Chapter 4 The Law of Diversity and Indonesia’s Village Law: Creating Procedures for Completeness in Diverse Societies

In: Courts and Diversity
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Tove H. Malloy
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Abstract

This chapter explores the “Law of Diversity,” a conceptual framework promoting inclusive, deliberative, and reflective democracy in law-making, with a focus on Indonesia’s Constitutional Court. It examines the principles of asymmetry, pluralism of sources, and negotiation of content, highlighting their role in developing more legitimate and effective laws. The Village Law process in Indonesia serves as a compelling case study, involving diverse entities such as indigenous communities, civil society groups, elected officials, and the Constitutional Court. Asymmetry grants indigenous peoples a unique position, enabling significant influence on the law-making process. Emphasizing pluralism of sources and subjects, the Village Law process engages diverse legal sources and stakeholders, fostering mutual recognition, trust, and cooperation. Deliberative and reflective approaches challenge existing norms and facilitate continuous change. The pivotal role of Indonesia’s Constitutional Court becomes evident through its review of the 1999 Forestry Law, recognizing the rights of indigenous communities and ultimately leading to the passage of the Village Law. In conclusion, the Law of Diversity offers a comprehensive and effective framework for law-making in Indonesia, promoting social idealism and inclusive self-creation of societies while prioritizing authentic, reflective, and negotiated democratic processes.

1 Introduction

For decades, societies worldwide have worked on improving respect for diversity within their communities, including within post-colonial contexts such as Indonesia. The goal has been to adapt political and legal systems to differences among individuals and groups. Inclusive democratic practices necessitate the development of policies that can effectively embrace the natural variations in identities within a society, which is particularly relevant given Indonesia’s diverse cultural landscape. To achieve this, discursive and participatory models of democracy have emerged, allowing room for alterity and otherness to be acknowledged. Moreover, human rights ideals emphasize the importance of equality and equity, often requiring the implementation of special rights to foster societal integration. Certain post-colonial societies have adopted systems respecting indigenous and plural normative and legal approaches. However, the process of adapting law-making and court systems to be more receptive to diversity has faced challenges, and the Indonesian Constitutional Court has played a significant role in addressing these challenges.

Legal philosophy, traditionally leaning toward positivistic rules, expects judges to rigidly adhere to a prescribed code, functioning like a “calculating machine.”1 While judges are expected to accommodate exceptions within these rules, the emergence of the ‘interpretive turn’ has softened positivism, allowing for a broader understanding of what the law encompasses. This understanding may include “not just the extant sources, but also what follows from those sources, or what provides the best justification for those sources.”2 However, the trade-off in law between predictability and fairness is not a given in all legal systems. This is problematic when seeking equality and equity in diverse societies. A legal approach that respects both established and newly evolving diversity by incorporating diverse sources and approaches is essential. This chapter explores a recent conceptualization of a ‘law of diversity.’

The Law of Diversity to be examined is not a law itself, but rather a philosophical perspective on law-making. It challenges pre-established positions in law-making by blurring the distinction between rules and exceptions, making this differentiation increasingly difficult, if not obsolete. This perspective enables differentiation in the legal standing of societal groups, allowing for pluralism concerning both legal and non-legal sources. Furthermore, it facilitates the renegotiation of the status of actors in specific societal relationships, which is particularly relevant in the context of the Indonesian Constitutional Court’s role in recognizing and protecting indigenous rights.

By challenging the traditional distinction between rule and exception, the Law of Diversity draws upon the philosophical notion that law is formed through a dialectic process of law-making, which requires an ongoing and infinite dialogue on justice.3 Emphasizing the pluralism of sources, it expands the foundational scope of law-making and broadens the profile of actors involved in this process. By advocating for the renegotiation of actors’ statuses, it allows for participatory approaches to law-making. In sum, the Law of Diversity is a systematic process of social exchange, driven by a pragmatism that employs a relational logic to uncover the essence of the law.

After presenting the key elements of the Law of Diversity, this chapter will explore each element through relevant philosophical theories. This involves seeing law-making as a dialectic process of deconstruction and undecidability as proposed by Jacques Derrida. Philip Allott’s social idealism, which examines humanity’s ability to actualize social objectives in self-organizing societies, will also be introduced. Additionally, John Dryzek’s arguments for discursive democracy, based on deliberative and reflective processes, will be discussed. To provide a practical perspective on the Law of Diversity, the chapter will introduce the United Nations’ policy of participatory law-making. This will set the stage for analysing the law-making process of the Indonesian 2014 Village Law, an example of participatory law-making embodying the main tenets of the Law of Diversity. The active civil society participants in the process leading to the adoption of the Village Law were traditional indigenous communities. Through deliberation in the public sphere and utilizing new constitutional provisions and participatory rights, they influenced the law-making. The example of the Village Law process demonstrates that participatory law-making is multi-dimensional, involving a pluralism of sources and inclusive negotiations, in line with the vision of the Law of Diversity. This goes beyond being a mere procedural aspect of law-making; it represents a conceptualization of completeness.

