Restorative Justice in Maluku Culture (A Study from the Perspective of Customary Criminal Law)

Restorative Justice in Moluccan Culture

(Study from the Perspective of Customary Criminal Law)

Elsa RM Toule

1.    Background

Pendekbind  keadilan  restorcitations  diasumsikan  sebagai  pergeseran  paling  mutakhir  dari berbagai  model  dan mekanisme yang bekerja dnature sisem peradilan pidana dalam menangani perkara pidana pada moment  ini. PBB melalui Basic Principmany onthe Use of Restorativand Justice Programmes  in  Criminal Matters   Tahun   2002[1]    yang  telah  digariskannya  menvalue  bahwa pendekbind keadilan restoratif adgod pendekatan  yang dapat dipakai dnature sisem peradilan pidana yang rasional. Hal ini am in line dengan pandangan G.P.  Hoefnagels yang menyatakan bahwa polduck kriminal harus raboutonal (arationaltotal ofthand responses to crime). Pendekbind keadilan risorcitations merupakan suatu paradigma yang dapat dipakai sebagai bingkai daristrategi penanganan  perkara  pidana  yang  bertujuan  menjawab  ketidakpuaSA  aheap  bekerjanya  sistem peradilan pidana yangadhas a aat ini.

Keadilan risorcitations (restorative justice) todalah sebuah konSep pemikiran yang merespons pengembangan   sistem  peradilan  pidana  dengan  menitikberatkan  pada  kebutuhan  pelibbind masyarakat dan korban yang  dirhope yoursisihkan dengan mekanisme yang bekerja padhas a istem peradilan pidana yangada padhas a aat ini. Dipihak lain, keadilan risorcitations juga merupakansuatu kerangka berfikir yang baru yang dapat digunakan dalam  merespons suone tindak pidana bagi penegak dan pekerja hukum.

Meskipun beberapa prakconsumption berpikir bahwa istgod  yang tepuntil thedgod pendekatan risoratif, tetapi keadilan  risoratif  merupakan  istgod  yang has  dikenal  diberbagai belahan  dunia. Konsorsium Risorative Justice, sebuah badan   amal naboutonal   di Inggris yang beranggotakan organization-organisasi  nasional  dan  individu  yang  tertarik  dalam  mempromosikan  keadilan risoratif, merumuskan:

Restorative Justice works to resolive construggle and repair harm. Itencourages those who haand cauthirst harm to acknowledgmeathandmpact ofwhatthey have done and gives theman opportunity to make reparation. It offers those who have suffered harmthe opportunitI am have their harm or loss acknowledged and amends made. [2]

Marian Liebmann mengemukakan bahwto itselfcarto itselfderhana, keadilan restoratif bertujuan untuk mengembalikan kesejahteron korban, pelaku dan masyarakat yang rusak oleh kejahatan, And untuk mencegah kejahatan lebih lanjut.[3]

Burt Galawaandnd Joe Hudson mengemukakan theemen-elemen yang fundamental dari keadilan restoratif, yakni: [4]

first, crime is viewed primarilly asaconflict between indthereinduals thatresults in injuries to victims, communities, and the offenders themsaltvare;

second, The aim of thecriminaljustice process should be to create peace incommunities by reconcilingthe parties and repairingthandnjuries cauthirst bythe disputea;

third, the criminaljustice process should facibedate active participation by the victims, offnders, andtheir communities in order to findsolutions to theconflict."

Pendapwait for yoursebut  droughtrwasegas menggambarkan bahwa persoalan tindak pidana bukan hanya melibatkan orang perorangan. Tindak pidana menimbulkan luka yang berpengaruh terhadap korban, masyarakat, bahkan pelakyou are sendiri, dan fungsi dari proses peradilan pidana bukanlah menghukum melainkan  mendapatkan  solusi  dengan  melibatkan  semua  pihak  yang terlibat. Keadilan risoratif adalah suatu proses dimana semua pihak yang terlibat dalam suone tindak pidanand yourtentu bersama-sama memecahkan masgod bagaimana menangani akibat dimasa yangakan datang. Tindak pidana menciptakan kewajiban  untuk membuat segala sesuatunya menjadi pulih dengan melibatkan korban, pelaku, dan masyarakat dalam  mencarisolusi untuk memperbaiki, rekonsyliasi, dan menentramkan hheart.

