quantitative data on justice and conflict from the Governance and Decentralization Survey, the paper documents dispute processes, preferences and practices of non-state justice systems across Indonesia and identifies local and regional innovations to improve its performance.

Undertaken in cooperation with the Supreme Court, this paper is intended to provide input into the development of the Court’s next Blueprint for Reform. It is also a contribution to the National Strategy on Access to Justice currently being developed by the National Development Planning Agency (Bappenas).

We hope that this paper will help to expand our understanding of the complex and varied processes of non-state justice and thus help policy makers find new ways of building an effective legal and judicial system accessible by all Indonesians.

Joachim von Amsberg Country Director, Indonesia

iv Forging The Middle Ground: Engaging Non-state Justice In Indonesia

ACKNOWLEDGMENTS

This report is a product of the World Bank Social Development Unit in Indonesia, with support from the Supreme Court of the Republic of Indonesia. It is a product of the Justice for the Poor team as part of its Village Judicial Autonomy program. It is based on a number of case studies of disputes resolved through village institutions in Indonesia, complemented by quantitative data from the Governance and Decentralization Survey (GDS).

Fieldwork was conducted by Justice for the Poor team members and local facilitators in five provinces. The facilitators were Rifai and Fitriyanti from the NGO Limpapeh in West Sumatra; Prima Wira Putra and Agus Hadi from Yayasan Lembaga Kemanusiaan Masyarakat Pedesaan in West Nusa Tenggara; Yuanita Oktavania from the University of Palangkaraya in Central Kalimantan; NGO activists Bai Tualeka and Bata Peillouw in Maluku; and researchers Novia Cici Anggraini and Zuyyinah in East Java.

The team wishes to thank all the villagers, village leaders, local government officials, legal aid lawyers, journalists, academics, civil society activists, police officers, prosecutors and judges who participated in the research as respondents and participants at verification workshops and follow up discussions. Particular thanks go to Supreme Court Justices Dr. H. Abdurrahman SH. MH., Professor Rehngena Purba SH. MS. and Prof. Dr. Valerine J.L.K, SH. MA for their support and guidance throughout the study.

The lead authors are Matt Stephens and Samuel Clark. All members of the Justice for the Poor team contributed, through analyzing case material, contributing both oral and written inputs and commenting on drafts. Lene Ostergaard and Pieter Evers contributed to the overall framework and development of the research field guides. Provincial reports from the five field locations were written by Peri Umar Farouk (West Nusa Tenggara), Dewi Novirianti (Maluku), Lene Ostergaard (West Sumatra), Samuel Clark (East Java) and Matt Stephens (Central Kalimantan). Taufik Rinaldi, Bambang Soetono, Mega Adam, Philippa Venning and Matt Zurstrassen gave comments and input. Particular thanks go to Daan Pattinasarany and Arya Gaduh for their assistance with analysis of the GDS data.

External peer reviewers were Dr. Sinclair Dinnen from the Australian National University, Professor Julio Faundez of the University of Warwick, Steven Golub from the University of California at Berkeley and Dr Jaap Timmer of Leiden University. Alexandre Marc reviewed from within the World Bank. Erica Harper of the International Development Law Organization, Patrick Barron, Pamela Dale and Andrea Woodhouse also provided comments. Juliana Wilson gave invaluable editorial input. The team wishes to give special thanks to Scott Guggenheim and Joel Hellman for their ongoing intellectual support and guidance to this study and the wider Justice for the Poor program. We also express appreciation to the World Bank-DFID Poverty Reduction Partnership Trust Fund and the Embassy of the Netherlands for their financial support.

Queries about the report should be addressed to Matt Stephens ([email protected]/[email protected]) and Samuel Clark ([email protected]/[email protected]).

vForging The Middle Ground: Engaging Non-state Justice In Indonesia

TABLE OF CONTENTS

FOREWORD .............................................................................................................................. iiiACKNOWLEDGMENTS .............................................................................................................. iv TABLE OF CONTENTS................................................................................................................ v GLOSSARY ............................................................................................................................... viiEXECUTIVE SUMMARY ............................................................................................................. ix PREFACE ............................................................................................................................. xvii

SECTION I: Introduction .......................................................................................................... 1 A. The Importance of Non-State Justice in Indonesia .......................................................... 4 B. Government Policy Approaches to Non-State Justice in Indonesia................................. 6 C. Forging a Meaningful Middle Ground............................................................................. 8 D. Methodology ................................................................................................................ ... 9

SECTION II: Understanding Non-State Justice Mechanisms: Dispute Typology & Process ............................................................................................................................. .13

A. Non-State Justice in Practice: A Typology of Disputes, Actors and Institutions ...........15 B. Dispute Procedures, Norms, Sanctions and Resolution Imperatives ..............................22 C. The Interface between Formal and Informal Justice.......................................................31

SECTION III: The Strengths and Weaknesses of Non-State Justice......................................39 A. Strengths: Why do people prefer non-state justice? .........................................................41 B. Weaknesses: When informal justice mechanisms fail ......................................................44

SECTION IV: Forging the Middle Ground: Embracing Strengths and AddressingWeaknesses - Conclusions & Recommendations ..................................................................59

A. Conclusions ....................................................................................................................61 B. Recommendations...........................................................................................................67

ANNEXES ...............................................................................................................................75Annex 1: Regulatory changes related to village governance and non-state justice systems in the research locations since Regional Autonomy ............................78 Annex 2: Case Matrix .......................................................................................................76 Annex 3: Structure of the Indonesian Formal Legal System............................................ 87

READING LIST & SOURCES OF INFORMATION .......................................................................88

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vi Forging The Middle Ground: Engaging Non-state Justice In Indonesia

FIGURESFigure 1: Disputes reported in respondents’ villages in the past two years ............................16 Figure 2: Informant contact with courts, understanding of legal rights, and trust in court

justice ......................................................................................................................17Figure 3: Informal and formal actors who usually resolve disputes .......................................18 Figure 4: Organizational Structure of the Adat Tribunal in Pelau Village, Central

Maluku District.......................................................................................................21 Figure 5: Resolution of the Market Fight Case ......................................................................23 Figure 6: Satisfaction with individual informal and formal actors .........................................48 Figure 7: Trust in immediate neighbors versus neighboring villages......................................57

TABLESTable 1: Regional conflict reporting by type of conflict .......................................................16 Table 2: Criminal Sanctions at State and Adat Law in Selected Research Locations.............29 Table 3: Framework of Engagement.....................................................................................69

BOXESBox 1: A Sample of Adat Law from Bentek, NTB Province..............................................26 Box 2: Examples of Change I: Tackling the under-representation of women and gender

bias through legal empowerment ............................................................................48 Box 3: Examples of Change II: Clarifying dispute resolution norms and structures in

NTB ........................................................................................................................54 Box 4: Examples of Change III: Community Justice Liaison Unit of Papua New

Guinea…………………………………………………………………………………... .................56 Box 5: Examples of Change IV: Defining the Interface – The Barangay Justice System

of the Philippines ....................................................................................................57

Featured Case StudiesCase Study 1: A Market Fight in the Shadows of Ethnic Conflict .................................... xvii Case Study 2: Cousins Clash in Panangguan, East Java ........................................................19 Case Study 3: Uncertain Boundaries in Souhoku Village: Seram, Maluku ...........................20 Case Study 4: Inheritance brings Misfortune ........................................................................25 Case Study 5: The Insulted Lineage Head.............................................................................27 Case Study 6: Fast-Acting Raja and Police prevent trouble in Ruhua ..................................30 Case Study 7: Rape overlooked in Sepa Village ....................................................................39 Case Study 8: Heavy adat fines are “appealed”......................................................................33 Case Study 9: Street Fight Turns Ugly .................................................................................35 Case Study 10: Fist Fight Fixed Fast .......................................................................................43 Case Study 11: Ibu Marnis’ land is sold by her brother: Sumpur, West Sumatra ...................45 Case Study 12: ‘It’s just excessive libido’.................................................................................46 Case Study 13: Conflict between ethnic Batak and Minang in Kinali.....................................49 Case Study 14: The Berlin Wall of Lombok: Karang Geteng vs. Patemon.............................52 Case Study 15: Sari Gunung Mine Creates a Mess ..................................................................59 Case Study 16: Stabbing in the City - Dual Track Resolution................................................55

4251

30

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viiForging The Middle Ground: Engaging Non-state Justice In Indonesia

GLOSSARYAdat Custom and tradition Adat law Traditional customary law Awig-awig Village adat law regulation (Lombok, West Nusa Tenggara) BJS Barangay Justice System Bundo Kanduang Adat council of women, not included in the KAN (West Sumatra) Bupati District Head Camat Sub-district head Carok Violent duel to the death (Madura, East Java) Damang Adat leader (Central Kalimantan) Datuk Hereditary adat title held passed through the matrilineal line but held

only by males (West Sumatra). Desa Village GDS Governance & Decentralization Survey Grosok By product of silt and chips from a limestone mineKampung Hamlet/sub-village /neighborhood KAN Kerapatan Adat Nagari – Nagari Adat Council (West Sumatra) Kyai Muslim priest LAN Lembaga Adat Nagari – Nagari Adat Council. Same as KAN, but the

term used depends on each NagariLet adat Adat functionaries (Central Kalimantan) Mahkamah Adat Adat Council Majelis Krama Adat Adat Council Mamak Maternal Uncle (West Sumatra) Marga Sub-clan/lineage/family (Maluku)Musyawarah Deliberation by consensus Nagari Territorial adat unit or village (West Sumatra)Negeri Literally, “the state” or “country” but in Maluku denotes a village NGO Non-Governmental Organization Ninik Mamak Lineage elder holding a traditional lineage title (West Sumatra) NTB Nusa Tenggara Barat – West Nusa Tenggara ProvinceNTT Nusa Tenggara Timur – East Nusa Tenggara Province Penghulu Islamic religious leader, often responsible for marriage/divorce issuesPesantren Islamic boarding school Raja Literally “King”, but in Maluku is used for village head/adat headSaniri Negeri Adat functionaries (Maluku)Santet Black magic Sasi Adat-based sanction relating to protection of the environment (Maluku)Soa Clan group (Maluku)Tokoh Masyarakat Informal community leader/respected community figure Tua Biroko Adat functionary who provides information to the public (Maluku)Tuan Guru Islamic religious leader, who usually also runs a pesantren (NTB)

viii Forging The Middle Ground: Engaging Non-state Justice In Indonesia

ixForging The Middle Ground: Engaging Non-state Justice In Indonesia

EXECUTIVE SUMMARY

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 non-state justice. It draws on 34 ethnographic case studies collected from five provinces in Indonesia over an eighteen month period and quantitative survey data from the 2006 Governance and Decentralization Survey.

This is a crucial issue for Indonesia’s development agenda. A well-functioning justice system is essential for maintaining social order, establishing legal certainty on which economic growth is dependent and for promoting and protecting human rights. And yet, the Indonesian state is not currently capable of delivering justice, particularly for the poor.

The reality of justice in Indonesia is played out not in the courtrooms of capital cities, but in the meeting halls of villages across the archipelago. The crux of the findings was that non-state justice is the primary mode of dispute resolution. In the Indonesia context, “non-state justice” is basically “local dispute resolution” – arbitration and mediation practiced by village heads, traditional customary leaders, neighborhood leaders and religious leaders – sometimes based on tradition, but equally often on the subjective assessment of community leaders without explicit reference to either state or customary law.

The second key message is that how non-state justice operates is crucial to social stability and the livelihoods of the poor. As the table overleaf demonstrates, the main forms of dispute faced by Indonesian citizens are crime, land conflict, domestic violence, inheritance, marriage and divorce. Individuals and communities unable to resolve these disputes suffer significant social and economic consequences. The effectiveness of informal justice determines whether such conflicts are resolved peacefully or descend into violence. Land disputes were consistently reported as both the most difficult to resolve and the most likely to trigger violence.

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 intra-communal 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. 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. These constituencies for reform should be supported.

x Forging The Middle Ground: Engaging Non-state Justice In Indonesia

Table: Regional conflict reporting by type of conflict

Conflict type Indonesia Sumatra Java/ Bali

Kali-mantan Sulawesi NTB/

NTTMaluku/Papua

General criminal 16.4% 15.6% 16.0% 10.9% 16.9% 24.2% 18.6% Land/building dispute 13.3% 9.6% 9.2% 14.2% 17.5% 23.3% 19.5% Family-related dispute 10.9% 8.3% 11.0% 8.0% 9.8% 17.3% 15.3% Power abuse 2.8% 1.7% 3.0% 2.4% 2.3% 4.0% 4.8% Domestic violence 7.6% 5.1% 6.2% 5.2% 4.1% 13.8% 19.8% Election-related dispute 3.2% 1.3% 4.2% 1.8% 2.0% 2.6% 8.8% Ethnic/religious 2.0% 1.2% 1.7% 1.2% 3.4% 1.9% 3.9%

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. In some of the research locations, local customary law tribunals are well-established, but more common are processes run by village heads or powerful religious leaders who resolve disputes based on local conceptions of justice or subjective notions of what constitutes an appropriate outcome without explicit reference to state, religious or traditional law.

In reality it is social norms and power that usually determine the outcome of dispute resolution at the local level. Thus, in most circumstances, non-state justice is in fact a delegalized environment. This can facilitate flexible mediated solutions, but in the absence of a mandated structure or agreed norms, much discretion lies in the hands of the non-state justice actors. Where social norms are dominant, by definition societal and power relations will be the determining factors. Consequently, the paths to justice are not equal for all. The powerful travel a smooth road; the weak face a bumpy ride.

The restoration of social harmony is the main imperative driving non-state justice dispute resolution. However, the harmony imperative is often corrupted, becoming synonymous with maintenance of the status quo. The search for harmony can prioritize communal relations at the expense of individual human rights and justice. By contrast, the formal justice system often pursues individual justice at the expense of communal relations, creating an unhappy medium where, in the search for justice, neither individual nor group interests are necessarily well served.

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 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.

Strengths and Weaknesses

For the majority of minor, petty cases, informal justice processes are both appropriate and largely effective. In fourteen minor cases documented in this study, eleven were resolved without difficulty.

xiForging The Middle Ground: Engaging Non-state Justice In Indonesia

On the whole, non-state justice is popular, reflecting its inherent strengths. Non-state justice functionaries have local legitimacy and authority not always afforded to judges and police. People seek assistance from non-state justice actors precisely because they possess social legitimacy in the village milieu. Furthermore, procedure and substance accords with a world view which places high importance on harmony. It is non-adversarial and restorative in aim; speedy and largely inexpensive in process. These attributes are vital in economically and socially inter-dependent rural communities.

Consequently, communities are satisfied with informal justice actors – 69% of respondents expressed satisfaction with non-state justice actors, as opposed to 58% for formal justice.

However, the research identified a number of significant shortcomings in non-state justice systems. As case complexity increases, parties external to the village come into play or women’s interests are at stake, non-state justice begins to unravel.

The lack of clearly defined norms and structures and absence of upward or downward accountability leads to significant arbitrariness. Social authority underpins the strengths of non-state justice, but its unchecked exercise is at the same time its greatest weakness. This is usually exploited by the powerful at the expense of the marginalized.

Women are under-represented in village dispute resolution institutions. Of the two most popular dispute resolution actors – village and hamlet heads – only 3% and 1% respectively are female. Women’s legal issues are often, therefore, overlooked or not taken seriously.

Disputes across ethnic boundaries are difficult to resolve. Particularly in the case of traditional, adat-based mechanisms, dispute resolution actors are almost always indigenous ethnic elites. Minority groups, particularly in post-conflict areas, consistently expressed a preference for formal justice, seeing it as relatively neutral and unencumbered by prejudice.

Trans-communal disputes are equally problematic. Non-state justice actors are rarely able to project their authority beyond territorial or social boundaries. In the cases studied, village institutions were unable to resolve disputes where private sector companies – often backed by government – were involved. These cases were usually over land and property rights, which consistently proved the most difficult type of dispute to resolve. This powerlessness can spill over into horizontal conflict at the village level.

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. Police pick and choose whether to mediate or prosecute a case, unguided by official procedures. Courts are required to take into account the outcomes of dispute resolution through non-state justice systems, but judges often ignore this obligation or are confused as to what constitutes a valid or invalid local process. This ambiguity leaves the weak and uneducated who are not adept at understanding or moving between the systems open to exploitation.

xii Forging The Middle Ground: Engaging Non-state Justice In Indonesia

The failure to define the interface also means that non-state justice functionaries routinely mediate serious crimes such as rape and sexual assault. This is often done in concert or with the explicit support of local police.

Policy Gap

Despite its centrality to social stability and economic livelihood and its popularity at the local level, non-state justice is largely overlooked by policy-makers. Government and donor legal and judicial reform programs almost always focus exclusively on the institutions of state. The Supreme Court Blueprints and their equivalent at the Attorney-General’s Office, the multitude of new national commissions and a major national law reform effort are backed by more than $60 million in donor funding to improve the quality of justice in Indonesia.

These initiatives are important, but given that most Indonesians rely on informal justice, policy and reform efforts must focus equally on these systems. A comprehensive reform strategy must address non-state justice if it is to reach the systems that are, in fact, the exclusive experience of justice for most Indonesians.

Government currently pays limited attention to this issue. Central government policy documents and regulations are replete with general statements about the need to recognize and support the authority of village institutions to resolve disputes. But these statements require additional definition to be made meaningful.

District governments have openings through regional autonomy. The process of regional autonomy has 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 governance structures based on traditional customary law (adat). The reversion to “the old ways” is largely a means of reaffirming indigenous cultural identity. The research suggests that the adat revival is unlikely to tackle the major problems identified, namely, the need for more equitable treatment of women and minorities.

Some elements of civil society are pushing for blanket recognition of non-state justice mechanisms, yet such calls overlook the absence of minimum standards, the lack of oversight and the significant weaknesses in the operation of non-state justice identified by this research.

Openings for Change

Regional autonomy represents an opening for change. Despite the absence of examples of substantive reform at the district level, 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

xiiiForging The Middle Ground: Engaging Non-state Justice In Indonesia

and should be supported to advocate for regional regulations that support more inclusive and accountable non-state justice systems.

Innovative grassroots change was identified. Women’s groups in West Sumatra have grasped the emancipatory potential of legal awareness and community mobilization to change adatprocedures and structures. The Perekat Ombara village alliance in West Lombok embraces a progressive view of adat that acknowledges the need for local custom to adapt to modern realities, including representation for women. 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. While these examples are unquestionably the product of longer social and cultural processes of change, they suggest that grassroots empowerment initiatives can feed into systemic institutional reform.

Recommendations

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 sector-based 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.

Indeed, it could be argued that the complexity of informal justice is such that nothing should be done. There are two justifications for a “do nothing” approach. Firstly, supporting non-state justice would merely entrench “poor justice” for the poor. Thus, resources should be directed to making the formal system work more effectively. A second reason would be that non-state justice is too complex and socially embedded and therefore not an appropriate target for external intervention.

Others adopt a different stance, idealizing local practices and arguing for blanket state recognition of informal justice mechanisms. This approach is equally flawed, as it overlooks the absence of minimum standards and lack of effective oversight identified as weaknesses by this paper.

Lying somewhere in between is a more realist perspective; a “middle ground.” 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. But this research shows that there are serious problems with non-state justice that must be addressed directly by government and civil society.

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 middle ground attempts to accommodate different socio-cultural contexts, customs and habits but at the same time introduces common principles to protect the marginalized. Drawing on the 1945 Constitution, these principles

xiv Forging The Middle Ground: Engaging Non-state Justice In Indonesia

include (i) broad-based representation; (ii) public accountability and transparency; (iv) anti-discrimination; (v) equality before the law; and (vi) freedom from torture.

The recommendations aim 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.

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 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.

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.

These priorities are laid out in tabular form below.

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 trans-communal

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)

xvForging The Middle Ground: Engaging Non-state Justice In Indonesia

The recommendations in this paper lay out a pragmatic framework for incremental change that can gradually enhance equity for the marginalized. Different elements of the framework will be applicable in only some locations, thus action must be tailored to local conditions and grounded firmly in realism.

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.

xvi Forging The Middle Ground: Engaging Non-state Justice In Indonesia

xviiForging The Middle Ground: Engaging Non-state Justice In Indonesia

PREFACE

Case Study 1: A Market Fight in the Shadows of Ethnic Conflict

Marhat is a successful fish trader at the central market in Kuala Kapuas, the riverside capital of Kapuas district, Central Kalimantan. He grew up in the area, but is an ethnic Banjarese from South Kalimantan province. Kombit is an official working at the market and is from the indigenous Dayak ethnic group. His job is poorly paid and he lives with his family on the outskirts of town in a rundown and basic housing complex.

Kombit and Marhat’s relationship was tense. On several occasions, Kombit had warned Marhat to stop trading in prohibited areas in the market. Tired of the warnings, one day Marhat snapped and pushed Kombit to the ground. They scuffled on the ground, injuring Kombit’s arm. Kombit reported the incident to his boss, Ramses, who relayed the complaint to the police. Ramses was concerned that the incident was between members of two ethnic groups. He knew that some of his staff were involved in the bloody ethnic conflict that struck the province and killed thousands in 2001 and was keen to deal firmly with any instances of inter-ethnic violence. He noted that the events of 2001 were the result of a series of small unresolved conflicts which over time eventually “blew up”. Ramses and Kombit chose the police because, as Ramses stated, ‘The laws of the police are better known here. The traditional customary leader (damang) doesn’t have much authority in this area.’

Shortly after the case was reported, Kombit and Marhat were called before the police to provide testimony. Yet the investigation ran on for months, mainly because Marhat was bribing the police to drop the case. As time dragged on and Marhat saw Kombit’s unwavering resolve to see the case through, he began to ask for the case to be withdrawn and referred to the damang.

Eventually, Marhat was able to convince Kombit and Ramses of his genuine remorse and desire to resolve the case peacefully out of court. Some of Marhat’s friends from a local Banjarese association (PERKEBAN – Asosiasi Masyarakat Suku Banjar) also threatened violence against Kombit if he did not withdraw the police complaint. These factors, combined with frustration over the duration of the legal process, eventually led Kombit and Ramses to agree to take the case to the damang. Ramses in particular did not feel this was an entirely free choice. ‘From a national law perspective, I was not satisfied,’ he said.

Following a process of information-gathering and deliberation with the Traditional Council, the damangproposed a total compensation and fine of Rp. 6 million, including filing and case fees of Rp. 600,000. The parties signed a written agreement to this effect, but Marhat ultimately only paid Rp. 1.5 million. Nothing was done to enforce the agreement in full. The damang remains passive. ‘How can I resolve this?’ he posed rhetorically. Kombit remains upset, but essentially as Ramses stated, ‘It’s considered settled.’

This case is indicative of the kind of problems that ordinary Indonesians face when attempting to resolve legal disputes. At first glance, it appeared to be a relatively simple case, but deeper investigation revealed bribery, intimidation, police inaction and the shadow of ethnic violence. The resolution process moved back and forth between formal and informal justice sector actors and, while a settlement of sorts was found, the resolution actor was neither willing nor able to enforce the agreement. Having being pushed into the process somewhat unwillingly, the resolution left the weaker aggrieved party upset and out of pocket for medical expenses, leaving open the prospect of recurrence.

When the delivery of accessible justice is crucial to social harmony and economic wellbeing, what needs to be done to remedy these weaknesses and redress the inequities? Through an investigation of the social and political context, case studies and survey data, this paper considers this question and endeavors to propose some solutions.

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1Forging The Middle Ground: Engaging Non-state Justice In Indonesia

Section IIntroduction

2 Forging The Middle Ground: Engaging Non-state Justice In Indonesia


FORGING THE MIDDLE GROUND:ENGAGING NON-STATE JUSTICE IN INDONESIA

‘[The state] is corrupt…distinct and distant from the mass of people, who look, absent a viable alternative, to old ways as a means of sustenance. Yet the old ways are not what they were, debilitated by labour migration, partial industrialization, urbanization and more generally by capitalism.’

H. Patrick Glenn, Legal Traditions of the World 1

‘If we know how to take advantage of the positive aspects of traditional justice and to identify its weaknesses as a mechanism and in its values, traditional justice (in other words, community-applied justice) will play an important role in preventing minor problems from dragging on and becoming major conflicts, inducing families or even entire hamlets against each other.’

Xanana Gusmao, Prime Minister of Timor Leste2

SECTION I: INTRODUCTION

A well-functioning justice system is essential for maintaining social order, establishing legal certainty on which economic growth is dependent and for promoting and protecting human rights. And yet, the Indonesian state is not currently capable of delivering justice, particularly for the poor. Citizens perceive the justice sector to be slow, corrupt and distant.3 The Government itself acknowledges systemic weaknesses.4 Legal and judicial reform efforts to address them have been strong on diagnostics but slow on genuine progress.

But the delivery of justice is not the exclusive purview of the state. Most Indonesians seek redress for their legal grievances through informal, or non-state, justice systems. Non-state justice is often referred to as a form of alternative dispute resolution, but is in fact the primary means for most poor people. Perhaps as many as 90% of disputes are handled outside state institutions.5

In the Indonesia context, “non-state justice” is basically “local dispute resolution” – arbitration and mediation practiced by village heads, traditional customary leaders, neighborhood leaders and religious leaders – sometimes based on tradition, but equally often on the subjective

1 H. Patrick Glenn (2000) Legal Traditions of the World, Oxford: Oxford University Press, p.77 2 Jose ‘Kay Rala Xanana’ Gusmao, ‘President’s Opening Speech’, delivered on occasion of the International Conference on Traditional Conflict Resolution and Traditional Justice in Timor-Leste, Dili, 27 June 2003. 3 Asia Foundation (2001), Citizens’ Perceptions of the Indonesian Justice Sector, Jakarta: Asia Foundation. For a diagram of the formal legal system, see Annex 4. 4 For instance, the Coordinating Minister for Law, Politics & Security stated at the 14 June 2006 meeting of the Consultative Group on Indonesia, ‘People have not seen real justice due to the perception of corrupt legal and judicial bodies that have been internalized within the system and spread widely throughout all sectors.’ 5 See Stephen Golub (2003), ‘Beyond Rule of Law Orthodoxy: the Legal Empowerment Alternative.’ Working Paper No. 14, Carnegie Endowment for International Peace: Washington DC and Chidi Anselm Odinkalu (2005), ‘Poor Justice or Justice for the Poor? A View from Africa,’ presented at World Bank Legal Development Forum,Washington DC, December 2005. According to the Asia Foundation (2001), above n.3, of Indonesians who had actually experienced a dispute in the last 10 years, 57% pursued non-formal solutions, 18% formal action and 32% did nothing. Aversion to litigation is also the norm in industrialized countries. In Australia, for instance, only 6% of commercial disputes make it to court: Australian Law Reform Commission (1998), Issues Paper 25, Review of the Adversarial System of Litigation, Canberra: Commonwealth of Australia. Michelson cites research suggesting about 15% of disputes in the United States, England and Wales enter the legal system: Ethan Michelson (2007) ‘Climbing the Dispute Pagoda: Grievances and Appeals to the Official Justice System in Rural China.’ 72 American Sociological Review 459, 461.


assessment of community leaders without explicit reference to either state or customary law. For the purposes of this paper, “non-state” and “informal” justice are used interchangeably and are defined as all forms of dispute resolution besides formal court adjudication.6 This includes adat or traditional customary law mechanisms as one sub-set.

