by Tandiono Bawor Purbaya email: bawor06@yahoo.com
Presented in a Legal Study Focus Group Discussion on the Opportunity of Customary Courts in Resolving Disputes Between Customary Law Communities and External Parties;
National Law Development Agency (BPHN), October 24, 2013

RECOGNITION TURNAROUND OF CUSTOMARY COURTS
In recent years, the issue of customary courts has emerged. After being dormant for years through Emergency Law No. 1 of 1951, particularly Article 1 (2) letter b; followed by the indirect elimination of village courts through Law 14/1970 concerning the Basic Law of Judiciary, lastly amended by Law 48/2009 concerning Judiciary (Article 2, paragraph 3 of Law 48/2009).

Nevertheless, sporadically the existence of customary courts appears in various laws and regulations such as Law 18/2004 concerning plantations, explained in Article 9 paragraph 2 which states …d. there are customs and legal instruments, especially customary courts that are still adhered to. Even the National Strategy Document (Stranas) on Access to Justice as part of the Medium-Term Development Plan 2010-2014 proposes national strategies that incorporate community-based justice mechanisms, including strengthening and empowering community-based justice systems (Stranas Document on Access to Justice, Bappenas, Jakarta, page XVII).

Likewise, at the regional level in several areas, the existence of customary courts has been endorsed, namely Law 21/2001 concerning Special Autonomy for Papua Province (Article 50 (2) and Article 51 of Law 21/2001) and Special Regional Regulation of Papua No. 20/2008 concerning Customary Courts in Papua; Law 44/1999 concerning the Special Autonomy of Aceh; and Law 11/2006 concerning the Governance of Aceh along with its implementing regulations in the form of Regional Regulations or Qanun. Meanwhile, in other regions, the existence of customary courts is regulated through Regional Regulations or Governor Regulations (Central Kalimantan Provincial Regulation No. 16 of 2008). It is also important to note how various donor institutions encourage the realization of customary courts in Indonesia in regions associated with access to justice issues.

Currently, the existence of customary courts is perceived to be of significant importance, including (Dinen, 2011):
1. Limited access of the community to the existing formal legal system,
2. Traditional communities in isolated areas fundamentally still have strong legal traditions based on their traditional laws in resolving legal issues. This is a reality where traditional or “custom” still applies in many places. It is also a reality where changes in communities sometimes clash with territorial boundaries, and that this is also a fact where there are areas that are still “sterile” in terms of the application of the formal legal system.
3. The types of problem-solving offered by the formal legal system sometimes receive different views and are considered inadequate and do not meet the sense of justice of communities that still uphold their own legal traditions.
4. The inadequacy of infrastructure and resources owned by the formal legal system leads to a lack of adaptability in meeting the needs of local community justice.

In addition to the above-mentioned significance, in the organization of this Focus Group Discussion, it is assumed that the presence of customary courts will be able to reduce the burden on the state judicial system. The above conditions show the emergence of a recognition turnaround of customary courts in our legal system.

Based on the author’s experience, the existence of customary courts based on their scope can be divided into three categories:
1. The validity of customary courts for internal members of the customary community;
2. The validity of customary courts for equivalent external parties;
3. The validity of customary courts for external parties with significant capital/power/policy.
In this context, the author will limit this writing to the scope of the implementation of customary court validity towards external parties with capital, power, or policy, especially on natural resource issues.

CUSTOMARY COURTS FOR COMPANIES VIOLATING THE RIGHTS OF INDIGENOUS COMMUNITIES
If we search for keywords “customary fines for companies” or “customary courts for companies,” the search will provide information on various cases of customary sanctions imposed through customary courts on companies that violate the rights of indigenous communities in the natural resources sector. Below are 12 cases, three of which the author was involved in handling. They are as follows:

Cases of Customary Sanctions against Companies/Government:

1. Talang Mamak Village Vs. PT Quest Geophysical Asia (Sigmanews.US) – Violating at least 10 customary laws. Among them are trespassing on customary land without permission, erecting stakes on customary land without permission, clearing land without permission, and damaging and destroying fields and crops.