Customary Courts Research Articles

Settlement Of Uncertified Land Disputes Through Customary Law (Research Study at Kampung Berhut Kecamatan Terangun Kabupaten Gayo Lues)

Article 19 paragraph (2) letter c of the UUPA states that certificates have many functions for their owners. The main and foremost function of the certificate is as a strong evidence. However, the problem of uncertified land often occurs in areas so that land disputes occur, one of which is at Kampung Berhut Kecamatan Terangun Kabupaten Gayo Lues. The purpose of this study is to find out and explain the process of resolving land disputes that are not certified through customary law at Kampung Berhut Kecamatan Terangun Kabupaten Gayo Lues, the obstacles faced and the legal consequences of resolving uncertified land disputes through customary law at Kampung Berhut Kecamatan Terangun Kabupaten Gayo Lues. This type of research is empirical juridical with a case approach. Sources of data used are primary data in the form of interviews with respondents and informants. Based on the research results it is known that; The process of resolving land disputes that are not certified through customary law at Kampung Berhut Kecamatan Terangun Kabupaten Gayo Lues, is that the Village Customary Court first asks the disputing parties to submit problems that become conflicts by providing existing evidence. The dispute between the two parties was resolved peacefully and the decision relied more on the nature of kinship and the statements of witnesses as evidence. Constraints faced in resolving uncertified land disputes through customary law are that the disputed land does not have a certificate, it is difficult to obtain accurate data, there is no clear sign as a land area limit, demands without clear evidence of ownership so that when During the deliberation, there was a cross of opinion between the disputing parties. The legal consequences of resolving land disputes that are not certified through customary law are for parties whose land area exceeds the original limit must return the part of land that does not belong to them to the rightful owner, land owners can make sales and purchases to third parties without any obstacles, land that is not clearly the boundaries become clear so that they can register the land to get a certificate and the disputing parties must obey and participate in implementing the decisions of the Village Customary Court from the results of joint deliberation. It is recommended to the Village Customary Court to be able to open the mindset of the disputing parties regarding peace efforts and various legal aspects as well as its scope.

A Renewal Attempt at a Bill in Indonesia’s Criminal Law: A Study of the Development in the Norm of Rejang Customary Law

The inventory of Rejang Customary Law norm, specifically in Bengkulu Tengah regency, in line with the Indonesia’s Law Renewal Policies. All of the way to strengthen the local wisdom, including the case resolution mechanism within National political Law, are all been stated in National Policies, started when it was stated in the Presidential Regulation of the Republic of Indonesia No. 7 Year 2005 concerning the National Medium term development plan (RPJMN) in 2004-2009, which already written to reform the law system and politic in the next five years. Therefore its necessary to conduct research on customary court, especially on customary law in Rejang community whose domiciled in Bengkulu Tengah. Some of the question that needed to be answered in this research is which forms, term, norms and reaction are there that of the Rejang Customary Law that still apply in the communities that occurs in Bengkulu Tengah regency that related to crimes against one’s dignity and life. This research is an empirical law research, which examines the law as a fact and the application of law in the Rejang society in Bengkulu Tengah regency. Regarding to crimes againts the dignity and life of a person, there are several institution of Customary Law norm with respective reaction/sanction, namely Menggomboa, Tekleseng, Tekabeak, Ngabeak, Iram Coa Berdaleak, Cido Celako, Upet, Johong Pemayo, Begaseak, Bangun Kenyayo, Cempalo Tangan, Bangun mayo, Kerineak. While customary reaction to violation of customary norms relating to the dignity and the life of a person are Minai Maaf and or Tentok Kambing, and or Tepunjung, and or kedendo, and or Tepung Tabea (Setawar Sedingin), expulsion, or signing a letter of Peace Agreement.

