CUSTOMARY COURT MODEL IN ISLAMIC COUNTRIES
ON AMBON ISLAND AND THE LEASE ISLANDS[1])
Arman Anwar
Faculty of Law, Universitas Pattimura, Ambon
ABSTRACT
Faempirical words show that the dispute resolution process in society adat in Maluku it is generally resolved through a system mechanism pjustice customs. Akyourlity pjudicial system This custom is no exception in the Islamic countries of Ambon Island and the Lease Islands. Judicial mechanism customs in Islamic countries the has its own uniqueness because even though it is influenced by customary law, it is still imbued with Islamic teachings. Through research using method Social Legal Research, it was found that, customary institutions in these Islamic countries are full of dynamics and have comparative advantages thanks to existence and competence customary authority in the judiciary adat intended.accessibility and flexibility and fast and free of charge In handling cases and decisions that are win-win solutions, it turns out that they are able to fulfill the sense of justice for those seeking justice.. This is a lebenstraum (sources of life, both symbolically and realistically) for customary law community in the Islamic countries in question. It is expected institutions This custom can be empowered appropriately so that it can help reduce the workload of formal justice that is coherent with the reform policy of Indonesian judicial institutions. in accordance with the blueprint of the Supreme Court of the Republic of Indonesia. In addition, it can provide a constructive theoretical contribution to the discipline of law because it is important knowledge in understanding the sociological aspects of the law of indigenous island communities in an effort to maintaining social harmony and as a social modality for communities in Islamic countries so that it can provide output in the form of creating an increase in the quality of life that is Islamic.
Kata khook: Indigenous peoples, customary justice, Islamic State, Social harmony and Islamic quality of life
INTRODUCTION
Indonesia is a pluralistic country. The plurality of Indonesian society can be seen in its many ethnic groups (Liem, 2009). There are more than 300 ethnic groups, each with its own distinct language and cultural identity (Geertz, 1981).
In addition to ethnic plurality, religious pluralism also exists in Indonesia. Meanwhile, in the vertical dimension, social, political, and economic polarization has also been created. Ethnic and religious pluralism, if influenced by unbalanced social, economic, and political polarization, has the potential to trigger sensitive issues such as dissatisfaction, frustration, and cynicism that can accumulate into mass riots. Data from 1995-1997 recorded 20 cases of mass riots in Indonesia with SARA nuances with large casualties and material losses (Mas'oed, et al., 2000). Followed by the 1998 Ketapang riots, the 1998 Poso riots in Central Sulawesi, and the 1999 Maluku riots. In 2008, there were 1.136 riot incidents again, resulting in 112 deaths and 1.736 injuries (Djailani, 2001).
Since 2008, Indonesia has experienced 1.136 violent incidents, with an average of 3 incidents per day. These incidents include mob lynchings (338 incidents) (30%), brawls (240 incidents) (21%), political conflicts (180 incidents) (16%), natural resource conflicts (109 incidents), mob violence (47 incidents) (4%), religious/ethnic conflicts (28 incidents) (2%), and other incidents (56 incidents). These incidents resulted in 112 deaths and 1.736 injuries. Global Peace Index In 2009, it was stated that Indonesia had the highest level of criminal violence, namely a score of 4 out of 5 (Wisudo, 2010).
In the Indonesian legal system, the resolution of the above cases and other cases can end up in the Supreme Court. In terms of handling cases in formal courts, the Chief Justice stated that at the end of 2007 alone, the population of cases circulating in the Supreme Court had reached 20.319 cases consisting of 13.525 Active Cases (67%) and 6.794 cases that were more than 2 years old (33%). (Supreme Court Annual Report: 2007).
In an effort to overcome this problem and reduce the increasing backlog of cases at the Supreme Court, a judicial reform policy was created in 2003 which was stated in the blueprint (blue print) Supreme Court. This policy aims not only to reform the strategy for productive case handling at the Supreme Court and its staff, but also to raise public awareness of the need to use formal judicial institutions as the last resort when resolving disputes.
