BASIS FOR TESTING CUSTOMARY VILLAGE REGULATIONS

BASIS FOR TESTING CUSTOMARY VILLAGE REGULATIONS

Dr. Victor Juzuf Sedubun, SH, LL.M.

 

 

Abstract

The formation of Village Regulations by Traditional Villages is carried out based on the original rights and traditional rights granted by Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. The provisions of Article 110 of Law Number 6 of 2014 which states that Traditional Village Regulations are adjusted to customary law and customary norms applicable in Traditional Villages as long as they do not conflict with the provisions of statutory regulations, can open up opportunities for the Government to unilaterally cancel Traditional Village Regulations. The content of Traditional Village Regulations that are in accordance with customary law, does not rule out the possibility of conflict with higher legislation. Regulations are needed regarding the parameters for testing Traditional Village Regulations in order to avoid the Government's arbitrariness in using its power to cancel Traditional Village Regulations.

Keywords: Testing Parameters, Traditional Village Regulations.

 

A. Introduction

Recognition of the unity of Customary Law Communities (hereinafter abbreviated as MHA) in Indonesia is contained in the 1945 Constitution (UUD 1945) and the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945). Article 18 of the 1945 Constitution does not expressly regulate the unity of Customary Law Communities. Recognition of Customary Law Communities is contained in the 1945 Constitution, only in the Explanation of Article 18 of the 1945 Constitution which states that:

“In Indonesia's territory there are approximately 250 Zelfbesturende landscapes and Volksgemeenschappen, such as clans, villages and countries, such as villages in Java and Bali, countries in Minangkabau, hamlets and clans in Palembang and so on. These areas have an original structure, and therefore can be considered as special areas. "The Republic of Indonesia respects the position of these special regions and all state regulations regarding these regions will remember the rights of origin of these regions."

There are Zelfbesturende landschappen and Volksgemeenschappen Within the territory of Indonesia, which at that time was said to number approximately 250 regions, such as villages in Java and Bali, nagari in Minangkabau, hamlets and clans in Palembang, and so on. These regions had their own unique structure and could therefore be considered special regions.

Cornelis van Vollenhoven dividing customary law communities (customary law) in Indonesia into 19 (nineteen) legal circles (legal regulation), one of which is Kalimantan (Dayak Land). Each of these legal circles can be divided into legal circles (legal system). Between one legal circle and another, there are differences in the nature of customary law, but these differences are not that great, when compared with the differences between one legal circle and another.[1]

Article 18B paragraph (2) which stipulates that: "The State recognizes and respects customary law communities and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated by law", is a constitutional mandate that must be obeyed by state administrators, to regulate the recognition and respect for the existence of customary communities in the form of law.

Villages, which are legal community units, have original rights and traditional rights in regulating and managing the interests of local communities and play a role in realizing the ideals of independence based on the 1945 Constitution of the Republic of Indonesia. On that basis, Law Number 6 of 2014 concerning Villages (abbreviated as Law No. 6 of 2014) was then formed. In Law No. 6 of 2014, the existence of Villages and Customary Villages or those called by other names is regulated. In Law 6 of 2014, Customary Villages are regulated in Article 1 number 1 which indicates that villages as MHA units with their autonomy, have the authority to organize government and development based on their original structure and original rights. Regulations regarding Customary Villages are specifically related to original rights, especially in the authority to organize government based on original rights, including the authority to form Customary Village Regulations.

The authority to form Village Regulations is further emphasized in Article 110 of Law Number 6 of 2014 concerning Villages (Law Number 6 of 2014) as a local-scale authority of the Village, which states: "Customary Village Regulations are adjusted to customary law and customary norms applicable in the Customary Village as long as they do not conflict with the provisions of laws and regulations." The phrase 'as long as they do not conflict with the provisions of laws and regulations' based on the provisions of Article 110 of Law Number 6 of 2014 above means that Customary Villages have the right to form Customary Village Regulations as long as they do not conflict with laws and regulations. Therefore, Customary Village Regulations need to be monitored so that they do not conflict with laws and regulations. Problems that arise parameters as long as they do not conflict with the provisions of laws and regulations will give rise to the government's authority to use its power to cancel Customary Village Regulations.

For this reason, the problem raised in this paper is: How is the institutionalization of testing of Traditional Village Regulations?

