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The Nusantara Capital City Project: Why Development and Human Rights Do Not Always Mix
Abstract
This article examines the Nusantara capital city project and its sociological impact on individuals and groups’ rights in the East Kalimantan regions of Penajam Paser Utara (PPU) and Kutai Kartanegara. The Nusantara Act was enacted to legalize the building of this mega-project and was finalized within a period of only 43 days. Thus, the legitimation of the Act is contentious. It is predicted that there will be widespread political, cultural, environmental and economic effects that will be likely to affect society in general and marginalized groups in particular. It raises two important questions, “what are the public rights that could potentially be breached by the Nusantara development project?” and “Is it possible to identify the influence of national and local elites on the process of promoting and legitimizing the Nusantara Act?” This article describes the concept of Nusantara as stipulated in the Act, which is linked to human rights values that are specifically related to the right to development. Based on the mentioned framework, this article finds evidence of autocratic practices in terms of the government’s efforts to acquire land for the project. It has been found that these dictatorial practices have been exacerbated by ‘cooperation’ with extractive industries and local elites. As a result, indigenous groups and the local communities in the area have suffered a loss of autonomy and land rights due to lack of legal protection within the Act.
The core issue of this research is how the Honorary Body at the Regional People's Representative Council (DPRD) of Makassar City constructs the enforcement of the code of ethics. This study is a field research employing an empirical juridical approach and normative theological approach (syar'i). The data were obtained from primary sources such as legislation and other secondary sources. Data collection methods included interviews and documentation. Data analysis was conducted through stages of data presentation, reduction, editing, data analysis, and drawing conclusions. The results of this study indicate that: 1) The Honorary Body of the DPRD of Makassar City was established based on legislation and functions as an enforcer of the code of ethics; 2) The Honorary Body of the DPRD of Makassar City performs its duties based on the autonomous regional agreement under DPRD Regulation No. 1 of 2018 concerning Rules of Procedure; 3) The issue of code of ethics enforcement in the DPRD of Makassar City is the formal enforcement factor, which can only be reported by the leadership, resulting in an ineffective check and balance. It is recommended that the DPRD of Makassar City grants freedom to the public and involves community elements in monitoring the code of ethics for members of the DPRD of Makassar City.
The development of Indonesia’s new capital, Ibu Kota Nusantara (IKN) or the Nusantara Capital City, involves land acquisition, potentially impacting the rights of indigenous peoples. This study evaluates the effectiveness of normative law in protecting these rights during the land acquisition process. Using a normative method, it examines relevant laws, regulations, jurisprudence, and academic literature through qualitative analysis. The findings reveal that while a robust legal framework exists to protect indigenous rights, implementation challenges persist. Key issues include determining fair compensation, land ownership recognition, relocation, and cultural preservation. Addressing these problems requires improved synergy and refinement of laws and regulations. The study highlights the critical need to bridge the gap between normative legal provisions and real-world practices. It emphasizes a holistic approach involving the government, indigenous communities, and stakeholders to achieve equitable and sustainable development. By offering operational legal solutions, the research underscores the importance of consistent legal application to respect indigenous rights. The findings call for multidisciplinary studies to tackle the complexities of protecting indigenous peoples in large-scale development projects. Strengthening legal mechanisms and fostering inclusive collaboration are essential for ensuring development aligns with the rights and needs of indigenous communities.