Informal justice system legal system As a legal institution at the local level, if it can be empowered, it is hoped that it will be the best solution as an alternative dispute resolution mechanism, which prioritizes peaceful and deliberative resolution methods so that it does not always need to go to formal courts.
With the influx of external influences, various local legal institutions affected by the emergence of new circumstances must anticipate the possibility of shifting by paying attention to local laws and customs. This is where law can be seen as a means of transforming the structure and culture of society. (Hartono, 1991)
RESEARCH METHODS
1. Research Specifications
This paper is the result of social research on law conducted using the "method"Social Legal Research”. Social Legal Research is legal research that places law as a social phenomenon. This research is linked to social problems by emphasizing individual or societal behavior in relation to the law (Marzuki, 2010).
2. Research Material
Considering that the subject of this study is customary law, this research is a social study of customary law. Therefore, the research topic studied in this paper is the effectiveness of customary law, compliance with customary law rules, and the role of customary law institutions or institutions, in this case customary courts or informal courts, in enforcing customary law. As well as the influence of customary law rules on certain social problems or conversely, the influence of certain social problems on customary law rules.
3. Research Location
This research was conducted in Islamic countries that still adhere to customs and customary laws that are full of Islamic dynamics in customary law communities (Rechtsgemeenschap) on Ambon Island and the Lease Islands, in the Maluku Islands. The Islamic states on Ambon Island and the Lease Islands sampled in this study were the states of Batumerah, Laha, and Tulehu, located on Ambon Island. On the Lease Islands, the state was Kabaw.
4. Data Collection Techniques.
Data collection is carried out using the following techniques:
a. Direct observation at the research location
b. Interviews are conducted face to face with respondents to explore information that is not visible or phenomena/symptoms that are visible.
c. Documentation, carried out to obtain written data, both regarding customary court decisions, publications and other publications to support data obtained through direct observation and interviews.
5. Data Processing and Data Analysis Techniques
The collected data was then organized and classified according to the problem formulation, research objectives, and the systematics of compiling the research results. After all legal materials were organized and classified, they were analyzed and/or interpreted. The analysis used was empirical qualitative analysis, which took into account facts and field data. Through this method, it is hoped that the problems in this research can be examined and resolved.
RESULTS AND DISCUSSION
1. BRIEF DESCRIPTION OF RESEARCH LOCATION
The Islamic states on Ambon Island and the Lease Islands are estimated to have existed from 1100 to 1817. The terminology of Islamic State is used because these states, according to their historical origins, have embraced Islam in the 14th century and until now the majority of the population is Muslim. The system of government and customary law also has its own characteristics when compared to other non-Muslim states due to the influence of Islamic teachings which are quite strong, such as the introduction of the Teacher Council in the state government system in Kabaw or the State Customary Council in Batumerah and Laha States and the Saniri State in Tulehu States whose function is more or less the same as the Council Syuro or ahl halli wa al–aqdli in the Islamic government system. Likewise, customary law is relatively strongly influenced by Islamic teachings, for example, customary law. Kaul in Tulehu Land, Customary Law Data in Batumerah Country or Customary Law Ma'uri Lapia Hatae and Customary Law Molo in Kabaw Country.
2. DUTIES AND POSITION OF THE KING AS CUSTOMARY AUTHORITY HOLDERS
The indigenous peoples of Maluku are known for their strong customs and culture. The customs of the Maluku people can be seen from the existence of customary law associations (Rechtsgemeenschap) that remain alive and recognized as institutions in society. So, in addition to formal government administrative areas, there are also customary government areas.
Van Vallenhoven in his book entitled Het Adatrechts van Nederlands Indie deel I, 1906-1918, divides the Indonesian customary law area into 19 (nineteen) customary law areas (adatrechtskringen). As for Maluku, Van Vallenhoven included it in the 13th customary legal area which includes Buru Island, Ambon Island, Hitu, Banda, Uliasar Islands, Saparua, Seram, Kei Islands, Aru Islands and Kisar (Bushar Muhammad, 2002).
