“Mine, Yours, Or Ours?”
The Indonesia-Malaysia Dispute Over Shared Cultural Icons And Heritage
Jinn Winn Chong
As regional neighbours, Indonesia and Malaysia share
similar historical roots and cultural heritage. Ongoing disputes
over cultural icons and heritage were recently brought to the
fore when a third-party erroneously represented an Indonesian
traditional dance as Malaysian. Against the backdrop of this
occurrence, this paper discusses the many facets related to
disputes over shared regional cultural heritage – including the
current regimes of International Laws; the globalization factor;
the complexity of such disputes when they involve concerns
related to identity, economic development, historical relations
and latent tensions; regional implications of such disputes;
and options for dispute resolution.
1. The Dispute
In August 2009, Discovery Channel put together a series of
documentaries designated “Enigmatic Malaysia” to highlight
the cultural heritage of Malaysia. The 30-second promotional
piece featured the Balinese dance “Pendet” performed by
two Balinese dancers (ABC News, 04 September 2009).
Indonesian media sought to cast this as “another attempt”
of Malaysia to steal elements of Indonesian culture and
claiming them as Malaysian (Abdussalam, 25 August 2009).
The clip sparked outrage in Indonesia, and dozens of artists
together with hundreds of members from the public staged
rallies in the Denpasar Cultural Park in protest of the alleged
appropriation (Prathivi & Wardany, 23 August 2009). The
Malaysian Minister of Culture and Tourism sent an apology
to the Indonesian Culture and Tourism Minister, claiming
that the clip was not an official production of the Malaysian
government and was not a part of the Visit Malaysia 2009
Tourism Campaign (Kandasamy, 25 August 2009). In the
same week, Discovery Networks Asia-Pacific removed the clip
from all feeds, issued an official apology to Indonesia, and
affirmed that the clip was sourced from an independent third
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party (ABC News, 04 September 2009).
Despite these gestures from the Malaysian authorities and
Discovery Channel, tensions continued to run high. On 01
September 2009, more than 30 Indonesians converged on the
Malaysian Embassy in Jakarta, pelted the embassy with rotten
eggs, hoisted the Indonesian flag over its gates, and burned the
Malaysian flag; hundreds of art students also staged protests on
campuses throughout the nation (ABC News, 04 September
2009). In addition, Indonesian Culture and Tourism Minister
Jero Wachik refused to accept the apology from his Malaysian
counterpart, asserting the incident to be only part of “a series
of similar incidents in which Malaysia laid claims on cultural
icons from Indonesia.” (Sagita, 27 August 2009)
The incidents referred to by the minister include
the row over the use of the folksong “Rasa Sayang” for a
Malaysian tourism campaign in 2007, a song Indonesia
claimed originated in the Moluccan islands (Antons, 2009).
Disagreements over cultural icons have since then intensified
– ranging from disputes over the textile art of batik (Marks,
28 September 2009), the shadow puppet theatre wayang kulit
(Prathivi & Wardany, 23 August 2009), the ceremonial dagger
keris (Marks, 28 September 2009), to the Malaysian national
anthem “Negaraku.” (Noor, September 2009) This most
recent pendet controversy has since triggered a new round of
“cultural war;” with Malaysia staking claim on a multitude
of shared heritage including, among others, the percussion
instrument gamelan (Schonhardt, 03 October 2009), and
the meat dish rendang. Both countries are currently vying for
ownership over the bamboo percussion pipe angklung (Marks,
28 September 2009).
Meanwhile, Indonesian furore over the pendet controversy
has led to highly charge emotional reactions on the
grounds. Accusations of Malaysia as “a nation of thieves,”
(Pathoni, 02 September 2009) and branding of Malaysia
as “Maling(thieving)-sia”1 abound on online networks. On
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Malaysia’s Independence Day on 31 August 2009, more than
100 official Malaysian governmental websites were hacked,
defaced, and replaced with pro-Indonesian slogans (Noor,
September 2009). The anti-Malaysian mood eventually
culminated in gangs of vigilantes armed in bamboo spears
taking to the streets in Jakarta in early September, raiding for
Malaysian citizens (Setiawati, 09 September 2009).
Although leaders from Indonesia and Malaysia have since
appealed to citizens of both countries to restore calm and order
(Hermawan, 17 September 2009), the incidents illustrate how
rapidly emotive reactions connected to seemingly harmless
cultural spats could spiral into uncontrollable outcomes. As
several states in the Southeast Asian region share similar cultural
heritage, and many, if not all rely on these heritage elements for
various socio-political, economical, and development agendas,
the resurgent disputes between Indonesia and Malaysia
demonstrate the pressing need to examine and address some
of the root causes of disputes over cultural icons and heritage.
2. Contemporary Legal Framework Under
International Law
2.1 Cultural Property Law
The rhetoric employed by both Indonesia and Malaysia in
the pendet controversy suggest that both states regarded cultural
heritage as “property” capable of being owned. In 2007, the
Culture and Tourism Ministry of Indonesia threatened to
sue Malaysia over the incident related to the folk song Rasa
Sayang (ABC News, 04 September 2009). More recently, in
the aftermath of the pendet incident, the same Ministry, in
collaboration with the Justice and Human Rights ministry
have looked into the possibility of bringing a suit against the
alleged appropriation of pendet (Antons, 2009).
Under International Law, the term “cultural property” first
appeared in the 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict (Hague
Convention, 1954); and later in the 1970 United Nations
Educational, Scientific and Cultural Organization Convention
on the Means of Prohibiting and Preventing the Illicit Import,
Export, and Transfer of Ownership of Cultural Property
(UNESCO Convention, 1970). The former defines “cultural
property” as movable and immovable property of great
importance to the cultural heritage which include, amongst
others buildings and areas that contain a large amount of
cultural items (art. 1); while the latter defines cultural property
as property specifically designated by each State as being of
importance for archaeology, prehistory, history, literature, art,
or science (art. 1).
