Adat Law Research Articles

The Implementation of Customary Court Within the Framework of Law Number 21 of 2001 Concerning Special Autonomy of the Province of Papua

The Adat (customary) community in the province of Papua is of a diverse culture that respects and maintains Adat law. Under Law Number 21 of 2001 concerning Special Autonomy in the Province of Papua, an Adat community is defined as a group of native people of Papua who, since their birth, have been living in a particular territory, bound to, and compliant with a particular Adat law with solidarity upheld by the members of the community. This research seeks to analyse the legal tenets of the Adat court that the people of Waena have to abide by, how criminal offences are settled under an Adat court of Waena, and the impacts of the implementation of special autonomy in the Adat community of Waena within the scope of Adat law. This research employed an empirical-legal method, supported by primary and secondary data. Data were collected from in-depth interviews, observation, and documentation. The research results reveal that the locals of Waena uphold the Adat law passed from their ancestors, while also abiding by the state’s law as the general law (unification). The special autonomy in place in the community of Papua under Law Number 21 of 2001 reinforces the existence of Adat law and the role of an Adat court in resolving both private and criminal cases faced by the native people of Waena. The judiciary structure of the Adat community concerned consists of Ondofolo/ondoafi as the Chief Judge/chief of deliberation and koshelo in Kampong Waena as the members. Three pillars serve to govern the life of the people of Adat institution, churches, and the government of Kampong.

THE MATERIAL CONTENT OF REGIONAL REGULATIONS AS THE CONCRETIZATION OF THE LIVING LEGAL SYSTEM IN SOCIETY (ADAT LAW) BASED ON ARTICLE 2 OF THE INDONESIAN PENAL CODE (KUHP) 2023

Article 2 of Law Number 1 of 2023 regarding the Criminal Code (“KUHP 2023”) not only leaves problems in the context of legality, but also includes mechanisms for the law enforcement process, particularly regarding the measurement of the applicability of Indonesian customary law (“Adat Law”) through regional regulations. One issue that has arisen is the lack of standardized content material that must be regulated in regional regulations in order to determine the applicability of Adat (criminal) Law. This article will analyze to what extent the standard of “law that applies in the place where the law lives” and to what extent the regional regulation regulating “living law” in the perspective of law enforcement prosecutes the perpetrator. The results show that regional regulation can be used as a basis for determining the recognition of Adat Law, but there is no common standard for how to recognize Adat Law under regional regulation. As the concrete of Article 2 Indonesian Penal Code 2023, regional regulation must explicitly regulate the scope of Adat Law (criminal) application related to territorial, personal and protection principles. Meanwhile, in the case of the prohibition act and penal sanction, it needs further studies because Adat Law has no separation between criminal and civil matters.

Adat Law, Ethics, and Human Rights in Modern Indonesia

The fact that legal issues support local wisdom, ethics, and human rights and the way in which they operate in the nation-state are not well-understood; however, this is a significant issue. Indonesian independence, achieved on 17 August 1945, initiated substantial changes in the religious life of Indonesians. While most of Indonesia is Islamic, other religious beliefs include Hinduism and Christianity. Indonesia did not consider the Balinese a formal religious group in 1945. However, because of the Mount Agung eruption in Bali, many Balinese migrated outside the island. They lived in Lampung (Sumatra), certain places in Java, Palangkaraya (Borneo), Palu (Celebes), and other areas in the Indonesian archipelago, and have lived there for a long time. The total number of Balinese at the present day is around three million, but outside Bali, their number is 10 million. Their number increased throughout the Old Regime, the New Order, and the Reformation periods until the present time. They face many significant problems regarding the marriage and divorce laws juxtaposed with national law, as is the case with other religious communities, such as the Islamic community in Indonesia. Several important questions need to be addressed in this paper. First, what is adat law, or customary law, in Bali and outside Bali regarding the concept of Hindu Nusantara? Second, how should customary law be implemented, for example, relating to marriage and divorce issues in the building of the nation-state? Third, what is the customary law relating to the present situation of the Hindu communities in Indonesia? These are some significant questions. By using interdisciplinary approaches to customary laws, religious history, anthropology, and sociology, we expect to have a better understanding of how the Balinese customary law can become part of the formal law in modern Indonesia. By understanding these issues, it will be possible to strengthen national regulations by adopting certain values of customary law in modern Indonesia.

