Ulma Haryanto - A revision of the law governing plantation farming is needed to stave off increasing land disputes and protect indigenous communities and farmers across the country, experts said.
Agricultural and legal experts said at a hearing at the Constitutional Court on Tuesday that an urgent review was needed because the existing legislation was unconstitutional.
The request to review two sections in the 2004 Plantation Law – Article 21 and Article 47 – was filed by four farmers from West Kalimantan, East Java and North Sumatra, each of whom had received jail terms of between six months and a year for protest actions they took to reclaim ancestral lands.
The court heard that the two articles had criminalized farmers when, according to the Constitution, "the land, water and natural resources are to be controlled by the state and used for the people's welfare at large."
"Under Dutch colonial law, foreigners came to buy up land. After independence, these lands were reclaimed by the Indonesian government, only to again be purchased by private companies," said Suharningsih, an expert on agricultural law at Brawijaya University in Malang, East Java. "The law should focus on improving the people's welfare, so why is it pro-private companies?"
The plaintiffs were identified as Sakri, a 41-year-old farmer from Blitar, East Java; Japin, 39, and Vitalis Andi, 30, from Ketapang, West Kalimantan; and Ngatimin, 49, from Serdang Bedagai, North Sumatra.
Sakri received six months of probation in 2008 for forcefully trying to reclaim land that he believed was his.
Japin and Vitalis each served 10 months in jail for "displacing" an excavator that was about to be used to clear land they were contesting in 2009. The pair filed an appeal in March.
Ngatimin was sentenced to one year in jail for planting trees in a disputed area in an effort to reclaim it in 2007.
"Indonesia has nurtured political ignorance toward the rights of indigenous farmers and communities," said Wahyu Wagiman of the Institute for Policy Research and Advocacy (Elsam), which is representing the plaintiffs. "Regulations that are set up through different regimes always ends up marginalizing indigenous people."
Wahyu said such criminalization had successfully traumatized indigenous groups, making them reluctant to defend their rights when confronted by corporations, the police and the judiciary.
"The effects of the articles are real. If we do nothing, there will be more conflicts. More farmers and more people from indigenous communities will become victims," he said.
Article 21 of the law prohibits any efforts to damage plantations or other assets, any use of plantation land without permission and any other action that disturbs plantation businesses.
Article 47 regulates the punishment for violating Article 21, setting a maximum jail term of five years and fines of up to Rp 5 billion ($585,000).
Afrizal, an expert in social conflict from Andalas University in Padang, said that during his research he found that for every plantation company in Sumatra, an average of seven communities were in dispute with it.
"I recorded at least 357 agricultural land disputes between 1998 and 2010," he told the court. "My research shows that most of the conflict or resistance from indigenous communities is caused by improper negotiations. These communities have traditional rules, but they are neglected by both companies and the government."
Wahyu said communities were often forced to take drastic measures because they were cut off from alternative administrative channels to resolve disputes, with more protection being given to corporations than farmers. "In practice, Article 21 has never been used against a company. Law enforcers use these regulations against the people," he said.
Suharningsih said the Plantation Law marginalized indigenous communities and took away their rights. "The Constitution upholds indigenous land rights," he said. "When a right is acknowledged, it means that it should be protected, and therefore it is non-negotiable. It cannot be negotiated," she said.