2 The Law of Diversity

The Law of Diversity was originally presented by two constitutional scholars, Francesco Palermo and Jens Woelk, as a procedure for law-making in multi-ethnic and multicultural societies.4 Their objective is to provide a legal approach that allows for differentiation in the legal positions of ethno-cultural minority groups.5 The focus is on conceptualizing a procedure that determines common ground rather than promoting an ideological bias associated with systems of justice. Instead, the Law of Diversity acts as a detached regulator, akin to a “referee,”6 leaving the substantive details to be influenced and determined by the participation of non-dominant groups in collaboration with local, regional, and state governments under their jurisdiction. In the Indonesian context, the Constitutional Court, through its interpretative role, plays a crucial role in guiding these collaborative efforts, ensuring that the law respects and protects the rights of minority groups.

In the spirit of collaborative decision-making, the involved actors collectively address substantive issues through cooperation, much like collaborative shop owners in a busy city square. Cooperation is paramount for the Law of Diversity to function effectively, requiring the willingness of all parties to work together and become mutually integrated. This approach also aims to encourage the dominant majority to recognize the complexity of their society and the need for comprehensive solutions. In other words, simple rules are not sufficient when dealing with law-making in multi-ethnic and multicultural societies, such as Indonesia.

The Law of Diversity is characterized by three main elements:

asymmetry regarding its application as well as the single instruments (differentiation in the legal position of the groups thus becomes the rule); pluralism of legal sources and of subjects (creating the obligation of mutual recognition, consideration of the position and interests of others and, in the end, mutual acceptance; mutual trust and cooperation are the most important non-legal preconditions for the acceptance of the single solutions) as well as the negotiation of its content in a quasi-contractual framework, i.e., going beyond pre-established majority and minority positions (and making the distinction between rule and exception increasingly difficult if not obsolete).7

The Law of Diversity necessitates flexibility in law-making and societal engagement, where status, position, and identity do not determine one’s right to be heard and included, resonating with the principles upheld by the Indonesian Constitutional Court to ensure equal access to justice for all, irrespective of background. Emphasizing the importance of deliberation and reflection, the Law of Diversity envisions an environment free from coercion by power structures that disregard diversity. The following sections will describe in more detail the elements of the Law of Diversity, exploring their connections with post-modern and contemporary philosophical perspectives of law and politics for the first time.

3 Asymmetry in Application

The argument that asymmetry defines the application of the Law of Diversity is interesting for a number of reasons. First, with regard to applicability, it challenges the formal equality approach that has characterized the liberal paradigm of law for decades. Second, it implies that applying corporate rights to groups could be necessary. Third, it implies a conceptual challenge to the universal buttresses of international human rights law by which human rights are seen as belonging to all humankind. However, asymmetry poses a number of conceptual problems in law-making inasmuch as asymmetric rights in legal theory are special institutional rights that give members of society particular entitlements to a range of benefits subject to meeting certain well-defined criteria.

The British moral philosopher Onora O’Neill highlights the challenges of asymmetric relationships, as they require moral justification for the granted rights and ethical value in the supporting political institutions.8 Special obligations within such relationships necessitate ethical reasoning at two levels, questioning both the ethical claims arising within these relationships and the background practices and institutions enabling them.9 The Indonesian Constitutional Court, for instance, has been instrumental in addressing asymmetric rights in the context of ethno-cultural diversity. Essentially, this means that justifying asymmetric rights demands evidence of moral justification for imposing duties on others and ethical behaviour among the rights-holders. For ethno-cultural minority rights, this entails demonstrating both the benefit of receiving special group protection and the worthiness of such protection. Without this, the political will to establish asymmetric rights is unlikely to materialize.

4 Pluralism of Sources

Pluralism of sources in law-making is not a question of reconciling divergent values but of reconciling divergent factual existences in an ethical manner, as exemplified by the Indonesian Constitutional Court’s role in upholding diverse legal foundations. This requires a set of non-legal preconditions for the acceptance of solutions. These preconditions must include mutual recognition, consideration of the position and interests of others, mutual trust and cooperation, as well as acceptance.10 Thus, the notion of a fixed or singular perfect model of justice representing common values is simply not feasible.

The Canadian political philosopher James Tully has explained the need for pluralism of sources, or what he calls multiplicity of voices, as a process of collective reasoning through an intercultural multilogue that gives a voice to all groups in society. Intercultural multilogue entails ongoing negotiations among diverse groups within self-organizing societies,11 viewing constitutionalism as flexible and constantly renegotiated to adapt to societal changes. Tully names this “common constitutionalism” as opposed to the contemporary imperial constitutionalism of liberal democracy, which he argues is unable to adjust to multiple diversity. Tully builds his theory upon three cornerstone concepts or conventions of intercultural multilogue: mutual recognition, consent and continuity. By mutual recognition, Tully means the principle of equality of self-governing groups as espoused by the treaty system that regulated the relations between the aboriginal peoples of North America and the British Crown.12 The second convention of trust, that of consent, is derived from the Roman law principle of quod omnes tangit, ab omnibus comprobetur (what touches all must be agreed to by all) and later articulated by the British philosopher John Locke.13 The third convention of trust, continuity, refers to the principle of respect, implying that the ways and customs of diverse groups and peoples serve as evidence of their free agreement. Therefore, the continuity of the group’s culture in terms of norms, values and traditions should be respected.14 According to Tully, these three conventions should be seen as preconditions for a reasonable system of accommodation in divided societies. But they are not only preconditions; they are principles that diverse groups must follow in their intercultural multilogue – a mode of communication rooted in the ethical principle of audi alteram partem, meaning ‘the duty to listen to the other side’.15 By combining these three conventions and the principle of multilogue, Tully argues that it is possible to negotiate common constitutional arrangements in divided societies.

