Day 2 - Afternoon

7/30/2019 Day 2 - Afternoon

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TOPIC: The Hybrid Approach in Combating Forestry-related Crimes in Indonesia

Keynote Speaker: Prof. Laode Syarif, Hasanuddin University, Indonesia

Key Points of Discussion:

Indonesia shares same experiences with its neighboring Southeast Asian countries interms of combating forestry-related crimes the institutions that Indonesians trust are also

involved in the same crimes. Governments, according to Professor Laode Syarif of Hasanuddin

University, give licenses to companies to log in their forests. With this, they had found the

classical approach, which involved the Forestry Ministry, Police, Prosecutor, and the Court, to

be futile in holding criminals accountable.

However, for Indonesians, their fight does not stop there. With their eagerness to attain

justice coupled with their innovative minds, they formulated a new paradigm in fighting against

forestry-related crimesthe hybrid approach.

The Indonesian hybrid approach created an independent body which they named asthe Komisi Pemberantasan Korupsi (KPK) or Corruption Eradication Commission with their

existing laws combined such as the Anti-Corrupt Practices Act, Anti-Money Laundering Act, and

Forestry Act as weapons against corruption and forestry-related crimes. The paradigm shift was

based on their survey in 2001, after the fall of the Suharto regime, which showed that

Indonesians no longer trusted the police, prosecutor courts, and the tax office, among others.

Prof. Syarif explained that the classical approach had been ineffective in getting

environmental criminals convicted. For instance, in 2008, 1,439 cases were filed but none was

held accountable and convicted. He further stressed that the said approach only catches small

players while big fishes are mostly untouched.

In contrary, since the start of the implementation of the hybrid approach, numerous

Indonesian government officials and law enforcers, who were either directly or indirectly

involved in the operation of illegal activities of logging and mining, were successfully

prosecuted, sent to jail and penalized.

Recently, the Indonesias KPK was awarded with the 2013 Ramon Magsaysay Award in

the Philippines for combating corruption without fear. The STAR, a Philippine newspaper,

reported that KPK hasjailed more than 360 persons, most of them Parliament members, police

officials, bureaucrats, bankers, governors, ambassadors, judges, mayors and other untouchable

members of Indonesias society.


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TOPIC: Engaging Youth for Conservation through Field Research and Training in India

Keynote Speaker: Mr. Nirmal U. Kulkarni, Wildernest Goa and Mahdei Research Center

India


Traditionally, movements for environmental and biodiversity conservation have been

carried out mainly by adults professionals and volunteers for the sake of the youth of the

present and the future generations. Yet, in India, the youth are not merely beneficiaries but are

active partners of the adults in these movements.

Mr. Nirmal U. Kulkarni and the rest of his group in Wildernest Goa and Mahdei Research

Center India thought of developing second-liners of the movements from the Indias youth

sector. Their group engages youth who are as early as 10 years old in the field where they see

the youth doing exemplary performance than adult researchers do the data collection.

Kulkarni shared that they approach schools to talk with students about environment andbiodiversity conversation and screen and recruit those who are very interested with the talks.

Thereafter, they teach them on data collection and train them how to use various data collection

equipment. When the students are ready, the group takes them to forest areas where they

would stay eight to ten days to gather data on biodiversity in the said areas. At the end of the

expedition, the youths would come up with reports which, according to Kulkarni, captivate adult

researchers.

You provide the children with the equipment, say a camera, and after four or five days,

they would tell you other ways how to utilize the camera, Kulkarni remarked.

Kulkarni explained that children can do such things because they understand and likewalking in the forest, they do not have biases and they have fascinating observation skills.

Moreover, he took pride in sharing that they have children of ages 15 to 16, armed with proper

data, who are going to offices to file cases against environmental destructors.

However, Kulkarni emphasized that youth in villages should also be engaged and be

mobilized aside from the youths in urban places. He stressed that it should not only be urban

dwellers going to forest or to villages and file cases for the villagers.

Kulkarnis group, nonetheless, does not stop at engaging the youth in short-term

experiences of collecting data that are contributory for environmental policies, researches and

activism. They established an internship program where the youth are given the opportunity to

broaden their scope and be made known with various aspects that cause biodiversity loss such

as habitat change, overexploitation of the environment, pollution, invasive alien species, and

climate change.

Kulkarni also underscored the importance to keep monitoring data after any

environmentally-destructive activity has been stopped since data collection is a continuing


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process. He added that data, which is placed in public domain for formulation of policies,

research or for activism, has to be updated all the time.

It is important to engage students and invest more time with them, Kalkurni

accentuated.


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TOPIC: Issues and Challenges in Implementing Laws on Native Customary Land and

Indigenous Peoples in Malaysia

Keynote Speaker: Atty. Theivanai Amarthalingam, Sahabat Alam Malaysia (Friends of the

Earth Malaysia)


Violations against indigenous peoples rights are also among the crucial issues in

Malaysia, a home to 29 million people of different ethnicities of which 3.4 million are indigenous

peoples. Adopting a plural legal system of which sources of law are common law, customary

law and syariah law, Atty. Theivanai Amarthalingam of Sahabat Alam Malaysia (Friends of the

Earth Malaysia) related that Malaysia is facing many issues and challenges in implementing

laws that protect native customary land and the indigenous peoples.

