REVITALIZATION OF THE KEWANG INSTITUTE IN THE SUSTAINABLE MANAGEMENT OF MARINE AND COASTAL NATURAL RESOURCES IN MALUKU PROVINCE

REVITALIZATION OF THE KEWANG INSTITUTE IN THE SUSTAINABLE MANAGEMENT OF MARINE AND COASTAL NATURAL RESOURCES IN MALUKU PROVINCE

 

Revency Vania Rugebregt[1]

 

1.Background

Indonesia is the largest archipelagic state in the world that consists of about 17,500 islands with an area of sea about 5.8 million km2 and stretches along the lines of 81,000 km. Most of the islands are small islands  bestowed with abundance natural resources and environmental services  offering huge potentials for economic development.[2] Unfortunately, for decades, coastal areas and their potentials were  rather ignored , because the orientation of development in Indonesia always put emphasis on the development of big islands, especially Java.  After the reform era, since 1998, the management of coastal areas has started to be developed quite seriously. 

Unfortunately the government's attention was not accompanied by a bottom-up approach that involves a population or community living in marine and coastal areas. Various policies from both the central and local governments have marginalized people who have rights over the areas. For example, permits granted by the government to individuals or corporations to manage the coastal ocean, has often resulted in unfavorable situations for the local people.  In many cases, these people lost their access to coastal areas and can no longer able to conduct economic activities in these areas once a permit is granted.

The presence of Act No. 27 of 2007, concerning the management of coastal areas and small islands, reinforces government policies that marginalize local communities.  The  Tim Ekspedisi Pesisir Jakarta (Jakarta expedition team), in its ,2007 study found that fishermen along Jakarta coastline could no longer access some the coastal areas.  According to the study, the fishermen could no longer land their boats at some points of Jakarta Bay, such ac industrial area around Tanjung Priok port and Cilincing.  The fishermen were also unable to access some areas that are currently under the control of private entities or real estates.   Similar case can also be found in other locations, such as in Paperu, Maluku Province or in Lombok, West Nusa Tenggara Province.[3]

   Before the political reform of 1998, one could hardly find legislation that assigned authories to the local government to formulate policies on natural resource management according to local characteristics.[4]   Apparently, this situation is in contrast with the Indonesian Constitution, which has established a clear guarantee for the protection of indigenous people’s rights.[5]

After the enactment of  Act No. 22 of I999, which later amended by the Act No. 32 of 2004, concerning regional government, local government holds autonomy and authority for marine resources. In this regard, from Article 3 and Article 10 paragraph (3) of Act No. 22 of 1999, and article 18 of Act No. 32 of 2004, one may conclude that both acts expressly provide authority to local government to manage their respective territorial waters,.  In these provisions, the province is given the authority to manage marine areas as far as 12 miles measured from the coastal line to the sea, and the regency/city holds the authority as far as one third of that of the province.

Although the authority of autonomous regional over marine areas and resources has been clearly formulated, the implementation of planning, utilization, and management of marine resources, and hence, the implementation of that authority, have mostly been debated and discoursed, but have not been completely resolved. 

Indonesia has many indigenous communities[6] which have existed long before Indonesia’s independence. These indigenous people have had control over coastal and marine areas, and have managed natural resources according to their cultural traditions, since time immemorial.

Maluku, one of some archipelagic provinces in Indonesia, has many islands rich with biological and non-biological diversity both at sea and on land.  These rich natural resources are indeed the wealth of the province that could benefit the province.. In most of the Maluku Province there are groups of indigenous or customary law community which generally still respect and implement their customary laws, especially in the management of marine and coastal resources.  In this respect, the customary laws has, for instance, provides guidance to the communities on how to use natural resources wisely and how to ensure the sustainable use of the resources.[7]

Indigenous people in Maluku have been involved in the management  of natural resources for quite a long time.  This can be seen in the well enforced and respected traditional structures, institutions, organization, and customary law aimed to protect and preserve the community’s natural resources.    The customary organizations called Kewang as part of the Pemerintahan Negeri (village or indigenous areas in some areas of Maluku) has for quite a long time been involved in the protection of forests, ocean, beach, and rivers in the province. The Kewang has existed for  generations.  The Kewang  has the responsibility to ensure compliance with various rules  related to the conservation of the environment.  These rules include , the prohibition of  indiscriminate logging, the prohibition of collection of stone and sand on the seashore and the kali (river) without a permit, the ban of coral collection, and the prohibition of excessive fishing and of arbitrary exploitation of other  resources without permit.[8]

Unfortunately, in many areas in the Maluku Province, the Kewang organization has begun to disappear as a result of the New Order regime’s policy that forced one form of village administration throughout Indonesia.  The regime enacted the Act No. 5 of 1979, concerning village administration, by which all structures of government in the smallest area had to be uniformed and transformed into the structure and function of desa, i.e. the model of village administration applied in Java. [9]   This policy eventually shut down and eliminated all customary institutions and their governance structures.  With uniformed administration throughout Indonesia, all the traditional structures and institutions were forced to disappear too. 

Despite such forced uniformity, some regions have miraculously managed to maintain local institutions or laws.  This is clearly shown, for example, in the case of the Kewang in the negeri (local term referring to village administration) of Haruku, which is still recognized and respected, and hence, plays a significant role in the management of natural resources in the region.  The existence of an indigenous institution like Kewang represents a good example of local wisdom in managing natural resources sustainably. 

This article is aimed to answer the questions of to what extent coastal management in Indonesia has recognized the adat communities’s rights, what role the institution of the adat communities can play   in ensuring sustainable management of natural resources, and to what extent the institution of kewang has contributed to the protection of the environment. 

