TANGGUNG JAWAB NEGARA DALAM PERLINDUNGAN DAN PEMAJUAN HAK MASYARAKAT HUKUM ADAT KAJIAN HUKUM HAK ASAS MANUSIA
STATE’S RESPONSIBILITY TO PROTECTION AND PROMOTION RIGHTS LAW OF INDIGINEOUS HUMAN RIGHTS LAW’S REVIEW
Cornelius Tangkere,¹ Abrar Saleng², Musakkir,² Juajir Sumardi² ¹ Bagian Program Pascasarjana Program Doktor Fakultas Hukum, Universitas Hasanuddin, Makassar ² Pembantu Dekan I Bidang Akademik Fakultas Hukum, Universitas Hasanuddin, Makassar² Bagian Hukum Perdata, Fakultas Hukum, Universitas Hasanuddin, Makassar² Bagian Hukum Internasional Fakultas Hukum, Universitas Hasanuddin²
Alamat Korespondensi: Cornelius Tangkere Dosen Fakultas Hukum Univ. Sam Ratulangi Manado Desa Kali Jaga VII Kec. Pineleng Kab. Minahasa Sulawesi Utara, Manado 95361 HP: 081282233983 Email:
[email protected]
Abstrak
Pasal 18B ayat (3), Pasal 28I ayat (3), serta pasal 32 ayat (1) dan (2) Undang-undang Dasar Negara Republik Indonesia Tahun 1945 merupakan landasan juridis bagi pengakuan atas keberadaan masyarakat adat. Tujuan penelitian ini adalah untuk mengetahui prinsip hukum tanggung jawab negara dalam perlindungan dan pemajuan hak masyarakat adat dan untuk mengetahui mekanisme ideal dalam rangka perlindungan dan pemajuan hak masyarakat adat. Penelitian ini merupakan penelitian deskriptif normatif dan penelitian despkriptif sosiologis. Penelitian ini menggunakan menggunakan pendekatan masalah berupa pendekatan konseptual (conceptual approach) , pendekatan sejarah (history approach) dan pendekatan perbandingan (comparative approach). Hasil penelitian menunjukkan bahwa beberapa perusahaan baik swasta maupun milik negara tercatat pernah dan terus berkonflik dengan masyarakat adat tempat perusahaan tersebut beroperasi. Perlindungan dan pemajuan hak masyarakat adat idealnya dilaksanakan dengan mengacu pada prinsip keadilan, partisipasi dan pemberdayaan, penghargaan dan pengakuan terhadap kearifan lokal, transparansi. Mekanisme perlindungan dan pemajuan hak masyarakat adat dilakukan dengan cara menghormati, melindungi, dan melaksanakan (to respect, to protect, and to fulfil). Kesimpulan penelitian ini adalah pemajuan masyarakat hukum adat dapat dilakukan dengan pembentukan peraturan perundang-undangan yang komprehensif. Kata Kunci : Perlindungan hukum, masyarakat adat, negara
Abstract
Article 18B paragraph (3), Article 28 paragraph (3), and Article 32 paragraph (1) and (2) of the Constitution of the Republic of Indonesia Year 1945 is the juridical basis for the recognition of indigenous peoples. In reality, indigenous peoples are often removed when the state / government with the right to control its marginalize indigenous rights in natural resource management with the interests nasional. The purpose of this study was to determine the legal principle of state responsibility for the protection and promotion of the rights of indigenous peoples and to know the ideal mechanism for protecting and promoting the rights of indigenous peoples. `This research is descriptive and normative despkriptif sociological research. Study used this approach in the form of a conceptual approach (conceptual approach), approach to history (history approach) and the comparative approach (comparative approach). The results showed that few companies, both private and state-owned record ever and continues to conflict with indigenous peoples where they operate. The protection and promotion of the rights of indigenous peoples is ideally carried out with reference to the principles of justice, participation and empowerment, appreciation and recognition of local knowledge, transparency. The mechanism of protection and promotion of indigenous peoples 'rights is done by respect, protect, and carry out (to respect, to protect, and to fulfil) . Conclution of this research is compile a legislation is vey important way to provide to the protection of indigenous peoples' rights. Keywords: legal protection, indigenous peoples, the state
