130 Environmental Policy and Law, 49/(2-3) (2019) DOI 10.3233/EPL-190146 Is There a Place for Local Wisdom in Indonesia’s Water Law? by Nadia Astriani, Ida Nurlinda and Chay Asdaki Water is a very important natural resource, used for inter alia drinking, irrigation, livestock, fisheries, power generation, transportation, industry and recreation. These many forms of water use can create conflicts of interest. For example, water rights may be seized for irrigation and industrial activities. Development activities can cause ecosystem disruption and threaten the availability of water in the region. As a result of these concerns, the utilisation of water resources is normally regulated so that every human being can have the same opportunity to use them. Indigenous peoples and communities have been living and developing in Indonesia for thousands of years, refining their social systems, unique belief systems, traditions and customary rules throughout the centuries (Langton et al., 2005). The International Labour Organization (ILO), in its 1989 Convention Concerning Indigenous and Tribal Peoples in Independent Countries, addresses, inter alia, “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations” (Article I.1.a). As such, it recognises the Adat People. Similarly, the Alliance of Indigenous Peoples of the Archipelago (AMAN) recognises indigenous peoples as communities with ancestral origins living in certain geographical areas, and possessing distinctive systems of values, ideology, political economy, culture and social interaction (AMAN, 1999). In the human-ecological theory of human relationships with the environment, indigenous peoples and old migrant communities that have lived for generations, perceive themselves as part of the environment. The environment is not only a resource but a limited one, to be preserved. The indigenous person’s values and norms are formed based on the experience of his life interacting with his environment (Sirait et al., 2000). Other research has noted that indigenous peoples have cultural, knowledge and technology capacity and religious traditions, as well as social capital in the form of ethics and environmental wisdom, norms and legal institutions for managing natural resources wisely and sustainably (Imamulhadi, 2018). In customary law, water holds a very important position. Water sources are well preserved to promote their best utilisation for the needs of indigenous peoples i These three authors are apparently Ph.D. students, and participated in the conference. 0378-777X/19/$27.50 © 2019 IOS Press (Wahyudi and Ploeger, 2014). Some customary areas also apply forest restrictions to maintain the availability of water for the community. In recent times in Indonesia, indigenous peoples applied their Sedulur Sikep1 approach in dealing with the environmentally impacting development by a cement company2 – primarily to protect the water source. The development of the current legal system in Indonesia has been influenced by three legal systems: customary law, Islamic law and colonial law. This research focuses on the influence of customary law related to water resource management on water law reform in Indonesia. Methods This research used a case-study method. The cases focus on the local wisdom found in adat (customary indigenous legal principles) in Indonesia regarding water resource management. A qualitative juridical analysis was then applied to these instances of local wisdom to determine whether they could be applied nationally and in accordance with the principles of sustainable development. Results and Discussion National and Customary law Indonesian society encompasses many various tribes. Among them some are indigenous people who maintain firm adat and traditions. This diversity enriches the life of the Indonesian people, as it also affects the development of Indonesian law. Indonesia embraces legal pluralism, which is defined for this paper as the application of various legal systems within a country or society. Legal pluralism is assumed to exist when the State recognises the existence of a customary law or local law in addition to laws made by the State (Nurlinda, 2015). Legal Approaches to Water Resource Management in Indonesia Water resource management in Indonesia is influenced by three different legal systems: customary, Islamic and western (Hartono, 1991). Under customary law, water is very important – an essential part of life. As a result, indigenous law is very protective of the availability of water and water resources. Water management is a communal effort. In Islamic law, water takes on an element of spirituality because it is used for worship (Prabowo, 2017). This renders the task of maintaining water quality very important. The influence of western approaches is less intrinsic. There, the management of water resources is individualistic and liberal. Environmental Policy and Law, 49/(2-3) (2019) In Indonesia, the history of formal State regulation of water resources begins with Law No. 11 of 1974 on Irrigation, subsequently codified in Government Regulation No. 22 of 1982 on Water Regulation and Government Regulation No. 23 of 1982 on Irrigation and Drainage (Wijanto Hadipuro, 2016). These laws focus primarily on management of water for agricultural needs. On 18 March 2004, Indonesia issued Law No. 7 of 2004 on Water Resources (the “SDA Law”). The substance of water resources management regulated