By Clancy O’Donnell

On Thursday, 15 January 2015, the Indonesian Constitutional Court heard again from two expert witnesses during the 7th hearing on the Court’s review of the Law on Prevention and Combating Deforestation (P3H). Agrarian law expert from the University of Andalas, Kurniawarman and former agrarian law practitioner and current Professor Rikardo Simarmata

They asserted that the State/National Government management cannot remove communal rights (Ulayat) of indigenous people to the land and natural resources.

Agrarian Law Expert of the University of Andalas,  Kurniawarman explained that the arrests were made after the local Customary Law Communities (MHA) there accessed their traditional lands without permission from the government. He explained that there are several protections afforded to MHA in the Indonesian Constitution 1945, however several government institutions have removed the rights of customary peoples to their land.

Warman stated that Article 11, paragraph (3) of the Law on Preventing and Combating Deforestation (P3H Act) has been used by the governments as a tool to remove the MHA rights to access, manage and collect forest products from their customary lands. Kurnia passionately gave his testimony about the forest conflicts that occur in customary law communities in West Sumatra.

In addition, Rikardo Simarmata explained that the removal of these rights has led to the criminalisation of MHA as they try to access their traditional lands. Simarmata explained the legal basis of criminalisation, the impacts of criminalisation and the relationship between criminalisation and forestry laws. ‘Political Forest’ is the main paradigm, meaning that the government could take legal action against the customary law peoples who access their traditional lands without permission, so they are labeled as ‘illegal’. As a result, some of Customary Law Peoples were detained by the police.

For further information you can read the following article here:

http://www.mahkamahkonstitusi.go.id/index.php?page=web.Berita&id=10513#.VL4Y-C46_ee

Or download the hearing minutes here:

http://www.mahkamahkonstitusi.go.id/Risalah/risalah_sidang_7294_Perkara%20Nomor%20138.PUU-XII.2014%20tgl%2020%20Januari%202015.pdf