Customary Law Research Articles

Jurisdiction of the Native Courts in Sabah

The Native Courts in Sabah are established under the Native Courts Enactment 1992. The courts serve as a crucial institution for administering justice within the native communities of the state. The jurisdiction of Native Courts in Sabah is designed to uphold and administer native customary law. These courts have the authority to adjudicate matters among others, breach of customary law, land disputes, inheritance, marital issues and adoption. This paper explores the scope of jurisdiction exercised by Native Courts. It highlights the importance of these courts in preserving natives' rights and also discusses the legal issues pertaining to the jurisdiction of the courts, and proposes suggestions to address the legal issues. Ultimately, this study illustrates the significance of Native Courts in fostering social cohesion and safeguarding the balance between tradition and modernity, ensuring that justice is served in a manner that resonates with the values of the native populations in Sabah.

Implementation of the Fishing Prohibition Policy on Certain Days as an Effort Towards Sustainable Development Goals: Life Below Water

This research aims to explore and understand more deeply the implementation of the no-fishing policy as an effort to achieve sustainable development goals for life below water. The research method uses qualitative with a descriptive approach with the aim of building meaning based on the views of participants. Data collection is carried out through three stages: observation by directly observing fishing activities and comparing them to the activities of the day of the fishing ban, in-depth interview stages by meeting informants and the literature study stage is carried out by collecting research results that are closely related to the research. The determination of informants was carried out purposively with the criteria of the Sabang City Community, who work as Fishermen, fishermen who know about the no fishing policy, ship-owning financiers who are closely related to fishing operations, and traditional representatives of the laot customary commander. The research findings of the communication stage, which originally prohibited fishing as part of the culture, was changed into a rule with a legal umbrella in Qanun No. 7 of 2010 concerning fisheries. The resources stage was carried out by forming an institution in charge of supervising and enforcing customary law rules, namely Panglima laot, which was further reinforced by the issuance of Qanun No. 10 of 2008 concerning the role of customary institutions. The disposition stage provides social sanctions in the form of ostracism and gives negative stigma to strict sanctions in the form of confiscation of catches and boats for three to seven days; the bureaucratic structure stage reinforces the authority of customary law and the role of Panglima laot as stated in Qanun No. 10 of 2008 and Qanun No. 7 of 2010.

Penyuluhan Hukum pada Warga Muhammadiyah dalam Aspek Tanah Wakaf di Kabupaten Sorong Perspektif Kepastian Hukum

The Muhammadiyah organization, as one of the largest Islamic organizations in Indonesia, has many waqf land assets throughout the country, including in Sorong district, West Papua Province. Waqf land assets owned by Muhammadiyah in Sorong Regency have great potential to provide benefits to the local community, but despite the enormous potential value, the management of waqf land is often faced with a number of problems that can hinder the achievement of waqf goals. Problems with partners in service that occur in the field include a lack of understanding and awareness, many Muhammadiyah residents do not have adequate understanding and knowledge about the concept of waqf land. Complicated administration and access to legal aid, administrative processes related to waqf land, including licensing and monitoring are often complicated and time consuming. The method of implementing the service is in the form of counseling, workshops and training located at the Muhammadiyah Regional Leadership Office or Hall in Sorong Regency. The results of the service are (1) With the existence of special autonomy for Tanah Papua or Sorong so that the customary laws that apply in that area make it possible for several things to become challenges and obstacles for the service team, lecturers and students, (2) The members of the Muhammadiyah organization still lack human resources. who have an advocate background or work as a lawyer, (3) Incomplete data on waqf land means that the service process is not yet comprehensive in carrying out outreach aspects to Muhammadiyah members who have waqf land with problems or disputes in the customary legal process of the Papuan people.

