Modes of conflict resolution in the Minangkabau nagari

Justice for the Poor Final January 2005 Village Justice Autonomy Provincial Report West Sumatra

1

Modes of conflict resolution in the Minangkabau nagari

Field Report of VJA visits to West Sumatra 2004

List of content: Executive summary ........................................................................................................................................ 2 1 Objectives and methodology .................................................................................................................. 4 2 Local context .......................................................................................................................................... 4

2.1 Regional autonomy and the “return” to nagari................................................................................ 4 2.2 The Nagari Governance Structure ................................................................................................. 5 2.3 Matriliny and Minang adat.............................................................................................................. 6 2.4 Position of ethnic minorities and newcomers ................................................................................. 7

3 Dispute typology..................................................................................................................................... 7 4 Dispute Resolution Processes................................................................................................................ 9

4.1 Conflict management within adat ................................................................................................... 9 4.2 Conflict management by youth organisations .............................................................................. 11 4.3 Access to conflict management through the government............................................................. 12 4.4 Dispute settlement through the police and the courts .................................................................. 15 4.5 Court annexed mediation in Kabupaten Batu Sangkar ................................................................ 17 4.6 Nagari as an agent for advocacy towards third parties ................................................................ 18

5 Analysis................................................................................................................................................ 21 5.1 The position of women in dispute resolution ................................................................................ 21 5.2 The role of Bundo Kanduang in empowering women................................................................... 21 5.3 Domestic violence and crimes against women ............................................................................ 22 5.4 The capacity of the adat leadership ............................................................................................. 22 5.5 Relations between adat and with the nagari administration ......................................................... 23 5.6 Legal perspectives on the Nagari Regulations............................................................................. 23 5.7 Ethnic minorities within the Minang community............................................................................ 24

6 Local initiatives taken for strengthening access to justice..................................................................... 25 6.1 Local initiatives taken by women.................................................................................................. 25

7 Lessons for the future: possible ADR initiatives.................................................................................... 26 7.1 Issues needing specific consideration.......................................................................................... 27 7.2 Recommendations for future interventions................................................................................... 27 7.3 Follow-up actions taken ............................................................................................................... 29

8 Case summaries .................................................................................................................................. 31 Case summary 1: The case of insult of lineage head in Sumpur ................................................. 31 Case summary 2: Tanah ulayat of Nagari Sumpur ...................................................................... 32 Case summary 3: The pawning of the lineage land of Ibu Marnis in Sumpur............................... 34 Case summary 4: Women vs their lineage head in Gunung Syarik............................................. 35 Case summary 5: Sexual assault case ....................................................................................... 36 Case summary 6: Tanah ulayat of Nagari Sungai Kamuyang and HGU..................................... 37 Case summary 7: The kelurahan Batugadang vs. PT Semen Padang ....................................... 40

9 List of institutions visited and persons interviewed ............................................................................... 41 10 Glossary of local terms and abbreviations............................................................................................ 46


2

Executive summary West Sumatra is dominated by the Minangkabau populations, with minor groups of Chinese, Javanese, Batak, Mandahiling, and people from the Mentawai islands. The Minang adat is based on a matrilineal descent system, which also compromises the basis for the traditional territorial entities, called nagari. The matrilineal extended families, or lineages, are the land holding units, and property and titles are passed in the female line. The men of a lineage, the mamak, constitute the main formal actors in dispute within the lineage. Together, the highest ranking mamak, the ninik mamak, constitute the adat council (KAN or LAN) that is deciding on disputes that cannot be solved at a lower level within the community. The religious officials are included among the ninik mamak, and there is thus no alternative mode of dispute settlement through religious officials. In the period 1979-2000, the administrative unit of the nagari was abolished for the nationally uniform desa. In terms of adat, the nagari has existed throughout this period, but with a lesser role for KAN. The Law on Regional Autonomy (1999/22) provided the opportunity for the provincial government to define the local administrative entities, and this led in 2000 to the re-introduction of the nagari as a territorial and administrative unit. This implies that a governmental administrative structure is superimposed on the adat based nagari, a territorial and genealogical governance based entity. This has lead to competition between the government leadership (the wali nagari) and the adat leadership (the KAN) over mandate in relation to conflicts and not least in relation to the nagari common land, the tanah ulayat. Land is the most common source of conflict in Minangkabau. There are several main types of land conflicts: (i) disputes over land held within one lineage, typically inheritance or selling of linage land by the mamak (ii) disputes between clans or between nagari over land, which is often related to dispositions of clan heads not approved off by their respective clan members, and (iii) conflicts with third parties, such as private investors or government using the resources of the common land, the tanah ulayat. Whereas the two first types of disputes can, in principle, be solved through adat mechanisms, these are difficult to apply to cases involving external parties. The lineage disputes are the most common types. Although the women are the owners of the land, they are often not heard before alienation of the land for private purposes by the mamak. There are no operational checks on the performance of the lineage heads apart from the possible reprisals of other lineage heads, with whom they often share interests. Women depend on the men of their lineage for formal representation and have difficulties in confronting their clan leaders when the latter misuse power positions. The conflicts with external parties appear to be increasing in number as well as in scale. The increasing demands for plantation land, mining, use of rivers and lake for water and electricity supply have led to actions of civil disobedience, such as demonstrations or physical damage to installations, by the population. The reintroduction of the nagari and its right to demand compensation for use of its ulayat has provided a political vehicle for the demands. Conflicts within the lineage and the nagari are sought settled by deliberations and consensus (musyawarah and mupakat). Women do not represent their own cases in adat fora, and even men are often represented by their lineage head. This results in the decisions reached being highly influenced by political positioning of the lineage heads. The clan heads may also act as judges rather than mediators. Minor criminal cases (small theft, fighting, public disorder) are normally solved within the nagari, the adat youth organisation often playing a crucial role in form of violent sanctions taken against an offender of public order. Serious criminal offences are reported to the police. The wali nagari as the government representative in the nagari has a key role in maintaining public order, often using the youth organisation as his guards and local patrollers. Newcomers to a nagari do not obtain the same status as do the original inhabitants. Regardless of ethic and religious background, all people have to be adopted into a local lineage, but the entailing privileges in terms


3

of access to land and protection by the lineage head is not extended to newcomers. This clearly weakens their access to resolving disputes within the nagari. The ethnic minorities, the non-Minangkabau, have their own mechanisms for solving internal disputes. Their religious leaders appear to play a more significant role in conflict resolution among these groups than among the Minangkabau. The Christians (Protestant or Catholic) use their church leaders for mediating in family disputes. However, in conflicts with members of the Minang community, they are not in a strong position. The option is either to use Minang adat or the courts, neither of which are easy to manoeuvre in for an outsider. They thus tend to avoid conflicts, even to the extent of giving up their legal claims. In several cases, NGOs have been supporting the villagers in conflicts with external parties, or has empowered women to stand up for their rights and even become mediators in the conflicts of others. This is probably the single most significant effort to strengthen the VJA. A pilot project with court annexed mediation in Batu Sangkar has potential, but the case load had been too small so far to make an evaluation and the rate of successful mediation low. Possible interventions should consider: • The specific position of the women within the Minang adat and how to strengthen their access to dispute

resolution processes. • The vulnerable position of other ethnic groups in a society dominated by the Minang adat. • The position of adat leaders is strong and there is no transparency and no accountability within the adat

justice system. • The nagari is now both an adat and a governmental entity and this gives rise to competition between

traditional leaders and administrative officials. • The quest for access to natural resources entails a different set of legal references used by external

parties, and this exposes the communities to exploitation. • The youth is used for maintaining public order, but no formal process is used and the sanction is always

violence and humiliation. It is recommended to: • Strengthen the position of local communities through legal assistance, increased knowledge and

empowerment. Cooperation with local NGOs might be efficient. • Strengthen the position of women through legal assistance, increased knowledge and empowerment.

Cooperation with local NGOs might be efficient. It is recommended to work with potential individuals as well as the women’s organisations Bundo Kanduang.

• Formalise the role of BK in the adat councils KAN. • Identify possibilities to build on adat process of musyawarah but ensure accountability and possibilities

for appeal. • Strengthen efforts to establish a decentralised system for out-of court mediation, ensuring that non-

judges are included as mediators. • Include the youth organisations (Pemuda) in training in conflict resolution.

The report is based on the results of two field visits to West Sumatra, in May and September 2004. A follow up visit was conducted in December to present the findings and discussions possible interventions with key stakeholders.


4

1 Objectives and methodology The purpose of the field visits were through discussions with various stakeholders:

1. To obtain a picture of the various dispute resolution mechanisms in use in the province and of how these are perceived, the type of cases and actors involved, efficiency of decisions, and supportive and facilitating factors.

2. To identify the possible barriers to the desired process, and the constraints experienced by women and ethnic minority populations in using formal and informal channels for justice.

3. To explore the impact of the decentralisation and the change in local administration following the OTDA on the local level dispute resolution.

4. To identify possible ideas and options for reforming the local level dispute resolution mechanisms and to discuss these with the stakeholders.

The field visits were conducted May 17-24 and September 7-14, 2004, by two teams for the Justice for the Poor programme.1 Initial consultations were held in Padang with representatives from the provincial branch of the adat organisations, lecturers at Universitas Andalas, activists form NGOs, and government officials. Cases were studied in the urban settings of Solok and Padang, and in the villages of Sumpur, Sungai Kamuyang, Kinali, and Batu Sangkar. Other villages in the highlands were also visited. Finally, the district courts in Bukit Tinggi, Batu Sangkar and Padang, as well as the provincial court in Padang were consulted. On December 16 and 17 two seminars and workshops were conducted in Padang and Pasaman respectively, where the main findings were presented and discussed with various stakeholders. This report summarises the findings and presents relevant cases as examples, the complete account in annexes. The focus is on the types of conflicts encountered and how people concerned dealt them with. A basic presentation of main features of the Minangkabau adat is provided to understand the types of conflicts it gives rise to and what options the parties have to find a solution, but it is only related as far as it is relevant for the cases discussed. The methodology of the research process of the Village Justice Autonomy is described in some detail in the overall report, which also compares the findings from the five research locations. 2 Local context 2.1 Regional autonomy and the “return” to nagari The core of the village life in the Minang highlands is the nagari. The nagari has traditionally been a territorial, social, political, and independent self-governing entity comprising (ideally) four exogamous matrilineal descent groups. A nagari often comprised several settlements, called jorong. The nagari owns its own land, the tanah ulayat, which is sometimes divided among the clans.2 The nagari has traditionally been endogamous. It has a consensus based leadership consisting of the lineage heads of the designated lineages within the (ideally) four clans. Together these lineage heads constitute the Kerapatan Adat Nagari (KAN) or the Nagari Adat Council. The titles of lineage heads are inherited matrilineally. The nagari had been the administrative unit in West Sumatra until the UU 5/1979 on village administration, by which the Javanese desa model became the uniform village model throughout Indonesia. In West Sumatra, the UU 5/1979 implied that each nagari was split into several desa, often the jorong being the new administrative unit of desa in order to obtain as much financial contribution as possible from the central government as BANDES (village aid given per village unit). The 543 nagari were replaced by 3138 desa. A provincial decree followed in 1983 (Perda no. 13/1983) regarding the status of the nagari as an adat entity.3

1 By Dewi Novirianti, Bambang Soetono, Taufik Rinaldi, Samuel Clark, and Lene Ostergaard, assisted by local facilitators Yuliandri and Fitriyanti. 2 Perda no. 9/2000 on the nagari governance states that the wealth of the nagari comprises: (a) the market, (b) sports field or recreational facilities, (c) meeting halls, mosque, or prayer house, (d) land, forest, rivers, wells, lakes, or sea that constitute the ulayat of the nagari, (e) buildings made by the inhabitants of those in the rantau for public purposes, (f) other items of property. Paragraph 7, Peraturan Daerah Propinsi Sumatera Barat No. 9 tahun 2000 Tentang Ketentuan Pokok Pemerintahan Nagari 3 Peraturan Daerah Propinsi Dearah Tingkat I Sumatera Barat Nomor 13 tahun 1983 Tentang Nagari Sebagai Kesatuan Masyaraket Hukum Adat dalam Propinsi Daerah Tingkat I Sumatera Barat.


5

This stipulated that the KAN adat leadership should continue as the highest authority regarding adat and act as a mediator and judge in cases regarding adat, in particular land held under adat (se below).4 According to some informants, the existence of KAN became difficult under the new village administrative structure, and its role was gradually confined to ceremonial functions in many areas. Following the UU22/1999 on Regional Autonomy, the regional government of West Sumatra took the opportunity given to reorganise the local level administrative entities. It issued a provincial regulation (Perda 9/2000) regarding the nagari governance.5 This regulation states that the nagari is the administrative unit, with the jorong or its equivalent being a sub-unit. It thus abolished the desa as the lowest administrative unit. An exception is made for urban settlements, which retain the status of “kelurahan.” Also, the nagari does not apply to the Mentawai Islands who have an ethnically distinct population. It is the general impression of the team that the concept of nagari is well received among the people; it makes sense in terms of how they see themselves in relation to adat. “What is benefiting the people and the government with this system of nagari government is the feeling of “original home village” that is quite strong among our people, especially among those who have immigrated” says the head of the Biro of Nagari Government at the provincial level.6 The “return to nagari” is thus a political step not least reflecting the wishes of the Minang descendents who are no longer living in West Sumatra, but in other areas of Indonesia, in the rantau.7 There are more critical comments from the academics and NGO activists, who question what nagari is it that the people are “returning to.” The territorial and adat based entities previous to 1979 are not necessarily being in line with what is required by a modern democratic civil administration. There are differing views on whether the nagari as administrative unit is a step towards decentralisation and increased self-governance in the nagari, or whether it is a step towards more administrative and governmental control of the adat based entities. This is a source of conflict and some informants feel that the government has “taken over” the nagari form the people. “The system of government nagari is from above; it is not a return to nagari from below. The adat exists at the different jorongs; at the nagari level it is empty.” This will be addressed further below in relation to the cases presented. 2.2 The Nagari Governance Structure • The nagari has as its administrative head the wali nagari, who is elected by the people of the nagari for

periods of 5 years. • Each jorong has a wali jorong also elected for a 5-year term. • Badan Perwakilan Anak Nagari (BPAN) is the legislative forum in the nagari.8 Its name depends on the

local Perda, in Tanah Datar it is called Badan Perwakilan Rakyat Nagari. • Badan Musyawarah Adat dan Syarak Nagari (BMASN) is supposed to advice the wali nagari and

ensure that the government of the nagari is run according to adat and Islam. It was not reported to be a very active institution in the nagaris visited by the team.

• Lembaga Adat Nagari (LAN) or Kerapatan Adat Nagari (KAN) on the other hand, was trying to play a key role in all nagari visited. LAN is a streamlining of the former KAN, and it comprises the title-bearing lineage heads of the nagari, the ninik mamak. It is tasked with the protection of adat and as mediator in conflicts regarding “sako” titles and “pusako” lineage land in the nagari.

• Bundo Kanduang is the adat women organisation, ideally balancing the ninik mamak in the lineages and clans and the nagari. In the structure of the nagari, the BK is included BMASN, in some cases in BPAN, but not in the KAN. Each lineage and sub-lineage has a senior female member, who is the Bundo

4 Keputusan Gubenur Kepala Daerah Tingkat I Sumatera Barat No. 08 tahun 1994 Tentang Pedoman Acara Penyelesaian Sengketa Adat di Lingkungan Kerapatan Adat Nagari (KAN) dalam Propinsi Daerah Tingkat I Sumatera Barat. 5 Peraturan Daerah Propinsi Sumatera Barat No. 9 tahun 2000 Tentang Ketentuan Pokok Pemerintahan Nagari. 6 “Yang menguntungkan masyarakat dan pemerintah dengan sistem sistem pemerintahan nagari ini adalah rasa “berkampunghalaman” yang cukup tinggi pada masyarakat kita, terutama bagi mereka yang merantau” Busra SH, Kepala Biro Pemerintahan Nagari, Kantor Govenor, TKI Sumbar. 7 West Sumtra has about 4 million people, and an equal number is estimated to live outside of the province. 8 The BPAN corresponds to Badan Perwakilan Desa (BPD).


6

Kanduang of that segment. Some women reported that they BK representatives are elected rather than appointed based on hereditary position within the lineage.