The Balinese Inheritance Customary Law During Modernity and Gender Equality Era (A Case Study)

The issue focuses on whether Balinese people still adhere to their inheritance customary law during modernity and the gender equality era. The research data consists of the Supreme Court decision No. 29/K/Pdt/2004 of the case as a primary legal material, together with works of literature and research articles of inheritance Bali adat law as secondary legal materials. It will analyze the data regarding substitute heirs' position qualitatively according to Bali inheritance law. The result shows that Bali's inheritance customary law uses a patrilineal system, which places men as the heir. It has existed nowadays as supported by the Plaintiffs and the judges in court decision No. 29K/Pdt/2004. Instead of applying gender equality, Balinese inheritance customary law uses the principle of the balance of life by giving a man as an heir and giving him obligation, likewise, a father who protects and takes care of women. Only if no son can the woman be represented as a substitute heir. Justice for women in Bali is still an exception condition. It is essential to consider the rights given to women because as society develops, the role of women in various aspects of life begins to emerge

Acknowledgment of Adat Law-Based Tenure in the Courtroom: Study of Decisions on Criminal Acts of Land Clearing by Burning, Logging Trees Without Permits, and Collecting Plantation Products Without Permits

Abstract: The recognition of the existence of adat communities and their rights can not only be found in the constitution but also various regional laws and regulations. However, this recognition is counterproductive because it further distances adat communities from their rights, especially tenure rights based on adat law. The diverse and minimal understanding of adat law by executives and law enforcement officials compound this condition. Sometimes, adat communities must face the law because they are suspected of committing criminal acts violating it. Therefore, this research aimed to examine the recognition of adat communities’ tenure rights in the courtroom. This research is normative legal research using a case approach—four court decisions as the primary data. The results of this study indicated that in deciding cases, there are times when judges recognize how adat communities control and utilize natural resources according to their adat law. However, there are times when judges override the narrative of adat law that adat communities claim. This research also showed that adat law narratives can play a role in freeing adat communities from punishment. Keywords: Adat law, adat communities, criminal crime, tenure rights

Customary Village (Desa Adat) and Inter-Ethnic Fragmentations in Seram Island, Maluku

This article introduces the socio-spatial implications of the recent transformation of inter-ethnic relations in Seram Island, Maluku. These transformations follow the implementation of the current regional autonomy policies in Indonesia, specifically on Customary Village (Desa Adat) Law No. 6 of 2014, which provides legal support for re-strengthening the traditional political forms at the village level or commonly known as negeri adat in the context of Maluku. The author highlights the consequences of this law on the change of governmental structural status from the uniform village model of desa, which was held previously in Soeharto’s New Order era, to negeri adat. This law provided a chance for minority groups generally termed by the surrounding population as “primitive” or “backward” to gradually emerge as political actors. Yet, this revival of adat has also generated a rivalry among villages on obtaining the “adat” label. It resulted in renewed identity claims and encouraged villagers to demand an increased village fragmentation (pemekaran desa) in order to gain independent financial resource from the government as well as to reinforce their autonomy in managing their traditional territory. Given these contesting claims, the challenges around the discourse of adat and the definition of adat itself remain unclear and need to be discussed. In Indonesia, especially in the context of Maluku society, adat is still considered as a natural state that is widely prevalent within the society’s daily life, such as social hierarchies and institutions as well as land transmission processes. On the other hand, this article attempts to show how adat also promotes areas of intervention in political contests and, thus, will concentrate on the processes of administrative configuration and on the power games between village societies. Examined through ethnographic method and participatory mapping, the focal point of interest is a sub-village (dusun) named Masihulan, a minority hinterland community of animists in North Seram, the so-called Alifuru. The author analyses how the application of desa adat law has provided this community the opportunity to split from its previous principal village, called Sawai, in order to become an independent village. Besides the economic oriented objective, divergent identity claims exacerbate local tensions and may provoke disintegration between social groups.

