Peasant women and access to land: customary law, state law and gender-based ideology: the case of the Toba-Batak (North-Sumatra).
ABSTRACT This study is about opportunities, constraints and strategies regarding access to land of peasant women who live in the changing Toba-Batak patrilineal community of North Sumatra. Their access to land is seen in the wider context of the ongoing pressure of land scarcity due to individualization, statization and privatization of communal land. The study challenges the adequacy of ongoing research on peasant women's access rights to land in developing countries. It challenges first, the adequacy of feminist theories in handling cross-cultural aspects of power and gender relation; secondly, the adequacy of peasantry theories to deal with peasant women; and thirdly, the adequacy of legal theories in understanding the complexity of plural normative orderings in developing countries.All in all, the study challenges the assumption that individual private property and control over land under the state legal framework is the ultimate way to secure the well being and empowerment of women. The objectives of the study are threefold. First, to show how different normative and institutional frameworks order the allocation of land resources. Secondly, to understand how colonial, religious, state, economic and political frameworks affect women, by underpinning local patterns of inequality. Thirdly, to assess the possibilities for differential access rights to land by peasant women and men.The study attempts to answer two sets of questions. The first sets of questions relates to changing familial and inter-lineage relation to land and its impact on women. How have the Toba-Batak conceptualised access rights to land over time? What changes have been brought about by the German missionaries, Dutch colonial administration and post-colonial state? Do women benefit from the plural normative orderings in acquiring access rights to land? The second set of questions relates to the pressure on communal land and its impact on women. What is the importance and function of communal land in Toba-Batak society? How does control over communal land shift to the state and private investors? What are the implications of the diminishing of communal land to local villagers? What kind of overt and covert resistance do they reveal? How do they strategize their access to land in relations to the state's increasing control over land?Following chapter one which provides the overall background of the study, chapter two introduces the situation of the Toba-Batak changing society in colonial times where the inception of legal pluralism has started to occur. The first western influence, Protestant Christianity, introduced quot;a process of individualization and secularization" to the Toba-Batak society . The christianization of the Toba-Batak had, to a great extent, smoothed the path for the Dutch to gain a strong foothold. Both the Germans and the Dutch had, in different ways, introduced the idea of incorporating leadership beyond the traditional spatial-lineage areas, characterized by a rigid hierarchical power structure. But it was the power of the state (in this case colonial rule) that was becoming more and more central to the further process of change, even though this power had been under continuous attack both by the (German) missionaries and the Toba-Batak themselves.The western colonial influence affected all areas of life, including those related to land and the position of women. Land tenure was selectively detached from its relation to the sacred nature of adat and from the essence of the adat community as "an association of worship whose members every once in a while strengthened the union among themselves or the union with the ancestors through celebrations". The efforts to ideologically detach land matters from the sacred nature of the adat created room to re-negotiate new relations to land, both internally within lineage relations and externally with outside actors. The changing internal relations may concern gender, as was the case with the education of female students and various more gender-neutral colonial jurisprudence. The promotion of the principle of gender equality into the Toba-Batak rigid, patrilineal society is, therefore, to be seen in the wider process of the "de-sacralization of adat". Likewise, the changing external land relations may be concerned with the emerging of (new) outside actors in accessing, managing and allocating the local land, a process in which the (colonial)state, individual Bataks and non-Bataks and private companies come into the picture.Chapter three demonstrates how contemporary Toba-Batak society is affected by the increasing power of the (post-colonial) state, especially during the New Order period. The Toba-Batak has become one local part of the wider Indonesian state that tries to develop its national economy. A major attempt to pursue the unification and centralisation project of the state is through the expansion of state modern bureaucracy and administration down to village level while neutralizing the adat principles and authorities which are often considered inconsistent with (universal) national ideals of justice (cf., Wignjosoebroto 1994 and 1997). Contrary to the patrilineal and highly patriarchal Toba-Batak adat , the Indonesian Constitution incorporates the principle of gender equality for all citizens. With the strengthening of state power, there are competing rights and rules pertaining to land, deriving from different sets of authority: the state and the adat . This multiplicity of rights and rules governing the land is not situated in a vacuum, but in the context of a dynamic process of land concentration vis-a-vis land scarcity. State intervention in the process of statization and privatization has been driven by contradictory forces between national economic ambition on the one hand, and the urgency for a more sustainable local resource management on the other.Chapter four and five result from the field-work in North Sumatra. Chapter four deals with the issue of access rights to land in a relatively normal daily life situation of internal village and lineage relations, based on a village study conducted in Siraja Hutagalung. Because of the pressure of land scarcity, the basic traditional practice of acquiring land through clearing an empty land or forest no longer occurs. This results in the two categories of acquiring access rights to land, namely the "generational and affinal transactions" which are heavily gender-biased and "reciprocal and economic transactions" which are geared towards fulfilling the function of an equitable distribution of basic livelihood, augmenting economic benefits and confirming each other's political position within the kinship and residential unit. Gender-based arrangement in accessing rights to land is the foremost and the only traditional way to keep the land within the restricted boundaries of the patrilineage.Chapter five provides an analysis of the ongoing conflicts on communal land that presently mark the relationships between the local people, the state authorities and private enterprise. The chapter demonstrates how the different notions of Toba-Batak's and women's access rights to (communal)land from different levels of normative orders and institutions are challenged, contested, conceded and reconfirmed. The discussion is located in the wider context of the changing political-economy because of the incorporation into the national economy. Three cases presented, namely Dolok Martalitali, Sugapa and Parbuluan, indicate how peasant men and women are affected by, and at the same time react to, the ongoing statization and privatization process of land under the state legal framework.In chapter six I return to conclude the various factors of change among the Toba-Batak which affect the "layered structure of property regimes" (Benda-Beckmann, forthcoming). The multifold function attributed to land proves to be the most important factor in explaining the attitude of Toba-Batak peasant women towards the rule of patrilineality in accessing rights to land within inter-lineage and familial relations. The current shift of allocation rights over communal land from the adat community to the state has noticeably marginalised the residing local people and the adat community both in the initial process of land transfer and in the subsequent process of deciding its use and exploitation. The findings of the study support the argument that the state development policy and practice often place more emphasis on the economic function of land while neglecting other functions a communal land might have for the local people. For women, it is the temporal dimension of the socio-economic security aspect of communal land affecting their reproductive task which is at stake in the process of land expropriation.I discuss some theoretical implications of the study. Rather than looking at kinship as a clear-cut and self-evident factor of hindering gender-equality or enabling it, the empirical study on Toba-Batak society has suggested that kinship simultaneously functions as both enabling and hindering factor for women's access rights to land under different circumstances. I am of the opinion that there is no such thing as gender solidarity among Toba-Batak women because their identity is shaped more by their kinship affiliation and position of seniority within kinship ranks rather than simply by gender. On the other hand, it is the resistance of peasant women against any outside intervention that makes the Toba-Batak struggle over communal land into a basic struggle over both resources and meanings as well as a struggle that shapes the borderline between the local groups' interests and that of the private investors vis-a-vis the state.The study also indicates that legal pluralism is a fact while the claim that state law is the only law is rather mythical. Based on this, the study concludes that gender-equality claim that state legal structures and norms directly cause and determine action for the betterment of women is highly questionable. The introduction of state law into matters related to land tends to detach land rights from wider social relationships, thereby neutralizing the restriction to endow land to women as well as the alienation of land to outsiders. These are seen in principal as opposing their Toba-Batak adat of patrilineality. On the other hand, in the cases relating to the expropriation of communal, the state law and judiciary system are seen as threatening rather than defending the interests of peasant women and the local community against the interests of private investors.