The BPAN of the nagari can issue its own regulations as long as these do not contradict existing laws and regulations issued at higher levels. This opportunity is used with varying effects in different nagari as will be seen from the cases. The Nagari Regulations (Peraturan Nagari) have to be approved by the district authorities (Biro Hukum TK II) with reference to the guidelines provided by the provincial and district government. The creativity and aspirations of different parties in the nagari exceeds the pace with which the higher levels of the administration can prepare regulations and guidelines, resulting in conflicting interpretations of key issues such as rights over common lands. It should be noted that the law on regional autonomy UU22/1999 was revised by UU 32/2004 in October 2004. One of the changes is that the paragraph 101 appointing the village head as a mediator in conflicts has been omitted. At the time of research, the UU32/2004 was not yet adopted, but its possible impact on local conflict resolution will be considered in the recommendations. The only formal organisation of the women in the nagari is the Bundo Kanduang.9 The Perda no 9/2000 states that Bundo Kanduang is represented in the Badan Permusyawarah Adat dan Syarak Nagari, but not that it is represented in the far more important legislative body of BPAN. There is thus an equal representation of men and women in the form of KAN/LAN and BK. But whereas the women are only representing the women of their respective lineages, the men are supposed to represent all members, men and women, of their lineages. Bundo Kanduang is not represented in KAN/LAN. It is of concern to the women to be represented on KAN/LAN, or to be seen as an organisation of the same status as KAN/LAN as it approves of sale of lineage lands. The ninik mamak uses the fact that KAN/LAN has to approve of sale of harta pusako tinggi (lineage land held by the women in a lineage) to mutually support each other without informing the women. The chair of BK in Sungai Kamuyang proposes that the BK is required to countersign all sales of land to protect the rights of the women: “Selama ini kami diinjak-injak sehingga segala harta pusako dijual habis oleh ninik mamak.” (Until now we have been trodden on to sell out all the ancestral property by lineage heads.) Her request is supported by the BK at the provincial level. BK members are rarely invited to meetings in KAN/LAN, they do not know the results of these meetings or how conflicts are resolved and settled by KAN/LAN. In Sungai Kamuyang, BK was invited to comment on the draft of the Perna. LAN (formerly KAN) is against the Perna on tanah ulayat as it eliminates the possibilities of its members for manipulating land to their own benefit. The head of BK finds it best that the land is controlled by the nagari government as it was never clear who of the ninik mamak were collecting the land rent, and for what it was used by KAN. Now the wali office collects the rent for the land and it is accounted for. According to the head of BK, the return to the nagari has clearly strengthened the position of women because there now is a control with the ninik mamak. LAN is not very supportive of the BK. 2.3 Matriliny and Minang adat Although each nagari has its own version of local customs, there is a broad agreement about the basic features of the Minangkabau adat as a formal system. It should be noted, that real life is less ideal and that practice is pragmatic. The clans, suku, are matrilineal and exogamous. This implies that the children of a man will belong to the clan of his wife. The children of his sisters are member of his clan and are his kemenakan. The term is also used in a generic sense for all members related through one lineage. The suku is divided into lineage segments called jurai, kaum, or paruik (common mother), depending on the level of genealogical depth. Conflicts are solved at the lowest possible level. The male members of the lineage (i.e. the brothers and maternal uncles of the women) are called mamak. They are the guardians of the property used by their female relative and the authority figure towards the kemenakan, who needs the approval of the mamak for major decisions such as marriage. The mamak is also charged with guiding the members of his lineage and of mediating in conflict within the lineage. Since

9 There is also the PKK, but it appears to be defunct in the villages visited.


7

marriage is uxorilocal, a husband lives with the family of his wife. He lives in her house and he works on her lands (or at least lives of the fruit of her work). The mamak of the wife and her children lives in the house of another clan with his wife and children. Lineage property (primarily land and houses) is held by the lineage and women have usufructuary rights to this property. Such property is called harta pusako tinggi or high ancestral property and may not be alienated through sale or pawning. There are 3 exceptions to this rule. Lineage property may be sold to repair of build adat house, to cover costs of funeral or marriage ceremony if such costs cannot be covered by others means. The justification is that not being able to carry out the funeral or marriage, or letting the adat house fall into disrepair would be a considerable embarrassment to the lineage. Sale or pawning can only take place with the consent of the lineage members. Each lineage also possesses one or several titles, sako, also inherited in the female line, but born by the male members of the lineage. Since the descent system is hierarchical and classificatory, the term lineage head and maternal uncle is used interchangeably with mamak in the following. The actual person referred to will, however, always be specific, depending on the level of deliberations a case has reached within the lineage structure. Ninik mamak refers to the incumbents of the adat titles, who are the generic “elders” of a lineage. In this set-up lies the source of most of the conflicts in the Minangkabau highlands: disputes over hereditary titles and over land – sako and pusako. A man can only attain a position of prestige within his own clan by claiming a hereditary title, which also gives him the authority over the lineage land. However, he cannot use the land owned by his own lineage, as this is the prerogative or the female members of the lineage. On the other hand, his daily needs and his loyalties may often rest with his immediate family, his wife and children. Understandably, the most frequently encountered conflict is between kemenakan and their mamak over lineage land alienated by the latter for the benefit of his children. Derived from wish to control land is the also very frequent conflict over the titles within the lineage. 2.4 Position of ethnic minorities and newcomers The 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 requested 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.” The islands of Mentawai are exempted from this. It should be noted that all these groups are largely non-Muslims, whereas the Minang adat has Islam as an integrated and basic value. The Chinese community has its own internal organisations that also deal with disputes within the Chinese community (see section 5.7). The Church is used by Christians to solve minor disputes, both among the Batak and the Chinese. Religious officials appear to play a larger role in dispute resolution among the Christian communities than they do among the Muslim, probably a reflection of the lack dispute resolution mechanisms available within the community for the ethnic minorities. Even Minangkabau people coming from other nagari have to be adopted into a local clan if they intend to stay in a nagari. As the case summaries 1 and 5 shows, Minang newcomers are less protected within the adat than are the original inhabitants of the nagari. 3 Dispute typology Land conflicts are the most common type of dispute reported. It appears that the frequency and nature of land dispute has increased with the new opportunities offered over the past decades. Whereas the lineage held rice fields used to be the most important asset, the tanah ulayat of the nagari is now a main opportunity for investment by third parties, and thus for alienation by the ninik mamak. Investors and the government are interested in exploiting natural resources, and use a legal framework differing from the nagari regulations. The most frequent criminal offences were related to public disorder and mostly committed by young men, such as fighting, minor thefts, and drug abuse (narkoba).


8

It should be noted that the role of mediator, as well as who is the mediator, varies from nagari to nagari. The below table reflects the general picture. Table 1: Common dispute typology by source of conflict Typology Mediators Issues related/assessment Petty criminality, public disorder, fighting, minor thefts, minor traffic accidents.

Wali nagari, wali jorong. Ketua Pemuda (youth organisation) Adat leaders Police

Quick response, often oppressive, legal basis for reprisals not clear, often adat based. A certain amnesty given for first time offenders. Police last resort.

Domestic violence, violence against women, and sexual assault.

Family or adat leaders. Police (if outsiders involved) Religious leaders (Christian community) NGOs

Not accepted as crime, difficult to prove according to adat or national law. Women cohered to comply. Women sanctioned if persisting on case. NGOs may support women to acceptable solution.

Inheritance of lineage land and titles.

Family and adat leaders District Court (court ruling or mediation) (Higher Courts)

The most common type of conflict, often running for decades. Land conflicts related to holding of adat titles and positions. Adat leaders often both the offender and supposed defender of land. Execution of adat or court decisions not always effective.

Nagari land (ulayat) Adat leaders Government (camat, bupati, governor) Police and military NGOs

Conflict with third party (private investor of government). Communities have poor insights in legal basis for land use. Joint demonstration and physical blockade is last resort. Adat leaders and government often have vested interests and are not neutral. This type of conflict appears to be increasing as forested land becomes an object of investment.

Table 2: Dispute typology by nature of parties Outside - community Inter-community Intra-community Land disputes with plantation companies/private investors

Boundary disputes Land: boundary disputes, Inheritance, sale and pawning of land

Rights to compensation for use of natural resources (lake, river, sand and soil) with government

Public disorder and violence (fighting, narkoba, minor thefts)

Public disorder and violence (fighting, narkoba, minor thefts)

Pollution cases with private investors

Ulayat rights (resources) i.e. fishing grounds, access to water supply.

Familial disputes (marriage, divorce, inheritance, domestic violence)

Adat violations (insult, breaking of moral code or protocol, incl. sexual assaults)


9

4 Dispute Resolution Processes The nagari being a self-contained entity, it also provides the formal mechanisms of settling disputes within the nagari. There are two main entry points: the adat system and the nagari administrative system, although these in practice are linked. Although the Minangkabau people are devout Muslims, the religions officials are integrated into the adat system and the position as religious leader is inherited within the clan structure. As can be seen from the Table 1 above, there are no clear distinction between the sphere of adat leaders as mediators in conflict and the sphere of the nagari administration represented by the wali jorong and the wali nagari. Conflicts relating to family issues, inheritance, adat titles and land are mainly seen adat issues and are related to the adat leaders for conflict resolution. As far as possible, conflicts are solved within the nearest family or lineage, as discussed below. Conflicts over land may eventually be taken to court, if they cannot be solved by the KAN of the nagari. Although the Minangkabau recognise the benefits of low-cost and fast mediation by their lineage elders, they are overrepresented in cases taken all through the court system to the Supreme Court. According to the Pengadilan Tinggi in Padang, some 40% of cases are appealed to the Supreme Court. In more public conflicts, such as public disorder, petty crimes, amoral behaviour etc, both the adat leaders and the nagari administration may address the problem, sometimes in collaboration, sometimes in competition. There is no clear distinction in jurisdiction. Since the nagari used to be a self-governed adat entity, there are adat laws concerning most issues of daily life. It should also be noted that the wali nagari is often an adat leader as well and well versed in the adat laws. It is thus a balance to find a socially acceptable resolution to a conflict while still exercising some influence on it in one capacity or the other. The legitimacy and influence of the adat leaders and the wali nagari varies in the nagari visited, as does the degree of competition and collaboration. The young men in a nagari also play a role in solving conflicts of this type, as discussed in section 4.2 below. Criminal cases are reported to the police; although the police occasionally give cases back to the nagari head or the adat leaders or solve the cases in collaboration with these. 4.1 Conflict management within adat According to Minang adat, conflict management is a hierarchical process. The mamak closest to the parties concerned are called upon first. It is important that the lineage heads in a deliberation be of the same hierarchical standing. Ideally conflicts are solved at the lowest possible level within the lineage or clan structure. Only if this is not possible, cases are brought before a higher level at the clan and eventually to the nagari. This is expressed in the often-quoted adat saying: Bajanjang naiek, batanggo turun (Go up the stairs, go down the ladder). Cases referred to this system are typical family matters, particularly regarding marriages, property, titles, and other internal civil cases within the lineage or clan. Conflicts are solved through deliberation (musyawarah) and consensus (mukapat). There are several adat sayings referring to this process, such as Bulek aie dek pambulueh, bulek kato dek mupakat (Water is rounded by the bamboo, words are rounded by agreement). The Minangkabau culture is a very orally expressive culture, particularly when it comes to settling disputes. To be able to speak and show of knowledge of adat sayings is part of the prestige of the lineage heads. It is important to understand that the persons engaging in the deliberation are not the persons directly involved in a conflict as offender and offended, but their male lineage representatives. The persons directly concerned may be appearing before the lineage heads to acknowledge their involvement in the case, but is it left to the lineage heads to reach an agreement on the solution, which is often in the form of an adat sanction or fine. A decision by the lineage heads cannot be appealed to higher levels within the system, only unsolved cases are “going up the stairs.” Since the parties do not have access to the direct proceedings between their lineage and clan representatives, they can only indirectly influence the process. The aim of the deliberations and consensus are thus not necessarily to reconcile the direct parties in a conflict, but to re-establish the “balance” between clans and within the nagari. Adat is considered to be “filled” again if the appropriate fine has been paid. If a fine is to be paid, or land reimbursed, the lineage involved will join forces to clear the debt incurred. This in turns puts a moral obligation on the party who had been helped to repay the lineage in kind, service, or cash at some later point.


10

As mentioned above, access to land is the most common of type of conflict in the nagari, and very often the conflict is between the women as users and owners of the linage land and their lineage head as the guardian and formal titleholder of the land. Several such cases were reported, all showing the predicament and the difficulties of the women of confronting their mamak, even though the latter was clearly misusing his position within the adat system.

Typical case of dispute over lineage land This case is from Sumpur (see the complete case summary 3 in annex). It represents a common type of conflict, often recounted by women met with. The maternal uncle (mamak) of the respondent is pawning or selling land that is classified as harta pusako or lineage land without the consent of the women in the lineage to pay a debt incurred by his own son. When they object to the selling of land, they are threatened by the mamak both verbally and physically, so they appeal to the 4 ninik mamak of the lineage to urge their maternal uncle to protect their land rather than sell it. But the 4 ninik mamak support the mamak, rather than facing a public embarrassment of not being able to repay debt, they support his selling of the lineage land. The women of the lineage feel pressed to sign the agreement, but demand that no further lineage land be alienated. The mamak still manages to sell some lineage land the year after. The mamak is now dead, but the respondent is still, more than 20 years later, using her savings to regain the land sold of by him. She relates the big influence of the mamak within and outside the clan as the determining factor in why the women loose their land. They depend on a good relation with their mamak for critical events, such as marriage of children, and for representing them towards other lineage members and the outside. If a case cannot be solved within the lineage and clan, the case is reported to the adat council, KAN. Women are not represented in this council. KAN is the highest authority on adat matters in the nagari. KAN has a clearly defined domain in regard to disputes over ancestral land and titles (harta pusako and sako) in the Regulation no.9/2000, paragraph 19, but adat as such is not limited to these issues. If KAN cannot solve a case, it can be submitted to the districts courts, with a letter from the KAN and the wali. The following case relates how a very ordinary situation of an angry exchange of words between neighbours was brought to the KAN as a violation of adat and a sanction imposed upon one of the parties, whose position was not strong in the adat setting as she was not originally form the nagari.

The case of insult of lineage head The two parties are neighbours, one of them being 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 not addressed by his adat title. Some clan members of the lineage head overheard this and submitted a written complaint to the office of KAN that their clan head thus had been insulted according to adat. The members of KAN are all the lineage heads and thus only men. They invited the parties to explain what had happened and then formed an investigation team to find additional material and research what the proper punishment would be. During a second meeting of KAN, the woman was fined Rp. 300.000 to be given to the KAN at a ceremony. KAN would receive the fine as the alleged insult was against the nagari, rather than against the individual lineage head involved. In addition she should prepare a meal for the entire nagari. The women did not find the decision fair, as the lineage head had also insulted her during the argument. “It was not so much the money after all, but the shame of having to ask for forgiveness in front of all those people, the loss of face….” said the head of KAN. According to him, the members of KAN actually realised that both parties had a share in the insulting. “But the ninik mamak wanted to give a lesson. Now many young people do not respect their mamak.” He also acknowledges that there was social envy that the woman had managed to start a successful business and to build a house in the nagari, whereas the lineage head was still living in a bamboo hut with no secure income.


11

The woman had not been formally adopted into a local clan and thus had no clan head to speak her case. She was in adat terms still an outsider to the village. 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 KAN. Having learned from the experience, she was adopted into the clan of Datuk Basa Nan Tinggi, who will represent her in the future in adat cases. There are no channels for the women to represent their own interests. The BK was not involved in this case. See the full case summary in Annex 8: Case Summary 1. The case reflects both the weak position of women within the adat bodies, and how being a newcomer, not yet having a mamak in the nagari, weakens your bargaining position. It also illustrates how an incident that is quite ordinary may be used to evoke adat sanctions and become a show case for the adat leadership of KAN. The aim is not to upkeep the rights and compensation of the individual, but the redemption of the name of the nagari. The social pressure to comply is high, even though the KAN does not have any means to enforce their decision. The musyawarah is not between the parties involved in the insulting, but among the members of KAN, and the offending party is requested to acknowledge and accept the decision reached. There is no possibility of appeal. 4.2 Conflict management by youth organisations The adat youth organisation (Pemuda) plays a special role in conflict resolution in many nagari. The Pemuda includes all young men of the nagari, often up to their mid-thirties, and it has a formal organisation with a leader (ketua) who may well be a man in his 50’es.

The Jungle Law Nagari Paniggahan: Minor conflicts, such as small theft, are dealt with by the Pemuda, often by the offender being beaten up by the other youth in the nagari. Dt. Serajo says that he is taking quick steps to avoid the case being brought to the police and prefer to settle it informally. He even claims that he has been able to redraw cases that have been brought to the police by convincing the police that the case could be handled by the Pemuda. The Pemuda uses “hukum rimba” (lit. jungle law) to punish people rather than giving them over to the police. For instance by soaking the perpetrator in water, ordering him to wash until one bar of soap is finished (this was for a person who had been drunk). For small crimes, such as stealing food, there is no sanction if the food is used for eating together among the youth. If people suffer a larger loss, the thief is requested to compensate the loss. If they do not comply, the Ketua Pemuda will ask some of the other pemuda to beat up the offender and if they refuse to do so, they themselves will be beaten up. For second offence, the case is turned over to the police.

Informant: Ketua Pemuda (Dt. Serajo) who is also vice chair of KAN Nagari Gantung Sirih: Thieves are beaten up by the youth, and it is particularly severe if a public facility has suffered a loss. There has also been a case where the youth had smashed a car of an outsider going into the village at night. They were caught by the police, but the wali negotiated with the police about the compensation required reducing the amount. If people come into the village without permission, they will be beaten up and forbidden to come back. Crimes involving bloodshed are reported to the police.

Informant: Arnold, Wali Nagari Gantung Sirih, former Ketua Pemuda

This is a very different system than the musyawarah. There is no formal process, no means of appeal or defence, and no accountability. The sanction is always violent, often including public humiliation of the accused. The pemuda might have the potential to be mediating conflicts at the local level, but the system of punishments should be amended, and the mandate to solve conflicts in relation to the mandate of the police should be enforced. The Pemuda is often collaborating with the wali as well as the adat leaders, and an example of this is given in the box below on the conflict between nagari Paniggahan and its neighbours.