The advantages of this article are discussing the Prohibition of Dynastic Politics from a Human Rights Perspective and Legal Formulas to Minimize Dynastic Politics as well as comparisons in three ASEAN countries. The research results concluded that the practice of dynastic politics cannot be separated from a human rights perspective, especially political rights for citizens. However, on the other hand, if it continues, the practice of dynastic politics can damage democratic principles. This is also based on comparisons in Singapore, Thailand and the Philippines. For this reason, in this article, the author provides a legal formula to minimize the negative excesses of dynastic politics, namely by strengthening the conditions for presidential/vice presidential candidates, gubernatorial candidates, mayoral candidates, and regent candidates in internal political parties. So that political parties will also strengthen the party system so as to avoid collusion and nepotism. To minimize dynastic politics, it is necessary to improve the culture within political parties. The reconstruction of the design of a democratic presidential candidacy is to prioritize the process of deliberation and consensus. Through the formation of the Party Consultative Assembly, it is hoped that it will be able to overcome and interpret the ideological ideals of political parties and the ideals of political leadership. This needs to be regulated in the Memorandum of Association/Articles of Association of Political Parties and the revision of the Political Party Law and Election Law. Furthermore, the analysis used normative legal research, including statutory, comparative, and conceptual methods.
At the end of 2022, we, Prasetyo Adi Nugroho and Ade Angelia Yusniar Marbun, researchers from Pusat Riset Hukum (Research Center for Law) BRIN (National Research and Innovation Agency), contacted Rudy Soeprihadi Prawiradinata from the Indonesian Ministry of National Development Planning (PPN/BAPPENAS) for a dialogue in his office. In our past project on the new capital city (Buana et al. Buana MS, Listiningrum P, Nugroho PA, Marbun AAY (2022) The Nusantara capital city project: why development and human rights do not always mix. The J Law Dev Rev 16(1):1–22. 10.1515/ldr-2022-0063), we engaged BAPPENAS in focus group discussions (FGDs) and an in-depth interview to see the relocation as not just infrastructural relocation but entangled with the human rights and the livelihoods of the local indigenous people. This time, we are keen to explore how Nusantara planning is responding to the context. We wanted to clarify that with Pak (Mr) Rudy. However, in February 2023, Pak Rudy retired from Acting Deputy for Facilities and Infrastructure. Our request was forwarded to Ibu (Ms) Tri Dewi Virgiyanti, the Director of Housing and Residential Areas, to continue the dialogue process. Her expertise in Environmental Management and Development, particularly in planning, policymaking, budgeting, programme coordination, monitoring, and evaluation of housing programmes and national residential areas, would be valuable for this book chapter. Her experience is crucial in planning the new capital city, Nusantara. In this dialogue, Ibu Tri Dewi Virgiyanti responded to the key questions we asked in writing. Her responses focus on the Master Plan of Nusantara and its implementation in response to the surrounding world of the diversity of religious and cultural characteristics in Indonesia.KeywordsNusantaraMaster planDiversity
International human rights law faces various critiques among scholars such as Mutua and Posner. Mutua claims that international human rights law fails to accommodate cultural values, while Posner demands about its effectivity. Referring to Langford, this paper uses critical analytic approach to evaluate Posner’s critique and Mutua’s main thoughts. Langford counter critiques of Mutua and Posner are significant to mediate the discourses by providing current evidence. While opposing Posner and Mutua’s critiques of international human rights law, this paper supports Langford’s counter critiques because of three reasons. First, Langford's comprehension can ensure that IHRL not only accommodates individual rights but also communal rights. Second, Langford’s recent study indicates the effectiveness of international human rights law. Third, Langford develops a new optimism that social rights are justiciable although the strategic idea of integrating human rights with development still needs to be elaborated further. Therefore, it is significant to follow Langford’s suggestion to optimizing the international human rights law as the most recognized general standard to prevent human rights violation against the abusive power.
The military's involvement in power and land ownership often leads to conflicts, both vertically and horizontally. According to the Agrarian Reform Consortium's records in 2020, agrarian conflicts involving military personnel during the Covid-19 pandemic were relatively stagnant. This paper aims to explore the conflict between the TNI Akmil Magelang and the Magelang City Government. The method used in this study uses a descriptive qualitative approach. Data collection techniques in this study using observation and documentation techniques and processing research data using the stages of data presentation, verification, and concluding. This study uses Pondy's (1967) theory regarding the stages of conflict as an analytical tool. The results show that the military conflict over land control with the city government has occurred since 1985. However, this conflict has not yet found common ground. The peak of the conflict occurred in mid-August 2020 when the TNI put up a sign at the mayor's office complex. The TNI gave an ultimatum to the Magelang City Government to leave or compensate for land assets. The development of the conflict is currently heading towards conflict resolution. However, it does not mean that in the end the conflict resolution can be found. This departs from the historical record where this conflict has been going on for a long time, and various parties as mediators are involved. However, the conflict continues to roll on and at any time can explode again in public.