CUSTOMARY LEGAL PROTECTION FOR THE CANCELLATION OF NGADET CEREMONY FOR DAYAK KENYAH COUPLE

This study explores the Ngadet ceremony, a traditional wedding practice of the Dayak Kenyah community in East Kalimantan, Indonesia, symbolizing the union of two families through sacred customary rituals. Governed by strict customary laws, Ngadet incorporates symbolic elements such as tajau (jars), baing (traditional beads), lekok (traditional rings), uleng udeng (headgear), gongs, iron chains, seraung (traditional hats), and pat uwai (woven mats), each carrying deep cultural significance. The study adopts a socio-legal approach, focusing on the social and legal dimensions of Ngadet, including its stages, requirements, and the legal protections afforded to parties affected by its cancellation. Primary data were obtained through a direct interview conducted via WhatsApp with Mr. Yakub Ngau, the Customary Head of the Dayak Kenyah community in Makmur Jaya Village as a key informant. He provided accurate and detailed insights into the Ngadet tradition and the sanctions imposed in cases of cancellations. The findings reveal the Ngadet ceremony of the Dayak Kenyah Lepo’ Jalan tribe comprises three stages: pre-Ngadet (Mateb), involving preparations and offerings, the ceremony with symbolic rituals like processions, dances, and sacred items, and post-Ngadet, where the couple prepares for a church wedding to validate the marriage. Customary law imposes strict sanctions, including a Rp5,000,000 fine for cancellations, protecting women and reinforcing commitment through discussions, notifications, and mediation. In conclusion, the Ngadet ceremony, embodies unity, cultural heritage, and ancestral values. Governed by strict customary laws, it reinforces commitment and protects individuals through sanctions, ensuring the preservation of tradition.

The Dynamics of Land Control in Forest Areas by the Customary Law Community of Nagari Simpang, Pasaman Regency

Forests in Indonesia are a vital ecosystem, covering 64% of the country�s total land area, according to data from the Ministry of Environment and Forestry (LHK) released in 2020. Forests serve not only as a source of livelihood but also as a place for meeting the needs of communities, including customary law community (MHA) that have long controlled and utilized forest land prior to the establishment of the nation. One example of a land control conflict in forest areas by MHA occurs in Nagari Simpang Utara. The MHA, led by Datuk Putiah, claims the forest area as ulayat land under Minangkabau customary law. The government, through the Ministry of LHK, has designated this area as state forest land according to Law No. 41 of 1999 on Forestry, reinforced by Minister of Forestry Decree No. 35/Menhut-11/2013. This study aims to identify the dynamics of land control by MHA and find conflict resolution solutions in accordance with applicable regulations. The research method used is qualitative with a descriptive approach. The findings indicate that the recognition and existence of MHA often conflict with government policies, causing friction between indigenous communities and state authorities. In this regard, conflict resolution efforts must consider both sides to achieve a fair and sustainable solution.

Safeguarding Women’s Land Rights: The Role Transformational Leadership as a Game Changer: A Case of South Sudan

Carrying out the study in Juba, South Sudan, with a specific focus on safeguarding women's land rights and exploring the role of transformational leadership is not only timely but also essential for addressing gender disparities in land ownership and contributing to broader efforts towards gender equality and sustainable development in the region. The incorporation of UNSCR 1325 in South Sudan has significantly altered the narrative surrounding women's roles, shifting them from passive recipients to active participants in peace and security endeavours. This resolution underlines the intrinsic right of women to engage in such processes, influencing the development of crucial policies and Legal Frameworks geared towards gender parity and women's empowerment, exemplified by instruments like the Transitional Constitution and National Action Plan. Moreover, UNSCR 1325 emphasizes the imperative of addressing the specific relief needs of women and girls during and after conflicts, positioning women as indispensable agents in relief and recovery processes. The study conducted in Juba gathered respondents from diverse backgrounds, including members of Community-Based Organizations, Faith Groups, women associations, Civil Society Organizations, village committees, community leaders, policymakers, subject matter experts, and political parties. Employing a qualitative research approach, the study utilized Focus Group Discussions (FGDs) and Key Informant Interviews to collect data and insights. Thirty research participants partook in three separate FGDs, each comprising ten members, while twenty-three Key Informant interviews were conducted with stakeholders. The qualitative data underwent meticulous thematic analysis, revealing the significant challenges faced by women in South Sudan when asserting their land rights, exacerbated by conflicting statutory and customary laws. The transformative impact of UNSCR 1325 was a central revelation from the study, reshaping women's roles in peace and security efforts and emphasizing their active participation. This paradigm shift has been instrumental in shaping policies and legal frameworks in South Sudan, such as the Transitional Constitution and National Action Plan, which prioritize gender equality and women's empowerment. Conducting further studies focusing on women's land rights and transformational leadership in South Sudan is crucial for advancing gender equality and sustainable development, with recommendations including aligning laws, providing training, engaging champions, establishing information-sharing platforms, and developing comprehensive training programs tailored to promoting women's rights in land ownership. These recommendations aim to guide future interventions in fortifying women's land rights, fostering gender equality, and empowering women as pivotal actors in sustainable development efforts in South Sudan

