Customary Courts Research Articles

Undifferentiated Potency and Chiefly Punishment: A Phenomenological Analysis of Flogging in Botswana

In light of recent controversies surrounding judicial flogging in the customary courts of Botswana, this article surveys journalistic coverage of the issue and seeks to establish an account of flogging as a cultural practice. Drawing on legal, sociocultural, and phenomenological perspectives, it argues that flogging is deeply embedded in social hierarchies of age, rank, and morafe membership, and can be interpreted as a disciplinary practice aimed primarily at unruly youths. Morafe elders teach proper modes of public comportment that involve managing thoughts and behaviors, a practice termed here bodily modulation. Through bodily modulation, individuals convey an understanding of botho, or ‘humanness,’ expressing their existential interdependence with others and cultivating the social relationships that sustain their personhood. Flogging and its enmeshment with other aspects of Tswana life point to the theme of undifferentiated potency in Tswana thought, of which law is only one instantiation among others.

Criminal Fines and Customary Justice in Papua: Socio-Legal Analysis in Child Sexual Intercourse Cases

This study aims to analyze the formulation and application of criminal fines for child sexual intercourse within Papuan Indigenous society. Utilizing a socio-juridical or empirical legal research method, the study examines criminal sanctions, particularly fines, in cases involving child sexual intercourse. Data collected from primary, secondary, and tertiary sources are analyzed qualitatively to draw legal conclusions. The research highlights that customary law, recognized under the 1945 Constitution of Indonesia, plays an essential role in the legal culture of Indigenous communities, including those in Papua. Customary courts, as established by Law Number 21 of 2001 concerning Special Autonomy for Papua Province, are recognized within specific customary law communities. These courts operate based on the respective community's customary law, with provisions allowing for judicial review in formal courts if a party disagrees with the customary Court's ruling. Regarding fines as a criminal sanction, determining the appropriate amount often complicates the resolution of cases. The system is rooted in communal values emphasizing collective rather than individual justice, reflecting principles of kinship, religious beliefs, and societal cohesion in decision-making.

The The Principles and Implemetation of Case Settlement Through Aceh Customary Courts Process

Aceh customary courts have principles for resolving cases in reducing customary civil and criminal cases that occur in society, especially disputes that are not included in the formal justice system. This research aims to examine the principles underlying the resolution of cases through customary courts in Aceh, as well as how these principles are applied in the practice of resolving customary cases. By using a normative legal method, the resolution of customary cases in Aceh has its own principles that reflect the characteristics of customary law lives in Acehnese community (ureung Aceh). The principles of resolving cases through Aceh customary justice are principle of peace, justice, musyawarah and mufakat (mediation and negotiation), sincerity and willingness, fast, easy and cheap, openness, kinship, equality before the law, and guidance. The application of the principles of case resolution in the Acehnese customary justice process is a necessity. Acehnese community want cases to be resolved peacefully because this method has been a tradition passed down from generation to generation. The term for peaceful resolution of cases called suloh. Customary law does not distinguish between acts that are violations of civil law and violations of criminal law so that civil cases and criminal cases are decided simultaneously in a trial that is not separate. The use of the principle of musyawarah and mufakat in the implementation of customary justice has a very important role and determine whether or not the trial can be held.

EQUAL STATUS BEFORE THE LAW BY INDIGENOUS PEOPLES IN ORDER TO IMPROVE THE QUALITY OF LIFE IN SOCIETY, NATION AND STATE

The utilization of the Nagari Customary Court is actually important because it is needed by the customary law community. In fact, it is the customary law community that knows and understands the historical aspects and the ins and outs of the lineage, environment and local culture. Therefore, this research seeks to find an optimal model of utilization of the Nagari Customary Court. How is equal status before the law by indigenous peoples in order to improve the quality of life in society, nation and state. This research is a socio-legal research that uses a qualitative approach. The data used in the research are primary and secondary data. The data collection method is through literature study and interviews. Therefore, the articles of Pancasila that regulate equal rights and justice also apply to indigenous peoples, and must also be perceived through philosophical, juridical and sociological perspectives. Indigenous Peoples according to Jawahir Thontowi is a group of citizens who have genealogical ancestors in common, live in a place, have a common goal of living within the framework of values and norms, still enforce a binding Adat system, led by the head of Adat, coordinate the administration of power and the existence of dispute resolution institutions in the community.