Moreover, the Maluku people are also known as a religious society, meaning that the Maluku people live their lives by obeying all religious and state laws of Indonesia. Thus, the religious Maluku people are reflected in the lives of individuals who tolerate and respect each other in a society that has diversity, ethnicity, culture, religion and background of life. Through the cooperation model of "three hearthstones" and "masohi", the state government is built based on cooperation between the King, Traditional Leaders and Religious Leaders, this is also a characteristic of the life of the indigenous people in Maluku who always uphold spiritual cleanliness, politeness in actions and friendly togetherness. (RPJMD Maluku Province 2008-2013, 2009: VI-4)
In each area of customary law environment there is a customary law association or Rechtsgemeenschap led by a king. The figure of the king in Islamic countries has more or less the same function as the figure of the caliph in Islamic leadership. All of these constitute regional cultural assets, although in some countries, including Islamic countries, they appear to be experiencing degradation.
As an effort to revitalize regional cultural values and as an elaboration of Law Number 32 of 2004 concerning Regional Government, in 2004 a Regional Regulation was drafted concerning the State as a Unity of Customary Law Communities within the administrative area of Maluku Province with the aim of being used as social capital that can be utilized for regional development interests based on local potential. This Regional Regulation was implemented in 2005. (RPJMD Maluku Province 2008-2013, 2009: II-6)
With the enactment of Regional Regulation Number 14 of 2005 concerning the Re-establishment of the country as a customary law community unit within the Maluku Provincial Government (Maluku Provincial Regional Gazette of 2005 Number 14), the Maluku regional government now has its own characteristics because its governance system has been returned to being based on customs and customary law.
Based on the aforementioned umbrella regulation, the Ambon City government and several district governments within the Maluku Provincial Government have also established city and district regulations concerning the State. These include Ambon City Regulation Number 3 of 2008 concerning the State of Ambon City and Ambon City Regulation Number 13 of 2008 concerning the Procedures for Nominating, Electing, Appointing, Inaugurating, and Dismissing the King.
The duties and position of the King in indigenous communities are very important and strategic. Therefore, based on Ambon City Regional Regulation No. 3 of 2008 concerning the State in Ambon City, the duties of a King are very broad, namely including:
1) Organizing government affairs, development and public services in the country
2) Fostering the lives of the people of the country
3) Fostering and developing the national economy
4) Maintaining peace and order in the country's society
5) Reconciling customary law disputes in the country
6) Resolving customary law disputes in the country
7) Maintain and preserve the customs and customary laws that exist in the country
8) Securing the country's wealth
9) Develop community independence.
Apart from regulating the duties of a King, the position of the King is also regulated, namely as:
1) The leadership of the administration of the state government is based on decisions made jointly by the Complete State Saniri,
2) Submit a Draft State Regulation,
3) Plan, compile and submit the Draft State Budget for joint discussion Complete Saniri Negeri and stipulated as a State Regulation
4) Establish state regulations that have received mutual approval Complete Saniri Negeri
5) Represent the country inside and outside the court and can appoint legal counsel for this purpose.
6) Planning and compiling national development programs and
7) Determine the utilization of natural resources in advice (Petuanan is an area that includes land and sea which, based on customary law, is under the control of the state as customary rights)
Complete Saniri Negeri is a state legislative body consisting of representatives soa, traditional chiefs, village elders, head craftsmen, kewang, as well as other elements tasked with assisting the head of state in formulating state regulations and carrying out supervisory functions. This institution has an administrative position and duties, led by the King in legislative functions, such as making regulations and determining government policies, which are determined through plenary sessions. Saniri Complete Country.
In Islamic countries like the Kabaw Country, the King does not serve as leader Complete Saniri Negeri. In this country, Complete Saniri Negeri led by a community figure who is considered very influential. Apart from that, in the state government structure there is also a Teachers' Council (Samasuru Five) which functions as a consultative body such as the Syuro Council or ahl halli wa al–aqdli.