VCLT and the Peaceful Coexistence of Tax and Investment Treaties: A Case Study of Limited MFN Clauses and the FET Standard

The general purpose of this article is to demonstrate that customary international law (CIL) has a significant role to play in connecting international tax law and international investment law. Bridging a gap between those sources of international law is not only an important endeavour in the theory of law but also in practice. This article purports to achieve the abovementioned general purpose by focusing on the application of the rule and principles of interpretation under the Vienna Convention on the Law of Treaties (VCLT), which represent a codification of CIL, to limited most favoured nation (MFN) clauses in tax treaties. The hypothesis of the authors is that a serious failure in a proper application of the VCLT to interpret the MFN clauses in tax treaties may lead to a violation of international investment agreements (IIAs), in particular the fair and equitable treatment (FET) standard. The analysis and conclusions are relevant to all tax treaties and IIAs containing the MFN clause and FET standard, respectively. They are also of relevance for the interpretation of all provisions of tax treaties, not only the limited MFN clauses, in accordance with the VCLT. Examining tax treaties through the lens of the FET standard allows the FET standard to be seen as a gateway for the systemic integration of tax treaties in accordance with the principle enshrined in article 31(3) (c) of the VCLT, because some of core elements of that standard are deeply rooted in sources of international law (general principles of law and custom).

PERLINDUNGAN MASYARAKAT HUKUM ADAT DI KABUPATEN LUWU TIMUR

This research aims to find out and analyze the role of the East Luwu district government towards customary law communities. and To find out what the obstacles are in implementing the protection of customary law communities in East Luwu district. This type of research was carried out using the Normative-Empirical method. The results of the research show that East Luwu Regency, in recognizing and protecting its customary law communities, is by enacting Regional Regulation Number 1 of 2022 concerning Recognition and Protection of Customary Law Communities, where the regulation aims to provide legal certainty regarding the position and existence of customary law communities. Obstacles in the recognition and protection of customary law communities are related to legal factors where there are no more specific regulations governing the protection and recognition of customary law communities.

Peran Hukum Adat dalam Penyelesaian Sengketa Agraria di Indonesia: Kajian Empiris dengan Metode Komparatif

Agrarian disputes are a crucial issue in Indonesia, particularly in areas that serve as the centers of indigenous communities, where conflicts often arise between customary law and formal law. This study aims to analyze and compare customary and formal law's effectiveness in resolving agrarian disputes, focusing on indigenous regions with strong customary norms. The methodology employed includes semi-structured in-depth interviews and an analysis of customary legal documents, aimed at exploring respondents' perspectives and collecting data from relevant documents. The findings reveal that customary law often proves more responsive to the needs of local communities and creates fairer resolutions, whereas formal law tends to operate within a more universal framework and often overlooks local cultural values. The conclusion of this study underscores the importance of collaboration between customary law and formal law to enhance the effectiveness of agrarian dispute resolution and provides policy recommendations for the government to strengthen harmony between these two legal systems.

Reconstructing Land Discourse: A Perspective of the Zeme Tribe of Northeast India

As the Zeme society was predominantly a subsistence-based economy, land was an asset for them. In contextualising, this study employs Polanyi’s ‘Embeddedness’ to examine how the notion of land is dictated by the social obligation and moral context in the Zeme society and how Zeme society perceives and evaluates the land values. The article locates the land settlement system, changes in land practices, types of land and land taboos vis-à-vis customary law locating the influence of Western education. Furthermore, the article analysed how English-educated individuals with salaried jobs maintain their interest in village land causing a decline in the customary law of the landownership. This study is based on primary and secondary sources and aims to contribute to the ongoing debate on land.