Scholars have recently shown how in Europe regimes in democratic decay (e.g. Poland, Hungary) take all sorts of measures targeting and marginalizing political opponents. Although they are authoritarian by nature, the measures are cast in a legal form. According to some scholars this kind of authoritarian rule of law can be best understood as a dual state, namely a combination of the normative state (the rule of law) and the prerogative state (the pure—political or arbitrary—will of those in power). Building on these insights, the present paper makes two new observations. First, administrative law is distinctively well suited to cater for the creation of a dual state. By distinctively I mean better than civil and criminal law. In fact, I argue that administrative law constitutes a dual state in and of itself combining normative and prerogative state elements within a single area of law, in ways that cannot be done under civil and criminal law. Second, not only regimes in democratic decay but also liberal democracies make use of the dual state nature of administrative law. The paper illustrates this point with two techniques whereby liberal democracies use administrative law to circumvent or pervert the normal operation of criminal law, namely crimmigration and the alien detention of citizens. My underlying normative point is to draw attention to the inherent authoritarian potential of administrative law.
This article examines both theoretical and empirical discussion on strategies to overcome state-corporatism and developmentalism practices in East Kalimantan, Indonesia. State-corporatism is the term used to describe a political condition when a state has a strong linkage to organized groups. Developmentalism is an over-arching concept to describe a strong tendency of a state to maximize economics growths through investment, while disregarding people’s fundamental rights. East Kalimantan Province is selected because it is highly known as one of the enournous amount of natural resources found within among other provinces in Indonesia. However, the richness of this province has become a curse of its people due to massive destructions of natural resources. This paper seeks to analyse in what way human rights’ principles and indigenous spirituality can lessen the negative effects of ‘development’ projects sustained by state-corporatism. This article contemplates what strategies that can be executed to diminish state-corporatism effects in East Kalimantan, particularly in two important districts: Regency of Kutai Kartanegara and Bontang Municipality. This article argues that the indigenous spirituality is a key to battle state-corporatism’s influences. Indigenous spirituality as forum internum is still a potential tool of advocacy. By capitalizing the role of shamans, indigenous peoples might still have opportunities to reclaim and defend their cultural rights.
Indonesia's Constitutional Court has the power to declare invalid statutes that it deems conflict with Indonesia's Constitution. In several decisions, however, it has declared a statute to be 'conditionally constitutional'. In these cases, the Court has refused to strike down the statute, but has declared that the constitutionality of the statute depends largely on the way the statute is applied or implemented in practice. This article raises concerns about the Court’s use of this concept and suggests that 'conditional constitutionality' might not sit comfortably with the 'rule of law'.
This article explores the development of tertiary legal research skills education in Australia in the
underlying context of Australian legal education and the transformation of legal research resulting
from advances in information technology. It argues that legal research is a fundamental skill for
lawyers and that research training in a law degree must cater for the vocational needs of the
individual student whether their ultimate focus is practice or higher degree research. It argues that
the traditional doctrinal paradigm of legal research is no longer sufficient for modern lawyers and
that exposure to additional methodologies needs to be included in research training units. This
article argues that while legal research skills education has changed, it must continue to develop in
order to better cater for the needs of students, the profession and the academy in the contemporary
legal environment.