12

4.3 Access to conflict management through the government The newly installed wali appear to be eager to get at pivotal role also in regard to conflict resolution. There appear to be a keen competition between the institution of wali and that of KAN/LAN. In the nagaris visited, the wali emphasised his role as the mediator and the increasing lack of respect granted the lineage head and the KAN/LAN. There appear to be a close cooperation between the Pemuda and the wali. Several of the wali met with had been Ketua Pemuda before elected to become wali, as had some of the wali jorong. Nevertheless, each party attempts to emphasize his own importance to the settling of disputes. The wali does not have any means to enforce the Perna issued. He can collaborate with the wali jorong, the hamlet heads, and appeal to the moral and ethical standards of the community. In Sungai Kamuyang, some people say they will resent if judged according to Perna, as they do not agree to it. People have been informed about the Perna in the connection with the Friday prayer at the mosque, i.e. only men have attended. Like adat, the enforcement of decisions depend on fear of social sanctions, but the wali can as the elected administrator of the nagari not play it out to the same extent as can the ninik mamak. Some types of cases are considered to be more within the field of nagari administration than adat, for instance public disorder, although they can also be solved through the adat mechanisms. Minor cases, such as fighting and petty theft, can be solved by the mediation of the wali and, if not resolved by adat as discussed above. Mediation sessions are also attended by the wali jorong, the person accused, and his/her mamak (so that they “know”). There are no formal ways of enforcing decisions; it depends on the “moral will” of the people. But as mentioned above, the Pemuda may represent a threat in some cases. As it can be seen from the above cases, it maybe difficult to solve a conflict to the satisfaction of all parties within the adat system as there are no means of appeal once the lineage heads have made a decision. Therefore, some people take their cases to the wali. The wali may call the concerned parties, or he may refer the case back to the lineage, depending on how he consider his own standing in it. The role of the nagari administration is relevant when it comes to signing recommendations for sale of land and for marriage. For a civil case to be taken to court, a letter is needed from the wali. Other types of civil cases are typically debt issues, and these are taken to the district courts. Ethnic minorities, although formally adopted into a local clan, may be less inclined to use the adat fora, and prefer to bring their cases to the presumably more neutral wali. See cases of the Batak community in Kinali and the Chinese in Padang below. The domain of the nagari administration and its extension to the district government and the police and military apparatus vs. the domain of the adat based nagari governance are often interplayed in the competition of whose conflict it is. As it can be seen from the below case, it can also bring the case to a deadlock, as the legal frame of reference is different in the two systems.

The conflict over the tanah ulayat of Nagari Sumpur

The conflict is over approximately 100 hectares of agricultural land located along the border of nagari Sumpur and the neighbouring nagari Bungo Tanjung. The land is cultivated by residents of both nagari and is planted with perennial crops, primarily coffee. The people of nagari Sumpur claim that the land is their tanah ulayat, land held as common land by the nagari under customary law and to which only usufructuary rights can be held. The residents of Bungo Tanjung have been paying an annual rent for their use of the land to the nagari Sumpur, but have since 1987discontinued the payment claiming that they own the land as individually held property (hak milik). This claim is contested by the nagari of Sumpur with reference to the claim that the land is their tanah ulayat. Official persons have been called upon to mediate in the conflict: the MUSPIKA, the KAN, and the BPN have all tried to facilitate a solution. The former village head (kepala desa, prior to the abolition of the desa structure in 2001) had called upon the camat, who made several investigative visits to the location with the police and the head of the local military unit (koramil) to verify where the boundaries between the villages were. Concrete pillars mark the boundaries and in 2000 the camat facilitated the re-mapping of plots used for cultivation.


13

The wali nagari of Sumpur see the conflict as being between the nagari of Sumpur and the nagari of Bungo Tanjung. The wali has been writing to the bupati and met with him to ask for his mediation in the conflict, to no avail so far. He is now contacting directly and on an individual basis the residents of Bunga Tanjung using the land to convince them to pay the rent. He will try to raise the case with KAN again. The wali nagari of Sumpur is prepared to take the case to court if necessary, and people in the rantau support him. The vice chair of KAN Sumpur sees the conflict as primarily an internal case in Sumpur. The reason is that several lineage heads in Sumpur allegedly have sold or pawned land plots in the tanah ulayat to residents of Bungo Tanjung. The latter thus have no reason for continuing to pay rent to Sumpur. The lineage heads selling and pawning of the land had complicated its solution. This was allegedly done in collusion with the former village head of Sumpur. None of these will acknowledge their mistake and therefore the case cannot be dealt with. The alleged violation of adat by the lineage heads themselves, the supposed guardians of the tanah ulayat, makes it impossible for the lineage heads to raise the case with the adat leadership in Sumpur, and thus there is no formal access to settle the case through negotiations with the adat leadership of Bunga Tanjung. The KAN seems not support a court case, since it would make public that the adat has been violated and residents of Sumpur been deprived of their land for the benefit of a few lineage heads able to misuse their position. Such publicity is highly embarrassing according to adat, not only for the lineage heads, but for the entire nagari. The case shown that there is a big disadvantage if no check and balances for the adat institution. It is possible that the conflict erupted again since the nagari is now the administrative and territorial entity, rather than the desa, and stakeholders can act in the name of the nagari for the tanah ulayat. The value of the rent of the land has increased since the prices of coffee and cloves are high. This has thus become an important income source for the nagari, particularly now that the nagari is a formal entity again.

See the complete case summary in Annex 8: Case summary 2 The dead lock suffered in Sumpur might be a result of the inability of the adat system to address violations of adat within its own ranks, and the impotence of the formal channels, involving several levels of government officials, the police and the military, to enforce a solution to a conflict that remains unresolved by adat. The following case box illustrates how the cooperation between adat based and civil government as well as the police can work positively and prevents a conflict from expanding.

The conflict between two nagari in Tanah Datar The conflict erupted in December 2003 between the nagari Sarinang Baka and Muara Pingai. The neighbouring Nagari Paniggahan was mainly involved in the resolving of the case. The conflict was triggered when two persons from Sarinang Baka and Muara Pingai got into an argument in the rice fields over the rights of one of them to cultivate land, the other party claiming it belonged to his nagari. The youth of both villages got involved, and the main thorough fare was blocked by groups of young people from the respective nagari, preventing anyone from entering their nagari. Fighting erupted and one person was killed in the conflict. The involvement of the youth clearly escalated a rather trivial dispute into a major conflict between communities. The Dt. Tampak Lawan (KAN chairman of Paniggahan) negotiated between the parties, driving back and forth between the road blocks, and managed to get them to go back to their respective nagari. There were two conciliation meetings, the first attended by Bupati Solok, the second by Bupati and Kapolres. Kapolsek reported to Kapolda. Since the case was between two nagari, any solution must include the head of the nagari and the camat. The result of the meetings was made public in the mosque, the prayer house (surau) and at the local market. The collaboration of the adat leadership, the police, and civil administration (bupati, camat, wali) managed to resolve the conflict informally in the sense that nothing was brought to court, but it was very formal in that all those high level people were involved in it. Informants: Ketua KAN (Dt. Tampak Lawan), Ketua BK, Ketua Pemuda (Dt. Serajo, also wakil ketua KAN), all from Paniggahan


14

When conflicts are between nagari, the government is involved through the camat and the wali nagari. If conflicts are violent, the police and the local military branch will also be called upon. Even though the settlement of the conflict may be based on adat, it is strengthening by the presence of the official representatives of the government and the police signing the agreement. The following case from Kinali, close to the border area between West and North Sumatra, with a very mixed ethnic population, shows how the adat and the local government leaders are involved in solving a violent conflict. It also shows how vulnerable non-Minang communities are despite being adopted into the local adat system. And, again, land becomes a key concern for all parties. Informants in both cases are the wali jorong where the violence erupted, the secretary of the nagari and the Bataks still living in the area where the conflict erupted.

The intra-nagari conflict between ethnic Batak and Minang in Kinali The case erupted in the market of Tempurung in late 2000 as a private dispute between a Batak and a Mining allegedly playing judi10 in the market, both residents in the nagari. A fight incurred and it soon developed to a major conflict between the two ethnic communities. Most Batak adults were working in the field, but the Batak children were at home, fleeing into the forest and to the beach as 94 houses owned by the Batak were burned down. According to a Batak women met with, she had to search a week before she had found all her children again, some of them having escaped many miles away. The Batak fled or were evacuated from the nagari. For about three months, the market was closed and no children went to school and the parents did not go to work. They still feel traumatised by the events, and consider moving away, like so many have already done. Before 2000, there were about 400 Batak families in the community, now about 56 families remain. The total population is about 13.000, comprising both Minang, Javanese, Mandahiling (Muslims from South Tapanuli), Batak and people from Nias. The wali jorong talked about the conflict as being with the Mandahiling, but the conflict was between the Christian Batak and the Minang. The Mandahiling live in a different community. The Batak have lived in the community since the 1980s. During the conflict, the ninik mamak talked to their respective kemenakan and asked them to go home to calm down. Then it was handled by the government. Representative form each party, in all 32 ninik mamak held a meeting with the MUSPIKA, 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 2 million Rp. per house which is far too little to rebuild them. The kepala jorong’s efforts to reconcile the parties after the conflict, according to his own estimates, were to create even opportunities. He said he had given them land to make their own dusun, they have their own kepala kampung for about 300 families and they can use their own adat. Only for weddings, they have to report to the ninik mamak. According to the Batak, the two communities are mutually reserved after the conflict, careful when interacting. The older people are accepting each other, but the young are school drop outs and in risk of getting incited by ethnic violence. The social background for the conflict was, according to the wali jorong, who is a Minang, that the ninik mamak did not treat all newcomers similarly to the Minang residents. Some of the Batak had bermamak (about 10 families according to the wali jorong) but was considered by the Minang to make a village within the village. Within the Minang adat there is a distinction between the genetically related kemenakan (kemenakan kandung, lit. kemenakan of one womb) and those that have been adopted into the lineage (the “kemenakan dibawah tulutui” lit. “kemenakan under the knee”). The latter are not entitled to the same right to ancestral property and titles, the pusako and sako. They may, however, buy land from their lineage at a nominal price. Some of the Batak have thus acquired land, and others have not, since they have not been adopted into a lineage yet.

The land case erupting anew

10 Illegal game involving money.


15

The Batak we talked to in Dusun Lembah Pasaman (behind the market) were clearly still afraid of what had happened in 2000 and did not feel secure in the village, rather, they felt that now the Minang were trying to evict them by taking their land. The current case is about 50 Ha of land given to 50 Batak families in 1986 by a ninik mamak. The land was then forested, and the Batak put a lot of effort into turning it into cultivated land. Now the Minang kemenakan want this land back (about 9 ha). There is a letter of “penyerahan tanah” signed by the ninik mamak giving the land in 1986, as the induk among the datuks (Engku Ilyas Major Sadeo who was the right hand of the raja). But he was not the ninik mamak who owned the ulayat in question, who was Dt. Bagindo Kayu, and now the kemenakan of the latter want the land back. The Batak has been paying rp.900.000/ha/KK to get a letter “Surat Pernyataan Pemilikan Tanah” (which should not cost more than 5.000 rp. according to a governmental decree) from the jorong head. He said it would strengthen their claim to the land. The payment may have included also the price for the land, but it was not stated on the letter, and the informants were not clear about what had been paid for. The letter was not signed by the camat, but only by the Dt. and the wali. The 9 ha claimed by the Minang are now used by them despite the letter, which does not have any legal status, unless it is also signed by the camat. As a minority population, the Batak are not protected by the mamak of their adopted linage. They have no knowledge of legal aspects of land holding and are likely being exploited by the wali, the jorong head and the ninik mamak. The original documents regarding the provision of the land (1986) as well as the newly issued Surat Pernyataan Pemilikan Tanah are available.

4.4 Dispute settlement through the police and the courts Criminal offences are either solved through adat or reported to the police, depending on how severe the offence is, and the situation of the offender. It should be noted that there is not necessarily a straight and simple handling of the case once it has been turned over to the police. The burden of investigation and submitting of evidence can be difficult for villagers not familiar with the formal system. In many cases reported in the field, the case was referred back to adat or claimed back by adat after the police became involved. See the case about the Pemuda above. If the case is settled by the police or through the courts, the decision (either an agreement or a verdict) is not necessarily executed. It can easily be blocked by the adat mechanisms in the nagari, as illustrated in the below cases.

Land case addressed by adat, police and the court, without execution

In 1964 a member of the Melayu clan bought a piece of land from a ninik mamak of the Tanjung clan with a written document stating the sale. The transaction was also signed by the wali nagari. According to the informants, the land originated from harta pusaka rendah and it was sold by Engku Tanjung after a musyawarah in his lineage for the purpose of building a clan house (one of the 3 accepted justifications for selling lower ancestral property). The kemenakan of the Tanjung clan did not accept the sale, as the land was located in the middle of their tanah ulayat and thus surrounded by rice fields tilled by Tanjung people. They did not want to bermusyawarah as they considered the land their harta pusako. The person from the Melayu clan is using the land for cultivating fish. But repeatedly, the boundary mound surrounding the field is being damaged by the Tanjung people, the water is let out of the field and the fish is dying. Melayu wants to find a peaceful solution to the conflict, but the Tanjung people did not want to participate, and the Melayu people has given up and are prepared to return the land if compensated with the market price today, about Rp. 12 million. However, the Tanjung people do not agree to this proposal and demands the land returned as well as the rent of land since 1964, which would amount to about Rp. 40 million, in addition to the land. Adat has not been able to provide a solution to the conflict. Last time the fish cultivation was ruined by the Tanjung people, it was reported to the police. The police negotiated an agreement about compensation for the loss. But Tanjung would only compensate for the loss, if the Melayu paid the rent of the land for 40 years. In this situation the police gave up.


16

The case was thus reported to the district court in Solok on August 12, 2004. The decision of the court was that the Tanjung people were guilt of destroying the property of others (tindakan kenakalan) and they were sentenced to pay a fine of Rp. 225 (sic!). They were not requested to pay any compensation. The court decision indirectly implies that the Melayu people are the rightful owners of the land. But the decision has not made the Tanjung people comply and they still claim the land to be their tanah ulayat. A recent adat meeting between the Melayu and Tanjung clan leaders confirms that the original transaction was valid and the land thus belongs to Melayu. But the decision cannot be executed because higher ranking clan head of Tanjung is afraid of the lineage head being accused in the case. The reason is that the clan members of Tanjung have been collecting funds to buy the land back, but these funds were used by the clan head. Now the clan members are pressing him to get the land back or return the funds. The case illustrates how difficult it is to execute decisions. The case has been handled in adat fora, by the police, and in the court, and now the adat leaders have decided on it again. Still the land cannot be used by the Melayu people entitled to it. Informants: Supardi, Secretary Nagari Dilam, Kec. Bukit Sundi, who is married within the Tanjung clan and Melayu clan head. The verdict of the District Court was available. The following case also involved the police and the district court, but the solution is a mediation facilitated by one of the judges in Batu Sangkar. A pilot project in court annexed mediation is now under implementation in Batu Sangkar, see section 4.5 below.

Case over land mediated by the court annexed mediation in Batu Sangkar The conflict erupted over a piece of land bought by Sunardi (who is Javanese, but born and brought up in West Sumatra). He acquired a plot from Dt. Rajo Intan in the year 2000. The land was 2000 m2 and high ancestral land (harta pusako tinggi). The plot was part of a larger piece of land of which Dt. Rajo Intan has land certificate. The name of Sunardi was added onto the certificate as owner of the 2000 m2. Three months after the transaction, Sunardi began to cultivate the land, and the kemenakan of Dt. Rajo Intan came and demanded that he returned the land to their lineage. Sunardi asked the BPN to measure the land again. Being threatened by the kemenakan Sunardi requested the protection of the police for a week, night and day. Even though he had been adopted into a local clan and become a semando by marrying a local woman. He felt that his position was not as strong as that of the other kemenakan. They demanded that Sunardi returned the land or return it to them. A musyawarah was conducted according to adat but no solution was found, and both parties subsequently engaged a lawyer each. During the following meetings with the lawyer, the kemenakan asked that the price of the land was increased with Rp. 15 million, but Sunardi was only able to offer an additional Rp. 5 million. The kemenakan then brought the case to the district court in Batu Sangkar. The process here went on for a year (Tergugat I: Dt. Rajo Intan and Tergugat II: Sunardi, and Tergugat III: Notaris PPAT). The judge handling the cases proposed that it be settled by mediation. During the mediation, the judge talked to each party and explained the pros and cons if they proceeded with the case through the court system. They were given a time frame of 22 days to find a solution, but did not succeed and the case was processed to the court. But the judge still tried to carry out a mediation process parallel to the court proceedings. Sunardi then offered to return the land on the following conditions: 1) The money given for the land as stated in the transaction agreement (Rp. 30 million) should be returned

to him. 2) Other expenses incurred, such as transfer costs and change of name on land certificate should be born

by the kemenakan The kemenakan agreed to pay the amount in instalments, and the other expenses were to be carried by Dt. Rajo Intan. During this process Sunardi reported the kemenakan to the police for damaging the crop on the disputed land. The idea for this step came from the judge handling the case, in order to strengthen the weak position


17

of Sunardi according to adat. Dt. Rajo Intan then warned the kemenakan, who was a civil servant, that their status as such could be redrawn if it was proven that damage of property had been used during the case. Conclusion: • The fact that the land certificate was in the name of Dt. Rajo Intan and not of his lineage, shows that

BPN has made a mistake in issuing the land certificate. The subsequent transaction certificate and sale of the land is thus similarly flawed.

• The position of newcomers to a nagari, even if they have been adopted into a local clan, is weak, or not at the same level as the genealogically related lineage members.

• The court is a mode of compensating for this weak position. • The mediation process is difficult to complete when the parties are not at the same power level. • The ninik mamak in this case have used their position for private gains. The more sensitive issue of an alleged sexual assault case illustrates the different perceptions of the police and victim on the case.

Alleged sexual assault case A 5-year old girl was allegedly sexually assaulted by the son of her neighbour, who was in his 20’ies. Both families were not local, although Minang, which made the mother of the victim reluctant to address it with the respective lineage heads. Instead, having talked to a local NGO, she took the case to the police. The police declined to follow-up on the case as there was no physical evidence upon medical examination of the child. They proposed a peaceful settlement between the parties and drafted a proposal. The father of the offender is willing to accept it, but the mother of the victim does not feel that it is just. The police is indicating that the family is dragging the case out in order to pressure the family of the offender to pay compensation. The case is still pending, as the family of the victim does not feel they have anywhere to go to get an acceptable solution. According to the mother of the victim, the child is still traumatised by the incident, and she has been enrolled in a school in a town nearby, rather than at the local school. The alleged offender is still living next-door. See Annex 8: Case summary 5 for full case summary.