Both conventions constitute the current regime of
Cultural Property Law incorporating two schools of thought
(Merryman, 1986): the 1954 Hague Convention being
generally considered as embodying the concept of “Cultural
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Internationalism,” which regards all culture as components
of a common human culture independent of property rights
or national jurisdiction, whatever their places of origin or
present location (Merryman, 1986); and the 1970 UNESCO
Convention being generally viewed as representing the
concept of “Cultural Nationalism” which envisages all cultural
elements to belong within the nation of origin’s boundaries
(Sljivic, 1997-1998).
Research shows that the cultural nationalist position is
currently predominant (Merryman, 1986, Sljivic, 1997-1998,
Blake, January 2000), as existing international law is by large
based on principles of national patrimony and the right of
territorial sovereignty (Vernon, 1994). Thus under the current
international legal framework, cultural property is treated as
“each nation’s… undisputed possession (Coombe, July 1993,
p. 246).”
Notwithstanding these conceptions, a claim of
appropriation under Cultural Property Law would prove
very difficult for several reasons. First and foremost, the
scopes of both conventions do not apply to a general claim
of appropriation of cultural heritage. In addition, there is no
evidence to suggest that the concept of “cultural nationalism”
has attained the status of customary international law and a
general claim under the principle could be brought outside of
the aegis of any specific treaty or convention. The nature of
cultural heritage forming the basis of the current dispute is also
pivotal. The pendet dance, the Rasa Sayang song, the rendang
dish, etc. mostly constitute intangible forms of cultural heritage,
which would fall beyond the scope of Cultural Property Law
which protects the “physical embodiments of tangible goods
(Scafidi, 2001, p. 813).” Repatriation claims, such as the
Grecian claim for the Elgin marbles from the British Museum
(Emerling, 2009), and South Korea’s repatriation claim for the
Joseon royal texts from a French library (Jung, 2010), typically
revolve around tangible heritage items.
2.2 Intellectual Property Law
Both Indonesia and Malaysia are parties to several
multilateral treaties governing Intellectual Property rights,
including the 1967 Convention Establishing the World
Intellectual Property Organization (WIPO Convention,
1967); and the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement, 1994).
In a broad brush, copyright lends itself as most relevant
in the present dispute. In relation to copyright, article 9 of
the TRIPS Agreement requires members to comply with
the provisions of the Berne Convention for the Protection
of Literary and Artistic Works (Berne Convention, 1886),
a multilateral treaty administered by WIPO of which both
Indonesia and Malaysia are parties to. Article 1(6) read
together with Article 19 of the Berne Convention obligate
members to extend the rights stated under the convention, or
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the rights greater than stated under the convention to works
emanating from member states. Copyright laws in Indonesia
and Malaysia are governed by the 1982 Copyright Act of
Indonesia (Revised 2002) (1982 Act), and the 1987 Copyright
Act of Malaysia(1987 Act), respectively.
On closer examination, requirements posited under the
Berne Convention (and adopted by both the 1982 and 1987
Acts2) of originality, fixation, authorship, term of protection,
fair use constraints, and public domain provisions pose
significant inhibitions to applying copyright protections to
intangible cultural heritage (Torsen, 2008).
For a work to be eligible for protection under copyright,
it must satisfy the requirement of “originality” under both the
1982 and the 1987 Acts. Originality, as defined by judicial
pronouncements over the years, pertains to a work that is
merely not copied from another work (Kuek, 2005). Despite
such low threshold of originality, most intangible cultural
heritage would still fail the test of originality as they “draw
largely upon pre-existing tradition, custom, and belief which
have evolved over the passage of time (Kuek, 2005, p. 37).”
In addition, works must be reduced to material form
for copyright to subsist. Many forms of intangible cultural
heritage would fail to satisfy this requirement as traditional
dances (e.g. pendet), folk songs (e,g. Rasa Sayang), traditional
recipes, theatres, etc. are often passed down from generation
to generation through imitation and practice (Kuek, 2005).
Other requirements of copyright are also antithetical
to the nature of most forms of intangible cultural heritage.
Copyright is usually granted to individuals or joint authors of
works. Identifying the sole author to a particular intangible
cultural heritage would be problematic in light of customary
regard of these elements to be communal and belonging to the
collective rather than the individual (Torsen, 2008). Another
challenge is the term of protection granted under copyright,
which is usually the life of the author or authors in the case
of joint authors and 50 years thereafter. Such limited term
of protection would defy the intergenerational nature and
interests of intangible cultural heritage (Kuek, 2005).
2.3 Sui Generis Laws Related to Intangible Cultural Heritage
In 2003, an effort was made by to broaden the scope of
cultural property to encompass both tangible and intangible
cultural heritage (Riley, 2005). The UNESCO Convention
for the Safeguarding of Intangible Heritage (UNESCO
Convention, 2003) was adopted in October 2003, and came
into force on 20 April 2006 after ratification by 47 states.
The definition of intangible cultural heritage under Article
2(1) of the convention encompasses many salient features
such as:
The
practices,
representations,
expressions,
knowledge, skills – as well as the instruments, objects
artefacts and cultural spaces associated therewith
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– that communities, groups, and, in some cases,
individuals recognize as part of their cultural heritage.
This intangible cultural heritage, transmitted from
generation to generation, is constantly recreated
by communities and groups in response to their
environment, their interaction with nature and their
history, and provides them with a sense of identity
and continuity, thus promoting respect for cultural
diversity and human creativity.3
Article 2(2) lists the domains of intangible cultural
heritage, which includes, amongst others, oral traditions and
expressions, performing arts, social practices, and traditional
craftsmanship.
The 2003 UNESCO Convention commits member
states to the drawing up of inventories of their intangible
cultural heritage, and to collaborate with local communities,
groups, and practitioners to develop plans of safeguarding the
heritage (Kurin, 2004). The convention also establishes an
Intergovernmental Committee to oversee the preservations of
intangible cultural heritage and the creation of two lists – a
Representative List of the Intangible Heritage of Humanity,
and a List of Intangible Cultural Heritage in Need of Urgent
Safeguarding. As of October 2009, there are 90 entries on the
Representative List, with three entries from Indonesia and one
entry from Malaysia (Representative List, 2009).