 

2.Government Policies in Marine and Coastal Area Management

 

Damage on natural resources has the potential to severely affect communities that are highly dependent on the resources.   In this regard, coastal communities, which heavily depend on coastal areas and the sea to support their life, will suffer significant losses if these areas are damaged.  For the coastal communities, coastal areas and the sea are the sources of life.  Through the interaction and adaptation taking place for a very long time, customary coastal communities have created and developed values, patterns of life, institutions, and laws reflecting the harmony with the conditions and availability of natural resources. 

In many places in Maluku, customary rules on marine management have existed long before the existence of Indonesia. These traditional rules have indicated the traditional way of thinking in recognizing and respecting the importance of sustainability in the management of marine resources for local communities.  For many years the communities have practiced and developed their cultural traditions and customs related to the management of marine resources, leading to various traditional customs that are rich in diversity and dynamic in nature.

Natural resources, including marine natural resources, are the assets of the national economy, which shall be managed pursuant to the Article 33 paragraph (3) of the 1945 Constitution, stating that “Bumi dan air dan kekayaan alam yang terkandung di dalamnya dikuasai oleh negara dan dipergunakan untuk sebesar-besarnya kemakmuran rakyat”.[10]   According to Mohammad Hatta, one of the founding fathers of Indonesia, the phrase “dikuasasi oleh negara” (controlled by the State) does not mean that the State itself functions as an entrepreneur.  Instead, the phrase should refer to the state’s authority to formulate economic regulations related to natural resources, and at the same time to prevent the exploitation of certain parts of society by the capital owners.[11]   In principle, the control of the State is the authority of the state to manage natural resources for the greates benefits of the people, executed by establishing laws that protect the rights of the people. 

In establishing such laws, one important aspect is the recognition of the adat (customary law) community, and their community-based rights.  In this regard, Darmansyah praises the enactment of the Regional Government Act of 1999 because the act promotes regional autonomy and decentralization.  Under the concept of regional autonomy, decentralized authorities should be based on pluralism of the regions so as to lead not only to the formation of autonomous provinces or regencies/cities, but also to the recognition of customary law community as the genuine autonomous region.[12] Certainly, each customary law community has its own autonomous structures, functions, and authorities. 

Regional autonomy and the recognition of indigenous people should certainly affect the authorities in the management of marine and coastal areas.  In this regard, the authorities should be vested not only in the central, provincial, or local governments, but also in the customary law community.[13]

In reality, however,  the implementation of various laws and regulations related to coastal and marine management is often in conflict with customary law that also regulates the management and utilization of natural resources in coastal areas and the sea. This conflict occurs despite the adat communities and their embedded  rights have been constitutionally recognized in the Article 18B paragraph (2) of the Constitution, which states that “Negara mengakui dan menghormati kesatuan-kesatuan masyarakat hukum adat beserta hak-hak tradisonalnya sepanjang masih hidup dan sesuai dengan perkembangan masyarakat dan prinsip Negara Kesatuan Republik Indonesia, yang diatur dalam undang-undang.”[14]

After the reform era, starting from the fall of the Suharto’s New Order regime in 1998, the central government is faced with strong political pressures to decentralized most of authorities related to the management of natural resources.  These political pressures led to the enactment of Act No. 22 of 1999, latter amended by Act No. 32 of 2004, concerning regional government that formalize regional autonomy and decentralization in Indonesia.  Under the Regional Government Act, regional government has self-governing authorities in many aspects of governance, including those related to the management of natural resources.  Theoretically, such autonomous authorities should lead to the formation of laws or institutions that express the special needs and characteristics of each region.[15]

In Syafa’at’s point of view, by the enactment of the regional government act, the central government attempts to offer a paradigmatic alternative concerning the relationship between the central government and local government, as well as between government and the adat communities.[16]   The regional government act has also shifted the management of coastal and marine resources, from a centralized into a more decentralized management.  In Suhana’s opinion, such a paradigm shift represent autonomy-based management, by which local government, especially the regency and city, has greater authority in fishery management.[17]

 In reality, however, many regulations are sectoral in nature, in that they are actually directed to address some specific issues, which indirectly correspond to coastal and marine areas.   This situation has, in many cases, led to overlapping authorities and regulations.  Furthermore, such sectoral regulations have also the potentials to contravene with the existing and well-functioning customary laws (the adat laws) that also address coastal and marine management.  

The largest portion of Indonesia’s territory consists of marine area, and a large number of adat communities occupy some of Indonesia’s coastal areas.  These communities have traditionally controlled coastal and marine areas according to customary-based sea tenures referred to as hak adat kelautan.  The real control over costal and marine areas by these communities is closely related to the relationship between the communities and the areas and resources within, which has been inherited from the communities’ ancestors.  The areas under the control of the adat communities are characterized by the distinct authorities of the communities.  In this contect, authority means legitimate power owned by an individual or group of individuals to rule, govern, make decisions, enforce rules, or execute mandates.  

In many part of Indonesia, the adat communities have the authority to manage  surrounding natural resources based on genealogical rights, inherited from their ancestors.  Such rights exist even before the existence of Indonesia, and hence, cannot be separated from the existence of the communities. 

According to Act No. 32 of 2004, the regency or city has the authority to manage marine resources up to 4 miles from the shoreline, and the provincial government has such an authority from 4 mile up to 12 miles from the shoreline.  Such an arrangement might in reality contravene the adat communities’ rights in managing marine resources, since in many cases the communities have their own territorial rights according to the communities’ adat law.[18]

Conflicts might arise if these communities’ rights are ignored in the government policies.  These conflicts might eventually impair the effectiveness of the sustainable development and management of marine resources.  Hence, the recognition of the adat communities’ rights plays a significant role to ensure sustainable management of marine resources.

