Adat Law in Indonesia

Topics: Law, Common law, Civil law Pages: 7 (2206 words) Published: June 18, 2013
ADAT LAW IN INDONESIA

INTRODUCTION

The Indonesian legal system is complex because it is based on a civil law system, intermixed with customary law, Islamic law and the Roman Dutch law1. Indonesia is a country with a very rich and diverse cultural history. The diversity of and between cultures is enhanced because of the physical nature of the Republic – an archipelago with more than 13,000 islands and 300 of different ethnic and sub-ethnic groups, each with their own laws and customs. Prior to the Dutch colonization in the late 16th century, indigenous kingdoms prevailed and a system of customary law, called Adat law (Hukum Adat or “Adatrecht” in Dutch) was applied2. Later, the Dutch colonization during the next 350 years until 1945 left a legacy of Dutch colonial law. Following the independence in 1945, Indonesia began to form its own modern Indonesia law, with some modifications of the precepts of existing laws. As a result, these three components still co-exist in the current Indonesia laws.

During the 32-year period when President Soeharto was in power, efforts were carried out to limit Adat to domains of marriage customs, kinship and art. However, after the fall of Soeharto in 1998, movements to evacuate Adat from the danger of disappearing in the midst of grew stronger3. Adat law is defined as the unwritten set of local and traditional laws and dispute resolution systems, upon which the community life of a certain ethnic

1 2

Law of Indonesia on Wikipedia, at en.wikipedia.org/wiki/Law_of_Indonesia Peter Burn (2004), The Leiden Legacy : Concepts of Law In Indonesia 3 Franz von Benda-Beckmann & Keebet von Benda-Beckmann (2011), Myths and stereotypes about adat law, Bijdragen tot de Taal-, Land- en Volkenkunde Vol. 167, no. 2-3 (2011), pp. 167-195

group is based4. They are still of legal relevance in some areas of Indonesia and remains strongest where there is a high level of ethnic homogeneity. However, in regions where there has been significant transmigration and mixing of ethnic groups, the influence of Adat often tends to fade due to modernization5. In this essay, we will discuss the significance of Adat law, its advantages and disadvantages as a comparison to Indonesian civil law system.

Whenever the Adat dispute-resolution process is initiated, the relevant Adat official will preside over an open hearing attended by the parties to the dispute. Both sides will be given the opportunity to put forward their cases and call witnesses in their support. In deciding a case, the Adat official will be guided by knowledge handed down from generation to generation that sets out the appropriate sanctions for particular Adat violations6. If goods are difficult to obtain, their monetary value may be paid instead. In some villages, decisions are always recorded in writing, often in the form of a signed statement between the parties. In other villages, decisions are not recorded, but are kept in the living memory of the Adat elders to act as reference points in deciding future cases7.

The village authorities, Adat or religious leaders would usually be the first point of complaint for most reported cases since normally they are well known and easily accessible. The informal justice process is thought to be straightforward, timely, inexpensive and the entire village could monitor the enforcement of the punishment. 4 5

Adat on Wikipedia, at en.wikipedia.org/wiki/Adat UNDP Indonesia (2006), Justice for All, Retrieved from www.undp.or.id/pubs/docs/Justice%20for%20All_.pdf 6 UNDP Indonesia, Access to Justice in Acheh 7 Ibid 5

Moreover, the informal justice system is easier to understand than the formal justice system. This is due to the perceived complex procedures of the formal justice system that form a psychological barrier to most of them. They often viewed police officers as ‘outsiders’ in contrast with village leaders who communities consider ‘one of their own’ 8. A political governor in Pontianak,...

Bibliography: Adat on Britannica, at http://www.britannica.com/EBchecked/topic/5336/adat Adat on Wikipedia, at http://www.en.wikipedia.org/wiki/Adat Aubrey Belford (Oct 12, 2010), Left Out in the Cold by Revival of Old Rules, New York Times Customary Law (Adat Law) in Indonesia, Retrieved from http://lawinourlife.blogspot.com/2011/01/customary-law-adat-law-in-indonesia.html Fachri Bey, Three Most Important Features of Indonesian Legal System that others should understand, IALS Conference, Faculty of Law University of Indonusa Esa Unggul, Jakarta Franz von Benda-Beckmann & Keebet von Benda-Beckmann (2011), Myths and stereotypes about adat law, Bijdragen tot de Taal-, Land- en Volkenkunde Vol. 167, no. 2-3 (2011), pp. 167-195 Hukum Adat on Wikipedia, at http://id.wikipedia.org/wiki/Hukum_adat Hukum Adat, Retrieved from http://www.perumtel.files.wordpress.com/.../3-hk-adatpengan.. Indonesian Legal System, Chapter 2 : Legal System, pg 17-50 Indrayanto, The Customary Inheritance Law in Indonesia, Retrieved from http://www.shvoong.com/law-and-politics/family-law/2036772-customary-inheritancelaw-indonesia/ International Developmental Law Organization (IDLO), The Role of a Mediator in Dispute Resolution under Adat in Aceh John Bamba, Kalimantan: Unity or Diversity?, Kobus Foundation, Retrieved from http://www.borneowildlife.info/index.php?option=com_content&task=view&id=16&Ite mid=36 John R.Bowen (2003), Islam, Law and Equality in Indonesia : An Anthropology of Public Reasoning, Cambridge University Press Law of Indonesia on Wikipedia, at en.wikipedia.org/wiki/Law_of_Indonesia
Leila Chirayath, Caroline Sage & Michael Woolcock (July 2005), Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, World Development Report 2006: Equity and Development Marie Seong-Hak im (April 2, 2012), Legal pluralism and Colonial customary law, RFIEA, Retrieved from http://www.rfiea.fr/publications/legal-pluralism-and-colonialcustomary-law Overview of Indonesian Law, Retrieved from http://www.ladvolaw.com/indonesianoverview.html Peter Burn (2004), The Leiden Legacy : Concepts of Law In Indonesia Peter Burns (1989), The Myth of Adat, Journal of Legal Pluralism 1989. nr 28 Pramudya A. Oktavinanda (Mar 31, 2012), Why I Am Not a Fan of Customary Law, The Jakarta Globe Ratih (Mar 27, 2010), Rendezvous : Agreement in the nature of Customary Law, Retrieved from http://ratihdama.blogspot.com/2010/03/agreement-in-nature-ofcustomary-law.html Sayaka Takano, The Concept of Adat and Adat Revivalism in Post-Suharto Indonesia, pg 77-85, Retrieved from www.kansai-u.ac.jp/ILS/PDF/nomos24-06.pdf Sulistyowati Irianto (2004), Competition and interaction between State Law and Customary Law in the Court Room : A Study of Inheritance Cases in Indonesia The International Council on Human Rights Policy (2009), When Legal Worlds Overlap: Human Rights, State and Non-State Law, International Council on Human Rights Policy. Versoix, Switzerland. The Nature of Adat, Retrieved from http://epress.anu.edu.au/islamic/itc/mobile_devices/ch05s02.html UNDP Indonesia (2006), Justice for All, Retrieved from www.undp.or.id/pubs/docs/Justice%20for%20All_.pdf UNDP Indonesia, Access to Justice in Acheh Zezen Zaenal Mutaqin (2011), Indonesian Customary Law and European Colonialism: A Comparative Analysis on Adat Law, JEAIL 2
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