In the Batumerah and Laha villages, a similar deliberative body, also known in local customary law as the Village Customary Council, is also known. Besides serving as a deliberative body to determine the future king, it also functions as a deliberative body to resolve certain disputes related to customary law and the future continuity of the village, or related to decision-making that affects the lives of many people. This usually occurs when the king feels that the decision he is about to make carries significant risks and responsibilities. Therefore, decision-making is delegated to the Village Customary Council.
In Tulehu State there is a State Saniri institution whose function is more or less the same as the Syuro Council or ahl halli wa al–aqdli with the same competence as in the two countries above, namely as a deliberative body to determine the candidate for King and to resolve serious problems when the King himself is unable to make a decision.
In Tulehu Village, a Customary Council was once held Saniri Negeri involving all the people of the village when Tulehu Village was in dispute with the Central Maluku Regency Government. At that time, the Regent of Central Maluku issued a Regent's Decree on the Dissolution or Suspension of the Tulehu Village Saniri Body because the Tulehu Village Saniri was "considered" to have conducted the election of a King without adhering to the Central Maluku Regional Regulation on the Nomination, Election, Inauguration, and Dismissal of Kings. Regarding this case, the King requested a hearing. Great Saniri Customary Assembly Negeri Tulehu on March 1, 2011 which then resulted in three decisions, namely: First, If the Regent of Central Maluku enters the territory of Negeri Tulehu, he must be arrested and sentenced to death. Second, Arrest and Sentence to Death the Head of Salahutu District, Central Maluku Regency. And Third, giving the right to all children of Negeri Tulehu to carry out the execution of this decision. The decision of the King and Saniri of Negeri Tulehu received a strong reaction from the Regional Government of Maluku Province. The Governor then asked the King of Negeri Tulehu and the Saniri of Negeri Tulehu to respect the Regent's Decision and hoped that the people and leaders of Negeri Tulehu would listen to what the government wanted, but the King's response was the opposite, hoping that the government would be willing to listen to what the people said. The King asked the regional government to respect the customary institutions and traditional values of Negeri Tulehu which are the local wisdom of his country. Firmness, authority and upholding principles are part of the leadership values in Islam (Interview with the King of Tulehu: John Saleh Ohurella, Sp, at the Tulehu State Office on Monday, August 14 2012, 14.00-16.00 WIT).
3 CUSTOMARY LAW INSPIRED BY THE CONCEPT OF ISLAMIC TEACHINGS
Dispute resolution in local customary courts applies legal rules based on oral traditions passed down through generations, combining ideas of peace, justice, harmony, and balance with the natural world in which they live. These rules have long been part of the positive law prevailing in indigenous communities and have been preserved and respected as a form of local wisdom in Islamic countries.
In the customary courts of Tulehu State there is a customary law rule called "Law of Vows" is a ceremonial oath-taking ceremony. This ceremony is led by the King and the Imam of the mosque, with both parties in dispute present to take the oath. The oath that must be recited is as follows:If it is true that Ose has it, then let this be heaven for Ose, but if it is not Ose's, then it will be hell for Ose." This oath is recited by both parties in a dispute, taking turns. The meaning of the oath is that if the object of the dispute (in a civil case) truly belongs to the plaintiff, then the plaintiff demands that God grant justice by punishing the defendant. The same applies to criminal cases, where if the perpetrator feels they have not committed the crime they are accused of, a vow will be made. This ceremony usually concludes with the slaughter of a sacrificial animal, symbolizing the guilty party's readiness to accept any consequences, whether disaster, curse, or even death, from God.
The value and size of the animal to be sacrificed depends on the value of the object of the dispute or the severity of the case. If the case has a large/expensive disputed object/case then the sacrifice is one cow but if the object of the case is smaller or only a light case, then the sacrificial animals are goats, chickens to the smallest, namely doves. (Interview with the King of Tulehu: John Saleh Ohurella, Sp, at the Tulehu State Office on Monday, August 14, 2012, 14.00-16.00 WIT).