The adat communities’ rights in the management of coastal and marine resources are based on the so-called ulayat laut, i.e. sea tenure.  In Maluku, this sea tenure is called  petuanan laut.   In practice, the petuanan laut represents a system where individuals or social groups take benefits from marine resources by setting up certain level of exploitation, which is often guided by local wisdom so as to prevent over exploitation.[19]

A study of Hendrik Hattu shows that  in general all negeris in Ambon and Laese Islands recognize the existence of petuanan laut as a concept of property, indicated by the following boundaries:[20]

      a.   boundaries between adjacent petuanan laut (sea tenures)

In general, the boundaries are established by drawing an imaginary line from shores of each negeri until the line touches the boundary between shallow water (in local term referred to as the air putih, white water) and deep water (in local term referred to as the air biru, blue water).

      b.  boundaries between a sea tenure and high seas 

The boundaries represent the boundary between shallow water and deep water.  In this sense, deep water is considered high seas that can be accessed and utilized by any body.

 

These boundaries exist in the petuanan laut of almost all adat communities in Maluku.  They are established and determined through the structure of each adat community.  More importantly, the adat community has usually set up its own authority and law to govern how the member of the community can utilize the resources within the territory of the community.  In Maluku, such authority and law are represented in the form of kewang and sasi.

The sasi is “a ban on the use of specific piece of land tree or sea during a certain period”,[21] or a prohibition on harvesting specified domesticated and non domesticated land, tree dan sea resources.[22]  

The kewang is an adat institution which is charged with the management of society’s natural and economic resource.  It also supervises the implementation of adat rules and public order[23].  The kewang has, to some extent, functions similar to the police, with specific purpose in ensuring the protection of the environment. 

Unfortunately, as it has been discussed earlier, in many part of Indonesia, traditional institutions that may help manage and protect the environment, like kewang and sasi, are in the brink of extinction due to political ignorance of legal pluralism practiced for more than three decades.  In this regard, various legislative products or government policies, especially those related to the management of natural resources, have tended to ignore and eliminate the rights of indigenous people to control, manage, and utilize natural resources.[24]

Legal pluralism has, thus, effectively removed and displaced by the ideology of legal centralism, which was adopted by the government in order to create a unification, codification, and uniformity of law.  Under this banner, national law was considered the only law applicable to all citizens in the whole territory of Indonesia. In Griffiths’s words, law is and should be the law of the state, uniform for all persons, exclusive of all other law, administered by a single set of state institutions).[25]

Decentralization and regional autonomy that have extensively promoted since the policitcal reform of 1998, do not necessarily lead to better environmental protection and recognition of the adat communities’ rights.   In fact, when one carefully examines recent legislative products or policies related to natural resources, one soon finds a tendency towards more centralized, exploitative or use-oriented, capital-oriented, sectoral heavy, and not transparent laws.  One can also easily find many examples of laws that lack public participation and ignore the rights of the adat communities.  In this sence, one may conclude that many laws or policies issued by both central or local governments have been the source of environmental degradation and the marginalization of the adat communities in many parts of Indonesia.

 

3.The Role of Kewang in the Sustainability of Marine and Coastal Natural Resources

In general, the Kewang functions as the enforcer of rules in an adat community.  Since many rules also address the management and use of natural resources, kewang also plays a very important role in maintainging the sustainability of natural resources and the protection of the environment.   In many parts of Maluku, the kewang is present along with sasi.[26]

An example of well-functioning kewang and sasi in protecting marine resources can be found in Haruku.  As a traditional village, Haruku upholds the values ​​of derived from inherited local traditions.  The people preserve the local wisdom amidst modernization that occurs along with rapid scientific and technological changes.  One form of local wisdom in the management of natural resources and environmental conservation that still exists and is still performing well is the Kewang (literally means the stewards of the environment). The Kewang organization in Haruku has been existed since 1600, and has reached the 6th generation (1979 - present).[27]

In performing its role, the Kewang Institute is headed by a chief called Latukeang or Latukewano. The head of kewang supervises several officials and members of Kewang. The management structure of the institution consists of heads of kewang,  namely Kewang Darat, responsible for the management of natural resources in land, and Kewang laut, which is responsible for the management of marine resources.   Each of the heads of kewang is assisted by an assistant called sekel, one secretary, one treasurer, and dozens of kewang members.  The head of kewang and sekel are inherited,[28] whereas the kewang members are selected from the Soa, i.e. an assembly convening some families that are the member of the adat community in Haruku.  In Haruku, there are five soas, each of which will send eight members to represent the soa as the Kewang members.[29]

As explained earlier, the Kewang functions in addition to the customary law of Sasi.   This is a system of customary-based management and utilization of natural resources still recognized and respected in many areas in Maluku.  Some ethnic groups in Maluku employ different terms for Sasi.  For example, the ethnic group of Kei Besar employs the term Yot, whereas the Kai Kecil ethnic group uses the term Yutut to refer to Sasi. [30]

The practice of the Sasi is believed to begin since the fourteenth century.  Although the Sasi is a set of traditional rules of conduct in general, some people usually consider the Sasi as rules to conserve natural resources.[31]

The Sasi can also be interpreted as a traditional institution, which not only regulates the use of natural resources, but also reflects a traditional understanding on the relationship between humans, natural environment, gods, ancestors, and spirits.  The Sasi contains rules related to the management of land, sea, and the natural resources.[32]

In general, the Sasi throughout the Maluku Islands has a similar mechanism,  namely “buka sasi”  (literally means the opening of the sasi period) and “tutup sasi” (literally means closing of sasi period).[33]

The tutup Sasi is a declaration of prohibition, indicating that beginning from the moment of declaration no one is allowed to take natural resources freely.  The announcement of tutup sasi is carried out by the Kewang ​​ and generally is preceded by a traditional ceremony called the “panas sasi” (literally means “hot sasi”). Violation of the declaration will be punished with sanctions in accordance with customary law.[34]   The buka sasi is an announcement indicating the end of the prohibition period.  The buka sasi is also preceeded by the panas sasi ceremony.  During the buka sasi period, the members of communities are allowed to utilize the common resources pursuant to their needs.[35]  The duration of the buka sasi and the tutup sasi depends on the condition of natural resources and the discretion of the kewang.[36]