All three entries of Indonesia involve the contested
items of cultural heritage with Malaysia, namely kris, wayang
kulit, and the most recent addition in October 2009, batik.
Malaysia’s sole entry is an uncontested one, the mak yong
theatre. The latest batik entry was seen as “a victory” (Collins,
05 October 2009) by many Indonesians, including President
Susilo Bambang Yudhoyono who called on all Indonesians
to be dressed in batik on the day in celebration of the entry
(Schonhardt, 03 October 2009). The victory however is more
symbolic in nature, as the recognition “neither puts a patent on
batik’s production nor grants [it] intellectual right protection
(Schonhardt, 03 October 2009).” Program specialist for culture
at Jakarta’s UNESCO office, Masanori Nagaoka explained
that the UNESCO designation is “merely a tool to ensure that
states take action to protect… traditions from disappearing…
[and that] acceptance of Indonesia’s application does not
involve a discussion about the relationship between Indonesia
and Malaysian batik (Schonhardt, 03 October 2009).
Nagaoka’s explanation highlights a very important nature
of the 2003 UNESCO Convention vis-à-vis the present
dispute between Indonesia and Malaysia: the dichotomy
between protections in the form of “nurture” versus protections
in the form of “barriers.”4 From its inception the 2003
UNESCO was intended to provide protection in the form
of nurture and safeguarding of intangible cultural heritage
through “identification, documentation, transmission,
preservation, protection, revitalization, and promotion of
cultural heritage in order to ensure its maintenance or viability
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(Wendland, 2004, p. 101).” The convention therefore, “does
not address… questions… such as to whom, if anyone, do or
should expressions of intangible creativity belong as private
property… [and] who, if anyone, can or should enjoy the
exclusive right to exploit commercially intangible traditional
creativity (Wendland, 2004, p 101).”
3. Historical Roots
3.1 The Significance of Cultural Heritage to National Identity
The linkage between cultural heritage and national
identity has been explored and affirmed in many scholarly
works. It has been observed that they “provide elements to
define the identity of a cultural community (Francioni, 20032004, p. 1223);” “play a constitutive part in generative and
preserving a collective identity (Croissant & Trinn, January
2009, p. 14);” and are “regarded as a matter of national pride
(Liu, 2005-2006, p. 210).”
The importance of culture in the Southeast Asian psyche
is demonstrated at the outset of the region’s formation: all
countries in the region inaugurated a cultural ministry or
the equivalent of a ministry very soon after independence
(Lindsay, 1995). Within the ASEAN framework, Article 2(a)
of the ASEAN Charter (ASEAN Charter) expressly obligates
member states to respect “the independence, sovereignty,
equality, territorial integrity, and national identity of all
ASEAN member states.”
Many Indonesians see their cultural heritage such as batik
as constitutive of their identity, claiming, for example, that “it
makes up what Indonesia is,” and that “not claiming it would
be like disowning your mother.” (Schonhardt, 03 October
2009) On the other hand, reactions in Malaysia have leaned
largely towards bewilderment at Indonesia’s reactions to the
events. According to media reports, many register discomfort
over the “disproportionate expressions of anger (Pathoni,
02 September 2009);” whilst a segment of the Malaysian
population considered Indonesia’s claims to be “absurd (Noor,
September 2009),” “ridiculous (Aziz, 06 September 2009),”
and “unwarranted (The Malaysian Insider, 27 April 2010).”
The disparage reactions of Indonesia and Malaysia have
added further complications to the dispute. Indications on
the ground suggest that the relatively passive reaction of the
Malaysian authorities to the complaints of the Indonesians
has aggravated the crisis, for it reinforces the impression
that the Malaysians are heedless of the worries and concerns
of Indonesians (Noor, September 2009). In this respect,
historical accounts may help explain the rationale for such
dissimilar reactions by revealing why and how the import of
cultural heritage to national identity is markedly different for
Indonesia and Malaysia.
Cultural heritage forms the very essence in the construction
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building can be traced back to early pre-colonial attempts
to dilute local attachments to culture, and amalgamate the
mosaic identities into one unified nation (Elson, 03 October
2005). The state was envisioned to lead this enterprise, as
the Constitution provides: “The Government shall advance
Indonesian Culture (Jones, November 2005, p.70).”5
The first signs of the rhetoric rallying for a single Indonesian
national identity emerged during Sukarno’s presidency in his
political manifesto calling for a single, unifying culture which
would become the Indonesian identity (Jones, November
2005). This notion became the essence of national unification
both horizontally – in uniting the diverse elements of society,
and vertically – in connecting the elite to the masses (Barker,
2008). Evidence of “symbol-mongering” (Barker, 2008) began
to proliferate throughout this period, as slogans, movements,
monuments, and demonstrations, were used in extravagance
for the single purpose of creating an illusion of homogeneity
of the nation state (Geertz, 1973).
This trend continued into the period of Suharto’s
presidency. During this period, systemic efforts were embarked
on to continue the construction of the overarching uni-national
Indonesian identity, Bangsa Indonesia, designed to overcome
ethno-cultural fragmentation, supersede ethnic diversity, and
depoliticize all communal identities (Kreuzer, 2002). Cultural
institutions were tasked with teaching Indonesians what
it meant to be Indonesians, and educate them about their
nation and themselves. (Jones, November 2005). Among
the various machineries adopted was the dissemination of an
Indonesian language which “became a means of expression
and reinforcement of a unified, centralized, and uncreative
nation (Meuleman, 2006, p. 60).”
The identity of Indonesian citizens has thus been notably
constructed along a unitary national culture as a common
frame of reference (Budhisantoso, 1996). Although considered
the fourth most populated country in the world, consisting
over 17,500 islands and boasting over 700 languages,
ethnicity has never received an official status in the state –
ethnic affiliation has no mention on identity cards, and on the
whole ethnic and cultural differences have been ignored by
the government as far as possible in order to enhance national
unity (Meuleman, 2006). When culture is regarded as such a
core to the Indonesian people’s collective identity, aggressive
postures in defence of what is considered their cultural
heritage should be seen as a natural manifestation of a broader
and deeper enterprise to defend their ontological identity and
security (Chong, Fall 2009).