Kepastian Hukum Terhadap Putusan Peradilan Adat Aceh dalam Penyelesaian Tindak Pidana Pencurian

Abstract: Purpose: The purpose of writing this journal is to find out the authority of the customary court in resolving criminal acts of theft, to find out the factors that cause the keuchik's decision to have no legal certainty, and to find out the obstacles and efforts to resolve crimes that were resolved by the keuchik through customary justice. Methodology: The method used is empirical juridical research, namely research through a series of field interviews with respondents and informants. Results: The results of the study show that, the authority of customary justice in resolving criminal acts of theft is in accordance with what is stipulated in Qanun Number 9 of 2008 against light-scale theft crimes involving the residents of the gampong concerned, but sometimes also against heavier scale theft crimes. Limitations: Obstacles to the settlement of criminal acts resolved by the keuchik through customary justice, namely the difficulty of uniting good opinions between conflicting parties, obstacles to the bureaucratization of customary courts that depend on the government, lack of socialization of customary justice by the government to the community, and lack of coordination with other law enforcement agencies in conventional justice system. Contribution: The efforts made to overcome these obstacles are increasing the socialization of customary justice, strengthening the capacity of traditional justice personnel and institutions, building cooperation between institutions and the commitment and seriousness of the Regional Government in supporting the implementation of customary justice. Keywords: 1. Legal Certainty 2. Customary Justice 3. Crime

Traditional Judges and Litigants in the Facing Positive Law Justice in Cameroon: Recrimination, Backlash and Expectations

This article is in line with the problem of the conflicts between tradition and modernity on the legal-judicial level. It is based on the legal functionalist theory, which advocates, among other things, the rejection of the legal-judicial system based on positive law and the dependence of the customary system on institutional power. It answers the question of why and how indigenous litigants challenge the positive law embodied in institutional justice and questions possible reconciliations between this law and custom through paradigmatic models of judicial pluralism. This issue was identified through oral information gathered from the field, legal texts, and written sources from articles, books, reports, and dissertations. The results of the study indicate that customary laws, customary judges, and customary courts are muzzled at all levels by the principles of institutional justice based on positive law. Dissatisfied with this situation, there is a proliferation of dispute resolution offices that make use of local customs while escaping state control. The reconciliation of custom and positive law, according to the litigants and the traditional judges, requires the valorization of customary judges, the unification of customary courts with those of the law, and the confrontation of the two sources of law before any verdict.

Legal Position Open and Closed Traditional Court Decisions Relating to Indigenous Land Disputes in Malamoi Sorong Region in Positive Law (Case Study Between the Clan Malibela Klawalu Against the Clan Malibela Klaifi)

The type of research used in this research is normative legal research. Whereas in civil justice system, there are norms and principles that provide space for practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution, and simplified court regardless of inconsistency and inconsistency of laws and regulations regarding the existence customary justice system in Indonesian judicial system that applies positively. The influence of the position of customary courts in the civil justice system is especially apparent in the functional relationship between customary court decisions and the settlement of civil cases in court. Therefore, to accommodate the existence of customary court decisions, in practice judges will optimize the mechanisms regulated in the civil justice system such as through mediation in court.

Dispute Resolution Model for Granting Hareuta Peunulang through the Customary Court in Pidie Regency, Aceh Province

Hareuta peunulang is a grant of immovable property from parents to their daughters before marriage in Pidie Regency, Aceh Province. Disputes are resolved through customary court, but the settlement that should have been settled at the mukim level was brought to the Mahkamah Shar'iyyah. Therefore, this study aimed to identify the causes of the hareuta peunulang practice disputes and find an effective and efficient model for resolving them through customary courts. Empirical juridical methods were used with data collected data through observation and interviews and analyzed using a qualitative descriptive approach. The results showed that disputes are caused by the lack of deliberation in the hareuta peunulang process. The social plurality of laws makes the dispute resolution model through customary courts ineffective and inefficient. Therefore, the role of the village head (keuchick) and head of mukim (imuem mukim) is needed to educate the community regarding customary justice procedures that should to conducted at the village (gampong) and mukim levels.

PERLINDUNGAN HUKUM BAGI PEMEGANG HAK GADAI BERDASARKAN HUKUM ADAT TOLAKI DI KECAMATAN WAWOTOBI KABUPATEN KONAWE

Legal certainty of a land pawn agreement carried out using customary law in the Tolaki community is guaranteed by the customary law concerned because the dispute resolution that occurs is also resolved through a customary court, and the existence of the decision of the customary court that binds the disputing parties in addition to the application of strict sanctions in dispute resolution. In addition, the existence and existence of customary law is also supported by the provisions of the applicable legislation, which can be seen in Law Number 4 of 2004 concerning The provisions of the Basic Provisions of Judicial Power, in Article 28 paragraph (1) which states "Judges are obliged to explore, follow, and understand legal values ​​and a sense of justice that live in society". The decision issued by the court in case Number: 13/Pdt.G/2013/PN.Unh did not take into account the decision of the customary court on the grounds that the case would be processed in accordance with the applicable positive law and no attempt was made by the plaintiff to withdraw his lawsuit even though a customary trial has been carried out and the customary court has issued its decision.