Previous efforts at legal development have focused almost exclusively on state legal systems, many of which have shown little improvement over time. Recently, organizations engaged in legal development activities have begun to pay greater attention to the implications of local, informal, indigenous, religious and village courts or tribunals, which often are more efficacious than state legal institutions, especially in rural communities. Legal pluralism is the term applied to these situations because these institutions exist alongside official state legal systems, usually in a complex or uncertain relationship. Although academics, especially legal anthropologists and sociologists, have discussed legal pluralism for decades, their work has not been consulted in the development context. This book brings together, in a single volume, contributions from academics and practitioners to explore the implications of legal pluralism for legal development.
This book critically evaluates different models of judicial leadership in Indonesia to examine the impact that individual chief justices can have on the development of constitutional courts. It explores the importance of this leadership as a factor explaining the dynamic of judicial power. Drawing on an Aristotelean model of heroism and the established idea of judicial heroes to explore the types of leadership that judges can exercise, it illustrates how Indonesia’s recent experience offers a stark contrast between the different models. First, a prudential-minimalist heroic chief justice who knows how to enhance the Court’s authority while fortifying the Court’s status by playing a minimalist role in policy areas. Second, a bold and aggressive heroic chief justice, employing an ambitious constitutional interpretation. The third model is a soldier-type chief justice, who portrays himself as a subordinate of the Executive and Legislature. Contrary perhaps to expectations, the book’s findings show a more cautious initial approach to be the most effective. The experience of Indonesia clearly illustrates the importance of heroic judicial leadership and how the approach chosen by a court can have serious consequences for its success. This book will be a valuable resource for those interested in the law and politics of Indonesia, comparative constitutional law, and comparative judicial politics.
Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these "legalistic autocrats" deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the legalistic autocrats before autocratic constitutionalism becomes fatal because they are often following a script using tactics that they borrow from each other. This Essay explains the paths that these autocratic legalists take, the danger signals that accompany their legal reforms, and the methods they use to dismantle liberal constitutions. The Essay also suggests how the legalistic autocrats may be stopped.
Free, prior, informed consent (or ‘FPIC’ as it is known) has emerged in recent years in international policy and civil society circles as the focal rights-based approach to safeguard indigenous rights in the context of industrial projects in indigenous territories. FPIC refers to a process whereby indigenous peoples affected by a project have the free choice, based on sufficient and timely information, of whether and how a project occurs, according to their systems of customary decision-making. However, despite this increasing and widespread endorsement in international policy and law, FPIC remains contentious, with governments voicing reluctance to confer ‘veto’ rights to indigenous peoples, and companies unsure on how to implement FPIC in practice. This article critically examines how FPIC emerged as the focal rights-based approach to ensuring indigenous peoples are not negatively impacted, and benefit from extractive projects such as oil and gas, and mining, while discussing some of the various challenges from industry perspectives in trying to implement FPIC in practice.
This report assesses the state of evidence on pathways to accountability in the global land rush, with a focus on Africa, and identifies areas for a new research agenda that places accountability at its centre. The report takes a twin-track approach of exploring how the legal frameworks regulating the land rush shape opportunities and constraints in formal pathways to accountability; and how people who feel wronged by land deals are responding to seek justice. These two perspectives broadly reflect the complementarity and convergence of two common ways of conceptualising accountability: ‘accountability as rights’, which focuses on the substantive rights and transparency of process established by legal and regulatory frameworks, and ‘accountability as power’, which emphasises the importance of citizen action, power and politics in public accountability. The report draws on an analysis of legal frameworks relating to 12 African countries, and on a review of 16 cases of LSLAs for which citizen responses were most extensively documented in the literature.
The American version of capitalism is no longer dominant around the world. In the next decade, developing countries are likely to continue to trade the flexibility and efficiency associated with the free-market model for domestic policies meant to ensure greater resilience in the face of competitive pressures and global economic trauma.