5 Negotiation of Content

In practice, the Law of Diversity approach stems from the principles of procedural republic, constitutionalism, communicative action and representative government. Jürgen Habermas, the German philosopher and sociologist, highlights the significance of proceduralism in a procedural democracy, where law serves as the defining structure.16 However, procedural democracy is also discursive. Discursive democracy refers to the ideal of reaching agreement through communicative action. The rules that guide discursive democracy are procedural inasmuch as they set a standard for how the deliberation process should be ordered. Hence, ethical considerations are regulated by the procedures of law, which are collectively agreed upon through communicative action. Unlike being solely influenced by universal liberal ideology or particularistic communitarian tradition, the rules in discursive democracy are shaped by a discourse principle that seeks impartial justification for norms of action. The approach empowers the state based on the discursive nature of public reasoning.

Habermas perceives law as the conduit through which public reasoning translates into administrative power, emphasizing the empirical relevance of democratic ideals embraced by citizens. Proceduralism, according to Habermas, fuses the juridical and the political, forming a composite model of the constitutional and political state.17 While the constitutional state upholds rights through institutions and procedures, the political state operates in the public sphere where groups engage and interpret collective goals and goods. This model of proceduralism suggests mediation by just personalities who are able to disengage any self-interest in that process. By doing so, trust is fostered among the deliberating parties and in the final outcome. Essentially, citizens openly debate and deliberate on the rights they consider equitable and essential for safeguarding both individual liberties and public participation.

The Indonesian Constitutional Court has similarly played a role in fostering trust and deliberation by ensuring that the discourse principle is upheld. Its decisions and interpretations have contributed to the shaping of constitutional and legal principles that resonate with the diverse voices within the Indonesian society. The Court’s engagement exemplifies the core principles of the Law of Diversity. The three components of this legal perspective – namely, asymmetry, pluralism of sources, and negotiation – can be examined within a broader theoretical framework of metaphysics, encompassing doctrines of being, identity and change. Beyond law-making, these concepts are relevant in the creation, maintenance and development of societies, posing challenges for humanity across various domains in handling diversity. A brief review of three approaches to understanding human diversity will enhance our comprehension of these challenges.

6 The Dialectics of Law

The key notion proposed by the Law of Diversity is that law-making should not be seen as a static and inflexible process. This view has been advocated by the French political philosopher, Jacques Derrida, who argued that the road to justice is non-static and unsettled in that it is constantly renegotiated through a dialectic process among the people to whom it pertains.18 Derrida’s concept of dialectic entails a departure from deriving ethical imperatives from factual realities; instead, it compels us to perceive justice not merely as an ethical mandate (ought) but as a possibility (could). In this sense, the dialectic process elicits “could” from “is.” Through negotiating conceptions of justice, the aim is to establish what we could support, rather than what we ought to endorse. This approach avoids absolutism and emphasizes the importance of individual capacity for critical practical reasoning. By replacing “ought” with “could,” the normative idealization of our world is tempered, creating a foundation for negotiations grounded in factual considerations rather than ideological values.

Derrida further explains that good law-making encounters two paradoxes, signifying the dialectic nature of the process. The first paradox involves the deconstruction of the rule, which leads to its re-institution. According to Derrida, a judgment that merely adheres to the letter of the law may be correct but not inherently just. To achieve true justice, a judge must re-institute the decision through a fresh and possibly alternative judgment. Consequently, a decision seeking justice is both governed by established norms and free from their constraints. In a single verdict, the law is both dismantled or temporarily set aside and simultaneously preserved.19 For Derrida, the re-institution of the law in a decision may seem like a form of violence since it does not conform perfectly to the instituted codes. As such, a violent act or a deconstruction of existing orders occurs and sets the stage for a new view of justice to emerge. The re-institution of the law through deconstruction, therefore, means that justice is always in the making.

The fact that law is always in the making is the second paradox. Derrida refers to this as the undecidability of law. This means that when a case does not fit the established codes, a decision about it seems to be impossible. Thus, the decision-maker experiences undecidability, even after gathering background knowledge and engaging in interpretation. Despite this challenge, the decision-maker must undergo the process of undecidability to ensure that the decision remains free. The crux of the issue lies in the aftermath of the ordeal; once concluded, the decision aligns itself with a rule, and in doing so, it loses its inherent justice. While the decision may be right, it does not necessarily embody justice. Consequently, justice remains perpetually in the future, never fully present. No moment arises when a decision can be deemed wholly just in the present. It faces a predicament: either it disregards a rule, rendering it unjust, or it adheres to a rule that lacks a solid foundation, leading to injustice. Even if it follows a rule, it falls short of justice as it fails to account for the uniqueness of the case. This unyielding injustice underscores that the ordeal of the undecidable is never relegated to the past.