The Resilience of Indigenous Peoples in North Kalimantan to Corporate Investment

Indigenous peoples take advantage of land/forest to fulfill their needs. However, in North Kalimantan, the forest functions are increasingly shifting because corporations intend to manage forest areas that reach 69% of the province’s total area, among others, for oil palm plantations. The development of oil palm plantations in North Kalimantan is supported by investments, especially from foreign countries, such as Singapore and Malaysia. Investment funds will influence the progress of oil palm plantations. Although some indigenous peoples have received legal regulations to recognize and protect rights, they still face some impacts, including climate change, environmental pollution, land grabbing, and criminalization. In this case, community resilience is one of the essential capabilities that indigenous peoples must possess, including in North Kalimantan. Indigenous peoples also need various capabilities to anticipate, reduce the impact, and overcome the consequences of corporate development in oil palm plantations. Thus, this article aims to analyze the resilience of indigenous peoples in North Kalimantan in facing investment pressures in oil palm plantations through document review in relevant sources and in-depth interviews with several stakeholders related to indigenous peoples in North Kalimantan. In addition, some previous research has not focused on the resilience of indigenous peoples in North Kalimantan in anticipating or dealing with investment developments that are detrimental to them. The results showed that indigenous people in North Kalimantan had performed resilience by mapping customary lands/territories, monitoring, reporting, and land certificates following legal regulations. Some indigenous people had also referred to the customary law through customary courts, imposing customary sanctions on their members and companies that did not comply with customary norms. Moreover, traditional leaders and institutions have shown an essential role in protecting forests and being the pioneers of agroecology-based economic development

Promoting Accountability and Transparency in the Customary Courts in Nigeria: Some New Approaches

The Nigerian justice system currently faces significant administration and efficiency problems. It is well-established that the justice system is slow, not accountable, not so transparent and unfriendly to its users and stakeholders. The use of legal terminologies and technicalities are rife and bogged down the wheel of justice. This study aims to determine how the implementation of the customary Law of Lagos State can facilitate quick and efficient administration of justice at the customary courts. Specifically, it investigates whether the implementation of the new customary law of Lagos state and the application and enforcement of the judicial code of conduct can impact the administration of justice, particularly at the customary court level. To test the hypothesis that these legal instruments can positively impact the legal system the research adopts the doctrinal and comparative legal research methodologies. The results showed that the implementation of the new customary laws of Lagos state and the application of the judicial code of conduct at the customary court have the potential to improve the dispensation of justice at this level. Further, the judges must do substantial justice and avoid technical justice to achieve the desired end. These results suggest that in addition, new approaches to the dispensation of justice is required.

On the Dispensation of Justice by Customary Courts in Nagaland

Customs and usages have been the sole means by which any kind of disputes were adjudicated in the Naga society. It is highly appreciated for it is simple, speedy and does not involve expensive litigation. The British Raj continued this system of settlement of disputes by enacting legislations exempting the application of technical procedural laws enforced in other parts of the country. After the Indian independence, the Constitution of India provided special provisions recognizing the whole realm of Naga customary law. However, with the growth of society, the requirements of the people change and the age old customs may not cater to the current needs in many cases. Similarly, some customs and practices may conflict with the rule of law and other provisions of the Constitution. Thus, in such transitional period, the governmental organs of the state have been casted with a special responsibility. This paper endeavours to study the customary courts and its structure, functioning and authority in settlement of disputes and administration of justice. The paper also endeavours to study the customary courts vis-à-vis the formal laws in contemporary times with help of judicial decisions. Keywords: customary courts, Constitution, Article 371A, Dobhasi, Gaon Bura.

Settlement of Disputes Over Indigenous Land Ownership Based on Traditional Law

The research used in this dissertation process uses a type of legal research, the way it works is researching library or secondary materials that have been collected. The civil justice system contains norms and principles that provide space for the practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution and simplified court regardless of the inconsistency of laws and regulations regarding the existence of customary justice in the power system positive Indonesian judiciary. The state and positive judicial system ideally recognize and give position to customary courts in customary law. It is not directly proportional to the lack of state power over the administration of justice and the facilitation of narrow cultural identities. Second, a positive judicial system provides recognition and position of customary justice in the national justice system, with an effort to make law (both state law and customary law) a representation of universal values, not a representation of the values of narrow interest groups.