Larvul Ngabal Law as A Regulation in Marine Resources Management In Kei Islands, Southeast Maluku Regency

Introduction: Hawear Customary Law has long been known in Southeast Maluku and has a rolewhich is important in organizing life, especially for traditional law communities. Hawear contains meaning prohibition to take natural resources on land or in the sea, which is based on several important and basic arguments. The principle that is the basis for the actual existence of Hawear's lais the principle of sustainablemanagement of natural resources. Wise thinking that develops wiselyThis local area is also based on the economic aspects of the country's community and the villages and villages located in the area small islands.Purposes of the Research: To find out and analyze Hawear's existence in protecting and preserving marine genetic resources in Southeast Maluku Regency.Methods of the Research: The approach method used in this research is sociological juridical which is a descriptive qualitative analysis study. This research seeks to describe what occurs in the Kei Indigenous Community in Southeast Maluku Regency, it is related to resource management coastal and marine power. The data collection techniques used in this research are: Interview, questionnaire and literature study.Results of the Research: The existence or existence of law Larvul Ngabal Currently, it is increasingly existing, this can be seen from the increasingly advanced society of Southeast Maluku and have the same feelings in a group, where they stay in one place because they come from from the same genealogy or descent. They have their own customary laws that regulate them regarding rights and obligations regarding material and immaterial goods. They also have social institutions, traditional leadership, and traditional justice recognized by the group. Larvul Nabalas a form of rule which the people of Southeast Maluku use in managing their marine resources is expected to remain the same obeyed so that it becomes a law in the management of resources both at sea and on land so that they are maintained natural sustainability. This is also in line with the protection of indigenous communities which has been recognized in Article 18B paragraph (2) and Article 28I paragraph (3) in the Indonesian Constitution The Constitution of the Republic Indonesia in 1945 (1945 Constitution of the Republic of Indonesia). This means that the state has recognized and respected rights indigenous communities, including the Law Society Larvul Ngabal.

The Evolution of Marriage and Inheritance Law in Brunei Darussalam: A Comparative and Historical Study

This study examines the dynamics and comparisons of Islamic family law in Brunei Darussalam and Indonesia, particularly in terms of codification, regulation, and the adaptation of Shariah principles. Using a qualitative descriptive-analytical method, this research explores the differences between the two countries in marriage registration, divorce rights, guardianship obligations, and the role of mediation in divorce cases. The findings indicate that Brunei applies a centralized Islamic family law system under royal control, while Indonesia adopts a pluralist system that accommodates customary and Shariah laws. The codification in Brunei and the adaptation of Islamic law in Indonesia demonstrate that both countries are able to uphold Shariah principles while adjusting to the needs of modern society. This research emphasizes the importance of balancing traditional values with contemporary legal needs.

Hubungan Pancasila dan Hukum Konstitusi : Implikasi Terhadap Pengakuan dan Perlindungan Hukum Adat di Indonesia

This article discusses the relationship between Pancasila as the state ideology and constitutional law in Indonesia, particularly in the context of the recognition and protection of customary law. Using a normative juridical research method, the study examines the relevance of Pancasila in shaping the legal foundation and state policies that support the sustainability of customary law. The study also highlights the constitutional implications in providing formal recognition of the existence of customary law and the efforts to protect the rights of indigenous communities in Indonesia.The research findings indicate that Pancasila, as the state ideology, plays a crucial role in guiding constitutional law to protect local wisdom and cultural diversity, including in matters of customary law. Although the recognition of customary law has been accommodated within the constitution, its implementation still faces various challenges, particularly related to conflicts between customary law and national law. Therefore, synergy between Pancasila and constitutional law is needed to strengthen the protection of customary law within the framework of the Indonesian legal system.

