Alternative Dispute Resolution Through Customary Tribunal in the Context of Legal Pluralism in Aceh

International Journal of Civil Engineering and Technology (IJCIET) Volume 9, Issue 1, January 2018, pp. 472–483, Article ID: IJCIET_09_01_047 Available online at http://http://iaeme.com/Home/issue/IJCIET?Volume=9&Issue=1 ISSN Print: 0976-6308 and ISSN Online: 0976-6316 © IAEME Publication Scopus Indexed ALTERNATIVE DISPUTE RESOLUTION THROUGH CUSTOMARY TRIBUNAL IN THE CONTEXT OF LEGAL PLURALISM IN ACEH Sri Walny Rahayu Faculty of Law, Universitas Syiah Kuala, Banda Aceh ABSTRACT The purpose of this paper is to descriptively analyse the role and position of traditional justice as alternative dispute resolution in the pluralism of indigenous peoples of Aceh and also to analyse the legal pluralism in Aceh. The originality of this paper is to map and perform inventorying the different ethnicities of the legal pluralism in Aceh, as well as the alternative dispute resolution in the diversity of indigenous people in Aceh. Moreover, the results show that The status and role of traditional justice as an alternative dispute resolution mechanism has not been specifically regulated in a specific law. Customary judicial practices in Aceh as a form of formal legal institutionalization are regulated by the Law of 2006 on Acehnese government, Qanun of Aceh, and Governor Regulation No. 60 of 2013. The binding strength and the reception of decision of customary justice in Aceh is respected and obeyed, because the epistemology of traditional authority and legal authority embodied in legal products in Aceh is sourced from laws and regulations under Qanun. Indigenous justice leadership is characterized by charismatic authority as alternative dispute resolution in the context of legal pluralism in Aceh. Key words: alternative dispute resolution, customary court, legal pluralism, Aceh. Cite this Article: Sri Walny Rahayu, Alternative Dispute Resolution Through Customary Tribunal in the Context of Legal Pluralism in Aceh. International Journal of Civil Engineering and Technology, 9(1), 2018, pp. 472-483. http://iaeme.com/Home/issue/IJCIET?Volume=9&Issue=1 1. INTRODUCTION Customary justice is not new in Indonesia. In the Dutch East Indies era, traditional justice is regulated through Reglement Regeling (RR) and Indiesche Staatsregeling (IS) as a Native Justice or customary justice (Inheemsche rechtspraak). The provision was then repealed in the era of independence, although customary justice as one expression of the existence of customary laws along with the rights of indigenous peoples have direct access in indigenous communities in Indonesia. Legal pluralism is a reality in the state law experienced by the people of Indonesia. Development of the Indonesian national law contains Western law, customary law and Islamic law, in which all interplay coloring development of national laws in various fields through the national legislative process. http://iaeme.com/Home/journal/IJCIET 472 [email protected] Alternative Dispute Resolution Through Customary Tribunal in the Context of Legal Pluralism in Aceh It can be shown from the laws of Judicial Authority, namely Act No. 19 of 1964, Act No. 14 of 1970, Act No. 35 of 1999, subsequently amended by Act No. 4 of 2004 to the Act orf Judicial Authority No. 48 of 2009 (Judicial Power Law of 2009).Customary justice was not regulated by Law No. 6 of 2014 concerning Villages (hereinafter the Village Law of 2014). The law, from the Article 96 to Article 111 only regulates Adat Village. In the context of Aceh, the Village Act of 2014 gives recognition to the villages in Aceh as indigenous and tribal peoples who have been there and lived in Indonesia. Recognition was also given to the other indigenous peoples such as huta/nagori in North Sumatra, nagari in Minangkabau, marga in southern Sumatra, tiuh or pekon in Lampung, pakraman or indigenous villages of Bali, lembang in Toraja, banua and wanua in Borneo, and negeri in Maluku. Applicability of the Village Act of 2014 should consider the Law PA in 2006. Dispute resolution out of court is governed by Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Act). Justice indigenous that is sourced from customary law comes to understand the local knowledge as a wealth of Indonesia. Customary law and traditions (adat) is a form of cultural reproduction. Issues such as identity, religion, and political science are also coloring customary justice. Indigenous justice in the global era, in addition to the charge value local knowledge society is also affected modern judicial concept as the need for documentation recording the customary judicial decision, equality before the law and the presumption of innocence. Indigenous justice in developing its institutional reform through epistemology of empirical experience of the reality of nature, social, humanity and the influence of cyber and digital technology advances (Budiharseno, 2017; Nugroho et al., 2017; Wahyuni & Ginting; 2017). Although, the existence of customary justice has some advantages, there are also a number