Jurnal Bina Praja 11 (1) (2019): 53-62 p-ISSN: 2085-4323 | e-ISSN: 2503-3360 JURNAL BINA PRAJA Journal of Home A airs Governance JURNAL BINA PRAJA VOLUME 11 | ISSUE 1 | MAY 2019 e-ISSN: 2503-3360 | p-ISSN: 2085-4323 Accreditation Number Accredita on Number: 21/E/KPT/2018 21/E/KPT/2018 Valid thru: November 2020 Published by: Research and Development Agency Ministry of Home Affairs http://jurnal.kemendagri.go.id/index.php/jbp/index Republic of Indonesia Nagari Customary Justice System in West Sumatra Welhendri Azwar*, Muliono, Yuli Permatasari, Huriyatul Akmal, Syamsul Ibrar, Melisa State Islamic University of Imam Bonjol Padang Jl. Prof. Mahmud Yunus No. 1 Lubuk Lintah Padang, Sumatera Barat Received: 3 March 2019; Accepted: 9 April 2019; Published online: 31 May 2019 DOI: 10.21787/jbp.11.2019.53-62 Abstract The state recognizes and respects indigenous and tribal people and their traditional rights insofar as they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, Justiceas contained system in in Article an effort 18 toB paragraphprotect the 2 existence of the 1945 of the Constitution. rights of indigenous However, peoplethe fulfillment to build ofthe cultural strength identity of civil and society the inrights West of Sumatra. indigenous This people research have uses not research been maximized. and development This study methods. aims to Data find retrievalthe conceptual is done model by survey, of the observation, Customary interview, and Focus Group Discussion (FGD) methods. This study found that; 1) Minangkabau people have their own local wisdom in resolving customary disputes, even for a broader range of life issues, long before Indonesia was found, 2) Nagari Customary Justice system is a translation of Limbago Adat which is the life philosophy of Minangkabau people, 3) Nagari Customary Judicial institutional structure is a representation of the existence of the tribe in the Nagari, so that its cultural legitimacy becomes strong. And, 4) the Nagari Customary Justice system is an effort to build the sovereignty of civil society, namely an autonomous, independent, egalitarian, and democratic society. It is hoped that the results of this study will be a guideline in establishing the Nagari Customary Justice institution in West Sumatra. Keywords: Customary Justice, Sovereignty, Civil Society, Nagari. I. Introduction The existence of state authority in processing In Indonesia, there are 19 customary law land does not mean the loss of people’s rights. State power over land is merely public (Harsono, 1999, areas, such as Gampong in Aceh, Desa in Java, Nagari in West Sumatra, as the elements and richness of p. 230) therefore, the state does not own any land. Indonesian national culture (Akmal, 2008, pp. 1–2). This means that law is seen as a resource used Van Vollenhoven noted that indigenous people to legitimize its action. The law has contributed have their own laws that are important enough to be considered and quite potential to be developed, to the emergence of conflict and influenced any namely customary law (Sulaiman, 2017, pp. 98– state develops laws regarding the use of natural land conflict resolution. On the one hand, the 110; Wignjosoebroto, 2002, p. 139). resources. On the other hand, the community also has laws relating to this issue. This is what triggers direction, in article 6 paragraph (1) of Law No. 39 of 1999The states state “thatis obliged in the to framework protect and of upholdingfulfill that law and local community law (Afrizal, 2003, p. 32). conflict, because of the clash between state agrarian human rights, differences and needs in indigenous When the law between the two groups is and tribal people must be considered and protected by the law of society, and the government”, then in theory, society is always in the process of change different, it will trigger a conflict. In view of conflict paragraph (2) states; “That the cultural identity of which is characterized by continuous opposition the customary law community, including the rights between its elements. Whereas, the order in society to communal land is protected, in line with the time”. is due to the pressure of power from the ruling class. Uneven distribution of power and authority is a * Corresponding Author © 2019 Welhendri Azwar, Muliono, Yuli Permatasari, Phone : +62 812 6725 247 Huriyatul Akmal, Syamsul Ibrar, Melisa Email : [email protected] This work is licensed under the Creative 53 Commons Attribution-NonCommercial- ShareAlike 4.0 International License. factor that determines the occurrence of systematic recognized by the state, none of the legal products regulates the way of implementing protection that ulayat rights are often threatened. socialThe conflict dispute (Ritzer over & ulayatGoodman, land, 2005, for pp.example, 153– Some studies show that the existence of the occurs164; Ritzer because & Smart, there 2012, is pp.no 283–286).juridical legitimacy collective rights of the Minangkabau indigenous peoples in West Sumatra still exists, as evidenced that occurred in the Caniago tribe with the National by the ulayat of the people, tribes and Nagari with Landtowards Agency customary (BPN) landin Pariaman,ownership. indicating The conflict the presence of the state actually triggered the birth of Azwar et al., 2018; Fauzan, 2004; Tegnan, 2015). Thevarious study conflicts explained and the dynamics existence (Aermadepa, of customary 2016; law indigenous people in the process of matrilineal inheritanceconflict (Fitlayeni, of Minangkabau 2015). Disputes (Aermadepa, occur between 2016; that emerged to maintain that existence. For example,communities the disputein West over Sumatra communal and various land. However, conflicts that occur between indigenous peoples and the it has not yet found a model for resolving customary governmentPrasetya, Firdaus, are due & toHasanah, the presence 2018), of even development disputes disputes through Customary Justice institutions based on the Minangkabau customary value system, Ismono, 2015). Likewise, customary land disputes as described in this study. Unlike other Southeast thatproject occurred investments in Aceh (Mutolib, society Yonariza,after the Mahdi,tsunami, & Asian countries such as the Philippines (Corpuz, 2012), Malaysia (Doolittle, 2012), Bangladesh (Roy, 2012) and Thailand (Trakansuphakon, 2012) whichSettlement led to conflicts of customary between landindigenous disputes groups can which still use customary law in land or land use be(Amalia, carried Mukhlis, out with & Yusrizal,the involvement 2018). of indigenous decisions. In southern Sudan, as many as 50 tribes peoples’ institutions. Empower and use the power still use the customary justice system (Penal Reform of civil society in building community independence International, 2000, pp. 23–24) and in Guatemala, in reducing government interference (Suroto, 2015, the people put the concept of the dimensions pp. 665–666). For the context of West Sumatra, the of nature, humans, and universes integrated as existence of Law No. 6 of 2014 concerning Villages Chapter XIII on Special Provisions for Adat Village, discourse (UN-Habitat, 2015, p. 10). In Africa, about which is derived in the form of Local Law Number 80%a unified of land concept issues are of incustomary the discourse law of incustomary judicial 7 of 2018 about Nagari, is a legitimacy given to the community to manage the community life the High Commissioner, 2016, p. 41). Whereas in system using local wisdom, including in managing Westernlaw (United liberal Nations democracies for Human (Faundez, Rights 2003), Office the of customary justice system is not dominant because it communal land. However, the problem will not is more used as an integrated component in a state stopand resolvingwith the various existence conflicts of Local and disputesLaw Number over justice mechanism. 7 of 2018. Technical guidance is needed on the This study uses a sociological perspective, operationalization of the roles, functions, and authorities of the Customary Justice Institution, Nagari Customary Justice system in an effort to in accordance with the social structure of each protectwhich aims the existenceto find the of conceptualthe rights ofmodel indigenous of the Nagari. The reason is that Nagari is an autonomous peoples, to build the strength of civil society in customary law area and has sovereignty that West Sumatra. Therefore, this research is expected contains value as social capital and shows its to be a reference in re-actualizing, restructuring, existence as an indigenous community, which has and re-functioning of the Customary Justice system in every Nagari in West Sumatra. This research is Permatasari, 2018). Nagari has its own peculiarities andpeople’s sovereignty, sovereignty with (Azwar, a different Yunus, socio-cultural Muliono, & the government, investors, and customary law system, which is called adat salingka Nagari custom. useful for managing and resolving conflicts between Sociologically for customary law communities, and obligations of customary law communities and the land is a social asset that functions as a lawcommunities. enforcement At the parties, same time, including it clarifies government the rights communal identity (tribe or clan) and as a means bureaucracies and groups of investors or other legal of binding social unity. Meanwhile, the collective entities. This research describes 1) the concept of rights of indigenous peoples over land, according Minangkabau Nagari Customary