By

Nurul Firmansyah

(Coordinator of the HuMa Association Program)

A.    Introduction

The Emergency Law 1/1951 and Law 19/1964 concerning the basic provisions of judicial power abolished the swapraja court (Zelfbesturrrechtspraak), customary court (Inheemsche rechtspraak), and village court (Dorpjustitie). Since the enforcement of these two laws, only the Government court (Gubernemen-rechtspraak) and religious court (Godsdientige Rechtspraak) have been inherited in the Indonesian judicial system. The Government court became the district court and the religious court (Godsdientige Rechtspraak) became the religious court. The regulation on the abolition of the swapraja court, customary court, and village court was further strengthened by Law 14/1970 concerning the basics of judicial power. Article 3 paragraph (1) of Law 14/1970 states that all courts in the territory of the Republic of Indonesia are State Courts and are determined by law, Laudjeng (2003).

The elimination of customary courts and village courts clearly eliminates the channels of customary law enforcement expression by customary law communities. This situation forces customary law communities to uphold their legal interests in the State courts with systems and procedures different from customary law.

In social practice, customary law develops independently within customary village units. Customary justice that still survives in the daily practices of customary law communities has transformed into an alternative dispute resolution (ADR) outside the court. Customary justice is considered an informal dispute resolution mechanism that does not have legal force. Consequently, customary law weakens and lags behind the development of national legal progress.

This condition is further exacerbated by the implementation of village standardization by the New Order regime through Law 5/79 concerning Village Governance. With the enforcement of Law 5/1979, the destruction of customary villages and customary courts in the governance and judicial systems was completed.

Removing customary courts from the national legal system turns out to be unable to completely eliminate customary court practices and customary law in social life. Customary courts still exist in the daily lives of customary law communities. In Lombok, for example, the punishment of “makurung”, which means “considered dead” for someone who violates customary law, still applies. In addition, the punishment of “exile according to custom” in nagaris in West Sumatra by socially ostracizing someone for violating customary law is effectively implemented. This creates a gap (gap) between legal reality and the legal reality of customary law communities. As a result, legal conflicts occur, with customary law communities vis-à-vis the State in disputes related to the lives of customary law communities.

Land disputes are the best example to illustrate the above contestation. Legally, land disputes (including customary land) can only be resolved through the District Court in civil cases. Many district court decisions do not meet the sense of justice of customary law communities. The indicators of not meeting justice can be seen from the accumulation of land cases in the Supreme Court. In 2012 alone, there were 1,429 land cases recorded, which accounted for 40.53% of civil cases received by the Supreme Court. In 2013, there were 3,279 remaining civil cases and 3,280 civil cases filed this year, making the total number of civil cases in 2013 to be 6,559 cases, with 32.77% of these cases being land dispute cases or 1,075 cases.

The main cause of the accumulation of cases resulting in the failure to meet the sense of justice of customary law communities is; First, District Courts in handling customary land disputes