by Law No. 7 of 2004, among others, regards the scope of water that is expanded with sea water on land. In addition, the Law more comprehensively covers the domain of management (conservation of water resources, utilisation of water resources, controlling and handling degraded water) and management processes. It also raises the rights and roles of the community in the process of water resources management. Water is declared a basic necessity, which is the right of every person and guaranteed by the State. In the context of the existence of indigenous and tribal peoples, this law recognises the existence of ulayat rights over water resources (Sulastriyono, 2015). On February 18, 2015, the SDA Law was revoked. Law No. 11 from 1974 was reinstated, supplemented by two new government regulations and 22 ministerial regulations to regulate the management and utilisation of water resources. Meanwhile, the House of Representatives initiated the drafting of a new Water Resources Bill. Customary Rights Customary law and practices are specifically recognised in the 1945 Constitution. In particular, Article 18B (amendment) states, The State recognizes and respects the unity of indigenous and tribal peoples along with their traditional rights as long as it is alive and in accordance with the development of society and the principle of the Unitary State of the Republic of Indonesia as governed by the law. Article 28I states “[c]ultural identity and the rights of traditional societies are respected in harmony with the times and civilizations”. Acknowledgement of the rights of indigenous peoples in the management of water resources can be found in other laws as well, including the SDA Law (2004) and Law No. 11 of 1974. Thus, the rights of indigenous peoples are recognised as long as they are still in existence and are not in conflict with national interests and legislation. These rights include the right to manage natural resources using their traditional wisdom. Customary Water Management Chay Asdak’s 2015 research on integrated water resources conservation shows that traditional wisdom related to water resources can still be found in various regions in Indonesia. Such traditional wisdom can be adopted by the local government and become part of government policy. Some examples are set out below. 131 In Gorontalo Province, local wisdom applies to the principles of agroforestry (locally known as Ilengi) (Asdak, 2015). A combination of seasonal plants and annual crops (agroforestry) is recognised as an adat conservation policy, because this planting system creates a stratified canopy which is effective in controlling the rate of erosion. The multi-tiered canopy operates to reduce the speed and magnitude of rainwater droplets, so that the rainwater’s kinetic energy is very small, by the time it reaches the soil surface. This process is particularly important considering that some upstream watersheds in Gorontalo province have steep slopes and low soil stability (rocky soil with thin soil humus). When these areas experience high rainfall, the Ilengi planting system functions in accordance with local biophysical characteristics to prevent erosion and landslides, and to increase the rate of water infiltration into the soil. It needs to be maintained and even expanded. At present, however, the continued application of the Ilengi system is hampered by mining activities, plantations and agricultural expansion. In the Konawe District of Southeast Sulawesi, the local wisdom is known as Mondau (Asdak). It focuses on replacing rice crops with other annual crops, particularly fruit and other trees, on customary land in forest areas. Like the Ilengi, its relevance to water resources conservation arises because such crops are very effective in reducing run-off and the amount of erosion. Other local wisdom can be found in Wakatobi and North Buton districts. Kaindea focuses on matters such as the local protection of springs – prohibiting the cutting of trees in those areas, although it is permitted to harvest non-timber forest products. In addition, in the Wakatobi district, another customary principle known as Motika limits the use of timber from local forests – it may be used for home needs, but may not be sold commercially. In Yogyakarta, local wisdom regarding village forests and retention ponds, known as Wono Deso and Telogo Deso respectively, addresses the uses of these resources as an alternative to the water supply for agriculture and fisheries/livestock, especially in the dry season (Asdak). For the land needs, the Government of D.I. Yogyakarta purchased the land using funds collected from corporate social responsibility (CSR) funds. In addition, the government also uses village land/bengkok and other lands controlled by the regional and village governments as locations for Wono Deso and Telogo Deso. In Mandailing Natal, North Sumatra, local wisdom is found in the form of an agreement between the members of the community and community leaders to maintain the sustainability and cleanliness of river water through the application of mutually agreed seasonal fishing restrictions (Asdak). The fish are seeded into the river, to be used for the development of the village. Fish harvesting is collectively timed in accordance with the agreed rules. Violations are subject to a fine of 5 million Rupiah per incident, to be paid into the village treasury. Local regulations, known as Lubuk Larangan, support this and other efforts to conserve water resources and maintain the integrity of river ecosystems and water catchment areas. 