A. The Importance of Non-State Justice in Indonesia

As the case above illustrates, informal justice is important for a number of reasons. As the primary means of dispute resolution, its effectiveness determines whether conflicts are resolved peacefully or descend into violence. Where the formal system is weak and open to bribery, if non-state justice systems do not function, the remaining alternatives are either violence or conflict avoidance. This is itself likely to lead to violence later.7 Injustice and conflict avoidance over access to natural resources during the New Order regime are two of the acknowledged causes of the wide-scale social violence that has struck parts of Maluku, Kalimantan, Sulawesi and elsewhere in Indonesia during the post-reform era.8

Effective dispute resolution is also crucial to the livelihoods of the poor. This paper documents several cases that highlight the link between justice and poverty – the rural family unlawfully deprived of their land by a plantation in West Sumatra; the adopted child denied his inheritance in East Java; and the young divorcee unable to claim her rightful division of property in Central Kalimantan. All were reliant on informal justice to secure their economic rights. Its failure in those cases has left them facing the prospect of economic and social marginalization.

The popularity of non-state justice is a natural response to the inability of the state to fully meet popular demands for justice.9 But it also reflects the inherent attributes which make it suitable to local conditions. Non-state justice is embedded in social and political realities at the local level. Non-state justice functionaries have local legitimacy and authority not always afforded to judges and police. Procedure and substance accords with a world view which places high importance on harmony. It is non-adversarial and restorative in aim; speedy and largely inexpensive in process. These attributes are vital in economically and socially inter-dependent rural communities.

6 This is not to suggest that there is a clear distinction between state and non-state or formal and informal. Some “informal” processes are both formal in procedure and can involve members of the state apparatus (particularly the police and local government officials). Furthermore, informal dispute resolution sometimes draws on formal state law sources. 7 Avoidance ‘on the surface might look quiet and peaceful, but below is a hidden volcano.’ Thomas Zitelmann (2005) “The Cambodian Conflict Structure. Conflict about land in a wider perspective.” GTZ: Phnom Penh 8 At its peak, widespread social conflict affected 7 of Indonesia’s then 32 provinces. As observed in the Jakarta Post, ‘The sectarian conflict in Maluku has had its main roots in a weak government, a widening gap between rich and poor, and injustice.’ Jakarta Post, ‘Maluku, Kalimantan Strife “Lingering”’, 1 May 2006. For more, see International Crisis Group (2001) Communal Violence in Indonesia: Lessons from Kalimantan, Asia Report No 19; and International Crisis Group (2000) Indonesia’s Maluku Crisis: the Issues, Indonesia Briefing Paper, 19 July. 9 What Faundez calls ‘the governance deficit.’ See Julio Faundez (2006) ‘Should Justice Reform Projects Take Non-State Justice Seriously? Perspectives from Latin America.’ Paper presented at World Bank Legal Development Forum, Washington DC, December 2005.


But there are problems with the current practice of non-state justice. Most fundamentally, much informal justice excludes minority groups and women. Many non-state justice functionaries at village level lack capacity to resolve problems. Power imbalances prevent equal treatment and leave the weak open to accepting either unwanted resolutions or unable to enforce agreed outcomes. This leaves many disputes partially unresolved and prone to subsequent violent re-emergence. Furthermore, the opaque 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. It also sees serious criminal cases being inappropriately mediated at the local level, often reinforcing existing power structures over justice for victims.

And yet despite the critical importance of informal justice to stability, security and livelihoods of the poor, surprisingly little documentation exists in Indonesia on how people use and seek justice through informal systems. Even less exists in policy terms on how to help make these systems more just and socially inclusive.

Rather, government and donor legal and judicial reform programs almost always focus exclusively on the institutions of state. This is partly because the judiciary, prosecutors and police are easier to see, touch and define. For donor organizations at least, they are also more familiar. It is also partly because the workings of non-state justice are little understood. Practical engagement is a complex undertaking given the great diversity of institutions, norms and processes that comprise the non-state justice “system”. And yet, a fully comprehensive strategy for legal and judicial reform must address non-state justice if it is to reach the systems that are, in fact, most Indonesians’ exclusive experience of justice.

This paper aims to play a small role in helping to fill this information and policy gap. The research was launched explicitly to identify a framework for engagement to strengthen the social inclusiveness and effective operation of non-state justice systems. Specifically, the aims of the paper are to:

The focus on social inclusiveness drew on the dual premise that gender bias is a major cause of poverty; 10 and that ethnic discrimination is at the core of the social conflict that has affected Indonesia since the fall of the Suharto regime. Understanding how non-state justice perpetuates these problems and, at the same time, how it could be part of the solution, is therefore one of the key expected outcomes of this study.

10 For example, it is estimated that Indonesia loses $2.4 billion a year due to inequality in the workplace alone: see Bappenas/World Bank/AusAID/ADB/DFID (2007) Gender in CDD Projects: Implications for PNPM.

Document dispute processes, preferences and practices through non-state justice systems in Indonesia, paying close attention to the social inclusiveness of these processes by focusing on the experiences of women and minority groups

Research local and regional innovations and initiatives to reform non-state justice

Develop a framework for engagement with non-state justice systems that respects local traditions but is based on Indonesian constitutional standards.


B. Government Policy Approaches to Non-State Justice in Indonesia

As in much of the developing world, the legal system in Indonesia is pluralistic. That is, it draws the rules and institutions of its laws from two or more normative traditions. The policy challenge of engaging with non-state justice systems within a national legal framework is far from new. Indeed, throughout the history of both colonial and independent administration, governments have grappled with the question of how to approach informal justice and accommodate multiple normative systems.

There are four general approaches for engaging with non-state justice systems.11 Abolition is when the state insists on legal uniformity and abolishes non-state justice systems. This approach is often justified with reference to the tendency of non-state justice to contravene human rights. At the other extreme, full incorporation involves the state fully integrating non-state justice with a dedicated and defined role vis a vis the formal system. Non-incorporationgrants full reign to local communities to apply and follow their local values, norms and customs. In this approach, informal and formal justice co-exist but operate independently, with strict jurisdictional boundaries drawn between the two. This approach is often utilized to accommodate traditional customary law within indigenous communities. Finally, the partialincorporation approach attempts to blend the advantages and disadvantages of both formal state and informal non-state justice. Informal and formal justice systems operate relatively independently, but with informal justice receiving recognition, some resources and oversight from the state. This final model is a compromise between full incorporation and non-incorporation.

In Indonesia the tendency has been to fluctuate between rhetorical full incorporation or recognition, and actual abolition and non-incorporation.

Historical Approaches

When Indonesia achieved independence in 1945, it inherited a legal system comprising a combination of traditional, colonial and Islamic legal influences. The Dutch administration had dealt with this by establishing a system with separate laws applying to different racial groups. In simple terms, Europeans were subject to Dutch law and Indonesians to traditional customary or adat law. Adat law itself is highly diverse, with as many as 300 discrete ethnic groups with their own forms of adat.12

In institutional terms, the status of village justice mechanisms also varied, reflecting the tension between, on the one hand, recognizing diversity and, on the other, the desire for legal unity and “modernity”. Until 1874, the so-called Native Courts operated in accordance with adatlaw and procedure. From 1874–1935, official recognition for village justice was withdrawn, although it continued to operate in practice. In 1935 the colonial government rehabilitated village justice by requiring first instance state courts to take the prior decisions of Adat Councils into account.13

11 Connolly, B. (2005) ‘Non-State Justice Systems and the State: Proposals for a Recognition Typology’, 38 Connecticut Law Review 239. 12 Szczepanski, K (2002) ‘Land Policy & Adat Law in Indonesia’s Forests’, 11 Pac Rim Law & Policy Journal 231. 13 Sebastiaan Pompe (2002) Court Corruption in Indonesia. Unpublished mimeo: Jakarta.


When the new republic was formed in 1945, national policy promoted a uniform legal system. Institutionally, legal pluralism was viewed as inimical to nationhood and modernity.14

Nonetheless, the Constitution and subsequent amendments have provided conditional recognition of traditional customary law.15 This level of recognition is very limited, however. Judges are required by law to ‘Explore, follow and understand the legal values and sense of justice which exists in society.’ 16 Support for non-state justice is also reflected in national government policy documents such as the current Medium-Term Development Plan 2004-2009, which states the need to respect and strengthen traditional customary law as a key government policy aim.17 Despite the legal protections and policy rhetoric, the sum of the above, as Lindsey has observed is that, ‘Adat is [a] default legal source, applicable only informally or where regulations are silent.’18 Written state law will always trump customary law.

And while judges are obliged to take into account the outcomes of non-state justice deliberations, in reality they are free to ignore or pay lip service to this requirement and indeed many do.

Contemporary Approaches: Impact of Decentralization

Government policy rhetoric on the need to respect and strengthen recognition of non-state justice has largely remained just that. However, although justice remains a central government function, the process of regional autonomy launched in Indonesia in 1999 has opened up the opportunity to either strengthen or adjust informal dispute resolution. Law 22/1999 on Regional Governance authorized district governments to reconfigure village governance structures – including dispute resolution mechanisms – along inclusive and democratic lines. Reflecting a spirit of autonomy, the law also established democratically elected village parliaments and devolved a greater degree of executive authority. On the “judicial” side, Article 101(e) gave binding authority to village heads, together with the Adat Council, to resolve disputes. Law 32/2004, which replaced 22/1999, removed this jurisdiction, but it was later restored by Government Regulation 72/2005 on the Village.

Supreme Court Justice Purba has highlighted the benefits of supporting “village judicial autonomy” in this regard. ‘The process of taking cases to the court could be avoided [and] the peaceful harmonization of life…would be improved.’19

14 Daniel Fitzpatrick (1999) ‘Beyond Dualism: Land Acquisition and Law in Indonesia’, in T Lindsey (ed) Indonesia: Law and Society. Sydney: Federation Press, p.74. 15 The Constitution asserts that: ‘The State recognizes and respects the individual communities of traditional law and their traditional rights as long as they survive, and in accordance with the development of the community and the principle of the Unitary State of the Republic of Indonesia, as regulated by law.’ (Article 18(2)); and that ‘Cultural identity and the rights of traditional communities are respected in accordance with the continuing development of civilization over time.’ (Article 28I(3)) 16 Law 4/2004 on the Authority of Judges, Article 28(1) 17 Presidential Decree 7/2005 on the Medium-Term Development Plan 2004-2009, Chapter 9. 18 Timothy Lindsey (2006) ‘Inheritance and Guardianship and Women: Islamic Laws in Aceh, a Year After the Tsunami.’ Paper prepared for the International Development Law Organization.19 Rehngena Purba (2004) ‘Peradilan dan Penyelesaian Sengketa Alternatif Kajian Pada Masyarakat Karo’, paper presented at Universitas Karo, 1 July 2004, at p. 15. Our translation.


However, where districts have exploited this space, change has invariably taken the form of a revival of the “old ways” (Annex 1 summarizes the regulatory changes in this study’s five research provinces). In Maluku, the province is pushing a return to the traditional village structure known as the negeri and in West Sumatra to the nagari. In Central Kalimantan initiatives are being taken to strengthen recognition for adat leaders, known as damang. These changes place indigenous ethnic and male elites in charge. They can promote a narrow conception of local justice – what Benda-Beckmann has suggested ‘often turns out to be the law of senior males’, which ‘is maintained to rationalize and justify relations of dominance and oppression.’20 Driven by regionalism and petty nationalism, this risks denying the legitimate demand of marginalized groups such as women and ethnic minorities for representation and recognition in the local institutions that govern their lives. Further marginalizing the marginal can create social cleavages that lead to violent conflict and, in turn, poverty. Government policy should respond appropriately to prevent such cleavages from emerging. Non-state justice plays a crucial role in this regard.

Thus, decentralization represents both risk and opportunity. And the mix of social and political dynamics it has unleashed has thrown the spotlight once more on the question of what type of justice system Indonesia wants to have in a society of vast ethnic diversity and legal plurality.

C. Forging a Meaningful Middle Ground

If the state is weak and the old ways of questionable relevance, it begs the question, “What else?” Glenn suggests an inevitable slide into crime and violence.21 This indeed goes some way to explaining social conflict in post-reform Indonesia. But he also hints at a “middle ground” that blends the strengths of formal and informal justice. One that acknowledges the reality that communities must be empowered to take responsibility for dispute management, but at the same time reflects a broad range of community interests beyond indigenous ethnic elites. One that accommodates diverse and pluralistic legal traditions, but respects the supremacy of the constitution and national legal safeguards. This is the rhetorical approach that Indonesia has taken in the decentralization era, however it has struggled to turn this policy direction into concrete actions on the ground.

Indeed, forging this middle ground is complex, as it impinges on entrenched traditions and powerful vested interests. Legalistic and technocratic responses are unsuitable. Engaging with non-state justice is daunting due to its diversity and sheer size. Judicial reform has proven an elusive task in Indonesia’s courts, which reach only as far as most of its 450 districts. But non-state justice operates in all of its more than 70,000 villages. It is clear, however, that rule of law requires both strong social and state institutions in which citizens of all backgrounds are treated equally and see their interests and values respected.

20 Franz von Benda-Beckmann (1990) ‘Ambonese Adat as Jurisprudence of Insurgency and Oppression,’ 5 Law & Anthropology 25 at 39. 21 Glenn n.1 above, p.77.


While acknowledging the dominance of regionalism, experts have also observed that ‘this tendency towards localism and ethnisation is not uncontested.’22 Constituencies for more inclusive models of village governance and dispute resolution and examples of change do exist among a broad cross section of society.

This study was launched to forge a meaningful middle ground of local, rather than traditional justice, tapping into broad-based local constituencies for reform beyond the traditional elites. 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 constitutionally enshrined legal safeguards to protect the marginalized. 23

Building this framework for engagement must be based on a solid understanding of the contemporary operation of non-state justice. Thus, Sections II A & B, as the main body of the paper, describe dispute typologies and processes, drawing on qualitative case studies and quantitative survey data. These sections detail community preferences, perceptions and experiences, focusing on ethnic and religious minorities and women. Section IIC examines the interface between formal and informal justice as crucial to enhancing the quality of both and moving towards legal consistency and certainty. Section III analyzes the strengths and weaknesses of non-state justice, noting how the virtues of accessibility and social legitimacy are offset at times by power imbalances and an emphasis on social order over justice. Section IV summarizes key findings before concluding with a set of concrete recommendations.

D. Methodology

The analytical method employed to identify how to forge the middle ground was a mixed-methods approach combining qualitative and quantitative data to achieve depth and breadth of analysis. The main data sources include:

1. Consultations with government institutions, NGOs and donor organizations at the national level. Collaboration with the Supreme Court was established at this point.

2. Field research in Central Kalimantan, East Java, Maluku, West Nusa Tenggara and West Sumatra through 2004 and 2005.24

22 Franz & Keebet von Benda-Beckmann (2001), “Recreating the nagari: decentralisation in West Sumatra”, paper presented at 3rd conference of the European Association for SE Asian Studies, London, 6-8 Sept 2001 23 This set of principles encompasses broad-based representation, public accountability and transparency. It includes, among others, the rights against discrimination, (Constitution Articles 28B2 & 28I2), equality before the law (28D1) and freedom from torture (28G2). The government has also recently incorporated the International Bill of Human Rights into national law through Laws 11 & 12/2005, encompassing the full due process protections contained therein. 24 Separate reports were written from each of the five locations and are available online at www.justiceforthepoor.or.id. These reports were discussed in verification workshops and ongoing consultations with local stakeholders throughout 2005 and 2006 in all research locations except for East Java. Workshop participants included government officials, DPRD members, academics, NGOs, village and adat leaders, students and community members.


3. Quantitative data from the 2006 Governance and Decentralization Survey (GDS).4. A study of the legal context for non-state justice in Indonesia. 5. A literature review on non-state justice systems outside Indonesia. 6. Comparative studies to research informal justice in Bangladesh and the Philippines.

The sensitivity, complexity and ambiguity of many of the issues studied dictated that the main research method was qualitative. Hence, the bulk of the findings and analysis is based on case studies, key informant interviews and focus group discussions at the village level.

Data Sources

The primary source of data is 34 case studies collected from the research locations by the Justice for the Poor team, in cooperation with researchers from local NGOs or universities.25

Cases range from minor intra-village disagreements between residents, prolonged violent inter-village disputes, up to conflicts between villagers and external parties. There are seventeen of land, natural resource and environmental damage; seven of petty crime or light assault; four of murder or manslaughter; three of rape, sexual assault and domestic violence; two concerning marriage; and one of “adat insult”. These patterns are consistent with other available data on local dispute typologies.26 A summary of each case is attached in the Case Matrix at Annex 2.

The qualitative research was supplemented by data from the 2006 Governance and Decentralization Survey (GDS), conducted by the Center of Public and Policy Studies of Gadjah Mada University, supported by the World Bank. In 2006, the GDS collected information from 32,000 respondents including households, village heads, health and education workers and government officials. The survey was fielded in 133 of Indonesia’s 450 districts, covering all 34 provinces.

Besides the case studies and survey data, key informant interviews were conducted with NGOs, academics, judges, prosecutors, police and lawyers as well as government officials and parliamentarians at national, provincial and district level to enhance understanding of the local context and current policy directions. At district level and below, interviews were invariably held with disputing parties and witnesses, village and hamlet heads, religious leaders, adatfunctionaries and community leaders. Focus group discussions were held with women and ethnic minorities. In total, 452 people were interviewed and 343 attended verification workshops across the five provinces.

25 Many more cases were documented, but the 34 in this paper are those where sufficient data was collected from disputants, mediators and documentation (local case files, court and police reports) to triangulate information. One of the cases was drawn from a 2007 field trip in Lampung. 26 Even cases which reach the police follow a similar pattern. In a survey in East Java, police reported that the three most common forms of cases they deal with are assault (33%), domestic violence and rape (31%) and land (10%): see Anton Baare (2004), ‘Policing and Local Level Conflict Management in Resource Constrained Environments’ Mimeo, Jakarta: World Bank. See also World Bank (2004), Village Justice in Indonesia; World Bank: Jakarta and UNDP et al (2006) Access to Justice in Aceh: Making the Transition to Sustainable Peace and Development, UNDP: Jakarta.


Site selection

Provincial locations were selected on the basis of four criteria. Firstly, they represent a good cross-section of ethnic and religious constellations. Secondly, they comprise a mix of post-conflict locations and regions where adat either remains strong or is now largely absent. Thirdly, they provide a good geographic coverage of West, Central and Eastern Indonesia. The final consideration was the extent to which governments in each location have taken regulatory initiatives to implement regional autonomy at the village level. Village locations within each province were selected based on input obtained from local stakeholders.

A note on data limitations

Both the qualitative and quantitative data have limitations. There is a risk in qualitative research of focusing too much on the outrider or more sensational cases. Quantitative surveys can over-generalize and filter out the detail and real experiences best captured through direct observation and interaction. We have attempted to mitigate these limitations by integrating the two main sources and verifying findings through multi-stakeholder workshops and discussions with a broad range of interlocutors. FGDs and informal interviews at the village level collected data from both case disputants and ordinary villagers to garner a mix of direct experience and general impressions.



Section IIUnderstanding Non-State Justice Mechanisms: Dispute Typology & Process



SECTION II: UNDERSTANDING NON-STATE JUSTICE MECHANISMS:DISPUTE TYPOLOGY & PROCESS

In order to deepen understanding of the contemporary operation of non-state justice in Indonesia, this section provides a detailed description of dispute typology and process. The section is split into three parts. The first presents a typology of disputes, actors, and preferences. It highlights the centrality of non-state justice for dispute resolution in Indonesia and the inextricable link between justice, conflict and poverty. The second part describes informal dispute processing – common procedures, norms and resolution imperatives. The third part examines the interface between the formal and informal justice systems, exploring when they interact, why and to what effect.

A. Non-State Justice in Practice: A Typology of Disputes, Actors and Institutions

Dispute Typology

‘Ninety percent of the complaints we receive are land cases.’ Village Head, Tamilou, Seram Island, Maluku.

As Figure 1 demonstrates, criminality, land conflict, personal law disputes (marriage, divorce and inheritance) and domestic violence were consistently reported by community members as the most common forms of dispute at the village level in the last two years.

Land disputes were, without exception across all the fieldwork locations, reported as the most complex to resolve and the most likely to trigger violence.

Women generally reported personal law issues (marriage, divorce and inheritance) as their main source of legal grievance. The common thread with land disputes is the battle over control of resources central to livelihood. Many inheritance and divorce cases also concern land and division of property rights.

Main Findings & Policy Implications

Dispute Typology. Criminality, land conflict, family law disputes and domestic violence are the most commonly reported types of dispute. Land cases are the most difficult to resolve and the most likely to trigger violence.

Non-state justice is the main game. Village heads and staff, community and adat leaders and the police are the main actors to whom people turn for assistance. Court-based adjudication and lawyers are largely irrelevant, even for criminal matters.

Women and Minorities Under-Represented. Dispute resolution actors are usually middle-aged or old men. There are almost no women in decision-making roles in village institutions and ethnic minorities are also under-represented.

Legal Awareness. People who understand their rights are more likely to use and trust the formal legal system, opening up options and shifting power imbalances in their favor.

Regional Variation. The nature of both disputes and resolution patterns varies across different parts of Indonesia. A strategy to engage with and strengthen non-state justice must, therefore, to be tailored to local conditions.


Figure 1: Disputes reported in respondents’ villages in the past two years

Source: GDS Survey

While criminality is the most common dispute nationally, the incidence of land conflict increases to 19% outside Java, where rural communities more frequently confront plantations, forestry companies and mines, a common source of tension. The table below tracks the national figures against regional outcomes.

Table 1: Regional conflict reporting by type of conflict

Conflict type Indonesia Sumatra Java/ Bali

Kali-mantan Sulawesi NTB/

NTTMaluku/Papua

General criminal 16.4% 15.6% 16.0% 10.9% 16.9% 24.2% 18.6% Land/building dispute 13.3% 9.6% 9.2% 14.2% 17.5% 23.3% 19.5% Family-related dispute 10.9% 8.3% 11.0% 8.0% 9.8% 17.3% 15.3% Power abuse 2.8% 1.7% 3.0% 2.4% 2.3% 4.0% 4.8% Domestic violence 7.6% 5.1% 6.2% 5.2% 4.1% 13.8% 19.8% Election-related dispute 3.2% 1.3% 4.2% 1.8% 2.0% 2.6% 8.8% Ethnic/religious 2.0% 1.2% 1.7% 1.2% 3.4% 1.9% 3.9%

Source: GDS Survey

Who Resolves Disputes? Formal versus Informal

Villagers have a range of options or “paths to justice” open to them. The formal legal system is one, particularly in urban environments. But it is largely viewed as corrupt, expensive, slow and distant. Figure 2 shows that just 2.1% of respondents have had contact with courts during the past two years. Further, only 34.2% trust formal justice, with the majority either not trusting (24.3%) or not having an opinion (41.5%). Thus, communities express a strong preference for informal justice, based on mediation and conciliation.27 Interestingly, people

27 This matches the findings of previous research, see Asia Foundation (2001) above n.3 and World Bank (2004) above n.26. UNDP (2007) Justice for All? An Assessment of Access to Justice in Five Provinces of Indonesia Jakarta: UNDP says 58% of people are satisfied with informal justice, compared to 28% for formal justice.

0 2 4 6 8 10 12 14 16 18

Ethnic/Religiousconflict

Abuse of authority

Election disputes

Domestic violence

Inheritance, marriage &divorce

Land conflict

Criminality

percentage


who are aware of their legal rights are both more likely to utilize the formal system, and indeed to trust it.

Figure 2: Informant contact with courts, understanding of legal rights, and trust in court justice

0% 20% 40% 60% 80% 100%

Trust in courtjustice

Understand legalrights

Contact with court

Yes No Don't know

Source: GDS Survey

Who do people turn to for help?

‘People go to who is closest and who they know best first.’ - Villager, Central Kalimantan.

Hamlet and village heads are the preferred choice of most villagers. As indicated in Figure 3, 41.1% of respondents said that these village government actors are usually involved in resolving disputes. Other main dispute resolution actors include religious leaders; respected community figures (tokoh masyarakat) and adat leaders (together, 34.8%); and, police and military officers (27.6%).

Most serious criminal acts are referred immediately to the police, although as evident in Case Study 10 below, referral to the police does not preclude parallel adat proceedings. Other actors are more distant and tend only to be called in for more serious disputes, those which cross village boundaries or when resolution attempts fail at the lower levels. For third party external cases, such as disputes between villagers and a palm oil plantation, sub-district and district government officials can also become involved.

Mainly Middle-Aged Men

Village government apparatus and adat, religious and community leaders are the most popular dispute resolution actors. With the exception of rural village heads, all are appointed rather than popularly elected. They are almost always middle-aged or older men. Nationwide, 97% of village heads and 99% of hamlet chiefs are male. The average age for village heads is 45 years, increasing to 48 for hamlet chiefs.28 During the fieldwork we came across one female village head in Maluku, one in West Nusa Tenggara, heard of but did not meet one female

28 GDS survey data


damang in Central Kalimantan, and none in East Java. Adat structures in West Sumatra preclude female lineage heads, so they by definition are not represented in the Adat Council.29

Women’s organizations do play a limited role in mediating disputes, particularly those involving women, but they rarely have decision-making authority.