Implementation of Restorative Justice in a Customary Court in Rejang Lebong District, Bengkulu, Indonesia: A Maqāṣid Al-Sharī‘ah Review

This paper aims at analyzing the form of restorative justice implemented in a customary court in Rejang Lebong District, and maqāṣid al-sharī‘ah review of the customary court. This type of research is qualitative with sociological-juridical approach. Data sources were literature, observation, in-depth interviews and documentation. The data analysis technique used qualitative descriptive analysis. This study showed that the form of restorative justice applied in the process customary court in Rejang Lebong prioritizes deliberation and peace between the parties. In terms of sanctions, compensation is based on the request of the victim and the consent of the perpetrator coupled with customary fines. Although there is a provision for customary fines, in practice, the judge determines the amount according to the ability of the perpetrator. In terms of maqāṣid al-sharī‘ah, the process prioritizing deliberation and peace is relevant to the objective of evading mafsadat, which is to reduce the anger and resentment of the victim or their family. Based on the form of sanctions applied, there is a benefit to maintain the existence of religion, property, soul, offspring, and honor. The sanctions prioritizing restoration, harmonious relations, deterrent effects, and learning for the community, have mutual functions of zawajir and ta'dib. This customary justice model that combines restorative justice and local wisdom can possibly be an alternative dispute resolution to non-litigation case settlement.

Ganti Rugi Terhadap Masyarakat Atas Kebakaran yang Disebabkan oleh Pencurian Energi Listrik Persfektif Wahbah Al-Zuhaili: Studi Kasus Desa Blangkejeren, Kecamatan Blangkejeren, Kabupaten Gayo Lues

It cannot be denied that electricity has become a necessity in people's lives, almost all of people's daily life activities are inseparable from the use of electricity. The existence of these electricity facilities is often not balanced with the development of the community's economic capacity. As a result, people often have difficulty meeting their daily needs with various supporting facilities that require electrical energy sources. This is one of the reasons why people try to obtain electrical energy supplies illegally, namely by stealing electrical energy. Of course, this is not only detrimental to PT. PLN is the electricity supplier, but it also has a detrimental impact on society. Because the theft of electrical energy is carried out with minimal understanding and equipment, of course it does not meet the standards of the General Electrical Installation Regulations (PUIL) that apply in our country, so this has a low level of security and can cause various consequences, including causing the voltage to fluctuate resulting in damage to the equipment. -household electronic equipment, and can even cause fires which cause harm to many parties, both material and immaterial losses, as experienced by the people of Blangkejeren Village. The aim of this research is to find out how fire incidents caused losses due to theft of electrical energy in Bangkejeren Village, and to find out how compensation for fires caused by theft of electrical energy in Blangkejeren Village was resolved, as well as how to resolve compensation for fires caused by Electrical energy theft in Blangkejeren Village seen from Wahabah al-Zuhaili's opinion. This research uses field research. This research is descriptive qualitative in nature. Data collection was carried out by means of interviews, observations and existing literature. The results of the research found that the Blangkejeren community prioritizes the elements of deliberation and peace through customary justice in resolving the issue of compensation for fire incidents resulting from the theft of electrical energy. In accordance with the results of the research above, it can be concluded that the Blangkejeren gampong customary court is correct in upholding the values ​​of Islamic law and traditional values ​​and is in line with the opinion of Wahbah al-Zuhaili and in accordance with the peace concepts that have been put forward by Wahbah al-Zuhaili.