0378-777X/19/$27.50 © 2019 IOS Press 132 Environmental Policy and Law, 49/(2-3) (2019) In Central Lombok, the local wisdom of the Sasak Bekerase tribe involves the creation of retention basins (embung) for fish farming (Asdak). The embankment is then leased to the commercial fish businesses, subject to regulation regarding the utilisation of the retention basin, based on an formal agreement that allows the tenant to take the first and second harvests in the year, reserving the third harvest for the community. In order to maintain fish in the retention basin, it is essential that the quality of the water be maintained, especially by controlling the rate of erosion and landslides. To this end, the tribe encourages the maintenance of the quality of land cover in such a way as to reduce the rate of erosion and sedimentation, and thus allow fish to grow and develop optimally. In addition, the fish retention basin arrangement also increases the amount of water that is retained, and thus it can also serve as a water retention pool. In South Sulawesi, local wisdom on water management takes many forms. For example, in Tana Toraja there is a principle of Ma’pesung, under which every source of water becomes a place of worship so that the area and landscape around the springs must be maintained. Another example is Karama or Romang Karamaka. It provides protection for springs, stating that forests (saukang) should not be exploited in ways that disturb springs. Other forms of local wisdom are practiced by the Tudang Sipulung (Bugis tribe), Kombongan (Toraja tribe) and Empo Sipitangari (Makassar tribe). Through these, the respective communities conduct deliberations to collectively establish the optimal times for planting and utilisation of water (Asdak). In South Kalimantan, the Meratus Dayak tribes prohibit shifting cultivation and tree felling in the mountains, as seen in Angkipih and Peramasan villages, Banjar district, South Kalimantan (Asdak). Local rules are based on the understanding that the damage/ degradation that occurred in the mountains will disrupt the water resources. Where formal law is based on living law – by relying on the soul of the nation (volkgeist) – that law will more easily become part of the “legal consciousness of society”. This in turn will prompt people to obey the law because the law is perceived as appropriate, useful and perceived fair by society (Nurlinda). Adopting the traditional wisdom into legislation thus makes the legislation more effective and better accepted by the community. Conclusion Local wisdom is part of Indonesia’s water resources law. This is recognised in the Indonesian Constitution and in the Water Resources Act, as well as in the new Water Resources Act. Traditional wisdom related to water resources so far supports the sustainable management of water resources. When water resources laws are revoked and irrigation laws do not adequately accommodate current needs, local wisdom and customary law are able to fill the void. Furthermore, some forms of local wisdom may be adopted into legislation and 0378-777X/19/$27.50 © 2019 IOS Press incorporated into government policies as outlined above. Such legislation based on local wisdom is more readily accepted by the community and ultimately the rule runs more effectively as it suits the needs and sense of community justice. Acknowledgements This article is part of dissertation research sponsored by LPDP RI and Universitas Padjadjaran. References AMAN. (1999). Surat Keputusan Aliansi Masyarakat Adat Nusantara No.01/kman/1999 tentang Statuta Aliansi Masyarakat Adat. Jakarta: AMAN. Asdak, C. 2015. “Kebijakan Nasional Sumber Daya Air Terpadu”. Jakarta: Bappenas. Hartono, S. 1991. Politik Hukum Menuju Satu Sistem Hukum Nasional. Bandung: Alumni. Imamulhadi. 2018. “Penetapan Asas Kearifan Lokal Sebagai Kebijakan Pidana dalam Pengelolaan Lingkungan Hidup di Aceh”. Jurnal Magister Hukum Udayana 7(4): 468–489. International Labour Organization (ILO). C169 Indigenous and Tribal Peoples Convention, 1989 (No. 169): Convention Concerning Indigenous and Tribal Peoples in Independent Countries. Geneva, 1989; entered into force: 5 September 1991. Wijanto Hadipuro. 2016. Kajian Hak Atas Air. Jakarta: KruHa. Langton, M., Ma Rhea, Z. and Palmer, L. 2005. “Community-Oriented Protected Areas for Indigenous Peoples and Local Communities”. Journal of Political Ecology 12(1): 51–67. Law No. 11. 1974. Undang-Undang Nomor 11 Tahun 1974 tentang Pengairan. Undang-Undang Dasar Negara Republik Indonesia dan Amandemennya. Nurlinda, I. 2015. Monograf Hukum Agraria: Membangun Pluralisme Hukum dalam Kerangka Unifikasi Hukum Agraria. Bandung: LoGoz Publishing. Prabowo, H.S. 2017. “Konservasi air dalam perspektif Islam”. Online at http://mui-lplhsda.org/konservasiair-dalam-perspektif-islam/. SDA Law. Law No. 7. 