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Strengthening the Role of Customary Courts: A Comparison of African and Indonesian Customary Law



By: Dr. Safrin Salam, S.H., M.H.

Lecturer in Master of Law Study Program, Faculty of Law, Universitas Muhammadiyah Buton, Indonesia

The existence of customary courts in Indonesia is basically recognized and protected by the state. This recognition is enshrined in Article 18 B paragraph (2) of the 1945 Constitution, Article 3 of Law Number 5 of 1960 concerning basic agrarian regulations (termed UUPA), then specifically regulated in Emergency Law Number 1 of 1951 concerning Temporary Measures to Organize the Unified Structure of Powers and Procedures of Civil Courts (Constitution Drt No 1 of 1951).

Although Law No. 1 of 1951 regulates the abolition of civil courts, as is the character of indigenous peoples, the abolition does not necessarily abolish the existence of customary courts as part of the law of indigenous peoples. In fact, in several regional regulations, the strengthening of customary courts is recognized and protected and carried out by indigenous peoples. For example, in Tanah Batak, especially in Tapanuli, Regional Regulation No. 10/1990 on the Dalihan Na Tolu Customary Institution was issued. The regulation is a customary institution established by the Regional Government of Level II (District), as a deliberative body that includes customary elders who truly understand, master and live the customs in their environment. (Articles 5 and 8).

In Kalimantan, there are a number of laws and regulations that recognize the existence of adat courts, such as the establishment of the Kedamangan institution, through Regional Regulation of Central Kalimantan Province No. 14 of 1998. This was followed by various district-level regulations, namely South Barito District Regulation No. 17/2000; Kapuas District Regulation No. 5/2001; and East Waringin City District Regulation No. 15/2001. (Wiratraman, 2018)

The existence of local regulations that specifically regulate customary courts in various regions in Indonesia shows the strong existence of customary law attached to indigenous peoples in Indonesia.

Although in legal politics, the existence of a self-governing court as stipulated in the Drt Law No. 1 of 1951 has been abolished, the existence of customary law as Volkgeist (law with the soul of the nation) is still being implemented by the Indonesian people, especially indigenous peoples. With the existing legal reality, customary law as a living law in the community which is currently still alive and adhered to by indigenous peoples in Indonesia, it is necessary to consider strengthening the role of customary justice in resolving legal issues in the community. This is important to reduce the number of crimes and also the overload of prisoners in prisons in Indonesia. This is supported by data in 2022 that the occupants of prisons and detention centers were overcapacity by 109%). According to data from the Directorate General of Corrections (Ditjenpas) of the Ministry of Law and Human Rights, there are 276,172 residents of correctional institutions (lapas) and detention centers (rutan). This data shows that many criminals who are resolved through criminal law have proven ineffective to be implemented due to the increasing number of criminals who have filled prisons in Indonesia. Therefore, alternative patterns of legal settlement are needed to reduce criminal acts (criminality) by using a customary law approach through customary law mechanisms in the form of customary judicial settlements which have now been applied for generations in indigenous communities.
Customary Justice: Learning from African Customary Law

Eritrea is a country located in the east of the African continent. Eritrea is a multi-ethnic country with nine registered ethnic groups. (Simarm ata, 2021) Eritrea is the only country in Sub-Saharan Africa where almost all customary laws are written down, namely 23 out of 27 customary law classes. Eritrean government programs and policies that recognize and give place to community justice are intended to broaden public participation in the judicial process and ease the burden on state courts handling cases.(Simarmata, 2021) Community justice is considered to represent the idea of bringing the state justice system closer to the people and at the same time integrating and formalizing informal justice into lower-level justice. Since 2003, community courts have successfully resolved as many as 60 percent of cases heard.(Simarmata, 2021)

The success of the Eritrean state in implementing Customary Courts by placing customary courts as public courts provides an alternative to resolving cases faced by the state. From the legal practices implemented by the State of Eritrea, Indonesia basically also has similar mechanisms and structures of customary courts. Most of the mechanisms for resolving cases in customary courts are resolved by the customary chairman who is attended by customary officials. The trial procedure is carried out by consensus by summoning the parties and showing evidence and is considered by the customary chairman in the customary deliberation. The mechanism of customary justice called community justice by the State of Eritrea basically has the same goal of realizing harmonization and balance so that the legal objective of the court is precisely to restore the balance of each party, both victims and perpetrators.

Therefore, learning from the legal arrangements of the State of Eritrea, customary courts in Indonesia should be able to obtain full legal recognition and protection by revising Law No. 48 of 2009 on Judicial Power (hereinafter referred to as law No. 48 of 2009). Law No. 48/2009 needs to be revised to provide for the recognition of the existence of customary courts and give authority to indigenous peoples in resolving legal cases (customary law does not recognize the division of cases: civil, criminal, state administration). Strengthening the regulation of customary courts in Law No. 48 of 2009 can theoretically assist the general judiciary in resolving and even reducing criminal offenses that occur in Indonesia. This is important due to the existence of customary courts as a living law in the community. Existence and decisions become a law that is inherent and followed by the community.

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