Analysis of the position and authority of the Nagari indigenous council as a traditional representative institution from a perspective of constitutional law

Abstract

Indonesia acknowledges the existence of indigenous law communities along with their traditional rights in Article 18 of the Indonesian 1945 Constitution. One of these is the representative institutions of traditional peoples who embrace traditional values that endure to the present. Law No. 6 of 2014 on Villages has not fully accommodated traditional values that exist in the respective regions, particularly the traditional representation in Nagar Minangkabau. Therefore, there are two main issues: (1) the position and authority of traditional representative institutions within the governance structure of nagari in Minangkabau and the Village Law; and (2) the ideal regulation on traditional representative institutions in Indonesia. The analysis was carried out using the theory of traditional constitutional law as it bears a close relation to Indonesia’s state constitutional values followed by acceptance of the diversity of customs that arise from an amalgamation of laws that have their own characteristics. In addition, a comparison was carried out regarding regulations that govern indigenous communities in the United States, Australia, Cameroon, and PRC. The conclusion is that the nagari indigenous representative institutions are not fully accommodated in the Village Law and are thus an ideal regulatory instrument to accommodate the needs of the nagari indigenous community in Minangkabau, including, among others, membership, method of election, and the position and authority of the indigenous representative institution. Therefore, it is necessary to amend Village Law No. 6 of 2014 in regard to customary village regulations that can be compared with other countries that have more customary village regulations and treatment in their countries such as the United States, Cameroon, PRC, and Australia.