State Practice and Opinio Juris at the Intersection of Customary International Law and General Principles of Law

Abstract Starting from a reflection on the legacy of Benedetto Conforti’s scholarship and his construction of general principles of law as a sui generis category of customary international law, this essay discusses the issue of the distinction between general principles and customary rules. It focuses on the recent work of the International Law Commission, and argues that the solutions offered in the Draft Conclusions on General Principles of Law, provisionally adopted in 2023, are far from satisfactory as regards both principles derived from national legal systems and principles formed within the international legal system.

The Interaction and Acculturation of Islamic Law and Rejang Customary Law in Rejang Lebong Regency

The Rejang people are one of the ethnic groups inhabiting Bengkulu Province, possessing a unique language and script. Over time, it is suspected that interaction and acculturation have occurred between Islamic teachings and the customs of the Rejang people, with Islamic values exerting a significant influence on their way of life. The aim of this research is to identify the various types of customary law practiced by the Rejang people and to explore the interaction and acculturation between Islamic law and Rejang customary law in Rejang Lebong District. To achieve this goal, the study employed a normative empirical method with a qualitative approach, which included legal document analysis, as well as direct observation and interviews. The findings revealed two main conclusions: First, the types of Rejang customary law in Rejang Lebong District encompassed various rules within the categories of customary law such as cepalo mato, cepalo mulut, cepalo tangan, cepalo kaki, and cepalo telingo. These rules reflected strong values and norms that regulated individual behavior and social interactions within the community. In cases of more serious violations, such as adultery and immorality involving the abduction of another man’s wife, Rejang customary law enforced stricter measures such as flogging and cuci kampung (community cleansing rituals). Second, there was a mutual interaction between the universal values of Islam and the unique local customs, resulting in a distinctive form of Islamic culture. The process of acculturation between Islamic law and Rejang customary law created a unique form of Rejang customary law that did not conflict with the principles of Islamic law.

ARTIFICIAL INTELLIGENCE TO OPTIMIZE THE ROLE OF NOTARIES IN RESOLVING LAND INHERITANCE DISTRIBUTION BASED ON CUSTOMARY LAW

The distribution of land inheritance often poses challenges, particularly within the context of customary law that varies by region. The role of notaries, recognized legally to draft authentic deeds in accordance with Article 16, Paragraph (1), letters a and b of Law No. 2 of 2014 on Amendments to Law No. 30 of 2004 on Notary Positions, is crucial in providing legal certainty and preventing disputes among heirs. In this era of technological advancement, artificial intelligence (AI) can assist notaries in expediting and simplifying the resolution of land inheritance issues more efficiently while adhering to applicable customary law provisions. The purpose of this research is to analyse the role of notaries in the resolution of land inheritance distribution under customary law and to explore the potential utilization of artificial intelligence in assisting this process. The research method used is normative juridical, using a statutory approach and an analytical approach. The research shows that artificial intelligence (AI) can assist notaries in document verification, heir identification, and the application of complex customary law. AI accelerates the process and reduces the potential for disputes, but it requires regulatory adjustments and increased technological literacy among notaries and the public. Artificial intelligence (AI) has significant potential to optimize the role of notaries in resolving land inheritance under customary law by accelerating processes, improving accuracy, and ensuring fairness. However, the successful implementation of AI requires clear regulations and collaboration between the government, legal institutions, and customary communities.

Pancasila sebagai Sumber Hukum dalam Sistem Hukum Adat : Analisis Kesesuaian dan Tantangan Kontemporer

The role of Pancasila as a source of law within the adat (customary law) system in Indonesia involves analyzing its alignment and contemporary challenges. Pancasila, as the state ideology, serves as a fundamental guide for the formulation and application of laws throughout Indonesia. However, integrating Pancasila's values into the diverse adat legal systems presents significant challenges regarding both value alignment and practical application. This study uses qualitative analysis with a case study approach to evaluate how Pancasila’s principles are implemented in adat law and assess how well these values align with existing adat norms. Findings indicate that despite efforts to reconcile Pancasila with adat law, there are several obstacles, including differences in value interpretation, resistance from indigenous communities, and difficulties in harmonizing national and adat laws. The article concludes that a more dialogic and inclusive approach is needed to align Pancasila with adat law and recommends policy reforms and enhanced understanding of Pancasila's values at the local level to ensure fair and sustainable legal enforcement.