Even though the elements of the Law of Diversity are not based on ideological foundations, the dialectic search for just laws helps us understand the aims of the Law of Diversity. It shows that making the distinction between rule and exception is increasingly difficult and that the aim of law-making is finding the solutions that are feasible. Feasibility is, therefore, a key presupposition of the Law of Diversity. The Indonesian Constitutional Court similarly engages in the dialectic process of law, reshaping interpretations and guiding the complex interactions of diverse societal perspectives to seek just outcomes. This mirrors the dynamic and evolving nature of law-making within the framework of the Law of Diversity.

7 Social Idealism

Feasibility depends on many aspects of society, not least humanity’s ability to cooperate and become mutually integrated. British legal theorist and long-time adviser to the British Foreign Office, Philip Allott, has eloquently explained that “humanity is a self-ordering system within the ordering of the universe of all-that-is finds intermediate self-ordering in the structure-system of society and in the structure-system of each individual human being.”20 The self-creating structure-system, Allott further explains, is guided by its own laws, or what he calls “its law-for-itself.”21 Society’s law-for-itself is its legal system, while the individual’s law-for-itself is human consciousness, and humanity’s law-for-itself is the consciousness that facilitates its self-creation within the order of the universe. The amalgamation of individuals, society, and the universe is theoretically feasible due to the inherent opportunities, and in practice, these entities must survive and thrive. Calling these processes the pure and practical theories of social idealism, Allott summarizes that “society is the collective self-creating of human beings” and “law is the continuing structure-system of human socializing.”22

Social idealism is thus a philosophy that believes in “the capacity of the human mind to transcend itself in thought, to take power over the human future, to choose the human future, to make the human future conform to our ideals, to our best ideas of what we are and what we might be.”23 This self-constituting of humanity informs the Law of Diversity in that it allows for the contradiction of consensus thinking. It does not seek an absolute truth, but it obliges us to speak truly.24 It also speaks to the notion of the city square where the owners of the shops decide on the substantive issues of cooperation. Social idealism, therefore, helps us understand why the Law of Diversity requires us to engage in deliberation and reflection. The Indonesian Constitutional Court also resonates with the essence of social idealism through its role in upholding the evolving legal framework that reflects the dynamic interplay of societal values and aspirations, embodying the self-ordering nature of a nation’s legal structure-system.

8 Deliberative and Reflective Democracy

The need to adjust to and improve the exchange of opinions and ideas, has become a demand of democratic institutions with a view to ensure respect for diversity in our societies. Inclusive processes are now expected, if not always secured, and the scope of actors is expanded to include non-governmental and non-official agents and agencies. New technologies have promoted options for greater participation and knowledge sharing, for better or for worse, and the art of deliberation has entered spaces where it would previously not be allowed or welcomed. Theorists speak of the ‘deliberative turn’ in democratizing, and processes of decision-making have enjoyed greater democratic legitimacy.25 Despite certain obstacles that could be pointed out, such as the inability of large segments of societies that cannot participate for reasons of lack of human capital, or access, or direct and indirect exclusion on the basis of ‘otherness’ or disabilities, deliberation has increasingly become the essence of democracy.

The British-Australian political theorist, John Dryzek, has pointed out that deliberation is seen in contradistinction to traditional democratic tools, such as voting, interest aggregation, constitutional rights, or even self-government.26 He does not advocate eliminating these institutions; rather, he emphasizes the focus on deliberation in relation to them. Dryzek defines deliberation as the “ability or opportunity to participate in effective deliberation on the part of those subject to collective decisions.”27 He underscores that effective deliberation involving the concerned actors necessitates reflection. In other words, decisions taken collectively must be accepted as long as such “decisions have been justified to these people in terms that, on reflection, they are capable of accepting. The reflective aspect is critical, because preferences can be transformed in the process of deliberation.”28 Thus, Dryzek further argues, “deliberation as a social process is distinguished from other kinds of communication in that deliberators are amenable to changing their judgements, preferences, and views during the course of their interactions, which involve persuasion rather than coercion, manipulation, or deception.”29 In summary, the deliberative turn in democratic theory has led to a notable enhancement in the authenticity of democracy, ensuring that processes focus on substantive issues rather than mere symbolic rhetoric.

In practical application, the implementation of deliberative and reflective democracy requires not only novel processes but also alternative platforms. Social movements have been hailed as the foremost evidence of alternatives to established democratic structures. Some scholars highlight that educational institutions, family units, friendship circles, and even “deliberative mini-publics” such as citizens’ juries and assemblies, comprising randomly chosen individuals, could play vital roles as deliberative and reflective arenas.30 Dryzek has additionally contended that extensive mediation processes, such as regulatory negotiations and other pre-policy settings, could be regarded as platforms for deliberation.