Research in villages in the Ambon and Lease islands, however, reveals a high level of environmental destruction in marine areas controlled by the adat communities.  The destruction results form the various activities, including the use of explosives and potassium in fishing, the destruction of coral reef, and the exploitation of sand and gravel.  One factor causing this destruction is the ineffectiveness of kewang in these islands.[37]   This means that the effectiveness implementation of local wisdom and institutions, such as kewang and sasi, needs to be revitalized and improved so as to enable such institutions to manage the environment sustainably.[38]  In this regard, Ruhulessin argues that sasi serves as custom-based institution that might closely correspond to the protection of the environment, while the kewang serves to monitor and enforce rules set up in the sasi. [39]

 

4.Impelementation of Customary Rights in Central Maluku

 

The implementation of customary rights related to natural resources in Central Maluku can be analyzed in three important aspects, namely: a). region, b). the Sasi and its implementing agencies, and c). social unit holder. 

 

4.1.Region

Discussions about the region in relation to customary rights in Central Maluku Sea cannot be separated from the concept of ownership. In many areas in Central Maluku, especially in the Nolloth area (the Saparua Island), there is a concept of tenurial righst over land and marine resources.  These tenurial rights are reflected in the region of petuanan.

In Central Maluku, the tenurial right over land is called petuanan darat.   This type of ownership provides rights for the members of adat community to manage resources.  In this regard, the members of the community, either individuals or families, can only cultivate the resources in a designated territory called dusun, leaving the territory of ewang (the community’s forested land) remain uncultivated.[40]

In addition to the petuanan darat, coastal villages in the Central Maluku also have a sea area that is part of an extension of petuanan areas into the sea.  This was evident in the presence of sea boundaries drawn from village borders on the mainland.[41] This sea area is called the petuanan laut, or the Labuan  (especially used in Nolloth and Haruku), representing a type of sea tenure.[42]

The region of certain communities implies the existence of certain limits.  In the Central Maluku, especially in Nolloth and Haruku Islands, both the petuanan laut or labuan and the petuanan darat have boundaries that are determined by natural or artificial signs to mark the boundaries.  For the petuanan darat rivers, hills, headlands, caves have been used as natural signs, while deliberately planted trees or special sticks have been used as articial signs.   For the petuanan laut, the limits are set by drawing an an imaginary line drawn from the shore to the sea, up to the boundary between shallow water (in Nolloth and Haruku is called the air putih, i.e. leterally means white water, or tohor) and deep water (in Nolloth and Haruku is the air biru, literally means blue water).[43]

Therefore, the boundary line between one petuanan laut with another tends to be subjective, because a community’s imaginary border depends on the subjective opinion of that community.  As a result, the exact petuanan laut border cannot actually be determined with certainty.  Hence, what the communities mean by the petuanan laut borders are actually  an approximation.  The limit is indeed quite flexible.  

The existence of the limits of the petuanan means that the area within those limits is an exclusive area for the community to which the petuanan belongs.  In this sense, the management of the area and resources is under the control of the community which claims the area as their common property.  Thus, other communities are prohibited from managing or exploiting marine resources within the area.

Unlike the petuanan darat that gives the rights of cultivation to the members of the adat community, the petuanan laut is entirely owned by the community.   In this context, no one has the right to transfer the sea tenure to someone else.  The only authority for the petuanan laut of a community is Raja (the head of the community), which acts on behalf of the community.[44]  For this reason, one may characterize the rights derived from the petuanan laut as usufruct rights, which provide rights only to cultivate or use resources commonly owned by the community.

The concept of common ownership above was evident especially in Nolloth and Haruku.  The two villages even have a labuan sasi, i.e. a sasi aimed at the management of the community’s labuan.  Under this sasi, the labuan is closed and cannot be accesses by any one, including the members of the community.  In Nolloth, exception to this rule is made for tourists who are still allowed to walk around or swim inside the labuan area, so long as they have permission from the head of the village and are accompanied by the community’s guard.  The sasi is placed on the labuan territory in order to protect and to enable sustainable use of topshell (Trochus niloticus), which in local term is called bia-lola.  The bia-lola population can be found mostly the villages of Haria, Ullath, Itawaka and Nolloth  In the labuan of Nolloth, the bia-lola and few other resources are allowed to be exploited by the community members only at certain time, indicated by a declaration of buka sasi by the community rulers.  The time for cultivating bia-lola and other resources are set according to sasi, demonstrating that the resources are considered scarce by the community.[45]

The location of labuan sasi for bio-lola is set about 6 km from the Nolloth Village.  This area stretch from the Umisin Beach (referred also to as the batu balubang area), indicating the border with Itawaka Village, until the Wailessy Beach, indicating the border with Ihamahu Village.[46]  A record made by the Head of Nolloth Village, the length of the Sasi has been extended twice.  Until 1977, the length of sasi was just over 1 km along the coastline.  In 1978, this length was extended by up to 2 km  along the coastline.  From 1990 the length has been further extended up to 2.5 km.  To the shore, the area of Nolloth’s labuan sasi is drawn from the coastline during the high tide periode to the sea until the depft of 25 meters.[47] . With the total area of 2.5 km, it is estimated that the area of labuan sasi in 1993 was approximately 46.5 ha, which indicates an increase from approximately 22.5 ha area of labuan sasi in 1978.  The extention of the territory covered by the bia-lola sasi is extended so as to allow a healthy population of bia-lola to develop[48].

Within the labuan in Haruku region, there are also areas where the exploitation of resources are prohibited, even for the natives Haruku people.  Exceptions are given for certain types of resources that can only be cultivated with certain methods or tools.[49].