Di       berbagai bhehan dunia, praktek penggunaan keadilan risoratif terhadap berbagai kasus has  diterapkan untuk berbagai kasus, sincetahun 1970.[5] Dari perkembangan keadilan risoratif tersebut, terlihat bahwa pendekatan ini sudah digunakan bukan sayesrhadap kasus yang melibatkan anak or remjust, melainkan berkembangjuga untuk kasus orang dewbaton, termasuk di  dthatmnya  kasus  kekeraSt.  dalam  rumah  tangga.  Keadilan  risoratif  sendiri  mengandung prinsip-prinsip:

a.  Membuat pelanggar bertanggungjawab untuk memperbaiki kerugian yang ditimbulkan oleh keDININGhannya;

b.   Memberikan kesempatan kepada phenggar untuk membuktikan kapcity dan kualitasnya dfathermping mengatasi rasa bersalah secara konstruktif;

c.  Melibatkan para korban, orangtua, keluarga besariskolah, Toman sebaya;

d.   Menciptakan forum untuk bekerjasama dalam menyelthatikan masalah tersebut; dan

e.  Menetapkan  hubungan  langsung  dan nyaok thentara kesthathan dengan reakyes yesosial yang formal.[6]

Keadilan yang restoratif adgod apabila proproven pencapthreshing floornnya mendorong pelaku untuk bertanggungjawab   atas   perbuatannya, memberikan  kesempbind baginya untuk  mengganti kesalahan yang dilakukannya, memberikan kesempbind bagi korban untuthatkut serta dalam proses, memberikan kesempatan bagi pelaku untuk mempertahankan hubungan dengan keluarga, memenuhi kebutuhan mereka yang  dirugikan oleh tindak pidana dan memberikan kThat onempatan bagi rekonsiliasi dan penyembuhan masyarakat yang dirugikan.

Sebagai sebuAh Ide, keadilan risorcitations layak mendapat ruang untukterus berkembang. Paling tidak  untuk moment ini. Tetapiidandni tidak lahir dalam sebuah kevakuman sounlucky budaya. Legitimayes legal dan sounlucky  teloh terlanjur selma ratuSan Tahun memuyes sistem yang retributif dengan kESETiaannya pada norma-norma dan struktur khas 'legal-formal'-nya.

Resolving criminal cases using restorative justice is principally focused on efforts to transform the perpetrator's mistakes through reparation efforts. This includes improving the relationship between the parties involved in the incident. The parties (stake holders) are parties who are directly or indirectly related to the crime that occurred. By jointly identifying the problem, the parties stake holders, then the requirements required as an effort for improvement and the obligations that arise from it, the improvement effort arises.[7]

Based on research conducted by various academics on conflict resolution in Indonesian society, the culture of resolving conflicts through deliberation or conciliation is a widely held value in Indonesia. Various ethnic groups in Indonesia have a culture of peaceful conflict resolution, for example, the Javanese, Lampung, Balinese, South Sumatran, Lomboknese, Malukunese, Papuan, West Sulawesinese, and South Sulawesinese. Conflict resolution through deliberation to achieve peace as quickly as possible developed as customary law. The subsequent development of customary law among ethnic groups in Indonesia, especially regarding conflict resolution through deliberation, has various similarities: conflict is directed towards harmony or harmony in society and does not exacerbate the situation, while maintaining an atmosphere of peace as much as possible.

Conflict resolution is carried out through customary law mechanisms through deliberation for both civil and criminal cases. Unlike Western criminal law, the goal of customary criminal law is to restore legal balance, which is the goal of all customary reactions or corrections. While the goal of correcting wrongdoers and those who violate the law, a fundamental principle of Western criminal law, is absent in customary law.