Mainly, indigenous customary land rights are protected by Malaysias Federal

Constitution under Article 5 (right to life) and Article 13 (right to property) which have been

widely interpreted by case laws. Malaysias three basic regions Peninsular Malaysia, Sabahand Sarawak have also enabling laws for the protection of indigenous customary land rights

granted by the Malaysian Federal Constitution.

For instance, the Peninsular Malaysia has enacted the Aboriginal Peoples Act of 1954

which has become the main legal reference on Orang Asli (collective name of the indigenous

peoples in Peninsular Malaysia) customary land rights and tenure and addresses the affairs of

the Orang Asli through the establishment of a separate federal department known as the

Department of Aboriginal Peoples Development (JAKOA).

In Sabah, there is Majlis Hal Ehwal Anak Negeri Sabah which is a customary law that

oversees the affairs related to native customs, traditions and laws. There are also laws onnatural resources such as the Sabah Land Ordinance of 1930, the Sabah Forest Enactment of

1968, the Sabah Native Courts Enactment of 1992, the Parks Enactment of1994, and the

Wildlife Conservation Enactment of 1997.

Meanwhile, Sarawak also has customary laws such as the Majlis Adat Istiadat Sarawak

Ordinance of 1977 that governs the affairs of indigenous peoples in Sarawak and the Native

Customs (Declaration) Ordinance of 1996 which contains codified customs. Its natural resource

laws are the Sarawak Land Code of 1958, the Forests Ordinance of 1954, the Wildlife

Protection Ordinance of 1998, and the Natural Parks & Nature Reserves Ordinance of 1998.

Moreover, it has passed an administrative law on the matter which is the Native Courts

Ordinance of 1992.

On the other hand, Malaysia has also various common laws or laws developed by

judges through court decisions that protect indigenous peoples customary land rights. From

1991-2010, these judicial decisions on the said rights include: one that respects the pre-

existence of indigenous customary land rights before the enactment of modern legislation;

another which considers indigenous land rights as more than usufructuary rights, enjoying full

protection under Article 13 of the Federal Constitution and must be adequately compensated if


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lost; a decision that declares the fiduciary duty of the State owed to the people to protect

indigenous customary rights; and, one that declares the rights of indigenous peoples over

communal forests aside from family farms.

Evidently, like some other states, Malaysia has a plethora of laws but only few of them

are being implemented. Atty. Amarthalingam enumerated several issues and challenges that

they been facing in implementing such laws to protect indigenous peoples customary land

rights. One of these issues is the lack of transparency in forestry and land governance in which

Logging and plantations licenses are awarded in a non-transparent manner, especially in

Sarawak. Communities are rarely informed and consulted prior to the issuance of the said

licenses and information access can be extremely limited due to absence of a legislation

granting freedom to information.

Another crucial issue is that lands may be subject to regulatory measures which may

render it impossible for the continued exercise of their rights based on customary laws and

traditions. Indigenous customary rights can also be legally lost or terminated either through

establishment of production or conservation forests or land acquisition or resumption for publicpurposes. However, to this end, there is no mandatory requirement for FPIC (Free, Prior and

Informed Consent) or transparent information disclosure and compensation is usually not

adequate as there are no clear processes on how loss of rights over the lands should be

compensated.

In terms of legislation, there have been various amendments to existing laws or new

laws and policies enacted that threatens the rights of indigenous peoples such as the

Amendments to the Sarawak Land Code of1958, the proposed new amendments to the

Aboriginal Peoples Act of 1954, and the Land Surveyors Ordinance of 2001 that criminalizes

community surveys. Furthermore, progressive judicial decisions are not being respected by the

executive and legislative branches of the Federal Government.

Atty. Amarthalingam pointed out that the root cause of the said issues and challenges is

the absence of national policy, that is, the Malaysian Government has no comprehensive vision

in protecting the rights and welfare of its indigenous communities despite being a signatory to

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.

With no clear national policy to guide the protection of the peoples rights and welfare,

meaningful governance and statutory reforms can never take place in a systematic manner,

she explained.

Atty. Amarthalingam, then, laid down several recommendations to address the issues,

namely: the establishment of a National Policy on the Rights of Indigenous Peoples through a

participatory and transparent multi-stakeholder process, with the UNDRIP as a guiding

document; the institution of the Free, Prior and Informed Consent (FPIC) process for matters

that may affect indigenous communities; the enactment of a Freedom of Information Act to

ensure governance transparency and accountability; the study on the need for a Commission

that would govern the affairs and rights of indigenous peoples; the study on the need for a


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separate Tribunal to hear cases on violation or recognition of customary rights; and, the

education of law makers on rights of indigenous peoples, among others.

Documents

Day 2 - Afternoon