The labuan Sasi in Haruku is divided into two parts.  The first part is the Sasi laut (the sasi on marine area), and another part is the Sasi lompa, i.e. a sasi about the harvesting of lompa fisth,  a small sardine found in Haruku. Interestingly, the sasi lompa is also placed on the Learisa Kayeli river, because the fish is also found in that river.  Therefore, this type of sasi is also referred to as the sasi kali, i.e. the sasi placed on the river.  Like the sasi laut, the sasi lompa prohibits the harvesting of lompa fish and other resources for a certain period of time.[50]  

Prohibition of exploitation is not only limited for the area of labuan Sasi, but also in marine area beyond the labuan.   In such an area, one can for instance found a prohibition to use certain type of nets, such as the so-called karoro nets, because of the fear that those nets might also catch a large numbers of lompa fish.[51]   In the area beyond the labuan, the lompa fish can only be caught  by fishing rod, and can only be caught as hook bait.  In addition, if several communities are in conflict about the harvesting of resources in certain areas, then these conflicting communities often decide to  place sasi on this area, and hence, prohibit the resources within the area to be harvested.[52]

 

4.2.Sasi and Law Enforcer

This section will discuss the sasi and the enforcement of sasi, including the law enforcer, the implementation of sasi, and sanction for the violation of sasi.

 

4.2.1.The Sasi

The sasi literally means ban, implying a prohibition to disturb, take, or destroy resources or goods which are placed under the sasi. The ban usually takes form in a provision prohibition to enter, take, or do something in a certain area and within a specific period of time.  In addition, the term sasi also refers to the overall institution. This is shown, for example, by the presence of the concepts of tutup sasi and buka sasi. These two concepts primarily refer to the rituals indicating the beginning of a restricting period (for the tutup sasi), and also the declaration indicating the termination of the restricting period.   After the declaration indicating the closing period of sasi all kinds of land and sea placed under the Sasi should not be taken or harvested.  It was only after a ritual indicating the opening of the Sasi period all natural resources in land and sea can be used or harvested.

Historically, the Sasi was first developed to regulate land and resources related to it.  In this regard, Lokollo states  that the sasi had been started since the times of the ancestors lived in mountains called Negeri Lama.[53]  When the people moved from the mountain and settled in coastal areas they also brought their tradition with them.  So, in this way they also started to develop the sasi on sea and marine resources.

In Nolloth, in the beginning there was only the Sasi on coconut.  This Sasi was meant to give a protection towards private property, i.e. coconut, so they were not to be harvested too early, or not to be stolen.   Later, the sasi is also placed on other resources, such as on the bia-lola.

Unlike in Nolloth, the people of Haruku have four types of sasi, namely:[54]

  1. The sasi hutan (forest),  i.e. a Sasi that regulates activities on forest utilization;
  2. Sasi kali (river), i.e. a sasi to arrange activities on river, such as the harvesting of  lompa fish, and other activities including bathing, washing and waste disposal restrictions;
  3. Sasi negeri (community or village), i.e. a Sasi on social behavior and daily activities of the communities, and
  4. Sasi laut (sea), i.e. a sasi set forth for the utilization of marine resources.

 

4.2.2.Organization

The Sasi is enforced by a local institution according to the customary law applied in that area.  In Central Maluku, the enforcement of Sasi is conducted by the Kewang in cooperation with the raja (head of the communities).  In this regard, Lokollo observes that in the adat communities in Maluku usually have a permanen agency of law enforcement, kewang, which consists of: raja (the head of a community), the heads kewang, the so-called kewang besar (literally means big kewang), anak kewang, marinyo, the so-called saniri meetings, landlords, the kasisi, and the mauwin.  Among these officials, the kewang besar and the anak kewang play the most important role in enforcing the community’s law, including the sasi.[55]

In addition, there is also the so-called sasi gereja (church), coordinated and enforced by the churce and the raja of a community.  This is different from the sasi kewang that is implemented by the kewang.  Unlike the sasi kewang, which has developed for a long time, the sasi gereja has existed quite recently, i.e. since 1968 in Nolloth and since 1971 in Haruku.[56]

In principle, there is no limit on the number of people involved in kewang.  In practice, however, the institution usually consists of fifteen to fifty people.  As explained earlier, in Haruku, the structure of kewang consists of the head of kewang darat, the head of kewang laut, a secretary and an assistant (sekel) for each head of kewang,  a treasury,  and forty members representing five soa in the community. 

 

4.2.3.The Implementation of Sasi

As explained earlier, sasi means prohibition to take or disturb certain resouces for a certain period.  For some resources, such as the population of bia-lola (topshell), sea cucumber, or batu laga (turbo shell, Turbo marmoratus), the tutup sasi (the prohibition to harvest) usually takes place shortly after the declaration of buka sasi (the declaration that permits the harvesting of resources).[57]  This means that the the harvesting of the resources is only permitted for a relatively short periode. 

Before a sasi is implemented, the head of kewang and his assistants put some signs to indicate the starting of tutup sasi period.  Afterwards, they declare that sasi has been placed in labuan, estuary, or river. 

The duration of sasi depends on the availability of resources and the needs of the people.  In this regard, the people use their own estimate to determine the proper time to harvest the resources.  For example, in Nolloth, it is determined that the proper time for harvesting the bia-lola is whenever the shell has reached the minimum diameter of 6 cm.  Hence, the tutup sasi for the shell will take place for a period estimated to be necessary for the shell to reach that size.  While in Haruku, the period of tutup sasi for the lompa fish will end whenever the kewang considers that  the population of the fish is already sufficient to meet the needs of the community, taking into account the needs to preserve the fish for bad weather.[58]

 

4.2.4.The Supervision of Sasi and Sanctions for the Violations of Sasi

As explained earlier, the Sasi is enforced by the Kewang, of which members are responsible to supervise the implementation of the Sasi. The public who happened to know the violation of Sasi shall also warn the violator and report the violation to the Kewang.[59]