Maluku Province is an archipelago. Various studies in the Maluku archipelago show that Maluku is the largest archipelago, with 1.340 small islands, and a dominant sea area of ​​92% and land area of ​​7,6%. It has 117 sub-ethnic groups and approximately 120 regional languages, making it a area culture with great diversity. Each has its own local perspective with distinct local concepts. Each lives according to its own philosophy. The Kei people organize and conduct their lives according to the Kei philosophy, the Seram people according to the Seram philosophy, the Ambon people according to the Ambon philosophy, the Buru people according to the Buru philosophy, the Aru people according to the Aru philosophy, and so on.

In organizing their lives, the people of Maluku develop local wisdom in resolving various conflicts that occur in society. Although there is positive law, the reality in Maluku shows that in various regions there is still a model of dispute resolution according to customary law, which involves community or traditional leaders, perpetrators and their families, as well as victims and their families. The culture of deliberation, as a value system internalized by the people of Maluku, is the spirit for each party negotiating in the deliberation to resolve the conflict, for example, will try to reduce their stance so that a meeting point can be reached that is beneficial for all parties, which culminates in a consensus. Although there are many ethnicities, the people of Maluku share a common cultural philosophy as relativesThis cultural philosophy is developed and implemented in community life. This model of conflict resolution based on the culture of "orang basudara" (brotherly people) will result in mutual agreement among the various parties involved.

2.        Customary Law, Criminal Law and Customary Criminal Law

The term customary law is a translation from a foreign language adatrecht. Custom, when translated into Indonesian, means habit. However, there are differences between customary law and customary law, namely in their source and form. Customary law is essentially customary law with legal consequences. Customary law is living law because it embodies a society's sense of law, in accordance with its own nature, continuously growing and developing, like life itself.[8]

Customary law is passed down from generation to generation, undergoing changes from time to time, but remains institutionalized (known, understood and applied) in society. From a cultural aspect, law is part of culture, which grows and develops and functions to regulate social relations.

Communities possess culture, including normative instruments or guidelines for behavior and attitudes. When positive law enforcement is implemented, limitations and gaps in the implementation of laws and regulations are recognized. This provides an opportunity to explore the essence of law, rooted in customary law, in accordance with the local community's sense of justice. Law essentially functions to balance the power or authority of some cultures or subcultures over others, ensuring justice and also legitimizing the dominant relationship of some cultures or subcultures over others.[9] While customary law actually has its power in the form of reality as a pattern of behavior (pattern of actual behavior). Its codification becomes a pattern for regulating behavior (pattern for behavior) would eliminate its dynamic power. Ter Haar modernized customary law only in terms of its forum and function, but still left its substantive modernization to the experiences of the community itself. Van Vollenhoven viewed customary law more as "belonging" to the people, while ter Haar viewed customary law more as part of the ruler's policy. Van Vollenhoven's concept was indeed more appropriate to be adopted at a time when customary law had not yet received recognition and was not seen as law that met the requirements for modern life.

Customary law does not recognize regulations prae exixtence, therefore what can be determined is that judges according to customary law may not punish an act which at the time the act was committed there was no public opinion (sense of justice/people's law) that the act was against the law.

In understanding customary criminal law, it is necessary to explain the definition of criminal law as a basis for examining the existence of customary criminal law. Broadly speaking, from the various opinions on criminal law that have been put forward, dIt can be concluded that criminal law contains certain, special requirements related to the existence of prohibited acts, people who commit prohibited acts, and punishment for those who violate the prohibited acts. Sudarto stated firmly that criminal law must contain three important things, namely the existence of acts prohibited by criminal regulations, the existence of people who commit prohibited acts, and sanctions in the form of punishment for those who violate the prohibition.

Meanwhile, customary criminal law is interpreted as living law (the living law), followed and adhered to by indigenous communities continuously, from one generation to the next. Violation of these rules is seen as causing unrest in society because it is considered to disrupt the balance of the community's cosmos. Therefore, violators are given customary reactions, customary corrections, or customary sanctions by the community through its customary administrators.[10]

Customary criminal law has both written and unwritten sources. Unwritten sources are the customs that arise, are followed, and are adhered to by the community in question. Written law, on the other hand, consists of all regulations written down, whether on palm leaves, leather, or other materials.[11]

Customary criminal law applies to members of customary communities and those outside them, who are subject to its legal consequences. Customary criminal law applies to areas of social life that are linked to worldly and spiritual balance.[12]  Customary criminal law has traditional characteristics, because it basically includes:

1.      There is a relationship between the real and unreal worlds, between the mortal world and the afterlife, between human power and supernatural powers, between human law and God's law;

2.      It is not the result of a rational, intellectual and liberal mind, but rather the result of a communal, magical, religious or communal, cosmic mind.