To explain how such processes and forums might work, Dryzek has theorized what he calls “discursive designs,” arguing that these are “social institutions around which the expectations of a number of actors converge.”31 A discursive design serves as a space where people are aware that they can meet for recurrent communicative interaction, and which is defined by certain parameters. For instance,

[I]ndividuals should participate as citizens, not as representatives of the state or any other corporate and hierarchical body. No concerned individuals should be excluded, and if necessary, some educative mechanism should promote the competent participation of persons with a material interest in the issues at hand who might otherwise be left out. The focus of deliberations should include, but not be limited to, the individual or collective needs and interests of the individuals involved. Thus the institution is oriented to the generation and coordination of actions situation within a particular problem context. But complicity in state administration should be avoided. As long as a state is present, discursive designs should be located in, and help constitute, a public space within which citizens associate and confront the state. Within the discursive design, there should be no hierarchy or formal rules, though debate may be governed by informal canons of free discourse. A decision rule of consensus should obtain.32

In addition to these practical criteria, Dryzek has emphasized that it is the obligation of the state to ensure that conditions for discursive designs are promoted and protected. States should create environments where political interactions are egalitarian, uncoerced, competent, and free from delusion, deception, power, and strategy. In a parallel vein, the Indonesian Constitutional Court has also been instrumental in nurturing a sense of trust and promoting thoughtful deliberation. This has been accomplished through the Court’s commitment to upholding the discourse principle in its rulings and interpretations. As a result, the Court’s decisions have significantly influenced the development of constitutional and legal frameworks that harmonize with the diverse voices present within Indonesian society. The link to the aims of the Law of Diversity is not difficult to see. Deliberative and reflective democracy speaks to the elimination of the status quo of pre-established majority and minority positions by extending inclusivity to a wide range of actors.

9 Participatory Law-Making

Inclusive deliberative and reflective democracy processes, however uncoerced they may be, must be supported by a structural framework in which to operate. To that effect, many states have recognized the right to participate in public affairs and decision-making on public policy while some have even enshrined this right in constitutional law. Moreover, international standards on this are very clear. In 2018, the United Nations (UN) Human Rights Council affirmed that participation,

plays a crucial role in the promotion of democracy, the rule of law, social inclusion and economic development. It is essential for reducing inequalities and social conflict. It is also important for empowering individuals and groups and is one of the core elements of human rights-based approaches aimed at eliminating marginalization and discrimination.33

Effective participation furthermore requires an environment where rights to freedom of opinion and expression as well as to freedom of peaceful assembly and association are fully respected and enjoyed by all individuals. According to the Council, the right to participate in public affairs is closely linked to the full realization of the right of access to information, which is an enabler of participation and a prerequisite that ensures the openness, transparency and accountability of government decisions. In addition, a structure for participating in public decision-making would also require that the life, physical integrity, liberty, security and privacy of all members of society are protected. Specifically, concerning the phase when a decision is in the preparatory stages and still open, the Council advises public authorities against making any formal, irreversible decisions prior to the initiation of the process. It also requires that no steps be taken that would undermine public participation in practice. For instance, refraining from making large investments in the direction of one option, or commitments to a certain outcome, including agreements with another party or another state.

In this context, the Indonesian Constitutional Court offers a pertinent example. Recent challenges to its independence have brought to the fore the importance of maintaining an environment conducive to participatory law-making, free from interference. The Court’s role in fostering trust and deliberation by upholding the discourse principle through its rulings and interpretations has contributed to the shaping of deliberative processes in Indonesia. This underscores the interconnectedness of various mechanisms that collectively foster inclusivity and effective governance, especially when dealing with the intricacies of participatory law-making.

In 2021, the UN Food and Agriculture Organization (fao) developed guidelines specifically aimed at promoting participatory law-making for the recognition of legitimate tenure rights.34 According to the fao, robust citizen participation in law-making can help to protect pre-existing legitimate tenure rights and address citizens’ tenure challenges. Specifically, governments must ensure widespread knowledge of and compliance with the law and empower citizens to demand that new laws are implemented. These recommendations build on previous guidelines from 2012 aimed at consultation and participation by engaging with and seeking the support of those who, having legitimate tenure rights, could be affected by decisions. Ideally, governments should engage prior to decisions being taken and respond to the contributions of the holders of the tenure rights. More importantly, governments must take into consideration existing power imbalances between different parties and ensure active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes.35 After a decision has been taken, governments should ensure participation in monitoring and evaluation. This should be considered as a continuum and include the use of social accountability tools, such as social audits, public expenditure tracking surveys, community score cards, transparency portals, community media and public hearings.

Participatory law-making is thus much more practical than the theoretical construct of deliberative and reflective democracy but must conform to the rules of deliberative democracy. Participatory law-making speaks to the Law of Diversity in that it shows how complex the negotiations can be and how important it is to ensure a plurality of sources.

10 Indonesia’s 2014 Village Law

The Law of Diversity, along with dialectic law-making, social idealism, and deliberative democracy, is intertwined with the recommendations for participatory law-making put forth by the UN and the fao. These elements serve as a backdrop for comprehending the evolution that Indonesian society underwent during the 2010s with the formulation of the Village Law in 2014.36 The legislation provided for a new framework for local territorial management, extending opportunities for indigenous peoples to be recognized under the concept of adat (indigenous) villages, with more cultural-based criteria than previous laws and regulations.