Konsep Penegakan Hukum Pidana Adat di Indonesia Berdasarkan Asas Kepastian Hukum

One of the advances in Indonesian criminal law is the recognition of customary criminal law in the New Criminal Code. However, there will be problems in enforcing national criminal law if customary criminal law is accommodated. The problem that will be studied in this research is the consequences of the implementation of customary criminal law in enforcing national criminal law and enforcing customary criminal law in Indonesia that has legal certainty. This research is legal research with a typology of normative/doctrinal legal research which aims to produce a new argument, theory or concept on the problem being studied. The research results show that the application of customary criminal law in enforcing national criminal law will have the potential for disharmonious relations between law enforcement officials and local customary institutions. Therefore, enforcement of customary criminal law in Indonesia with legal certainty can be achieved by reviving the Customary Courts which have the authority to examine and try violations of customary criminal law. This research recommends immediately compiling customary law through regional regulations and immediately enacting a Draft Law on Customary Courts to ensure legal certainty of customary justice in the Indonesian Judicial System.

Analysis of The Role Based on The Customary Criminal Justice System of Dayak Bangkalaan in The National Criminal Justice System


 
 
 This research is motivated by indigenous peoples' belief in customary rules which encourages studies on their legitimacy in the Indonesian legal system. The author collected study samples from the Bangkalan Dayak tribe in South Kalimantan Province as an example of an Indonesian customary village. This study focuses on two formulations of problems, namely the role of the customary criminal justice system in the national criminal justice system and the impact of Dayak Bangkalan customary criminal justice law enforcement when related to the national criminal justice system. This research is a sociological legal research, the legal data collection technique is carried out through literature review, including primary legal data, secondary legal data, and tertiary legal data related to this research. The result of the study is that the state recognizes the existence of customary law communities in accordance with Article 18B of the 1945 Constitution of the Republic of Indonesia. Even though there is no legal framework that can regulate this at the national level, the mandate of regional legislative policy still recognizes the existence of customary courts. This is evidenced by the existence of regional regulations that recognize and protect indigenous peoples. In addition, the results of the study conveyed that the legal implications arising from customary court decisions turned out to be able to be used as legal data in national criminal courts.
 
 

Peranan Lembaga Adat Dalam Penyelesaian Delik Adat Pada Masyarakat Di Desa Toruakat Kecamatan Dumoga Kabupaten Bolaangmongondow

The aim of this research is to find out the form of customary law that is resolved in customary justice in the Deisa Toiruakat community, Dumoiga subdistrict, Boilaang Moingoindoiw district and to find out the legal process of customary law in Deisa Toiruakat, Dumoiga subdistrict, Boilaang Moingoindoiw district. The Meitoidei Peineilitian that is used is a combined type of research between Noirmative Huikuim Peineilitian and Eimpirical Huikuim Peineilitian. Noirmative-Eimpirical Huikuim Research is a type of research theory which in this case combines noirmative legal science which is coincided with the addition of data or empirical science. The research results obtained by the customary settlement process in Toruakat Village do not violate existing legal norms in Indonesia because the Guhanga Lipu (Traditional Institution) of Toruakat Village and customary courts are recognized by the Government both through laws, regional regulations and village regulations. The conclusion is that there are differences between the traditional regulations of Toruakat Village and the practice of carrying out customary trials that are carried out, because the sound of the articles mentioned in the trial process is different from the sound of the articles in Toruakat Village Regulation Number: 01 of 2020 Concerning the Customary and Customary Procedures of Toruakat Village and the number of sanctions imposed This also differs from the provisions for giving sanctions in the village regulations and in the research process the researcher found that indeed the traditional council did not comply with the traditional village regulations of Toruakat Village, they only relied on knowledge from their parents and from books that their ancestors had left to them.

CHALLENGES IN FORMALIZATION AND DOCUMENTATION IN CUSTOMARY COURT SYSTEM IN ACEH, INDONESIA

Abstract: The customary justice system in Aceh, Indonesia, aims to resolve minor disputes within the community through consensus. Essentially, the resolution of customary disputes is informally conducted without formalization and documentation. However, as the legal landscape and society evolve, government regulations now require the formalization of dispute resolution through customary courts similar to state courts. This article discusses the challenges of formalization and documentation in the customary courts in Aceh, Indonesia. The article identifies three primary challenges to formalization and documentation in customary justice: first, the belief among some customary leaders that the case resolution process does not require formality and documentation due to infrequent complaints from the parties involved. Second, there is a lack of training among customary leaders in the formal legal process. Third, there is insufficient awareness and promotion of the formalization of customary justice. The article argues that formalizing customary justice is not merely a matter of regulatory compliance but requires socialization and training for customary leaders to implement formalization and documentation effectively.

