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Indonesian Law and Society Workshop


UNSW is pleased to host a work in progress seminar on Indonesian Law and Society
Monday 18 November 2019; UNSW Law, Staff Common room

11:30-12:30pm: Session 1
Chair: Melissa Crouch
Speaker 1 Yance Arizona, Indigeneity Trap: The limit of adat as a strategic framing in land conflict between rural communities against forestry enterprises
Speaker 2 Jacqueline Vel, Dirty water and poor people: How transformation of grievances blocks environmental justice

12:30-1:30pm Lunch

1:30-2:30 Session 2
Chair: Jacqueline Vel
Speaker 3: Tody Sasmitha Jiwa Utama, Adat Law in the Criminal Code and its Implications for Indonesian Plural Legal Order
Speaker 4: Lena Hanifah The Agency of Women in Accessing Informal Justice of Adat Badamai

2:30-2:45 Break

2:45-3:45: Session 3
Chair: Indri Saptaningrun
Speaker 5: Milda Istiqomah, Factors Contributing to Terrorism Sentencing Outcomes in Indonesia: A Quantitative Analysis
Speaker 6: Herlambang Perdana Cyber-Defamation, Law and Authoritarianism Tendencies in Indonesia

4:15-5:15pm Book Launch at UNSW BookstoreThe Politics of Court Reform: Judicial Change and Legal Culture in Indonesia. Chair: Jacqueline Vel; Panel Contributors: Herlambang Perdana, Fritz Edward Siregar, Melissa, Indri, Theunis Roux


Indigeneity Trap: The limit of adat as a strategic framing in land conflict between rural communities against forestry enterprises
Yance Arizona, PhD Candiate at Van Vollenhoven Institute, Leiden University
In Indonesia, as many countries in the global south, the political struggle to obtain state recognition to customary land tenure has been used widely by rural communities as an alternative strategy for (re-)claiming their land rights against land dispossession. Although the effectiveness of this strategy remains questionable, the prevalence of this strategy continuously appears as an argument of rural communities encounter land conflict. This article discusses how rural communities involved in the emerging indigeneity discourse in Indonesia as a strategy among various options to defend their land right against a forest enterprise. This study finds how various strategies intersect and change over time. Using indigeneity rhetoric has strengthened the negotiation position of rural communities to discuss the available procedure to solve their problem through the district government. However, the legal recognition for indigeneity also led to unpredicted circumstances for the communities. The indigeneity framework shifts rural communities’ grievances from protecting their land rights into a complicated procedure of defining indigenous legal status. Subsequently, this strategy changes the nature of the land conflict between the rural communities and the company to government agencies. Moreover, rural communities have to transform their exposition to be fitted with indigenous imaginary of the state and restricts other potential redress-mechanisms. They can be caught in a legal labyrinth without promising results for resolving their initial grievances.     


Dirty water and poor people: How transformation of grievances blocks environmental justice

Jacqueline Vel ((Van Vollenhoven Institute, Leiden), (paper with Laure D’Hondt (Van Vollenhoven Institute, Leiden) and Stepanus Makambombu (Stimulant Institute, Waingapu ))
Abstract
Plantations and mining industries have a devastating environmental impact in the rural areas of Indonesia. One major problem is water pollution that causes shortage of clean drinking water, pollution related diseases and decline of agricultural production and fisheries. In a situation where the rule of law would function well, government and citizens would act against the polluters to protect the public interest in clean water and the human right to have access to safe and sufficient water for drinking, bathing and growing food. However, this is not reality in the cases we have investigated. This paper shows that in two different cases, in North Maluku and Sumba, the process of seeking access to environmental justice has been blocked and transformed. Initial grievances about water pollution and water shortage have gradually (been) changed into demands for compensation for land owners, or jobs at the polluting industry. Based on the two cases we analyze the processes at work causing the blocks in redress seeking, and the push factors for transformation of grievances concerning environmental protection into economic demands. What would be the key for redirecting attention of government institutions and NGOs toward ending water pollution and water grabbing?