By understanding the nature of criminal law, it is important to consider the reasons for customary action as a result of the violation. According to Hilman Hadikusuma, there are two reasons for customary action: adata is violated and the balance of society is disturbed.[13]

Thus, the core understanding of customary criminal law is the existence of a violation, crime, or illegal act that disrupts the balance or causes unrest in society. As a result of this disruption, efforts should be made to restore the balance through customary action.

When compared with the core understanding of criminal law, this understanding is not different because it contains the following elements:

1.      There are actions that fulfill certain conditions, such as the action must be prohibited and threatened by criminal regulations for anyone who carries out the prohibited action and is threatened with that criminal penalty; and

2.      There is a punishment, namely in the form of suffering that is deliberately imposed on people who commit acts that fulfill certain conditions.[14]

This opinion concludes that customary criminal law contains the understanding that there are prohibited acts, there are people who carry out prohibited acts, and there are sanctions in the form of customary criminal penalties for people who commit these violations.

3.        Keadilan Restoratifand Customary Law in Indonesia

Many argue that restorative justice is not a new concept. Its existence is thought to be as old as criminal law itself. In fact, in the past, this approach was positioned as the primary mechanism in handling criminal cases.[15] Marc Levin stated that the approach that was previously considered outdated, old-fashioned and traditional is now being declared as a progressive approach.[16]

The concept of customary law, as a vehicle for customary justice institutions, also encompasses concepts that can be described as the roots of restorative justice. In Indonesia, the characteristics of customary law in each region generally strongly support the implementation of restorative justice.

Soepomo describes the general characteristics of Indonesian customs as follows:

a.       A religious pattern that places customary law as a form of spiritual unity of society in a legal community;

b.      The communal nature of customary law positions individuals as people bound to society. Their existence is limited by the limits of the norms that apply to them;

c.       The aim of the community legal association is to maintain physical and spiritual balance between individuals, groups and their living environment (levelmilieu).

d.      The goal of maintaining physical and spiritual balance stems from the view of order in the universe (cosmos). Social order is a form of harmony between all things;

e.       Violation of customary law is interpreted as a violation of the cosmic order line.

Customary law has its own mechanisms for resolving issues related to customary violations or customary crimes. Violations of customary law include actions that disrupt the peace of life or violate social propriety. Widnyana states that violations of customary law include:[17]

a.       An event of action from parties in society;

b.      The action causes an imbalance;

c.       This disturbance of balance causes a reaction;

d.      The reaction that occurs causes the balance to be maintained back to its original state.

   Thus, violations of customary law are violations that disrupt the balance within society. Based on this definition, Widnyana then formulated the characteristics of customary law violations as follows:

a.       Comprehensive and unified

This nature is based on the cosmic nature that animates customary law, where one thing is considered to be linked to another thing, which results in one thing not being able to be separated from another thing;

b.      Open

The provisions regarding customary violations are intended to maintain a sense of justice according to the public's conscience, depending on the time, place, and circumstances. Traditions according to applicable customary law are indeed an attempt to resolve cases of customary violations, but the resolution method is always open;

c.       Differentiating the problem

Resolving customary violations looks at the problem not only from the action and its consequences, but also what is the background and who the perpetrator is;

d.      Court on request

The implementation of the examination of cases in violations of customary law is based on whether or not there is a request or complaint from someone who feels they have been harmed or treated unfairly;

e.       Reaction or corrective action

The customary reaction taken in relation to the violation committed is not only towards the perpetrator alone, but also from family members, towards the community concerned, as well as restoring balance by holding a customary ceremony.

            From a customary legal perspective, no provision is enforced with conditions that guarantee compliance through coercion. The application of customary sanctions is an attempt to reverse steps that fall outside the cosmic boundaries, ensuring that cosmic order is not disrupted. Therefore, customary sanctions are an attempt to restore a disturbed balance.