In Haruku and Nolloth, the violator of sasi is brought to the local trial, which take place in the form of the kewang’s meeting.   After the trial, the head of kewang gives sanctions to the violator.[60] If the violator is underage, they usually get physical punishment, i.e. five time whips on the violators’ waist or according to the number of existing soa.[61]  If the violator is an adult, he/she will be given a sanction in the form of fines, of which amount is determined according to the type of violation.[62]

Based on customary rules in Nolloth, the amount of fines levied against violators of the sasi can be seen in the following table:[63]

 

Table 1:

fines levied against the sasi violation in Nolloth

TYPE OF ACTIVITY

SANCTIONS

Removing nets or activities that require swim or dive

Taking bia lola (top shell)

Taking batulaga (turbo shell)

Taking japing-japing (silver shell), or black Coral (Anthipates sp)

Take sea cucumbers

Taking the bahar root or black oyster (Pictada margaritifera)

Taking rock

Taking sand

Taking gravel

Catching fish by poison

Rp. 25.000/person

Rp. 7.500/piece

Rp. 25.000/piece

Rp. 2.500/piece

 

Rp. 1.000/piece

Rp. 5.000/tree

 

Rp. 5.000/m3

Rp. 7.500/m3

Rp. 10.000/m3

Rp. 100 000 .-

 

A violator who refuses to pay the fine will be brought to the head of village (the village’s saniri) and subsequently handled by the village’s saniri, which will make a decision about this case. If the violator still rejects the saniri’s decisions, then he will be brought to the local police.[64]

The violator’s rejection to the saniri’s decision has once occurred in Haruku in 1985.   The case was about a violation of an order to turn off the engine when a boat passing the river.   In this case, the violator who rejected the saniri’s decision ordering a fine of Rp 270,000 finally agreed to pay the fine of Rp. 200,000.[65]  It is, however, unclear why the amount of fine was lower when the case was brought before the police station. 

In the past, in Nolloth there was a tradition punishing the violators who were unable to pay the fine by tighting the violators with coconut leaves and then brought them around the village.  In front of the public, the kewang shouted some words that warned other people not to conduct similar violation.[66]

In addition to sanctions given by the Kewang, people in Nolloth and Haruku believe that there are also sanctions given by supernatural powers.  In this regard, the people believe that the violators who do not want to pay a fine, or do not admit that they have violated the sasi, will suffer pains.[67]

 

4.3.Unit of Rights Holders.

Different from the petuanan darat  (land tenure), which still allows an individual or family to own the resources. , the petuanan laut or labuan (sea tenure) is wholly owned by the community, and hence, is governed by the raja (the head of the community).  However, although the ownership of territory is in the hands of the community, it does not necessarily mean that the holder of rights throughout the region of the petuanan laut is the raja.  Instead, the raja only holds the rights of a marine area being placed under a sasi.  The right holders of marine areas that are not placed under the sasi are the members of the community.[68]

In Haruku, the rights to exploit resources in the river and sea are given to members of the community according to the following rules: the owner of net and his crue members get the first opportunity spread the net.  If is estimated that the net has caught enough fish (at around 3.00 pm), the net is drawn in by the community.  The harvested fish will be distributed for the community, in which the net owner will get 40 percent of the harvest, and the remaining 60 percent is for the whole community. From this 60 percent, some portion will first be spared for orphans and widows.  The remaining portion will be distributed to each family.  However, some members of the community, such as teacher, kewang officials, village officials, and crew members will get a privilege, i.e. larger portion, compared to the ordinary members of the community.[69]  In addition to such a collective fishing, individuals are also allowed to fish so long as they do not use boat or other other methods prohibited by the sasi.

In Nolloth, the transfer of rights has occurred two times, namely the transfer of rights to the members of the community and to private entities.[70]  The transfer of exploitation rights is believed to correspond to the value of resources, fairness, and the utilization of production.  Unfortunately, such a transfer of rights has caused problems in its implementation, especially with respect to the distribution issue.[71]   In the past, the transfer of exploitation rights to the private entities occurred mainly because the rights holders did not have knowledge to properly process and market a large number of fish.  Hence, after the processing and marketing channels are known, the transfer of exploitation rights to private entities was stopped because it is considered to cause detrimental impacts to the environment.[72]

 

5.Concluding Remarks

This article has shown that the adat communities in Maluku have their own wisdoms and cultures that are highly valuable for the the protection of marine ecosystem and coastal areas.  The practices of sasi and kewang in the adat communities in Maluku Islands, especially in Ambon and Lease Islands, represent a good example of an effective and sustainable management of natural resources. Without the existence of Kewang, which functions as a supervising institution, the destruction of forests, river, coastal areas and marine resources, will not be resolved.  In many adat communities in the Maluku Province, there are various effective customary rules that regulate how and when the utilization of natural resources may take place.

Accordingly, the integrated resource management and its sustainability are indeed the key words for a good resource management.  For this purpose, the availability of necessary legal tools is indeed of paramount importance.  The legal tools can give legitimacy to the existence, structure, powers and functions of traditional governance institutions, including the Kewang in the island of Ambon and the Lease Islands as a collective management of the preservation of coastal environment ecosystem.

One may expect that that the future management of natural resources will seriously take into account regional characteristics, for example by applyingthe bio-region approach and and considering the socio-cultural conditions of local communities.  The recognition of indigenous people’s access and rights to natural resources and of the local wisdom in the acquisition and utilization of natural resources, might well be expected as a first move towards better and just natural resource management.  In this regard, legal arrangements that respect and accommodate legal pluralism within the society, is inevitable.

 

 

 



[1]Lecturer at Faculty of Law, University of Pattimura.

[2]Departemen Kelautan & Perikanan, 2001, Pedoman Umum Pengelolaan Pulau-pulau Kecil yang Berkelanjutan dan Berbasis Masyarakat, Jakarta, p. 5

[3]Statement of the indigenous community of Paperu, February 25th 2008, urges the National Comission of Human Rights to halt a contract with a foreigner that has prevented the local community to access the coastal area they consider as common property.