Specifically for adat-based justice systems, dispute resolution actors are almost invariably from the indigenous ethnic group. This does not completely exclude other ethnic groups – in West Sumatra, non-indigenous ethnic groups are adopted into clans. In parts of Maluku, they form their own clan and integrate into local structures. But the bottom line is that adat justice is ethnically exclusivist. The implications of this will be examined further in Section III below.

Figure 3: Informal and formal actors who usually resolve disputes

0 10 20 30 40 50

NGO

Lawyer

District government

Paralegal

Prosecutor

Don't know

Sub-district government

Family member/friend

Police

Community/adat leader

Village government

percentage

Source: GDS Survey

The Invisible Formal Sector

The formal sector is largely invisible. Land, criminality and family law issues are fundamental to the security, livelihood and welfare of ordinary Indonesians, but lawyers, prosecutors and the courts are virtually irrelevant to their resolution.30 Police are active, as would be expected particularly with respect to criminal cases, but even most complaints reported to the police are in fact mediated or referred back to the village rather than processed through the formal system.31 Thus, although Article 6(2) of Law 4/2004 on the Authority of Judges stipulates that only the courts may impose sanctions for criminal acts, non-state justice actors do address these issues.

29 Women are represented through the Bundo Kanduang, but have no genuine decision making authority. 30 The formal sector was engaged in 16 of the 34 cases studied for this paper, with four going on to court. Lawyers were involved in the informal negotiations in two case studies, in the latter case to intimidate the weaker party. But in no other cases did lawyers play a direct role. 31 See Baare, above n.26 at 9.


NGOs also not prominent

Equally striking is the minimal prominence of NGOs, many of which are active in dispute resolution and advocacy in key fields such as land, labor rights and environmental protection. The results highlight their limited outreach capacity to the village.

How do people choose dispute resolution actors?

Choices on where communities take disputes generally depend on well-established practices on the division of responsibility among their leadership and on the respective capacities of the individuals involved.

Petty criminal matters capable of peaceful resolution are usually referred to neighborhood heads or to the adat or village head. Divorce cases or domestic disturbances are usually also referred to them, though sometimes the religious leader has a role. Issues related to village governance are largely directed to the village head. In some cases, people report directly to the local police. Land cases are generally reported to the village head or the adat leader where they are prominent. Bigger disputes involving external interests inevitably become more complicated. Such cases are sometimes taken to NGOs, or reported directly to the sub-district head, the district government or the Land Administration Agency.

Choices are often dependent on capacity of the mediators. The village head in Sembuluh I in Central Kalimantan, for instance, was not well liked and therefore not active in dispute resolution. In another village, the local policemen suffered a poor reputation. ‘What does the policeman do here?’ posed one villager. ‘He does nothing.’ Best known for extorting money from local businesses, he did not represent an avenue to the formal justice system. Thus, one path to justice was closed off.

Villagers do not fully expect neutrality from their mediators in cases involving their close friends or family. ‘Clearly the neighborhood head would sympathize with his family,’ noted one villager in the village of Henda in Central Kalimantan. This is another factor influencing choices.

Thus, most commonly, disputants select actors for their capacity to resolve their individual dispute on a case-by-case basis. Capacity is determined by a combination of personal relations and institutional affiliation as well as individual skill and status.

The following two case summaries, in addition to describing typical dispute resolution processes, also illustrate how the selection of dispute resolution actors can be either negotiated or fall naturally to the village head.

Case Study 2: Cousins Clash in Panangguan, East Java

This land dispute between Halim (hamlet head) and Amir (Halim’s cousin) occurred in 2001 in Panangguan village, Pamekasan District, East Java. The dispute began when Amir returned to Panangguan after some time away. Upon returning he heard that someone had offered Halim Rp. 8 million for land he believed still belonged to his father.


Halim’s older brother, Ali, offered to help mediate the disagreement. Three meetings were held at Ali’s house to clarify rightful ownership. At these meetings the matter could not be resolved and so Halim reported the dispute to the village head. A week later the village head convened a meeting where Halim and Amir plus their witnesses were invited to discuss and resolve the problem. The village head now explains how the process worked:

Because [the problem] could not be resolved at the lower [hamlet] level, it was brought to the village level. In order to resolve the problem, I referred to the document I had in Halim’s father name. The witnesses’ explanations were somewhat confusing. They could not agree on a decision. It seems that [the land] was not purchased transparently in the past. It seems that the land was sold when he needed money, and he wanted to redeem it if he had the money. It was certainly bought cheaply. Amir’s side acknowledged this. According to Halim’s side, the transaction was a sale. The atmosphere of the meeting was tense. Amir threatened violence. Then I divided the land. I returned part of it to Amir. I put pressure on him. If he did not accept the solution, then the village would take the land. They were frightened. The community very much supported this method. The problem was resolved.

The documents the village head refers to above were old land record (Petok C) books that were used during the Dutch colonial period. As is often the situation, these books were out-of-date and unable to clearly determine an owner. Ultimately, the village head simply used his judgment and authority to divide the land, backed by community pressure and the inherent threat of violence.

The next case also concerns a dispute over land boundaries and ownership which was settled by the village head by virtue of his social authority rather than application of the law.

Case Study 3: Uncertain Boundaries in Souhoku Village: Seram Island, Maluku

Udin and Haryadi bought land off Among Pieters. The land was registered, but Among did not transfer the certificate at 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 threatened Udin and Haryadi with violence if they did not return the tree.

Udin and Haryadi reported the incident to the village head (raja). The Raja and his village staff called the parties to a meeting at his office to resolve the problem. He requested Among and Minggus to pay to have the precise land boundaries measured by the Land Administration Agency. This ultimately determined the precise boundaries and resolved the dispute.

Six years later, Udin got into a fight with his neighbor Lahamaku over the boundaries of their respective land plots. Udin reported the case to the Raja, who this time sent his own “land team” to measure the boundaries. The team determined that the disputed land belonged to Udin, but because Lahamaku has been using the land for a long time, he had a right to purchase it. Udin was not satisfied with this outcome, but accepted it nonetheless, noting that there were few alternatives forordinary villagers other than to accept the authority of the Raja.

In both these cases, the actors drew on a combination of common sense, historical knowledge, community pressure and compromise to bring about a resolution that was able to prevent the prospect of violence.

There are both positive and negative implications of the plurality of options available to villagers for dispute resolution. The broad freedom of choice gives community members the ability to select an appropriate and socially legitimate actor for each type of dispute. On the other hand, disputants might disagree as to who has authority for a particular dispute, complicating the search for consensus.

What is an Adat Tribunal?

As noted above, the non-state justice “system” is often simply mediation within families and neighborhoods. In some locations, however, village tribunals operate with set structures and norms, usually oral but sometimes written. Traditional customary or adat systems are often well organized, with an institutional structure that applies codified laws and procedures and produces written outcomes.


By definition adat processes and structures are varied and flexible, but the diagram below is presented by way of illustration of one adat structure from Pelau village in Maluku province.

Figure 4: Organizational Structure of the Adat Tribunal in Pelau Village, Central Maluku District

The Adat structure in this case encompasses the main elements of the community – the Raja(literally “king”) or village head as the highest source of authority, the Islamic penghulurepresenting religious authority and the heads of village clans representing the totality of the community. Youth representatives provide a communication channel from the Raja to the village youth and are occasionally involved in resolution of minor disputes among their ranks.

For disputes within a family or clan, the respective heads are the first port of call for resolution. When the dispute is more serious or is between clans, the higher authority of the Raja is called upon. The Raja may choose to act alone or in council with the clan heads, who are also his adat functionaries (known as saniri negeri). Once resolution is reached, the clan heads/saniri negeri are responsible for overseeing enforcement.

Regional Variations

Reflecting the different social norms in each research location, significant regional variations were identified in terms of the preferred choice of dispute resolution actors and institutions, norms applied and the strength of adat or traditional customary law structures and actors. Religious leaders, for instance, play a limited role in Central Kalimantan, but are the key

Saniri Negeri Respective Clan Heads

YouthRepresentative

Female

YouthRepresentative

Male

ScribeWrites outcomes of Adat deliberations

SoaClan

MargaSub-clan/

lineage/family

RajaHighest Authority in the Village

Penghulu Mesjid Islamic Religious Leader

Tuabiroko Provides information to

the public


functionary in East Java and parts of Lombok, where the kyai and tuan guru respectively are important leaders for Muslim communities. In West Sumatra, religious leaders are incorporated into adat structures, as they are in parts of Lombok, under the “trias politica”, which combines the state, adat and religion as the key elements of village governance.

The strength of adat law and the intensity of public acknowledgement of adat is likewise variable. In East Java it is not part of popular discourse, whereas in West Sumatra, NTB and Maluku, adat leaders are crucial to dispute resolution. In Central Kalimantan, the adat revival since regional autonomy is strong on paper, but has limited visibility on the ground.

Implications

In a policy sense this variation has two important implications. Firstly, recent national government policy statements and district regulations to strengthen non-state justice are not covering the full range of local preferences and experiences of justice. By focusing on the AdatCouncil and a reversion to traditional structures, they miss, for instance, the centrality of the kyai in East Java. They miss the fact that adat functionaries often have limited acceptance from communities in urban settings. The second implication is that a framework to engage with non-state justice must be flexible enough to accommodate regional variations. It must also be broad enough to capture the interests of the community in general rather than a select group alone.

B. Dispute Procedures, Norms, Sanctions and Resolution Imperatives

‘What we aim at is a win-win situation, so the parties feel as though neither of them have been punished or sanctioned through the mediation. What they feel is an obligation to share and to achieve fairness. Nobody loses.’ Hasanain, Religious Leader, West Lombok, NTB

How are disputes resolved?

Informal dispute resolution procedures are by definition flexible and variable. But in many of the case studies documented, a common procedure of sorts was evident, as described in the diagram below.

Main Findings Dispute resolution procedures are flexible and fluid, but usually comprise a process of fact-finding, deliberation and either mediation or “light” arbitration.

Voluntary but often no alternative. Informal justice is voluntary in theory, but the absence of any genuine alternative often forces the poor to accept unsatisfactory outcomes. Weaker parties are also often coerced into accepting processes or resolutions due to intimidation and fear of violent revenge.

Social norms prevail over legal. Norms applied are sometimes clear, but equally often are simply social norms based on a local sense of justice or what the village head considers appropriate. In such cases, societal relations and power generally determine the outcome.

Sanctions vary, but are usually monetary and based on the perpetrators’ capacity to pay. Physical punishment does occur, but is rare.

Harmony imperative can result in impunity. The ultimate aim is restoration of harmony and order, but this imperative can come at the expense of justice and human rights. This is particularly for women, whose rights are sometimes sacrificed to maintain social status quo


Figure 5: Resolution of the Market Fight Case32

The process utilized in the Market Fight case tends to be fairly common across most cases which rise above intra-family or intra-clan mediation:

1. Complaint received: can be in written or, more often, oral form. 2. Fact-finding: mediator discusses case separately with disputants, witnesses and

community leaders from the area.

32 The Market Fight Case is featured in the Preface. This diagram draws on Figure 8 in UNDP (2007), above n.27 at page 225.

Complaint Received: Kombit and Ramses Report to the Police and DamangAfter an ineffective response from the police, Kombit and Ramses reported the case to the damang in

oral form.

Fact-Finding: Adat Functionaries, Witnesses and DisputantsUpon receipt of the complaint, the damang called his adat functionaries (known as “let adat”) for a

briefing on the incident. Subsequently he separately called witnesses and the disputing parties to his house to ascertain the facts of the case.

Deliberation/ Mediation / “Light” ArbitrationThe damang called his adat functionaries together to convene as the Adat Council. Reviewing the facts of the case, they referred to a codified book of adat law and determined a sanction for Marhat. This sanction was drawn up in a written letter of agreement. Marhat and Kombit were then called

before the damang and both agreed to the proposed resolution and signed the letter of agreement.

Enforcement

The signed letter of agreement is intended to strengthen enforcement, backed by social sanction. The damang has no powers of enforcement, however, so like many such

cases, Marhat, the wealthier and more powerful party, paid only 25% of the agreed

fine. The damang made no attempt to enforce the sanction.

Report to Higher Authority/Different Mediator or Conflict Avoidance

In this case the parties accepted the damang’s “light arbitration”. Had either of

them rejected it, however, Kombit’s options would have been to report the case to a

different mediator, a higher authority or once again try the police. The final alternative would have been avoidance – to drop the case – or a re-escalation of the conflict.

Acceptance/Restoration/ Adat CeremonyAccording to Dayak adat, once the resolution was reached, both parties were considered as adopted members of each other’s family. This was then confirmed through an adat ceremony where a chicken was sacrificed (necessary if blood is spilt in a fight) and both parties shared a meal.

REJECTION


3. Deliberation: can be solo, in conjunction with a council or in a public meeting (musyawarah). This can involve several meetings for difficult cases.

4. Mediation or “Light” Arbitration: the mediator brings the parties together to attempt mediation or deliver his suggested resolution and/or sanction. This can be based on written or oral adat law, religious law or simply the subjective views of the mediator.

5. Agreement or rejection: the parties either accept or reject the facilitated resolution. Agreement sometimes involves intimidation, desire to avoid the formal legal system or fear of revenge. If a resolution cannot be reached, they move on to another mediator, take the case to the formal system, or drop the complaint.

6. Enforcement: agreements are often written and signed to strengthen pressure for enforcement. The public nature of some dispute processes adds an element of social sanction. Fear of revenge or formal legal action also often supports enforcement. Ultimately, however, enforcement of agreements comes down to the willingness of the parties in question. The powerful often fail to honor mediated agreements.

While this procedure is common, it is not always as linear as presented above. As evident from Case Study 4, multiple hearings involving different mediators are not uncommon. And as the Market Fight case indicates, disputes move back and forth between formal and informal systems. Sometimes resolution proceeds on parallel tracks. The threat of referral to the police, or the threat of violent revenge is often used as a means to push rapid settlement.

There are, of course, regional variations on this standard process. In Madura, East Java, for example revenge, vigilantism and “pride killings” are common. Violent duels to the death – known locally as carok – are widely accepted both socially and culturally as a means of resolving disputes, particularly where male pride and social standing has been challenged. The fear of carok, paradoxically, can represent a powerful incentive to resolve disputes peacefully.

Right to be hear and be heard

Disputing parties are free to represent themselves and participate actively in the mediation process. The exception is West Sumatra, where disputants may appear before the AdatCouncil, but deliberation on the outcome is the exclusive right of the male lineage heads, or mamak. This lack of representation often sees women’s interests overlooked.

Dispute Processes

Informal dispute processes are largely based on mediation and conciliation and are usually voluntary. As one adat leader in Kalimantan said, ‘The community sees the damang as one of the local leaders. If they want to accept us, they do. If they don’t, they don’t.’ Although voluntary and consensus-based, these mechanisms often utilize what might be called “light arbitration”, whereby the dispute resolution actor or institution deliberates and comes to a “decision”, but assent remains in the hands of the parties. As the Raja of Asilulu village in Maluku said:

The Raja is not like a court – we use the “family approach”. If the parties aren’t satisfied, they can take their case to the police or the courts. But it’s rare that my suggestions aren’t accepted.


Voluntariness, however, is relative. Taking a case to court is not a genuine option for most poor people. Likewise, standing up to the authority of the Raja is a high risk prospect. Thus, for weaker parties in particular, rejecting the outcome or failing to secure enforcement of informal justice means the most likely next step is not referral to the courts or a higher authority, but rather conflict avoidance.

The case below illustrates some of the standard approaches utilized for processing disputes and the types of cases which tend to arise.

Case Study 4: Inheritance brings Misfortune33

This inter-village inheritance land dispute involved two distantly related cousins. Sammat is from Palengaan Daja village and Sardiman is from Poreh village, both in Pamekasan District, East Java. The dispute was over land used by Sardiman but located in Sammat’s village. Sardiman came to inherit the land through his father, who had previously been married to a woman from Palengaan Daja. His previous wife had passed away before bearing children, leaving her land with Sardiman’s father who subsequently remarried and fathered Sardiman. The woman from Palengaan Daja had been Sammat’s aunt and because of this, when Sardiman’s father passed away, Sammat claimed that part of the land was rightfully his.

Initially, Sammat tried to unilaterally reclaim the land by marking the plot with stakes. Sardiman refused to acknowledge this, so Sammat reported the matter to the village head. That is, the village head of Palengaan Daja where the land was located and where Sammat lived. The village head’s response was to summon the two disputing parties to his house, however, Sardiman refused to turn up. A witness to the case, Rahmat, explains what occurred. ‘Five meetings were held in total to resolve the case. The first one was held at the village head’s house, but nobody was able to reach an agreement. The second meeting was held at the disputed site but still no resolution was found.

The third meeting was held in Tenggina Dua hamlet so that both parties could attend. Tenggina Dua is located right in the middle, between Palengaan Daja and Poreh. The meeting took place at the house of a respected community figure, Pak Hamid, who also used to be the head of the hamlet.

When Sardiman and his supporters from Desa Poreh finally arrived they suddenly start shouting “Carok…carok…carok!” Both parties had brought supporters and almost all bore sickles. Both the hamlet head and village head managed to calm the groups and convince them to give up their sickles. However, they were unable to facilitate an agreement.’

The land was left unused for some time. The village head twice attempted to arrange a meeting but on both occasions the disputants did not turn up. Later Sardiman from Desa Poreh returned and began working the land. Currently the status of the land is uncontested but unresolved.

Somewhat surprisingly, given that this is an inheritance case involving Muslims, no religious leaders were involved. This indicates that disputants can choose the actor they feel is most appropriate. The case also illustrates the difficulties inherent in securing consensus and the role that violence or the threat of violence can play in achieving resolution. In the absence of a clear outcome based on the law, the prospect remains for the dispute to reemerge.

What norms are applied?

The informal system comprises several sources of norms and laws, which are applicable to a different extent in the research areas. These include (i) adat or customary laws; (ii) religious laws; and (iii) state law and local administrative regulations. In several of the research areas two or even all three normative systems are integrated, but cases of competition also exist where state, religious and customary laws and processes are inconsistent.

33 For the complete case, see Mohammad Said (2004), “Inheritance brings Misfortune” in Samuel Clark (ed.), (2004) ‘More than just Ownership: Ten Land and Natural Resource Conflict Case Studies from East Java and Flores’, Indonesian Social Development Paper No. 4, Jakarta: World Bank.


Codification of adat is increasingly common…

Adat law is mainly passed on through an oral culture, but in some of the research locations, attempts to codify adat law have been made by government, NGOs and/or local leaders. In Central Kalimantan, for instance, in 1996 a group of Dayak NGOs and intellectuals together with the Provincial Government produced a codified book of Adat Law. The Book covers procedures and sanctions for a range of violations including “moral offences” (adultery and pre-marital sexual relations/pregnancy); murder; theft and crimes against property; and slander.34

All eight damang we spoke to were aware of the book and said they referred to it, but only one had a copy in his possession. Another damang in the province had also attempted to exhaustively codify adat law in his sub-district in a 2004 publication.35 Districts in neighboring West Kalimantan are also drafting adat law books.36

In West Sumatra, there are adat laws for most aspects of social life, most prominently with respect to land ownership and usage rights. Recently, several nagari have begun codifying a form of adat law through Nagari Regulations.37 In Lombok, there are conflicting views on the merits of codification, but there is an increasing tendency towards enshrining local adat in village regulations, known as awig-awig.38

Many respondents across all five field research locations expressed the view that in the modern context, codification was necessary for legitimacy and external recognition of adat law. Others, however, reject codification as contrary to the dynamic nature of adat. They also fear that codification can lock in one person’s or group’s interpretation of local norms, when these are often contested. There also exists a well-founded fear that defining custom, including

34 Setwilda Tingkat I Kalimantan Tengah (Provincial Government of Central Kalimantan) (1996) The Damang and Dayak Adat Law in Central Kalimantan; Palangkaraya: Provincial Government of Central Kalimantan. 35 Y. Nathan Ilun (2004) Introducing Adat Law. Unpublished paper, 2004.36 See http://www.sanggau.go.id/bappeda/index.php?option=com_content&task=view&id=53&Itemid=9, a press release from Sanggau district in West Kalimantan dated 23 May 2007, accessed 20 November 2007. 37 For example, Nagari Minang Kabau in Kabupaten Tanah Datar has issued Peraturan Nagari 1/2002 on “Eradicating Social Diseases”, 2/2003 on “Order, Cleanliness and Beauty” and 3/2002 on “Gotong Royong”.38 In the village of Bentek, for instance, awig-awig were issued in 2001 covering environmental management, religious obligations and inter-village cooperation to manage water resources.

Box 1: A Sample of Adat Law from Bentek, NTB Province

Bentek is under the leadership of well-known village head, Kamardi. A lawyer and activist, he is a regular participant in national dialogues on village governance, adat and dispute resolution. In 2001 the Bentek Adat Council issued a set of written adat laws. Comprising 28 articles, the regulation governs religious obligations, pre-marital sexual relations and environmental protection. A sample of articles ranging from general statements of principle to specific stipulations backed by sanction follows below:

Article 3 (c): All people are required to follow the teachings of their respective religions. Article 6(a): Relations between male and female youth should be based on applicable norms,

both religious and adat, in order to respect the honor of both. Article 9 (a): All people are obliged to protect and conserve nature. Article 10 (b): All people licensed to exploit natural resources are prohibited from engaging in

acts which will damage the environment. Article 10(c): Specifically, people are prohibited from logging forests illegally; logging within 500

meters of a water source or dam; and 200 meters from a spring, river or creek. Article 10(d): People are prohibited from burning off in the forest. Article 10(f): People are prohibited from fishing using poisons.


dispute resolution processes, by mimicking state procedures would necessarily reduce the flexibility of non-state justice mechanisms.

…but unwritten social norms are still dominant

More common, however, than codified local norms are dispute processes where no specific law or established norms are applied. Disputes are often resolved on the basis of local conceptions of justice or fairness or indeed what the local leadership subjectively thinks is an appropriate outcome, without any reference to state, religious or traditional law. The party able to muster most authority is likely to determine the venue, the process and thus the likely outcome. Thus, 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. They dictate the structures, processes and norms to be applied.

Whether norms are written, oral or based purely on common sense, in reality it is social norms and power which usually determine the outcome of dispute resolution at the local level.39 The Souhoku and Panangguan cases above are two examples where the village head forged a compromise to resolve a land dispute between friends and cousins. The outcome referred to neither national nor adat law nor to objectively determined truth, as these were not relevant. As Lombok village head Kamardi said, ‘What we search for is a solution.’ The outcomes were able to resolve tension – to find a “solution” – at least in the short term.

Thus, in most circumstances, non-state justice is in fact a delegalized environment. This can facilitate flexible mediated solutions, but in the absence of a mandated structure or agreed norms, much discretion lies in the hands of the non-state justice actors. Where social norms are dominant, by definition societal and power relations will be the determining factors. Neutrality is hard to find in the village and, as a result, the paths to justice are not equal for all. The powerful travel a smooth road; the weak face a bumpy ride.

Even where norms and procedures are well-understood, it is far from certain that they will be applied consistently. Misuse, exploitation and self-interest are not uncommon, as is evident from the next case from West Sumatra. In this case, the woman’s lack of social standing and the desire of the clan head to “give a lesson” led to the imposition of sanctions against her when this had not been done previously for the same infraction. Social, not legal, norms determined the outcome.

Case Study 5: The Insulted Lineage Head

The two parties are neighbors in Sumpur, West Sumatra. One is a lineage head and the other a woman married into another clan in the nagari. The conflict erupted over a fight between their children, resulting in verbal insults being exchanged between the parties, during which the lineage head was addressed as “you” rather than by his adat title. Some clan members of the lineage head overheard this and submitted a written complaint to the Adat Council (KAN) that their clan head had been insulted according to adat.

The members of KAN are all the lineage heads and thus male. They invited the parties to explain what had happened and then formed an investigation team to research the appropriate punishment. Ultimately, the woman was fined Rp.

39 As Narayan has stated, ‘Poor people’s interactions with landlords, traders, money lenders [...] are not governed primarily by the laws of the land but by the social norms which dictate who has what value in each interaction.’ Deepa Narayan et al (2000) Voices of the Poor, Can Anyone Hear Us? New York: OUP, 278.


300,000, to be paid to the KAN. The money was to be paid to the KAN, rather than the individual “victim”, as the insult was considered to be against the nagari as a whole.

The woman considered the decision unfair, as the lineage head had also insulted her during the argument. Furthermore, as she said, ‘This is not the first time he has been addressed as “you” by someone. But there has been no case of sanctions before.’ The Head of the KAN also realized that both parties were equally guilty. ‘But the lineage elder wanted to give a lesson. Now many young people do not respect their mamak.’ He also acknowledged that there was social envy that the woman had managed to start a successful business and build a house in the nagari,whereas the lineage head was still living in a bamboo hut with no secure income.

The woman had not been formally adopted into a local clan and thus had no clan head to speak on her behalf. She was in adat terms still an outsider. If she had had a local lineage head to represent her, the case might have been solved between the lineage heads instead of going straight to the KAN. Having learned from the experience, she was adopted into the clan of Datuk Basa Nan Tinggi, who will represent her in future adat cases.

In West Sumatran adat, there is no prospect for appeal. Only unresolved disputes are sent “up the ladder”, thus there are few checks and balances against such arbitrariness. This lack of accountability left the woman with little alternative but to accept what she considered to be an unjust outcome.

Sanctions

Engagement with non-state justice systems should be based on the premise of constitutional supremacy. Sanctions, therefore, should be consistent with the right against torture stipulated in Article 28G2. And while, according to national law, the courts have exclusive jurisdiction over criminal cases and civil cases that involve rights protected under national law, in reality non-state justice actors handle both such cases.

The imposition of sanctions through informal justice, however, does not tend to distinguish between criminal (public interest) and civil (private interest) infractions. This distinction is rarely made, particularly in tribal or clan-based societies, where private interests are often perceived through clan or familial lens. Restoration of harmony between clans and families is the resolution imperative. This likewise drives the nature of sanctions imposed.