            In section X of Pandecten van het adatrecht it is explained that customary sanctions can be in the form of:[18]

a.       Compensation for immaterial losses in various forms such as forced marriage of girls who have been defiled;

b.      Payment of customary money to the affected person, in the form of a sacred object as compensation for spiritual losses;

c.       A celebration to cleanse the community from supernatural impurities;

d.      Cover of shame, apology;

e.       Various forms of corporal punishment up to the death penalty;

f.       Exile from society and placing people outside the legal system.

            In such cases, the main element of restorative justice, namely the willingness and participation of the victim, perpetrator and community in making amends for the crime that occurred, is also a characteristic of customary law.

4.        Keadilan Restoratifin Maluku Culture

Despite the great diversity they possess, the Maluku people are still able to integrate and embrace their existence within a collective consciousness and self-concept as brothers and sisters.  Brothers embracing and uniting differences and forming ourselves as a united society despite our differences. Brothers is the original habitat of the Maluku people, because every Maluku community is a supporter of the community of people who are brothers. They operationalize the essence of their lives in their culture. hidop orang basudara as an original character. Spirit hidop orang basudara This is specifically seen in various forms of customary kinship and traditional traditions in the Maluku archipelago. Cultural philosophy Pela Gandong in Central Maluku as a macro sub-zone of Maluku culture, cultural philosophy Ain Ni Ain (one culture has one) in the Kei Islands, Southeast Maluku, cultural philosophy Kai-Wai (younger sibling culture) on Buru Island, the philosophy of Ursia-Urlim Culture (traditional kinship of groups from two ancestral siblings) Ursia-Urlima in the Aru islands, cultural philosophy Duan Lolat (kinship between the group giving the virgin and the group receiving the virgin) in the Tanimbar Islands, as well as culture Sioli Lieta Inanara (culture of living well between father, mother, brothers and sisters) in Southwest Maluku.

The culture of the Maluku people who live as relatives This is local wisdom in various regions of Maluku that can be the main choice, which needs to be explored and developed in resolving legal issues, including domestic violence, because restorative justice is actually rooted in the local wisdom of Indonesian society which has a culture of deliberation to reach consensus, both through traditional meetings and in "gatherings of brothers" events.

In the Tanimbar Islands, the material source of restorative justice is found in the Duan Lolat culture, which embodies the norms and values ​​of the Tanimbar Islands' traditions that govern the ongoing "blood relationship" of a husband/man and wife/woman. The Duan Lolat relationship conveys the following meaning:[19] 

1.    Social solidarity grows from kinship, which emerges through blood ties (blood as a symbol of life) among women. From the religious perspective, it is seen in the form of traditional solidarity, namely love, service, sacrifice, and the value of giving life, both in hardship and joy, shared.

2.    The dimension of alliance in the family, because the blood drawn in an alliance from two families becomes one. Marriage between a man and a woman draws both parties into a close family bond that has been passed down for generations, so that a relationship of mutual responsibility is established, cooperation is created in living together.

3.    The value of giving life. Duan is responsible for Lolat, which is an obligation. Duan protects life, and also gives life. Each value must sacrifice other values, Duan is responsible for Lolat until death. Maintaining and respecting the value of life, Lolat is obliged to protect the life that comes from or is given by Duan, and vice versa.

            In general, the dispute resolution process in Duan Lolat culture, whether a problem or crime occurs, regardless of its severity, is resolved peacefully by traditional elders or Duan, representing both the victim and the perpetrator. After each party gathers, a traditional ceremony is held, beginning with a prakatan (prakatan) and drinking sopi (a drink of sopi). The dispute is then discussed to identify the root of the problem. After the process continues, an agreement is reached that both parties are satisfied and comfortable with, and the consequences of the discussion are implemented.