Stakeholder Perceptions of the Impact of Sinking Artificial Reefs in Bali Island Waters (Case Study: Indonesian Coral Reef Garden (ICRG) Nusa Dua, Bali)

The research conducted on coral reef conservation efforts in Bali illuminates the significant challenges facing this renowned marine tourism destination. Despite its importance, the island struggles with preserving its coral reefs, prompting the implementation of the 2020 Integrated Coral Reef Rehabilitation and Management Program (ICRG) supported by National Economic Recovery (PEN) funds, which has primarily focused on deploying artificial reefs in Nusa Dua waters. However, with only 74.3 Ha of a potential 204 Ha restoration area addressed, there is a clear need for intensified action. Through closed questionnaires distributed to key stakeholders, including government bodies, academic institutions, tourists, and coral reef conservation organizations, it's evident that stakeholders universally recognize the importance of artificial reefs and advocate for public involvement and adherence to local customary laws in conservation efforts. Analysis of the data underscores a strong awareness among respondents, with 69% comprehensively understanding the ecological, economic, and social functions of coral reefs. Impressively, 92% express willingness to contribute towards their preservation, either through labor or financial means, with financial contributions ranging from Rp. 25,000 to Rp. 150,000 and 30% indicating a readiness to allocate 5% of their annual income to this cause. These findings highlight stakeholders' deep commitment to coral reef conservation in Bali but also stress the ongoing necessity for sustained engagement and support to ensure the success and long-term sustainability of restoration initiatives in the island's prized marine tourism destinations.

Bhineka Tunggal Ika and Hasbi ash-Shiddieqy's Indonesian Moderate Fiqh

Before Hasbi ash-Shiddieqy, Indonesian fiqh was predominantly characterized by a rigid and blind imitation (taqlid) rigidly adopting interpretations from Islamic schools in regions such as the Hijaz, Egypt, and India. These foreign teachings often lacked relevance to Indonesia's cultural context, causing friction between Islamic jurisprudence and local customary law (hukum adat). In response, Hasbi developed an Indonesian fiqh that integrated local traditions, aligning with the national motto Bhineka Tunggal Ika, which UN Secretary-General Antonio Guterres praised as crucial for a harmonious future in Southeast Asia. This approach fosters unity through the respectful recognition of cultural diversity. This study explores how sustaining Bhineka Tunggal Ika can be achieved through religious moderation based on Indonesian fiqh, particularly focusing on Hasbi ash-Shiddieqy. Employing qualitative research, the study utilized a literature review and thematic content analysis through four steps: data collection (gathering relevant information), data reduction (filtering out irrelevant data), data display (visually organizing key themes), and inference (synthesising findings to address research questions). This study reveal that Hasbi ash-Shiddieqy's Indonesian fiqh approach strengthens religious moderation by integrating universal Islamic principles with local traditions and promoting peaceful conflict resolution, while being consistent with national regulations-Presidential Regulation 58/2023 and Minister of Religion Regulation 3/2024-that promote unity in diversity and foster social cohesion in Indonesia. Therefore, Hasbi ash-Shiddieqy's Indonesian fiqh modernizes Islamic law by integrating maslahah (public welfare) and urf (cultural practices), moving beyond rigid taqlid, and deserves recognition as a vital source for strengthening religious moderation and sustaining Bhineka Tunggal Ika in Indonesia.

Pancasila Sebagai Landasan Pembentukan Hukum Adat dalam Konteks Negara Hukum Indonesia

Pancasila, as the foundation of the Indonesian state, plays a crucial role in the formation of law, including customary law. This research focuses on how Pancasila’s values serve as a basis for the recognition and development of customary law, which is still acknowledged within the national legal system. The urgency of this study lies in finding a common ground between national law and customary law to strengthen a just rule of law. The research method used is a normative approach, analyzing legislation and legal literature. The results indicate that Pancasila can function as a foundation for harmonizing customary law and national law, thus reinforcing Indonesia’s plural legal identity. The conclusion is that Pancasila, as the state’s foundational philosophy, provides space for the existence of customary law, as long as it aligns with the core values of Pancasila.