4.5 Court annexed mediation in Kabupaten Batu Sangkar The purpose of this section is not to evaluate the mediation annex but to learn from the implementation of an intervention that, to some degree, is aimed at bridging formal and informal dispute resolution mechanisms. The mediation annex is the result of collaboration between the Mahkamah Agung and the Pemda. It is currently being piloted in three locations: Batu Sangkar, Jambi and Surabaya. The program offers mediation services to the community, delivered by the Pengadilan Negeri. In Batu Sangkar the pilot has been running since January 2004. There are nine mediators, eight of which are judges at the court and the other a local community figure who fulfils the qualifications. Another government department, Pemda, is responsible for informing the community of the new service, which according to the Judges interviewed had been insufficient. The court is also responsible for informing disputants of the service when they bring a case to trial. Since January there have been 11 cases; 3 were withdrawn; 7 were unsuccessful and went to the court; with only one case being successfully mediated. One case, following unsuccessful mediation, ended going all the way to the Mahkamah Agung, indicating that the annex was not catching the small cases that are probably more appropriate for a mediation service. The process is such that the disputants mutually choose a mediator (if they cannot agree, the court appoints one for them), and so far all disputants have selected judges because, as opposed to the community mediator, they do not need to be paid a fee. Following this, the annex follows a “classic” model of mediation i.e. it is not a musyawarah, including the following steps:

a) The mediator provides information on the process, time frame, and the legal status of the decision reached through mediation.

b) Mediator ensures that each party is willing to settle the dispute through mediation.


18

c) Requests versions of dispute from each party, starting with the plaintiff, then the accused. d) An agenda is agreed upon and a form of negotiation takes place, where mediator attempts to

work through various disagreements, asking where they are willing to give in. e) The mediator cannot make judgements and the decision is written and signed. f) Time limit for entire process, including several meetings is 22 days. The process often requires

3-4 meetings. This process, according to the judges interviewed, was somewhat inappropriate due to the nature of the disputes and the interests implicated. The judges noted that usually the direct disputants have to consider the wider interests of their kaum or even suku. Thus the mediation sessions would frequently have to adjourn to allow for consultations with these interests which often were indirectly being represented. This is made even more difficult when important “local” decision makers live, for example, in Jakarta. A number of times this resulted in the expiration of the allotted 22 days, and it was suggested that a formalized version of a musyawarah may be more appropriate. Analysis: There can gleaned a number of lessons from this pilot: It would seem (as confirmed by other findings from the field) that the courts, located in the district capital, are inappropriate for an intervention that might hope to support and strengthen informal justice mechanisms that exist in Kabupaten Batu Sangkar. However, it does provide some space for parties to use and apply their own, agreed upon, social and cultural norms such as adat. Similarly, it seems that the initiative has brought the legal apparatus, such as the judges, a little closer to the community, although it is clear that such an intervention is unable to address the key issue of geographical separation from the community. More positively, the pilot has also provided some aspect of choice and control of the resolution process to the disputants. They can choose their mediator (although somewhat restricted by the fee structure) and can participate in setting an agenda for resolution. This certainly goes along way to addressing the oft-cited issue that communities feel that if they go to court they cannot control the process. It should be noted that disputants who had participated in the annex were, unfortunately, not interviewed. Finally, the judges interviewed, despite some limitations, were excited to participate in an attempt to improve their service to the community and were keen to suggest how the service could be improved, albeit, to the benefit of themselves (i.e. they felt compensation for this extra work was required, currently there is none) but also for the community. This last point should not be under-looked in a government sector that is largely characterized by stagnation and isolation from the community it is supposed to serve. 4.6 Nagari as an agent for advocacy towards third parties The re-establishment of the nagari as the basic territorial entity in West Sumatra in conjunction with the political reform and its pressure for acknowledging the traditional rights of local communities, have made adat a vehicle for claiming common lands and water resources back to the community. It is clearly stated in the Perda TK I no 9/2000 that the property of the nagari is the market place, the public areas recreational areas, meeting hall, mosque, and prayer house, and land, forest, rivers, springs, lakes or sea that are ulayat of the nagari, as well as buildings made by inhabitants for public use, and other types of material objects.11 In several of the nagari visited, the communities had successfully been negotiating a share of the fee PDAM (Perusahan Daerah Air Minum), the public water company, for using the water resources in the nagari. These resources have been used by PDAM for decades, but it is only now that the communities are able to bargain for their share of the fee. The means have primarily been negotiations between KAN and the PDAM, but civil actions such as cutting of the PDAM water supply pipes has also been used. Cases were reported both in Bukit Tinggi and Sungai Kamuyang, but the case summary presented here is from Gantung Sirih.12 Together with the other case summaries presented below, they show how the nagari is now the focus for advocating community rights. In this sense, the strengthening of the nagari and adat has increased the access to justice for the community. The key points of disputes are:

• National law vs. Customary law (UUD 1945 Pasal 33 vs Hak Ulayat) • Provincial taxes vs. Compensation to the villagers • Provincial and District Regulations vs. Nagari Regulations (Perda vs. Perna)

11 Pasal 7, Peraturan Daerah Propinsi Sumatera Barat No. 9 tahun 2000 Tentang Ketentuan Pokok Pemerintahan Nagari. 12 The case from Bukit Tinggi is documented in some detail in the paper by Takdir Rahmadi presented at the International Seminar on Self Determination, Universitas Islam Indonesia, Yogyakarta 8-12 December 2003.


19

Compensation for use of water supply from nagari

“I will not pay taxes to Pemda, if (PDAM) is not paying compensation for taking our water” PDAM (District Water Supply Company) is using a water source located in the tanah ulayat of Nagari Gantung Sirih since 1990. There is an agreement from 1990 made between PDAM and the former village head according to which the villagers are entitled to 30% of the fee obtained by PDAM from the water. Apart from Rp. 500.000 given by PDAM in 1990 as a contribution to the mosque, PDAM have not paid any compensation to the villagers, who have to buy their water from PDAM. It was also agreed that if there was not enough water, the rice fields should have priority over PDAM supply. The new wali nagari has searched the local archives and found the original agreement, upon which he has written to Bupati and requested that PDAM fulfil their obligation. The head of PDAM stated that based on the paragraph 33 in the Constitution, water sources are national property. The villagers did not feel that this was fair, and since their rice fields were suffering, they cut the PDAM supply pipe and redirected the water to the rice fields. PDAM then agreed to pay 30% of the profit after it had been reduced by taxes. Since 1990 it amounted to about Rp. 1.300.000 in total. The wali nagari wants the PDAM to pay 30% of their income to the nagari. And he will not collect taxes in the nagari before PDAM is agreeing. “There is no enforcement of law, whether adat law or national law”

Informant: Arnold Piliang, Wali Nagari Gantung Sirih

The conflict over the tanah ulayat with private investor

The conflict is over approximately 66 hectares of agricultural land located within the nagari of Sungai Kamuyang known as Tanah ulayat Lukuak Nan Gadang. During the Dutch period, the land was used by the Dutch for horse-raising. The land has since 1968 been used a private investor P.T. Jenyta Ranch as HGU (Hak Guna Usaha). In 1998, the present HGU expired, and the people of nagari Sungai Kamuyang did not agree to its extension and occupied the land. According to the government, the land will revert to the government. The community organised a demonstration in front of the Governor’s office in Padang to state their request for the land, but the HGU was extended. It appears that the present holder of the HGU has used it to obtain a bank loan. The de facto solution is that the land can be used again as tanah ulayat by the residents of Sungai Kamuyang, and the wali has issued a Perna to that effect. But the legal status of the land, and thus the final solution of the conflict, remains unsettled. The details of the conflict are described in Case summary 5 below. It should be noted that in this case, an NGO was involved in supporting the community. The people in the rantau played a key role at least in the case in by providing legal advice, drafting letters, checking national archives and possibly providing financial sources for KAN as well. The more traditional maintenance on natural resources, in terms of larangan or forbidden or restricted access, has also been codified in recent years in the form of regulations and decisions by the KAN. Such decisions have of course a stronger status with the revival of the nagari and its adat institutions. One example is the regulation on use of fishing ground and riverbeds in the nagari Sumpur.13

The management of fishing grounds in Sumpur There are about 700 fishermen in Sumpur, organised in 4 groups. They have written regulations made by KAN about the use of the fishing grounds of the nagari. The fishing grounds are part of the ulayat of Sumpur and thus common property. The purpose of the regulations is to ensure accessibility to all on equal terms and to secure the sustainable use of the resource. It is forbidden to use fishing methods that kill 13 Surat Keputusan Mysyawarah Masyarakat Panjalo Pengambil Pasir Pemukat Pemancing dan Alahan Nagari/Desa Sumpur no. 01/2000 tentang Peraturan Tata Tertib Penangkapan dan Pengambilan Pasir dalam Wilayah Perairan Nagari/Desa Sumpur.


20

indiscriminately, such as electricity, poison, dynamite, and fishing nets with net measures below one inch. There have been several cases where the regulations have been violated and resolved though informal process: • A fisherman sets fish traps continuously and prevents fish from passing up river to other traps. The case

was brought to the wali and the adat sanction was that the man prohibited from fishing for 3 months. In the end the person left, because he could not provide for his family without the fishing. Note that the fishing grounds are considered ulayat: common rights apply.

• People sets fishing nets with too small dimensions (below one inch) they have to pay 50 sacks of cement to the nagari.

• About 2 years ago, a young man used poison to fish, which is forbidden. He was given a lesson on the regulation from the fishermen’s group. But he kept repeating the violation. Then the case was brought for the ninik mamak (KAN) and he was ousted from the nagari.

Normal sanctions are that for the first offence, the offender is forbidden to fish for a number of months. Outsiders have to pay 50 sacks of cement. The fishermen’s group confiscates the fishing gear. The regulation that Sumpur is “daerah larangan” is passed on to the wali nagari of other nagari around the lake. If there is a violation, the mamak of the accused will be called. There is an ongoing case with PLN. Since the dam for power supply was built at the outflow of the Ombilin River from Singkarak, a process of sedimentation is taking place in the lake. If the weather is windy, the water becomes unclear. The fish, which is special to Singkarak (ikan bilis), dies in unclear water and the output of the fishing has diminished. The water can also not be used for drinking or bathing by the population any longer. The fishermen, including both young and Dt. have been to Bupati, to Bappedal, and DPR, to report the case. Although they have joined other fishermen around the lake in a forum, is it difficult to fight a company with a lot or Japanese capital invested Source: Pak Jus, Ketua Lembaga Nelayan Sumpur. The Perna on the use of the fishing grounds is available. Conflicts with third parties may also reflect on the conflicts within the nagari, or even increase internal conflicts. Due to their involvement as parties to a conflict, the lineage heads have difficulties facilitating the resolution process on behalf of the nagari. The following case is from Kinali.

Land conflict between private investor PT. TSG and the local nagari population The private company PT: Tri Sangga Guna (TSG) in the mid.1998 made an agreement with the ninik mamak of Kinali and the local government (Pemda) to build an oil palm plantation on 14.000 ha of land belonging to the nagari. Allegedly, the agreement was that the land would be provided by the nagari, in return for which the TSG would develop the oil palm plantation on the first 7.000 ha. The additional 7.000 ha would be developed with 4.000 ha to the company and 3.000 ha to the local community (the plasma). The plasma should have been provided to the people in 2000, but so far only the inti has been planted (the 7000 ha of oil palm that was now productive). The population protested and occupied part of the land. The conflict was solved through the mediation of Polda and Pemda, and the private investor got a new deadline in 2001 for transferring the 3000 ha of land to the local farmers. This deadline was not kept either. The population had approached the Bupati and the Polda in a private meeting, but without any action being taken. By the time the team visited the location, the population had occupied the land held by the private investor and blocking all activities in the plantation (several hundred people, who were organized in taking turns in the peaceful demonstration). They claimed that the inti was given over to the community in compensation. The management of the plantation was not present. The people did not try to solve this case through their adat leaders, who should be defending the claim of the community. The people had not been involved in the negotiations between the ninik mamak and the private investor and Pemda, and they felt that the ninik mamak could no longer be trusted. They suspected that the ninik mamak had received money for giving up the land, and thus was in a weak position now to represent the kemenakan towards the private investor.


21

5 Analysis 5.1 The position of women in dispute resolution From the interviews conducted and from the cases reported, it is evident that women are most vulnerable within a system where they cannot represent themselves, or chose their own representative, but depend on the male head of the lineage. Quite common, the lineage head himself is involved in the case, such as sale of lineage land, or have his own position at stake and is inclined to optimalise his alliances with other lineage heads rather than defending the case of the women. Whereas the process is low-cost and in some cases very speedy, its outcomes are highly dependent on the availability of the mamak and lineage head and his ability and willingness to represent his lineage member (kemenakan). Women have great difficulties in defending their rights even within the nearest family when the lineage head selling of their property is a direct maternal uncle or a close classificatory maternal uncle. They continuously depend on their relation with their maternal uncles to be able to conduct important life-cycle events such as marriage of children, a fact reportedly used to threaten the women into agreeing to sell their land “…or do you not want your child to marry” as related by a women in Sungai Kamuyang. In all the cases, women do not feel that the decisions are fair and they do not feel represented by their lineage head in the process. However, they do not feel able to confront the lineage head and since the adat procedure is very hierarchical it is difficult to surpass the immediate lineage head and appeal the case to a higher level. As long as the case is about adat matters, particularly lineage land and titles, the nagari administration does not get involved. In cases where women have had a possibility to be in charge of and influence their own cases are those where strong individuals have been supported by other women, for instance from NGOs. See cases of Afrida, cases from Batu Gadang, and BK in Sungai Kamuyang. If the women get access to the same information as do the men, and are able to appear in the same fora, they are able to win not only their cases, but also the confidence of the community as future mediators. 5.2 The role of Bundo Kanduang in empowering women In many nagari the BK had to be re-elected and revived after the return to the nagari. There seems to be several different directions of the development of BK. According to information from Sungai Kamuyang, the members of BK are now chosen based on descent, and there is one woman for each male lineage head. This is a development from the pre-reform era when BK was highly politicked and its members appointed based on relations to the village government, although this type still exists and is known as “government BK” more or less taking over from PKK. The other development seems to be an empowered election of members to the BK in nagari where the women have been supported by NGOs and they are now learning about adat from the board members of BK at the provincial level to be able to stand up to the men. The activities now include studies in adat and monthly meetings. “Before we only cooked for the ninik mamak.” In Sungai Kamuyang BK have 134 members (same number as the ninik mamak). Each represents a lineage segment of about 30-40 households. In the nagari of Sumpur, the BK is weaker and its collaboration with KAN conferred to domestically derived matters, such as the regulations regarding wedding celebrations.14 A strengthening of BK could entail that it is put on equal footing with the KAN/LAN, but opposing it to KAN/LAN risks a gender polarisation in the nagari. Any mechanism should attempt to integrate the two

14 The power of women is said to be anchored in these points and when it is not visible in society today, it is because women have not learned the adat and do not realize that they have a strategic position within the adat, which is:

a. To educate the children about moral and tech them how to interact within the kaum, including the “12 indecent act” which is seen as the moral backbone of the BK. These include sanctions on the way women talk, walk, sit, speak, dress, etc.14

b. Economic contribution to the family in terms of making sure that resources are distributed evenly within the kaum, so that there are no major social and economic gaps between the members.

c. “Cooling” the members of the kaum by giving advice so that problems and conflicts do not spread. d. As the centre of information in the family, they keep all the knowledge about land and family relations, and the decision

making powers are with the women.


22

vehicles, and to bring in mutual mechanism of check-and-balance and accountability. The perception is clearly that the return to nagari as administrative unit has strengthened the position of women. To some extent the wali office controls the KAN/LAN, or rather has disempowered the KAN/LAN. But there is no reciprocal check on the wali office by KAN/LAN. Women have a joint interest in getting formal and actual control over sale and pawning of land, as it is their property and they often feel highly mistreated by the men of their lineage. 5.3 Domestic violence and crimes against women As in many other traditional societies, women in West Sumatra are also considered to belong to the domestic sphere, and violence against women (including rape) is seen as a domestic problem, not a crime. Women are obliged to go through their lineage head (mamak) and to solve any disputes at this level in order not to embarrass the lineage head in front of other men. Of 2500 reported cases of divorce, 1900 resulted from the misconduct of the husband. According to the NGO Nurani Perempuan, the victim is often reluctant to report domestic violence. Often the cases are not reported directly to the police, but through an NGO. Psychological violence against women is the most common form, but it is difficult to report as there is no medical evidence. The level of education of the victim and having a family member within the police force are influencing the courage to report a case. The reasons for the domestic violence are many, but economic problems and different religious understanding are common. A solution is normally found within the family or by involving the lineage head. Some report to the religious leaders, but this is rare among the Minang, because these are identical to the clan leaders (the ninik mamak). The Christians, such as the Chinese, make more use of their religious leaders in dispute resolution. 5.4 The capacity of the adat leadership As mentioned, the KAN/LAN comprises the incumbents of the hereditary adat titles in the nagari, which are the lineage elders. One of the challenges facing KAN at present is that the large majority of lineage members with education or capital have migrated to more urban centres such as Jakarta, Padang, Pekanbaru and other main cities in Indonesia. The tradition for work migration, merantau, is inherent in the Minang culture and people in the rantau play a great role in the politics and not least the conflicts in their ancestral nagari by providing funds, legal information and encouraging their lineage members to maintain their respective claims according to adat. This is both strength and a weakness. As can be seen in the cases above, the contribution from and influence of people living in the rantau is considerable on the affairs in the nagari. On the other hand, when more than half of the members of KAN are living outside the nagari, it becomes just about impossible to make valid decisions on adat. The fact, that many title holders are living in the rantau and only returns once a year, reduces the prestige and authority enjoyed by KAN. The members who are left often do not have a minimal education required to address the increasingly complex issues, and they experience that the members living in the rantau subsequently protest the decisions taken. Sometimes the people in the rantau have other ambitions about how the nagari should develop and how the adat should be taken care of, and since they often have the means to set through their decisions, well, the people in the community wait for their return before acting, including when important decisions in current conflicts are needed. Another factor reducing the legitimacy of KAN is that, in the nagari visited, many titles were vacant because the lineages to whom the title belonged could either not agree as to who the title should go, or could not afford to install the incumbent in the office (it requires the slaughter of live stock and an elaborate nagari ceremony) or simply did not have a suitable candidate. KAN in Sumpur and Sungai Kamuyang had stated minimum qualifications for a title bearer, including the economic means to uphold the office and minimum of 9 years of school education, in an effort to match the titleholders in the rantau. The same measure was considered in many other nagari to secure a minimum level of human resources within the KAN. In addition to the lack of knowledge and experience with adat law, most members of KAN have no experience with mediating conflicts beyond the level of immediate sub-lineage level.