Kajian Teori Pluralisme Hukum terhadap Sistem Hukum di Aceh

Abstract
 Legal pluralism is not a new concept that has emerged in the modern legal system, but an approach to analyzing the operation of various legal systems side by side in the system of government of a nation-state. Aceh is one of the provinces in Indonesia which has several legal systems. The province of Aceh is viewed as a province that has special autonomy status with a multicultural pattern, because of the plurality of regulatory systems in its society. The pluralism (pluralism) of the legal system in Aceh arises because of ethnic diversity and the application of Islamic religious values ​​to every aspect of Acehnese life, especially in the field of upholding the legal system itself. The diversity (Pluralism) of the legal system that lives and applies in Aceh has the power of law and recognition from the Indonesian government with the passing of Law number 11 of 2006 concerning the Governance of Aceh, so in addition to the enactment of the state legal system (state law), de facto in Aceh to the legal system of procedures (adat law) applies, and the system of religious rules / Islamic law (religious law / Islamic law). The research method used is juridical sociology. The data were analyzed using a qualitative descriptive approach.
 Keywords: Legal Pluralism, Legal System of Aceh, Islamic Law

Sanksi Adat Penyelesaian Kasus Pelecehan Seksual di Desa Kungkai Kabupaten Merangin Jambi

The threat of criminal sanctions in Indonesian state law does not have a major impact on reducing sexual harassment cases. In some places, efforts to sanction cases of sexual harassment using adat law can be another alternative, because of the unique relationship between traditional communities and adat law. This research examines the existence and implementation of adat law sanctions to solve the problem of sexual harassment in Kungkai Village, Merangin, Jambi Province. The type research is field research or empirical juridical research using a legal anthropological approach. The data collection instrument is through observation, interviews with indigenous peoples, and literature review. Adat sanctions for perpetrators of sexual harassment crimes in Kungkai Village are called “utang adat”. This sanction was given by the adat party in Kungkai Village for perpetrators of sexual crimes to pay compensation. The application of Islamic values in the Jambi Malay traditional seloko, adat bersendi syarak, syarak bersendi Kitabullah can be found from the addition of punishment by assessing the marital status of the perpetrator or victim such as the jarimah zina in Islamic criminal law. The existence of adat law has an urgency to maintain community compliance with legal values and norms.

Pemberdayaan Perempuan Dalam Pengembangan Pariwisata Berdasarkan Hukum Adat Tenganan Pegringsingan Dan UNWTO

This sociolegal research with an economic and sociocultural approach aims to analyze how the position of Adat Law in Tenganan Pegringsingan Bali with a patrilineal kinship system, places the role of women in overcoming sociocultural impacts, especially in the tourism sector which has fallen due to covid 19. The results show that as a specialized UN agency in the field of tourism, UNWTO is committed to enhancing the positive impact of tourism development on women’s lives, and, in so doing, contributing to the achievement of the Fifth Sustainable Development Goal: “Achieve gender equality and empower all women and girls”. Since 2007, UNWTO has been working, through its Ethics, Culture and Social Responsability Department, in partnership with UN Women and a range of external partners across the globe, to bring gender issues to the forefront of the tourism sector, promoting gender equality and women’s empowerment and encouraging member states to mainstream gender issues in their respective tourism policies.

Salah Satu Bentuk Perlindungan Bagi Penyandang Disabilitas Mental Sebuah Studi Eksplorasi Peraturan Perundang-Undangan Indonesia tentang Perlindungan Hak Waris Penyandang Disabilitas Mental

Indonesia ratified the Convention on the Rights of Persons with Disabilities (CRPD) and enacted Laws that provide for the right to justice and legal protection for persons with mental disabilities, including the right to own and inherit a legacy. Paradoxically, the same laws legalize actions that undermine their rights. This study examines the legal protection accorded to persons with mental/intellectual disabilities over their inheritance rights as per the Indonesian three-pronged inheritance laws comprising Islamic law, adat law and the civil code. This research is descriptive, using a normative approach with a measure of doctrinal research. Indonesian laws still provide for substituted decision-making for persons with mental disabilities, which legalizes denying their right to legal agency. Ambiguities abound in the laws on important aspects, like how one is declared incapable of making legal decisions. Supported decision-making mechanisms for persons with mental disabilities in Indonesian laws would provide the basis for setting up support centers where persons with mental disabilities can access the necessary support to enable them to make legal decisions. This study can be useful in addressing issues that infringe on the legal rights and protections of people with mental disabilities.

