Adat Law Community Research Articles

Legal Status of Customary Communities, Customary Law Communities and Indigenous Communities as Custom Law Subjects

The goal of this study is to examine the legal-statutes of the unity of the adat-law community (customary community) and adat-community as the subject of adat-lawThis is a socio legal research and employed a reflective approach, this study is result and discussion: the result of the reflection base on research conducted in various regions or areas as adatlaw legal-fields and is supported by the writings of researchers, observers, adatlaw and indigenous people activists. The basic concept of this paper is to say that the legal-statutes of the unity of adat-law communities, adat law communities, and adat-communities as the subject of adat law as stated in Article 18 B Paragraph (2) of the 1945 Constitution of the Republic of Indonesia are identical. However, the legal-statutes of the unity adat law communities, adatlaw community, and adat-community needs to be discussed. This discussion was initiated so that the unity of adat-law communities, adat-law communities, adat-communities were not identical. Therefore, it is important to discuss this paper with the aim of clarifying the legal-statutes of the unity of adat-law communities, adat-law communities, and adat-communities as the subject of adat-law.

Beberapa Catatan tentang Pentingnya Penelitian Hukum Adat Empiris

Mainstream Customary (Adat) Law does not pay much attention to empirical legal research; therefore, it is adat-positive legal science. In fact, adat law lives in a continuously changing community; thus, isolating its study from social research has made adat legal science has lost the opportunity to find perpetual adat legal development. This paper explains the significance of social research for adat legal science. Empirical data have numerous functions, such as legal materials to draft Academic papers on laws and regulations related to the Adat Law Community, judges’ consideration in settling disputes, especially agrarian conflict, and supporting the Adat Law Community to formulate their rules for the sake of their community and environmental sustainability.

Adat Law-Making Process

Abstract This study aims to analyse the emerging need to change customary law (adat law in Indonesia) and identify the role of adat functionaries. The experience of the Mollo adat law community (indigenous people) from the south-eastern part of Indonesia, Timor Island, shows that the sudden and massive collection of haukonof (Usnea barbata), a non-timber forest product, has caused forest destruction. How do the adat functionaries respond to the situation? Is adat law sufficient to respond to the sudden change of their livelihood? If it is not, then what to do? Furthermore, what are the impacts on the functionaries? What are their difficulties, and how do they solve them? This article is based on an in-depth ethnographic study held in July—September 2021. Data are collected through interviews and observation. The adat functionaries want to restrict the people from picking and collecting haukonof, but there is no adat law specifically ruling on it. Only the adat functionaries should protect the environment. The pickers and the collectors of haukonof are the members of the communities. The kinship relation between the functionaries and the members complicates legal enforcement. The adat functionaries’ authority and the sustainability of the livelihoods are in danger. The immediate solution is borrowing state law which obliges a person who utilises non-timber forest products in the Protection Forest to hold a valid permit. It effectively reduces the number of haukonof picking and collection by the community members. Adat’s law-making process does not work in isolation. It is an interactive process that needs continuous foresight observation from the adat functionaries to find the appropriate solution to protect the environment and the people.

THE ROLE OF ADAT FOREST AND ADAT LAW COMMUNITY IN ENVIRONMENTAL PROTECTION IN INDONESIA

The environment needs protection from destruction conducted by irresponsible people. Indonesia is a country full of many adat law communities. These communities usually live far from the big city. Most of them stay in a village near forests. The need for a modern living sometimes destroys the forest. The research aims to discuss adat forest in Indonesia and the role of adat law communities in protecting the environment surrounding the forest from damage and destruction after the promulgation of Law No. 11 of 2020 regarding Work Creation that amended the Law No. 41 of 1999 regarding Forestry and Law No. 32 of 2009 the Protection and Management of the Environment. The research is normative legal research that focuses on studying legal norms on environmental protection by creating adat forest within the adat law community. Secondary data are used in the research. The analysis will be conducted qualitatively. The findings showed that Law No. 11 of 2020 regarding Law Creation clearly defines and distinguishes the obligations of the Central Government, Provincial Government, and District Government/the Mayor of a City in providing the role of adat law community in environmental protection. This, however, has contributed to the role of the adat law community in protecting adat forest from an environmental point of view.