            Besides Duan Lolat, sources of restorative justice are also found in culture Kalwedothat have values sosial daily life, as well as sacred religious values ​​that guarantee eternal safety, peace, and happiness in living together as brothers and sisters. Kalwedo culture unites the people of the Babar Islands and Southwest Maluku in a traditional kinship, that uniting the community into a house of prayer and a traditional palace that belongs to all. Value Kalwedo is implemented in cross-family traditional greetings island and country, that is: inanara ama yali (sister and brother). Inanara ama yali describes the virtues of life and heirloom the humanity of the lives of the MBD community, which includes the totality heart, soul, thought and behavior. The Kalwedo values ​​bind the bonds of brotherhood in society through living traditions. Niolilieta/hiolilieta/siolilieta (living side by side well). The MBD community's living traditions were formed to share and help each other in terms of potential. alam, sosial, cultureand Economic inherited by the nature of the MBD archipelago.

            The value of restorative justice in Central Maluku,  found in Pela culture that is a form of brotherhood built by one country with one or several other countries in the form of Pela Gandong, Pela Tampa Sirih, which has several basic rules that must be obeyed by the citizens of a country bound in a pela relationship. This pela bond then inspired the people of Maluku to consider others as brothers, so that when conflicts arise, the Pela spirit will become a role model in resolving them.

5.    The Existence of Customary Courts in the Indonesian Legal System

            The existence of customary criminal law and all that it encompasses must be placed proportionally within the context of the Indonesian legal system. This is crucial because the law enforcement process, which involves an authorized institution, must be legitimized under positive law. In the context of a state based on the rule of law, the Indonesian constitution guarantees equality of every citizen before the law., as one of the fundamental principles required in national and state life. Based on this principle, every citizen has the right to legal remedies and redress for any rights violations they suffer, as well as to a just legal resolution. The state, in this regard, has an obligation to ensure the fulfillment of these rights. Based on these citizen rights, it is fundamental to guarantee access to justice, which is a constitutional guarantee of human rights.

            In fact, it must be acknowledged that state institutions remain limited in their ability to provide swift and affordable access to justice for the public, particularly in light of limited access to justice through formal courts. This often presents a barrier for poor and/or marginalized communities, or even indigenous communities, to resolve their problems through formal institutions.

            On the other hand, in society, traditional judicial practices, one of which is customary justice, have been passed down through generations. To strengthen access to justice, efforts are being encouraged to strengthen and utilize other alternatives for accessing justice outside of formal courts. One such idea is strengthening informal justice (informal justice) with its various variants such as mediation efforts (non-judicial) and the implementation of customary justice. With such contextual realities, the question to be examined is: To what extent has the renewal of judicial power after 1998 (as revised to the Judicial Power Law in 1999, 2004, and 2009) provided opportunities and access to justice for indigenous communities and local/customary law enforcement institutions. There are several reasons why it is necessary to encourage non-litigation dispute resolution processes through customary justice in dispute resolution.

First, In Indonesia, the procedure for peaceful dispute resolution has long been used and is commonly used by Indonesian society.[20] This happens for several reasons, including:[21]

(a)Limited public access to the existing formal legal system;

(B)Traditional communities in isolated areas still have strong legal traditions based on their traditional laws to resolve legal problems that arise. This is a reality where traditions or custom (Customs) still apply in many places. This also reflects the reality that societal change sometimes clashes with territorial boundaries, and that this is also a reality where there are areas that are still 'sterile' in the application of formal legal systems.

(C)The type of problem solving offered by the formal legal system sometimes receives different views and is considered inadequate and does not fulfill the sense of justice of communities that still adhere to their own legal traditions;

(D)The inadequate infrastructure and resources of the formal legal system result in a lack of adaptability in absorbing the needs of the local community for a sense of justice.

Secondly,, in the majority of Indonesian society there is a tendency to resolve disputes peacefully. This method is recognized as effective in resolving disputes and conflicts. It can also eliminate feelings of resentment and contribute to creating security, order, and peace.