The Village Law grants indigenous communities communal land rights, allowing them to adhere to their customary adat law. Consequently, the government is obliged to honour both the land and cultural rights of these customary indigenous groups. While the Village Law holds significance as a groundbreaking legal document in Indonesia,37 its interest for our study lies in the developmental process that led to its adoption. Particularly noteworthy is the journey up to the pivotal point in 2012, when the Indonesian Constitutional Court ruled in favour of the indigenous groups contesting the status quo.38 Although criticism has arisen regarding the deficient implementation of the Village Law post-adoption,39 the development process of this legislation signifies a novel phase in Indonesian democracy, aligning with the tenets of the Law of Diversity.

The feasibility of participatory law-making involving indigenous communities in Indonesia began with the demise of the Suharto regime in 1998. As part of the democratization process, Indonesia’s legislators amended the Constitution, recognizing the rights of indigenous peoples to safeguard their culture and traditional communities. Subsequently, new legislation on law-making provided for participation of civil society groups through the National Program for Legislation (Program Legislasi Nasional, Prolegnas). The Prolegnas is jointly determined by the president and the parliament at the start of a newly elected parliament’s five-year term and is adapted before each year’s session. If civil society organizations seek to promote a certain law or seek changes to a law, they will need to get approval from parliament and the president that their proposal be included in the Prolegnas. Only then does it make sense to start lobbying for the actual changes, and, of course, inclusion in the Prolegnas is not a guarantee that the proposal will become legislation. Next, a rather general academic document (naskah akademik) is drawn up to outline the parameters of the law and the problems that it should seek to resolve. This is the starting point of actual influence, as it also represents the beginning of the drafting period.

During the drafting period civil society groups will have to deal with many obstacles. Whether the drafting is organized by the government’s offices or the parliament, civil society groups should try to get one of their own experts involved. This is feasible, especially in those cases where the government offices are understaffed and lacking expertise in specific areas of policy. When the drafting process is opened up for debate in the parliament, it gets more difficult for civil society groups to have direct involvement. They will usually have to depend on good relations with members of parliament. Once a bill is adopted, civil society organizations will furthermore have to find ways to continue monitoring the implementation of the law. This is because Indonesian legislation is often rather general and seldom includes directions for implementation. Thus, the guidelines issued by the fao on civil society involvement especially after adoption of legislation seem very relevant for Indonesia.

The process of lobbying for the 2014 Village Law began in 2005–06 when civil society groups expressed their dissatisfaction with decentralization legislation. This legislation had notably augmented the budget allocated for village-level programs, yet villages were only granted decision-making authority over the allocation. Six distinct civil society groups united behind a shared objective. They effectively translated their overarching policy objectives into concrete demands and proposed articles to be incorporated into a new law. These articles were eventually promoted by legislators involved in the debates about the Village Law Bill in the special committee of the parliament assigned to the drafting. While this portrayal simplifies the process, the observers of this process noted the involvement of both private and public interests related to village management. Among these interests was the National Association of Indigenous Communities (aman), which simultaneously sought to advocate for the recognition and protection of indigenous communities.40 This secondary cause eventually contributed to advancing the primary cause beyond the committee stage.

Parallel to the process of lobbying for improving village management, aman, alongside two indigenous communities,41 had been involved in another process resulting from the constitutional recognition of indigenous customary law communities.42 As a number of laws had to be amended due to the elevation of indigenous rights to the constitutional level, it became clear that the laws were lacking enforcement mechanisms. aman mobilized on the basis of prior cases in which the government had treated customary forests as state-owned forest. This, they claimed, was possible because the 1999 Forestry Law categorized traditional forests as ‘state forests,’ thereby subjecting them to state control.

Rather than lobbying the parliament for a new law, aman leveraged the new constitutional provisions recognizing indigenous rights to take the matter to the Constitutional Court directly. aman argued that the 1999 Forest Law had allowed the state to award rights over traditional forests to commercial entities without obtaining the agreement of the traditional indigenous communities that used or occupied those forests, and without being required to compensate them. The result was that traditional indigenous communities were being excluded from forestry resources they had used for generations. aman asked the Court to invalidate the provisions that defined state forests to include forests traditionally used and accessed by indigenous communities, and to reformulate provisions that breached their constitutional rights.43 The Court agreed with the applicants’ principal arguments and, by issuing declarations of conditional constitutionality, amended the 1999 Forestry Law to remove indigenous forests from the definition of state forest. Notwithstanding the criticism of the Court’s power to influence law-making,44 and the difficulties that many indigenous communities will encounter when trying to lobby or take issues to court, the Court’s review of the 1999 Forest Law has been hailed as a turning point in the value of participatory law-making because it influenced the parallel process in the parliament to hash out a law on village management.45 Collectively, these endeavours ultimately paved the way for the enactment of the 2014 Village Law.