The ritual process of taking an oath like this is greatly influenced by the concept of Islamic teachings, namely Li'an's oath. The consequences or consequences received by the guilty party are usually not long after, received in the form of suffering/misfortune or suffering from a certain disease which causes continuous death for several generations in their descendants, this is believed to be justice from God.
Likewise, the beliefs of the people of Negeri Batumerah when a dispute occurs land antara personal data Lisaholet and personal data Nurlete. (land is customary land controlled by certain clans within a customary country) Second personal data The two finally agreed to settle their case by taking an oath at the mosque. (Interview with Acting King of Batumerah; M. Saleh Kiat, S.Sos. at the Batumerah District Office on Thursday, August 9, 2012, 9:00-11:00 a.m. WIT)
Although the consequences are sometimes difficult to accept rationally, the community believes it is the fairest law. Another example is the process of resolving land disputes between indigenous communities using customary law. "Molo" (diving) like in Kabaw Country.
This customary law is considered highly irrational because both parties in dispute resolve their dispute by diving in a designated area of the sea. This is usually held on Fridays. They dive together, carrying a stone without using breathing apparatus. The ceremony is led by the King and begins with a prayer from the Imam. Afterward, the parties dive. The party who stays submerged the longest is deemed the winner and is declared the rightful owner of the disputed land.
Although this customary law is highly irrational, the people of Negeri Kabaw believe that God will deliver justice. Through this method, if the person or party in dispute is in the right position, according to them, God will put them to sleep on a rock they are carrying, so that they will remain in the sea for a considerable time. Conversely, if the party in the wrong position, even if they are an expert and renowned diver, God will give them feelings of anxiety and fear while in the sea, causing them to quickly surface.
Specifically regarding criminal cases, Islamic countries generally leave the resolution to the police. However, the Kabaw community also believes that God will deliver justice even if the convict has served their sentence according to criminal law. An example of such a case is the murder of an older sibling by a younger sibling. The chronology of events is that a younger sibling killed her older sibling while she was asleep by stabbing her through the heart. The case began with the death of the perpetrator's child. The perpetrator then fell for slander that claimed his older sibling possessed black magic (a kind of santet) so he was the one who caused the perpetrator's child's death. Ultimately, the perpetrator killed his own brother. The perpetrator was then tried in the District Court and served a six-year prison sentence at the Saparua Penitentiary.
While the case was being handled by the police, the victim's family quietly sought justice through customary law. The king ordered the victim's family to take a shroud from the body during burial and wrap it around their arms while praying to God with the following prayer: "That I demand from Allah that if the victim is truly innocent, then show justice by taking the life of the person who killed the victim. A life for a life.". Finally, God answered this prayer and demonstrated His justice. When the perpetrator had completed his sentence and returned home to Negeri Kabaw, not long afterward, the perpetrator fell ill and died, bleeding from his chest exactly where he had stabbed his brother. When he was buried, his grave smelled and was filled with maggots.
This is how the people of Negeri Kabaw resolve problems: calmly, without any fuss, and by surrendering everything to God alone, with complete faith and no doubt whatsoever in God's power and justice. This customary law is called “Ma'uri Lapia Hatae”. (Interview with the King of Kabaw Country: Zainuddin Karapesina at the King's House on Friday, October 05 2012 at 09.00-13.00 WIT).
CONCLUSION AND SUGGESTIONS
Conclusion
1. The structure of the State Government in the Islamic States on Ambon Island and the Lease Islands is greatly influenced by the concept of Islamic teachings which is characterized by the existence of a King who functions like a caliph. Apart from that, there are also deliberative institutions such as the Teachers' Council (Samasuru Five), the Customary Council or Saniri Negeri, whose function is more or less the same as the Syuro Council or ahl halli wa al–aqdli.