For simple disputes, an apology is often acceptable. In other cases, a fine or monetary compensation is the main form of sanction – this often combines a punitive element with compensation for injury or material damage. Where codified adat law exists, monetary amounts per violation are usually stipulated. In reality, however, adat functionaries are flexible and usually consider the financial situation of the perpetrator when determining an appropriate sanction. In Kalimantan, article 37 of the Adat Law Book states that where a perpetrator cannot pay a fine, their family is responsible.

Corporal punishment occurs, but is rare

Physical punishment is rare but is still practiced in some areas. In Amahai village, Seram Island, Maluku, a young man was whipped for throwing a rock at the village head’s office (Case Study 21). In Nagari Paniggahan and Gantung Sirih in West Sumatra, the nagari head sometimes delegates resolution of minor problems to youth organizations, who beat up the offender. Other sanctions include advice and exclusion from adat events, up to eviction from the village.


The table below provides a comparison of sanctions for common crimes at state law, a sample of written adat law from Central Kalimantan and a village in West Nusa Tenggara and as actually applied in selected cases studied for this paper.

Table 2: Criminal Sanctions at State and Adat Law in Selected Research LocationsCrime/Norms

Criminal Code Dayak Adat,Central

Kalimantan

Bentek Village

Adat, NTB*

Examples of Sanctions Applied in Case Studies

Homicide Max. 15 years 375-750 kati ramu**

Referred to the police

Rp. 36 million: Case 16

Rape Max. 12 years

4-15 years/ Rp. 12-300 million if occurs in the household. Domestic Violence Act

45-90 kati ramu

90-150 kati ramuif victim is a minor

49,000 – 100,000 UB

No sanction imposed: Case 7 & 28

Adultery/ Pre-MaritalSexual Relations

Not criminal if consensual 7-9 years if involves force

Alternative charge is violation of public morality. Max. 32 months or Rp. 450

Various fines between 30-300 kati ramu

Rp 5 million fine to the male: Case 24

Assault Max 32 months/ fine of Rp.4500

1-15 kati ramu 49,000 – 100,000 UB

Rp.6 mill: Case 1 Apology: Case 9None: Case 12

Theft/ Burglary

Theft: Max 5 years; 9 years if with violence or Rp. 900. Burglary: Max 12 years; 20 if with violence; Death penalty if causes death or Rp. 900

15-45 kati ramu 49,000 – 100,000 UB

No examples

Slander 9 months – 4 years 30-45 kati ramu 5,450 – 49,000 UB

Apology, Rp. 300,000 and meal for the entire village: Case 5

* UB is an ancient form of currency utilized across Lombok island in NTB to measure adat sanctions. As of 2006, 1000 UB = 1 chicken, 1 bottle of coconut oil, a box of fruit, wood, or 12,000 Rupiah (USD 1.30) ** Kati ramu is a measure of goods, formerly 6 oz. The goods could include gold or money. A high profile murder case in Palangkaraya saw a fine of Rp 12 million imposed. But on top of this were animals to be sacrificed, adat ceremonies and funding for an appropriate burial. In short, the sanctions are broad and flexible

Some of the sanctions documented in this research, including whipping and beating offenders, would be considered contrary to the constitutional protection against torture. In the absence of effective oversight, however, such sanctions are imposed with impunity.

Resolution Imperatives: the Search for Harmony

‘If the purpose were to find the truth, it would never end.’ - Village Head, Lombok, West Nusa Tenggara

The governing principle of informal justice is to return communities to harmony and peace. Social order is crucial in rural communities, where social and economic interdependence is high. Non-adversarial and geared towards flexible compromise, non-state justice has a number of advantages over formal adjudication in this regard. In the Palangkaraya manslaughter case (Case Study 16), the families of the victim and perpetrator have met twice to share meals since the incident and have good relations. In Case Study 4, resolution was not reached, but violence


was averted. A case in Tanah Awu village, Central Lombok, was resolved through adat means while a Supreme Court verdict on the same case was ignored. In the Ruhua case in Seram, Maluku (described below), the village head was able to restore good relations between groups fighting across village boundaries. Rapid action, grounded in social realities was able to prevent escalating violence.

Case Study 6: Fast-Acting Raja and Police prevent escalating trouble in Ruhua

Halue Sunawe, a youth from Ruhua on Seram Island, Maluku, went to pick cloves in nearby Haya village. Haya had been engaged in a long-standing feud with the neighboring village of Tehoru. Some people from Haya suspected Halue was from Tehoru and consequently beat him up when they spotted him picking cloves.

Halue responded by gathering some friends to seek revenge. They stopped a public transport vehicle from Haya on the street and pelted it with stones, breaking all the windows.

The owner of the vehicle reported the incident to the police, who called the Raja and the Village Secretary, plus the parties in question, for a discussion. Facilitated by the Raja, the parties agreed to apologize and sign a written “peace” settlement. Halue was fined Rp 500,000 to cover damage to the vehicle. Halue was pleased with the outcome, as the process was quick and did not involve court proceedings.

Harmony and impunity

The search for harmony can, however, come at the expense of individual human rights and justice. In clan-based societies in particular, restoration of harmony revolves around balancing communal relations. It is for precisely this reason, for instance, that Adat Councils in West Sumatra and Maluku are comprised of lineage heads. Sitting together they represent the community as a whole and deliberate based on communal interests. Communal interests trump the individual, as harmony between groups maintains the stability and security of the village as a whole.

Case Study 7: Rape overlooked in Sepa Village

In 2003, 17 year-old P was raped by her brother-in-law in the village of Sepa, Seram Island, Maluku. When she advised her husband, he beat her.

After she told her parents what had happened, relations became heated between the two families. Insults and threats were made. The case was eventually reported by P’s husband’s family to the village head. He in turn referred it to the village adat leader, as the families were from the same clan.

A musyawarah was called by the adat leader. It was attended by the families, the adat functionaries from each village and neighborhood heads. They heard the details of the case, but ignored the rape, focusing instead on the threats passed between the two families. In fact, the rapist was not even called to attend.

Ultimately the musyawarah ended with both families being fined for the threats. The rape was overlooked. When asked her views on the case, P angrily responded, ‘Satisfied? No, I was not satisfied.’

As this case study starkly highlights, the subjective nature of what constitutes harmony can be abused and manipulated to suppress legitimate complaints of the weak. It also leaves marginalized parties prone to being “consensused” into accepting decisions that they find unsatisfactory.40 “Harmony” is often simply synonymous with not antagonizing those with

40 As Merry has concluded, ‘By and large, popular justice tends to reinforce and entrench relations of power rather than to transform them.’ See Sally Engle Merry, ‘Sorting Out Popular Justice,’ in Sally Engle Merry & Neal Milner (eds) (1993) The Possibility of Popular Justice, Ann Arbor, Michigan: University of Michigan Press.


power. In the case above, the harmony imperative relegated the rights of the victim to a secondary or even irrelevant concern.

This was also evident in Case Study 5 (“The Adat Insult” case) where the woman without social status in the village was forced to accept a fine she considered unjust. By contrast, in Case Study 8 below, a member of the regional parliament felt free to ignore adat sanctions. For him, harmony was a secondary concern. His power and status afforded him the liberty to ignore such communal imperatives.

Resolution Patterns

Petty cases resolved quickly…

Minor cases within village boundaries, such as petty theft, fights between youths and small land boundary or natural resource disputes are usually easily managed through informal dispute resolution. Of the fourteen cases of this type documented, eleven were able to be resolved at the local level. The authority and social legitimacy possessed by the dispute resolution actors was adequate to bring about resolution.

…but the processes unravel as stakes increase or outside interests are involved

By contrast, other categories of case consistently proved difficult to resolve. Of the nine inter-village disputes, only three were able to reach a resolution. Only one of the three cases involving an external third party was resolved, and in this case the outcome has not been fully executed. These usually concern land and are disputes where significant economic interests are at stake. Cases involving the interests of women and minority ethnic groups are equally difficult to resolve (see Section III). And cases alone do not tell the full story in this regard – many legal problems experienced by women in particular are simply suppressed and do not come to light at all.

C. The Interface between Formal and Informal Justice

Interaction is Common

Although most disputes are handled by informal mechanisms, interaction between formal and informal means of dispute resolution is common, indeed, unavoidable in legally pluralistic

Main Findings

Interaction is common. Of the 34 cases studied for this paper, 16 engaged with formal sector actors and 4 went on to court. The interface is usually triggered when cases turn violent, the stakes are high or interests external to the village are involved. Police mediate most complaints. Police discretion to mediate is broad and undefined, leading to rent-seeking and injustice. Interface poorly defined. Courts must take into account non-state justice outcomes, but are often ill-equipped to understand local customs and traditions. The jurisdiction of non-state justice is not defined, meaning serious crimes are mediated when they should be prosecuted. Clashing norms. Norms clash on a regular basis. Outcomes through state and non-state justice can differ, leading to inconsistency and legal ambiguity.


societies. Of the 34 case studies that underpin this paper, 16 passed through informal mechanisms and engaged with formal justice actors. Four went onto the courts. These cases, therefore, are a useful lens through which to document and analyze the formal-informal interface.

The research findings indicate that interaction is likely to be triggered in three main instances. Firstly, cases that involve serious violence. A newspaper dataset of conflict shows that when violence is involved, police involvement in resolution increases from 27% to 86%. Secondly, cases that involve “outsiders”, including private sector interests or ethnic minorities. Several of the land cases from West Sumatra in particular illustrate this situation (see Cases 13, 29, 30 & 33). Finally, cases with high stakes are more likely to result in an “appeal” to the formal system.

Most often a case that has been through the informal system will make its first contact with the formal system via the police. The GDS data presented earlier indicated that the police are usually involved in 26.7% of disputes, but lawyers and prosecutors in only 1.4% and 2.4% respectively.41 However, the involvement of the police does not necessarily mean that the dispute has entered an inevitable pathway to prosecution. Police exercise significant discretion in deciding which cases are serious enough to warrant referral to the prosecutors and courts. Police in East Java, for instance, claim to settle 80% of disputes informally, either through mediation themselves or referral back to non-state mechanisms.42 This discretion is not guided by standard operating procedures.43

The interface is important for a number of reasons. Firstly, legal certainty. Government Regulation 72/2005 bestows authority on village heads, working with adat councils, to resolve disputes, which resolutions are considered binding. This definition of the interface between formal and informal justice is strikingly thin on detail, leading to ambiguity and the prospect of multiple outcomes for the same grievance, creating confusion and uncertainty.

Secondly, oversight. If the courts are strong, negotiation at the local level can take place against a backdrop of legal certainty. Injustice experienced through non-state justice systems can be righted at the higher levels, opening up options for the weak and marginalized.

How do the formal and informal interact?

The case studies researched suggest that formal and informal systems interact in two main ways – direct and indirect interaction.

41 Similarly, a dataset based on newspaper reports of conflict in East Java shows that 37.4% of all disputes involve the police but only 7.3% make it to the courts. See Patrick Barron and Joanne Sharpe (2005) ‘Counting Conflicts: Using Newspaper Reports to Understand Violence in Indonesia’, Conflict Prevention and Reconstruction Paper No. 25. Washington, DC: World Bank.42 Baare, above n.26, p. 9. 43 Interview Professor Adrianus Meliala, University of Indonesia, 7 December 2007. By comparison with other police forces, the Australian Federal Police, for instance, has detailed guidelines based on strength of evidence, nature of crime, public interest, age and intelligence of the perpetrator, attitude of the victim, etc.


Direct interaction occurs (i) when the formal system becomes directly involved in handling a case that has passed through the informal system through a process of “appeal”; (ii) or when a dispute is simultaneously being processed through both formal and informal mechanisms.

However, the research indicated that even if the formal system does not directly handle a case, it does indirectly play an important role in informal dispute processing. This occurs when (i) formal justice actors act as informal actors; or more commonly (ii) when informal justice actors or disputants use the formal justice system as a point of reference or source of norms in informal justice proceedings.

Direct Interaction: Oversight and Appeal

Just as cases are appealed through the formal system up to the Supreme Court, cases can be “appealed” from the informal to the formal. This is a passive form of oversight, triggered only when a disputant submits a complaint to the court that has already been handled through informal mechanisms. In Case Study 8 below, a disputant, dissatisfied with an adat sanction that effectively outlawed him from having an opinion on who his daughter should marry, appealed the adat decision to the district court.

Case Study 8: Heavy adat fines are “appealed”

Haji Anggeng is a prominent political figure and member of the Regional Parliament in West Lombok. He is from Tanjung sub-district in West Lombok, but lives in the provincial capital of Mataram because of his political activities. In February 2002, his daughter Linda was “kidnapped” by Sahrudin, a young man from a nearby neighborhood.44

The following day, Sahrudin’s family asked the hamlet head to officially inform Anggeng of his intention to marry Linda. According to a witness at one of these meetings, Anggeng gave his blessing subject to the payment of Rp. 5 million as “compensation” for the kidnapping. However, two days later, Anggeng visited Linda at Sahrudin’s house to verify her desire to marry. He also queried whether Sahrudin’s family would be able to look after her financially. The next day, Linda left Sahrudin’s house and, upon an investigation by the village, it was discovered she was at her father’s house in Mataram. This was interpreted to be a violation of proper adat marriage procedures.

That afternoon, the hamlet head, religious leaders and neighborhood head held a musyawarah (community meeting) to consider the matter. At this meeting it was decided that Anggeng had violated adat. He was fined heavily, including the payment of one white goat, one black goat, plus food and a sum of money to be distributed to the poor. Anggeng rejected these fines and took the case to the district court.

In court, Anggeng objected to the procedures, decision and sanctions of the adat institution. The court determined the fines were invalid, not on the grounds that the adat council was acting beyond its jurisdiction to hand down such a severe sanction, but that the sanction was not consistent with local adat. On this reasoning, if such a sanction were in line with local adat, the court would have upheld it.

In response, the adat council simply increased the sanctions further, including evicting Anggeng from the village for three years and denying his civil rights and role in adat functions. However, these sanctions were never enforced and have had little impact on Anggeng’s ability to participate in village life.

In this case the formal system effectively acted as an oversight mechanism over the adatprocess. As noted above, the courts are legally required to take informal processes and local values and customs into account. Of course “taking into account” does not mean “legally binding”, and in this case the court effectively overturned the adat decision. If fulfilling its

44 In Lombok there is a tradition, known as merariq or memulang, where the groom symbolically kidnaps his fiancé and brings her to his family as a way of announcing his intentions. Although not always the case, it is presumed that the woman is obliging.


proper role, the court should actually have decided whether the imposed adat sanction in any way infringed upon Anggeng’s civil or human rights or whether the procedure was invalid according to principles of due process (which it probably was, because no private individual – even an adat elder – can unilaterally oblige another private individual to pay an amount of money for unclear reasons). Had it been able to determine either of these flaws, it should have ruled that the sanction imposed on Anggeng was unlawful and unenforceable, because it contravenes national civil law, not because procedures were not “in accordance with local adat”.

The response of the informal actors in this case indicates that oversight and external accountability is not always welcome nor considered legitimate. Anggeng’s stature meant that he was able to ignore the fines and social sanction. This option would not be available, however, to an ordinary villager more dependent on harmonious social relations and subject to local power relations.

Direct interaction between informal and formal disputes processes often requires compromise and negotiation between the two systems, which often have different imperatives. The stabbing case from Kalimantan (Case Study 16 below) provides an example of how the formal and informal systems can successfully cooperate in order to balance the imperatives of both. Often, however, the interaction becomes antagonistic, particularly when the formal and informal systems fall on different sides of the disputes. Indeed, in some instances, the formal system is reluctant to hear “appeals” and rule on informally determined decisions.45 In Case Study 32 from West Sumatra, the court appeared intimidated by the complexity of adat land ownership rules and avoided the core issue in the dispute. Consequently, the case remains unresolved.

In many instances, ordinary villagers simply do not have access to this process of appeal. In the Central Kalimantan domestic violence case (Case Study 12), the victim’s attempts to have the dispute returned to the police were blocked by threats from the perpetrator’s lawyers and the victim’s limited understanding of the law. Strengthening the oversight role of the courts in this regard requires additional efforts to improve their accessibility. Hence, access to the formal system should be an integral part of the framework for strengthening non-state justice systems.

Indirect Interaction: Casting the “Shadow of the Law”

It is neither feasible nor in the public interest for all legal grievances to be handled through the formal legal system. We have seen earlier that in developed nations as well, only a small minority of grievances or justiciable events are settled through court adjudication.46 Besides processing disputes, one of the other major functions of the judiciary is to establish a benchmark of rule-based legal certainty against which informal dispute resolution can occur. This is often referred to as the “shadow of the law”.

45 This contradicts Law 4/2004 on the Authority of Judges, art 16(1), ‘The Court cannot refuse to examine, dispense justice and decide on a case brought to it with the reason that there is no law or that the law is unclear’ 46 See above, n.5.


The threat of legal action and its associated expense and shame can represent a powerful incentive to settle. This also means that access to the formal system can help to redress power imbalances that give rise to injustice through informal systems.

Thus, the involvement of formal institutions in the enforcement of informally resolved disputes does not have to occur directly through an “appeal”. In some instances, the involvement of the police effectively casts the “shadow of the law” over informal justice proceedings and outcomes. In the case below, the police were closely involved in the informal resolution of a street fight in Madura, East Java, firstly by protecting the victim, then participating in the negotiations and finally by guaranteeing enforcement.

Case Study 9: Street Fight Turns Ugly

This fight that started as a minor incident but blew up became more complex when the disputants and their supporters disagreed over how it should be resolved. The dispute occurred in Blumbungan village, Pamekasan, however one disputant was from a neighboring village.

The fight broke out in response to a motorbike accident that occurred in the middle of a procession of pilgrims who had just returned from the Hajj. A motorbike rider overtook a car waiting at the traffic lights, the car then turned right without looking and knocked over the motorbike rider. Wardi, who had been watching the returning pilgrims, went to help the motorbike rider and shouted at Paidi, who was driving the car, ‘If you’re going to drive a car be careful, don’t be so reckless. This is what happens when you speed.’ Feeling insulted and humiliated in front of the crowd, Paidi jumped from the car and began to punch Wardi. The fight was short lived as some people stepped in to separate the two. Paidi returned home, while Wardi remained at the procession.

But Paidi wasn’t finished yet. Still enraged by the insult, he returned to the scene, this time carrying a kitchen knife. He attacked Wardi, supported by his father, Djoko, who beat Wardi with a chair. Passers-by again stopped the fighting and as they were separated, Djoko continued to threaten Wardi, shouting that he would murder him next time he saw him in the street.

Feeling at risk, Wardi reported the incident to the local police. After collecting evidence from witnesses, the police initially detained Paidi in the local police cell. They then called a local kyai to try to peacefully resolve the dispute without a formal police report. However, Wardi refused the kyai’s attempts at informal resolution.

A few days later, Djoko and Paidi reported the matter to their village head. The village head proposed to call a community meeting to resolve the problem. Wardi agreed to attend. Shortly thereafter, the village head called together a neighborhood leader, the village military officer, a local gang member and a number of other community leaders, all from Djoko and Paidi’s village. They brought with them a pre-prepared letter of agreement in which Wardi agreed to drop his police complaint.

Wardi felt intimidated, particularly by the presence of the gang member and Army officer. Initially he refused to cooperate. Finally, after much discussion, Wardi agreed to resolve the issue informally providing that a letter of agreement was witnessed and signed at the police station.

Non-state justice mechanisms regularly fail to balance power relations during negotiations or ensure enforcement of outcomes after a decision is reached.47 In the Central Kalimantan domestic violence case (Case Study 12), the market fight case (Case Study 1) and in almost all disputes pitting the community against powerful outsiders, weaker parties were unable to secure enforcement of written negotiated agreements. Similarly in the Village Justice in Indonesia research, in all five cases studied where powerful government officials embezzled development funds, written agreements through informal justice mechanisms to repay the money were ignored.48

47 See Matthew Stephens (2003) ‘Local-level Dispute Resolution in Post-Reformasi Indonesia: Lessons from the Philippines’ Australian Journal of Asian Law 5(3) 229.48 See World Bank (2004) above n.26.


Informal mechanisms rely on social pressure, shaming and economic inter-dependence for enforcement. Similarly, the relative status of the disputants affects their respective bargaining positions. In this way, informal dispute resolution actors must skillfully frame disputants’ incentives in order to achieve a balance that will ensure compliance. When village elites or powerful outsiders are involved it is much more difficult to find that balance.

In some instances, calling on the equalizing and coercive power of the state can help restore that balance. In the case above, the presence of the police effectively balanced the unequal power relations of the two disputants during the informal negotiations. The sub-district Police Chief described how the presence of the police and threat of formal action was designed to ensure enforcement:

We [the police] are prepared to mediate disputes, which is what we [initially attempted to do] in this particular case, so that it is not always necessary for cases to go to the courts. […] In this case the two sides agreed to peace with the understanding that if it occurred again the matter would go to the court.

However, this discretion to mediate or prosecute criminal acts is open to abuse and rent-seeking. In the market fight case, the police held off processing the case until the bribes ran out and then promptly dropped it. In the domestic violence case, the police referred the complaint back to the damang without any follow up, consigning it to neglect. The discretion, therefore, can both facilitate and militate against good dispute resolution.

The Interface – A Brief Summary

State and non-state justice systems are often depicted as existing at opposite ends of a continuum. The common adjectives to describe the systems are indicative of the perceived dichotomy: adversarial vs. restorative, win-lose vs. win-win, detached vs. socially embedded, neutral and impartial vs. biased and discriminatory; rule-based vs. power-based.

The cases described in this section, however, demonstrate significant scope for cooperation, with mutually reinforcing benefits. Firstly, the ability of disputants to “appeal” informal justice decisions in the formal system acts as a form of accountability to a system that trumps local values and customs. Secondly, the ability of the state to work with informal actors extends the “shadow of the law” downwards – it brings the authority and power of the state down to the village level. This can assist enforcement by backing social legitimacy with state authority. Thirdly, greater recognition by the courts of informal justice and local customs will simultaneously increase its legitimacy and relevance to the public.

However, without a clear and more consistent approach, the interface will remain open to rent-seeking and exploitation. In the stabbing case, the court viewed the outcomes of the non-state justice process as valid, whereas in the Anggeng “kidnapping” case, the informal resolution was rejected. But in neither case file is there a clear explanation as to how these decisions were reached. The respective jurisdictions of the formal and informal systems are not clarified, meaning serious criminal offences are at times inappropriately mediated at village level. Procedural standards and protections are not articulated. On what basis was the process


effectively declared invalid in one case and legitimate in another? Similarly, what guides police discretion to mediate informally or prosecute formally? The interface is simply not defined and, as demonstrated in the Kalimantan domestic violence case and Anggeng’s case, sometimes the result is ambiguity and legal uncertainty that benefits the wealthy and powerful. This is a clear weakness, and it taken up in more detail in the following section.



Section IIIThe Strengths and Weaknesses of Non-State Justice



SECTION III: THE STRENGTHS AND WEAKNESSES OF NON-STATEJUSTICE

The research presented thus far indicates that there are clear advantages and disadvantages to the current practice of non-state justice in Indonesia. Some of the cases show that informal justice often fails to adhere to basic constitutional standards. Women are under-represented, minorities perceive discrimination and norms are not always clear. Some sanctions are draconian and enforcement is problematic.

Yet, villagers are not only far more likely to use informal rather than formal actors, but they are also report higher satisfaction levels. As indicated in Figure 6 overleaf, the GDS survey shows that 69% are satisfied with informal actors compared to 58.6% for formal.49

Developing a strategy to engage with non-state justice requires an understanding of its core strengths and weaknesses. Section III analyzes and discusses these in detail. Interspersed throughout the section is a series of “examples of change” from the field and neighboring countries. These small steps provide some modest insights into the different ways the weaknesses can be tackled and strengths embraced.

A. Strengths: why do people prefer non-state justice?

‘People don’t only choose informal dispute resolution because it’s cheap, quick and simple. The more important aspect is that they support an approach which delivers order and security in their community.’

Religious Leader from Ambon, Maluku Province

Accessibility, speed and cost

Some of the strengths of informal justice are simple and apparent. Physical accessibility is one clear advantage. Neighborhood heads, village heads, adat leaders and religious leaders are based in the village, known to community members and accessible. By contrast, the police and the courts are often located in distant district capitals.

A concomitant strength is speed of action. Particularly where economic rights are at stake, lengthy resolution processes can impact on the livelihoods of the poor. At times when violence is imminent – as in several of the East Java cases – rapid action is also necessary. In cases that reached resolution, the process was normally rapid. The manslaughter in

49 Those considered formal are the police, lawyers and prosecutors. The remainder are considered informal. The Asia Foundation (2001), above n.3 notes that 86% of people expressed satisfaction with informal justice.

Main Findings

Accessible, speedy and cost-effective. Non-state justice is more accessible, speedy and less expensive than the courts. It works particularly well for petty cases. Maintains social cohesion. The maintenance of communal harmony is highly valued in village life, and informal actors prioritize the restoration of social relations when problems occur. Flexible. Structures and norms are flexible, with the capacity to accommodate social change. Draws on local authority and legitimacy. People prefer non-state justice primarily because of the authority of its actors in the village milieu to resolve problems and enforce resolutions.


Palangkaraya was resolved in three weeks and the fight in Kuala Kapuas in two. Most cases in East Java and Maluku were also handled within two-three weeks or less.By contrast, the average waiting time merely between filing and hearing cases ranges from 4-6 months at the District Court, twelve months at the High Court and 2-3 years for the Supreme Court.50 More recent data indicates that the average time to see a case through from first instance to cassation is 7-12 years.51

Cost is another important consideration. Minor disputes are generally settled at no cost to the disputants.52 For most of the cases studied there were no case filing or hearing fees.53

Figure 6: Satisfaction with individual informal and formal actors

0 10 20 30 40 50 60 70 80

NGO

District government

Sub-district government

Police

Prosecutor

Lawyer

Village government

Family member/friend

Paralegal

Community/adat leader

Formal

Informal

Source: GDS Survey

The data in Figure 6 demonstrates that respondents express greatest satisfaction in those with whom they are most familiar – community and adat leaders, paralegals, family members and friends, and village governments. This finding has two major implications. Firstly, strategies to enhance dispute resolution should focus on the village and community level, not just the institutions of the state. However, secondly, it also suggests that efforts to increase community familiarity with actors from the sub-district and district levels (NGOs, prosecutors, government officials, etc) could help to improve satisfaction and trust levels.