 

B. Discussion

1. Village Regulations in Types and Hierarchy of Legislation in Indonesia

Law Number 6 of 2014 recognizes the division of types of Villages, based on the provisions of Law Number 6 of 2014, there are Villages and Customary Villages. Villages or those called by other names have characteristics that apply generally to all of Indonesia, while Customary Villages or those called by other names have different characteristics from Villages in general, especially because of the strong influence of customs on the local government system, management of local resources, and the socio-cultural life of the Village community.

Traditional Villages are essentially a legacy of local community governance organizations that are maintained from generation to generation, which are still recognized and championed by the leaders and communities of Traditional Villages so that they can function to develop local welfare and socio-cultural identity. Traditional Villages have ancestral rights that are more dominant than the ancestral rights of Villages since the Traditional Village was born as an original community within the community. Traditional Villages are a unit of customary law communities that historically have territorial boundaries and cultural identities formed on a territorial basis that are authorized to regulate and manage the interests of the Village community based on ancestral rights.

The types and hierarchy of current statutory regulations are contained in Article 7 paragraph (1) of Law Number 12 of 2011 concerning the Formation of Statutory Regulations (hereinafter referred to as Law Number 12 of 2011), which states that:

• The types and hierarchy of statutory regulations consist of:

1. The 1945 Constitution of the Republic of Indonesia;
2. Decree of the People's Consultative Assembly;
3. Law/Government Regulation in Lieu of Law; 
4. Government regulations;
5. Presidential decree;
6. Provincial Regional Regulations; and
7. Regency/City Regional Regulations.

Furthermore, Article 8 paragraph (1) states that:

"Types of Legislation other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People's Consultative Assembly, the People's Representative Council, the Regional Representative Council, the Supreme Court, the Constitutional Court, the Audit Board, the Judicial Commission, Bank Indonesia, Ministers, bodies, institutions or commissions of the same level established by law or by the Government on the orders of law, the Provincial People's Representative Council, the Governor, the Regency/City People's Representative Council, the Regent/Mayor, the Village Head or those of the same level."

The provisions of Article 7 paragraph (1) and Article 8 paragraph (1) of Law Number 12 of 2011 which do not regulate Village Regulations (Customary) as a type of legislation and are not included in the legislation in Indonesia, does not mean that Village Regulations (Customary) are not recognized as legal products and do not have binding legal force. It also does not mean that by not regulating Village Regulations (Customary) in the types and hierarchy of legislation, the existence of Village Regulations (Customary) is ignored by the makers of Law Number 12 of 2011. Village Regulations remain a legal product at the village level which has binding legal force.

Constitutionally, Village Regulations are recognized in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia recognizes the ancestral rights (including customary law) held by traditional villages, including the authority to form Traditional Village Regulations. Therefore, Traditional Village Regulations have constitutional force.

The position of Village Regulations should have the same position as laws, because the main material of Village Regulations is to regulate the original rights of Customary Villages which are constitutionally guaranteed in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. Village Regulations have different characteristics from statutory regulations which are hierarchically below the 1945 Constitution of the Republic of Indonesia. For this reason, the provisions in Article 7 paragraph (1) and Article 8 paragraph (1) of Law Number 12 of 2011 which do not place Village Regulations in the hierarchy of statutory regulations are appropriate.

2. Parameters for Testing Customary Village Regulations

The provisions of Article 7 paragraph (1) and Article 8 paragraph (1) of Law Number 12 of 2011 which do not regulate Customary Village Regulations as a type of legislation and are not included in the legislation in Indonesia, do not mean that Customary Village Regulations cannot be tested. The General Explanation of Law Number 6 of 2014 states that:

"The enactment of Village Regulations elucidates the various authorities held by the Village, referring to the provisions of higher-level laws and regulations. As a legal product, Village Regulations must not conflict with higher-level regulations and must not harm the public interest, namely:

1. disruption of harmony between community members;
2. disruption of access to public services;
3. disruption of public order and peace;
4. disruption of economic activities to improve the welfare of village communities; and
5. discrimination against ethnicity, religion and beliefs, race, inter-group relations, and gender."

 The characteristics of Customary Village Regulations are different from the laws and regulations under the 1945 Constitution of the Republic of Indonesia, which means that Customary Village Regulations are not required to describe the contents of the above laws and regulations, except for the 1945 Constitution of the Republic of Indonesia. The characteristics of Customary Village Regulations are that the contents must guarantee the preservation of customary law, original rights and traditional rights of the Customary Law Community in the Customary Village in question.