Implementasi Hukum Adat Sebagai Penanganan Restorative Justice Dalam Membangun Sistem Alternative Penyelesaian Hukum Pidana di Indonesia

In the implementation of the resolution of criminal law violations in customary courts, it is felt to be very effective in dealing with many criminal cases through a restorative justice approach which theoretically relies on values that are characterized by Indonesian harmony, balance and conduciveness to ensuring shared life in society. Therefore, all forms of recognition of customary law must be carried out through acceptance and granting legal status related to the existence of its implementation in areas where the application of customary law is very strong. This research is a qualitative type of research with a normative conceptual and juridical approach. The data source was obtained by examining positive legal norms in the form of applicable laws and customary law norms. The conclusions that can be drawn from this research are: In customary justice it is not considered as non-formal justice outside of the judiciary under the State judiciary institution. The Supreme Court is on par with other customary justice bodies. Customary justice is something that actually occurs in the midst of society, therefore the basis contains the principles of restorative justice which focuses on resolving criminal cases outside of court so that the value of justice can be accepted by each group and individual in the customary law that occurs in Indonesian society.

Identification of Customary Delict of South Papua and Its Customary Sanctions as a Form of Preservation of Customary Law

Until now, there has been no specific reference to customary offenses and customary courts in Papua, especially the South Papua Customary Court, except for the writings of some anthropologists who touch on this issue in discussing the leadership system or community structure or customary government system in Papua. The purpose of this study is to determine the existence or existence of customary law in the Anim Ha customary territory and the need for mapping customary law in force in South Papua by identifying customary violations and customary sanctions. This research uses a descriptive method of analysis with a normative juridical approach supported by empirical data, namely direct data from customary law communities and secondary data, namely legal material such as laws and regulations, legal doctrines, and court decisions/jurisprudence, and supported by primary data, namely by conducting interviews with related parties. There are three types of customary sanctions in South Papua, namely legal action in the form of imposition of fines (objects or goods), legal action in the form of imposing physical and spiritual suffering on violators (physical and psychological punishment), in the form of legal action to restore magical balance (punishment in the form of carrying out traditional ceremonies / rituals). Customary law communities in South Papua in fact although state law applies the principle of legal centralism, customary law is more dominant in regulating community life because it is considered more beneficial to the parties in resolving cases or disputes than positive law.

The effectiveness of Qanun Aceh No. 9/2004 and Qanun Aceh No 6. 2014 in solving khalwat cases in Sawang District

This study aims to find out and explain the settlement of khalwat cases carried out in Sawang sub-district, the causes of which there are still many occurrences of khalwat and the effectiveness of Qanun Number 9 of 2008 concerning the Development of Customary and Customary Life and Aceh Qanun Number 6 of 2014 concerning Jinayat Law in the settlement of khalwat cases in Sawang District. This study uses empirical research methods and empirical juridical approaches. The data were obtained through field research and library research. Data analysis was carried out qualitatively. The results of the study show that the process of resolving khalwat cases begins with the arrest, summons to the family, decision making and implementation of the decision. Settlements for khalwat cases were resolved jointly according to custom, and the punish ments given were relatively light such as giving advice, reprimands, apologies, sayam, dhiyat, fines, compensation, ostracismby the community, expulsion from the gampong community or revocation of titles and soon. There are still many cases of khalwat, namely the lack of attention and control from the family, the lack of family knowledge about the dangers of khalwat, unstoppabledesires, the lack of public knowledge of the law in Sawang sub-district, the existence of tourist objects that allow khalwat to emerge, many families of khalwat perpetrators who blaming customary apparatus forgiving punishments, and the lack of legal socialization in gampong. The implementation of Qanun Number 6 of 2014 concerning Jinayat Law, namely concerning the authority of the customary court in handling khalwat cases which refers to Qanun Number 9 of 2008 concerning the Development of Customary and Customary Life has not been effective, as evidenced by the non-fulfillment of elements measuring the effectiveness of law enforcement.