50 Bappenas/World Bank (1996) Law Reform in Indonesia, Cyber Consult: Jakarta, p. 130.51 Mahkamah Agung RI (2003), Cetak Baru Pembaruan Mahkamah Agung RI, Mahkamah Agung: Jakarta, p.161. 52 Re the economic benefits of non-state justice, a study in Colombia concluded that using non-state justice systems to resolve land and inheritance claims led to higher income gains than using the courts: see Edgardo Buscaglia (2001) ‘Justice and the Poor. Formal vs. Informal Dispute Resolution Mechanisms’ Paper presented at Empowerment, Opportunity and Security through Law and Justice Conference, St. Petersburg, July 2001, pp. 9 & 10. 53 Adat dispute resolution in Central Kalimantan is an exception. Case filing fees in the market fight case were Rp 600,000. In the manslaughter case, the Adat Council charged Rp 6 million.


Petty cases resolved quickly and peacefully

The majority of disputes that emerge at the village level are petty in nature – fights between neighbors or youths, minor thefts and slander. Where the stakes are low, non-state justice mechanisms usually operate smoothly and effectively. As these kinds of cases are the most common, high satisfaction rates are to be expected.

Case Study 10: Fist Fight Fixed Fast54

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 the case to the police, Nuri approached Pak Parmin and Pak Bejo, the head of his hamlet and a paralegal under a program run by a local legal aid NGO. As Nuri said, they were known as people ‘Who can resolve problems.’

Parmin and Bejo called the parties together at Parmin’s house, talked through the problem and were able to resolve it quickly and peacefully. Pak Nuri categorically said that problems taken to the police never turn out well. ‘If you take a problem to the police,’ he said, ‘they like to beat you, lock you up. There’s no control.’

Local authority and legitimacy

Another important and related factor is the ability of non-state justice to restore harmonious relations. According to the Asia Foundation survey, the majority of respondents who chose informal justice cited the prospect of maintaining communal harmony as their main motivation.55

Informal justice actors are able to achieve this by virtue of their local authority. People seek assistance from their village heads, religious and traditional leaders precisely because they possess social legitimacy in the village milieu. They are not neutral and independent actors (as judges are required to be). They are directly involved in the day to day workings of the village and are familiar with the social and political background of disputes. Separating dispute resolution from village governance, politics and social relations is something of an artificial exercise. It is not one in which local actors engage.

This is evident in the Panangguan and Souhoku village land cases described above (Case Studies 2 & 3). In these instances, the village head and Raja respectively were able to help reach a compromise solution. Neither determined the objective truth nor referred to any legal norms, but the outcome was accepted by the parties in question. The mere authority of the village head was sufficient to resolve the dispute and ensure enforcement.

Calling on higher norms

In parts of the country, non-state justice actors are regarded to have supernatural powers, further enhancing their capacity to resolve local disputes and ensure enforcement. Many people in rural communities in Maluku, for instance, believe that breaching adat-basedsanctions relating to protection of the environment, known as sasi, can lead to illness or even death. In East Java and Lombok, the kyai and tuan guru often enjoy significant levels of loyalty

54 This case is drawn from field notes prepared by Alpian, Pieter Evers and Cathy McWilliam from a May 2007 field trip to the Lampung to evaluate Justice for the Poor’s Revitalization of Legal Aid program. 55 The Asia Foundation (2001), above n.3.


among their constituency, stemming from their ability to call on “higher” norms. In a case in East Java, a kyai was able to prevent a mob from murdering a villager accused of practicing black magic:

Hamzah was accused of practicing black magic (santet), and a plan had been made to murder him. However, the kyai heard about the plan, and then stood up in front of the Friday congregation in the Mosque and swore that Hamzah would not practice santet ever again.56

In these instances, the individual authority and legitimacy of the non-state justice actors proved sufficient to intervene effectively. Courts and the formal system do not necessarily enjoy this legitimacy. The Tanah Awu case from Lombok mentioned above is one of many where court decisions were ignored.57 When Anggeng (Case Study 8), successfully challenged adat sanctions in court, the Adat Council merely increased his punishment.

Flexibility

‘If the river is in spate, the washing plate is shifted. With a change of rajah comes a change of adat.’58

Non-state justice is inherently flexible. As norms, processes and sanctions are usually unwritten, actors can forge solutions and provide remedies that are socially appropriate and tailored to the context of each case.

And as demonstrated by the examples of change documented later in this section, informal justice can also be flexible and open to shifting social dynamics and realities. The examples of change are admittedly modest – women securing a voice in West Sumatra; clarification of norms and processes in West Nusa Tenggara; the power of legal literacy to open up options and choices. But while modest, these examples suggest that there is potential to bring about reform at the local level, perhaps where such space does not currently exist with respect to the courts and other state justice institutions.

B. Weaknesses: When informal justice mechanisms fail

‘It’s hard when people are strong, smart and rich.’ Female villager, Palangkaraya, Central Kalimantan

56 Respected Community figure, Paengaan Daja village, Pamekasan, East Java. 57 A district court judge in Ambon related to the research team at least one land dispute in the area in which villagers paid no attention to a Supreme Court verdict. 58 Minangkabau saying on the dynamic nature of adat. Cited in Timothy Lindsey (1998) ‘Square Pegs & Round Holes: Fitting Modern Title into Traditional Societies in Indonesia’ 7 Pacific Rim Law and Policy Journal 699.

Main Findings

Arbitrariness and lack of oversight. While social authority is the core strength of non-state justice, its unchecked exercise is concurrently the main weakness. The lack of clear procedures and norms and absence of downward or upward accountability mean the weak and marginalized are poorly served with little recourse to alternatives. Biased against women. Women have limited political capital at the village level, thus there is little to be gained from protecting their interests. Women’s legal problems (such as family law issues, domestic violence) are on occasion, therefore, either not taken seriously or overlooked in favor of communal harmony. Ethnic exclusivism. Particularly for adat systems, many non-state justice institutions are dominated by indigenous ethnic elites. This can militate against effective resolution of inter-ethnic disputesTrans-communal disputes. Non-state justice mechanisms cannot project authority beyond the village. Consequently, inter-village disputes and those involving powerful third parties can be difficult to resolve. Clashes between formal and informal systems. Informal mechanisms breakdown when they clash, rather than cooperate, with formal systems.


This research was launched with a focus on the experience and perceptions of women and minorities. This was based on the premise that gender bias is a major cause of poverty and that discrimination between identity groups sparks violence and is at the core of the social conflict that has affected Indonesia in the post-Suharto era. Understanding how non-state justice perpetuates these problems and, at the same time, how it could help address them was on the main objectives of this study.

That power imbalances inherent in non-state justice discriminate against the weak has been well documented.59 Social authority may well be the key strength of informal justice, but its unchecked exercise is simultaneously the core weakness. Consequently, informal justice faces both internal and relational weaknesses. In this section we address three of these – providing access to justice for women; addressing the needs of ethnic minorities; and finally, inter-village and external third party disputes.

Women’s access to justice

‘It’s unthinkable that women should decide over us.’ Male adat leader in West Sumatra

On the whole informal justice mechanisms do not protect and serve women’s interests well.60

Justice tends to reinforce existing social norms and power relations. Divorced as they are from local authority structures, women’s interests are often expendable. There is limited social or political return in protecting them. This is both caused by and reflected in women’s lack of representation in local dispute resolution mechanisms and a paradigm of objectification of women’s rights. Consequently, many women’s legal issues are either ignored or not taken seriously.

We noted above the almost complete absence of female representation in village leadership and the virtual impossibility of women securing decision-making roles in adat structures. In West Sumatra, for instance, while Minangkabau society is matrilineal, membership of the AdatCouncil is restricted to men. Women are reliant on their matrilineal uncle to represent their interests in the Adat Council, often with significant socio-economic consequences.

Case Study 11: Ibu Marnis’ land is sold by her brother: Sumpur, West Sumatra

Ibu Marnis and the other women in her family got wind that, in order to pay a debt incurred by his son, their maternal uncle (mamak) was planning to sell off lineage land without the required consent of the women. When they objected, the mamak threatened them verbally and physically. They appealed to the 4 lineage elders (ninik mamak) to urge their mamak not to sell the land.

But the ninik mamak supported the mamak and the sale went ahead. They were more concerned about the potential embarrassment the mamak would feel if his family could not repay a debt than the impact on the women as title

59 ‘The assertion that powerful men are liable to and do in fact get a better deal out of the application of customary law is obvious,’ Odinkalu (2005), above n.5 and World Bank (2004), above n. 26. Also Sinclair Dinnen (2001) “Building Bridges – Law and Justice Reform in Papua New Guinea” State, Society & Governance in Melanesia Project Working Paper 01/3; Australian National University: Canberra. Of course, much research indicates the formal system is little different. See, for instance, the seminal article by Mark Galanter “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law & Society Review 9560 For more on this topic, see also Julia Suryakusuma (2004) Sex Power and Nation, Metafor: Jakarta. Lawyers from LBH-APIK (Women’s Legal Aid NGO) in Lombok also said women are better served by formal justice. Similar findings emerged in research on women’s access to justice conducted by the World Bank in three provinces through 2007. This will be documented in a new publication in 2008.


holders over the land. The women were pressured to sign the agreement and ultimately did so, but only on condition that no further lineage land be alienated. The mamak nonetheless continued to sell more lineage land the year after. The mamak is now dead, but more than 20 years later Ibu Marnis is still using her savings to buy back the land he sold off.

The lack of representation does not necessarily equate to a total lack of access to justice for women. Despite being overlooked in the case above from Sepa Village, rape and sexual assault is generally taken very seriously and referred directly to the police. For instance, in a case in Sampung District, East Java, local religious leaders and NGOs successfully mobilized behind the victim to push the police to arrest and punish the perpetrator.

Domestic violence, however, is not viewed similarly. In the Asia Foundation survey, only 12% of respondents considered domestic violence to be a legal problem. Stigma attached to domestic violence means that most women do not report cases. One informant in East Java noted, ‘I was too ashamed to report, because people would ask what I did to get beaten.’61

Women are unlikely to disrupt marital relationships because of economic dependence. During a Focus Group Discussion in East Java, a researcher from a local STAIN (State Islamic Religious College) stated that her quantitative research on the local Religious Court indicated that lower-class village women are far more likely to request divorce than urban and upper-class village women. Her explanation was that these women, who often work the land and provide a significant proportion of the household income, are less economically dependent on their husbands. This observation was quickly dismissed by the majority of (male urban) FGD participants. This phenomenon, they argued, was because these women were uneducated and did not understand their position within the family according to Islam.

Either way, conflict avoidance is a common “strategy” for women.62 As a community leader in Hanive Village, Central Kalimantan said,

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.

When domestic violence is reported, it is far from certain that formal or informal justice will respond favorably.

Case Study 12: ‘It’s just excessive libido’

Sri lived in a simple house with her husband on one of the main roads in the urban kecamatan of Pahandut, near the center of Palangkaraya, Central Kalimantan. According to Sri’s sister Eka, when engaging in sexual intercourse, Sri’s husband would be extremely violent, hitting and biting her. Unable to tolerate it any longer, Sri left her husband and told her father what was happening. They reported to problem to the police. After two weeks of inaction, the police suggested that the problem be resolved through the damang, the traditional customary leader.

Under Dayak adat, if a wife leaves her husband, the assumption is that she is seeking a divorce. So, when the families met before the damang, Sri’s husband requested a divorce. Dayak custom also dictates that on divorce, property and goods must be transferred to the wife, in accordance with a written pre-nuptial agreement. Sri did not want a divorce, just for the violence to stop. However, a divorce agreement was written up, the husband signed and she felt compelled

61 Interview, 26 February 2005, Pamekasan, East Java. 62 See also Stephens (2003), above n.47 discussing cases from Flores, NTT province: ‘Most of the time women do not turn to anyone and remain silent about their problems’, p. 231.


to sign as well. This was partly driven by threats from the husband’s lawyer that she would be fined Rp 100 million for absconding. Sri, ignorant of the law and unable to afford legal counsel, knew no better. ‘It’s hard when people are strong, smart and rich,’ observed her sister, Eka.

The damang did not deal with the domestic violence aspect, feeling this was being handled by the police. The police, however, had already referred the problem to the damang. So, it fell through the cracks. The husband did not honor the agreed division of property. ‘They don’t care,’ said Eka. Although the damang lives literally across the street from the husband, he has taken no action to enforce the agreement. No social sanction has been applied against the husband either – he is still invited to neighborhood and adat events. Indeed, the strong sense was that domestic violence is not treated as a serious problem. When asked about the case, the damang’s Secretary laughed and said, ‘It’s just excessive libido.’

Sri’s inability to enforce her property rights upon divorce was repeated in several other research provinces. A recent baseline survey for the World Bank “Women’s Legal Empowerment” program also showed that women do not assert their property or alimony rights on divorce due to social stigma and a lack of knowledge of legal rights and procedures.63

This can have significant social and economic consequences. Sri herself is now living back with her parents, working a low-paid job.

Protective and paternalistic paradigm

Much adat law is actually geared around protecting women from “moral” offences, such as pre-martial pregnancy and sexual assault. A village head in Lombok observed that women were the “carriers of the law”. In other words, protecting women’s purity is one of the raison d’etreof the system. While this does in some circumstances protect women’s rights, it reflects a paradigm in which women are objectified rather than active subjects in their own right.

Overcoming gender exclusion is possible, however. Box 2 overleaf provides two examples of change documented during the field research. These examples demonstrate the importance of both understanding and working within the system, as well as the power of community leadership and mobilization to change it. They also highlight the central importance for marginalized members of the community to gain awareness of how systems operate and norms are applied and manipulated.

63 For a detailed report on the methodology and findings of the baseline survey, see www.justiceforthepoor.or.id.


Ethnic exclusivism

‘Why does it have to go through adat? It’s better to use the national law.’

- Member of minority ethnic Madurese recently returned to conflict-affected Central Kalimantan

Adat-based dispute resolution processes are typically not suitable for inter-ethnic disputes.64

The provinces studied vary greatly in ethnic composition and inter-ethnic relations. Central Kalimantan has experienced large-scale bloody conflict between Dayaks and Madurese. As the revival of adat is identified with the majority Dayak population, ethnic minorities regard adatdispute resolution as biased against them. Similarly in Maluku, migrants do not always

64 As Benda-Beckmann has observed, ‘Local customary laws…rarely express the values and aspirations of allmembers of the rural population.’ Franz von Benda Beckmann (2000) “Legal Pluralism and Social Justice in Economic and Political Development”. Paper presented at IDS International Workshop on Rule of Law and Development, 1-3 June 2000.

Box 2: Examples of Change I: Tackling the under-representation of women and gender bias through legal empowerment

Afrida’s Case: Overcoming gender exclusion in West Sumatra through understanding of adat law

Afrida, a relatively uneducated and poor woman, grew tired of having her ancestral land sold off by her lineage heads. On one occasion, Afrida discovered officials from the government land office measuring her mother’s land and, in anticipation that another sale was pending, called the village head to demand that the land assessment stop. When the ninik mamak heard of this he came and, bringing a knife, angrily threatened her, asking why the assessment had been stopped. Despite these initial protests, her mother’s land was sold.

Although Afrida feels that the formal justice system is fairer than the local informal mechanisms, due to her family’s concerns (the mamak is her mother’s brother) and fear of local reprisal her response was to develop an understanding of adat norms and processes and to try to change them.

Afrida has joined and actively participated in clan head musyawarah meetings. Instead of simply serving the drinks and snacks, the role usually reserved for women, she has vocally presented the interests of women and argued for greater participation for women in land sales. Afrida argued successfully that all clan heads must agree to all land sales. This has effectively taken the monopoly on land sales from one (male) actor and diffused decision-making power amongst a group of, albeit male, lineage heads. Afrida’s efforts have managed to prevent unjust land sales and have boosted her status. She is now entrusted to safe keep valuable lineage documents. Her ability to learn the “game” of adat and speak-up in musyawarah means she is now consulted on issues relating to lineage property and history.

Women Organize and Lobby for Action

In Batu Gadang, West Sumatra, a women’s group, which was initially organized through small business activities, has become active in mediating community disputes. In 2002 they were part of a coalition that resolved an environmental dispute between the community and corporate giant, Semen Padang. On a more micro-level, the group has also successfully mediated a dispute over electricity theft and lobbied for a village road. They have managed to secure an allocated seat in the village parliament and are also seeking representation on the Adat Council.

Their success if based on three factors. Firstly, the group linked into a women’s institution with a traditional basis in West Sumatra, the Bundo Kanduang. This provides legitimacy as the women are seen to be revitalizing an existing community body rather than introducing threatening new structures. Secondly, by developing economic independence, the women gained respect and a degree of influence in village affairs. Finally, the links to a local NGO helped the women to learn strategies to organize in numbers and enhance legal awareness. This has equipped them to move beyond problem solving to securing representation in the seats of village power.


recognize the raja, so adat does not always represent a means of resolving disputes involving non-indigenous people.65 In East Java, ethnic homogeneity means that this issue rarely emerges.66

The Case of West Sumatra

In West Sumatra, Minangkabau adat is exclusive in the sense that all members of a nagari are required to submit to it. This has special consequences for the large number of Chinese merchants who have lived for generations in West Sumatra and for the more recent, but very large number of Javanese transmigrants as well as members of other ethnic groups, primarily Bataks from North Sumatra. Members of these groups are required to be “adopted” into a clan so that they can be acknowledged by a mamak who can represent them in the nagari. This is referred to as “bermamak.” Although adopted into local clans, non-Minang populations are precluded from positions of leadership at the local level. Adat law is foreign and often misunderstood by non-indigenous populations. This can lead to discrimination and result in violence, as seen in the case below.

Case Study 13: Conflict between ethnic Batak and Minang in Kinali

In a village of 13,000 people, around 2000 were ethnic Batak from North Sumatra. The case erupted in the market of Tempurung in late 2000 as a private dispute between a Batak and a Minang who had been gambling. A fight broke out between the two and it soon developed into a major conflict between the two ethnic communities. 94 houses owned by Bataks were burned down and the Batak population fled or was evacuated from the nagari. For about three months, the market was closed, no children went to school and the parents did not go to work. Before the conflict, there were about 400 Batak families in the community. Now about 56 remain. According to a Minang hamlet chief in the area, the social background to the conflict was inequitable treatment of the Batak residents by lineage elders.

Resolution was managed by both adat heads and sub-district government officials. Representatives from the Batak and Minang populations, including all 32 lineage elders, met with senior government officials and an agreement was signed by the two parties at the camat office. The local government compensated the house owners who had lost their property with Rp 2 million per house, too little to rebuild them. The Batak were given their own hamlet and can use their own adat. They only have to report to the Minang adat leaders for weddings. According to the Batak, interaction between the two communities remains reserved.

The Case of Central Kalimantan

A clash of laws and norms, coupled with the absence of an effective dispute resolution framework to reconcile them increases the risk that disputes will erupt into violence. As Kane et al have observed, ‘This issue is more acute in post conflict [regions]…where there is an urgent need to find appropriate ways to resolve conflicts between members of different communities.’67

And yet in post-conflict areas across Indonesia, rather than establishing local mechanisms that are representative of all members of the community, local government initiatives to strengthen

65 For an historical perspective on Maluku and the exclusionary effects of adat law on non-indigenous populations, see Franz von Benda-Beckmann (1990) above n.20 and Benda-Beckmann, ibid – ‘often migrants have a second rate political and economic status under their hosts’ customary law’, p.11. 66 78% of the population is Javanese and 20% Madurese. 67 M. Kane, J. Oloka-Onyango & A. Tejan-Cole (2005) ‘Reassessing Customary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor.’ Paper presented at the Arusha Conference, New Frontiers of Social Policy, December 12-15, 2005.


dispute resolution have comprised a return to adat structures and processes. The reversion to the “old ways” is politically driven, strongly linked to a reassertion of regionalism and ethnic identity. It asserts difference, not commonality.

In Central Kalimantan, for example, one of the more prominent impacts of the ethnic conflict of 2001 has been a reassertion of Dayak cultural identity. As a government official in Kuala Kapuas District stated, ‘Our pride as Dayaks has risen since the conflict.’ Many others conveyed a view expressed by a senior Provincial government official, in that ‘If outsiders had respected our adat, the conflict might not have happened.’

The political response to revive the role of adat leaders has seen little impact on the ground, however. As a Provincial Parliamentary member told us, ‘Adat law is not all that dominant. The regulations do not reflect what’s in the field.’ Damang are under-resourced, lack skills and knowledge and are open to co-optation by government and/or private sector interests. The damang of Pondok Demar in Seruyan District, for example, receives a Rp. 750,000 monthly stipend from a palm oil plantation involved in a number of land disputes in the area. He called it a liaison fee, but local NGOs and villagers consider it a pay off.

Nonetheless, in a political sense, the revival has not gone unnoticed by non-Dayaks. Before the conflict, adat was considered ineffective to resolve the growing number of problems between Madurese and Dayaks. At the same time, many Dayaks believed the formal justice system was in the pockets of the Madurese.68 The Madurese interviewed for this study consistently expressed a preference for resolution by local governments or the formal legal system. They see adat as belonging squarely to the Dayaks. Thus, the regulatory changes introduced since regional autonomy have strengthened the hand of the Dayaks, but do not represent a channel for inclusive resolution for problems across ethnic boundaries.

This represents a particular problem in post-conflict Central Kalimantan. Madurese are returning in large numbers.69 Many return to difficult circumstances. District Regulations in Kotawaringin Timur, one of the main centers of the conflict, establish criteria under which Madurese are entitled to return and stay.70 Those considered acceptable to the local community may nonetheless return to find themselves homeless, as many Madurese neighborhoods were destroyed during the conflict. Homes still standing might now be occupied by other families. In other cases, Madurese property has been stolen or sold. In all such cases, Madurese seeking to return to their homes face difficult negotiations with those occupying their residences. Many spent or lost everything fleeing Kalimantan after the riots, so any return to normality is dependent on re-securing the right to their property.

And yet they naturally feel their bargaining position is very low. At any time they could be returned to Madura. Such threats are indeed commonplace. As one Kalimantan-born Madurese, Ova, told us, ‘Before [the conflict], the Madurese were rough. Now we have to

68 In an interview in 2003, the former Head of the Provincial Police in Central Kalimantan told us that the police were in fact not biased on ethnic grounds but just towards whomever paid them the most. This generally just happened to be the Madurese.69 As of December 2004, there were 9000 registered returns of the 120,000 Madurese who had fled. 70 East Kotawaringin Regional Regulation of 2004 on Population Control in Kotawaringin Timur


humble ourselves…our position now is very weak.’ This is driven by a fear of revenge and a recurrence of the violence of February 2001. ‘The bottom line is we are scared,’ she added. Ova recounted how the house of one of her friends was occupied by Dayaks after they fled for Madura due to the conflict. The Dayak family later sold the house on to a Chinese family. Ova’s friends now have to buy back their own house, yet have no money and no real power to secure their property rights.

Even though some damang told the research team that they thought a multi-ethnic body to address disputes would be valuable, little has been done to establish or improve dispute resolution processes in preparation for such problems. ‘There is no institution which can protect us,’ observed Ova.

Similar attitudes were expressed in Buru Island in Maluku by transmigrants trying to deal with a major land dispute dating back to 1954 (Case Study 22). The Javanese village head and his secretary did not wish to pursue resolution based on adat law, as they did not understand it and felt it discriminated against newcomers. This created tension in the area. The Village Secretary of the transmigrant village said, referring to the ethnic conflict in Sambas, West Kalimantan, in 1999, ‘This could become the second Sambas.’ The Raja of the neighboring local village conceded, ‘There’s some tension here.’

Inter-communal disputes

The authority of non-state justice actors rarely extends beyond their own sphere of influence, be that territorial (village and neighborhood heads), clan-based (adat leaders) or social (religious leaders). Furthermore, trust and social sanction are crucial to the sustainability of mediated agreements. As evident in the graph below, GDS respondents reported drastically lower levels of social trust in people from adjacent villages compared to their own neighborhood.

Figure 7: Trust in immediate neighbors versus neighboring villages

0% 20% 40% 60% 80% 100%

Trust in surroundingvillages

Trust in neigbours

Everyone Some Few None Don't know

Source: GDS Survey


These dual factors – inability to project social authority and lack of social trust – severely compromise the ability of village actors to resolve trans-communal disputes. The case below is an extraordinary example of that problem, from the tourist island of Lombok in West Nusa Tenggara Province.

Case Study 14: The Berlin Wall of Lombok: Karang Geteng vs. Patemon

The conflict began in mid-1999 when a resident of Patemon secured land title over a graveyard located between his kampung and neighboring Karang Geteng. The community in Karang Geteng disputed the certificate, feeling the land fell within their boundaries. Nobody seems sure now what triggered the violence, but heated battles broke out in June 1999 when Karang Geteng residents attacked Patemon. The conflict raged through the rest of 1999, peaking in January 2000, leading to many injuries and deaths.71

The dispute has now evolved beyond the original disagreement over land and taken on a life of its own, based on revenge. As Sibawai, a religious leader in Karang Geteng observed, ‘All that the people know now is that their family members have been killed by the people of Patemon.’

Dozens of battles have been fought over the last seven years. ‘We are ready to oppose them at all times,’ said the head of Patemon kampung. ‘I have ordered all men from 16 to 50 years old to be prepared for war against Karang Geteng…if they aren’t ready to fight, they aren’t fit to be called citizens of Patemon!’ Residents in Patemon maintain an arsenal of rocks, bottles, spears and even homemade firearms. ‘If there are signs of an attack,’ continued the Patemon kampung head, supported by the head of the local youth organization, ‘we order rocks, bottles and trucks to attack them and defend ourselves.’

The local government response was extraordinary. A 3-meter high wall has been built along streets bordering the two kampungs. Separate schools and health facilities have also been established so the residents do not need to interact. ‘Think about it,’ said Sibawai, ‘there’s a war between citizens, yet the government builds a wall! Do they think this conflict is merely physical? What is needed is social restoration.’

The economic impact of the wall has been significant. ‘Maybe the people have begun to think twice,’ said the Patemon kampung head. ‘We used to do Rp 35 million in business a day here. Now it’s as low as Rp 100,000 or even nothing.’