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.

Tribal Public Health Law in Tenganan Pegringsingan-Bali: An Emergency Preparedness and Response to Covid 19 Pandemic

Public health law is a legal concept not only regulating the provision of health services but also improving the quality of life and extending access to the service for the public members. Covid-19 opens access to health services for the people, and it serves as an indispensable part in the survival of the people, including the vulnerable people of adat law. This research aims to analyze the degree of success in implementing public health law in Tenganan Pegrisingan village-Bali in the scope of preparedness or response to the pandemic. This research employed socio-legal methods involving interviews, observation, and focus group discussion (FGD). Primary data were collected from interviews and FGD, involving the participation of the traditional chief, village head, and other adat figures in Tenganan Pegringsingan-Bali. The research analysis required a descriptive-qualitative approach. This research sees how the tenganan Pagringsingan tribe clings on to their sovereignty to survive and respond to the Covid-19 pandemic without leaving their framework governed by international and national laws. It leads to the research result revealing that the public health law in Tenganan Pegrisingan adat village combines traditional and modern elements and spiritual and science. This approach can set a model for other village communities. The leadership role of adat people that are inherent, strong, and obeyed has made public health law more properly managed and more effective in dealing with the pandemic. The supportive policy framework that is harmonized at all international, national, and regional levels and all over adat villages is a prerequisite to help maximize the potential of tribal public health system innovation.

Model of Social Conflict Settlement According to Lampung Adat Law

The Indonesian nation is heterogeneous because it has various ethnic groups, languages, and customs. This situation indicates that a potential social conflict might occur. In managing potential social conflict, Law No. 7 of 2012 was enacted. This law regulates the resolution of social conflicts through the mechanism of traditional institutions. This research uses a legal concept approach, namely the concept of Lampung adat law, to overcome social conflict. The findings are: First, Law No. 7 of 2012 has not regulated social conflicts settlement specifically in procedural aspect and give a chance to a traditional institution to take its role. Second, Lampung adat law can systematically settle the social conflict through the internalized value of Piil Pesenggiri, which functions as a moral order to Lampung people and heavily relies on the joint meeting of perwatin adat to hold rembuk pekon. This research recommends that social conflicts settlement regulation considers including the Lampung adat law principle into national law. The Lampung local government should manage incoming social conflict based on the traditional institution to provide open space for Lampung adat law in carrying out its role.

What is This Thing Called Adat Logic?

The notion of adat (or custom) law does not encourage people in philosophy to reveal its logic. This article aims to investigate the possibility of adat logic, its variety, and a possible common ground or thesis among its own kinds. In general, the adat logic means the true contradiction between the rigidity and the reflexibility of custom. In other words, it resembles the idea of dialetheia in modern logic, but it does not mean that the adat logic is a subdivision of the former. To seek a thesis of adat logic is to discuss the Javanese and Minangkabaunese adat logics, and I transform both logics into some notations for the sake of avoiding unnecessary linguistic challenges and hurdles. Thus, I insert each notation of a particular adat logic into the general notation of adat logic. By doing so, I wish to discover a common ground between some different adat logics.

Sikap Masyarakat Muslim Kota Medan Terhadap Kedudukan Anak Angkat

The Muslim community of Medan city, which adopts children, punishes adopted children like biological children. This study aims to determine the position of adopted children in the view of Islam, to determine the attitude of the Muslim community of Medan City towards the work of adopted children, and to analyze the perspective of the Muslim community of Medan City on the position of adopted children in terms of Law no. 23 of 2002, Compilation of Islamic Law and applicable regulations. To answer these problems, field research was conducted with a qualitative research analysis model, which was analyzed through national law theory, Islamic law, and adat law. Based on the study results, it is known that the attitudes of the Muslim community in the city of Medan to the position of adopted children vary. Some people make the position of adopted children like biological children. But some people understand the position of adopted children so that they do not equalize their position as biological children.