Perlindungan Masyarakat Hukum Adat terhadap Dampak Global Warming di Provinsi Riau

The impact of global warming in Indonesia are felt by all people, including the adat law community. Because the community is live from nature who manage natural resources for daily needs. It also happens in Riau Province . The purpose of this study is to determine the protection of adat law community to the impact of global warming in Riau Province. This is socio-legal research by using primary and secondary data. The results show that the impact of global warming on the adat law community in Riau Province is real and widespread in various aspects of life, such as prolonged ecological disasters, floods, land fires, and droughts; Climate change causes unpredictable seasons, the community is unable to predict planting times according to the seasonal calendar has been passed down for generations, causing crop failure; Community needs additional capital to manage agricultural land to adapt the climate change, they need synthetic fertilizers, pesticides, herbicides, and others. Even though formerly, additional treatments are not necessary ; Forest and land fires cause a smog disaster, the haze impact make the loss of honey bees from the sialang trees, so reduced honey production. the conclusion is that the impact of global warming decreases standard life, economic, health, and environmental. Therefore, the government have to control the impact of global warming which is extracted from the values of local wisdom that live and develop in the adat law community, especially in Riau Province in terms of managing existing natural resources. Keywords: Dampak, Global Warming, Masyarakat Hukum Adat, Provinsi Riau

Kajian Hak Ulayat Di Kabupaten Kampar Dalam Perspektif Peraturan Perundang-Undangan Dan Hukum Adat

The existence of ulayat land rights for adat law communities in Kampar Regency is recognized in customary law across generations based on Adat Jati Andiko Nan 44. Development of ulayat land rights arrangements has shifted because they are regulated based on adat law and statutory regulations. The purpose of this research is to examine the recognition and protection of ulayat land rights based on the prevailing laws and regulations and based on adat law. This research method is normative empirical, the data sources are primary data and secondary data and analyzed descriptively qualitatively. The results of the research conclude that the recognition and protection of the ulayat land rights of the adat law community as contained in the statutory regulations have not been able to provide legal protection because the legal politics of recognizing ulayat land rights are still half-hearted, false and ambivalent. Therefore, efforts are needed to rebuild the legal politics of state recognition and protection of ulayat land rights of the adat law communities in the statutory regulations. It is necessary to revise the Kampar Regency Regional Regulation on Ulayat Rights by adopting the values of the Adat Jati Andiko Nan 44 as a law that lives, grows and develops in the adat law communities in Kampar Regency.

THE EXISTENCE OF ADAT LAW COMMUNITY IN PUBLIC-PRIVATE PARTNERSHIP

<em>This paper aimed to elaborate the participation of Adat Law Community in Public-Private Partnership (PPP) to introduce new approach to replace compensation to more participative and collaborative scheme of infrastructure development in PPP. This article uses the normative legal research with the conceptual, statute, and case approach. This research show that releasing the land used for infrastructure development procurement will abolish the identity of the community. It have shown that failure in recognizing Adat Law Community as rightful party over their land neglects their right to entitle compensation. Furthermore, instead of economically compensating ulayat land of Adat Law Community used for infrastructure development, Adat Law Community’s participation shall be involved in infrastructure development on their land. The active participation of Adat Law Community can be exercised through placing the community as public entity in PPP. For comparison in China, the State does not pay according to market prices to farmers. However, it provides a compensation package that includes employment opportunities for farmers, housing compensation, compensation for crop loss, and / or granting a residence permit in urban areas. This make them eligible for their social welfare such as health insurance, pensions and / or retirement plans, access to high-quality schools and subsidized agricultural goods that were not previously available to farmers</em>

INVENTORY OF TRADITIONAL PROPERTY OF BESEMAH TRIBE IN JOKOH SUB-DISTRICT, DEMPO DISTRICT, PAGAR ALAM CITY

This research aims to know and understand the utilization of heritage in indigenous peoples in Besemah tribe, and to know and understand the efforts of indigenous peoples in the tribe of Besemah to preserve their inheritance. In this study the author used an empirical approach by conducting interviews on Jokoh and the head of Adat in the village of Jokoh. As for the material interviewing is about the existence of heirloom in the tribe of Besemah covering anything, then conducted analysis of the legal certainty given to the Adat law community when there is a violation committed of Adat heirloom and how the procedure is done in conducting the management of the estate so that later known the level of awareness of the law of indigenous peoples to its inheritance. The results of the research is the inheritance in indigenous peoples in the tribe of Besemah consisting of the House of Baghi, Tanah, and Keris Serunting Sakti. Then the efforts of indigenous peoples to the people of adat in preserving their inheritance is by doing traditional ceremonies that are attended by community leaders, people's people, and rural residents. As in the house Baghi there is a pillar-set ceremony (Sedekah Negah Ka Tiang), the ceremony of raising a cam (Sedekahnupload Mubungan), ceremony occupies the house (Sedekah Nunggu Ghumah), and the ceremony to test the house (Sedekah Nyimak Ghumah). In addition to the keris, the traditional ceremony is done as a ritual of bathing the Kris as an apology and forgiveness to the almighty for all the mistakes that have been done and ask for all the efforts made in order to Get ease in various things, cheap sustenance, healthy community prosperous, and safe village

