Syntax Literate: Jurnal Ilmiah Indonesia p–ISSN: 2541-0849
e-ISSN: 2548-1398
Vol. 9, No. 2, Februari 2024
KAILI TRIBE CRIMINAL
DISPUTE RESOLUTION PROCESS FROM THE PERSPECTIVE OF CUSTOMARY LAW IN CENTRAL
SULAWESI
Lubna, Ade Saptomo, Metty
Murni Wati Ibrahim, Rospita Rufina Situngkir, Dhani Kristianto
Universitas Borobudur, Indonesia
Email: [email protected], [email protected], [email protected]
[email protected], [email protected]
Abstract
This research discusses
customary law in Indonesia which is pluralistic because it reflects the
diversity of tribes and ethnic groups. Customary law is still relevant and
applicable in the life and culture of Indonesian society. Customary law as
positive law has a special characteristic, namely that there is little written
statute, despite its value applying in society. This research is descriptive in
nature using normative analysis, literature studies, and field surveys. The
research results show that customary law has a position that is recognized in
statutory regulations, including the 1945 Constitution, the Human Rights Law,
and the Draft Criminal Code. The implementation of traditional law is
elucidated through the Kaili customary justice process in the Central Sulawesi
region, with the stages of decision-making and the types of sanctions that can
be given.
Keywords: Legal Position, Kaili Customary Law, Dispute
Resolution
Introduction
Customary
law in Indonesia is pluralistic because it reflects the existence of many
tribes and ethnic groups. However, traditional command expert C. Van
Vollenhoven divides Indonesia's customary law areas into 19 customary law zones
which are called legal environments (rechtskring)
Customary
law as positive law has special characteristics, namely, conventional
regulation is only a short portion of written law, but its values exist and apply
to the lives of indigenous peoples who utilize this traditional ordinance.
Customary law applies within a limited scope, namely it only applies to the
indigenous peoples of the area. This situation allows each indigenous community
to have different customary laws. Prof. Mr. Dr. Soekanto defines customary law
as follows: "a complex of customs, most of which are not written down, not
codified and are coercive, have sanctions, so they have legal
consequences"
Indonesia
consists of various races and ethnic groups, in terms of language, culture, and
different customs. Every society has different rules and norms for life,
growth, and development. Every society in Indonesia has its customary laws, and
each has different rules. Every traditional rule also contains customary
sanctions that apply to those who commit crimes or violate rules and norms that
conflict with public property.
The
Republic of Indonesia's 1945 Constitution states in article 18B paragraph (2)
that "The State recognizes and respects customary law assembly units and
their conventional liberties as long as they are still alive and by its growth
of society and the principles of the Republic of Indonesia, which are regulated
by law." This means that customary law is acknowledged as a form of law
and is ingrained in Indonesian society's daily life and cultural norms. An
explanation regarding the recognition of customary law by state law is
contained in Article 27 paragraph (1) of the 1945 Constitution which states: “Every
citizen enjoys equal rights under the law and is required to respect the rule
of law, family law, and its traditional rights for as long as they exist, as
well as the advancement of society in accordance with the legally prescribed ideals
of the Republic of Indonesia.”
One
example of the application of customary law and its sanctions is the Givu
decree for the Kaili people who live in the Palu Valley. If we look at it from
the cultural and local wisdom aspect, it is found that customary law and its
sanctions have noble values and are still strictly adhered to
Customary
sanctions are given to those who violate customs, from nobles (Madika) to ordinary
people
Based
on what has been described in the contextual above, the problematic that arises
is what is the position of customary law in the notion of statutory regulations
and what is the implementation of the law and the types of traditional
sanctions if there is a violation of the customary law of the Kaili tribe?
Research
Metthods
The research method is
descriptive, using normative analysis to describe facts in the field so that
these facts have context and are significant to the problem being studied.
Results and Discussion
The Position of Customary Law in National Law
Customary Law in the 1945 Constitution of the Republic of
Indonesia
The constitution before the
amendment did not explicitly recognize and use the term customary law. However,
if stated, we can conclude that the provisions contain noble values and the
spirit of customary law. The prelude to the 1945 Constitution contains the
Pancasila philosophy of life which reflects the individuality of a nation that
lives based on values, thought patterns, and traditional statutes.
Customary Law in Law Number 39 of
1999 concerning Human Rights
The existence of customary law
communities has received explicit recognition as a human right is explained in
Article 6 paragraphs (1) and (2) of Law Number 39 of 1999 concerning Human
Rights which expresses in Section (1) The cultural heritage of indigenous
populations, involving rights to ancestral lands, is in line with the present
moment. "Paragraph (2) "In the context of upholding human rights,
differences and needs in "customary law populations must be considered as
safeguards by the law, society, and the governmental entity."
Customary Law in the Draft Criminal
Code
In general, criminal justice
reform must be enforced with a political approach because it is essentially
part of a political movement or policy (i.e. part of legal/law enforcement
policy, criminal justice policy, crime policy, social policy). All policies
include value considerations. That is why criminal law reform must also be
values-based.