[4]In this regard,  Syafa’at observes that the so-called hak menguasai negara (state’s right to control natural resources) has been used to justify various laws that have the potential to ignore or even eliminate the sovereignty of local or indigenous communities over natural resources.  According to the author, various acts, such as the Basic Agrarian Act No. 5 of 1960, the Forestry Act No. 41 of 1999, and the Fishery Act No. 5 of 1985 have been based on the state’s right to control natural resources.  The central government as the holder of this right have the authority to issue various concessions or licences to private entities to exploit natural resources, sometimes at the expense of indigenous community’s rights over natural resources. The author finds that these practices have led  a number of serious human rights violations.  Rachmad Syafa’at , Publica, Vol.IV. Nomor 1, Januari 2008, p. 13. 

[5]Article 18 of the Consitution (before amendment) states: “Pembagian daerah Indonesia atas daerah besar dan kecil dengan bentuk undang-undang, dengan memandang dan mengingat dasar  permusyawaratan dalam sistem pemerintahan negara, dan hak asal-usul dalam daerah-daerah yang bersifat istimewa” [The division of Indonesia’s territory  into large and small regions is established through acts, taking into account the basis of deliberation in the governmental system and the genealogical rights of  special regions].  The elucidation of the article states that “…dalam teori negara Indonesia terdapat Kurang lebih 250 zelfbesturende landschappen dan olksgammenschappen seperti Desa di Jawa dan Bali, Nagari di Minangkabau, Dusun dan Marga di Palembangdan sebagainya. Daerah-daerah itu mempunyai susunan asli dan oleh karena itu dapat dianggap sebagai daerah yang bersifat istimewa. Daerah Indonesia bersifat menghormati kedudukan daerah-daerah Istimewa tersebut dan segala Peraturan negara derah itu untuk akan mengingati hak-hak asal-usul daerah tersebut’. Artinya bahwa UUD tertinggi di negara ini tidak memberikan batasan apapun dan masyarakat adat seharusnya bisa meminta pertanggung jawaban pemerintah berdasarkan pasal ini.” [translation: “…in the territory of Indonesia there are approximately 250 zelfbesturende landchappen and volksgetneenschappen, such as desa in Java and Bali, Negeri in Minangkabau, dusun and marga in Palembang, and so on. Those regions have the original structures, and therefore can be considered as regions with special characteristics.  The Republic of Indonesia respects the position of these special areas and any state regulations concerning these areas will take into account the genealogical rights of the areas.”]  

The article has, thus, recognized and respected the existence of indigenous people and their customary rights (referred to as hak ulayat), including local wisdom arising out of these people.  Accordingly, the practices that ignored the existence of indigenous people’s rights, can actually be considered as the practices that violate the Consitution.   

[6]In this paper, the terms “indigenous people” or “indigenous communities” refers to what has been termed as masyarakat adat, i.e. community based on traditional/customary laws.  Hereinafter, the paper will use the term “adat community” to specifically refer to indigenous people in Indonesia. 

[7]A report of  the Tim Advokasi Sawit Perbatasan (TASP),  observes that although there have been no census concerning the exact number of people indentifying themselves as part of indigenous people, referred to as the masyarakat adat, several studies have estimated that the number of people identified as the members of various indigenous community may reach as many as 120 million people.  Tim Advokasi Sawit Perbatasan (TASP),  Pembangunan Perkebunan Sawit di Perbatasan Indonesia-Malaysia, Diskriminasi Rasial terhadap Masyarakat, 2009, p. 20.  See also: O.Lynch, “Whither the people? World Resources Institute, Washington DC, 1991;  C. Zerner, Indigenous Forest-Dwelling Communities in Indonesia’s Outer Island: Livelihoods, Rights and Environmental Management Institution in the Era of Industrial Forest Exploitation”, presented to the World Bank Forest Sector Review, World Bank, Washington DC, 1992; World Agroforestry Centre, 2005, Facilitating Agroforestry Development through Land and tree tenure reforms in Indonesia, ICRAF SE Asia Working Paper No.2, Bogor, 2005.

[8] H. Hattu,  (2005)Pemberian Wewenang Pengelolaan Wilayah Laut Kepada Daerah Otonomi Terhadap Hak Petuanan Laut Masya, rakat Adat di Pulau Ambon dan Kepulauan Lease, Universitas Sam Ratulangi, Program Pasca Sarjana Manado, p. 207-208

[9]There are various terms that refer to the function and structure of Javanese’s desa.  For instance, in Maluku alone the terms of negeri, aman, hena, or raschap have been used to refer to village administration.  Similarly, other regions throughout Indonesia have practiced village administration with different terms, such as nagari in Minangkabau, dusun and marga in Palembang, gampong in Aceh, huta, sosor, and lumban in Mandailing, kuta in Karo, jorong in West Sumatra, kampung in Kalimantan, Central Sulawesi, and South Sulawesi, temukung in West Nusa Tenggara and East Nusa Tenggara, and yo in Papua.  Certainly, these institutions have been severly damaged by uniformity forced through the Act No. 5 of 1979.  See: Rachmad Syafa’at, p. 13.

 

[10]Translation: “The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people”

[11] Mohammad Hatta, Penjabaran Pasal 33 UndangUndang Dasar 1945, Mutiara, Jakarta, 1977, hal. 28.

 

[12] Darmansyah, Optimalisasi Pelaksanaan Otonomi Daerah, dalam Otonomi Daerah;Eevaluasi dan Proyeksi, Yayasan Harkat Bangsa‐Partenrship, Jakarta, 2003, p. 193.

[13]Article 2, paragraph 3 point 2d Government Regulation No. 25 of 2000.