A local NGO has attempted to reconcile the two kampung, but attempts are at a preliminary stage. No effort has yet been made to bring the different parties together. In the meantime, the 3-meter wall stands between the villages as a symbol of division.

The absence of legitimate forums for communication and conciliation across local boundaries can lead to a clash of values and see micro-disputes turn into major violent conflict. Furthermore, the inability of non-state justice actors to project authority beyond their spheres of influence can lead them to enhance their social legitimacy by acting as “petty nationalists”, in that they act as supporters or advocates of their village rather than as neutral facilitators mediating a problem on its merits.

Third-party disputes

Disputes involving villagers and third parties, particularly forestry companies and palm oil plantations, are increasingly common in the research locations. Informal systems are usually unable to handle such disputes, as they involve parties beyond the social control of the village. In Central Kalimantan, disputes of this nature are rife as newly decentralized governments encourage expansion of palm oil plantations into traditional customary land.72 Backed by

71 We do not have precise numbers, as villagers were not forthcoming with this data and police unsure. 72 See John F McCarthy (2004) “Changing to Gray: Decentralization and the Emergence of Volatile Socio-legal Configurations in Central Kalimantan, Indonesia.” World Development. 32(7) p. 1199-1223, July 2004.


government, plantations often acquire land unfairly or for inadequate compensation. Villagers across Seruyan and Kotawaringin Districts, for instance, reported that they routinely received an average of Rp 400,000 per hectare in compensation for land acquired by plantations. The Head of the Economic Division of the Kotawaringin Timur district government, however, informed us that the minimum compensation was required to be between Rp 600,000 to Rp 1 million.

The Sari Gunung limestone mine case in Sampung, East Java, described below is an example of how the authority of local actors was insufficient to prevent environmental damage being caused by a local limestone mine.

Case Study 15: Sari Gunung Mine Creates a Mess73

Limestone has been mined near Sampung village in East Java since the Dutch colonial period. Since independence the operations have been owned by the local government but managed by a private company, PT Sari Gunung.

For over 20 years the community has complained to the company and the district government about the negative environmental impacts and damage to village infrastructure. The mine produces significant amounts of grosok, an unusable by-product mixture of chips and silt. As the mine is on a hill above the village, during the wet season the grosok flows down from the mine into the village. During heavy rain it causes significant damage to roads and some private residences.

In the 1980s, the then village secretary sent a letter of complaint to the District Head, signed by the sub-district, village and hamlet heads. They thought as a government-owned company that the District Head would take responsibility. However, he simply claimed the grosok problem was not a priority.

Suddenly in 1997 the district government built drains in the village so that the rain water and grosok would be channeled away from the village. However, this simply shifted the problem from the western hamlet to the eastern hamlet. Heavy rains later that year caused houses in the east as well as paddy fields further downstream to be flooded with water mixed with grosok. Another letter was sent, this time to the District Parliament and District Planning Agency, but again with no response. Shifting the problem from the western to the eastern hamlets began to fuel intra-community tensions. In 2003 a group of youths and farmers, tired of cleaning the grosok after heavy rain and having their fields polluted by dirty water, blocked the drains that diverted the water. Learning of this act of protest the village head called the youths to his home for a meeting. The community in eastern hamlet interpreted this as a hostile move by the village head, and approximately 20 villagers from the eastern hamlet arrived at the village head’s house. Not wanting to inflame tensions, the village head accepted their protest action and the drains were left blocked.

The rain continued and the grosok water flooded the main road and a number of shops and houses. No one would dare unblock the drains or even clean up the mess created. Dwi Pertiwi, a member of the Village Parliament, observed, ‘No-one in the other community dares clean it up, it could lead to brawls if someone cleaned it up.’ There have been a number of motorbike accidents on the main road, made slippery by the grosok.

Legal action was never considered let alone taken by the village government. The Director of the mine explained that every year he gave company profits to the district government, thus, in his opinion it was up to them as to whether they would resolve the grosok issue. Given that the mine employs many villagers, the village and sub-district heads were reluctant to provoke the company. At the time of writing this dispute remains unresolved. Social tensions remain high, particularly between the east and west hamlets over the blocked drains.

Villagers fear opposing powerful interests in the case of abuse of land rights or environmental damage. Residents of Sembuluh II village in Central Kalimantan complained of skin diseases from water pollution they believed was caused by a local palm oil plantation. And yet, as a woman from the village said, ‘We are reliant on them for jobs and money. We are too scared

73 This case is from Patrick Barron, Rachael Diprose & Michael Woolcock (2006), Local Conflict and Community Development in Indonesia: Assessing the Impact of the Kecamatan Development Program, Working Paper 10, Social Development, World Bank: Jakarta.


to report the problem.’ This in turn can cause horizontal tensions between villagers who are pro- and contra- the influx of outside investment.

There are increasing signs that local communities, often supported by advocacy NGOs, are learning to self-organize and take on vested interests encroaching on their land rights. Political openness and democracy are supporting such movements. But in general, non-state justice mechanisms cannot overcome the significant power imbalances at play.

As the experience of Madurese in Central Kalimantan demonstrates, one of the core challenges for non-indigenous communities to understand and navigate adat normative systems is the fact that both procedure and substance is unwritten and unclear to them. One way that communities have attempted to address this challenge, in addition to improving dispute processing for smaller intra-village disputes, is to codify dispute norms and structures. Box 3 below describes such an example from Lombok, West Nusa Tenggara province.

Clashes between formal and informal systems

Legal pluralism inevitably means that different legal norms and systems will on occasions conflict. The cases studied show that the interface is largely defined in an ad hoc manner – if the terms of engagement are not defined, arbitrariness and confusion can result. The case study below describes how the clash of norms or sanctions between the formal and informal derives from their different imperatives.

Box 3: Examples of Change II: Clarifying dispute resolution norms and structures in NTB

‘Bentek village, as well as other villages within the Perekat Ombara alliance, feels it is necessary to formalize judicial institutions at the village level. This is in line with regional law on decentralization on village responsibilities and authority. The community values such an arrangement for they must have (clear) pathways for resolving their disputes.’

Kamardi, Village Head and Perekat Ombara founder, Lombok, NTB

In West Lombok district, twenty-five villages joined together in 2000 to form the Adat Community Alliance (Perekat Ombara). The alliance was initially established in response to environmental damage caused by forestry companies in the area. Since then, Perekat Ombara has expanded to 32 villages across seven sub-districts and become a movement for reforming village institutions, including dispute resolution.

Each member village has clarified dispute management processes by establishing a village tribunal, known as the Mahkamah Adat or Majelis Krama Adat, which comprises the tri-partite authority of the government, adat and religious leaders. Several are choosing to codify adat laws to apply in their villages. The member villages have an executive (village head), legislative (village parliament) and judicative (adat tribunal). The alliance has also established a council to hear disputes at an inter-village level, introducing checks and balances on the levels below through the right to appeal.

Unlike the top-down adat revivals in other research locations, Perekat Ombara is an organic movement. With external support, the organization is now moving to strengthen the position of women and minorities in local-level institutions. This could include participatory codification of local adat, followed by a gender and human rights analysis of codified adat law. While emerging from a traditional base, Perekat Ombara leadership has a broad definition of “adat” as dynamic and evolutionary, in line with modern social realities. It sees reaching out to women as necessary for broad social legitimacy.


Case Study 16: Stabbing in the City - Dual Track Resolution74

Four young men went drinking together in the center of Palangkaraya, Central Kalimantan, on the evening of 31 August 2003. Two of the friends had a misunderstanding and a fight broke out. After an exchange of blows, 18 year old Ranno Jonfrid Siae pulled a knife and stabbed his friend Syahmanto. Ranno fled the scene, while his friends rushed Syahmanto to the local hospital. He died of the wounds shortly thereafter.

Ranno was arrested and detained by the police for two months while they conducted the investigation. In the meantime adat resolution processes ran in parallel. Both perpetrator and victim were Dayak and not long after the incident, their families met at the house of the neighborhood head of the victim to attempt resolution by adat means. Two separate deliberations ensued between the families, mediated by the neighborhood head. Once an agreement was reached, it was taken to the damang for “official recognition”.

Eventually a list of items required to be paid by Ranno’s family was drawn up, totaling Rp 36 million.75 Ranno’s father Jonfrid and his lawyers felt the price of certain goods was excessive, but Jonfrid’s bargaining position was very weak in the circumstances and so he conceded, ‘It was difficult to negotiate with them because it would make them emotional.’ He decided to stay with the adat process despite urgings of some friends and families to withdraw. ‘I could have pulled out of the adat process, but personally it wouldn’t have felt right. What my son did wasn’t normal. It touched on feelings and emotions,’ declared Jonfrid.

A mere 18 days after the incident, an agreement was signed and Jonfrid paid the “fine”. His main motivation was to reduce tensions and ensure harmony with the victim’s family. ‘It dissolves revenge and fear…and that’s been proven.’ He also knew that a mediated resolution would be well-received in court and hopefully reduce Ranno’s sentence. Indeed, his lawyers had advised him of precedents where that had occurred. The damang’s secretary also noted that the purpose of adat resolution is to ‘help reduce the prison sentence.’ He added, however, that it also entails a degree of ‘divine forgiveness’ to reduce the gravity of the perpetrator’s sin. ‘There’s none of that in prison,’ he observed wryly.

For cases as serious as this, adat resolution is rarely the end of the matter. The criminal prosecution proceeded. Mindful of the adat process and wishes of the victim’s family who had written to the court requesting the lightest possible punishment, the Palangkaraya Municipal Court handed down a sentence of only 1 year imprisonment. The court’s judgment reads:

… the matter has previously been peacefully resolved in the adat way between the families of the victim and the accused. The accused has fulfilled all requirements of the Dayak adat resolution. These values which exist in the community should be observed and respected because besides the juridical and philosophical aspects of the case, this Judicial Panel must also look to the social …

The sentence was later confirmed on appeal to both the High and Supreme Courts. Ranno is now out of jail and working in another district. The two families have met twice since to share a meal and claim that relations between them are sound.

The case contrasts the rationale of the two systems of justice. For the families and the damang,the imperative was restorative, to rapidly facilitate a resolution that would “dissolve revenge and fear”. The imperative of the court, in contrast, was to dispense justice in the public interest and to deter future crime.

The case also reflects how the systems approach each other. The desire to avoid double jeopardy whereby the perpetrator could be “tried” and punished twice for the same offence led the courts, including the Supreme Court, to acknowledge the adat sanction. Similarly the damang and Ranno’s lawyer understood the adat sanction could reduce the severity of the

74 This case study is based on interviews with the perpetrator’s father and lawyers, the family of the victim, the prosecutor and one of the judges in the case and discussions with the Damang who helped resolve it. It also draws on Palangkaraya Municipal Court Decision 279/Pid.B/2003/PN.P1.R of 16 December 2003 & Central Kalimantan High Court Decision 14/Pid/2004/PT.PR of 16 February 2004. The citation is from the Municipal Court decision and is our translation. 75 The list included items for an adat ceremony, two pigs, one buffalo, one cow, 15 chickens, 500kg of rice, 100 kg of sugar and special plates and bowls. The amount also included Rp 6 million in case fees for the damang and his adat functionaries.


prison sentence. In this case, the “clash” of norms and imperatives was successfully negotiated to the satisfaction of all parties.

By contrast, “black magic” killings documented in East Java (Case Studies 18 & 19) illustrate the difficulties inherent in a court determining precisely what constitutes “local customs and values” and the extent to which these should be taken into consideration. In East Java, the practice of black magic or santet is widely considered a crime. At the same time, it is also widely practiced. In most cases, police protect community members accused of black magic. For the most part the community accepts this intervention. However, if the community does decide to take matters into its own hands and seeks justice for someone accused of santet, the police rarely act to investigate the killing.

In short, the formal system does not determine on a consistent and predictable basis what constitutes appropriate local customs and values and what lies beyond acceptable standards. In the stabbing case above, the court viewed the outcomes of the non-state justice process as valid, whereas in the Anggeng “kidnapping” case (Case Study 8), informal resolution was rejected. But in neither case file is there an explanation as to how these decisions were reached. The respective jurisdictions of the formal and informal systems are not clarified, meaning serious criminal offences are at times inappropriately mediated at village level. Procedural standards and protections are not articulated. On what basis was the process declared invalid in one case and legitimate in another? Similarly, what guides police discretion to mediate or prosecute? The interface is simply not defined and, as demonstrated in the Kalimantan domestic violence case and Anggeng’s case, sometimes the result is ambiguity and legal uncertainty that benefits the wealthy and powerful.

Addressing the Interface – Examples from the Region

Other countries in the region face the same challenges legal pluralism and are adopting practical approaches to addressing the formal-informal interface. Neighboring Papua New Guinea, for instance, acknowledges the importance and role of traditional justice, but has established a government mechanism to harmonize the formal and informal systems.

Box 4: Examples of Change III: Enhancing compatibility between formal and informal justice and building capacity – The Community Justice Liaison Unit of Papua New Guinea

Like Indonesia, informal systems are the dominant form of justice in neighboring Papua New Guinea. In order to enhance compatibility and consistency between formal and informal systems; to enhance the capacity of non-state justice actors; to document and disseminate progressive local innovations; to encourage the engagement of civil society organizations in the justice sector and to promote restorative justice, the Government of Papua New Guinea has established a Community Justice Liaison Unit (CJLU) as an official part of the Law and Justice Sector.

Through regular training, oversight, awareness raising and specific programs for women and vulnerable groups, the CJLU is a manifest policy expression of the importance of non-state justice, but at the same time a practical means to forge a middle ground between the two domains of justice.

Source: Government of Papua New Guinea (2007)


Some of the uncertainty, ambiguity and potential for a clash of norms can be mitigated by clearly defining the respective jurisdictions of court-based adjudication and village dispute resolution. This is precisely the approach adopted in Indonesia’s near neighbor, the Philippines.76

Defining the respective jurisdictions of the formal and informal systems through national legislation, as in the Philippines example above, delineates the boundaries of police discretion and restricts the capacity of informal mechanisms to inappropriately mediate serious criminal cases such as rape and sexual assault. Of course merely legislating this does not necessarily translate into reality on the ground. In the Philippines, serious crimes continue to be mediated at the barangay level in contravention of state law. But clarifying the issue helps to reduce confusion and guide the exercise of discretion.77

These examples from the region could provide some inspiration to policy-makers in Indonesia.

76 For more on the Barangay Justice System, see Gerry Roxas Foundation (2000a), Report on the Efficacy of the Katarungang Pambarangay Justice System in the National Capital Region, Manila: Gerry Roxas Foundation; Gerry Roxas Foundation (2000b), The Panay and Guimaras Experience in Barangay Justice. Manila: Gerry Roxas Foundation; GC Sosmena Jr. (1996), ‘Barangay Justice: a Delegalisation Mechanism’ 20 Hiroshima Law Journal404; & G. Sidney Silliman (1985), ‘A Political Analysis of the Philippines Katarungang Pambarangay System of Informal Justice Through Mediation’ 19 Law & Society Review 279.77 Alfredo Tadiar (1988) ‘Institutionalising Traditional Dispute Resolution: the Philippine Experience’ in Asia-Pacific Organization for Mediation (APOM), Transcultural Mediation in the Asia-Pacific, Manila.

Box 5: Examples of Change IV: Defining the Interface – The Barangay Justice System of the Philippines

The Barangay Justice System (BJS) is a program of compulsory conciliation and mediation at the barangay orvillage level, implemented in all 42,000 barangay in the Philippines. Established in 1978, the BJS is a synthesis between formal and informal dispute resolution that attempts to capture the strengths of community mediation with the enforcement authority of the state.

The basic philosophy of the BJS is that no dispute may be filed with a court until an attempt has first been made to mediate it at the barangay level. Mediation under this system is conducted informally, without recourse to the rules of evidence. It is in essence a “de-legalized” environment.

The BJS comprises a mediation board in each village. The village head, or barangay captain, chairs the board which comprises 10–20 members depending on the size of the village. Cases are brought initially to the barangay captain for conciliation. If a settlement is reached, it is written up and signed by both parties. The settlement then has the legal effect of the final judgment of a court. If the captain fails to produce an amicable settlement, the case is raised to a three-member panel of the board, the members of which are selected by the disputants. If this fails, only then may the case be filed for adjudication in the courts.

The jurisdiction of the BJS covers all types of disputes with the following exceptions:

where one party is a government official; criminal offences punishable by imprisonment exceeding one year or a fine exceeding 5000 pesos; where the dispute involves real estate located in different cities or municipalities; and other disputes considered by the barangay captain to be better suited to the courts in the interests of

justice. (Local Government Code 1991: s 408)

While far from perfect, the Barangay Justice System consistently enjoys high satisfaction rates and heavy caseloads.



Section IVForging the Middle Ground: Embracing Strengths and Addressing Weaknesses Conclusions & Recommendations



SECTION IV: FORGING THE MIDDLE GROUND: EMBRACINGSTRENGTHS 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.

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

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 intra-communal 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.


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 non-state 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.


There are locations, notably West Sumatra, where local customary law tribunals are well-established, 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.


Voluntary and consensus-based, it is also able to restore harmonious relations in a way court-based 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 adatresolution.

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.


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


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 adatwhich 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


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

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 sector-based 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.

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 non-state 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.


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.


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 trans-

communal 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


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


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


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:


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, adatleaders 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


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/


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

Province: Regulation 9/2000 on the Basic Rules of Nagari Governance. The province reverts to the nagarias 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.

The traditional clan-based nagariadministration 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.

CentralKalimantan

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”.

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 adatis 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

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.

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.

Maluku 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 rajafor 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.

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.


AN

NE

X 2

:CA

SE M

AT

RIX

Loca

tion/

Tim

ing

Dis

puta

nts

Desc

riptio

n of

dis

pute

and

pro

cess

of r

esol

utio

n Ac

tors

su

ppor

ting

reso

lutio

n

Out

com

e &

En

forc

emen

t

1Ku

ala

Kapu

as,

Cen

tral

Kalim

anta

n

2003

Cla

iman

t : Ko

mbi

t, a

mar

ket o

ffici

al; e

thni

c D

ayak

.

Res

pond

ent :

Mar

hat,

a re

ason

ably

succ

essf

ul tr

ader

; et

hnic

Ban

jar.

Mar

hat’s

stro

nger

ba

rgai

ning

pos

ition

allo

ws

him

to fo

rce

an u

nwan

ted

reso

lutio

n

Mar

hat

was

war

ned

seve

ral

times

by

Kom

bit

not

to t

rade

in

proh

ibite

d ar

eas

in t

he m

arke

t. M

arha

t ev

entu

ally

prot

este

d th

ese

war

ning

s an

d hi

t Kom

bit,

caus

ing

inju

ries.

Kom

bit a

nd h

is b

oss

repo

rted

the

inci

dent

to th

e po

lice.

Ina

ctio

n en

sued

as

Mar

hat a

ttem

pted

to b

ribe

his

way

out

of t

roub

le.

Mar

hat’s

frie

nds

intim

idat

ed K

ombi

t int

o re

ferri

ng th

e ca

se to

the

dam

ang

and

to w

ithdr

aw th

e po

lice

com

plai

nt.

The

dam

ang

did

not

real

ize

that

Ko

mbi

t ha

d be

en

forc

ed

to

acce

pt

adat

reso

lutio

n.

Form

al: P

olic

e an

d Ko

mbi

t’s

boss

at t

he

mar

ket

Info

rmal

:D

aman

g,ad

atco

uncil

and

Ko

mbi

t’s b

oss

Form

al: i

nves

tigat

ion

drag

ged

with

out r

esul

t for

ov

er 4

mon

ths

Info

rmal

: res

olut

ion

achi

eved

in 2

wee

ks.

Mar

hat a

polo

gize

d an

d ag

reed

to p

ay R

p 6

milli

on c

ompe

nsat

ion.

C

ase

fees

wer

e R

p 60

0,00

0.

Mar

hat p

aid

only

Rp

1.5

milli

on.

Dam

ang

took

no

actio

n to

enf

orce

.

2Pa

nang

guan

, Pa

mek

asan

East

Jav

a

2001

Cla

iman

t : Am

ir

Res

pond

ent:

Hal

im

Barg

aini

ng p

ower

eq

ual;

villa

ge h

ead

forg

es a

com

prom

ise

outc

ome

Hal

im, A

mir’

s co

usin

sol

d la

nd c

laim

ed b

y Am

ir fo

r Rp

8 m

illion

. At

tem

pts

by H

alim

’s b

roth

er to

res

olve

the

disp

ute

faile

d.

The

case

was

refe

rred

to th

e vi

llage

hea

d.

The

villa

ge h

ead

refe

rred

to d

ocum

enta

tion

on o

wne

rshi

p of

the

land

in

ques

tion

and

to r

esol

ve t

he t

ensio

n, s

plit

the

land

, pr

essu

ring

Amir

to a

ccep

t the

dec

isio

n by

thre

aten

ing

to ta

ke a

ll th

e la

nd fo

r the

villa

ge.

Info

rmal

:re

lativ

es, v

illage

he

ad

1-2

wee

ks

Alth

ough

nei

ther

an

idea

l no

r leg

al re

solu

tion,

the

villa

ge h

ead

adop

ted

a se

nsib

le d

ecisi

on to

re

duce

tens

ion.

Lac

k of

le

gal c

erta

inty

cou

ld s

ee

the

disp

ute

recu

r.

3So

uhok

u,Se

ram

Isla

nd,

Cen

tral

Mal

uku

1997

& 2

003

Cas

e I :

Udi

n &

Har

yadi

aga

inst

M

ingg

us T

amae

la

Cas

e II:

Udi

n ag

ains

t La

ham

aku

Cas

e I:

Udi

n an

d H

arya

di b

ough

t lan

d of

f Am

ong

Piet

ers.

Th

e la

nd w

as re

gist

ered

, but

Am

ong

did

not h

and

over

the

certi

ficat

e at

the

tim

e of

sal

e.

The

land

was

adj

acen

t to

ano

ther

plo

t, ow

ned

by M

ingg

us T

amae

la.

Lat

er,

Amon

g as

ked

Udi

n an

d H

arya

di t

o cu

t do

wn

a tre

e on

the

lan

d.

Afte

r th

ey d

id t

his,

M

ingg

us p

rote

sted

tha

t th

e tre

e w

as a

ctua

lly o

n hi

s la

nd.

He

mad

e th

reat

s to

war

ds U

din

and

Har

yadi

if th

ey d

id n

ot re

turn

the

tree.

Udi

n an

d H

arya

di re

porte

d th

e in

cide

nt to

the

Raj

a.

Cas

e II:

Udi

n go

t int

o a

fight

with

Lah

amak

u ov

er th

e bo

unda

ries

Info

rmal

:Raj

aan

d hi

s st

aff

Cas

e 1:

the

Raj

are

ques

ted

Amon

g an

d M

ingg

us to

pay

to h

ave

the

land

bou

ndar

ies

mea

sure

d.

Cas

e 2 :

Udi

n w

as

corre

ct, s

o La

ham

aku

paid

for s

ome

land

and


of th

eir r

espe

ctive

land

plo

ts.

Udi

n re

porte

d th

e ca

se to

the

Raj

a,w

ho th

is ti

me

sent

his

ow

n “la

nd te

am” f

rom

the

sani

ri ne

geri

to

mea

sure

the

land

bou

ndar

ies

and

dete

rmin

e th

e ou

tcom

e.

the

mat

ter w

as c

lose

d.

Udi

n di

ssat

isfie

d, b

ut

acce

pted

the

Raj

a’s

deci

sion

due

to th

e la

ck

of a

n al

tern

ativ

e.

4Pa

leng

an

Daj

a &

Pore

h,

Pam

ekas

anD

istri

st,

East

Jav

a

1996

Parti

es: S

amm

at a

nd

Sard

iman

Barg

aini

ng p

ower

ro

ughl

y eq

ual

A la

nd

disp

ute

over

in

herit

ance

, w

hich

cr

osse

d vil

lage

bo

unda

ries.

T

he l

and

in q

uest

ion

was

loc

ated

in

Sam

mat

’s vil

lage

but

use

d by

Sar

dim

an.

Fol

low

ing

a se

ries

of c

ompl

ex

fam

ily li

nks

and

inhe

ritan

ce is

sues

, Sam

mat

felt

that

par

t of t

he

land

was

rig

htfu

lly h

is.

Sam

mat

trie

d to

ass

ert

this

cla

im b

y m

arki

ng t

he p

lot

of l

and

with

sta

kes.

Sar

dim

an c

ount

ered

, cl

aim

ing

the

land

was

his

. In

itial a

ttem

pts

by S

amm

at’s

villa

ge

head

to r

esol

ve th

e ca

se w

ere

not w

ell r

ecei

ved

by S

ardi

man

. La

ter a

ttem

pts

on n

eutra

l gro

und

also

faile

d an

d ca

me

close

to

mas

s vi

olen

ce b

etw

een

each

par

ty’s

resp

ectiv

e su

ppor

ters

.

Info

rmal

: Villa

ge

head

, res

pect

ed

com

mun

ity

figur

e, a

rmed

gr

oups

supp

ortin

g ea

ch

party

.

Out

com

e : N

o su

cces

sful

re

solu

tion.

Vio

lenc

e w

as

just

ave

rted

by th

e vi

llage

he

ad a

nd c

omm

unity

le

ader

s.

5Su

mpu

r,W

est

Sum

atra

2003

Parti

es: G

us, v

illage

ne

wco

mer

& D

atuk

Ran

gkay

o Ba

sa,

loca

l line

age

head

Une

qual

bar

gain

ing

posi

tion

Inci

dent

occ

urre

d af

ter G

us a

nd D

atuk

Ran

gkay

o so

ns fo

ught

in

the

stre

et.

Gus

was

ups

et a

nd in

com

plai

ning

to R

angk

ayo

she

refe

rred

to h

im a

s ‘yo

u’ in

stea

d of

the

resp

ectfu

l “da

tuk”

. Th

is w

as o

verh

eard

and

repo

rted

to th

e KA

N. A

hea

ring

was

hel

d an

d G

us w

as r

epre

sent

ed b

y he

r hu

sban

d’s

mam

ak.

Gus

was

or

dere

d to

pay

“go

ld m

oney

” of

Rp.