Implementation
of the Law and Types of Customary Sanctions When There is a Violation of Kaili
Customary Law
To determine which cases can be
heard in ordinary courts, please refer to Governor Regulation Number 42 of 2013
concerning Guidelines for Ordinary Trials. The description is as follows:
a)
Cases in customary justice are a
manifestation of the learning process of indigenous people's lives that has
been passed down from generation to generation, where there are standards of
assessment of human behavior, attitudes, and actions in carrying out social
interactions in society. On this basis, customary law not only concerns the
relationship between humans and other humans but also the relationship between
humans and nature and even the spiritual realm.
b)
Customary cases handled by the Kaili
customary court vary in each region. These differences depend on the
developments and values that grow and develop in indigenous communities.
Decision
Making Procedures in Customary Criminal Justice
1)
The first stage in the customary
justice process is for parties who feel their rights have been violated to
report the incident to customary activists in the village. This report is the
basis for traditional institutions to submit the case to the traditional legal
process
2)
Second stage, in this stage the
traditional institution will investigate the case and then ask the parties involved
to state that they have chosen to resolve the problem through customary courts.
If there is an agreement, it will proceed to the next stage.
3)
In the third stage, the traditional
institution will invite all parties to discuss reports from parties/plaintiffs
who feel their rights have been violated. In this meeting, a decision will be
made regarding the timing of the trial procedure. Each litigant, whether the
reporting party or the reported party, will be summoned by a special officer
from the customary institution.
4)
In the fourth stage, the parties are
invited to express their opinions, and if there is a debate or objection,
mediation will be performed.
5)
In the fifth stage, if the parties to
the dispute refuse to make peace, then they must present witnesses and submit
evidence to strengthen the statements of each party.
6)
In the sixth stage, after hearing all
the information and evidence, the traditional stakeholders handling the case
will then hold a deliberation. In this process, the police and village government
can be involved
7)
The seventh stage, the final stage of
the customary justice process is the announcement of the customary court
decision. This determination will decide who is found guilty and the fine that
must be paid.
Special
actions for handling criminal cases:
1)
If the victim being tried is a woman
or child, then there are several special actions, namely: first, shield by
placing the victim in the house of one of the traditional leaders for a certain
time until the case has been settled peacefully or the safety of the victim is
ensured. Second, female or child victims must receive assistance during the
trial process by traditional parties or traditional women leaders. Third, every
trial in cases where the victims are women and children must be held behind
closed doors to defend the future of children and women
2)
Traditional stakeholders must strive
to create a conducive atmosphere during the judicial process.
3)
In the peace process, each party is
given the opportunity during the trial to express acceptance or rejection of
the peace processes and results.
4)
Every siding decision is based on
mature and wise consideration by all traditional stakeholders.
5)
The implementation of customary court
judgments is conducted in the formation of a ritual that has been mutually
confined. At the peace ceremony, an agreement has been prepared which will be
signed by both parties agreeing not to repeat the action. If the case involves
violence against women and children, the decision must be accompanied by a
written agreement stating that the perpetrator must not repeat the violence,
and the perpetrator must serve the sentence in a general court
6)
Traditional stakeholders are obliged
to carry out monitoring after the issue execution process.
Types
of sanctions in customary courts
There are various kinds of
customary court decisions, the results of customary decisions are sanctions
which have different categories, namely:
1)
Light sanctions, an example of a
violation is offending someone's feelings which makes that person embarrassed
or angry. Customary sanctions if bias occurs vary in each region. For example,
the Kaili community in Central Sulawesi has customary sanctions in the form of
one buffalo and another.
2)
Medium Sanctions, examples of
violations are disturbing someone's wife/husband or stealing fish from a
neighbor's pond. For example, the Kaili community has its conventional
sanctions in the form of Rompulu (20 trays, 2 buffaloes). In each region, the
sanctions can be different.
3)
Severe sanctions, an example of a
violation is impregnating someone's girl or wife. So, the ancestral sanctions
can be different in each region, but in Kaili, the customary sanctions are in
the formation of Tolumpulu (30 trays, 3 pieces of Mbesa, and 3 buffalo).
Conclusion
Based on the outcomes and dialog above, clarity regarding the status of Indonesian traditional laws within the legal framework is identified by the Indonesian state. Customary law also concerns the values that have been lived and developed in a society. Even though most customary laws are not written, they have a robust binding force in society. There are special sanctions from the community if they violate habitual regulation. The customary laws that exist in a society are very pronounced in communities that have a strong unique culture. The practical application of traditional legislation is also widely applied to local communities, even as a judge, In the event that a matter arises that is not covered by written law, the judge need to be equipped to locate the legislation in the regulations that exist in the community, therefore Judges must also understand customary law. To assemble the enactment of the law with a sense of justice, the formulation of positive law such as criminal law must take into account the ancestral values that live in society, especially for the Kaili traditional community, whose existence is still implemented and recognized to this day, because of the provisions regarding acts which is regulated in the current Criminal Code which is still a western cultural heritage that is not by the civilization of the Indonesian people.
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Copyright holder: Lubna, Ade Saptomo, Metty Murni Wati Ibrahim,
Rospita Rufina Situngkir, Dhani Kristianto (2024) |
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