Hotel Royal Kuningan, Jakarta, October 10th, 2013

Summary

1. There are two starting points used to discuss community justice issues or traditional justice in the national justice system, namely starting points based on: (1) ideological framework and (2) social facts (empirical situation). In the ideological framework, Indonesia has also experienced the impact of using the concepts of law and development, which were widely used in the 1970s. This concept made law an instrument of development with the perspective of advanced countries (donors), which are allergic to local laws. This ideology has started to shift towards an approach that provides greater access to justice seekers (access to justice). This relatively recent concept is seen to have philosophical compatibility with the local community’s way of thinking, prioritizing processes (harmony and peace) over “sameness” of products (to pursue legal certainty), as well as being more efficient (in terms of location, time, and language).

2. Historically, village courts (in Java) and native courts (outside Java) were actually recognized in the Dutch East Indies Government. At that time, these customary courts had clear jurisdiction. However, after Indonesia’s independence, there were concerns about maintaining the existence of customary courts as they were seen to represent the political idea of underdevelopment. This was supported by the state’s (especially the newly independent state) treatment to quickly unify its judicial system, considering that the judiciary symbolized state power and served as a tool for social order.

3. There is uncertainty in mapping the position of customary courts in the national judicial system. It is agreed that the problem lies in the ambiguity of our country’s legal politics, thus placing it in a state of “neither here nor there.” As a terminology, there is recognition of indigenous law or customary law, which is manifested in various terms (living law, values in society, original Indonesian law, and so on). Despite the formal legality principle and the simplification of the judicial system according to Emergency Law No. 1 of 1951, which could be interpreted as a denial of customary courts, there is enough legislative basis that still allows for the recognition of customary court decisions, including jurisprudence. Locally, customary courts like the Gampong Court and Peace Court in Aceh and Papua also demonstrate their existence.

4. If customary courts are to be positioned within the national judicial system, there are at least three proposed positions:

a. Independent customary courts, as the fifth environment after general courts, religious courts, state administrative courts, and military courts; (although issues related to jurisdiction, personnel, etc., remain).

b. Customary courts incorporated into general courts, making them equivalent to state courts; (here, there are still issues such as the composition of career judges and customary judges, whether personnel of customary judges are ad-hoc or permanent, and the variation of legal efforts to the second-level court or directly to the Supreme Court).

c. There is no need for formally established customary courts, but their values are accommodated in court decisions as they are now (emphasizing that judges must master local customary law).

5. Discussion participants provided critical notes on each of these proposed positions, including:

a. Whether it is necessary to integrate this customary judicial system into the national judicial system (whether this step would not formalize the customary judicial system; how important is it for the jurisdiction of customary courts to share with state court jurisdiction)?

b. Doubts about the government’s ability to enrich our judicial system with customary courts because in some cases the government itself still struggles to establish formal courts, especially due to regional expansions (this is also related to budget availability);

c. Whether it is not sufficient to empower existing approaches, so judges are asked to be more progressive in utilizing existing opportunities? Here, the concept of bringing justice closer to the people through a “floating court” model is used (mimicking mobile library models, mobile ID card services, etc.).

d. Whether it would be better to strengthen traditional institutions in villages? (although there are difficulties in resolving criminal cases; while the state recognizes the decisions of village courts).

e. How ready are regions to use this customary judicial system, considering the diversity of the internalization of this customary law into the daily lives of their communities?

f. How to anticipate parties exploiting the existence of customary courts to secure their subjective interests?

The notes provided also serve as recommendations for further exploration of the various options offered in a more focused forum to be better prepared for presentation to legislative authorities.

Jakarta, October 10th, 2013