INTRODUCTION State is a place to realize the ideals of nationhood by bringing together various peculiarities of Indonesian society based on Pancasila, which is the quintessence of the whole philosophy underlying the development of the State of nationality Indonesia. Constitution of the Republic of Indonesia Year 1945 is the supreme law of the base has confirmed that Indonesia is a country of law. The consequence of this is the State's responsibility to ensure the protection of human rights of all Indonesian people. As a commitment of Indonesia to guarantee fundamental rights to the people, Indonesia ratified a number of International Human Rights instruments including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Universal Declaration of Human Rights, the United Nations Declaration On the Rights of Indigenous Peoples. One part that is not be separated in the Indonesian nation and state is a community group called indigenous groups. Article 18B paragraph (3), Article 28 paragraph (3), and Article 32 paragraph (1) and (2) of the Constitution of the Republic of Indonesia Year 1945 is the juridical basis for the recognition of indigenous peoples. Following up on the constitutional mandate in the protection of human rights of indigenous peoples, some legislation contains provisions relating to the rights of indigenous peoples. Legislation is among other Law. 5 of 1960 on the Basic Agrarian Law, Act 41 of 1999 jo Act 19 of 2004 on Forestry, Law No. 7 of 2004 on Water Resources Act 22 of 2001 on Oil and Gas Law. 18 Year 2004 on Plantation, Law no. 27 of 2007 on Management of Coastal Areas and Islands, Law no. 32 of 2004 on Regional Government, Act 4 of 2009 on Mineral and Coal, and the Law No.32 of 2009 on the Protection and Environmental Management, Act No. 48 of 2009 on Judicial Power, Law Number 24 2003 on the Constitutional Court, Law No. 20 of 2003 on National Education System, Act No. 26 of 2007 on Spatial Planning, Law No. 21 of 2001 on Special Autonomy for Papua Province. Rights of indigenous peoples in the management of natural resources as a human has a broad scope, it is not only the right to manage its natural resources, but also the right for
indigenous peoples to obtain legal protection in the enjoyment of those rights so that their survival will remain secure. In considering the provisions of clause b of Law No.. 39 Year 1999 on Human Rights (Human Rights Act) states that human rights are basic rights bestowed by God on human beings, are universal and timeless, and should be protected, respected, maintained, should not be ignored, can not be reduced or taken away by anyone and the state is responsible for realizing it. (Bosko, 2006) In reality, indigenous peoples are often removed when the state / government with the right to control its marginalize the rights of indigenous peoples in the management of natural resources on the grounds of national interest. Compensation given to indigenous peoples is not balanced by the benefits obtained by the state or investors. Indigenous peoples are in a position not covered by the justice and legal settlement as it struggled to defend their rights due to poverty and lack of education. An example is the case of the PT Freeport McMoran Indonesia with Amungme and the Comoros, where the mining concessions granted in the indigenous territories. Indigenous peoples do not benefit from the presence of PT Freeport in the region, it was eliminated and indigenous rights were violated. Violations they experienced a violation of ownership rights, the right to adequate food and nutrition, the right to adequate standard of living, the right to take part in cultural life, the right to self-determination, the right to enjoy the highest attainable standard of physical and mental, and many other rights, which rights are a human right. In 2011, the total area reached 342,360 hectares of disputed, involving 273 888 people displaced from the land and the land is largely a conflict between indigenous peoples country or company. (Prasaja, 2011). Violations of the rights of indigenous peoples in Indonesia despite the many laws and regulations that give emphasis on the protection of indigenous peoples' rights so that the issues that arise are not optimal implementation of the state's responsibility to protect and promote the rights of indigenous people. Therefore researchers interested in conducting assessments with the aim of knowing the legal principle of state responsibility for the protection and promotion of the rights of indigenous peoples and to determine the ideal mechanism for protecting and promoting the rights of indigenous peoples.