Conversely, from the very outset of negotiating the terms
of nation building that would ultimately weave together the
Malaysian Constitution, political elites insisted on defining
political community in ethno-cultural terms along ethnic and
religious lines (Kreuzer, 2005). For the Malay and Chinese
political elites, there was “beyond doubt that political loyalty
was owed to one’s ethnic community” and not to a fictitious
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civic identity (Kreuzer, 2005, p. 29). A formula for power
sharing among the culturally defined ascriptive groups was
thus co-opted into the constitution, with provisions and
mechanisms to ensure balance and satisfy the competing
visions and needs for identity, security, and well-being of all
ethnic groups (Kreuzer, 2005).
As citizens in the constructed multicultural state were
allowed, even obligated, to define themselves in ethno-cultural
categories (Kreuzer, 2006), various policies endeavouring
to unite or assimilate communities of different ethnic and
cultural backgrounds over the years have been met with
strong resistance and little success. In 1971 the government
introduced the National Culture Policy to “amplify the
symbolic presence of Malay culture and Islam into the public
space [and] to incrementally make Malay language as a
medium of instruction at all educational levels (Lee, August
2000, p. 4).” The policy was strongly resisted by the majority
of the Chinese community who regarded with hostility the
assimilative character of the policy, and resented the state’s
encroachment into Chinese medium institutions deemed
fundamental to the preservation of the Chinese identity
(Segawa, April 2007). Hence, in spite of the policy, demand
for Chinese primary and secondary education in fact gained
momentum with record increases of admission (Lee, August
2000).
In Malaysia, manipulations of symbols and narratives to
construct a national identity were also extensive, although
the attempts encountered very different outcomes from the
Indonesian experience. On the whole, the Malay culture was
represented as the norm for Malaysia – dominant discourses of
culture remain informed by Malays, controlled by pro-Malay
policies, and deferred to the Malays’ agenda-setting power
(Hoffstaedter, 2008). For many years, theme parks and heritage
sites were replete with identity markers associated with Islam
and the Malay culture (Hoffstaedter, 2008; Worden, 2001).
Nonetheless, in the 1990s, rapid development and
modernization motivated a shift in cultural policy which saw
Malaysia “moving away from the notion of a Malay identity
derived from a feudal past,” and focusing on the forwardlooking conception of Kuala Lumpur as the modern capital
aspiring to achieve a fully developed and industrialized status
by 2020 (Hitchcock & King, March 2003, p. 7). This shift
of paradigm is symbolic in signifying a shift in the notion of
a national identity from a shared common past to a shared
common destiny. To that end, sustained economic growth,
modernity and “newness” have been increasingly promoted
as significant components of nationalism (Leigh, April 2002).
This period also witnessed a scaling down of the aggressive
state-led propagation and promotion of Islamic and Malay
symbols in public spaces (Lee, August 2000). Apart from
the desire to modernize, several other factors account for
the shift in cultural policy in Malaysia starting the 1990s. A
major factor was the acknowledgement of non-Malays of the
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preeminent status of the Malay culture and Islamic religion
in the country (Lee, August 2000). This recognition provided
the added incentive for the government to expand the cultural
autonomy of the minorities (Segawa, April 2007).
The peculiar political landscape modelled on communal
politics in Malaysia has largely prevented the forming of a
substantive national culture. In this respect, cultural heritage
in Malaysia has thus been treated more narrowly in terms of
economic interests, entertainment, and community leisure
activity (Lindsay, 1995), rather than constituting a core sense
of the people’s identity.
3.2 Shared Roots and Heritage
Any attempt to align cultural heritage to one group of
people is inevitably problematic – the very nature of culture is
such that it is never static but dynamic, fluid, and constantly
evolving (Yu, 2008). Cultural cross-fertilization is a by-product
of globalization, as “traditional people move, intermarry, share
ideas, and modify their skills and products to the shifting
demands of the market and their culture (Yu, 2008, p. 494).”
Globalization has since “broadened and deepened” the
meaning of culture in the everyday lives of people (Pratt, 2005,
p. 39), a reality especially stark in the ASEAN region where
significant cultural overlaps exist due to shared cross-cultural
origins and a long history of cultural borrowing during the
colonial era (Noor, September 2009). Noor (September 2009)
amplifies this argument: “every state in Southeast Asia today is
a modern construct whose borders were set during the colonial
era… [and as] there is enough historical evidence to show that
much of the common shared cultural heritage dates back to
the pre-modern Hindu-Buddhist era… it would be wrong
to suggest that Indonesian claims on batik, wayang kulit or
even language today can be sustained against the backdrop
of a common shared regional history where the movement of
peoples, ideas, and cultures was once far more fluid than it is
today.”
Ironically, historical evidence suggests that the historical
roots of Indonesia and Malaysia are in fact more interwoven
than most other states in the Southeast Asian region. Jointly,
they both (together with Brunei) make up the “Malay
World” (Reid, October 2001) as understood in historical,
anthropological, and contemporary discourses. There appears
to be a universal agreement that the Malay race is a social
construct defined by the speaking of the regional lingua franca
and the observing of the Malay customs and cultural practices,
rather than being a fixed or permanent identity defined by
blood and descent (Kahn, Summer 2005; Reid, October
2001, Kratz, 2009).
Historical evidence points at least to the origins of the
Malays that is traceable to the proto-Malays that had migrated
to the archipelago in 5,000 B.C (Azhari, 25 November 2009).
The people, who were descendants of linguistically and
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culturally diverse peoples from parts of Southeast Asia, India,
Arabia, China, intermarried with local Malay-speaking people,
producing in effect a “uniquely Malay culture [that is]… the
product of centuries of cultural influence, borrowing, and
hybridization (Kahn, Summer 2005).” The calcification of the
Malay culture occurred over time through linkages generated
from vast migrations in the archipelago, trade networks, and
expansion and annexation of ancient kingdoms (Andaya,
October 2001). In addition, the kingdoms of Srivijaya and
Majapahit, the Sultanate of Malacca, the Minangkabau and
the Bugis who ruled the archipelago for several hundred years,
collectively relied on culture, religion, and trade to strengthen
the ties of the people in the archipelago (Holst, 2007).