23

5.5 Relations between adat and with the nagari administration The reestablishment of the nagari as both a territorial, administrative and adat based entity has possibly created both a sense of unification, but also brought out new lines of conflict, particularly as to the division of competences and authority between the wali nagari and the KAN/LAN. In Sungai Kamuyang, this is reflected in the Perna issued, which to a large degree relate to adat matters (such as the procedures of wedding feasts). The nagari has clearly become a more important entity in terms of power, resources, and symbolic values and thus a new arena to manifest influence for the wali as well as the adat leaders. For instance is the tanah ulayat the jurisdiction of the wali nagari, not of the ninik mamak, according to the wali. This is contested by the secretary of LAN in Sungai Kamuyang. This is a reflection of the application of national laws as opposed to customary law, a topic much discussed in the nagari at the moment. This also applies to the system of dispute resolutions applied. There are formally two systems, the adat leaders and the wali nagari and jorong heads. The systems appear to be both integrated and competing, and depending on the case at hand may prove to be optional venues for resolving conflicts. However, there is a complex and often competitive interaction between the adat leadership and the nagari administration in cases of concern to the nagari, typically cases of common lands being used by external parties. As the case from Sumpur shows, there appear to be a deadlock, precisely because the two systems are based on different premises. With the return to the nagari, the KAN is, somewhat paradoxically, facing increasing challenges from the nagari administration which has been bestowed with the authority over the nagari resources, including the ulayat and which is issuing nagari regulations that to a high extent may encroach upon the previous legitimate realm of the adat leadership. According to the district agency of the government in Tanah Datar (Biro Pemerintahan Nagari) the most ideal solution to the dilemma between an administrative nagari and an adat nagari was that the highest ranked clan head became the wali. The strength of conferring both mandates on the same person is, according to the head of the bureau of local government, that the adat head has the “masses” under his control, people obey him, and the public support will increase the transparency. He estimates that about half of the wali heading the nagari at present are the head of the adat organisation (panghulu pucuk). He is also aware that although the “new” nagari has a legislative body (the Badan Perwakilan Rakyat Nagari or similar), the members are de facto appointed by the ninik mamak, the lineage heads who are also represented in KAN. There is likely to be some idealised versions of how life and the process of justice are evolving in the nagari. This is a quote by Busra SH, Kepala Biro Pemerintahan Nagari: “Disputes are settled informally within the nagari community through the ninik mamak, alim ulama, and cerdik pandai which is very helpful. The family feeling within the governance system of the nagari is very high so that members who experience problems will get high enough attention and empathy from the other families. The attention and defence does not only come from the immediate family but also from the kaum (the extended family), even from the people of the nagari. Within the government system of the nagari this is knows as defending the children of the nagari.” As the above cases shows, not all children of the nagari are equally defended. 5.6 Legal perspectives on the Nagari Regulations As discussed at the beginning of this report, there are increased local activities to codify adat, including in the Perna and by decisions by KAN. It seems as if the “local democracy” is far ahead of the more bureaucratic systems at the district and province level. This could create a lot of tension, if the Perna are subsequently invalidated by provincial regulations. It could also raise a problem about the legitimacy of the village justice autonomy if higher levels of authority not validate the Perna issued. The province level is now drafting the Perda regarding the common lands (tanah ulayat) of the nagari. The Perna about the tanah ulayat, as in the case of the Sungai Kamuyang, therefore have no judicial strength. The quality of the Perna seen from a legal perspective is questionable. The description of offences might violate basic civil rights and even national legislation, and there is no description of the how the regulation is to be enforced. It does not make clear what the process of justice is, what are the proofs of violations, and how the accused could be able to defend him/herself or appeal the case. The regulations are clearly used as a political instrument by different players, and they do not agree as to what should be included and what


24

not. It seems the wali in Sungai Kamuyang is trying to include as much as possible as it will increase his competences. The cases above show that the national law, the perda and the perna are contested by the various stakeholders. The main lines of conflict are, as mentioned

• National law vs. Customary law (UUD 1945 Pasal 33 vs Hak Ulayat) • Provincial taxes vs. Compensation to the villagers • Provincial and District Regulations vs. Nagari Regulations (Perda vs. Perna)

At present there is a process of complementing and amending the relevant legislation, but the lack of consistent application creates a scope for actors at the district and nagari level to pursue their interests. 5.7 Ethnic minorities within the Minang community The impression from the cases encountered in the field is that (i) the ethnic minorities are vulnerable when confronting the majority Minang population, and that (ii) within the minority population, the poorer and less educated are more exposed to injustices as the wealthier and better educated are more able to make use of the internal as well as the external national system. As shown in the cases above, newcomers have a weaker position within the community according to adat, even when they are adopted into a local clan. (See case of Batak, sexual assault, land case mediated in Batu Sangkar, the insult of the Dt. in Sumpur) The Chinese community has a special position and like most Indonesian provincial capitals, Padang has a minority ethnic Chinese community that mostly lives in the downtown area of the city. Also like many, but not all, this community is largely socially and economically separate from those originating from the archipelago, which includes Minang, Javanese, Batak, and Mentawai groups. This includes dispute resolution and despite regional autonomy and the “return to nagari” movements, and also their geographical concentration, the Chinese community is largely outside Minang adat and informal dispute resolution processes. Although the members of the Chinese community interviewed indicated that they try to avoid dispute with the Minang, disputes do naturally occur. If they a suffering a loss they keep quiet or try to resolve in privately, and if they are confronted in negotiations they quickly withdraw. If a full-blown dispute is unavoidable they prefer to use the state legal system as they feel their rights are more likely to be protected in such a forum. However, the Chinese community also has (ad hoc) mechanisms for resolving disputes within their own community, or rather there are key actors, such as the church, that play a role in dispute resolution. Generally, the Chinese communities prefer intra-community disputes to be resolved within the community, such as adultery, fighting, and misuse of funds. Although, criminal cases, as well as cases involving in non-Chinese will go to the court system. One case investigated provides a snap-shot of these actors, although it certainly does not provide a complete picture of intra-community dispute mechanisms. Like within the Minang communities, it seems the poor and powerless fair rather badly in the Chinese communities’ informal mechanisms. There are two main kongsi in Padang, that is HBT (Himpunan Bersatu Teguh) and HTT (Himpunan Tjinta Teman). They are membership associations, with each having 3,000 and 2,000 members respectively. The associations play a number of roles, including representing the interests of the Chinese community generally as well as forming a kind of social safety net for their poorer members. They are generally headed by respected and wealthy members of the community, including women.

Land conflict within the Chinese community The case concerns a block of land in downtown Padang. According to our interviews with one disputant the land was left to the poor by a wealthy Chinese businessman approximately 150 years ago. Many of the poor families now living on the site fled from Pasisir Selatan due to fighting in 1945, during which the father of the interviewee was killed by the local Minang people. Since then, but necessarily because of that, the kongsi HBT has managed the land.


25

In this case the chairman of HBT is attempting to transfer the land located in a prime downtown location to himself in order use the land for a rukun (a place of worship) for the local community. The ownership status of the land in question is somewhat ambiguous, but it seems the current Hak Pembangunan will expire and revert to Hak Milik which the chairman is trying to lay claim to. The main issue is over how much, the families who have been living on the land for the past 50 years should be compensated for the houses they have built. They have been offered Rp. 80 million but the informant we spoke to felt that Rp. 120 million was a fairer amount. According to our informant everyone but the one chairman on the board of HBT agreed at the first round of negotiations. All 21 families were represented at these negotiations, and another round will be held after the final (September) elections. The respondent indicated he was prepared to go to the courts if need be. 6 Local initiatives taken for strengthening access to justice 6.1 Local initiatives taken by women In Batu Gadang a group of women, organised through their joint business activities, have been active on mediating or addressing issues in the community, and in forwarding the needs of the community towards the local government, as illustrated by the cases below which should be seen as cases of advocacy as well as conflict mediation. The group has been supported by the NGO LP2M (Lembaga Pengkajaan dan Pemberdayaan Masyarakat) through technical support and training. They have been advocating that their group should be represented on the BPN, which is now achieved, and the goal is now to have more than one representative. In addition to these cases, the role of the women’s group as a mediator was also reported in cases of domestic violence.

Batu Gadang cases of women’s group advocacy and mediation Case of village road (2003) Each year the kelurahan authority requests the inhabitants to pay taxes, which people do as they do not want to incur fines. In return they expect the government to provide public facilities such as road access and clean water supply to the community. As no road has been constructed by the government so far, the women’s group has urged the local government to build the road. They have done so by discussing with the members of the community about the obligations of the local government and increasing awareness of what the community should demand. They have also advocated that the population should refuse to pay taxes unless they got a road in the village. This was done in collaboration with local residents, and included several dialogues with eth local government. As a result, the local government (kelurahan) built a road for the community. Dispute between members of the community (December 2003) A person renting a house from another party in the village requested to get the number of the electricity bill in order to be able to pay the electricity consumption of the rented house, as he was obliged to. However, the owner of the house instead provided the number of the electricity bill of his own house, which he at that time occupied. In the months to come the person renting the house thus paid the wrong bill, and the bill for the rented house remained unpaid. The failure to pay the latter bill upset the owner, who complained to the RT without any successful solution to the case. The RT tried to mediate between the parties but without success. The women’s group heard about the case, and offered to help to mediate. Together with the RT, they invited the parties to a musyawarah. All parties attended the mediation, the person renting the house, the house owner, the child of the latter, the RT head, and 3 women from the group. The chair woman of the women’s group chaired the meeting. By requesting an explanation from each party, summarising these and asking explanatory questions, the facts became clear and the position of each party was accepted by the other and a peaceful solution was achieved. The owner of the house agreed to compensate the additional costs incurred by the person renting the house as a consequence of paying the wrong, and larger, bill of the owner’s house. Both parties were satisfied with the solution mediated by the women’s group.


26

Case of clean water with Semen Padang (2002) The administrative area (kelurahan) of Batu Gadang is the area in which PT Semen Padang is operating. Batugadang comprises a hilly area with chalk deposits that are used by PT Semen Padang as the main resource in producing cement. The area has been exploited by the company for decades. The residents of Batugadang has for all these years felt the consequences of the pollution from the operations, such as itching of the skin due to polluted water and minimal access to clean drinking water. In addition, there is also a conflict over the rights to exploit the resources as the area is considered to be tanah ulayat by the residents. The pollution of the drinking water of the villagers was addressed by the women’s group. Together with the Gapermita (the district association of the business women) and the NGO that has supported the establishment of the women’s group, they start a dialogue with the local DPRD in 2002 to demand clean water. As a result, members of DPRD paid a field visit and subsequently demanded in writing that Padang Semen should provide clean water to the village. This resulted in the provision of clean water for the prayer house. But this was not felt as enough by the people, who demanded that PT Semen Padang provided sufficient clean water facilities. In the end, PT Semen Padang built 2 water tanks for the people, but with small pipes. The water supply has been good after the pipe was replaced with a new pipe. It is their strategy to strengthen the position of women, which is so closely knit with the political fora of the nagari, by supporting individual women, and to increase the independence of the group towards the KAN and to bring topics such as the environment, land ownership, and gender on the agenda. This has built the trust of the community towards the group as an agent of change, as can be seen from the above cases, and finally its recognition by KAN. 7 Lessons for the future: possible ADR initiatives In West Sumatra, adat is well entrenched among the Minangkabau. Possible initiatives to support alternative dispute resolution mechanisms must take this into account. On the other hand, as documented in the cases provided, adat mechanisms are not at presently ensuring the rights of women and minorities in particular and the poor and politically less connected in general. The premises of the recommendations are that alternative dispute resolution should meet the following criteria: Non-discriminatory Humane sanctions Satisfy basic precepts of justice such as the right to hear and be heard and the right of appeal Achieve community acceptance and local ownership.

In general, any recommendation should address the following factors: The weak position of women The marginalised status of ethnic minorities The different nature of internal and external problems faced by communities Difficulties with enforcement of informal decisions.

The suggested interventions are discussed with particular reference to how these points apply to the situation in West Sumatra.


27

7.1 Issues needing specific consideration There are several issues that need specific consideration in formulating possible interventions: • The specific position of the women within the Minang adat and how to strengthen their access to dispute

resolution processes. As discussed above, women are at special risk as holders of the lineage property, but not formally able to represent their cases. On the other hand, many women met with, showed that if they had the courage, the support, and the knowledge to stand up for their claims and confront the ninik mamak of their lineage and clan, they were relative successful. They have, so to speak, beaten them men at their own game. It is a culturally accepted way, and these women have gained great respect in their local community and become resource e persons and mediators also for other people.

• The vulnerable position of other ethnic groups in a society dominated by the Minang adat. As described

in the above cases, the Minang adat is exclusive. It puts other ethnic groups and even Minang travelling within the province, in a vulnerable position. Any ADR mechanism formulated, should take into careful consideration how it will affect the ethnic minorities in the province.

• The position of adat leaders is strong and there is no transparency and no accountability within the adat

justice system. This is the main source of conflict within the province. Many respondents suggested stricter criteria for appointment of adat leaders, and possibly a way of sanctioning the individuals who violate their mandate. But more importantly, a control mechanism is needed that can ensure a power balance and transparency and accountability. If the extensive control of land assets by the lineage heads leads was limited, land conflicts would likely diminish.

• The nagari is now both an adat and a governmental entity and this gives rise to competition between

traditional leaders and administrative officials. Any measures taken would have to ensure that they do not kindle the latent conflict between the traditional and the government leadership. If is it possible to create mutually supportive mechanisms, possibly with built-in mechanisms of control and balance, it is more likely to be effective than mechanisms favouring one party only. Careful reference to the national and provincial legal framework is also needed, although the present legislation leaves room for local interpretation.

• The quest for access to natural resources entails a different set of legal references used by external

parties, and this exposes the communities to exploitation. It should be considered that the resources of the community are at risk, and that these cases often involved considerable public as well as private interests. A mediated solution is often the most sustainable, but given the power imbalances between the parties, any interventions would have to compensate for this. Interventions would also need strong political support from national as well as provincial government, as the cases involve vested interests of many high ranking officials and private investors, or even the local government itself.

• The youth is used for maintaining public order, but no formal process is used and the sanction is always

violence and humiliation. As discussed above, the youth constitutes a kind of mob that is both escalating conflicts, but also assisting the nagari and adat leadership in maintaining public order and reducing conflicts. There is thus a potential for a developing the youth organisations into more conflict resolving practices. Given that they are already formally set up and running, and are hierarchically organised, access should not be difficult and probably quite effective.

7.2 Recommendations for future interventions All respondents support adat modes of dispute resolution, claiming that adat per se is a suitable tool, but many find that the human resources available are not qualified enough. The system is not blamed for its failures; rather the application by the individual actors is seen as the main flaw. There are demands for standard performance and transparency and thus training in adat and minimum requirements to be elected as a ninik mamak. It is highly questionable if such an effort can stand alone. It seems quite difficult to strengthen dispute resolution through the adat institutions, as they appear quite strong, and are a source of much power misuse. The suggestion of using BK as a counter balance to the KAN is structurally interesting, but needs to be supported by empowering the women involved. There are


28

individuals who have the potential to be change agents and advocators for women’s access to justice, and they may use BK as a vehicle when this is suitable. In the “return” to the nagari, the BK has a strategic position because it is anchored in the kaum and family. It is the task of BK to promote this strategic position of the women. • BK wishes to return the ideal of the Minang women to the women, primarily regarding family relations

and communication within the extended family. • BK wishes to strengthen the role of women in land transactions, where the signature of the women in

the kaum is formally required. When it does not work in reality it is because of the level of HR among the women.

• Regarding Perna, they propose that BK is introduced as a countersignature in land sales (now it is only KAN that has to sign).

• BK proposes that BK is included in KAN. The cases from Batu Gadang and other locations indicate that local NGOs play an important role in supporting the communities, particularly in cases with third parties. The NGO provide strategic advice and legal information and also represent a link to the wider society that is not immediately accessible for the villagers. The youth play a key role in handling minor criminal offences and preventing conflicts from erupting into more destructive violence (although they in one of the above cases were escalating the violence at some point). However, there is a considerable potential in formalising this role and providing the youth leaders with more appropriate tools for leadership and conflict management. The proposed approach will be to identify “change agents”, individuals with the potential to become focus of reform. These could for instance be women who are interested (BK or not). It is likely that most communities need heavy support from NGOs to be able to forward their cases against the government or private investors Mediation would be ideal, as long as it is based on, but not tied to the adat. Great local potential, but implementation would have to be considered carefully, not to get into opposition to the adat system, but also not to be subservient to it. It was proposed by the judges in Batu Sangkar to strengthen local traditions for musyawarah as they may be more efficient and culturally acceptable then the court annexed mediation facility. This could be done by introducing mediation skills and some legal knowledge. Based on the cases discussed above and the analysis, there are some recommendations for possible future interventions to strengthen the VJA in the province. It is recommended that pilots are done on a small scale and in carefully selected areas/institutions in the initial phase. It is recommended to consider:

• Strengthen the position of local communities through legal assistance, increased knowledge and

empowerment. Cooperation with local NGOs might be efficient. Legal counselling, insight into official documents and support to voice their concerns is much needed, and could prevent many local conflicts. Possible introduction of provincial facility to handle cases with third parties. Funding needed to support community if subsistence access is threatened. Empowerment in terms of improved organisation and means of action needed. Initiatives must be supported by legal framework and political will at national and provincial levels.