of challenges and obstacles. First, the customary courts are not set in the national judicial system so that its position is weak and vague as the arbitrary law system out of state judicial system. Second, customary society in some areas, especially in urban areas is reluctant to resolve the dispute in customary justice. There is also a doubt regarding the power of force of customary judicial decisions. The underlying weakness is that other customary justice has not been recognized and regulated in the legal system in Indonesia. This paper aims to describe the role and position of indigenous justice as arbitrary law system in the plurality of indigenous peoples and how the epistemological perspective of indigenous judicial decision is accepted, respected and binding on the parties to the legal pluralism in Aceh. To complete the analysis of the literature, this article involves sociological aspects as empirical science to describe indigenous justice as alternative dispute resolution in legal pluralism in Aceh. 2. INDIGENOUS JUSTICE AND ALTERNATIVE DISPUTE RESOLUTION 2.1. Indigenous Justice as an Alternative Dispute Resolution The findings of World Bank’s study, showed that the largest dispute resolution perpetrators of poor communities are the village government (42%), traditional leaders (35%) and the police (27%) (Arizona, 2013). It shows that the poor prefer to settle their case in the customary court rather than pursuing the state law. Yet, the alternative settlement in everyday life has been run for a long time through the customary way or community justice. Recognition of the existence of customary and community justice has not been widely explored for a settlement to the legal cases that occur in the community (Arizona, 2013: 2) http://iaeme.com/Home/journal/IJCIET 473 [email protected] Sri Walny Rahayu Data show the occurrence of amount of civil cases of trials were from local court to the Supreme Court. The amount of judges is not comparable with the number of cases that go to the Supreme Court. In 2008, more than 10,000 thousand cases went to the Supreme Court. The Foundation of Indonesian Law Institute (YLBHI) state that the amount of civil cases occurred up to 2013. Each year, about 13 thousand cases that go to M A, only handled by the 54 Supreme Court judges. The number of cases that were not proportional to the number of judges, lead 8 thousand cases were not given the verdict at the end of the year (Mahkamah Agung, 2013). These data shows that formal justice that concretely has the task of enforcing the law and justice when receive, examine, and resolve any disputes that are filed is not optimal in resolving disputes, and has not been effective and efficient (Suparman, 2004). Low public trust in judicial institutions is an important factor for the establishment of the rule of law in a state (Rifai, 2003). This shows the alternative dispute resolution becomes customary justice as a critical need to be regulated in the Indonesian legal system as an alternative mechanism the search for justice for people living outside the state judicial system. 2.2. Dispute Settlement Process Conflict is different from the meaning of the dispute in some considerations. First, the term of conflict implies wider than the dispute because the conflict may include latent and manifested disputes. Disputes are latent because others who are not involved are not aware of any disputes. Disputes are only felt by the conflicting parties. One action or the parties may occur in legal framework, for example, one party has filed a lawsuit, or rallied peacefully to oppose the position of the other. However, the actions of the parties may also occur outside the legal framework, such as fighting, destruction, killing or inter-state wars in an international context (Rachmadi, 2010). Second, conflict refers to disputes, whereby the parties have not been identified or can be clearly identified. A person may experience conflict with people in his or her environment or social and economic conditions that are incompatible with personal principles, so he or she has a conflict with the social environment. Conversely, the meaning of the dispute is if the parties have been clearly identified, in which who is against whom is clearly identified. Third, the term conflict is more often found in the literature of the social sciences and political science literature than in legal literature. In the literature of anthropology, sociology, and political science, there is a term conflict resolution. Rather, the term disputes are more often found and used in the literature of jurisprudence, such as civil disputes, trade disputes, family disputes, disputes between producers and consumers, and disputes over state administration, thus the term settlement of disputes resolution is more commonly used in the fields of law. The above description shows that the dispute arises because of the party being harmed by the other party, initiated by the feeling of subjective dissatisfaction. The situation can be experienced by both individuals and groups.

Load more