Third, The existence of customary courts is becoming increasingly important amidst a state that is not yet fully capable of providing formal case resolution services to remote villages. Furthermore, the capacity of formal courts is also strained due to a significant backlog of cases. For the record, data from the Indonesian Legal Institute Foundation (YLBHI) shows that "each year, 13 cases are submitted to the Supreme Court. This number must be resolved by 54 Supreme Court Justices, leaving behind 8 cases at the end of each year."[22]The large number of cases has placed a real burden on formal judicial institutions in providing access to justice for the public. Not to mention the relatively high costs. The community spends a large amount of money on formal legal proceedings, including transportation to the courthouse and paying for legal counsel to represent the parties. This heavy burden can certainly be reduced by allocating a larger portion to customary courts, allowing them to play a role in opening wider access to justice for the community. Conflict resolution typically uses universal theoretical approaches and adopts external approaches, resulting in the absence of sustainable solutions, ultimately leading to recurring conflicts that do not bring positive change to the community. Conflict resolution should be tailored to the context and setting in which the conflict occurs. In this case, a universal approach is actually irrelevant in addressing conflict issues. Another form of conflict resolution approach that is often overlooked is local wisdom (local wisdom).

In a pluralistic society like Indonesia, there are many local wisdoms that have great potential in resolving conflicts to create peace, for example: Dalihan Natolu (Tapanuli), Rumah Betang (Central Kalimantan), Menyama Braya (Bali), Saling Jot and Saling Pelarangan (NTB), Siro yo Ingsun, Ingsun yo Siro (East Java), Alon-alon Asal Kelakon (Central Java/DI Yogyakarta), Basusun Sirih (Malay/Sumatra), and the Selupu Lebong Clan Customary Court (Bengkulu).

The initial concept regarding customary law communities had actually been discussed in the past and crystallized during the discussions in the BPUPKI session, 10-17 July 1945. When the 1945 Constitution was announced on 23 November 1945, efforts to recognize the existence of special regions were accommodated by the regulations in Article 18. It is explained that in the Republic of Indonesia there are approximately 250 zelfbesturende landschappen (or another term for autonomous regions) and volkgemeenschappen. The term used by the 1945 Constitution of the Republic of Indonesia (UUD 1945) refers to volkgemenschappen, not on rechtgemeenschappen, even so, it is clear that in the field, customary law, village, nagari and clan laws, as well as other legal associations, are found.

Because of this form of recognition (volkgemenschappen), in fact, it also has consequences for the recognition of the existence of a system or mechanism for resolving problems that has been used as a reference and basis for resolving them, namely a local system that can be in the form of customary justice. The history of the constitution also leads to a shift in the direction of thinking from its constitutional articles, especially based on the Constitution of the Republic of Indonesia (RIS 1949) and the Provisional Constitution (UUDS) 1950. Regulations regarding customary law communities can also be seen in the provisions that regulate the constitutional basis the implementation of customary law as stated in Article 146 paragraph (1) of the 1949 RIS Constitution and Article 104 paragraph (1) of the 1950 Provisional Constitution. Both articles state: "All court decisions must contain reasons and cite the statutory and customary rules that serve as the basis for making the decision." With this article, there is a shift from 'special regions' to 'special regions'. This means, it refers more to zelfbesturende landschappen, and does not include volkgemeenschappen. However, this concept was not maintained for long, because since the Presidential Decree of July 5, 1959, in addition to the initial formation of Soekarno's Guided Democracy, the constitution was returned to the 1945 Constitution. This means returning to the original concept at the beginning of the founding of the Indonesian state. Conceptually, it did not change again until the second amendment in 2000, which changed the formulation of Article 18, especially the addition of Article 18B paragraph (2), yaitu, "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, as regulated by law."

In addition, in the second amendment to Article 28I paragraph (3) of the 1945 Constitution, the concept of human rights was formulated which emphasizes the issue of cultural identity and traditional rights, “The cultural identity and rights of traditional communities are respected in line with the development of the times and civilization.” This article is closely related to the text of the fourth amendment, Article 32 paragraphs 1 and 2: "The state advances Indonesian national culture among world civilizations by guaranteeing the freedom of society to maintain and develop its cultural values."

If we look at the formulation of the two articles, state recognition encompasses both aspects of recognition, both of the legal community and the community community. Within this concept, it appears that there is a mixture of concepts, combining the concepts rechtgemeenschappen and volkgemeenschappen. Apart from that, one thing that is interesting when placed in the political context of the second amendment is that the discussion of the two articles shows the dimensions of recognition and respect from a human rights perspective.

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