2. There are wide options available for indigenous peoples in Islamic countries to access justice through formal justice, but they tend to choose to access justice through customary justice institutions in their country in resolving disputes between them.
3. Customary justice in Islamic countries, although they apply their own customary laws, these customary laws, with all their dynamics, are still imbued with the concepts of Islamic teachings.
- The flexibility of the role of customary authority actors in the informal justice system, who sometimes act as parents, advisors, mediators, and neutral judges in resolving horizontal conflicts between citizens, is a comparative advantage inherent in the spirit of judicial reform in Indonesia, which prioritizes peaceful and deliberative resolution methods. Furthermore, the firm, authoritative, and principled attitude of leaders when resolving vertical conflicts is part of the concept of leadership in Islam, which has proven capable of facing the threat of conflict from outside.
5. Acknowledging only Allah, the Lord alone and only Allah the Most Just Judge and submitting oneself only to Him without the slightest doubt of His power, greatness and justice is a form of crystallization of the faith of a Muslim which is practiced in a calm dispute resolution mechanism, without fuss and without boasting in venting grudges is a form of self-control and submission to Allah. This attitude has been proven to be able to provide a sense of justice, maintain social harmony and become a social modality in Islamic countries in an effort to create an increase in the quality of life according to Islam.
Saran
- There is a need for consolidation and support of regional government policies through strategic development work plans, which are more appreciative of legal and justice access for indigenous peoples in a clear, concrete and real manner, especially in Islamic countries, including the preparation of a budget that is pro-customary courts because so far customary court actors have not been paid and their institutions have never been fostered and empowered by the government.
- In the implementation of Maluku regional government, it is appropriate to create Regional Regulations that regulate the explicit recognition of the position and existence of customary courts in Islamic countries that are in accordance with the teachings of the religion they adhere to but remain within the corridor of the Indonesian national legal system.
- It is recommended that local governments and all interested parties continue this research in a broader scope in order to explore and empower customary law inspired by Islamic teaching concepts in order to enrich the Indonesian legal treasury with all the legal plurality that exists in Indonesia as part of the sources of Indonesian national law.
REFERENCES
Book:
Djailani, Abdul Qadir, 2001, Religion and Separatism, PIMAM Foundation, Jakarta,
Geertz, Hildren, 1981, Indonesian Culture and Communities, has been translated into Indonesian with the title Various Cultures and Communities in Indonesia, Social Sciences Foundation, Jakarta.
Hartono, CFG Sunaryati, 1991, Legal Policy Towards a National Legal System, Alumni, Bandung.
Liem, Tjong Tiat, 2009, Ethnicity and Modernization in Indonesian Education: A Comparative Study of Pre-Independence and Post-Independence Periods, In Nasikun, Indonesian Social System, PT. RajaGrafindo Persada, Jakarta
Mas'oed, Mohtar et al (ed), 2000, Collective Violence Conditions and Triggers, P3PK UGM, Yogyakarta,
Marzuki, Peter Mahmud, 2010, Legal Research, Kencana Renada Media Group, Jakarta
Muhammad, Bushar, 2002, Principles of Customary Law An Introduction, Pradnya Paramita, Jakarta..
Riyanto, B, 2004, Regulation of Customary Forests in Indonesia: A Legal Review of Law No. 4 of 1999 concerning Forestry, Bogor, Forestry and Environmental Law Research Institute.
Ter Haar Bzn, B,. 1981, Principles and Structure of Customary Law, Pradnya Paramita, Jakarta,
Wisudo, Bambang, 2010, Risking Your Life to Weave Peace: The Story of the Early Warning Movement for Conflict in Ambon Tifa Foundation, Jakarta,
[1]) Paper in a national seminar in the form of dissemination of research results with the theme "Towards a Civil and Sustainable Society" organized by the Directorate of Research and Community Service, Islamic University of Indonesia (DPPM UII), Yogyakarta, Tuesday, December 18 2012,
