Striking down adverse investment laws: success stories from Indonesia

How is it possible to challenge laws that promote investment but adversely affect the rights of local communities? Two legal empowerment practitioners from peasants' rights and indigenous peoples organisations in Indonesia recently shared their experiences during IIED's first Legal Tools webinar, writes Thierry Berger.

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Insight by 
Thierry Berger
25 March 2014
An excerpt from the Challenging the constitutionality of adverse laws: Success stories from Indonesia webinar

An excerpt from the Challenging the constitutionality of adverse laws: Success stories from Indonesia webinar 

Sharing success stories

Across the world, civil society organisations (CSOs) are taking action to make investments in natural resources fairer and more sustainable in order to protect the rights of citizens and the environment. IIED's Legal Tools for Citizen Empowerment initiative tests approaches, documents lessons and shares tools and tactics among practitioners from CSOs and legal and academic institutions.

But in a carbon-constrained and time-pressured world, we need new ways to communicate, interact and learn from one another without travelling the world to resource-intensive meetings. IIED is therefore facilitating the exchange of success stories and lesson-sharing via a series of webinars — online workshops that people can attend from their desk or portable internet device — on different legal tools.

The first webinar took place on 31 January 2014 and the topic was 'Challenging the constitutionality of adverse laws: Success stories from Indonesia'. Yudha Fathoni and Mina Setra shared their inspiring stories and showed how it is possible to have provisions in laws that adversely affect the rights of local communities overturned so that laws shaping investments in the natural resources are more likely to promote and protect rights of rural citizens.

Striking down adverse laws in Indonesia

Yudha, from the legal unit of the Indonesian Peasants Union (SPI), shared the experience of Indonesian civil society's successful challenge of a number of provisions in Indonesia's Investment Law No. 25 of 2007. They did this by filing a case with the Constitutional Court, which has the power to review the legality of national legislation in Indonesia.

The court struck down provisions of the law that authorised the granting of very long-term land rights to investors. Instead, the law now defers to the Agrarian Law of 1963. Download an article Yudha wrote about his experiences.

Mina discussed the work of the Indonesia Indigenous Peoples' Alliance of the Archipelagos (AMAN), an alliance that represents around 50 million people. To strengthen indigenous peoples' rights, AMAN recently developed a map of indigenous territories in Indonesia to make these more visible and ensure that the government upholds the rights of indigenous peoples.

As part of this process, AMAN challenged Article 1(6) of the Forestry Law No. 41 of 1999 which, the Constitutional Court held, discriminated against indigenous peoples as land title holders.

Watch the two presentations:

Choose the right fight and unite

The judicial process in some countries makes it easier to bring legal cases than in others, and it's not possible to challenge every adverse law. In Indonesia, constitutional challenges are a common strategy, often in combination with other advocacy approaches.

Two important lessons shared during the webinar showed that it is important to be strategic about selecting the piece of legislation to challenge. This often relies on bringing a group of legal and human rights experts together.

What's more, building coalitions and networks of CSOs, as SPI and AMAN did in Indonesia, can increase the participation of affected citizens in the analysis of the laws, and the visibility of the citizens that they represent. It also helps to create a pool of expertise and financial resources, which in turn can help bring success in challenging adverse laws.

Thierry Berger is a consultant with IIED's Land Rights team ([email protected]).

This was the first in a series of legal tools webinars, and more are planned throughout 2014. For more information, email [email protected].