Adat Law as An Alternative Option In Law Pluralism Perspective In Indonesia

This article aims to analyze recognition and respect towards adat law community and adat law in Indonesia legal pluralism context; the strength and weakness of adat law as conflict resolution mechanism; model on state recognition and respect towards adat law community and its adat law in order to reduce the weakness of adat law as a tool to resolve conflict. This is a legal normative article which written based on secondary data, such as books, articles, news, research report, and laws. Collected secondary data are selected based on the issues and analyzed qualitatively. Analysis results on descriptive report which explains the issues comprehensively. This article found that (1) In Indonesia legal pluralism context, the state has not recognized and respect adat law community and its adat law wholeheartedly. It is proven by cumulative limitations which hard to be fulfilled by the adat law community in order to be recognized and respected by the state; (2) The strength of non-litigation conflict resolution based of adat law principles is not about win or lose solution, but about win-win solution. Win-win solution has purpose to achieve justice which acceptable to all parties. Win-win solution is obtained based on consensus from conflicting parties until justice is achieved. The weakness of adat law in Indonesia Law context is the fact that Indonesia adopts European Continental system of law, therefore adat law is not the state law. Adat law is understood by understanding the life of the community where adat law is applied. Adat law is implemented voluntarily, without any force from the state. The weakness of adat law as tool of conflict resolution is the dependency towards good faith between parties. The decision cannot be implemented, unless there is good faith from the conflicting parties; (3) model of adat law community and its adat law recognition and respect is synergic combination model between self declaratory by the adat law community and decisive state recognition with strict limitation which hard to be implemented by the adat law community.

Traditional Rights of Indigenous People in Indonesia: Legal Recognition and Court Interpretation

Indigenous peoples are victims of agrarian conflict, but their existence are not recognized by Indonesia. Indonesia recognizes Adat Law Community, distinct community living in Indonesia according to their Adat Law, and their traditional right. This paper is written based on legal normative research to analyze right of Adat Law Community towards their land and territory; and rule of the court regarding right of Adat Law Community. Adat Law Community has strong relation with their land and territory, namely Ulayat Right which guaranteed in Constitution and regulated in various law and regulation, especially regarding natural resources. Recognition towards Ulayat Right held by Adat Law Community through regional law product is declaratory because it only confirms the exiting right. Court has prominent role to enforce right of Adat Law Community. Constitutional Court has revoked several provisions in law which neglect Ulayat Right of Adat Law Community, such as Adat Forest which defined as state forest located in Adat Law Community’s territory; and Right of Coastal Water which limits Ulayat Right of Adat Law Community to access natural resources in coastal area and small islands. Though Constitutional Court has strengthen right of Adat Law Community, this community still face difficulties to claim their right towards land and territory against government and investor before District Court, High Court, and Supreme Court because those Court more focus on formal legal certainty of Adat Law Community’s authorization towards their land and territory than factual authorization as narrated by the community.

DYNAMICS OF ADAT LAW COMMUNITY RECOGNITION: STRUGGLE TO STRENGTHEN LEGAL CAPACITY

The existence of adat law community has been recognized since Dutch Colonial Era until today. State recognitions towards adat law community are dynamics. This paper is written based on legal normative research to describe dynamics of adat law community recognition. In the early of Indonesia independent, adat law community was considered as foundation of Indonesia nation state establishment. Since 1957 and during New Order era, there was systematic effort to abolish adat law communities because adat law was perceived as symbol of backwardness. After the amendment of the Constitution, adat law community and their traditional rights are recognized by law and enforced through court decision. Adat law community can determine their type of recognition to strengthen their legal capacity to manage Adat Forest; to organize Adat Village; or to hold communal land rights.

The Participation of Women in the Village Adat Justice: the Regulations and Its Implementations in North Aceh Regency

Adat justice is one of the local wisdom possessed by the people of Aceh. The adat justice in Aceh was formed and carried out by adat law community to resolve issues between citizens. This research used normative juridical research method for reviewing the rules of regulations about the role of women and the empirical studies to understand the implementations, also to know the factors restricting the role of women in adat justice at gampong. It can be concluded the role of women in adat justice system at gampong in North Aceh Regency has not been done properly. In general leaders and community leaders are still reluctant to include women in gampong governance structure. Thus the lack of women representative directly related to the implementation of adat justice system at gampong.There are internal and external factor that inhibiting women participation.