This chapter spells out the characteristics of the Right to Development, adopted by the 1986 UN Declaration as an international human right. It builds on the six questions identified by Sen as essential for understanding any theory of human rights, regarding importance and universality of human rights, corresponding duties and obligations, methods of protecting and promoting human rights, including justiciability and the place of economic, social, and cultural rights within human rights. The chapter demonstrates that recognizing RTD as a composite of different rights - which improves if any of these rights improve while no right deteriorates - facilitates its implementation by identifying the obligations corresponding to the component rights and their coordination as a development policy. It further argues that such a development policy can be seen as Sen's notion of meta-right, with the identification of duty-bearers with specific obligations. This would facilitate the operationalization of RTD according to human rights standards and allow corresponding obligations including those of the international community to be clearly delineated.
The Constitutional Court and Democracy in Indonesia provides detailed, English-language analysis of the decision-making of Indonesia's Constitutional Court in democracy-related cases. © 2015 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved.
This is a new analysis of rights, particularly of the paradigm: the claim-right. The new analysis makes better sense of rights than the leading alternatives do. The new analysis handles all of the well-known counterexamples to the Will and Interest theories; it seems not to generate counterexamples of its own; and it solves many long-standing puzzles in the theory of rights. Moreover, the central concepts of the new theory are as salient and forceful as are rights themselves.
The current global land grab is causing radical changes in the use and ownership of land. The main process driving the land grab, or ‘foreignisation of space’, as highlighted in the media and the emerging literature is the production of food and biofuel for export in the aftermath of recent food and energy crises. However, there are several other processes driving the land rush. In this article I argue that an analytical framework that focuses on only one or two processes that drive the global land grab offers a narrow perspective on this complex process. It will be unable to take into account the full range and extent of agrarian and social changes that occur in light of the land grab and their strategic implications for poor people's livelihoods. An important starting point is to identify the broad processes driving the current land rush, and trace their structural and institutional origins. To do so, I identify and examine seven factors that are giving rise to radical changes in landownership and land use in Africa, Asia and Latin America. Finally, ‘codes of conduct’ as proposed by several quarters in the context of global land grab are unlikely to work in favour of the poor.
The heated controversy over “citizen participation,” “citizen control”, and “maximum feasible involvement of the poor,” has been waged largely in terms of exacerbated rhetoric and misleading euphemisms. To encourage a more enlightened dialogue, a typology of citizen participation is offered using examples from three federal social programs: urban renewal, anti-poverty, and Model Cities. The typology, which is designed to be provocative, is arranged in a ladder pattern with each rung corresponding to the extent of citizens' power in determining the plan and/or program.
After decades of disappointing progress in building the rule of law in societies that suffer from poorly functioning legal systems, the development community has turned its attention to legal pluralism. Legal pluralism is a prominent feature in many development contexts, with both negative and positive implications for the rule of law. The negative questions revolve around whether or to what extent the presence of multiple coexisting legal forms hampers or detracts from efforts to build the rule of law. The positive questions revolve around whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide. This essay will explore these questions.
'Conspicuous consumption of valuable goods is a means of reputability to the gentleman of leisure.' In The Theory of the Leisure Class Thorstein Veblen sets out 'to discuss the place and value of the leisure class as an economic factor in modern life'. In so doing he produced a landmark study of affluent American society that exposes, with brilliant ruthlessness, the habits of production and waste that link invidious business tactics and barbaric social behaviour. Veblen's analysis of the evolutionary process sees greed as the overriding motive in the modern economy; with an impartial gaze he examines the human cost paid when social institutions exploit the consumption of unessential goods for the sake of personal profit. Fashion, beauty, animals, sports, the home, the clergy, scholars - all are assessed for their true usefulness and found wanting. The targets of Veblen's coruscating satire are as evident today as they were a century ago, and his book still has the power to shock and enlighten. Veblen's uncompromising arguments and the influential literary force of his writing are assessed in Martha Banta's Introduction.
Incl. bibl., abstract This article offers an intellectual genealogy of how the concept of human rights has entered the development discourse-from the formulation of a 'right to development' to the rhetorical incorporation of rights within prevailing discourse, to the articulation of a 'rights-based approach' to development. It concludes with some propositions about the important role that a focus on rights might play in the practice of international development.
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