oleh : Bernadinus Steni
Jumat, 13 Mei 2011
Early of this year, Central Kalimantan was highlighted for being appointed as a pilot area of REDD plus project between Indonesia and Norway. Soon afterwards, group of human rights defenders who for a long time actively support and promote the rights of indigenous peoples gawped at the situation in Palangkaraya where Thamrin Amal Tamagola one of the prominent human rights defender, was being adjudicated in “adat” judicial process for violating of what is supposedly called as adat norms (indigenous peoples’ norms) of Dayak peoples.
The case was started when Thamrin invited to a district court in Bandung to be an expert witness of Ariel who is trial for violating anti-pornography law. Thamrin is one of the great opponents against the implementation of this law because in his seeing, pornography’s definition is too broad and potential to blame and name culture’s practice and values as a part of atttack against pornography law. Besides, constitution 1945 has already scoped cultural expression as a part of fundamental rights that has to be protected by the state. Here, pornography law in the sense of Thamrin and most of human rights defender precisely having conflict with the constitution and therefore should be banned.
To defend his position serving human rights before the court, Thamrin again rejected the implementation of pornography law by expressing the danger of presupposition of uniformity of social practice in that law. Thamrin stands to his human rights perspective that pluralism is a requirement in such a heterogenic country like Indonesia. He then borrowed the finding of his past research in West Kalimantan, Mentawai and Papua to argue that pre-marriage sex (not free sex) is something accepted in those cultures. From the legal perspective, logic of his argument is describing that the most of marriage ceremonial in the most of sub-ethnic group in Indonesia is not recognized under the definition of Marriage Law No 1/1974 but done under the tradition. If these traditions are considered into pornography law, by definition they could be defined as immoral tort.
However, terminology of pre-marriage sex comes to some sort of equivocal meaning for individual and groups that claim themselves as Dayak indigenous groups. Most of them saying that Thamrin has misjudged the Adat of Dayaks and such mistakes must be punished. Protest were hailing cities in Kalimantan and demanding adat trial for Thamrin. Thamrin was accused for violating Dayak’s adat laws that respect the marriage institution including laws that regulating it (Pontianak Post, 14 Januari 2011). Governor of West Kalimantan Province and Central Kalimantan Province are two of the main political leader of Dayak peoples who lead the protest and urged Thamrin to convey national apology. Most of NGOs, including those who claim themselves as indigenous peoples’ rights defender especially from Dayak peoples support the adat trial. In their views, Thamrin is a representative of the darkness of social scientist who arbitrarily tags names and blames community through some categories that might be incompatible with realities and notions on the ground (Kompas.com, Kamis, 30 Desember 2010 | 14:05 WIB). Masyarakat Adat Dayak Nasional (MADN) or National Dayak Community; an institution consist of some dayak groups which appoint Mr Governor of Central Kalimantan as the chair react and demand the trial. Governor on his position as the head of MADN consolidated the adat chiefs to organize the trial. Thamrin was invited (Borneo News, Kamis, 20 Januari 2011 09:49).
Thamrin is consistent with his struggle to pluralism. He came at Central Kalimantan’s adat trial although the decision eventually attacks right on his academic profession. Adat judges, Lewis Kader, who read the decision obliged Thamrin to apologize to the Dayak tribe, handed a five-garantung (gong), pay the cost of peace Rp. 77.777.700, ordered Thamrin to revoke his testimony at the Bandung District Court and ordered to destroy the results of research that is assumed as an insult result for Dayak tribe (metrotvnews.com, Sabtu, 22 Januari 2011 14:33 WIB).
Most of human rights defenders deplore this trial. This justifies the fear of the most of human rights defender on the presupposition that “adat” could be politicized to serve the elites and protect the interest of power. There is no specific community which publicly raise the concern of perceiving any suffering because of Thamrin’s testimony, but Governor of Central Kalimantan did. There is no clear category here as to really claim that the use of “adat” to sentence Thamrin is firmly the way to employ some sort of local instrument to protect marginal people (adat) that is supposedly threatened by Thamrin’s research. But, it is clear that adat is used by MADN to claim that they are suffered from Tamrin’s testimony.
Adat verdict to destroy the result of academic research and revoking the testimony before the state court in order to recover adat’s value are something that have never been happened in Indonesian legal history. Just a few months ago, Constitutional Court banned the authority of prosecutor of prohibiting publications; one of the legacy of authoritarian regime of Soeharto to stabilize power against critics and control of mind. It has been gradually eroded. Deep breath just release, now comes a new treat. Through history, we learn that adat gradually occupied by the politics and now goes to primordialism of legal notion.
However, politics occupies adat is not a new matter as it has already rooted in the history since the era of colonial time. But a phenomenon that many of human rights defenders cannot understand and even owned by this situation is morally unacceptable. It is something that is a stepbackward that those (our friends) who claim themselves as the indigenous peoples activists and any time borrow the princple of human rights such as The United Nations Declaration on the Rights of Indigenous Peoples, Convention on Civil and Political Rights, Convention on Economic and Social Cultural Rights, etc are the main proponent of adat trial against Thamrin. We can understand that language of human rights are often politically taken by power and modals to oppose the others’ basic rights. But we cannot understand that those who are at least before Thamrin’s trial stand in the same line with us, now turn to using adat to justify the abuse of power and oppose the freedom of expression, one of the very basic of human rights.
Central Kalimantan has shown that adat is used very broad not to claim its original meaning to encounter totalitarianism and stop grabbing land and rights. Adat has been found by a lot of analysis such as Henley and Davidson (2007), Klinken (2007) to become the prominent political power to hit the opponent and silencing critics who potentially disrupt criticized power. Since it has been the identity, gradually civil society organizations or individuals are totally swallowed, even they claim themselves as a part of human rights defender but without keeping an enough distance from power, they will be immediately trapped into the power of political identity. They cannot control it but totally eaten by it.
In the context of REDD plus, “adat” on the hand of these elites will be used to exclude participation of others and demand to become the primary stakeholder in the name of suffering experience in the past. Suffering is manipulated by the elites who slyly capture “adat” as a blessing of identity to eliminate others and accumulate power and capital. Without considering this situation, the topic of “indigenous peoples” in REDD will be indirectly support and promote the abuse of power and perpetuate the totalitarianism.