Jumat Khutbah As Community Education Strategy For Family Stability Among Muslim Adults In Ibadan Metropolis, Nigeria

Today, family instability (separation or a divorce) is predominant among Muslims in Ibadan metropolis. This is evidenced by the rate of separation and divorce cases, involving Muslim families in social welfare offices and customary courts in the city. The consequences of such family instability are among the indicators that placed Nigeria among 3rd World countries. Jumat Khutbah is usually used as community education tool to send messages of peace in the Muslim communities. It against this background that this research foresees the need to investigate how Jumat Khutbah as community education strategy responds to the contemporary problem of family instability among the Muslims in Ibadan metropolis. Two hypotheses and one research question guided the study. Qualitative and quantitative instruments were used to collect information from forty-five Imams, chairmen and secretaries of mosques and three hundred worshipers that were systematically selected while listening to khutbah in the fifteen purposively selected mosques in Ibadan metropolis. Data collected on the hypotheses were analysed with correlation while the research question was answered with content analysis of the information collected through the KII. The results revealed that a significant relationship exists between khutbah presentation and family stability and that a significant relationship exists between listening to and acceptance of khutbah messages and reduction of family instability. The study therefore recommends that Leadership of muslim communities should continuously motivate jumat Imams to ensure that issue of family stability and management of family instability enjoy more time allocation in jumat khutbah more regularly and that rather than going to conventional or sharia court on resolution of family disputes, active process of intervention, reconciliation and rehabilitation should be put in place as directed by Quran 4:35 to manage family issues among members of the muslim communities.

Post-Colonial Traditional Courts in Botswana, the Kingdom of Eswatini and South Africa

The evolution of customary courts in Botswana has brought changes from the traditional system of customary courts known from pre-colonial times. The change brought about successes but still has challenges that make the system far from perfect. Despite the state of imperfection, customary courts in Botswana have evolved in a manner that other countries, such as South Africa, may draw some lessons from, identifying what is constitutionally consistent in order to reform its own. On the other hand, traditional courts in the Kingdom of eSwatini did not evolve and are still regulated by tradition and custom. Despite that they did not evolve and are imperfect, they have aspects from which South Africa can draw lessons. South Africa has no choice but to reform its traditional courts to be in line with the Constitution. South Africa will have to look beyond itself in order to find some solutions to the challenges it faces to properly enact legislation that will not just regulate traditional courts but provide an effective and efficient system of traditional courts that will contribute meaningfully to the administration of justice.

Penyelesaian Sengketa Mawah di Lembaga Adat Aceh dalam Hukum Islam

Mawah transactions in Aceh is agree orally without written evidence, potentially leading to prolonged disputes. The mawah agreement does not mention a time limit for the duration of the agreement with a certain period of time, causing the heirs of the mawah property manager to sue. If there is a dispute in Acehnese society (including mawah disputes) it will be resolved through peaceful means and/or customary courts before being handed over to the police. This research approach uses an empirical juridical approach that aims to examine aspects that must be considered in resolving mawah disputes and procedures for resolving mawah disputes in Aceh Customary Institutions based on Islamic law. The results showed that aspects of the agreement, legal aspects and judges need to be observed so that the settlement does not violate Islamic law. The dispute resolution procedure in the Acehnese customary court is in accordance with the settlement in Islam which is in the nature of the settlement in accordance with peace (aṣṣulh) and the form of implementation is in accordance with the judiciary (al-qaḍā) with an appeal at the Mukim level if Keuchik unable to complete. Furthermore, if the customary court has not been able to be resolved it will be resolved through the Religious court, for Aceh the Religious court is called the Shar'iyah Court.