• Strengthen the position of women through legal assistance, increased knowledge and empowerment.

Cooperation with local NGOs might be efficient. It is recommended to work with potential individuals as well as the BK. Women’s organisations should bee seen as having wider potential as mediators and conflict workers in local communities. Possible counter balance to power vested in male offices in both adat and government can only spring from increased empowerment of local women.

• Formalise the role of BK in KAN in order to ensure the consent of the women before sale and pawning

of lineage land. BK should have an officially recognised role in sale of land as integrated partner in KAN procedures. This initiative is linked to the empowerment of women as above, as it depends on their support if it is to work in practice. Establishing a formal institution is not enough.


29

• Identify possibilities to build on adat process of musyawarah but ensure accountability and possibilities for appeal. This is not necessarily in contradiction to the existing adat, but it can be used to strengthen the relevance of the adat process of conflict resolution in the communities. It will require the collaboration of the adat leadership and the nagari government, as well as support form legal aid institutions. Capacity building in terms of mediation skills can be targeted both at the nagari administration and the adat leadership. It is essential that the local women are heard and involved as they are the main stakeholders.

• Strengthen a decentralised system for out-of court mediation, ensuring that non-judges are included as

mediators. This can possibly be done in conjunction with the above measures, where nagari leadership and adat leaders are trained in mediation skills. Out-of court mediation needs to be accessible and information about it effectively distributed. Collaboration with local judges, who are familiar with Minang adat, is needed and has to be facilitated by the local courts. Scope of cases to be mediated could be extended to include minor criminal offences (requires change of present mandate) and time frame for mediation must be more flexible.

• Include the youth organisations (Pemuda) in training in conflict resolution. This would require a specific

mandate for eth youth organisations within not only the adat but also the nagari structure. Important to secure accountability and supervision.

Each of these recommendations will have to be consulted with the local stakeholders and formulated in detail.

7.3 Follow-up actions taken The consultations in December 2004 included government at provincial and district levels, as well as judges and mediators in the local courts, the police, and members of the local communities, women and the youth in particular. The seminars and workshops were held in Padang and in Pasaman Barat. Due to the format of the seminars, it was only possible to exchange views on the issues raised, not to discuss actual commitment in future initiatives. Additional meetings with the local government and the local judiciary, and other key stakeholders will be needed to ensure their commitment and participation in the initiatives to be taken. The following specific steps are recommended and initiated as the first follow-up phase: There are three main groups that could be established, starting with the first group, and then following up with the last two groups as resources are available. The approach should initially be to individuals known by the team to be interested in strengthening access to justice and being in a position to drive local initiatives. The proposed working groups are: Group 1: How to increase the role of women in disputer resolution. Participants will be BK, women’s NGO, and activists groups and individual that has been identified as potential agents of change. The initiatives taken are • Identify how the BK can get at formally recognized status within the KAN and ensure that BK can be an

instance of appeal for land cases where women feel that their rights are not considered. • Identify way to strengthen the position of women within the local communities. Including, BK, BPD.

Including legal information. • Make action plans for the above. • Socialize topic to other women and relevant institutions. This group had been established and is working. Group 2: How to strengthen the performance of adat leaders and wali nagari in dispute resolution Participants: Biro Hukum, Biro Pemerintahan Nagari, Legal assistance NGOs, Pengadilan Tinggi, Pengadilan Negri, KAN. The possible actions to be taken are: • Identify needs for mediation training for adat leaders and wali nagari. • Identify need for legal information at nagari level. • Make plan for how to implement activities, trainings, dissemination of the above.


30

Group 3: Legal initiatives that will support local conflict resolution Participants: Biro Hukum, Biro Pemerintahan Nagari, Legal assistance NGOs and other relevant NGOs, Pengadilan Tinggi, Pengadilan Negeri. Possible actions to be taken are: • Identify initiatives to be taken to clarify status of KAN and wali nagari in terms of perda • Initiatives to strengthen role of KAN and wali nagari as mediators in local conflicts. • The recognition of decisions reached at village level by the courts. • Clarification of use role of police in local disputes, including the enforcement of court decisions.


31

8 Case summaries

Case summary 1: The case of insult of lineage head in Sumpur Sources: Dt. Rangkayo Basa, Dt. Basa Nan Tinggi, Mrs. Gus and her husband, Uni Des (local woman in the lineage of Dt. Rangkayo Basa) The parties: The two parties are living next door to each other. Gus is not originally from the village, but has moved there since she married a local fisherman. This is not in line with the traditional uxorilocal marriage, but she came from a mountain village with no fishing grounds, and they decided to move to his village since it had access to the Singkarak Lake. She is now helping with processing and selling the catches. Datuk Rangkayo Basa is, as the title shows, the lineage head of a different lineage, and earns his living by being a carpenter and day labourer. Chronology: The conflict began about a year ago, when the two children of Mrs. Gus and Datuk Rangkayo Basa had a fight resulting in verbal insults being exchanged between the parties. Gus was upset as her child was the younger one, and has before this incident also suffered bruises from the child of Dt. Rangkayo Basa. She addressed him “wa’ang” (you), although in the local adat, lineage heads must be addressed “Datuk”. It should be noted that in the adat of Sumpur, which is Bodi-Caniago, only incumbents of adat titles are called “Datuk” whereas in the surrounding villages, including the one Gus came from, “Datuk” is a generic term for all men of enough age to be considered a grandfather in relation to the speaker. The verbal exchange was overheard by some of the other neighbours, who happened to be kemenakan to Datuk Rangkayo Basa and the issue was immediately spread in his lineage and resulted in anger among his kemenakan, who were gathering around the house of Gus. They subsequently submitted a written complaint about the insult according to adat to the office of KAN. About a week later, the board of KAN invited the members of KAN to discuss the matter. The members of KAN are all the lineage heads and thus only men. For the first meeting they also invited Gus to meet before KAN and clarify her doings. At this meeting, which was also attended by Datuk Rangkayo Basa as a lineage head and member of KAN, Gus was only accompanied by her husband and the mamak of her husband’s lineage. She was the only women in the meeting, among some 30 lineage heads in formal adat attires. According to Datuk Rangkayo Basa there was no negotiation (berunding) because this was clearly a case of adat violation. In the meeting Gus was reprimanded by the clan heads, particularly those closely related to Datuk Rangkayo Basa. “She was represented by the mamak of her husband, who did not have much education and who was not clever in responding to the questions. If her ninik mamak had been educated (in terms of adat) she could have won, or at least the fine would have been nasi lemak (glutinous rice meal to be served to the entire nagari)” is the evaluation of Datuk Basa Nan Tinggi who at that time was the chairperson of the KAN. The ninik mamak of Gus lived about 10 km away in her village of origin. According to the husband of Gus, they had not involved the family of Gus because they did not want to extend the issue. The first meeting resulted in the decision to form a team comprising three members of KAN who should find additional information about the case and compare to similar cases in neighbouring nagari, since this was the first case of its kind occurring in Sumpur. In the second meeting of KAN it was agreed that Gus was in the wrong and she was given the adat sanction of paying “gold money” (traditional measurement of fines, equivalent to Rp. 300.000 at the time) and present the money in a carano (adat brass container) as a sign of her asking forgiveness from all the ninik mamak as well as serving the nasi lemak to the entire nagari. “I really was opposed to that sanction. We were both guilty. He (Datuk Rangkayo Basa) also insulted me. But my husband said that I should accept it, so in the end, I did” explained Gus. She said that she just wanted to say “No” in front of everyone, because she felt the fine was so unfair, but her husband held her back. When the fine was accepted, Datuk Rangkayo Basa said that the gold money would be enough.


32

In the KAN meeting hall, a month later, the adat ceremony took place where Gus brought the carano with money and in front of all the ninik mamak and all the villagers watching asked forgiveness from Datuk Rangkayo Basa and all the ninik mamak of Sumpur. “It was not so much the money after all, but the shame of having to ask for forgiveness in front of all those people, the loss of face….” says Datuk Rangkayo Basa. Analysis and comments: Both Datuk Rangkayo Basa and Gus expressed that they were satisfied with the outcome of the process and the decision of KAN. They are still neighbours and living peacefully and friendly together. But when Gus was asked without any of the adat leaders being present, she very directly expressed that she felt that the sanction was not fair. “This is not the first time Datuk has been addressed with “you” by someone. Even his kemenakan do so. But there has been no case of sanctions before.” She regrets that Datuk was not given any sanction was so ever, even though he also insulted her. According to Datuk Basa Nan Tinggi, the members of KAN actually realised that both parties had a share in the insulting. “But the ninik mamak wanted to give a lesson. Now many young people do not respect their mamak.” The then Chairman of KAN acknowledges that this is not the first case involving Dt. Rangkayo Basa because he is not taking well care of his office, primarily because of his poor economy. He also gives another analysis of the case: There was social envy that Gus has managed her new business successfully and already managed to build a house in the nagari, whereas the Datuk Rangkayo Basa was still living in a bamboo hut with no secure income. The fine paid go to KAN, not to Dt. Rangkayo Basa. If Gus had not paid she would have been socially excluded from the nagari (“dibuang sepanjang adat”). Dt. Basa Nan Tinggi said that actually the fine should only have been nasi lemak (this is a traditional meal which is then served to all in the nagari, estimated to be about 20 kg of glutinous rice, and 500 bananas with the herbs required to cook it). Gus was also sentenced to pay this, but at the last session, after she had accepted the fine, Dt. Rangkayo Basa asked that it be reduced and that she should only pay the Rp. 300.000 Gus had not been formally adopted into a local clan and thus had no clan head to speak her case. She was in adat terms still an outsider to the village. 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 KAN. Having learned from the experience, Gus was adopted into the clan of Datuk Basa Nan Tinggi, who will represent her in the future in adat cases. There are no channels for the women to represent their own interests. The BK was not involved in this case.

Case summary 2: Tanah ulayat of Nagari Sumpur Nagari Sumpur is located in the kecamatan of Batipuh in the kabupaten of Tanah Datar. Interviews were held with the wali nagari, the vice chairman of KAN Dt. Basa NanTinggi, and women in the clan most involved. The case was brought to the attention of the research team by the fisherman who is the secretary of the association of fishermen around Singkarak Lake. The case remained unresolved at the time of the interviews. During the visit it was not possible to interview the camats of the two kecamatan concerned, nor the members of the Bunga Tanjung using the land. But as the case turned out to be more of an internal affair to Sumpur it is included in this report. The lineage heads involved are all in Jakarta. The contested issue: 1. The conflict is over approximately 100 hectares of agricultural land located along the border of nagari

Sumpur and the neighbouring nagari Bungo Tanjung. The land is cultivated by residents of both nagari and is planted with perennial crops, primarily coffee.

2. The people of nagari Sumpur claim that the land is their tanah ulayat, land held as common land by the nagari under customary law and to which only usufructuary rights can be held.

3. The residents of Bungo Tanjung have been paying an annual rent for their use of the land to the nagari Sumpur, but have since 1987discontinued the payment claiming that they own the land as individually held property (hak milik). This claim is contested by the nagari of Sumpur with reference to the claim that the land is their tanah ulayat.

The history of the land: 4. The land was cleared from primary forest during the Dutch colonial period. It was used for grassing

animals and for annual crops (tanaman mudah). It is not generally permitted to plant perennials on common lands, but it was allowed on the condition that the harvest is shared 50/50 with the nagari.


33

People planted primarily coffee. But it was not tended to on a regular basis. In the 1940’ies and 50’ies, and again in a period in the 1960’ies, the land was left due to the security situation. It grew back to semak (secondary bush growth). Gradually the land was cleared again on several locations. Since many people from Sumpur lived in the rantau, residents of Bunga Tanjung used some parts of the land. They used the land for grassing animals and gradually began to plant annual crops on it. These crops were then replaced by perennials, such as coffee, petai (stinking bean), and cloves. Land rent was paid to the nagari of Sumpur for use of the land.

5. The conflict over the land has resulted in fighting and the killing of a resident from Bunga Tanjung (year unclear).

6. The case was allegedly brought to court in 1955 and Sumpur won the case, but it is unclear if this is exactly the same land as the area disputed now.

7. Official persons have been called upon to mediate in the conflict: the MUSPIKA, the KAN, and the BPN have all tried to facilitate a solution. The former village head (kepala desa, prior to the abolition of the desa structure in 2001) had called upon the camat, who made several investigative visits to the location with the police and the head of the local military unit (koramil) to verify where the boundaries between the villages were. Concrete pillars mark the boundaries and in 2000 the camat facilitated the re-mapping of plots used for cultivation.

The present stakeholders and their actions: 8. The wali nagari of Sumpur see the conflict as being between the nagari of Sumpur and the nagari of

Bungo Tanjung. The wali nagari claims that there are receipts for the payment of rent for many years, maps from the Dutch colonial administration, and a letter from the bupati of Tanah Datar that proving that the land belongs to Sumpur. The wali has been writing to the bupati and met with him to ask for his mediation in the conflict, to no avail so far. He is now contacting directly and on an individual basis the residents of Bunga Tanjung using the land to convince them to pay the rent. He will try to raise the case with KAN again. The wali nagari of Sumpur is prepared to take the case to court if necessary, and people in the rantau support him. He says that one of the problems is that the former village head and camat are no longer in office and that the case starts all over again every time there is an new official appointed who is not familiar with the history of the case and that the residents of Bunga Tanjung in the meantime have moved some of the concrete pillars delineating the border. Allegedly, it is the leader of a farming group (the former village head of Bunga Tanjung), who instigates the conflict with Sumpur. That they have no claim to the land is also supported by the fact that they are not willing to document their ownership by land certificates or other official documents, according to the wali.

9. The Dt. Basa Nan Tinggi, vice chair of KAN Sumpur sees the conflict as primarily an internal case in

Sumpur. The reason is that several lineage heads in Sumpur allegedly have sold or pawned land plots in the tanah ulayat to residents of Bungo Tanjung. The latter thus have no reason for continuing to pay rent to Sumpur. The chairman of KAN (based in Jakarta) is not acting on the case, and now other people from Sumpur living in the rantau are investigating the case through their organisation IKES (Ikatan Keluarga Sumpur). There is a similar case at the market of Sumpur where people from Bunga Tanjung have erected shops without the permission of the people of Sumpur. But when this issue was raised, the vocal person was severely beaten up by the staff of the wali. When they were subsequently arrested, but they were allegedly released after the wali went to the police office and interfered. The wali is suspected of receiving bribes/share of profits (bagi hasil) from the Bunga Tanjung shop owners at the market.

10. The two camats have attempted to mediate in the conflict, to prevent it from erupting into violence.

These efforts are still ongoing, but due to public holidays, it was not possible to interview these parties during the visit. The present incumbents of the camat offices are both new and may not be familiar with the background for the case.

11. The women of Sumpur that the team talked to knew about the case and agreed that their lineage heads

selling and pawning of the land had complicated its solution. This was allegedly done in collusion with the former village head of Sumpur. None of these will acknowledge their mistake and therefore the case cannot be dealt with. The land in question is located along the watershed between the two nagari, and it is much more easily accessible to the people from Bunga Tanjung who live on higher lands on the other side of the watershed. Access from Sumpur is very steep. The value of the rent of the land has increased since the prices of coffee and cloves are high. This has thus become an important income


34

source for the nagari, particularly now that the nagari is a formal entity again. The women have not taken any actions to solve the case and consider it a matter between the lineage heads.

12. The secretaries of the fishermen’s association says that the case is about the boundary between the two

nagari and that all boundaries are unclear and have been disputed for years, resulting in a series of meetings with the village heads, the camat, and the bupati.

Analysis of the present status of the conflict: 13. The alleged violation of adat by the lineage heads themselves, the supposed guardians of the tanah

ulayat, makes it impossible for the lineage heads to raise the case with the adat leadership in Sumpur, and thus there is no formal access to settle the case through negotiations with the adat leadership of Bunga Tanjung.

14. It is questionable that the case will be brought to court by the nagari of Sumpur if it is true that the land has been sold off by lineage heads in this nagari. The KAN seems not support a court case, since it would make public that the adat has been violated and residents of Sumpur been deprived of their land for the benefit of a few lineage heads able to misuse their position. Such publicity is highly embarrassing according to adat, not only for the lineage heads, but for the entire nagari.

15. It shown that there is a big disadvantage if no check and balances for the adat institution (or every institutions).

16. It is possible that the conflict erupted again since the nagari is now the administrative and territorial entity, rather than the desa, and stakeholders can act in the name of the nagari for the tanah ulayat.

Case summary 3: The pawning of the lineage land of Ibu Marnis in Sumpur Source: Mrs. Marnis, Sumpur and her husband, and Ibu Des (local woman) Mrs. Marnis has a younger brother who was appointed mamak panghulu waris, or legal representative of all the women in the sub clan (rumpun) comprising Marnis and all her daughters. Since a long time, this mamak often pawned of sold the ancestral land (harta pusako) of the family without the consent of the women, whether the mother of Marnis or Marnis herself. In 1983, the mamak planned to pawn part of a rice field owned jointly for the needs of his child, who had accumulated debt. A usual, the mamak, did not ask for the consent of Marnis or her mother. But they got news of the planned pawning and had objections. The mamak began to intimidate them, by throwing stones at the house (which in the Minang adat represent the lineage), and by refusing them to bring the rice harvest to the house (an important ritual in the rice cultivation cycle, supposed to secure a good harvest in the future). He also came to the house of his sister Marnis, who was nursing her child, bringing a parang and threatening to kill her and the baby. The mother of Marnis was afraid and wanted to give in, but Marnis still objected, so the case was brought to the 4 ninik mamak or lineage elders in the jurai (the extended lineage). Marnis hoped that the ninik mamak would advise or put pressure on her brother so that he would acknowledge his responsibility to protect the harta pusako and not use it for his private purposes. Nut what happened was that the 4 ninik mamak agreed to the plan to pawn the land out of compassion for the mamak who had incurred a debt. Rather than risking the embarrassment of the child of the mamak being taken to the police due to his debt, the 4 ninik mamak urged Marnis to sign the letter of agreement to the planned pawning transaction. She felt forced to sign, but insisted that they made a written agreement that the mamak should not in the future sell or pawn lineage land without the consent of the women. This made the mamak upset and he subsequently sold some other sawah belonging to the lineage in 1984. Although her brother has now passed away, Marnis still has to repay the land pawned. She has been able to reimburse about half of the land. It is difficult to get the rest back as the price of gold has increased (pawning is done in gold units) and the pawning has increased since the land has been shifting hand several times.15

15 If the pawn is not paid after the agreed period, the pawning is renewed, possibly changing hands, and the price thus increases. According to Marnis this is not in accordance with the national law or with Islam.


