On March 10, 2020, the Association of Indonesian Legal Aid Institutes (HuMa) presented its study results on the Omnibus Law on Job Creation. The study found inconsistent phrases in the bill, particularly concerning the regulation of customary law communities and their rights over customary territories. For example, in the context of legal subjects, there are phrases like customary law communities, indigenous communities, local communities, and traditional communities. As for regulating customary territories, there are phrases like customary rights, traditional rights, customary territories, community-managed customary areas, traditional villages, and customary areas.

Furthermore, there are 3 (three) inconsistent regulations regarding the procedures for recognizing customary law communities in the Omnibus Law on Job Creation, namely: (1) in accordance with prevailing laws and regulations; (2) to be submitted to the central government; and (3) must go through regional regulations. Aside from perpetuating the ambiguity of procedures and authorities on how and with what legal instruments customary law communities are recognized, the above regulations also maintain a ‘conditional recognition’ for customary law communities. Because there are procedural requirements to legally recognize customary law communities, such recognition must first be established through legal instruments.

“The differences in these phrases occur because various sectoral laws amended by this bill indeed mention different terms regarding customary law communities and their traditional rights, and it turns out this issue is perpetuated by this bill. The bill fails to seize the opportunity to reduce sectoral egos in the management of natural resources in recognizing and protecting the rights of customary law communities,” stated Dahniar Andriani, Director of the Association of Indonesian Legal Aid Institutes (HuMa).

Dr. Rikardo Simarmata also revealed 3 (three) key points in the Omnibus Law on Job Creation: (1) a legal opinion made by HuMa approximately concludes that in fact there are no changes regarding the regulation of MHA in this Omnibus Law with the various laws it aims to amend. This perpetuates an existing legal framework characterized by sectoralism, disharmony, ambiguity, and half-hearted recognition (conditional recognition). (2) The ambiguity of this bill in regulating MHA linked to investments raises legal-political questions. (3) There is an implicit paradigm behind the drafting of the Omnibus Law on Job Creation that suggests that legal rules are determinant,, and if there are laws,, then everyone will behave as intended by the law. The above thinking constitutes the regulation of implementers, and the affected actors and groups as determinants for the effective implementation of legal rules.

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