METHODS Type and Research Approach
This research is descriptive and normative despkriptif sociological research. Study used this approach in the form of a conceptual approach (conceptual approach), approach to history (history approach) and the comparative approach (comparative approach). Types and Sources of Data The types of data used in this study is primary data and secondary data. Sources of primary data is data obtained directly on indigenous lands are researched through interviews and questionnaires as well as in the form of legal materials include legislation relating to indigenous peoples and human rights as well as secondary data obtained through the study of literature, documents, articles, and literature relevant to this study. (Marzuki, 2006). Data Collection Techniques The data was collected from the Primary Data Collection respondents and informants and secondary data collection were obtained from the literature and documents related to the study. Data Analysis Analysis of the data used are primary data analysis. Primary data were obtained either through library research and field research.
RESULTS Legal Protection Understanding the legal protection is a protection afforded to the subject of law in the form of legal instruments both preventive and repressive, both written and unwritten. In other words, the protection of the law as a description of the function of the law., The concept of which the law can provide a justice, order, certainty, expediency and peace. (Kusumaatmadja, 2003). The term legal protection for the people is a term that does not include 'the government' or the actions of the government. The reason put forward by (Hadjon, 1987) that the term implies people are as opposed to the government terms. The term essentially means people are governed (the governed, geregeerde). Thus, the term means the people that are more specific than the other terms in foreign languages such as Volks, people. The term essentially means people are governed and does not include the term "the government" or "government action against" because of the inclusion of the term may give the impression that there is a confrontation between the people as ruled by the government as a rule. (Hadjon, 1987)
(Rahardjo, 2003) argues that legal protection is an effort to protect the interests of a person by way of allocating a power to him to act in order of importance are. (Rasjidi et al, 1994) suggests that the function of law is to provide protection that the law was grown and humans need it by the product of human judgment to create the conditions that protect and promote human dignity and to enable people to live a reasonable fit with dignity. Conceptions of Indigenous Peoples Society is a human being is a unity-related groups remain and have the same interests. (Rasjidi et al, 1994) Znaniecki
states that society is a system that includes biophysical units
individuals who reside in a particular geographic area over a given period of a generation. A society was formed only in the parallel position applied within an organization. Opinion Znaniecki raises new element in the sense that the community was a group that had been living in a particular area in a particular geographical environment and the group is a biophysical systems. Therefore, the community is not a group assembled mechanically but gathered systematically. Human beings with each other giving each other, man and his environment in addition to receiving and giving. This concept was influenced by the concept of an ecological nature towards all animals. The term indigenous people taken from the literature customary law, especially after the discovery of Van Vollenhoven on customary rights (beschikkingsrecht) are said to be only owned by a community called the indigenous people. Understanding of indigenous people by Ter Haar were: (1) human unity yangteratur, (2) settle in a particular area, (3) has the powers and (4) has a wealth of tangible or intangible, in which members of each union each experience of life in the community as a natural by nature natural and no one among the members that have a mind or a tendency to dissolve the bond that has grown it or leave it in the sense of escape from the ties that forever. (Muhammad, 1986) The results of the National Workshop on Inventory and Protection of Indigenous Peoples, in June 2005, that is the indigenous people or other similar terms such as indigenous or traditional community or the people indgenoeus is an anthropological community is homogeneous and continuously inhabit a particular area, has a historical and mystical relationship with their past history, feeling and is seen by outsiders as derived from a common ancestor, and have distinctive cultural identity and they want to maintain and preserve for a
period of subsequent history, and does not have a position dominant structures and political systems . (Komnas HAM, 2005) Human Rights Principles Every society according to (Robert Holden 1998) has a sense of justice, honesty, dignity, and respect. Human rights is one way to implement these concepts. The idea of human rights was initially associated with the middle classes. They resist the demands of the principle of the proposal degrees of nobility and traditional privileges, the rising bourgeoisie in modern Europe. Charges are based on the origin of the human kondrati equality and natural rights are not transferable. (Arinanto, 2003). Universal Declaration of Human Rights (UDHR) in 1948 was the starting point of the international system for the promotion, protection and enforcement of human rights in the period after World War II. Origin is the Charter of the United Nations in 1945, which include the UN goals in order to promote to the enforcement and promotion of human rights and basic freedom for all all people regardless of race, sex, language and religion. Each country that are members of the UN pledged to make efforts to achieve human rights and higher living standards. The Charter rights of every individual are of international interest. (Ranadireksa, 2002) gives the definition of human rights is essentially a set of conditions or rules to protect citizens from possible oppression, deprivation and restrictions on movement by the citizens of the state. That is, there are certain restrictions imposed on negaa that the most essential rights of citizens are protected from arbitrary power. Article 1 of Law No.. 39 of 1999 on Human Rights Principle asserts that human rights are a set of rights attached to nature and human existence as makhlukTuhan the Almighty and it is His grace that must be respected, upheld and protected by the state, law, government, and everyone for the respect and protection of human dignity.