The arrival of the colonial forces signalled the first instance
of dividing up the region and its people. Of particular relevance
was the Anglo-Dutch Treaty of 1824 which “effectively divided
the Malay world into two parts by ending Dutch influence
in Malaya, leaving all options open to the British, while the
Dutch regained Java after losing it in the course of the AngloDutch Java War in 1811 (Holst, 2007, p. 328).” When the
possibility of attaining independence began to surface in
1940s, Indonesia in its early plans intended to include Malaya
in the future Indonesian republic in an aim to unite the PanMalay peoples (Holst, p. 2007). Although the endeavour did
not succeed, there was an understanding from the beginning
that the Indon-Malay people share a long and deep common
history on many levels such as language, culture, customs, and
religion (Noor, September 2009).
4. Historical Relations
Indonesia and Malaysia have seen decades of largely
peaceful relations due to their close proximity in geography,
history, and kinship-ties (serumpun) (Chin, 2005). In spite of
professed solidarity amongst the leaders and the people, the
relations of both countries are nonetheless not impervious
to occasional friction and sabre-rattling. History records
that hostility between the two nations were probably at its
highest during Sukarno’s policy of confrontation (widely
known as Konfrontasi) against Malaysia in 1962 in protest of
Malaysia’s declared plan to create a new federation of Malaysia
incorporating the British colonies of Borneo and Singapore
(Holst, 2007). Condemnation of the plan led Malaysia to severe
all diplomatic ties with Indonesia, which was met not long after
with Sukarno’s widespread propaganda of Ganyang Malaysia,
translated to mean “Crush Malaysia” amongst the Indonesian
people (Holst, 2007). Interestingly, Noor (September 2009)
noted that the anti-Malaysian demonstrations in the present
dispute over cultural heritage employed “historically loaded
semiotics of the Kofrontasi between Indonesia and Malaysia
in the early 1960s.”
The relations between both countries were of late also
severely tested by the ongoing and unresolved issue related
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to Indonesian migrants in Malaysia. It is recorded that two
million workers from Indonesia and the Philippines constitute
about 23 percent of the total workforce in Malaysia, of whom
nearly two-thirds are undocumented migrants (Ramasamy,
2004). As migrant workers typically fill jobs that are shunned
by the locals, the ‘superior-subordinate’ relationships have
gradually permeated the people-to-people relationship,
creating breeding grounds for discrimination, stereotype, and
xenophobia (Seneviratne, 06 September 2007).
The imbalanced relations were perpetuated by government
policies aimed at reducing undocumented migrants, which
saw large crackdowns of these undocumented over the years,
allegedly with the use of disproportionate force and inhumane
measures that typify acts of dehumanization and degradation
(IFHR, March 2008). Societal stigmatization was further
reinforced through negative images of migrant workers
portrayed by the Malaysian media, who regularly represented
migrant workers as responsible for all sorts of social ills.
Rhetoric of elimination and degradation abound in the
media circuit through extensive and nonchalant use of loaded
expressions such as “flush out illegal Indonesians immigrants,”
a “hunt for illegals,” a “nationwide sweep of illegals,” and even
violent language such as “leading the assault on the estimated
1.2 million illegal foreign workers in the country.” (Holst,
2007, p. 335)
It appears however, that the Indonesian media has been
equally complicit in sowing ill-feelings amongst the people.
On various issues and occasions the Indonesian media has
been accused of grossly exaggerating the situations, fanning
combative emotions, and adopting overtly nationalistic tones
to stoke anti-Malaysian sentiments amongst the Indonesian
people (Noor, September 2009). Issues related to border
and territorial disputes have since become popular platforms
for these nationalistic enterprises. This included discourses
revolving around the International Court of Justice award of
Ligitan and Sipadan Islands to Malaysia in December 2002
(Singh, 15 June 2009); and the contested claims over the
oil-rich territory of Ambalat near the islands which led both
countries to deploy armed forces in strategic areas poised for
attack. (Prameshwari et al, 31 May 2009).
In sum, the present dispute over shared cultural icons and
heritage should not be viewed in isolation from the overall
relations between Indonesia and Malaysia. Prudence and
experience counsel that patterns of political behavior are often
deeply entrenched in the consciousness of a nation (Aziz, 06
September 2009), and as such historical patterns of behavior
can offer useful guidance and lessons in understanding how
latent disputes feature into current disputes (Neusdtadt &
May, 1988).
5. The Commercial Factor
Amongst the priorities of ASEAN is the creation of a
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conflict free social environment and political atmosphere in
the region that is vital for the thriving of trade, in particular
tourism, and development – tourism has thus been increasingly
promoted by developing states as “a vital component of
strategies for economic growth and development (Hitchcock
& King, March 2004, p. 4).” ASEAN’s Secretary-General,
Rodolfo C. Severino adds that income from tourism is “a
strong incentive for protecting a nation’s environment and
cultural heritage (Severino, 2010).”
In this respect, a desire to gain more commercial leverage
in cultural heritage constitutes a focal dynamic in the ongoing
dispute between Indonesia and Malaysia. Economic analysts
in Indonesia regard Indonesia’s poor ability to market its
cultural heritage as a contributing factor to its economic
underperformance (Schonhardt, 03 October 2009).”
Indonesian batik experts have constantly emphasized the
importance of educating potential buyers on the difference
between real batik and batik-printed fabric, building upon the
belief that a reawakening to real batik will reduce the demand
for foreign copies which has assumed 10 percent of the
domestic batik industry as of 2009 (Lee, 22 June 2009). Similar
viewpoints are likewise shared by Malaysian batik producers.
Leigh contends that the batik production in Malaysia, aimed
at global consumption and promoting the Malaysian image
abroad, is “protected from its neighbour, Indonesia,” through
heavy subsidy and stringent regulations by the state (Leigh,
April 2002).