Observers of the law-making process have explained that to “turn an idea into a Bill and a Bill into a law requires quite distinct steps.”46 It entails getting into the Prolegnas via the naskah akademik so that a draft legislation emerges and gets discussed on the floor of the parliament. In that regard, the split between government drafts and parliament drafts is significant. In the case of the draft Village Law, the government at one point halted the process, forcing civil society groups to get together with an activist-turned-legislator, who could put pressure on the government to resume drafting by threatening to have parliament take over the initiative. This, in a sense, outmanoeuvred the government. Moreover, due to sustained lobbying, civil society groups succeeded in forcing the government to accept a law that was completely different from the draft the government had presented at the beginning. Although the Village Law was eventually presented as a government product, observers argue that it was the civil society organizations that kept the momentum and pushed the process using demonstrations, legal debate, political campaigns during election times, and active lobbying at times sponsored by international donor organizations. As one observer put it, “their success is that the law lent itself to unite a diversity of policy agendas and the communities pushing them.”47 Such a statement validates the argument that the process to find the Village Law sustains the tenets of the Law of Diversity. The final discussion below will explore the link between the two.

11 Applying the Law of Diversity

While the process of formulating the Village Law is perhaps not representative of law-making processes in Indonesia in general, it provides a good illustration of the three main components of the Law of Diversity, which this chapter examines. First, it involves asymmetry in application by allowing differentiation in the legal position of the groups. On one side, these groups are objects of the case, and on the other side, they function as subjects or participants in the law-making process. Granted, the legal position and rights of indigenous peoples in Indonesia now enjoy constitutional protection. However, by involving these groups in the law-making process, their asymmetrical position becomes solidified as a standard. The dialectics of law-making have proved beneficial for Indonesia’s indigenous communities.

Second, the process of the Village Law exemplifies the principle of pluralism of legal sources and subjects. In terms of legal sources, it entailed the Constitution, the assessment of a case determined by the Constitutional Court, legislation pertaining to participatory law-making, and administrative regulations concerning legislative preparation. In terms of subjects, it encompassed elected officials, administrators, experts, civil society organizations, and beneficiaries. According to the Law of Diversity, when pluralism is observed, it carries an obligation of mutual recognition, consideration of each other’s positions and interests, and ultimately, mutual acceptance. Therefore, the most vital non-legal prerequisites for adopting solutions are mutual trust and cooperation.

Third, the process of formulating the Village Law exemplifies the principle of negotiating content within a quasi-contractual framework. Participating in discussions with official law bodies may seem non-committed but is in fact quasi-contractual insofar that there is legislation in place securing access to participation in policy-making. Petitioning a court is usually also quasi-contractual in that the option is guaranteed any individual or civil society group that may have grievances. The Law of Diversity further expects that negotiations of content would go beyond pre-established majority and minority positions, thus making the distinction between rule and exception increasingly difficult if not obsolete. The Court’s decision on the 1999 Forestry Law did precisely this. By establishing the violations in the interpretation of what constitutes a state forest, the Court reversed the roles of state and traditional indigenous communities in regard to the use of forests in Indonesia. It gave power back to the disadvantaged. It did not only make an exception; it made a new rule and thus changed, at least in a prescriptive way, the guidelines for territorial management in local areas.

12 Conclusions

This chapter’s main objective was to introduce and elucidate the principles of the Law of Diversity, and to illustrate their application through the lens of the participatory law-making process surrounding Indonesia’s Village Law of 2014. Notably, this example not only showcases the tenets of participatory law-making but also highlights the significant role played by the Indonesian Constitutional Court in shaping the legal landscape.

The Village Law process serves as a compelling illustration of the multifaceted nature of participatory law-making, underpinned by principles like asymmetry, pluralism, and deliberation, which are core components of the Law of Diversity. By allowing various stakeholders to engage in the process, the Village Law experience emphasizes the importance of inclusive negotiations and diverse sources in shaping comprehensive legal frameworks.

Of equal importance is the transformative role played by the Indonesian Constitutional Court. Its involvement in reviewing the 1999 Forestry Law marked a pivotal juncture, redefining the relationship between the state and indigenous communities in terms of forest management. This landmark decision not only rectified historical injustices but also instigated a paradigm shift in the guidelines for local territorial management.

The participatory law-making process leading to the Village Law also underlines the significance of an approach that fosters deliberation and reflection throughout the negotiation process. This emphasis on inclusive dialogue underscores the notion that society’s self-formation thrives on the integration of diverse perspectives, an imperative that all societies should uphold.

In conclusion, the Law of Diversity is perhaps more than a procedure; it is a conceptualization of completeness. This framework encapsulates a comprehensive conceptualization that finds tangible expression in the complex interplay of actors, institutions, and legal mechanisms, as exemplified by the Village Law case. Furthermore, the symbiotic interaction between participatory law-making and the Indonesian Constitutional Court exemplifies the intricate dynamics that drive legal evolution and societal progress.

In conclusion, the Law of Diversity emerges as a framework that transcends mere procedural considerations. It encapsulates a comprehensive conceptualization that finds tangible expression in the complex interplay of actors, institutions, and legal mechanisms, as exemplified by the Village Law case. Furthermore, the symbiotic interaction between participatory law-making and the Indonesian Constitutional Court exemplifies the intricate dynamics that drive legal evolution and societal progress.

1

Leonard Lawlor citing Jacques Derrida, ‘Jacques Derrida.’ Stanford Encyclopedia 2005/2021.

2

Richard Holton, ‘The Exception Proves the Rule.’ Journal of Political Philosophy 18, Vol. 4 (2010), 369–388.