300

,000

, ser

ve r

ice

to th

e en

tire

villa

ge, a

nd p

ublic

ly ap

olog

ize.

Info

rmal

:Ada

tC

ounc

ilO

utco

me:

Mat

ter

reso

lved

.D

atuk

Ran

gkay

o w

as s

atis

fied,

bu

t Gus

was

dis

satis

fied

with

the

outc

ome

as s

he

too

had

been

insu

lted.

6R

uhua

,Se

ram

Isla

nd,

Cen

tral

Mal

uku

Dec

2003

Parti

es: H

alue

Su

naw

e an

d vil

lage

of

Hay

a

Hal

ue S

unaw

e, a

you

th f

rom

Ruh

ua,

wen

t to

pic

k cl

oves

in a

ne

arby

villa

ge,

Hay

a.

Hay

a ha

d be

en e

ngag

ed i

n a

long

-st

andi

ng f

eud

with

the

villa

ge o

f Te

horu

. S

ome

peop

le f

rom

H

aya

susp

ecte

d H

alue

was

from

Teh

oru

and

beat

him

. H

alue

re

spon

ded

by g

athe

ring

som

e fri

ends

and

sto

ning

a p

ublic

tra

nspo

rt ve

hicle

ow

ned

by p

eopl

e fro

m H

aya.

The

owne

r of t

he v

ehic

le re

porte

d th

e in

cide

nt to

the

polic

e.

Info

rmal

: Pol

ice,

R

aja,

Villa

ge

Secr

etar

y

Both

par

ties

apol

ogiz

ed

and

signe

d a

writ

ten

settl

emen

t. H

alue

was

fin

ed R

p 50

0,00

0 to

co

ver d

amag

e to

the

vehi

cle.

He

was

pl

ease

d, a

s th

e pr

oces

s w

as ra

pid

and

avoi

ded

the

cour

t.

7Se

pa, S

eram

Is

land

,

Cen

tral

Vict

im: P

, a 1

7 ye

ar

old

wom

an

Perp

etra

tor:

P’s

P w

as r

aped

by

her

brot

her-i

n-la

w.

Whe

n sh

e re

porte

d th

e in

cide

nt to

her

hus

band

, he

beat

her

. Her

par

ents

took

up

the

case

, cr

eatin

g te

nsio

n w

ith t

he h

usba

nd’s

fam

ily.

Ins

ults

and

th

reat

s of

vi

olen

ce

wer

e ex

chan

ged.

Subs

eque

ntly,

th

e

Info

rmal

: villa

ge

head

, ada

tle

ader

Out

com

e: b

oth

fam

ilies

wer

e fin

ed fo

r mak

ing

thre

ats.

The

rape

was

ra

ised

. It

was

als

o no

t


Mal

uku

2003

brot

her-i

n-la

w

P is

a y

oung

wom

an

agai

nst a

pow

erfu

l fa

mily

husb

and’

s fa

mily

rep

orte

d th

e ca

se to

the

villa

ge h

ead.

H

e in

tu

rn r

efer

red

the

case

to th

e lo

cal a

dat l

eade

r, as

bot

h fa

milie

s w

ere

part

of th

e sa

me

clan

.

Whe

n a

delib

erat

ion

was

hel

d (in

pub

lic),

the

adat

lead

er ig

nore

d th

e ra

pe a

nd c

once

ntra

ted

on t

he t

hrea

ts m

ade

by P

’s f

amily

to

war

ds h

er h

usba

nd’.

The

rapi

st w

as n

ot c

alle

d to

app

ear.

The

adat

lead

er w

as, i

ncid

enta

lly, a

noth

er o

f P’s

bro

ther

s-in

-law

.

repo

rted

to th

e po

lice.

The

vict

im w

as v

ery

diss

atis

fied

with

the

proc

ess,

as

her c

ase

was

ann

ounc

ed p

ublic

ly an

d th

en ig

nore

d.

8Je

ngga

la

Villa

ge, W

est

Lom

bok

NTB

2002

Parti

es: H

. Ang

geng

As

wad

i, a

mem

ber o

f th

e lo

cal p

arlia

men

t an

d an

ada

t cou

ncil

Anng

eng,

a p

ower

ful

com

mun

ity m

embe

r, is

abl

e to

igno

re th

e ha

rmon

y im

pera

tive

Angg

eng’

s da

ught

er w

as “k

idna

pped

” by

Sahr

udin

to b

e m

arrie

d,

in li

ne w

ith lo

cal a

dat p

ract

ice.

Angg

eng

appr

oved

, con

tinge

nt

on p

aym

ent o

f an

Rp.

5 m

illion

ada

t fin

e fo

r the

“kid

napp

ing”

.

Angg

eng

track

ed d

own

his

daug

hter

to v

erify

that

she

did

inde

ed

wis

h to

mar

ry S

ahru

din.

She

was

late

r fou

nd b

ack

at h

is ho

use

as w

ell.

Thi

s w

as v

iew

ed b

y th

e co

mm

unity

as

cont

rary

to a

dat.

Con

sequ

ently

, An

ggen

g w

as f

ined

by

the

adat

cou

ncil.

He

reje

cted

thi

s de

cisi

on a

nd t

ook

the

case

to

the

Dis

trict

Cou

rt,

whi

ch d

ecla

red

the

sanc

tion

inva

lid.

In r

espo

nse,

the

ada

t co

uncil

incr

ease

d th

e sa

nctio

ns f

urth

er,

inclu

ding

evic

ting

Angg

eng

from

the

villa

ge fo

r th

ree

year

s an

d de

nyin

g hi

m h

is c

ivil r

ight

s fo

r the

sam

e pe

riod

(no

acce

ss to

ID

card

s,ad

at fu

nctio

ns, e

tc).

Info

rmal

: Ham

let

chie

f,ne

ighb

orho

od

chie

fs,a

dat

lead

ers

at

ham

let a

nd

villa

ge le

vel.

Form

al: D

istri

ct

Cou

rt

Out

com

e: A

ngge

ng

rem

ains

in th

e vil

lage

an

d co

ntin

ues

to b

e pa

rt of

the

com

mun

ity,

desp

ite th

e sa

nctio

ns

impo

sed

upon

him

.

9Bl

umbu

ngan

, Pa

mek

asan

,Ea

st J

ava

Janu

ary

2005

Perp

etra

tor:

Paid

i,

Vict

im: W

ardi

P di

d sp

end

time

in

pris

on, b

ut h

is

conn

ectio

ns b

ullie

d W

into

a s

ettle

men

t

Stra

nger

s, P

and

W, e

xcha

nged

insu

lts o

n th

e st

reet

follo

win

g a

car a

ccid

ent.

P a

nd h

is fa

ther

then

thre

aten

ed W

with

a k

nife

. W

re

porte

d th

e m

atte

r to

the

pol

ice

and

refu

sed

atte

mpt

s at

pe

acef

ul d

isput

e re

solu

tion

by a

kya

i. T

he p

olice

det

aine

d P.

Th

e ca

se w

as t

hen

repo

rted

to t

he v

illage

hea

d w

ho h

eld

a m

usya

war

ah.

A f

ew d

ays

late

r th

e vil

lage

hea

d, lo

cal m

ilitar

y of

ficer

, a lo

cal g

ang

mem

ber a

nd a

num

ber o

f oth

er c

omm

unity

le

ader

s, a

ll fro

m P

’s vil

lage

, gat

here

d at

the

villa

ge h

ead’

s ho

use.

Th

ey h

ad a

pre

-pre

pare

d w

ritte

n st

atem

ent

in w

hich

War

di

agre

ed t

o dr

op t

he p

olice

com

plai

nt.

Fee

ling

intim

idat

ed,

he

refu

sed

to s

ettle

. U

ltimat

ely,

the

gang

mem

ber c

onvi

nced

bot

h pa

rties

to s

ettle

.

Form

al: P

olic

e de

tain

ed P

aidi

Info

rmal

: pol

ice,

lu

rah,

gan

g m

embe

r,ky

ai,

com

mun

ity

lead

ers

& ba

bins

a w

ere

all

invo

lved

in

atte

mpt

s to

re

solve

the

case

Out

com

e : U

ltimat

ely

a re

solu

tion

was

ach

ieve

d,

whi

ch s

aw P

and

his

fath

er a

polo

gize

to W

. P

was

rele

ased

from

jail

and

the

mat

ter

cons

ider

ed c

lose

d.

A m

ixtu

re o

f soc

ial

sanc

tion

and

phys

ical

intim

idat

ion

brou

ght

abou

t the

reso

lutio

n.

10La

mpu

ng

2007

Parti

es: t

wo

villa

ge

yout

hsPa

k N

uri i

s a

farm

er fr

om a

rur

al v

illage

in L

ampu

ng p

rovin

ce.

One

day

, his

son

got

into

a fi

ght w

ith a

sch

ool c

lass

mat

e. T

hat

child

’s fa

ther

ste

pped

in a

nd b

eat N

uri’s

son

. R

athe

r tha

n re

port

Info

rmal

:Pa

rmin

and

Be

jo, p

aral

egal

s

Out

com

e: s

ucce

ssfu

lly

med

iate

d re

solu

tion


Equa

l bar

gain

ing

pow

er, m

inor

cas

e th

e ca

se t

o th

e po

lice,

Nur

i app

roac

hed

Pak

Parm

in a

nd P

ak

Bejo

, the

hea

d of

his

ham

let a

nd a

par

aleg

al u

nder

a p

rogr

am

run

by a

loca

l leg

al a

id N

GO

. As

Nur

i sai

d, th

ey w

ere

know

n as

pe

ople

‘Who

can

reso

lve p

robl

ems.

’

unde

r a lo

cal

lega

l aid

NG

O

prog

ram

.

11Su

mpu

r,W

est

Sum

atra

1983

Cla

iman

t : Ib

u M

arni

s an

d hu

sban

d

Res

pond

ent:

Ibu

Des

Wom

an’s

lack

of

repr

esen

tatio

n in

ad

at in

stitu

tion

cost

s he

r

In 1

983

the

mam

ak p

lann

ed to

paw

n so

me

rice

field

s he

ld b

y M

arni

s to

pay

deb

ts a

ccum

ulat

ed b

y hi

s so

n. A

lthou

gh re

quire

d ac

cord

ing

to a

dat p

roce

dure

, he

did

not s

eek

Mar

nis’

con

sent

. M

arni

s br

ough

t the

cas

e to

the

four

nin

ik m

amak

of h

er li

neag

e ho

ping

they

wou

ld p

rote

ct h

er la

nd.

To

avoi

d em

barra

ssin

g th

e m

amak

and

his

son

, th

e ni

nik

mam

ak u

rged

Mar

nis

to a

gree

. Be

grud

ging

ly s

he d

id o

n th

e co

nditio

n th

at h

e st

ate

in w

ritin

g no

t to

sel

l her

her

edita

ry la

nd a

gain

.

Info

rmal

:Ada

tle

ader

sO

utco

me:

Mar

nis

was

di

ssat

isfie

d w

ith th

e de

cisi

on. H

er b

roth

er h

as

sinc

e pa

ssed

aw

ay b

ut

she

is s

till p

ayin

g of

f de

bts

incu

rred

to b

uy

back

the

land

he

sold

fro

m u

nder

her

.

12Pa

lang

kara

ya

Cen

tral

Kalim

anta

n

2004

Vict

im: S

iti

Perp

etra

tor:

Her

hu

sban

d

Maj

or p

ower

im

bala

nce

A w

oman

co

mpl

aine

d to

he

r fa

mily

ab

out

her

husb

and’

s vi

olen

ce.

They

rep

orte

d th

e ca

se to

the

polic

e, w

ho r

efer

red

it ba

ck to

the

adat

lead

er (d

aman

g).

The

husb

and

then

divo

rced

he

r an

d re

fuse

d to

pa

y Si

ti’s

right

ful

divis

ion

of

prop

erty

. In

timid

ated

by

he

r hu

sban

d’s

law

yers

, Si

ti ac

cept

ed

the

reso

lutio

n.

Form

al: P

olic

e

Info

rmal

:Ada

tle

ader

Form

al: r

efer

cas

e ba

ck

to th

e vi

llage

Info

rmal

: The

dom

estic

vio

lenc

e w

as ig

nore

d an

d th

e da

man

g di

d no

t en

forc

e a

pre-

nupt

ial

mar

ital a

gree

men

t on

divi

sion

of p

rope

rty.

13Te

mpu

rang

, W

est

Sum

atra

2000

Dis

puta

nts :

Intra

-villa

ge c

onflic

t be

twee

n Ba

tak

and

Min

ang

com

mun

ities

Min

oritie

s tre

ated

as

seco

nd-c

lass

citiz

ens

Ethn

ic vio

lenc

e be

twee

n M

inan

g an

d Ba

tak

peop

le e

rupt

ed o

ver

a re

lativ

ely

min

or in

ciden

t of g

ambl

ing.

A m

arke

t and

94

hous

es

wer

e bu

rned

dow

n, a

nd m

any

Bata

k co

mm

unitie

s fle

d th

e na

gari

(400

hou

seho

lds

befo

re t

he v

iole

nce

and

now

56)

. T

ensio

ns

wer

e m

anife

st b

efor

ehan

d.

Few

Bat

ak f

amilie

s ha

d be

en

inco

rpor

ated

int

o a

linea

ge a

nd t

he c

omm

unitie

s te

nded

to

rem

ain

sepa

rate

. Th

ose

adop

ted

into

a li

neag

e di

d no

t rec

eive

th

e sa

me

right

s as

indi

geno

us e

thni

c M

inan

g.

Info

rmal

:

Villa

ge h

ead,

ad

at le

ader

s,

Polic

e

Out

com

e: F

ear s

till

rem

ains

am

ongs

t the

re

mai

ning

Bat

ak fa

milie

s.

Land

dis

pute

s co

ntin

ue

betw

een

the

two

com

mun

ities.

14G

eten

g &

Pate

mon

,M

atar

am,

NTB

1999

- pr

esen

t

Dis

puta

nts :

villa

gers

of

Get

eng

and

Pate

mon

Tran

s-co

mm

unal

di

sput

e di

fficu

lt to

re

solv

e

Peop

le

in

Pate

mon

se

cure

d ce

rtific

ates

ov

er

land

w

hich

st

radd

led

the

two

villa

ges.

G

eten

g re

side

nts

felt

the

land

was

th

eirs

and

laun

ched

a v

iole

nt a

ttack

on

Pate

mon

.

Mut

ual v

iole

nce

cont

inue

s to

thi

s da

y, w

ith n

o re

al li

nk t

o th

e in

itial d

isput

e.

Seve

ral p

eopl

e ha

ve d

ied

durin

g th

ese

pitc

hed

battl

es.

Both

gro

ups

of v

illage

rs m

aint

ain

an a

rsen

al o

f wea

pons

–

rock

s, b

ottle

s, s

pear

s, e

ven

guns

. T

he p

olic

e an

d lo

cal

Polic

e, lo

cal

gove

rnm

ent.

Out

com

e : th

e fa

ilure

to

addr

ess

the

initia

l pr

oble

m n

ow s

ees

it co

ntin

ue w

ith n

o ap

pare

nt e

nd.

The

econ

omy

in P

atem

on

has

suffe

red

sign

ifican

tly


gove

rnm

ent p

rove

d un

able

to d

o an

ythi

ng a

bout

it.

They

in fa

ct

built

a 3-

met

er w

all b

etw

een

the

villa

gers

to s

epar

ate

them

.

as a

resu

lt of

the

disp

ute.

15Sa

mpu

ngvil

lage

,Po

noro

go,

East

Jav

a

2003

Cla

iman

t : vi

llage

rs o

f Sa

mpu

ng

Res

pond

ent:

Sari

Gun

ung

min

e,

owne

d by

the

Dis

trict

G

over

nmen

t but

run

by a

priv

ate

com

pany

Exte

rnal

inte

rest

s &

po

wer

Imba

lanc

e

Silt

run

off f

rom

the

min

es re

gula

rly fl

oode

d pa

rts o

f the

villa

ge,

dam

agin

g ro

ads

and

hous

es a

nd p

addy

fiel

ds. A

dra

in b

uilt

by

the

Dis

trict

Gov

ernm

ent

dive

rted

the

silt

from

one

hal

f of

the

vi

llage

to th

e ot

her,

crea

ting

intra

-villa

ge te

nsio

ns.

The

villa

ge h

ead

sent

a le

tter

on th

e iss

ue to

the

Dist

rict H

ead

and

Reg

iona

l Par

liam

ent,

for

no r

espo

nse.

Th

e co

mpa

ny a

nd

the

dist

rict g

over

nmen

t bot

h de

nied

resp

onsib

ility.

N

obod

y to

ok

lega

l act

ion

and

villa

gers

and

the

sub-

dist

rict h

ead

felt

unab

le to

ac

t ag

ains

t th

e co

mpa

ny,

as

a m

ajor

so

urce

of

lo

cal

empl

oym

ent.

Info

rmal

: Villa

ge

head

, villa

ge

secr

etar

y,

villa

ge c

ounc

il, su

b-di

stric

t hea

d

Form

al: n

one

invo

lved

Out

com

e: N

o re

solu

tion

of th

e pr

oble

m, l

eadi

ng to

on

goin

g in

tra-c

omm

unal

te

nsio

ns a

s th

e si

lt co

ntin

ues

to fl

ood

part

of

the

villa

ge.

16Pa

lang

kara

ya

Cen

tral

Kalim

anta

n

Augu

st 2

003

Cla

iman

t: Fa

mily

of

Syah

man

to, a

you

ng

man

sta

bbed

to

deat

h in

Pa

lang

kara

ya

Res

pond

ent:

Fam

ily

of J

onfri

d, w

ho

stab

bed

Syah

man

to

A fig

ht b

roke

out

bet

wee

n fri

ends

afte

r a

drin

king

ses

sion

and

R

anno

Jon

frid

Siae

sta

bbed

his

frien

d Sy

ahm

anto

, w

ho l

ater

di

ed o

f the

wou

nds.

Jo

nfrid

was

arre

sted

and

det

aine

d fo

r tw

o m

onth

s by

the

pol

ice

whi

le t

hey

cond

ucte

d an

inv

estig

atio

n.

Adat

reso

lutio

n pr

ocee

ded

in p

aral

lel,

facil

itate

d be

twee

n th

e tw

o fa

milie

s by

the

nei

ghbo

rhoo

d he

ad.

Upo

n re

solu

tion

by a

dat

mea

ns,

the

victim

’s

fam

ily

wro

te

to

the

Publ

ic

Pros

ecut

or

requ

estin

g th

e “li

ghte

st p

ossi

ble

puni

shm

ent”

for J

onfri

d.

Ultim

atel

y th

e co

urts

too

k th

e ad

at p

roce

ss i

nto

acco

unt

and

hand

ed d

own

a on

e-ye

ar s

ente

nce.

Info

rmal

: Ket

ua

RT

faci

litate

d th

e re

solu

tion,

w

hich

was

late

r en

dors

ed b

y th

e da

man

g.

Form

al: P

olic

e,

pros

ecut

ors,

dist

rict,

prov

incia

l and

Su

prem

eC

ourts

.

Info

rmal

: Jon

frid’

s fa

mily

ap

olog

ized

and

agre

ed

to p

ay a

fine

of R

p 36

m

illion

. Th

is m

ostly

co

mpr

ised

anim

als

and

food

, and

incl

uded

Rp

6 m

illion

in c

ase

fees

for

the

dam

ang.

A

cere

mon

y w

as h

eld

and

the

fam

ilies

are

now

on

spea

king

term

s.

Form

al: J

onfri

d w

as

sent

ence

d to

1 y

ear i

n pr

ison

. Se

rved

in fu

ll.

17Se

mbu

luh

II Vi

llage

,

Cen

tral

Kalim

anta

n

2002

Perp

etra

tor :

Batu

ni

and

Bunt

ang,

two

loca

l fish

erm

en

Vict

im: W

hole

villa

ge

Perp

etra

tors

’ clo

se

rela

tions

hip

with

vi

llage

hea

d pr

otec

ted

them

for

Batu

ni a

nd B

unta

ng w

ere

drift

net

fish

ing,

dam

agin

g th

e fis

hing

eq

uipm

ent

of

othe

r vi

llage

rs

and

pullin

g in

hu

ge

catc

hes.

Pe

rson

al

plea

s to

de

sist

fell

on

deaf

ea

rs,

so

villa

gers

co

mpl

aine

d to

the

villa

ge h

ead

and

the

loca

l pol

ice.

Thei

r effo

rts

wer

e un

succ

essf

ul.

Thre

ats

of v

iole

nce

wer

e m

ade

tow

ards

Bat

uni a

nd B

unta

ng, s

o fin

ally

the

villa

ge h

ead

brok

ered

a r

esol

utio

n w

hich

ban

ned

the

drift

-net

fis

hing

.

This

ban

was

en

caps

ulat

ed

in

a vil

lage

Info

rmal

:Vi

llage

rs, v

illage

po

lice,

villa

ge

head

.

The

proc

ess

took

alm

ost a

ye

ar in

tota

l

The

fishe

rmen

sto

pped

in

resp

onse

to th

reat

s of

vio

lenc

e an

d ac

tion

from

th

e vil

lage

hea

d.

Inte

rest

ingl

y, in

200

3 an

d 20

04, o

ther

villa

gers

sp

orad

ically

took

up

the

prac

tice

them

selv

es.


som

e tim

e re

gula

tion.

18Pa

leng

aan

Laok

,

Pam

ekas

an,

East

Jav

a

2001

Vict

im: W

ater

pum

p th

ief

Perp

etra

tor:

Villa

ge

mob

A th

ief w

as th

war

ted

from

ste

alin

g a

wat

er p

ump

and

was

set

up

on a

nd k

illed

by lo

cal v

illage

rs.

The

pol

ice

took

no

actio

n.

Villa

gers

fear

ed re

veng

e at

tack

, whi

ch fe

ars

wer

e re

aliz

ed w

hen

two

men

wer

e ki

lled.

Onl

y th

e in

terv

entio

n of

a l

ocal

kya

i pr

even

ted

the

cycle

of

reve

nge

killin

gs fr

om c

ontin

uing

.

Info

rmal

: Kya

i

Form

al: P

olic

e in

volve

d in

se

cond

mur

der

incid

ent

Out

com

e : fo

r the

m

omen

t the

cyc

le o

f vi

olen

ce h

as c

ome

to a

n en

d. N

o ch

arge

s w

ere

laid

for t

he k

illing

s.

19Pa

leng

aan

Daj

a,Pa

mek

asan

,

East

Jav

a

2001

Vict

im: B

rudi

n,

villa

ger k

now

n fo

r pr

actic

ing

blac

k m

agic

Perp

etra

tor :

Thug

s hi

red

by v

illage

rs

Brud

in, a

n ex

pone

nt o

f bla

ck m

agic,

was

kille

d by

thug

s hi

red

by

villa

gers

who

had

long

hel

d a

grud

ge a

gain

st h

im.

The

villa

ge

head

was

too

frigh

tene

d to

inte

rven

e an

d no

body

was

cha

rged

w

ith th

e m

urde

r.

A ye

ar la

ter,

Brud

in’s

wife

was

als

o ac

cuse

d of

bla

ck m

agic

and

ki

lled

by h

ired

thug

s.

Info

rmal

: The

vil

lage

hea

d an

d ky

ai k

new

wha

t w

as g

oing

to

happ

en b

ut to

ok

no p

reve

ntive

ac

tion.

No

follo

w u

p by

the

polic

e.

Out

com

e : B

rudi

n w

as

mur

dere

d an

d no

act

ion

was

take

n.

20Po

noro

go a

nd

Won

ogiri

D

istri

cts,

East

Jav

a

2001

Yout

hs fr

om

conf

lictin

g m

artia

l ar

ts g

roup

s

Lack

of t

rust

acr

oss

iden

tity

grou

ps

spar

ks c

onflic

t

Yout

h fro

m W

onog

iri b

eat-u

p a

grou

p of

juj

itsu

yout

h fro

m

Pono

rogo

. T

hrea

ts o

f re

veng

e w

ere

mad

e, s

o th

e W

onog

iri

gang

pla

nned

a p

re-e

mpt

ive a

ttack

.

Polic

e se

nsed

som

ethi

ng w

as a

bout

to

blow

-up

and

calle

d in

re

info

rcem

ents

. R

athe

r th

an j

ust

phys

ical

ly s

epar

ate

the

two

grou

ps a

nd e

nfor

ce s

ecur

ity th

e po

lice

also

invit

ed le

ader

s fro

m

both

qua

rrellin

g co

mm

unitie

s in

to a

dia

logu

e at

the

bord

er.

Info

rmal

: Pol

ice

and

com

mun

ity

lead

ers

prev

ent

addi

tiona

lvi

olen

ce.

Form

al: T

he

ringl

eade

rs w

ere

arre

sted

and

pr

oces

sed

thro

ugh

the

lega

l sy

stem

Out

com

e : a

dditio

nal

viole

nce

aver

ted

and

lead

ers

of th

e gr

oup

puni

shed

21Am

ahai

,Se

ram

Isla

nd,

Cen

tral

Mal

uku

2003

Perp

etra

tor :

Buce

Sa

lisi,

a yo

uth

in th

e vil

lage

Afte

r a d

rinkin

g se

ssio

n, B

uce

thre

w a

rock

at t

he v

illage

hea

d’s

offic

e, b

reak

ing

a w

indo

w.

A vi

llage

r w

ho s

aw t

he i

ncid

ent

repo

rted

it to

the

villa

ge h

ead.

The

Ada

t C

ounc

il ca

lled

Buce

be

fore

a v

illage

mee

ting

to d

iscu

ss t

he c

ase.

Th

e m

eetin

g ag

reed

that

the

puni

shm

ent w

ould

be

nine

stro

kes

of th

e ca

ne, t

o be

del

iver

ed in

pub

lic.