KONSEPSI HAK MASYARAKAT HUKUM ADAT SEBAGAI HAK ASASI MANUSIA DALAM PERATURAN PERUNDANG-UNDANGAN DI INDONESIA

This article discusses the "conception of adat law community rights as a human right. The purpose of writing this article is to know the conception of customary law community as a human right, with limited review of legislation relating to the topic.This article is important to publish, considering many issues that arise related to the rights of adat law community. Starting from the use of the term to the fulfillment of the rights of adat law community. As known that until now there has been no legislation that specifically regulates the rights of adat law community. In the highest regulation under Article 18 B paragraph 2 and Article 28 I paragraph 3 of the 1945 Constitution, the rights of adat law community are further regulated in several laws and regulations, so that it will be difficult to identify what rights should be met by countries for the fulfillment of the rights of adat law community.This article discusses some statutory legislation in Indonesia which is the foundation for accommodating customary law community rights which are human rights where the fulfillment must be done by the state.

KONSEPSI HAK MASYARAKAT HUKUM ADAT SEBAGAI HAK ASASI MANUSIA DALAM PERATURAN PERUNDANG-UNDANGAN DI INDONESIA

This article discusses the of adat law community rights as a human right. The purpose of writing this article is to know the conception of customary law community as a human right, with limited review of legislation relating to the topic.This article is important to publish, considering many issues that arise related to the rights of adat law community. Starting from the use of the term to the fulfillment of the rights of adat law community. As known that until now there has been no legislation that specifically regulates the rights of adat law community. In the highest regulation under Article 18 B paragraph 2 and Article 28 I paragraph 3 of the 1945 Constitution, the rights of adat law community are further regulated in several laws and regulations, so that it will be difficult to identify what rights should be met by countries for the fulfillment of the rights of adat law community.This article discusses some statutory legislation in Indonesia which is the foundation for accommodating customary law community rights which are human rights where the fulfillment must be done by the state.

FINDING A FAIR LAND DISPUTE SETTLEMENT MECHANISM BETWEEN ADAT LAW COMMUNITY VS. INVESTOR

Land utilization for investment in local areas raises various land related problems that ends with conflicts within the community. A conflict that occurs, usually begins with the management of communal land “ tanah ulayat ” within the adat law community environment, and in this case, land utilization that is managed by the third party (investors). The basic problem is the difference of perception and expectations toward the company that exists in the land which is claimed by the community. Both parties have their own claim on the land based on each legal systems, in this situation adat law or local law faced with state law which is used by investors. So far, the Indonesian government has yet to have legal grounds in giving a directions for land dispute/conflict settlement mechanism. This paper attempts to give an input regarding a land dispute settlement mechanism that can be accepted for all disputing parties. The paper features critical analysis using legal pluralism approach towards related government policies and technical regulations in the ministerial level. These regulations, among others are, Minister of Agrarian Regulation No. 5 of 1999 on the Guidance for Dispute Settlement of Communal Land Rights, and Ministry of Agrarian and Spatial Affairs Regulation No. 9 of 2015 on Procedures of Appointment of Communal Land Rights for Adat Law Community and Communities Located in certain regions, also the draft of Law regarding Recognition and Protection of Adat Law Community.