Ethnic Diversity, Social Norms and Elite Capture: Theory and Evidence from Indonesia

Elite capture is a natural concern regarding decentralization. We highlight the effects of ethnic diversity and social norms on the extent of such capture. Ethnic diversity, through differences in the preference for public goods, facilitates capture. However, this may be counteracted by social norms that promote cooperative behaviour within communities. We test these theoretical predictions using community‐level data from the 1997 and 2007 Indonesian Family Life Survey rounds, with fiscal decentralization being implemented in between. We exploit a particular institutional feature of Indonesian communities—namely, the observance of traditional ‘Adat’ laws to proxy coordination across ethnic groups. Overall, we find that ethnic diversity depresses community‐level development spending after decentralization, particularly where Adat laws (which promote an ethic of mutual cooperation) are not followed. The opposite is observed for spending on non‐developmental items.

Adat Law and Legal Pluralism in Indonesia: Toward A New Perspective?

Adat law is part of Indonesia's legal system with unwritten characteristics. To some extent, it embeds with religious values. As a country with pluralist societies, adat law plays an important role in Indonesia that increasingly adds the critical discourse of legal pluralism since it originates from indigenous values based on habits to execute from the older generation. This study aimed to analyze the contextual development of adat law in Indonesia through a historical perspective and its applicability to its emerging positivization in the form of state law. It emphasized the recent development of transforming adat law into state regulation through by-laws with the following prospects and challenges. This study used socio-legal method research, a cross-disciplinary approach in nature through the form of analysis to the normative and contextual issues of adat law. This paper concluded that constituting the state regulation contains the boundaries to implement adat law as the right of adat community, adat court, and the adoption of the adat values. The positivization has developed by adopting adat law to by-laws at the regional level of governments. By-law is assumed to have law enforcement that binds the community because it comes from the habits of the community. Therefore, it indicates a new paradigm in recognizing and protecting adat law, not through by-laws, in which both adat and state laws are different and could not be a unity law.
 KEYWORDS: Adat Law, State Law, Legal Pluralism, Indonesian Law.

Minangkabau’s Adat Law Reflected In Abdulkarim Khiratullah’s Novel Mencari Cinta Yang Hilang

Minangkabau’s Adat law has developed for centuries. In its development, Minangkabau’s Adat law has given significant contributions to the dynamics and the continuity of Minangkabau’s society. Minangkabau’s society is matrilineal; it is not patriarchal in which the chief of a clan is always a man. In matrilineal, the women of the clan will be the chief and they can sack men if they do not do a good job. This paper studies first, what the types of Minangkabau’s Adat laws are reflected in the novel; second, how the implementations of Minangkabau’s Adat laws are in the novel. This study focuses on the analysis of Minangkabau’s Adat law reflected in Abdulkarim Khiratullah’s novel Mencari Cinta yang Hilang. As the research design is very crucial to conducting a research, this study applied descriptive qualitative research as its research design. It is important to carry out this research because it has fascinated many researchers due to the co-existence of contradictory elements with Islamic regulation like matrilineal family structure, marriage system and inheritance regulations.

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

The Local Customary Law: The Contribution of Adat Law in Preserving the Lubuk Larangan in Jambi

This article discusses the living law which stands behind the Lubuk Larangan tradition in Jambi, Indonesia. While many academics stand on belief that Lubuk Larangan is about the conservation, the article argues there is a metaphysical belief and sacred agreement that triggers such conservation by the indigenous people. Such belief has been overlooked by academics resulting in the failure of seeing the very fundamental life of the indigenous people, as long as their legal practice is concerned. This article demonstrates that the customary law norms can be found in the customary seloko of Jambi Malay, norm which is reflected the whole lives of the indigenous people, both in private and public lives. This article found that the tradition demonstrates a communal way of living and togetherness based on the need of the community. The natural conservation is nothing but the reflection of the sacred, mystic, religious adat and law to keep the nature survive