Info

rmal

:Ada

tC

ounc

ilO

utco

me:

Afte

r the

ca

ning

, Buc

e le

ft th

e vil

lage

and

has

not

re

turn

ed

22Sa

vana

Jay

a Pa

rties

: the

villa

ges

In

1954

, th

e go

vern

men

t pr

ovid

ed

2 ha

of

la

nd

to

each

In

form

al: T

he

Out

com

e: th

e ca

se


& Ji

kum

eras

a Vi

llage

s,

Buru

Isla

nd,

Mal

uku

of S

avan

a Ja

ya

(Tra

nsm

igra

nt) a

nd

Jiku

mer

asa

(Indi

geno

us)

Mut

ual

mis

unde

rsta

ndin

g an

d cl

ash

of n

orm

s sp

arks

tens

ion

trans

mig

rant

fam

ily f

rom

Jav

a to

Bur

u Is

land

. M

ost

of t

he

trans

mig

rant

s w

ere

rele

ased

po

litica

l pr

ison

ers

who

ha

d pr

evio

usly

bee

n ex

iled

to B

uru.

As

the

tra

nsm

igra

nt f

amilie

s se

ttled

and

exp

ande

d, 2

ha

prov

ed in

adeq

uate

and

they

beg

an

to m

ove

on t

o la

nd o

wne

d by

loc

als

in J

ikum

eras

a vi

llage

. C

ompe

nsat

ion

was

not

alw

ays

paid

. M

any

of th

e tra

nsm

igra

nts

wer

e ab

le, h

owev

er, t

o se

cure

land

cer

tific

ates

on

the

basi

s of

th

e 19

54 a

ppro

val.

Afte

r th

e fa

ll of

Suh

arto

, lo

cal

inha

bita

nts

bega

n to

rai

se t

his

case

. N

eith

er p

arty

was

at

faul

t, bu

t so

met

hing

nee

ds t

o be

do

ne t

o pr

even

t th

e gr

owin

g te

nsio

n sp

illing

ove

r in

to e

thni

c co

nflic

t in

a pr

ovin

ce a

lread

y sh

atte

red

by 6

yea

rs o

f vio

lenc

e.

villa

ge h

ead

of

Sava

na J

aya

had

repo

rted

it to

the

cam

at, t

he

bupa

ti, p

olic

e an

d th

e di

stric

t go

vern

men

t. An

N

GO

from

Am

bon

had

also

be

en in

volve

d.

No

atte

mpt

s at

di

rect

med

iatio

n be

twee

n th

e vi

llage

s.

rem

ains

unr

esol

ved.

Th

e pa

rties

are

hop

ing

the

new

ly in

stal

led

Bupa

ti w

ill ta

ke a

n in

tere

st in

ha

ndlin

g th

e pr

oble

m.

A cl

assi

c ca

se o

f con

flict

of la

ws,

exa

cerb

ated

by

an in

effe

ctiv

e bu

reau

crac

y an

d le

gal

syst

em a

nd th

e ab

senc

e of

a m

echa

nism

for i

nter

-vil

lage

dia

logu

e.

23Se

i Villa

ge,

Leih

itu S

ub-

Dis

trict

Mal

uku

2004

-200

5

Parti

es: A

bidi

n an

d Ye

dade

, bot

h cla

imin

g in

herit

ance

fo

llow

ing

the

deat

h of

th

eir f

athe

r

Mah

mou

d an

d Jo

hra

wer

e m

arrie

d bu

t co

uld

not

prod

uce

child

ren.

The

y ad

opte

d Ye

dade

. M

ahm

oud

also

took

a s

econ

d w

ife, w

ith w

hom

he

had

seve

ral c

hild

ren,

incl

udin

g Ab

idin

.

Not

lo

ng

afte

rwar

ds,

Johr

a di

ed

and

seve

ral

year

s la

ter

Mah

mou

d al

so p

asse

d aw

ay.

Yeda

de a

nd A

bidi

n bo

th fe

lt th

ey

had

claim

s ov

er M

ahm

oud

and

Johr

a’s

land

. Ab

idin

cla

imed

as

a bi

rth c

hild

, he

had

full

right

s an

d th

at a

ccor

ding

to Is

lam

ic La

w,

Yeda

de h

ad n

one.

Ab

idin

beg

an s

ellin

g of

f pa

rts o

f th

e la

nd

desp

ite Y

edad

e’s

atte

mpt

s to

sto

p hi

m.

In 2

005,

Abi

din

repo

rted

the

case

to th

e lo

cal I

mam

, who

hel

d a

mus

yaw

arah

to d

iscu

ss

the

prob

lem

.

Info

rmal

: Im

am

Out

com

e: d

eter

min

ed

that

bot

h pa

rties

had

a

right

to th

e la

nd, b

ut n

o fin

al d

eter

min

atio

n of

the

divi

sion

or t

he le

gal b

asis

ha

d be

en m

ade

whe

n th

e re

sear

ch w

as

unde

rtake

n.

24Ke

liang

,Lo

mbo

k

NTB

Pro

vinc

e

Parti

es: R

atni

and

U

din

Rat

ni fe

ll pr

egna

nt to

Udi

n fiv

e ye

ars

afte

r bei

ng a

band

oned

by

her h

usba

nd.

The

ham

let c

hief

bro

ught

the

two

parti

es to

geth

er,

alon

g w

ith fa

mily

mem

bers

. R

atni

wan

ted

Udi

n to

mar

ry h

er a

nd

he d

id n

ot o

bjec

t. H

owev

er, t

his

coul

d no

t pro

ceed

as

Rat

ni w

as

still

offic

ially

mar

ried.

Usi

ng lo

cal a

dat l

aw, U

din

was

fine

d R

p 5

milli

on fo

r tak

ing

anot

her m

an’s

wife

, the

pay

men

t of w

hich

wou

ld

free

him

up

to m

arry

Rat

ni.

He

coul

d no

t affo

rd th

e fin

e, s

o bo

th p

artie

s w

ere

refe

rred

to th

e po

lice

and

deta

ined

for s

ever

al d

ays

for a

dulte

ry.

Upo

n pa

ymen

t of

a b

ribe,

the

y w

ere

rele

ased

and

the

mat

ter

drop

ped.

Tw

o m

onth

s la

ter,

Udi

n m

arrie

d an

othe

r gi

rl,

avoi

ding

hi

s

Info

rmal

: Ham

let

chie

f was

the

mai

n m

edia

tor.

Out

com

e: R

atni

was

left

with

out s

uppo

rt fo

r her

se

cond

chi

ld, w

ith n

o w

ay o

f enf

orcin

g th

e ad

atde

cisi

on a

gain

st U

din.


resp

onsi

bility

to R

atni

.

25C

akra

nega

raBa

rat,

Mat

aram

,N

TB

2004

Parti

es: G

atot

, the

40

year

old

ado

pted

son

an

d G

andh

i, th

e te

enag

ed b

irth

son

of

the

sam

e fa

ther

.

Burd

ened

by

de

bt,

Gat

ot

push

ed

his

youn

ger

half-

brot

her

Gan

dhi t

o re

gist

er p

lots

of

land

the

y ow

ned

sepa

rate

ly un

der

thei

r nam

es jo

intly

. G

andh

i initia

lly a

gree

d. B

ut c

onsc

ious

of t

he

reas

ons

behi

nd th

is su

gges

tion,

Gan

dhi’s

aun

t con

vince

d hi

m to

ch

ange

his

min

d. G

andh

i hire

d a

law

yer a

nd h

ad th

e ce

rtific

atio

n re

ques

t can

celle

d.

Gat

ot o

wed

mon

ey to

the

neig

hbor

hood

hea

d, w

ho a

lso p

ushe

d G

andh

i to

certi

fy th

e la

nd a

nd s

ell it

to G

atot

.

Info

rmal

: Villa

ge

Hea

dO

utco

me:

Und

er

pres

sure

to m

aint

ain

fam

ilial/n

eigh

borh

ood

rela

tions

, Gan

dhi

even

tual

ly ag

reed

dur

ing

a m

edia

tion

faci

litate

d by

th

e vil

lage

hea

d to

han

d ov

er s

ome

of h

is la

nd to

G

atot

to c

over

the

debt

.

26Su

mpu

r &

Bung

oTa

njun

g

Wes

t Su

mat

ra

1987

-toda

y

Parti

es:

linea

ge

head

s of

Sum

pur

and

resi

dent

s of

Bu

nga

Tanj

ung

The

case

ha

s a

long

an

d co

mpl

ex

hist

ory.

It co

ncer

ns

appr

oxim

atel

y 10

0 he

ctar

es o

f agr

icultu

ral l

and

alon

g th

e bo

rder

of

two

naga

ri th

at w

as c

ultiv

ated

by

resi

dent

s of

bot

h.

Sum

pur

naga

ri cl

aim

s it

is th

eir

adat

land

, whe

reas

res

iden

ts o

f Bun

go

Tanj

ung

clai

m th

ey n

ow h

ave

regi

ster

ed ti

tle.

The

Sum

pur v

illage

hea

d se

es th

e co

nflic

t as

one

betw

een

two

naga

ri. T

he v

ice-c

hair

of th

e Su

mpu

r Ada

t Cou

ncil

belie

ves

the

conf

lict i

s in

tern

al w

ithin

Sum

pur,

as h

e fe

els

that

som

e lin

eage

he

ads

“ille

gally

” so

ld

or

paw

ned

land

to

Bu

ngo

Tanj

ung.

Si

mila

rly, a

wom

en’s

gro

up b

elie

ves

the

conf

lict i

s th

e re

sult

of

the

illega

l sal

e of

ada

t lan

d an

d th

at th

e lin

eage

hea

ds a

re n

ot

willi

ng to

ack

now

ledg

e th

is m

ista

ke.

Yet a

noth

er v

illage

gro

up s

ays

it is

a v

illage

bou

ndar

y di

sput

e.

Info

rmal

: Dist

rict

gove

rnm

ent

offic

ials

,Ada

tC

ounc

il, Vi

llage

C

ounc

ils, v

illage

he

ads

Out

com

e : T

he d

isput

e re

mai

ns u

nres

olve

d be

caus

e lin

eage

m

embe

rs a

re im

plic

ated

, ef

fect

ivel

y bl

ocki

ng th

e ca

se b

eing

hea

rd b

y th

e Ad

at C

ounc

il.Ad

atle

ader

s ar

e al

so re

luct

ant

to d

eal w

ith th

e ca

se

thro

ugh

the

cour

ts a

s th

ey fe

el th

is w

ill di

min

ish

the

influ

ence

of t

he a

dat

inst

itutio

n.

27G

unun

gSy

arik

,

Kura

nji s

ub-

dist

rict

Wes

t Su

mat

ra

1990

-200

0

Cla

iman

t : Af

rida,

lo

cal a

ctiv

ist,

wom

an.

Res

pond

ent:

Nin

ikM

amak

Afrid

a ov

erco

mes

in

here

nt p

ower

im

bala

nce

thro

ugh

right

s aw

aren

ess

and

mob

ilizat

ion

Afrid

a’s

nini

k m

amak

had

bee

n se

lling

her a

dat l

and

since

198

7.

One

day

she

saw

villa

ge o

fficia

ls m

easu

ring

her

mot

her’s

land

an

d ca

lled

the

villa

ge h

ead

to s

top

them

. U

pon

hear

ing

this,

her

ni

nik

mam

ak a

rrive

d w

ith a

kni

fe th

reat

enin

g he

r. In

the

end

the

land

was

sol

d of

f.

Whe

n th

e ni

nik

mam

ak a

ttem

pted

to s

ell A

frida

’s la

nd a

gain

, she

re

ques

ted

a m

usya

war

ah.

Afte

r m

any

mee

tings

, an

or

al

agre

emen

t was

rea

ch w

here

by th

e ni

nik

mam

ak a

gree

d no

t to

sell.

H

owev

er,

this

ag

reem

ent

was

no

t en

forc

ed

and

he

cont

inue

d to

paw

n of

f her

land

.

Afrid

a th

en

lear

ned

the

adat

pr

oced

ures

, ar

gum

ents

an

d

Info

rmal

: Villa

ge

Hea

d,N

inik

Mam

ak

Out

com

e: A

frida

lost

her

la

nd, b

ut s

he h

as n

ow

been

abl

e to

cam

paig

n fo

r pro

cedu

ral c

hang

es

that

saf

egua

rd w

omen

’s

land

righ

ts.


lang

uage

in

orde

r to

“fig

ht b

ack”

. I

n 20

00 s

he o

rgan

ized

a pe

titio

n de

man

ding

wom

en m

ust a

gree

to a

ll la

nd tr

ansa

ctio

ns.

Even

tual

ly, A

frida

sec

ured

this

cha

nge

in p

roce

dure

s.

28Pa

riam

an

Wes

t Su

mat

ra

2004

Vict

im: 5

yea

r old

girl

Perp

etra

tor:

22 y

ear

old

mal

e

Alth

ough

Min

ang,

bo

th a

re n

ot “l

ocal

s”

but a

dopt

ed in

to a

lo

cal li

neag

e

A 5-

year

old

girl

was

rap

ed b

y he

r 22

-yea

r ol

d ne

ighb

or.

As

new

com

ers

to t

he v

illage

, th

e vi

ctim

’s m

othe

r di

d no

t fe

el

com

forta

ble

appr

oach

ing

the

villa

ge h

ead

or n

inik

mam

ak.

Inst

ead,

the

par

ents

of

the

victim

and

per

petra

tor

atte

mpt

ed

reso

lutio

n.

At t

he i

nitia

l m

eetin

g, t

he f

athe

r of

per

petra

tor

ackn

owle

dged

wro

ng h

ad b

een

com

mitt

ed b

ut w

ould

not

pay

co

mpe

nsat

ion.

He

also

la

ter

refu

sed

to

atte

nd

med

iatio

n at

tem

pted

by

dist

rict

gove

rnm

ent

offic

ials

, su

gges

ting

inst

ead

that

the

case

be

refe

rred

to th

e ni

nik

mam

ak.

Two

mon

ths

late

r, an

NG

O b

ased

in P

adan

g ad

vise

d th

e M

othe

r th

at th

e gi

rl sh

ould

be

exam

ined

by

a do

ctor

. H

owev

er, t

here

w

as n

o ev

iden

ce o

f rap

e du

e to

the

dela

y.

Info

rmal

:Be

twee

n fa

milie

s; p

olic

e,

Dis

trict

gove

rnm

ent

offic

ial,

NG

O

Out

com

e : N

o re

solu

tion

and

the

fam

ilies

cont

inue

to

live

next

doo

r. T

he

mot

her i

s di

ssat

isfie

d,

parti

cula

rly th

at th

e pe

rpet

rato

r con

tinue

s to

liv

e ne

xt d

oor.

The

Polic

e cl

aim

mot

her

is “r

ent-s

eeki

ng”.

29Su

ngai

Kam

uyan

g,

Luha

k su

b-di

stric

t

Wes

t Su

mat

ra

1968

- pr

esen

t

Parti

es: P

eopl

e of

Su

ngai

Kam

uyan

g &

PT J

enyt

a R

anch

Exte

rnal

pow

erfu

l in

tere

st

Com

plex

land

disp

ute

invo

lving

a c

ompa

ny,

PT J

enyt

a R

anch

th

at fo

r 30

year

s (1

968-

98) h

eld

usag

e rig

hts

(hak

gun

a us

aha)

on 6

6 he

ctar

es o

f lan

d ov

er w

hich

the

com

mun

ity c

laim

ed a

dat

title

. Th

e he

ad o

f PT

Jeny

ta R

anch

is a

milit

ary

offic

er.

In 1

998,

the

peop

le o

f Sun

gai K

amuy

ang

refu

sed

an e

xten

sion

of th

e us

age

right

s an

d, a

fter d

emon

stra

tions

and

vio

lent

cla

shes

w

ith

com

pany

se

curit

y an

d po

lice,

oc

cupi

ed

the

land

. N

onet

hele

ss, t

he g

over

nmen

t did

ext

end

the

hak

guna

usa

ha.

In 2

003,

the

villa

ge g

over

nmen

t iss

ued

a re

gula

tion

asse

rting

th

eir

lega

l cla

im o

ver

the

land

. M

ost v

illage

rs b

elie

ve th

is ha

s se

ttled

the

mat

ter,

even

thro

ugh

the

villa

ge g

over

nmen

t has

no

auth

ority

to m

ake

such

a c

laim

.

Info

rmal

:Ad

atC

ounc

il, Vi

llage

H

ead

Out

com

e: T

he

com

mun

ity is

occ

upyin

g th

e la

nd, d

espi

te P

T Je

nyta

Ran

ch s

till

hold

ing

usag

e rig

hts.

The

pote

ntia

l for

vio

lenc

e re

mai

ns if

the

com

pany

de

cide

s to

reas

sert

its

usag

e rig

hts

agai

nst t

he

villa

ge.

30Ba

tuga

dang

Wes

t Su

mat

ra

1983

& 2

003

Parti

es: V

illage

rs,

repr

esen

ted

by P

uti,

wom

en’s

act

ivis

t &

PT S

emen

Pad

ang,

a

maj

or c

emen

t co

mpa

ny

Silt

and

run-

off

caus

ed

by

PT

Sem

en

Pada

ng

dam

aged

ag

ricul

tura

l lan

d in

Bat

ugad

ang.

Af

ter t

he A

dat C

ounc

il re

fuse

d to

dea

l with

the

prob

lem

, Put

i and

19

fam

ilies

prot

este

d di

rect

ly

to t

he c

ompa

ny.

Com

pens

atio

n w

as a

gree

d, b

ut l

ess

than

ex

pect

ed.

Fu

rther

mor

e,

10%

w

as

take

n as

an

ad

at

fee,

di

sapp

oint

ing

Puti

and

the

othe

r fa

milie

s.

Few

in

the

villa

ge

Info

rmal

:Ada

tC

ounc

il, fe

mal

e vi

llage

r

Out

com

e: D

ispu

te

reso

lved

by

nego

tiatio

ns,

but e

nfor

cem

ent n

ot

satis

fact

ory.


su

ppor

ted

them

, how

ever

, as

PT S

emen

Pad

ang

had

paid

man

y in

the

villa

ge a

dmin

istra

tion.

31Sa

rinan

gBa

ka &

M

uara

Pin

gai

Nag

ari,

Wes

t Su

mat

ra

Dec

2003

Dis

puta

nts :

Tw

o fa

rmer

s an

d yo

uth

grou

ps fr

om

neig

hbor

ing

naga

ri

The

conf

lict w

as tr

igge

red

whe

n tw

o fa

rmer

s fro

m d

iffer

ent n

agar

igo

t int

o an

arg

umen

t in

the

rice

field

s ov

er ri

ghts

to c

ultiv

ate

land

. Th

e yo

uth

of b

oth

villa

ges

got i

nvol

ved

and

fight

ing

erup

ted.

One

pe

rson

was

kille

d.

The

Adat

Cou

ncil

chai

r fro

m a

nei

ghbo

ring

and

unin

volv

ed n

agar

i be

gan

shut

tle d

iplo

mac

y be

twee

n th

e pa

rties

to

stop

the

vio

lenc

e.

Subs

eque

ntly,

tw

o co

ncilia

tion

mee

tings

wer

e he

ld b

y th

e Bu

pati

and

Sub-

Dis

trict

Pol

ice.

Info

rmal

: KAN

C

hairm

anBu

pati,

Cam

at,

Villa

ge H

ead

Form

al: P

olic

e

Out

com

e: F

urth

er

viole

nce

aver

ted

and

outc

ome

mad

e pu

blic

at

mos

que.

Lan

d ca

se a

nd

hom

icid

e no

t res

olve

d.

32D

ilam

, Sol

ok

Wes

t Su

mat

ra

2004

Dis

puta

nts :

Inte

r-villa

ge d

ispu

te

betw

een

mem

bers

of

Mel

ayu

and

Tanj

ung

clans

In 1

964

the

Mel

ayu

clan

in D

ilam

bou

ght h

ered

itary

com

mun

al

land

from

the

Tanj

ung

clan.

A w

ritte

n ag

reem

ent w

as n

egot

iate

d an

d th

e sa

le a

ppro

ved

by l

inea

ge h

eads

. H

owev

er,

som

e pe

ople

from

Tan

jung

cla

n di

d no

t sup

port

the

sale

and

con

tinue

d to

har

ass

the

Mel

ayu

usin

g th

e la

nd, i

nclu

ding

dam

agin

g cr

ops.

Tire

d of

the

hara

ssm

ent,

the

Mel

ayu

clan

said

they

wer

e w

illing

to

sel

l the

land

bac

k if

com

pens

ated

. Th

e Ta

njun

g co

mm

unity

re

fuse

d, m

akin

g a

coun

ter-c

laim

for

ren

t si

nce

1964

. T

he

Mel

ayu

repo

rted

the

case

to th

e po

lice

to m

edia

te, b

ut th

ey w

ere

unsu

cces

sful

and

gav

e up

.

In A

ugus

t 200

4, th

e M

elay

u to

ok th

e ca

se to

the

Solo

k di

stric

t co

urt

to s

eek

com

pens

atio

n fo

r cr

op d

amag

e an

d to

cla

rify

owne

rshi

p.

Th

e ve

rdict

im

plici

tly

ackn

owle

dged

M

elay

u ow

ners

hip,

but

ultim

atel

y th

e co

urt d

odge

d th

e qu

estio

n.

Info

rmal

: Po

lice,

Ad

at le

ader

s

Form

al: P

olic

e,

Dis

trict

Cou

rt

Out

com

e: A

ll for

ums

ackn

owle

dge

the

Mel

ayu

clai

m b

ut th

e de

cisi

on

was

not

exe

cute

d.

Con

sequ

ently

, the

land

re

mai

ns u

nuse

d an

d th

e po

tent

ial f

or c

onflic

t still

hi

gh.

33Ba

tu S

angk

ar

Wes

t Su

mat

ra

2000

Cla

iman

t : Su

nard

i (J

avan

ese)

Res

pond

ent:

Dat

ukR

ajo

Inta

n

Cou

rt ov

erca

me

pow

er im

bala

nces

at

that

wor

ked

agai

nst

Suna

rdi a

s a

Java

nese

.

In 2

000,

Sun

ardi

bou

ght a

dat h

ered

itary

land

from

Dat

uk R

ajo

Inta

n, a

loca

l nin

ik m

amak

. Th

ree

mon

ths

afte

r th

e tra

nsac

tion

he

bega

n cu

ltivat

ing

the

land

, bu

t th

e lo

cal

com

mun

ity

dem

ande

d he

sto

p an

d th

reat

ened

vio

lenc

e ag

ains

t hi

m.

A

villa

gem

asya

war

ah w

as u

nsuc

cess

ful,

so b

oth

sides

eng

aged

la

wye

rs a

nd th

e m

atte

r wen

t to

cour

t.

The

judg

e w

as a

ble

to m

edia

te th

e ca

se w

ith S

unar

di a

gree

ing

to

retu

rn t

he l

and

so l

ong

has

he w

as c

ompe

nsat

ed f

or c

rop

dam

age

and

trans

fer f

ees.

Info

rmal

:M

usya

war

ah,

Polic

e

Form

al: C

ourt

Out

com

e: T

he

com

mun

ity a

nd R

ajo

Inta

n pa

id th

e pu

rcha

se

pric

e of

the

land

and

co

mpe

nsat

ion

to

Suna

rdi.

34Ba

tu G

adan

g,

Cla

iman

t: R

ente

r A

rent

er h

ad m

ista

kenl

y be

en p

ayin

g th

e el

ectri

city

bill

of t

he

owne

r’s o

ther

hou

se r

athe

r th

an t

hat

of t

he r

ente

d ho

use.

A

Info

rmal

:N

eigh

borh

ood

Out

com

e: S

ucce

ssfu

l m

edia

tion

and


Wes

t Su

mat

ra

2003

Res

pond

ent :

Hou

se

owne

r di

sput

e en

sure

d w

hen

the

owne

r lea

rnt e

lect

ricity

on

the

rent

ed

hous

e ha

d no

t be

en p

aid.

T

he n

eigh

borh

ood

head

trie

d to

m

edia

te b

etw

een

the

parti

es b

ut w

ithou

t suc

cess

. A

wom

en’s

gr

oup

hear

d ab

out

the

case

, an

d of

fere

d to

hel

p to

med

iate

. To

geth

er w

ith th

e R

T, th

ey h

eld

a su

cces

sful

mus

yaw

arah

.

head

, wom

en’s

G

roup

com

plia

nce.


AN

NE

X 3

:ST

RU

CT

UR

E O

F T

HE

IND

ON

ESI

AN

FO

RM

AL

LEG

AL

SYST

EM

JUD

ICIA

RY

A

TT

OR

NE

Y-G

EN

ER

AL’

SO

FF

ICE

NA

TIO

NA

LP

OLI

CE

Sour

ce: U

ND

P (2

007)


READING LIST & SOURCES OF INFORMATION

Republic of Indonesia Laws & Regulations

National Legislation, Decrees and Regulations

1945 Constitution Republic of Indonesia Criminal Code Law 14/1970 on the Basic Authority of Judges Law 5/1979 on Local Governance Law 22/1999 on Regional Governance Law 4/2004 on the Authority of Judges Law 23/2004on the Elimination of Domestic Violence Law 32/2004 on Regional Governance Law 11/2005 on the International Covenant on Economic, Social and Cultural Rights Law 12/2005 on the International Covenant on Civil and Political Rights

Presidential Decree 7/2005 on the Medium-Term Development Plan 2004-2009 Government Regulation 72/2005 on the Village

Provincial Government Regulations

West Sumatra Provincial Government Regulation 9/2000 on the Basic Rules of Nagari Governance Central Kalimantan Provincial Government Regulation 25/2000 on the Jurisdiction of the Government and the Provincial Government as an Autonomous Region Maluku Provincial Government Regulation 14/2005 on the Return to the Negeri

District Government Regulations

Pesisir Selatan District Regulation 17/2001 on Nagari Governance Pesisir Selatan District Regulation 18/2001 on Formation of the Nagari Representative Council Kotawaringin Timur District Government Regulation 15/2001 on Adat Institutions in Kotawaringin Timur Kotawaringin Timur District Regulation 2004 on Population Control in Kotawaringin Timur Pulang Pisau District Government Regulation 11/2003 on the Formulation and Empowerment of Dayak Adat Institutions

Village Regulations

Bentek Village Adat Regulations 2000/2001 (Kitab Awig-Awig Adat Desa Bentek 2000/2001)Minang Kabau Nagari Regulation 1/2002 on Eradicating Social DiseasesMinang Kabau Nagari Regulation 2/2002 on Order Cleanliness and Beauty Minang Kabau Nagari Regulation 3/2002 on Mutual Help (Gotong Royong)


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