PENGUATAN KEDUDUKAN PRANATA HAK SERVITUT DAN HUKUM BERTETANGGA DALAM YURISPRUDENSI

The Constitution has laid the foundation of checks and balances amongst the main state organs namely the executive, the legislative and the judicial power. This order as a guideline in the state and society, till the Village level and within groups in the village such as the Neighborhood and citizen groups. Servitut Rights and neighbors law answer challenges of development of human settlements sustainably and resilient. Servitut rights as a property rights regulated in Neighbor law book II Indonsian Civil Code of 1848 or in adat law term called easement (hak melalui tanah orang lain) which known by adat community entity is not older than the easement is recognized by customary law in almost adat law community entity throughout the territory of Indonesia. The servitut right is the easement of yard (erfdiensbaarheid) or burden to rest on the grounds that one for the benefit of the another yard such that the owner of the yard were crushed should let the owner of the yard oppressor to pass through, drain the water (clear) on it, take view out through the window etc. This devotion land does not end with the death or replacement of yard owners concerned (Article 674 of the Indon. Civil Code). There are still remnants of feudalism and colonialism in tribal society, reflecting the concrete cases in the community there is disturbance against the rights of servitut with vigilante, then the rule of law invoked repeatedly and generating permanent jurisprudence. Kedudukannya hak servitut tidak tergoyahkan dengan adanya UUPA 1960 yang mengatakan semua hak atas tanah mempunyai fungsi sosial dan hukum adat dijadikan dasar dari hukum agraria nasional. The position of Servitut rights is impregnable with the Basic Agrarian Law 1960 (BAL) that says all rights on land has social functions and customary law form the basis of the national agrarian law. In Article I point 6 of BAL No. 5 year 1960 proves Indonesia is in a row of civilized countries that accommodates this legal institution. Jurisprudence confirm customary law as a living law as well as the Civil Code 1848 according to Supreme Court Circuler of 1963 treat as unwritten customary law in order to prevent the legal vacuum and reaching the objectives of the law. Jurisprudence has been recognized as one of the legitimate source of law in the Republic of Indonesia. Indonesian Judges have shown its class in the world of justice, who did not want to look different in servitut rights issues which is an universal phenomenon. Almost all civilized countries of the UN members have recognized the existence of this institute servitut rights, both in the Code book as well as in its jurisprudence. Servitut rights institution is rooted in the common law ius commune since Roman Empire, which can not be ignored, despite overall individualistic Roman law, but in particular there are elements of social function. Servitut (lat.) is accommodated into the book of the law in almost all countries in the world, through colonialize, import law, voluntary transplants in the law of one self. Boedi Harsono, as nationalist and socialist thinker and R. Supomo as father of Indonesian customary law and by youth in 1928 is regarded as a national law with the smooth call it "right through another person's land" which is also known by the common law. The permanent Jurisprudence remains threngthen unwritten norm servitut rights or land rights through anothers person’s land showed the class of Indonesian Judges comparabele with justices of developed nations in assessing this servitut rights. Implementation build without displacing has been regulated in Law No. 4 year 1992 art. 22-32 and Act No. 1 year 2011 on Housing and Settlement Region art. 106-113 law institute land consolidation, which is compatible with the institute servitut right and reconfirmed the servitut. Implementation, if one developer alone could make the plot and make the land ready to build cosolidate up to 6,000 ha orderly development of land, so a province or a local government / city are challenged to be able to hold up to 6,000 ha of land consolidation to reduce the backlog and combating land speculators. For the assessment of achievement of the Governor / Regional Office of BPN how long had a special local street, public street or road of servitut rights through land consolidation and how many special streets that have been submitted become public streets.Keywords: Reinforcement, top notch institutions, rights servituut

PENGUASAAN TANAH MASYARAKAT HUKUM ADAT (SUATU KAJIAN TERHADAP MASYARAKAT HUKUM ADAT TERNATE)

Land acquisation by the community of adat law tends to leave out. This condition caused by the government policy before which has no attention to the development of land acquisition of the adat community. According that policy, all land are owned by the State, especially when its issue is about the government and bussiness interest. Reformation has changed the State system related to land acquisition, where the position of adat law community is diclared explicitly in the State constitution. The position of adat law community is agreed as long as not contradicted wiht public interest. The tale of seeking the existency of adat law community and the right of adat land acquisition shows that acquisition, mechanism and the area of adat law community still exist and have different characteristic between one and another. So that, State and the government should give protection and agreement to the right of adat law community as well as local wisdom as stated in its constitution. Key words: Land acquisation, right of adat community, adat law

KEBIJAKAN REKLAMASI PANTAI DAN LAUT: IMPLIKASI TERHADAP HAK MASYARAKAT PESISIR DAN UPAYA PERLINDUNGANNYA

AbstrakThe purpose of this research is to know of the implication of coastal and seareclamation towards coastal peaple and to know the available efforts ofprotection as well as protection that should be pel/ormed. By benefitingprimary legal materials such as legislation regulations and internationalconventions as well as secondary legal materials such as text books, courtdecisions, experts' opinion, research results, journals, internet sources andnon-legal materials, it can be concluded that coastal and sea reclamationpossessed urgent implication on the coastal people's rights so protection isnecessary towards the coastal people through the establishment of specialact concerning coastal and sea reclamation, arranging the reclamationcomprehensively, comprising the adat law community, local as well as urbancommunity rights, also regulating the requirements, planning, performing,protection and/or compensation of the people as well as ordering conservingthe function of the environment.