3

Jacques Derrida, ‘Force of Law: The ‘Mystical Foundation of Authority’’ in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel Rosenfeld and David Gray Carlson. (London: Routledge, 1992), 3–67.

4

The Law of Diversity was first framed by Francesco Palermo and Jens Woelk in ‘From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights.’ European Yearbook of Minority Issues. Vol. 3 (2003/4), 5–14.

5

Palermo and Woelk, ‘Law of Diversity,’ 12.

6

Ibid., 13.

7

Ibid., 12.

8

Onora O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge University Press, Cambridge, 1998).

9

O’Neill, Towards Justice and Virtue, 148.

10

Palermo and Woelk, ‘Law of Diversity,’ 12.

11

James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, 1995).

12

Tully, Strange Multiplicity, 117.

13

Ibid., 122.

14

Ibid., 125.

15

James Tully ‘The Crisis of Identification: The Case of Canada.’ Political Studies, 42 (1994), 77–96 at 84.

16

Jürgen Habermas, The Theory of Communicative Action, I, trans. Thomas McCarthy (London: Heinemann, 1984) and ii, trans. Thomas McCarthy (Cambridge: Polity Press, 1987).

17

Jürgen Habermas, “Struggles for Recognition in the Democratic Constitutional State”, in Multiculturalism, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 107–149. See also, Melissa S. Williams, ‘Justice Toward Groups. Political Not Juridical.’ Vol. 23, Issue 1, Political Theory (1995), 67–91.

18

Jacques Derrida, ‘Force of Law,’ 12.

19

See, Lawlar, ‘Jacques Derrida,’ Section 5.

20

Philip Allott, Eunomia. New Order for a New World (Oxford: Oxford University Press, 1990), 410, Section 19.23.

21

Allott, Eunomia, 410, Section 19.24.

22

Ibid., 411, Section 19.27.

23

Philip Allott, The Health of Nations. Society and Law beyond the State (Cambridge: Cambridge University Press, 2002), x.

24

Philip Allott, Eutopia. New Philosophy and New Law for a Troubled World (Cheltenham: Edward Elgar, 2016), 139, Section 7.61.

25

The deliberative turn rides on the back of many liberal democracy theories, from Edmund Burke and John Stuart Mill to John Rawls and Jürgen Habermas. One of the first to coin the phrase was John Drzyek in Discursive Democracy. Politics, Policy, and Political Science (Cambridge: Cambridge University Press, 1990).

26

John S. Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford: Oxford University Press, 2000), 1.

27

Dryzek, Deliberative Democracy and Beyond, 1.

28

Ibid.

29

Ibid.

30

Rebecca Willis, Nicole Curato and Graham Smith, ‘Deliberative democracy and the climate crisis.’ Climate Change, Vol. 13, Issue 2 (2022), 759.

31

Dryzek, Discursive Democracy, 43.

32

Ibid.

33

ohchr, Guidelines for States on the effective implementation of the right to participate in public affairs. https://www.ohchr.org/sites/default/files/Documents/Issues/PublicAffairs/GuidelinesRightParticipatePublicAffairs_web.pdf.

34

fao, Promoting participatory law-making for recognition of legitimate tenure rights. July 2021. https://www.fao.org/3/cb4490en/cb4490en.pdf.

35

fao, Voluntary Guidelines on the Responsible Governance of Tenure of Land Fisheries and Forests in the Context of National Food Security (vggt), 2012.

36

Law of The Republic of Indonesia, No. 6 of 15 January 2014 concerning Village. State Gazette of The Republic of Indonesia (2014), No 7.

37

The Village Law has been hailed as “revolutionary” by observers. See, Jacqueline Vel, Yando Zakari, and Adriaan Bedner, Law-Making as a Strategy for Change: Indonesia’s New Village Law. Asian Journal of Law and Society, Vol. 4 (2017), 447–471.

38

Decision 35/puu-x/2012, reviewing Law 41 of 1999 on Forestry, issued 20 March 2013 (Traditional Forest Community case) (2012).

39

See for instance, Mirza Satria Buana, ‘Understanding indigenous cultural rights in Indonesia,’ in Non-Territorial Autonomy and Decentralization. Ethno-Cultural Diversity Governance, eds. Tove H. Malloy and Levente Salat (London: Routledge, 2021), 195–214.

40

Jacqueline Vel, Yando Zakari, and Adriaan Bedner, Law-Making as a Strategy for Change, 459.

41

Kuntu State Indigenous Community Union and Kasepuhan Cisitu Indigenous Community Union.

42

See, Simon Butt, ‘Traditional Land Rights before the Indonesian Constitutional Court’, Law, Environment and Development Journal, Vol, 10, No. 1 (2014), 57, http://www.lead-journal.org/content/14057.pdf.

43

Decision 35/puu-x/2012, reviewing Law 41 of 1999 on Forestry, issued 20 March 2013 (Traditional Forest Community case) (2012).

44

Butt, ‘Traditional Land Rights,’ 71.

45

Buana, Understanding indigenous cultural rights in Indonesia, 197.

46

Vel, Zakari and Bedner, Law-Making as a Strategy for Change, 466.

47

Ibid.

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Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia

Series:  Brill's Asian Law Series, Volume: 12