Through the amendment to the 1945 Constitution, recognition of the unity of MHA is emphasized through the provisions in Article 18B paragraph (2). The provisions of Article 18B paragraph (2) which recognize the original rights of the unity of MHA contain the meaning that the contents of the Customary Village Regulations are prohibited from contradicting the 1945 Constitution of the Republic of Indonesia. The Customary Village Regulations are prohibited from contradicting the 1945 Constitution of the Republic of Indonesia. This means that the recognition of the original rights of MHA in the 1945 Constitution of the Republic of Indonesia is a guarantee for MHA in Customary Villages to organize government in accordance with the customary law applicable in the Customary Village in question. For this reason, the contents of the Customary Village Regulations must not deviate from the original rights guaranteed in the 1945 Constitution of the Republic of Indonesia.

Recognition of traditional rights and ancestral rights is further outlined in Law Number 6 of 2014. This recognition is specifically regulated in Articles 96 to 111 in Chapter XIII entitled Special Provisions for Traditional Villages. These special provisions are emphasized in Article 111 paragraph (1) which states that: "Special provisions regarding Traditional Villages as referred to in Articles 96 to 110 only apply to Traditional Villages."

The recognition of traditional rights and ancestral rights of Indigenous Law Communities in the provisions referred to outlines the authorities of the Traditional Village. One of the authorities held by the Traditional Village is to form Traditional Village Regulations as regulated in Article 110. The regulation of Article 110 of Law Number 6 of 2014 states that: "Customary Village Regulations are adjusted to customary law and customary norms applicable in the Traditional Village as long as they do not conflict with the provisions of statutory regulations."

The provisions of Article 110 mean that the authority to form Village Regulations must take into account three factors: a) customary law, 2) customary norms, and 3) provisions of statutory regulations. The customary law and norms referred to here are customary law and norms inherited from ancestors, derived from the lives of the customary law communities concerned. This is also in accordance with the opinion of von Savigny, which states that:

"A legal system is part of a society's culture. Law is not born from a free act. (arbitrary act of a legislator), but is built and can be found in the soul of society. Law can hypothetically be said to originate from custom and is then created through legal activity. (juristic activity).[2]"

The provisions of Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia, are in fact the basis for the constitutionality of testing the Customary Village Regulations. The recognition of traditional rights and the rights of origin of MHA has the consequence that as the embodiment of the rights of origin of MHA in customary law which can then be used as the content of the Customary Village Regulations, it must be tested so that it does not deviate from the authority of the rights of origin and the 1945 Constitution of the Republic of Indonesia. This is considering that the rights of origin which give rise to the authority to form Customary Village Regulations are given attributively in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia.

In addition, the provisions of Law Number 6 of 2014 which outlines the recognition of traditional rights and ancestral rights of MHA within the local authority of the Village to form Traditional Village Regulations as regulated in Article 110 are the basis for testing Traditional Village Regulations, so that they do not deviate from the purpose of their formation.

 

C. Conclusion

1. Conclusion

Based on the above description, it can be concluded that the phrase 'as long as it does not conflict with the provisions of laws and regulations' is the basis for testing the Customary Village Regulation. The laws and regulations in question are only the 1945 Constitution of the Republic of Indonesia and Law Number 6 of 2014 as the state's recognition and guarantee of the unity of the MHA to organize customary governance in accordance with traditional rights and ancestral rights. In ancestral rights, there is the authority to form Village Regulations. This is to avoid the Government's actions using its power to cancel Customary Village Regulations that are not in accordance with the Government's interests.

2. Saran

Based on the discussion and conclusions above, the suggestion that can be conveyed is that there needs to be an affirmation by the Government regarding the basis for testing the Customary Village Regulations, that the phrase 'statutory regulations' referred to in Article 110 of Law Number 6 of 2014 is the Constitution of the Republic of Indonesia and Law Number 6 of 2014.

REFERENCES

Jimly, Asshiddiqie, 2006, Regarding the Law, Constitutional Pres, Jakarta.

Soerjono, Soekanto, 1981, Customary Law in Indonesia,Raja Grafindo Persada, Jakarta.

Soepomo, 1981, Chapters on Customary Law, Pradnya Paramita, Jakarta.

Republic of Indonesia, 1945 Constitution of the Republic of Indonesia.

Republic of Indonesia, Law No. 12 of 2011 concerning the Formation of Legislation.

Republic of Indonesia, Law Number 6 of 2014 concerning Villages.

 

[1] Soepomo, Chapters on Customary Law, (Jakarta: PT. Pradnya Paramita, 1981), 59-60.

[2] In MDA Freeman, Lloyd's Introduction to Jurisprudence, Seventh Edition, (London: Sweet & Maxweel Ltd, 2001), 904-905.