35

When asked what were the factors preventing the kemenakan and in particular the women from confronting their mamak, Marnis reported that the influence of the mamak within and outside the clan is very big and decisive, particularly regarding the women, for instance when a daughter has to marry, KAN will request a letter of clarification from the mamak. Therefore, if there is not a harmonious relationship with the mamak, the women and their daughters may face many problems. It is in the regulation of KAN that the ninik mamak should sign approval of the marriage of his kemenakan. ”Jaga nama lebih penting dari harta perempuan” -” mengalah selangka untuk menang berapa langka.” (The reputation of the mamak is more important than the property of the women - women have to be accommodative in some matters to win in others.)

Case summary 4: Women vs their lineage head in Gunung Syarik Source: Mrs. Afrida (activist in LP2M, member of KPI), Kelurahan Gunung Syarik – Kecamatan Kuranji Afrida belongs to the Jambak Nan Baduo clan from the nagari Pauh. But the clan title of the Jambak Nan Baduo is held by another part of the family as Afrida’s lineage could not afford to pay for the inauguration ceremony of the clan head. According to Afrida, the ninik mamak since 1987 often sell land owned by their kemenakan. Once, she saw an official from the Land Registration Office (Kantor Agraria) measuring the land of her mother. She told him to stop and called the village head to stop the measuring. When the ninik mamak heard of this, he came and bringing a knife he angrily threatened her, asking why the measuring had been stopped. Afrida replied that according to the Minang adat, women have more rights over the land than do the mamak. The land was not measured, but in the end it was sold off anyway. Afrida feel that her family is often threatened, and her mother is still afraid of the mamak (who is her brother). Afrida wanted to report the threats to the police, but her older sibling prevented her, telling her that in this area no one reports to the police. Even though Afrida basically trust the police and the court more than the process of musyawarah, she still does not believe that reporting to the police is the best way out of the conflict. She decided not to report to the police out of fear that the house of her mother would be demolished by the police. The ninik mamak persists in selling the land of the lineage. But Afrida always refuses to sign the letter of agreement to sell the land. The ninik mamak has now proposed to divide the land in three equal portions, since there the lineage comprises descendents from three sisters two generations back. The ninik mamak does not have any sisters, and his sub-lineage has thus ended, and their land should be returned to the women of the extended lineage. But he feels that he has a right to part of the land. Once, the land of Afrida was also sold by the ninik mamak. She decided to solve the case herself, not involving the hamlet head (RT). Her lineage subsequently held a musyawarah, chaired by the ninik mamak in question. They made an oral agreement between the ninik mamak and the kemenakan that they should not sell the land of the latter. The musyawarah took place nearly every week, particularly in the period when the problems were very tense. During the meetings the role of the women was only domestic, to serve drinks and food for the guests attending the musyawarah. But Afrida refused to be serving, and sat in the meeting hall and followed the negotiation as a way of protesting against the land sale. According to Afrida, she feels that the musyawarah and its results have not been fair towards her as the victim. Because the agreement made was orally, it has no strong legal standing and can easily be circumvented by the ninik mamak. This was proven when the ninik mamak pawned the rice fields owned by the kemenakan, even though the other mamak in the end were able to repay it. Afrida is an autodidact woman, who has learned about the mechanism and sayings of adat, while working in the rice fields with her parents. She is therefore able to speak to the ninik mamak about the concepts of low and high ancestral property (harta pusako tinggi and harta pusako rendah). None of her siblings are able to help her, even though they have a higher education, only one mamak who is willing to help her. She often confronts the ninik mamak during the musyawarah of the lineage. In 2000, Afrida proposed that each sale or pawning pusako land should be signed by all women, but none of the other women dared to join her protest. During the musyawarah Afrida insisted that all sales must be agreed on by all the clan heads. At present, the ninik mamak are no longer doing just what they want


36

regarding sale of lineage land, because they now have to obtain the signature of the other ninik mamak. After the return to the nagari, there is an agreement that all clan heads have to sign. Upon our second visit to Afrida in September 2004, she proudly showed us that the mamak had entrusted all valuable lineage documents and heirlooms to her as the guardian. By her ability to learn the “game” of adat and be vocal during the meetings with the lineage heads, she had gain their recognition that she was more knowledgeable than they were in these matters. They now come to her to consult her in issues relating to the lineage and its history and property. The case shows that a woman who are willing to stand up for her claims on the terms of adat may have a good chance of winning her case.

Case summary 5: Sexual assault case Source: Mother and father of victim, police officer in charge, and Kepala DINAS Pertanian. This case concerns the alleged rape of a 5 year old girl in Kabupaten Kinali, West Sumatra. The alleged offender is a 22 year old unemployed male who still lives with his parents. The two families are both Minang but are from different areas of West Sumatra to where they now and hence are not “locals.” Both the mother of the victim and the father of the offender work for DINAS Pertanian and thus their family homes are right next door to each other in office provided housing. The family of the victim seemed isolated from the local village. The father of the victim works in Banten, an island near Singapore, and is regularly away from home. Both the families have formally been adopted into a local clan (bermamak), however this does not seem to have resulted in there close integration in the local community. Chronology The incident occurred in February 2004. At the time the victim was at kindergarten and, given both her parents worked, would spend time most of the day at home alone with her young sisters and brothers. The offender, being unemployed and apparently socially withdrawn would also play with the children. Exactly how the young girl was abused, it is unclear. It is clear, however, that she was molested completely inappropriately in a bedroom of her own house. On the same day the mother learnt of the incident from one of the other children. Indicative of her family’s relations and integration with the community, the mother did not feel comfortable approaching her ninik mamak nor the village head. She was also concerned about privacy, and did not want her child to be stigmatized because of the incident. Thus initially the mother attempted to resolve the incident informally directly with the parents of the offender. The father of the victim preferred that the incident be forgotten, however the mother was determined that attain some form of “justice.” At the initial meeting between the mother of the victim and the parents of the offender, the latter acknowledged that their son had acted inappropriately. The mother of the victim requested that some kind of material or monetary compensation was due. This the parents of the offender would not agree to, as they did not know the extent of the assault/crime. Later, the Kepala DINAS Pertanian learnt of the incident, according to his account via rumours and called the mother of the victim to his office. According to the mother of the victim, the head promised that the duty station of the offender’s family would be changed. This alleged promise seems to have somewhat satisfied the mother as it seems to have stalled negotiations, and indicates that the mother considered the families close living proximity to be inappropriate given the situation. However, the Kepala DINAS claims never to have indicated the offender’s family would be moved from department’s housing. The Kepala did however attempt to arrange a meeting with both the parties but the father of offender refused to attend. Further, according to the Kepala DINAS this type of incident should be resolved by the ninik mamak. These initial informal meetings took approximately two months and it was not until after, that a medical examination was carried out on advice from a NGO. The mother requested assistance from a NGO based in Padang, approximately 2 hours from Kinali. She had heard about this NGO through some of its members in the village. The NGO suggested the mother have the child medically examined and instigated formal proceedings by engaging the police. This the


37

mother did, paying Rp. 30,000 to see the doctor, who determined that the young girl’s hymen was still intact, thus precluding the possibility of penetration/rape. However, because of the elapsed time, the doctor was unable to ascertain exactly what physical damage was done. Because of this the police believe there were no legal grounds for sexual assault, and therefore no case. The opinion of the police is that there is no case, that the mother of victim is actually attempting to take advantage of the incident to coerce/extort compensation from the alleged offender’s family, and that the matter requires reconciliation rather than resolution. The police noted that the offender has acknowledged that he “touched” or stroked the girl’s genitals but only caressing and not violently or aggressively. The claims of psychological damage need, if to be considered legally, a professional examination, which is unlikely in Kinali because of limited access to such services. The police also noted that the father of the offender has been at the police station three times trying to resolve the case, and that they have proposed informal reconciliation but this has been rejected by the mother of victim. The case remains unresolved and the two families go on living next door to each other. Given all informal and formal mechanisms have been largely exhausted in seems without a sensitive and amenable reconciler, the case will remain as it is. Analysis • That the families are from outside the local community, and are socially isolated, certainly seems to have

an impact on the acceptance and use of local and informal resolution mechanisms. • Further the informal processes seem to be considered too public and this has an impact on whether they

are considered appropriate and utilized. This may also be the case, for example, with other personal disputes such as domestic violence. There is no actor who can informally, sensitively and discretely mediate and reconcile such cases.

• That the mother is more concerned about the child being stigmatized rather than the offender, and the attitude of the police, indicates that sexual assault is not strongly considered a punishable criminal offence.

• An optimal solution would, rather than seek “justice” through the courts, have the offender and/or family move away and compensate the victim’s family for costs incurred.

Case summary 6: Tanah ulayat of Nagari Sungai Kamuyang and HGU

Nagari Sungai Kamuyang is located in Kec. Luhak, Kab.50 Koto Interviews were held with the wali nagari, the secretary of LAN, wali jorong, and men and women in the village. The case was brought to the attention of the research team by Mr. Rahmadi from the NGO KIBAR during the initial meetings in Padang. The contested issue: 1. The conflict is over approximately 66 hectares of agricultural land located within the nagari of Sungai

Kamuyang known as Tanah ulayat Lukuak Nan Gadang.. 2. The land has since 1968 been used a private investor P.T. Jenyta Ranch as HGU (Hak Guna Usaha). 3. In 1998, the present HGU expired, and the people of nagari Sungai Kamuyang did not agree to its

extension and occupied the land. 4. The de facto solution is that the land can be used again as tanah ulayat by the residents of Sungai

Kamuyang, but its formal status, and thus the final solution of the conflict, remains unsettled. The chronology of the case: 5. The land was lent to the Dutch for horse raising about 1920 (Induk Perternakan Padang Mengatas) with

out compensation. 6. Part of the tanah ulayat was since used by the government for a seedling facility (Pembibitan Makanan

Ternak). The villagers used the remainder of the land and this is the part now contested. 7. In 1968 PT Jenyta Ranch obtained Izin Pemakaian Tanah Sementara for ranching to the part of the land

used by villagers by Kepala Inspeksi Agraria Sumbar through a permission letter from the Governor. The ninik mamak apparently did not know this and had not agreed to it. They were afraid to protest. The owner of PT Jenyta Ranch was a military person (Amran Bur).

8. The wali nagari (this was before the UU 5/79) called for a meeting between the KAN, the bupati, and the investor. KAN demanded part of the income from the ranch, but the investor did not agree to this, and the bupati allegedly slammed his fist in the table and claimed that those who did not agree to give up the


38

land would be considered to be members of the Communist Party (Gestapu/PKI), a very severe threat only 3 years after 1965.

9. In 1995 the PT applied for an extension of the HGU. 10. In 1996, when the people from the rantau come home after the fasting month, a Musbang was held and

the issue of the status of the tanah ulayat was discussed. The people from the rantau helped to conceptualise it, and KAN asked for advice from LBH in Padang, informally. The issue was that the boundaries of the land were not clear and not in accordance with the HGU.

11. In December 1996, the BPN TK I informs PT Jenyta that the have not been able to measure the land, and that they are awaiting that the PT solves its problems with the local population (we have copy of this letter).

12. In January 1997 KAN meets with the BPN TK I to find a solution. BPN agrees to prove that the contested land is identical to Erfpacht 203/1929. This is an important point, as the Erfpacht land will be handed over to the government when the contract for the use expires according to national legislation. They request that the HGU is not extended before the status as Erfpacht is proven.

13. In February 1997 KAN issues a “life story” of the tanah ulayat, stating that it is the property of Nagari Sungai Kamuyang stating the borders of the land according to adat. They claim that these borders are not the same as those stated in the permission letter to PT Jenyta from the Governor.

14. In April 1997, KAN writes at letter to BPN TK I to inform about the background for the case and to request that the extension of the HGU is stopped. It claims that PT Jenyta has occupied the land illegally since 1968 and that they have manipulated documents and violated UU Agraria 5/1960. They request that the land is certified as tanah ulayat nagari Sungai Kamuyang. The letter also states the borders of the land as perceived by the nagari. If their request is not accommodated they will take the case to court, and they are threatening that they cannot be responsible for any actions taken by the people of Sungai Kamuyang if they learn that the request has been declined.

15. The people of the nagari blocked the entrance to the PT Jenyta Ranch and prevented the people coming to measure the land to do their jobs. They were also threatened. The people demolished the barbed wire fence around the PT. According to the secretary of LAN, they also threatened to burn down the buildings, but the LAN prevented this. The secretary of LAN demolished the signboard, and put up another sign (which is still in place today) saying that this is the “Tanah ulayat Nagari Sungai Kamuyang”. He was threatened by a brimob patrol asking him to pull it down, but he did not do so, so they pulled it down, but it was put up again. According to him, the actions of the people were spontaneous and driven by the deteriorating economy in the financial crisis in 1997, people were eager to get access to the land to be able to cultivate it.

16. In September 1997, the HGU was issued. 17. This HGU was used to obtain credit in Bank Nagari (Bank Pembangunan Daerah Sumatera Barat

(estimated about Rp. 600 million, but this could not be confirmed). The HGU was subsequently handed to Panitia Urusan Piutang Negara in Padang.

18. In 1998 the people began to cultivate the land. PT Jenyta had not used it for several years, although they still had guarded buildings on the land.

19. In May 1998 KAN organised a demonstration in front of the Governors office in Padang. About 2-300 people joined. A delegation was invited to meet with the vice governor. This one we need to follow up. I am not sure that a conservative institution like KAN was ‘behind the stage’. One of the young leaders –now he is the member of BPAN, said that it was more as a young movement and they ‘borrow’ the KAN’s legitimacy.

20. Two weeks later the vice governor inspected the location, but this was another vice, so he did not know the case.

21. In June (2276) 1998 KAN sent a letter to TK I BPN to revoke the HGU. 22. 1/10 1998 BPN writes Agraria in Jakarta to revoke the HGU. 23. 8/2 1999 Camat writes the 4 village heads and explains that the contested land is Erfpacht (verpanding)

205 and that the case thus has no chance of proceeding, even if the BPN has appealed to Mentri Agraria.

24. 20/5 1999 KAN replies to the letter from the camat, rejecting his claim and maintaining the agreement made with BPN.

25. The Perna on the tanah ulayat (issued 2003) is seen as a “declaration” and a “kepastian hukum” by the wali and the people in the nagari.

26. According to the Perna, the land is divided into plots of ¼ ha. 160 KK are presently using the land. Perennials can be planted on the land according to wali. The land rent (bunga tanah) is Rp. 30.000 per


39

year, but introduced on a gradual scale. If people are not paying, they lose the right to cultivate the land. People have to apply to the wali to get a plot.

27. Conclusion: the people of Sungai Kamuyang de facto use the land. It legal status is still HGU PT Jenyta. The Certificate is now controlled by the bank, as a guarantee for the loan given to PT Jenyta. There have been no further actions taken by any party as far as the people in Sungai Kamuyang know.

The present stakeholders and their perceptions: 28. The wali nagari of Sungai Kamuyang feels the following points are relevant to the case:

a. The perna states that the land belongs to Sungai Kamuyang. He claims that this is as good as a land certificate on the land. This is not in accordance with the perception of the government.16 “Makanya waktu itu saya katakan (pada beberapa anggota BPD yang kurang setuju dengan PERNA) kita harus melihat nilai politis dibalik Perna ini yaitu deklarasi bahwa tanah itu milik kita.”. This shows how the perna is used as a political declaration and bargain towards outsiders rather than as merely an internal regulation within the nagari.

b. The HGU has not been used for a number of years and that implies that the right to use the land is void.

c. In 30 years the PT paid no recontribution to the nagari d. If the PT Jenyta Ranch comes to Sungai Kamuyang and wanted the land back, wali will say that

now it was a different matter because now they have the perna.17 29. The KAN has been the main agent of the case (see comments above). They wrote most of the letters

with the support of people staying in the rantau. They organised the demo in Padang. A preparatory meeting was held in the Balai KAN where all Dt. were informed about the plans, and requested to call upon their lineage members.

30. The people in the rantau: The issue of the status of tanah ulayat was brought up by people from the rantau. Some of these are trained lawyers and are able to evaluate the process of obtaining the HGU, which they say are not in accordance with the UU Agraria (according to letter form KAN) because the boundaries are not correct, the HGU has not been countersigned by the KAN, and the permission has not been made public. They also draft the letter of 17.4.97 to BPN TKI to request the HGU application to be stopped. This letter is full of very precise juridical information and it is very unlikely that anyone in the village could have drafted it. People in the rantau have also searched the national archives to find the proof of the Erfpacht 203. A Dutch student, Irene, who did research in the village, has helped by looking for it in the Dutch national archives. It has not been found.