The existence of customary court at Lembang Nanggala Sangpiasalu, North Toraja, South Sulawesi, Indonesia

The existence of customary courts in Indonesia is still prevalent. It had been erased and brought back again by national law. The present customary court is used by the Toraja Tribe. This article answers the questions of how is the execution of customary court in Lembang Nanggala Sangpiasalu and whether or not Kombongan is still used. Both questions are answered through research using the socio-legal method. The authors conducted interviews with To Parenge traditional leaders and a few members of the Lembang Nanggala Sangpiasalu society. The results show that the customary court still uses Kombongan and also musyawarah (discussion), but it is no longer obligatory to use the four levels of hierarchy Kombongan has. Parties involved in a dispute settled by Kombongan may choose to proceed with the higher levels of Kombongan or settle it through the district court.

The Role of Notaries in Binding Credit Guarantee Objects to Village Credit Institutions

The existence of a Notary in terms of making a credit agreement deed in this LPD, is of course very helpful for the indigenous people in Bali as the customer of the LPD to guarantee legal certainty for the guarantee given to the LPD until the credit provided can be repaid by the customer. If there is already a governance arrangement based on customary law that has legal certainty, then all forms of credit transactions in the LPD, including those related to the binding of credit guarantees, should follow the applicable mechanism as long as it does not conflict with applicable law in the territory of the Unitary State of the Republic of Indonesia. For this reason, it is important to create a customary court to accommodate changes in LPD governance if they have been changed in accordance with customary law. Basically, lending by the LPD is given to anyone who has the ability to repay on condition that it is through a credit agreement between the LPD and krama desa pakraman. LPD lending follows generally accepted credit procedures with some adjustments that emphasize its existence as belonging to the village of Pakraman.

Ideal Concept of Traditional Justice in Solving Criminal Case

Customary law is an unwritten rule that lives in the customary community of an area and will continue to live as long as the community still fulfils the customary law that was passed on to them from their ancestors before them. Settlement in criminal cases through customary law that produces results is a form of legal certainty. This study aims to determine the ideal concept in resolving criminal cases through customary courts in Merauke Papua. The method used in this study is a combination of normative legal research and empirical legal research with the reason that the author wants to examine the norms related to the problem of resolving customary criminal cases and seek direct information on the implementation of customary justice in Merauke Regency which is presented descriptively. recognition of customary courts must be stated in writing in the law on judicial power so that this institution has a clear legal basis and its decisions can be recognized so that it does not need to be tried again through national courts, criminal threats under five years must be resolved through customary courts and are final decisions
 
 Received: 23 August 2021 / Accepted: 25 October 2021 / Published: 3 January 2022

Access to Justice in Botswana

This article seeks to find out if Botswana has achieved complete access to justice for all her citizens. It makes a case for a more radical and comprehensive approach that focuses on promoting access to justice and systemic change. Over the years there has been substantial growth both in the economy of the country and the development of institutions which deal with the administration of justice. On a historical note, the High Court was first established in Bechuanaland in January 1939. From the establishment of the High Court in 1939 until 1955, appeals from that Court were taken to the Judicial Committee of the Privy Council in London. The establishment of the Court of Appeal meant that appeals were no longer taken to the Privy Council. The country currently has a total of four High Court divisions; one in Lobatse, Francistown, Gaborone and Maun. In 1966, Botswana had only two Magistrate Courts, one in Lobatse and another in Francistown. Currently, there are many Magistrate Courts in Botswana. In addition to these formal courts, there are Customary Courts which have been estimated to be dealing with about 80% of cases in this country.

