Gender Bias in the Draft Bill on Customary Law Communities: A Reconstruction Based on Substantive Justice for Indigenous Women

Abstract

The Draft Law on Customary Law Communities is a legal instrument aimed at strengthening the recognition and protection of indigenous communities in Indonesia. However, the normative framework of this draft law remains dominated by an approach of formal neutrality and the recognition of collective rights, which risks overlooking gender-based power relations within indigenous communities. This research specifically aims to identify and analyse gender bias in the Draft Law on Customary Law Communities, particularly where it potentially overlooks the rights, participation, and protection of indigenous women within the structure of indigenous communities as well as in state policy, to explain the causes of gender bias, and to formulate a legal reconstruction oriented towards substantive justice for indigenous women, so that the recognition and protection of indigenous communities is no longer merely superficially neutral, but is truly responsive to the experiences and vulnerabilities of indigenous women. This research employs a non-doctrinal legal method, utilising the Feminist Legal Method approach and the Critical Theory paradigm. The analysis was conducted by identifying provisions in the Draft Law on Customary Law Communities that reflect gender bias, using the framework of the Feminist Legal Method and intersectionality. The research findings indicate that gender bias in the Draft Bill on Indigenous Legal Communities is structural in nature, reflected in three main aspects: the dominance of collective rights that obscures internal power relations; the neglect of the historical dimension of injustice in the practice of living law; and the assumption of homogeneity within indigenous communities that erases the experiences of indigenous women. Furthermore, the formal neutrality approach in the Draft Bill on Customary Law Communities has proven incapable of guaranteeing substantive justice, as it actually risks legitimising discriminatory practices. Through a comparative analysis of the Philippines (an institutional model via the IPRA 1997 and the NCIP), Bolivia (the 2009 plurinational constitutional model combined with Law 348/2013 on violence against women), and South Africa (judicial model through the rulings in Bhe v. Magistrate Khayelitsha 2004 and Shilubana v. Nwamitwa 2008), this study finds that the integration of a gender perspective requires a multi-level approach involving institutional, constitutional, and judicial dimensions. The novelty of this research lies in the development of a legal reconstruction framework based on substantive justice that positions indigenous women as active legal subjects within both customary and national legal systems.