DISCUSSION The research is to find some companies, both private and state-owned record ever and continues to conflict with indigenous peoples where they operate. Nationally cases spread like PT Freeport with indigenous peoples in Papua Amugme, PT Newmont to South Sumbawa Indigenous and tribal children due to the opening of the Borneo palm oil plantation. In North Sumatra, PT Plantation State (PTPN II and III) in conflict with indigenous people belonging to
the Popular Struggle orgasiasi Board Watcher Indonesia (BPRPI), PT Toba Pulp Lestari (PT TPL) with indigenous peoples in 11 districts where operations, PT Dairi Prima Mineral (Bakri Group) with indigenous peoples in Dairi, and PT. Sorik Mas Mining Mandailing Madina with indigenous peoples. All of these companies have been rejected by indigenous peoples and is still ongoing. Unitary Republic of Indonesia is a country founded by the spirit of nationalism by Indonesia that aims to protect the whole nation , promote the general welfare, the intellectual life of the nation and participate establishment of world order based on freedom, abiding peace and social justice. The purpose of Indonesia as mentioned above gave birth for two responsibility for the state in relation to the enforcement of human rights for indigenous peoples, namely, the first obligation of the state to refrain from violations of human rights of indigenous peoples, among others to actively ensure the fulfillment of these rights and the state must not take measures that would harm the rights of indigenous peoples in the management of natural resources and not be silent when the breach by the other party against indigenous people or obligated to respect, protect, and carry out (to respect, to protect, and to fulfil). Secondly, the state's obligation to prevent violations and legal process, and make efforts to actors associated with the losses incurred. Both of these responsibilities shall be carried out simultaneously to deliver justice for indigenous peoples. States have the responsibility through the power that has been given to institutions to establish good law is the law which minimizes the danger of injustice. The protection and promotion of the rights of indigenous peoples should ideally be implemented with reference to the principles of justice, participation and empowerment, appreciation and recognition of local knowledge, transparency. In order to create a government that respects and acknowledges and accommodates access, the interests and rights of indigenous peoples, the state through good kekuasaannnya executive, legislative and judicial branches of government must make room for the principles mentioned above by preparing a legislation that comprehensively provide regulation on the protection of indigenous peoples' rights. Implementation of obligations on the rights of indigenous peoples in the management of natural resources is a form of protection of the rights of indigenous peoples.
CONCLUSIONS AND RECOMMENDATIONS The protection and promotion of the rights of indigenous peoples should ideally be implemented with reference to the principles of justice, participation and empowerment, appreciation and recognition of local knowledge, transparency. The mechanism of protection and promotion of indigenous peoples' rights is done by respect, protect, and fullfil. In order to create a government that respects and acknowledges and accommodates access, the interests and rights of indigenous peoples, the state through good Authority executive, legislative and judicial branches of government must make room for the principles mentioned above by preparing a legislation that comprehensively provide regulation on the protection of indigenous peoples' rights.
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