31. People of Sungai Kamuyang a. People working on the tanah ulayat at present informed that they used to pay Rp. 300.000/ha

per year to PT Jenyta, the last 2-3 years before the PT left the place. So only very few cultivated the land. The crop then was tobacco, but it needs a huge investment, so poor people cannot afford to grow it.

b. About 93 of 350 families in jorong Suba Ladung presently have allotted land in the tanah ulayat. A team consisting of village head, village secretary, and lineage heads selected the families. They should have a letter from their ninik mamak to clarify their socio-economic conditions.

c. Children inherit the land, as it is only use rights (“non-adat”). But the use rights are only held in 5 years, after which they are rotated. This will prevent people from planting perennials. Perennials can be planted along the boundaries of the plots, as these are not shifted every 5 years.

d. Payment has only applied in 2003, when it was Rp. 15.000 e. If people do not use the land, or do not pay the land rent, the land is given to someone else. f. People use it for livestock grassing and for vegetable growing. g. One year ago the wali wanted to use the land for orchid growing together with an investor, but

people refused. People will only participate if they are involved. h. One family cannot subsist on ¼ hectare, but it can be used to increase income. About half of

the plots are not used at present, but are growing with a tough grass, that is very difficult to eradicate. Some people do not use their land because they have land in other locations that they have to attend to. (Poverty profile on allocation??). To cultivate the land needs investment,

16 See notes from meeting with Kepala Biro Hukum dan HAM, Sumbar TK I. 17 There has been one project to establish “plasma” cultivation on the land, which was allegedly supported by the WB, but it did not succeed, and only the demo plot was planted. Possibly this ginger production was established very shortly. Allegedly, the PT bought up the production from local farmers as they had to produce a certain amount to get export subsidies


40

and therefore it is “not for poor people.” One informant told that they are 25 people working on ½ ha together to share the costs.

i. They do not know that the HGU has been extended, but think that they have been able, through their actions to prevent it from being so.

Case summary 7: The kelurahan Batugadang vs. PT Semen Padang The PT Semen Padang operates in the Kelurahan Batugadang – Kecamatan Lubuk Kilangan. The informant is Puti, a women activist, who is a resident in the area. She used to work in the PT Semen Padang, but now has a land dispute with the company Land case in 1983 The disputed land is the tanah ulayat of the people living at the foot of the hills where PT Semen Padang is excavating. The land dispute began in 1983 and peaked in 1992, when polluted and waste soil was piling up. As a consequence, the rice fields suffered drought or flooding of the houses of the villagers. However none of them appeared to speak out their problems until in year 1992 when Puti (a local women's activist who was working for one of Semen Padang's contractor/agency) commenced the advocacy and opened up a dialogue with the management of PT Semen Padang. Puti and another 19 families demanded justice through dialogue and protests against Semen Padang management. Initially PT Semen Padang intended to deliver compensation to disadvantaged communities, but the number of compensation was very much smaller than was expected. In the end, Semen Padang Management provided compensation merely for the paddy fields. On the other hand, the compensation was 10% deducted and given to local ninik mamak as an adat fee for using the tanah ulayat (in local term it's called "tai ameh"). The villagers rejected this kind of compensation and they proposed to have biannual compensations for loss of harvest. KAN and wali nagari urged the villagers to sell the land, but they did not want to. The case has not yet been settled. PT Semen Padang pays the local administration, such as RT, Rp. 20.000 as security fees and they become the subordinate of Semen Padang. They feel that their main role is to guard PT Semen Padang management and then try to encourage villagers to follow what management wants. Land case 2003 Ninik mamak offered to sell some large stones from a local river within the tanah ulayat to PT Semen. But the community refused to allow the sale, and proposed that only stones from the rice fields be sold. But the price offered was considered too low by the villagers, and as a result only stones from the fields of the ninik mamak were sold. People were afraid that the selling of stones may result in flooding and landslides. In Batu Gadang there is a clear difference between the women’s group on the one side who critically defend the rights of the community, and the KAN on the other side who defend the interests of PT Semen Padang.


41

9 List of institutions visited and persons interviewed Date Location Institution Name Position Interviewer1 17.5 Padang Lembaga Kerukunan Adat

Minang (LKAM) Nasrullah SH. M.H.

Vice Chairman All

2 17.5 Padang Universitas Andalas, Fak. Hukum

Dr. Takdir Rahmadi SH

Prof. All

3 17.5 Padang Universitas Andalas, Fak. Hukum

Dr. Ade Saptono SH MA

Antropologi Hkum

All

4 17.5 Padang Lembaga Pengkajaan dan Pemberdayaan Masyarakat

Lucy & Fitri

Chair and staff All

5 18.5 Padang Biro Negara, Kantor Govenor Busra Kepala Biro BS + LO 6 18.5 Padang P3SD Nawir Sikki, TR + DN 7 18.5 Padang Kibar Rahmadi All 8 19.5 Solok (part in conflict) M John Datuk

Rajo Jihin Lineage head All

9 19.5 Solok KAN Jasmadios/Dt. nan Barantai Ameh

Chairman All

10 19.5 + 20.5

Sumpur Wali Nagari Fahmi Wali All

11 20.5 Sumpur Ikatan Nelayan Selingkar Singkarak

Yus Secretary All

12 20.5 Sumpur (part in conflict) Dt. Rangkayo Basa

Lineage head TR + LO

13 20.5 Sumpur (part in conflict) Mother of Marnis Kemanakan TR + LO 14 20.5

+ 21.5

Sumpur KAN Dt. Basa nan Tinggi /Ammar I.A

Vice chair TR + LO

15 20.5 Sumpur (part in conflict) Dt. Sapadu Ketek

Lineage head TR + LO

16 21.5 Sumpur Mother of Lily + Mother of Des

Kemenakan TR + LO

17 21.5 Sumpur (part in conflict) Mother of Gus Kemenakan TR + LO 18 21.5 Batugadang Party in Conflict & Local

Activist Puti Community BS - DN

19 21.5 Batugadang Bundo Kanduang

Sjafni, Ina dan Tin

Member of Bundo Kanduang

BS -DN

20 22.5

Solok Party in Conflict & University of Andalas

M Jhon (Datuk Rajo Jihin)

Lecturer BS -DN

21 22.5

Cupak, Gunung Talang, Solok

Bundo Kanduang & Badan Perwakilan Nagari

Mother of Nofrida

Member BS - DN

22 22.5

Padang Lembaga Bantuan Hukum (LBH) Padang

Alvon Director BS - DN

23 23.5

Gunung Sarik Party in Conflict Lembaga Keuangan Perempuan (LKP) Indonesian Women’s Coalition (KPI)

Mother of Afrida Ketua LKP Member of KPI

BS - DN

24 23.5

Solok Kerapatan Adat Nagari Solok HM Rusli KH Sulaeman

Ketua KAN BS - DN

25 22.5 S. Kamuyang Kantor nagari H. Luzon Lanjumin B.Sc

Wali TR + LO

26 22.5 S. Kamuyang Kantor nagari Muswar Mo Sekretaris wali TR + LO


42

27 22.5 S. Kamuyang Jorong Suba Ladung: Afri.L.K Wali jorong TR + LO 28 22.5 S. Kamuyang LAN Maider/ Dt. Indo

Marajo nan Itam Secretary TR + LO

29 22.5 S. Kamuyang Dt. Senjayo + others

User of tanah ulayat

TR + LO

30 22.5 + 23.5

S. Kamuyang Men and women in coffe shop

Users of tanah ulayat

TR + LO

31 23.5 S. Kamuyang LAN Bagindo Saye Chairman TR + LO 32 23.5 S. Kamuyang Bundo Kanduang Mother of Ernis

Ramsis Chariwoman TR + LO

33 24.5 Padang Biro Hukum dan HAM, Kantor Govenor

Drs. Suherman Raza

Kepala Biro DN + LO

Date Location Institution Name Position Interviewer1 7.9 Padang Local media

Pengadilan Tinggi PBHI Sumbar LSM –Qbar Bundo Kanduang Sumbar Bundo Kanduang Sumbar Bundo Kanduang Sumbar

Bayu Kurniawarman Fuad Rifai Afrida Nur Ainas Abizar Rihaida Dahlan Rosnelly Boer

Local woman

Focus Group Discussion (FGD)

2 7.9 Padang LSM Nurani Perempuan Yefri Heriani

All

3 8.9 Pariaman Eti Jalia

Mother of victim

All

4 8.9 Pariaman Poltabes Padang Pariaman Petugas RPK

Delwati

Polwan All

5 8.9 Pariaman Dinas Pertanian Padang Pariaman

Nasirwan

Kepala Tata Usaha Dinas

All

6 8.9 Kinali Datuk Sahar

Kepala Jorong Enam Koto Selatan

All

7 8.9 Kinali, Padang Jiraik

Gusnarti, Opet, Uncu, Tati

Women’s Group

All

8 8.9 Kinali Syafnel (Bagadiang)

Kepala Jorong IV Koto

All All

9 9.9 Kinali, Kp Rambahan Dusun Air Putih, IV Koto

Zainuddin

Kepala Dusun All

10 9.9 Kinali, Pasar Tempurung

Hutapea

Kepala Dusun All

11 9.9 Kinali, Desa Alamanda

Helmat Jhoni

All

12 10.9 Bukit Tinggi Pengadilan Negeri Ketua Pengadilan Negeri

All

13 10.9 Bukit Tinggi KBH Bukit Tinggi Wahab Director All 14 10.9 Batu Sangkar Kantor Bupati Tanah Datar

Hardiman Kepala Biro

Pemerintahan Nagari

All

15 11.9 Batu Sangkar Pengadilan Negeri Haswandi, SH, MHum

Ketua Pengadilan

All


43

16 11.9 Solok, Nagari Paninggahan

KAN Janewar Dt. Tanpa Lawan

Ketua KAN All

17 11.9 Solok, Nagari Paninggahan

Zurbaini Dt. Sarajo

Ketua Pemuda Paninggahan

All

18 11.9 Solok, Nagari Gantung Ciri

Arnold Piliang Wali All

19 12.9 Solok, Nagari Dilam

Pardi Yosefa Zainal Dt. Rajo Manenggang

Sekretaris All

20 13.9

Padang Bundo Kanduang Sumbar Kelompok Perempuan Gapermita, Volunteer PKBI Sumbar

Rihaida Dahlan, Rosnelly Boer Sofni, Jasmaniar, Misnarni Wide

FGD

21 13.9 Padang Maria Chinese community

All

22 13.9 Padang ?? Chinese community

All

23 14.9 Padang PLT Pengadilan Tinggi Sumbar

Sekretaris IKAHI

All

24 14.9 Padang Pengadilan Negeri Kota Padang

Mahriyendra SH All

Participants in the seminar and workshop held in December in Padang and Pasaman Padang

Name Nagari/ Institution 1 Ruhaida Dahlan Bundo Kanduang 2 Kurniawarman Fakultas Hukum Unand 3 Ade Saptomo PSI Unand 4 Joni Saputra P3ML 5 Ade Abdurrahman P3ML 6 Syafina LP2M 7 Sri Setyawati FISIP Unand 8 Syafni Gapermita 9 Jasnidar Pemerhati Perempuan

10 Puput Wartawati Singgalang 11 Vino Oktavia PALAM 12 Bustanuddin FISIP Unand 13 Rifai Q-Bar 14 Yosefin Q-Bar 15 M. Ali Q-Bar 16 Afrida LP2M 17 Nurlaila Sitepu Nurani Perempuan 18 Elitadesva N. Nurani Perempuan 19 Asrinaldi FISIP Unand 20 Rahmadin Yusran FISIP Unand 21 Busra, SH Pemda Sumbar 22 Akmal Kanwil BPN Sumbar 23 Arsal Ummah Kanwil BPN Sumbar 24 Lusi LP2M 25 Titik Cynthia Pemerhati Perempuan 26 Doni Hendrik, SIP Limpapeh 27 Lany Verawati LP2M


44

28 Heri Sugiarto Padang Express 29 Admal Singgalang 30 Ira Azhar Haluan 31 Wide LPA 32 Arm. Bayu LSM Limo 33 Vidal Triza Pemko Padang 34 Rosnely Bar Bundo Kanduang

Kabupaten Pasaman

Name Nagari/ Institution 1 Abdul Hamid Sungai Aur 2 Islahuddin, ST Sungai Aur 3 Rusdan F Sungai Aur 4 Edwin Zaenal SP Pemuda Muhammadiya 5 Parlindungan Dosen STIT YAPTIP 6 Syarifuddin Masyarakat 7 Sapar Nagari Kapa 8 Yudisman Nagari Kapa 9 Irfawaldi STIT YAPTIP

10 Arifin Nagari Kapa 11 Naria Hendri Se’ Aur Yim 12 Ihsan Kamil IMYAS 13 Martini IMYAS 14 Akhyar Nagari R. Jonggar 15 Rajuddin Ketua Kelompok Tani 16 Alwi M Nagari Gunung Tulas 17 A Rizqon Hasan Ujung Gadung 18 Harapan Rimbo Binuang 19 Durrahmat Ujung Gadung 20 Herman P Ujung Gadung 21 Dina Susilawati Pasaman Baru 22 Novia Henni Pasaman Baru 23 Elvi Sofia Arfa Pasaman Baru 24 Amri Spd. Simpang Empat 25 Ali Limar Air Gadang 26 Andi Mulyadi Bj. Toman 27 Fitrina Ujung Gading 28 Yulmiati Ujung Gading 29 Desmawati Bundo Kanduang 30 Asrifa Bundo Kanduang 31 Basran LM Ujung Gading 32 Jalaluddin Ujung Gading 33 Surahdi LSM Gemuruh 34 Yuhendri Ujung Gading 35 TK. Hendri Eka Putra Simpang Empat 36 Burhandis, SH Pemda Pasaman Barat 37 Zulkornaidi, SH Pemda Pasaman Barat 38 Mahli Usman SP PDPM Pasaman Barat 39 KH Hasan Ma‘shum Manti Adat 40 Top Dores Tuo Waris Adat 41 Ahmad Hanif Gemuruh 42 Elifsan Gemuruh 43 Zulkifli Simpang Tiga 44 Asmuni HRP Biro Sumatera Express 45 Muklis Bid. Perhubungan Pasaman Barat


45

46 Elvi Fitria Arfa Mahasiswa 47 Rusmana BA PDPM Pasaman Barat 48 Adriwilza SE PDPM Pasaman Barat 49 Ir. Maiyusrizal LSM Eka Nusa 50 Thamrin SPSB 51 Dinul Husnah DPW Koppema 52 Zal Hadi Koppema 53 Zainul Huda AMPK - PETA 54 Arif Rahman Ujung Gading 55 Yasri Ujung Gading 56 Yuheldi Jambal 57 Roseli Simpang Empat 58 Adrianto, S.Ag. IMAPASBAR 59 Zulkifli, Spd Masyarakat


46

10 Glossary of local terms and abbreviations This glossary contains terms and abbreviations specific to the West Sumatran context. Indonesian terms are not explained, unless they have a specific meaning within the local context. Specific anthropological terms are also included to facilitate reading. Adat council The formal and joint adat leadership of KAN or LAN in the nagari BMASN Badan Musyawarah Adatdan Syarak Nagari BPAN Badan Perwakilan Anak Nagari, the legislative forum of the nagari BPN Badan Pertanahan National, National Land Agency BPRN Badan Perwakilan Rakyat Nagari, the legislative forum of the nagari, the name

chosen varies among the nagari Bundo Kanduang Adat council of women, less formalised than KAN and not included in KAN Classificatory descent system

A descent system where persons at ath sema genealogical level are addressed with the same term and often fulfilling the same role towards a person

Endogamous Marriage is only permitted within the unit in question Exogamous Marriage is prohibited within the unit in question Extended families Families comprising several generations sharing a common ancestor Hak milik Private property held by individuals and often certified by BPN. Harta pusako rendah

Low ancestral property – property that has been acquired and not yet been transferred as high ancestral property.

Harta pusako tinggi High ancestral property is held by lineages or clans and cannot be alienated without specific reasons. Women of the lineage or clan hold useufructuary rights to this property.

Jorong Administrive sub-nagari unit headed by an elected wali jorong Jurai Lineage segment comprising several kaum sharing a common ancestor KAN Kerapatan Adat Nagari, the nagari adat council, comprising all the ninik mamak of the

nagari. Kaum Lineage segment comprising several paruik sharing a common ancestor, often a

great grand mother. Members of a kaum often hold and use land in common. Kemenakan Generically all members of a lineage. Specifically the children of a man’s sisters. LAN Lembaga Adat Nagari. Same as KAN, what terms is used depend on the nagari. Lineages People related thorugh a common ancestor in the female line Mamak Maternal uncle, aldo used in a classificatory sense Matrilineal descent system

Descent system based on a common female ancestor and tracing descent through women only,i.e children are members of the lineage of their mother only.

Matrilineally inherited

Inherited in the female line, from mother to daughter.

Mufakat Consensus Musyawarah Dileberation process leading to consensus Nagari The territorial adat unit or village of Minangkabau. It has an adat council, and

comprises a number of clans, sharing codes of conduct and other normative cultural traits.

Ninik mamak Lineage elder holding a traditional lineage title, sako Paruik Smallest genealogical unit within the clan, often sharing a mother or grandmother Pemuda Young men organised for defnese and maintenance of public order Pengadilan Negri District Court Pengadialn Tinggi Privincial Court Perna Peraturan Nagari, nagari level regulations adopted by BPAN Pusako Ancestral property inherited in the female line Rantau Areas used by the Minangkabau for finding work and business opportunities,

traditiaonlly it has been obligatory for young men to get experience in the rantau before marriage.

Sako Ancestral title, inherited by the men in the lineage. Each clan has a number of titles. Suku A Minangkabau clan, based on matrilineal descent. Tanah Ulayat Common lands, owned by the clans or by the nagari


47

Usufructuary rights Use right, rights to harta pusako and to tanah ulayat are only userights as the land cannot be alienated by sale

Uxorilocal Residence is with the family of the bride upon marriage Wali jorong Elected head of the jorong administrative unit Wali nagari Elected head of the nagari administrative unit

Documents

Modes of conflict resolution in the Minangkabau nagari