[14]Translation: “The State recognises and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law”

[15] Rachmad Syafa’at, Opcit, p. 14

[16] ibid

[17]Suhana, Opcit

[18] Hendrik Hattu dalam Revency Vania Rugebregt, 2010, Kebijakan Pemerintah terhadap Otoritas Masyarakat adat dalam pengelolaan Sumberdaya Alam Laut dan Pesisir di Propinsi Maluku, Thesis, hal 207-208, See also: R.Z.Titahelu, 2000.  Hak Hak Masyarakat Adat di Pesisir Atas Laut dan Pesisir Dalam Tantangan, Kajian Atas Eksistensi  Hak Hak Masyarakat Adat di Wilayah Pesisir dan Laut Menghadapi Wewenang Menguasai Dari Negara Dalam memanfaatkan Sumber Daya Alam Laut, Elsam (Lembaga Study dan Advokasi Masyarakat), Jakarta.

[19]Wahyono A., 2000. Hak Ulayat Laut di Kawasan Timur Indonesia, Media Pressindo, Jakarta, p. 54

[20]I H. Hattu, Opcit

[21] Benda-Beckmann F, Benda-Beckmann K.Arie Brouwer, 1992, Changing Indigenous Environmental law in The Central Molluccas : Communal Regulation and Privatitation of Sasi, Paper Presented to the Congress of the Commission on Folks Law and Legal Pluralism at Victoria University, Welington

[22] Ellen F.R, 1978, Naulu Setlement and Ecology : an Approach to the Environmental Relation of and Eastern Indonesia Community, Verhandelingen KITLV No. 83 The Hague M. Nijhoff

[23] Eliza Kissya, 1995, SASI AMAN HARU-UKUI, Tradisi Pengelolaan Sumberdaya Alam di Negeri Haruku, hal 22

[24]Roem Topatisang, 2004, Orang-Orang Kalah - kisah penyingkiran masyarakat adat Kepulauan Maluku, Insist Press, Yogyakarta.

[25] Griffiths, 1986:12

[26]Sasi can be found in almost all parts of Maluku Province.  For example there is a sasi on coconut in Tual community in Maluku Tenggara Regency or Laulahat community in the City of Ambon.  Kewang can be found, for example, in many highland areas in Ambon, such as in Toisapu or Hutumury.

[27] According to an interview with the Head of Kewang of  Negeri Haruku, Eliza Kissya, the author observes that until now the community of Haruku still carry out the sasi ceremony.  They used to have the sasi twice in a year, but due to severe environmental degradation, they can only conduct the ceremony once in a year.

[28]The head of Kewang is a position inherited by the indigenous people in Haruku.  In this regard, once a head of kewang passed away, the position will be given to his son or family.   Similarly, the position of sekel is an inherited position.

 

[29] Jantje Tjipatabudy, 2009, Laporan Hasil Penelitian tentang kearifan local Masyarakat Adat Halmahera Utara dalam Pengelolaan Sumber Daya Alam di Wilayah Pesisir

 

[30]Anonimous, 1991, Laporan Penelitian Hak Adat Kelautan di Maluku, Kerjasama Yayasan Hualopu Ambon, Maluku dengan Fakultas Hukum dan Pusat Studi Maluku Universitas Pattmura,Ambon September 1991.

[31] Eliza Kisya, 2009, “Kewang Negeri Haruku dan Keberadaanya”, presented at Workshop and Seminar “Lembaga Adat Indonesia: Apakah mereka memiliki Peran Dalam Pengelolaan Sumberdaya Perikanan dan Wilayah Pesisir ?”,  ICSF, Dinas Kelautan Dan Perikanan, Lombok, Indonesia 2-5 Agustus, Nusa Tenggara Barat

[32]Jantje Tjiptabudy, 2010, Thesis, Asas Keseimbangan Dalam Peengelolaan Sumberdaya Alam Wilayah Laut Dan Pesisir, p. 185

[33] ibid, 186

[34] ibid, 187

[35] ibid, 188

[36] ibid 184.  See also Eliza Kissya, 1995, opcit, p. 17-18.

[37]  H.Hattu, 2005, Opcit, p.  23

 

[39] Ruhulessin, 1985,  Peranan Korp Kewang Dalam Melestarikan Lingkungan di Kepulauan Lease, Majalah Hukum dan Pembangunan, FH.UI, Jakarta. p.   358 -359

[40] Lily Halim, 2006, Thesis, Eksistensi Hukum Pidana Adat Kelautan Dalam Perspektif Otonomi Daerah (Suatu Studi di Maluku Tengah), p. 83

[41]Ibid

[42]Ibid

[43]Ibid, p. 85

[44]Ibid

[45] Ibid, p. 86

[46] Ibid, p. 87

[47]Beyond the depth of 25 meters, the community considers that people is no longer able to dive to harvest the bia-lola.

[48] Jantje Tjiptabudy, Opcit, 185 - 186

[49]Ibid, p. 186

[50]Lily Halim, opcit, p. 89,  Lihat juga Jantje Tjiptabudy, 2010, p. 191 - 193

[51] ibid

[52]Revency Vania Rugebregt, 2009,  ibidem,

[53] Lokollo, 1988: 17

[54] Lily Halim, Opcit, p. 93

[55]Lokollo (1988), p. 3

[56] Lily Halim, p. 94 - 95

[57]Ibid, p. 96

[58] Eliza Kissya, 2009, Opcit, p. 12

[59] Eliza Kisya, 1995, p. 19

[60] ibid     

[61] ibid

[62] ibid

[63] Jantje Tjiptabudy, 2009, p. 225

[64] Jantje Tjiptabudy, 2009, Ibid

[65] Lily Halim, 2006, p. 99

[66] ibid

[67] ibid

[68] Ibid, p. 100

[69] Ibid, p. 101

[70] Ibid, p. 102

[71]Ibid,

[72]ibid

 

Comments   

+1 #1 broderie 2017-10-01 04:58
Thanks for sharing your thoughts about kewang institute.
Regards
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