Implementation of Customary Court Policy in Parigi Moutong Regency

This study focuses on 1 (one) problem formulation: How is the Implementation of Customary Court Policy in Parigi Moutong? The theory used is the theory of Policy Implementation Thomas B Smith, using 4 (four) factors, namely, (1) Idealized policy, (2) Target group, (3) Implementing organization, (4) Environmental factor. This research uses qualitative research methods with observation, interviews, and documentation data collection techniques. Snowball determination of informants. Miles, Huberman, and Saldana interactive data analysis, including data collection, condensation, presentation, and conclusion drawing. The study results show that implementing the Customary Court Policy in Parigi Moutong Regency has been running, but it has not been effective. Even in some villages and sub-districts, it is getting weaker and forgotten. Factors causing the ineffectiveness of policy implementation: inaccurate and consistent communication, both internally and externally, the implementing organization is not supported by an excellent organizational structure and sufficient corporate resources, Social, economic, and political environment is not supportive. The Central Sulawesi Governor’s Regulation No. 42 of 2013, concerning Guidelines for Customary Courts in Central Sulawesi, should be a policy that encourages and directs customary stakeholders but has not been used as a guideline and reference in implementing the traditional justice process.

The Abolition of the Customary Court of Appeal in some States in Nigeria: Issues and Prospects

The Abolition of the Customary Court of Appeal in some States in Nigeria: Issues and Prospects

Reflections on Peacebuilding Constructs in Seke District, Zimbabwe

Since 2004, the formation of informal peace committees in Zimbabwe has signaled a change in the dynamics of local peace initiatives away from external elite top-down donor-driven interventions and toward a greater understanding of the potential of localized indigenous village and community informed solution-focused perspectives and initiatives. Despite the fact that non-governmental organizations (NGOs) aided in the facilitation, promotion, and enhancement of what was already in place, local peacebuilding efforts in Zimbabwe are not new, nor did they begin in 2004. Many Zimbabwean villages have had local peacebuilding initiatives such as customary courts for several decades prior to colonialism, but their notion of peacebuilding remain overlooked and under-appreciated. This study focuses on the peacebuilding constructs that have prompted ordinary people in the Seke district of Mashonaland East province, Zimbabwe, to create ward-level and village peace committees. The results of an action research method involving a 15-member ward peace committee (WPC) and 27 male and female respondents are discussed in this study. One of the main constructs was that peacebuilding is a collaborative mechanism (with no end-point) with the primary goal of preventing violence through conflict transformation rather than eradicating conflict. Peacebuilding was further interpreted as everyone’s occupation, regardless of social or political standing, since conflict knows no bounds. This study contends that elites can collaborate through a hybridized mechanism with local actors and informal institutions to promote community empowerment capacity for local peace and development initiatives in Zimbabwe.

Penerapan Asas Legalitas dalam Penjatuhan Sanksi Pidana Atas Masyarakat Adat

In Indonesian, the main source of criminal law is in the Criminal Code and other Criminal laws and regulation. However, it is possible that customary law is considered as the source of law with certain limitations. This study aims to determine and analyze application of criminal sanctions to indigenous people and relevance of the legality of criminal law to customary law sanctions. The methodology used is juridical normative research method using a statutory and conceptual approach. With this research, the finding or conclusions are obtained that application of sanctions to customary law communities is recognized by several communities, and they believe that the customary court is a legal system that is still used by some indigenous peoples, and stipulation of customary criminal law sanctions is often not in accordance with the principle of legality which based on the principle and norms of criminal law as stipulated in the revisions of Article 1 Paragraph (1) of the Criminal Code. Therefore, in conclusion, the application of legality principle in imposition of criminal sanction to customary society still benchmark the customary law within the society itself.

Tinjauan Yuridis Konsepsi Hak Langgeh dalam Masyarakat Tradisional Hukum Adat Aceh

Recognition of the traditional rights of the community, such as the implementation of traditional and cultural life which differs from one region to another, is the glue of the Unitary State of the Republic of Indonesia. One of them is the customs and culture that exist in society in Aceh, namely Langgeh Rights. Langgeh rights are former rights, namely the right of one person is more important than others, to get the opportunity to buy the neighbor's land at the same price. Langgeh rights can be given to the closest person to the seller, namely, relatives of the seller, other members of customary law, or neighbors whose land is directly sold with the land to be sold. Langgeh rights aim to prevent the land from being purchased by foreigners from outside the customary law community. In practice, the settlement of disputes over the rights of langgeh (syuf'ah) in Aceh almost entirely cannot be resolved through the Syari'ah Court, but will be resolved in the gampong customary court, this is because the Acehnese are a society that upholds the Shari'ah who expect peace. They do not expect mutual hostility, so the outcome of the customary justice process is peace.