The Urgency of Reconstructing Indonesia's Justice System Towards Recognition of Customary Justice Institutions

The 1945 Constitution acknowledges and protects the existence of indigenous communities. However, the existence of customary court has been abolished through Emergency Law No. 1/1951, and its legal authority is still not recognized to this day. This creates ambiguity in the administration of the justice system. Therefore, an assessment of the urgency of reconstructing Indonesia's justice system to achieve recognition of customary justice institutions is needed. In addressing this, there is a need to answer the issues concerning customary court and how the state can reconstruct the justice system. The author employs a normative legal research method with a qualitative and case study approach through literature review. Through this method, it is found that non-binding legal force of customary court decisions leads to negative consequences for indigenous people and customary law itself. Therefore, a strong legal framework is required through the enactment of the Indigenous Community Bill. Collaboration between law enforcement and indigenous people is also essential in resolving indigenous cases.

Advokasi Oleh Lembaga Adat Terhadap Korban Kekerasan Dalam Rumah Tangga Di Desa Tutuwaru Kecamatan Pulau Leti Kabupaten Maluku Barat Daya

Introduction: Settlement of cases in people's lives in Southwest Maluku Regency is mostly resolved through the Customary Courts or better known as the Customary Institutions. One of the problems that is always resolved in customary institutions is cases of domestic violence. The legal basis is the Criminal Code, Article 356 Apart from being regulated in the Criminal Code it is also regulated in Law no. 23 of 2014 concerning the Elimination of Domestic Violence.Purposes of the Research: The aim of the research is to find out efforts to prevent criminal acts of domestic violence, overcome criminal acts of domestic violence, how do traditional institutions play a role in victims of domestic violence in the village of Tutuwaru.Methods of the Research: This type of research is normative empirical research, namely research with field data as the main data source, such as interviews and observations.Results of the Research: Research results show severe psychological suffering to someone. But by reconsidering what the risks are if her husband is in jail. So the victim chose to resolve cases of domestic violence through traditional channels. Completion according to custom or kinship which is usually carried out by the Tutuwaru village customary institution.

Communal Conflict and Conflict Management in Rivers State, Nigeria: A Study of Ogbakiri Crisis in Emohua Local Government, 1999-2009

The study examined Ogbakiri communal crisis in Rivers State and the methodologies adopted in pacifying the conflict that led to communal carnage in Emohua Local Government Area. The Ogbakiri crisis was occasioned by an unsettled inter-village crisis between mainly two villages-Rumuoro-Ogbakiri and Odohua-Ogbakiri. However, the conflict escalated and spread to six villages that make up Ogbakiri Community. The study aimed at investigating the process and methods adopted in the restoration of sustainable peace among the eight communities in the Ogbakiri community. This study adopted the triangulation method of data-gathering techniques. The primary data were sourced through questionnaires and interviews. The secondary data were sourced through newspaper publications, journals and the Internet. The study unravelled that the cause of the Ogbakiri crisis was a clash of historical differences and an internal conflict between the eight villages. Hence, the study recommended among others that the Rivers State traditional rulers should be made Judge of the Customary Court.

Ondofolo’s leadership in Christian perspective: A study based on Papuan-Indonesian local wisdom

Ondofolo is the highest customary leader in the order of the indigenous people of the Sentani tribe, Papua province, which is still in effect today. Ondofolo leadership is highly respected by the local community. This research was conducted to determine its leadership from a Christian perspective, using a qualitative exploratory approach. Data collection was carried out through participatory observation, interviews with Ondofolo and the head of the village customary court, and literature review. The research location was determined purposively in the Sentani customary area, data were analysed using triangulation. Ondofolo has values that are relevant from a Christian perspective, namely living righteously, full of wisdom and reason, and being able to manage his society, and having special attention that is carried out every day for his people. He is the highest leader among indigenous people, in his leadership always holding on to the Creator (God). Ondofolo’s leadership can be used as an alternative leadership model based on local wisdom that can be used both in society, government and even in the church, because it contains leadership values and relies heavily on God while leading.Intradisciplinary and/or interdisciplinary implications: This study contributes interdisciplinary aspects of contextual theology to Ondofolo’s leadership to give new meaning to that leadership from a Christian perspective. The results are useful in forming the basis of leadership for the people of Sentani, Papua and is used as an alternative model of leadership based on local wisdom in Indonesia.