6. Dispute Resolution
Any exclusive claims on cultural heritage would imply a
denial of other communities the right to enjoy, use, reproduce,
and commodify these shared elements of culture. To allow
exclusive claims over shared cultural heritage would therefore
not only contravene the very framework of ASEAN which
emphasizes regional cooperation and collaboration, but may
even violate the “right freely to participate in the cultural life
of the community, to enjoy the arts and to share in scientific
advancement and its benefits” enshrined under Article 27(1) of
the Universal Declaration of Human Rights. In this regard, the
World Intellectual Property Organization (WIPO) recognizes
that “cultural heritage disputes are often multidimensional,
involving not only complex legal issues, but also sensitive, not
necessarily legal elements, of an emotional, ethical, historical
moral, political, religious, or spiritual nature (WIPO, 2009).
Thus, “litigation may not always be the optimal solution [as]
“resolution of such disputes calls for “creative approaches”
such as alternative dispute resolution (WIPO, 2009). Dispute
resolution mechanisms at the bilateral and regional levels may
therefore be most suited to deal with contentions of cultural
heritage.
In relation to the present pendet dispute, leaders of
Malaysia and Indonesia have, as of September 2009, agreed
Washington College of Law
to submit the dispute to the Eminent Persons Group (EPG),
an entity armed with an advisory role and comprised of
highly distinguished and well respected citizens from ASEAN
member states, and further agreed to allow the EGP to handle
issues of such nature in the future (Yusoff, 25 August 2009).
Equipped with a wide array of dispute resolution
mechanisms (by way of Chapter VIII of the ASEAN Charter),
the EPG may be able to use the opportunity to not only
ameliorate existing tensions, but further surface related issues,
concerns, interests, and comments related to the dispute.
These meetings may also include initial discussions of options
for creating and implementing sui generis laws granting
proprietary rights to practicing groups and communities.
Comparative state practices may be elicited to inform these
discussions, where reference to other sui generis laws such as
South Korea’s Protection of Cultural Properties Act 2002, and
Japan’s Law for the Protection of Cultural Properties 1950
could be employed.
Informal learning processes such as consultations and
workshops with regional cultural experts, organizations,
institutions, and non-governmental networks may help
stimulate discussions, brainstorm on best practices to safeguard
and manage intangible cultural heritage, and identify the
modalities necessary to develop broader and deeper research in
this area. Efforts could be made to involve businesses (through
corporate social responsibility programs), academicians, civil
society organizations, and the media to reach out to the public
and help reduce the tensions through mature representations
of circumstances and highlighting the validity of the other’s
claims.
The recent Indonesia-Malaysia dispute has revealed the
deep creases still concealed beneath the regional social fabric
of ASEAN. This provides an impetus for ASEAN to revisit
its statement of ASEAN Vision 2020: “We envision the
entire Southeast Asia to be, by 2020, an ASEAN community
conscious of its ties of history, aware of its cultural heritage and
bound by a common regional identity (ASEAN, 15 December
1997).” The intricacy of integrating people of diverse cultural
and ethnic identities into a wider regional identity presages
the need for ASEAN to be committed to a re-evaluation of
the conceptions of identity (Jones, 2004), which necessarily
involves asking difficult but critical questions related to
competing cultural identities and fragmented historical and
social relations amongst the states and the people in the
region. To that end, solidarity building measures ought to be
enhanced not only at the elite level, but also at the people-topeople level, as all must be given the opportunity to participate
(Jones, 2004). In this respect, it is through the ASEAN SocioCultural Community (ASCC) that confidence and solidarity
building measures can be trickled down to the grassroots level;
whether through mechanisms already in place, or through
new mechanisms to help construct a regional identity by
empowering large segments of population, imbuing them
ILSP Law Journal
183
with “the awareness that beyond the nation-state there is a
collective body that assures protection and comfort (Jones,
2004, p. 143),” and inviting them to be stakeholders of the
process.
1
See for example, http://www.malingsia.com
2 For a general understanding of the Indonesian and Malaysian
Copyright Laws in relation to Intangible Cultural Heritage see Antons,
2009; and Kuek, 2005
3
See "Convention for the Safeguarding of the Intangible Cultural
Heritage," ed. Scientific and Cultural Organization (UNESCO) United
Nations Education (17 October 2003). art 2(1)
4 See for example, U.S. Ambassador Louise Oliver’s statement that “We
support “protect” as in nurture, not “protect” as in barriers.” (Riding, 05
February 2009)
5
Constitution of Indonesia, Cl. 32, translated from “Pemerintah
memajukan kebudayaan Indonesia.”
REFERENCES
ABC News, 2009. “Malaysia Blames Discovery Channel in Dance
Flap.” ABC News, 04 September.
Abdussalam, A. 2009. “Malaysia’s Pendet Dance Ad Sparks Indonesian
Protests.” Antara News, 25 August.
Acharya, A. March 2005. “Do Norms and Identity Matter?
Community and Power in Southeast Asia’s Regional Order.” The Pacific
Review 18: 95-118.
Agreement on Trade-Related Aspects of Intellectual Property Rights.
15 April 1994.
Andaya, L. Y. October 2001. “The Search for the “Origins” of Melayu.”
Journal of Southeast Asian Studies 32(3): 315-330
Antons, C. 2009. “What is “Traditional Cultural Expression?”
International Definitions and Their Application in Developing Asia.” World
Intellectual Property Organization (WIPO) Journal 1: 103-116.
Art and Cultural Heritage Dispute Resolution. July 2009. WIPO
Magazine: News and Events.
ASEAN. 15 December 2007. ASEAN Vision 2020, Report from the
1997 ASEAN Summit Meeting, Kuala Lumpur
ASEAN Socio-Cultural Community (ASCC), available at http://www.
aseansec.org/16832.htm.
Association of Southeast Asian Nations (ASEAN), "Asean Charter."
available at http://www.aseansec.org/ASEAN-Charter.pdf
Azhari, N. H. 2009. “Understanding ‘Malay Archipelago’ Food
Culture.” BERNAMA, 25 November.