ADAT LAW IN THE CRIMINAL CODE AND ITS IMPLICATIONS FOR INDONESIA PLURAL LEGAL ORDER
Tody Sasmitha Jiwa Utama, Center for Adat Law Studies "Djojodigoeno", Faculty of Law, Universitas Gadjah Mada. Email: tody_sasmitha@ugm.ac.id
In September 2019, the Indonesian Parliament's plan to pass the Bill of Indonesia Criminal Code (BICC) has sparked public tension. The Bill is protested as it threatens civil liberties and rights of vulnerable groups. It is designated to outlaw extramarital sex, unauthorised abortion, blasphemy, an insult to the president, and dissemination of Marxist-Leninist.
Among those problematic provisions, The BICC also has several articles that attempt to incorporate adat (customary) law into the state system. Using the term ‘living law' and ‘adat' consecutively, the Bill affirms that adat law can be used as a basis of criminalisation. In other words, although there is no written law that determined particular action as a crime, the state would be able to prosecute the perpetrator if the living law says so. To give the law enforcer more precise guidance, the Bill will be followed by the documentation of adat law through district regulations.
This presentation aims to discuss two aspects of such initiative. First, how does the BICC construct the adat law and what does such initiative aim for. Second, what are the implications of incorporating adat law in BICC towards Indonesia's plural legal landscape.


The Agency of Women in Accessing Informal Justice of Adat Badamai
Lena Hanifah Hasan Basuni
This presentation is one part of my chapter discussing the emerge of disputes and women’s access to justice regarding inheritance cases in the absence of surviving son in South Kalimantan, Indonesia. Parker has described these options in her pyramid of access to justice which shows that cases were treated mostly in the indigenous ordering, following by informal justice, and formal legal justice at the tip of the pyramid. Ulama or Tuan Guru holds a critical position in the informal justice system in South Kalimantan. The practice of seeking advice from Tuan Guru to find a resolution in a dispute is called Adat Badamai which means ‘a tradition to reconcile.’ However, the agency of women in this process is challenged by the community’s favouring of men to oversee this process.


Cyber-Defamation, Law and Authoritarianism Tendencies in Indonesia
Herlambang P. Wiratraman
A decade after the enactment of Act on Electronic Information and Transaction (IET) in 2008, there have been attacks on free expression as well as free press. Criminalisation by using cyber-defamation law has been often used to silence criticism, not only for individuals, but also journalism works. This has been an easy situation for Indonesia’s democracy since the media freedom has been challenged by growing populism and the ‘return’ of authoritarian rules. On the other side, the dominance narrative of fake news which turns to hoax industry has been affecting political freedoms and democratic practices.
By limiting to the issues of cyber-defamation, this presentation addresses journalism/free press and free expression in Indonesia’s Jokowi first presidential term. Two questions are discussed. how the cyber-defamation law has been used to silence criticism, including news media? First, how it has been influencing to freedom of expression generally, and Second, how it has been affecting to democracy and authoritarianism tendencies in Indonesia.


Factors Contributing to Terrorism Sentencing Outcomes in Indonesia: A Quantitative Analysis

Milda Istiqomah

In terrorism prosecutions, some researchers have claimed that extra-legal factors tend to influence sentencing outcomes. However, there is no adequate evidence that this tendency applies in Indonesian terrorism trials. This paper aims to examine what factors contribute to sentencing decisions in Indonesian terrorism prosecutions. It specifically focuses on sentence length in Indonesian terrorism prosecutions and identifies factors that are significant predictors of sentence length. Using a quantitative approach, this paper examines approximately 135 terrorism verdicts in Indonesia. A range of variables used in the analysis consists of five main predictors including: (1) factors related to case characteristics; (2) factors related to the circumstances of the offence; (3) factors relating to the victim; (4) factors relating to the offender; and (5) factors related to aggravating and mitigating factors. The extent to which the selected independent factors predict sentence length is tested in a regression analysis. This analysis suggests that the sentences can be to a large extent predicted by the seriousness of the offences. The total number of people who died in the terrorist incident written in the verdict is the strongest predictor of sentence length in the model.

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