2004. Undang-Undang No 7 Tahun 2004 tentang Sumber Daya Air. UndangUndang Dasar Negara Republik Indonesia dan Amandemennya. Sirait, M.T., Fay, C.C. and Kusworo, A. 2000. Bagaimana hak-hak masyarakat hukum adat dalam mengelola sumber daya alam diatur? Southeast Asia Policy Research Working Paper 24. Bogor: ICRAF-SE Asia. Sulastriyono, T.D. 2015. “Kebijakan Sektoral Lingkungan/SDA”. In: Syarif, L.M and Wibisono, A.G. Hukum Lingkungan: Teori, Legislasi, Studi Kasus. USAID. Wahyudi, D. and Ploeger, A. 2014. “Indigenous Knowledge (IK) of Water Resources Management in West Sumatera, Indonesia”. Future of Food: Journal on Food, Agriculture and Society 2(1): 52–60. Environmental Policy and Law, 49/(2-3) (2019) Notes 1 [Putri describes this as a “Javanese term for siblinghood/brotherhood/ sisterhood(sedulur) with a settled way of thinking (sikep)”. See Putri, P.S. 2017. “Re-Claiming Lost Possessions: A Study of the Javanese Samin (Sedulur Sikep) Movement to maintain their Peasant Identity and Access to Resources”. Master’s 133 thesis, University of Oslo. The current view of Sedulur Sikep in Indonesia is also discussed in Warassih et al. 2018. “Empowering Local Wisdom in Regional Mining Policies: Study in Pati Regency, Central Java”. EPL 48(5): 317–322. Ed.] 2 [Ibid. Ed.] DOI 10.3233/EPL-190147 The Impact of Biotechnology on the Pharmaceutical Industry in Malaysia: A Critical Discourse by Norazlina Abdul Aziz,i Siti Hafsyah Idris,ii Farizah Mohd Isaiii and Zuhaira Nadiah Zulkipiv A History of the Pharmaceutical Industry in Malaysia The pre-independence direction of Malaysia (known as Malaya back then) to regulate the sales of drugs was dependent on policy made by the British. During the colonisation era, the sales of drugs were governed by private law; thus, there was less intervention from the government.1 In the early 1900s, when the western countries were impacted by the vaccine tragedy,2 the eastern countries, including Malaysia, did not undertake any regulatory actions.3 The laws on medicine and drugs at that time were focused on labelling law which only affected misbranding of foods and drugs.4 During that period, the law required that the drug must be properly labelled, but did not seek to guarantee that it was safe. In 1952, the adoption of three ordinances marked the beginning of regulatory control over the pharmaceutical sector: the Sales of Food and Drugs Ordinance 1952, the Poisons Ordinance of 1952 and the Dangerous Drugs Ordinance of 1952.5 Several earlier laws had been enacted, which laid the groundwork for drug regulation in the country; however, the country’s drug laboratory was not established until 1969.6 In the 1980s, major amendments were made to those laws. By 2002, a multi-country study conducted by the World Health Organization (WHO)7 categorised Malaysia as a country that went through a discrete development of the law on sales of drugs. The first aim of the introduction of the 1950s laws was not to provide for the safety and efficacy of drugs; this only occurred through a later amendment in 19728 that extended the law to provide for drug safety and efficacy.9 Another reason for amending the 1950s laws was the claim that they had lost their potency by the late 1970s when they were unable to address the increasing infiltration of pharmaceutical products into the market.10 The 1961 Thalidomide case, which resulted in almost 10,000 physical defects in newborn babies worldwide,11 i ii iii iv Faculty of Law, Universiti Teknologi MARA, Selangor, Malaysia. Faculty of Law, Universiti Teknologi MARA. Faculty of Law, Universiti Teknologi MARA. Faculty of Law, Universiti Teknologi MARA. did not trigger any new regulatory activities regarding the sale of drugs in Malaysia, although these events did prompt several countries12 around the world to regulate their national drug law to incorporate rules of safety13 and effectiveness. Progress was occurring, however. The Second Malaysia Plan (1961–1965) was created and, in 1969, the Government Pharmaceutical Laboratories and Stores (GPLS) Complex was set up in Petaling Jaya – a landmark development in pharmaceutical services in the country.14 Malaysia’s era of industrial revolution saw a growth in the country’s mass production of pharmaceutical products, including the innovation of new pharmaceutical products. Among the new issues that arose during this era was concern regarding the inaccuracies of information supplied to the consumer.15 The innovation process for a new pharmaceutical product is longer than that for a new food product. Thus it was not considered practical to combine laws for food and drugs in a single piece of legislation or under a single administrative oversight agency – an approach that would have been more appropriate where the government intends to introduce registration of products as a means to control their safety and quality. Therefore, the government felt that it needed to have separate laws governing food and drugs.16 The late 1970s and 1980s saw major legislative activities relating to drug regulation. The Sales of Food and Drugs Ordinance 1952 was revised in 1989 to become the Sale of Drugs Act (SODA),17 which prohibits the sale of “adulterated drugs”.18 It also makes it an offence to sell drugs that do not contain the composition prescribed by the regulations.19 In 1984, the Control of Drugs and Cosmetics Regulations Act 198420 was also introduced addressing these concerns. The new regulations also gave birth to the Drug Control Authority (DCA).21 As of January 1985, the DCA required compulsory registration for all pharmaceutical products. From 1985 to 2012, registration and manufacturing licences22 were the main control mechanisms by which the DCA monitored pharmaceutical matters. Registrations of different categories of pharmaceutical products were enforced in six phases;23 0378-777X/19/$27.50 © 2019 IOS Press