Aziz, T. A. 2009. “Indonesia, We Are Not Your Whipping Boy.” The
Malaysian Insider, 06 September.
Barker, J. 2008. “Beyond Bandung: Development Nationalism and
(Multi)cultural Nationalism in Indonesia.” Third World Quarterly 29(3):
521-540
Bernama. 2009. “Don’t Dispute If Malaysian, Indonesian Culture
Overlap.” BERNAMA Newswire, 20 October.
Berne Convention for the Protection of Literary and Artistic Works.
184
ILSP Law Journal
09 September 1886.
Blake, J. Jan 2000. “On Defining The Cultural Heritage.” International
and Comparative Law Quarterly 49: 61-85.
Budhisantoso, S. 1996. “National Identity and Development in the
Plural Society of Indonesia.” in Interface of Cultural Identity Development,
edited by Saraswati, B. New Delhi, India.
Caballero-Anthony, M. 2008. “The ASEAN Charter: An Opportunity
Missed or One That Cannot be Missed?” Southeast Asian Affairs, 71-85
Chin, J. Y. L. 2005. The Politics of Indonesia-Malaysia Relations: One
Kin, Two Nations, New York, Routledge
Chong, J. W. Fall 2009. “Identity Based Conflicts: Perceived Difference
versus Perceived Threat.” Journal of International Service 19: 77-90
Collins, N. 2009. “Indonesians Tell Malaysians ‘Hands Off Our
Batik’.” Telegraph UK, 05 October.
Convention Establishing The World Intellectual Property Organization.
14 July 1967.
Convention for the Safeguarding of the Intangible Cultural Heritage.
17 October 2003.
Coombe, R. J. July 1993. “The Properties of Culture and the Politics
of Possessing Identity: Native Claims in the Cultural Appropriation
Controversy.” Canadian Journal of Law and Jurisprudence 6(2): 249-285.
Copyright Act 1982 (Revised 2002) of Indonesia.
Copyright Act 1987 of Malaysia.
Croissant, A., & Trinn, C. Jan 2009. “Culture, Identity and Conflict in
Asia and Southeast Asia.” Asien 110: 13-43.
Emerling, S. 2009. “Is Greece Losing Its Elgin Marbles.” Foreign
Policy, 21 August.
Elson, R. E. October 2005. “Constructing the Nation: Ethnicity, Race,
Modernity and Citizenship in Early Indonesian Thought.” Asian Ethnicity
6(3): 145-160
Francioni, F. 2003-2004. “Beyond State Sovereignty: The Protection
of Cultural Heritage as a Shared Interest of Humanity.” Michigan Journal of
International Law 25: 1209-1228.
Frigo, M. June 2004. “Cultural Property v. Cultural Heritage: A
“Battle of Concepts” in International Law?” International Review of the
Red Cross, 86(854): 367-378.
Geertz, C. 1973. “The Politics of Meaning.” in The Interpretation of
Cultures, edited by Geertz, C., New York: Basic Books
Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict 14 May 1954.
Hitchcock, M. & King, V. T. March 2003. “Discourses with the Past:
Tourism and Heritage in South-East Asia.” Indonesia and the Malay World
31(89): 3-15
Hermawan, A. 2009. “RI, Malaysia Agree to Avoid Cultural
Controversy.” The Jakarta Post, 17 September.
Hoffstaedter, G. July 2008. “Representing Culture in Malaysian
Cultural Theme Parks: Tensions and Contradictions.” Anthropological
Forum 18(2): 139-160
Holst, F. 2007. “(Dis-)Connected History: The Indonesia-Malaysia
Relationship.” in Indonesia – The Presence of the Past, edited by Streifeneder,
E. & Missbach, A., 327-340. Berlin, Germany: Die Deutsche Bibliothek
Hussey, A. Jan 1991. “Regional Development and Cooperation
through ASEAN.” Geographical Review 81: 87- 99
Washington College of Law
The Intangible Heritage Lists. from United Nations Educational,
Scientific and Cultural Organization (UNESCO:
http://www.unesco.org/culture/ich/index.php?lg=en&pg=00011)
International Federation of Human Rights (IFHR). March 2008.
“Undocumented Migrants and Refugees in Malaysia: Raids, Detentions and
Discrimination.” International Federation of Human Rights Report
Jetschke, A. & Ruland, J. May 2009. “Decoupling Rhetoric and
Practice: The Cultural Limits of ASEAN Cooperation.” The Pacific Review
22(2): 179-203
Job, B. 26 March 2008. “The Role of Eminent Persons Group in Asian
Regional Institution: ASEAN, APEC, the ARF.” Paper presented at The
Annual meeting of the ISA’s 49th Annual Convention, Bridging Multiple
Divides, San Francisco, USA
Jones, M. 2004. “Forging an ASEAN Identity: The Challenge to
Construct a Shared Destiny.” Contemporary Southeast Asia 26(1): 140-154
Jones, T. November 2005. “Indonesian Cultural Policy, 1950-2003:
Culture, Institutions, Government.” PhD diss., Curtin University of
Technology
Kahn, J. S. Summer 2005. “The Making and Unmaking (?) of a Malay
Race.” Social Analysis 49(2): 164-172
Kandasamy, D. 2009. “’Pendet’ Not A Tourism Malaysia Ad.” The
Malay Mail, 25 August
Kratz, E. U. 2009. “Malay Studies - 50 Years On.” Indonesia and the
Malay World 37(107): 103-118
Kreuzer, P. 2002. “Applying Theories of Ethno-Cultural Conflict and
Conflict Resolution to Collective Violence in Indonesia.” PRIF Reports No.
63, Peace Research Institute Frankfurt
Kreuzer, P. March 2006. “Violent Civi Nationalism versus Civil Ethnic
Nationalism: Contrasting Indonesia and Malay(si)a.” National Identities 8:
41-59
Kuek, C. Y. 2005. “Protection of Expressions of Folklore/Traditional
Cultural Expressions: To What Extent is Copyright Law the Solution?”
Journal of Malaysian and Comparative Law, 32(1).
Kurin, R. 2004. “Safeguarding Intangible Cultural Heritage in the
2003 UNESCO Convention: A Critical Appraisal.” Museum International,
56(1-2).
Lee, H. G. August 2000. “Ethnic Relations in Peninsular Malaysia:
The Cultural and Economic Dimensions.” Social and Cultural Issues 1: 1-39
Lee, L. 2009. “For Indonesians, Batik is a Matter of National Pride.
The Straits Times Singapore, 22 June.
Lindsay, J. 1995. “Cultural Policy and the Performing Arts in Southeast
Asia.” Performing Arts in Southeast Asia 4: 656-671
Liu, D. 2005-2006. “Can Copyright Lend Its Cinderellaic Magic to
Chinese Folklore?” The John Marshall Review of Intellectual Property Law
5: 203-215.
Marks, K. 2009. “Rivals of the East: Battle for Batik.” The Independent,
28 September.
Merryman, J. H. 1986. “Two Ways of Thinking about Cultural
Property.” The American Journal of International Law 80: 831-853.
Neustadt, R. E. & May, E. R. 1988. Thinking in Time: The Uses of
History for Decision Makers, New York, N.Y., The Free Press
Noor, F. 25 September 2009. “Malaysian-Indonesian Relations and
the “Cultural Conflict” between the Two Countries.” Malaysia Update
Washington College of Law
September 2009.
Pathoni, A. 2009. “Storm over “Stealing” of Balinese Dance.”
Malaysiakini, 02 September.
Prameshwari, P., Sihaloho, M. J. & Tejo, A. 2009. “Malaysia Enters
Ambalat Again.” Jakarta Globe 31 May.
Prathivi, N., & Wardany, I. 2009. "Protests over Presence of Pendet
Dance in Malaysia's Tourism Ad Continue.” The Jakarta Post, 23 August.
Pratt, A. C. 2005. "Cultural Industries and Public Policy: An
Oxymoron?" International Journal of Cultural Policy 11(1): 31-44
Reid, A. October 2001. "Understanding Melayu (Malay) as a Source
of Diverse Modern Identities." Journal of Southeast Asian Studies 32(3):
295-313
Riding, A. 2009. “A Global Culture War Pits Protectionists Against
Free Traders.” New York Times, 05 February.
Riley, A. R. 2005. “”Straight Stealing:” Towards an Indigenous System
of Cultural Property Protection.” Washington Law Review, 80.
Sagita, D. 2009. “Indonesian Minister Rejects Malaysian Pendet
Apology.” The Jakarta Globe, 27 August.
Saim, H. S. H. 2007. “ASEAN Socio-Cultural Community: How Best
to Achieve It?” Universiti Brunei Darussalam
Salim, R. & Kabir, S. 2010. “Success of ASEAN Regional Intergration
on Intra-Regional Trade: A Comparative Study with EU’s Trade
Integration.” School of Economics and Finance, Curtin Business School,
Curtin University
Scafidi, S. 2001. “Intellectual Property and Cultural Products.” Boston
University Law Review 81: 793-842.
Schonhardt, S. 2009. “Indonesia Cut From A Different Cloth.” Asia
Times, 03 October.
Seneviratne, K. 2007. “Class Clash Mars Malaysia-Indonesia Ties.”
Asia Times, 06 September
Segawa, N. April 2007. “Malaysia’s 1996 Education Act: The Impact
of a Multiculturalism-type Approach on National Integration.” Journal of
Social Issues in Southeast Asia 22: 30-56
Setiawati, I. 2009. “Anti-Malaysia Activists Launch Raid on
Malaysians.” The Jakarta Post, 09 September.
Severino, R. C. 2010. “ASEAN Boosts Tourism.” available at http://
www.aseansec.org/2843.htm
Singh, D. 2009. “Ambalat Issue: No Official Protest from Indonesia.”
The Star, 15 June.
Sljivic, A. 1997-1998. “Why Do You Think It’s Yours? An Exposition
of The Jurisprudence Underlying the Debate Between Cultural Nationalism
and Cultural Internationalism.” George Washington Journal of International
Law and Economics, 31: 399-438.
Sunario, T. 2009. “Indonesian Batik: UNESCO To Declare World
Heritage.” Indonesia Digest, 16 September.
Sung-ki, J. 2010. “France Vows to do ‘Best’ Over Looted Books’
Return.” The Korea Times, 19 March.
The Malaysian Insider. 2010. “Let Malaysians Advertise Pendet and
Wayang.” The Malaysian Insider, 27 April.
Torsen, M. 2008. “Intellectual Property and Traditioanl Cultural
Expressions: A Synopsis of Current Issues.” Intercultural Human Rights
Law Review, 3(199-214): 199.
UNESCO, Indonesia - Information Related to Intangible Cultural
ILSP Law Journal
185
Heritage.
available at http://www.unesco.org/culture/ich/index.php?cp=ID,
accessed 28 August 2010.
UNESCO, Malaysia - Information Related to Intangible Cultural
Heritage.
available at at http://www.unesco.org/culture/ich/index.
php?cp=MY, accessed 28 August 2010.
UNESCO Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural Property.
14 November 1970.
Universal Declaration of Human Rights.
Vernon, C. 1994. “Common Cultural Property: The Search for Rights
of Protective Intervention.” Case Western Reserve Journal of International
Law 26: 435-479.
Wendland, W. 2004. “Intangible Heritage and Intellectual Property:
Challenges and Future Prospects.” Museum International 56(1): 97-107.
Worden, N. 2001. “”Where it all Began:” The Representation of
Malaysian Heritage in Melaka.” International Journal of Heritage Studies
7(3): 199-218
Yu, P. K. 2008. “Cultural Relics, Intellectual Property, and Intangible
Heritage.” Temple Law Review 81: 433-506.
Yusoff, M. N. 2009. “Susilo Wants EPG To Also Tackle Cultural
Issues.” BERNAMA, 25 August.
186
ILSP Law Journal
Washington College of Law