Sunday, 15 December, 2013 | 11:24 WIB
Lilik Mulyadi: Adat Law must be integrated into State Law
TEMPO.CO, Jakarta -
Ideally, adat (customary) law should be considered as a main source of
state laws. The people's sense of justice can be fulfilled only if the
law originates from their own values. As such, "adat land conflicts,
which often occur, can be averted. Investors would also be happy because
it would mean legal certainty," said Lilik Mulyadi, who holds a
doctorate in law from Padjajaran University and the recently appointed
Chief Justice of the North Jakarta District Court.
Lilik teaches in a number of universities and conducted research on adat law in five Indonesian provinces. The Supreme Court is one of many state institutions that utilize the results of his research as a reference in forming state and adat law. Sadika Hamid dan Amanda Siddharta from Tempo English interviewed Lilik at his office in North Jakarta two weeks ago:
What is the position of adat law within Indonesia's legal system?
The Constitution recognizes it implicitly, but the state so far has not done anything to include it in our legal system. The adat dimension actually has often been accommodated in the practice of state law. According to the Supreme Court, a person who has been tried under adat law cannot be tried again in a state law. The integration of adat law into state law is something that is urgent.
How far has the government attempted to do that?
It already exists in the law on the courts, although it is not too clear. In determining a case, judges are required to look into the legal values and citizen's sense of justice. But the model remains unclear. Should the legal values come from adat law? In a way, the 2012 Criminal Code Bill is an attempt to harmonize the two legal systems in a formal but flexible legalistic way. But this Bill is not creating just an article but also a framework or a concept. To create a law originating from culture needs time. The problem is adat laws differ from region to region, complicating their integration into the state legal system. We should seek the common basis of each adat law first, and then integrate into the state law.
Why do you think the attempt has never progressed?
It depends on the government's politics and what it wants to achieve. Some people still think in terms of the old law. They say the law must be firm and hard, not based on adat law. Others feel that since Indonesians are pluralistic, although adat law is not written down, the reality is that it is obeyed. Just look at the legislators at the House of Representatives (DPR). Legal issues are discussed in Commission III, yet how many legal experts are there? Many often think only of improving the economy. They think that if adat law is integrated, investors won't come. Yet, the law should reign supreme, not the economy.
So how should conflicts involving adat land be resolved?
Three concepts could be applied. First, an independent adat court or tribunal. Like it or not this means developing and constructing the facilities and structure. Secondly, the adat court could be integrated with state courts. State judges must be trained to be knowledgeable about adat law. Thirdly, state judges could be accompanied by ad hoc judges on special cases. The second and third concepts are more pragmatic and efficient but the first concept is ideal. Furthermore, there must be a mapping which distinguishes adat land borders from those belonging to the state.
How should this mapping be done?
Each region must look at their own land history. This map will then be integrated in the state law through a process of legislation. A clear legal umbrella will appease the investors.
Lilik teaches in a number of universities and conducted research on adat law in five Indonesian provinces. The Supreme Court is one of many state institutions that utilize the results of his research as a reference in forming state and adat law. Sadika Hamid dan Amanda Siddharta from Tempo English interviewed Lilik at his office in North Jakarta two weeks ago:
What is the position of adat law within Indonesia's legal system?
The Constitution recognizes it implicitly, but the state so far has not done anything to include it in our legal system. The adat dimension actually has often been accommodated in the practice of state law. According to the Supreme Court, a person who has been tried under adat law cannot be tried again in a state law. The integration of adat law into state law is something that is urgent.
How far has the government attempted to do that?
It already exists in the law on the courts, although it is not too clear. In determining a case, judges are required to look into the legal values and citizen's sense of justice. But the model remains unclear. Should the legal values come from adat law? In a way, the 2012 Criminal Code Bill is an attempt to harmonize the two legal systems in a formal but flexible legalistic way. But this Bill is not creating just an article but also a framework or a concept. To create a law originating from culture needs time. The problem is adat laws differ from region to region, complicating their integration into the state legal system. We should seek the common basis of each adat law first, and then integrate into the state law.
Why do you think the attempt has never progressed?
It depends on the government's politics and what it wants to achieve. Some people still think in terms of the old law. They say the law must be firm and hard, not based on adat law. Others feel that since Indonesians are pluralistic, although adat law is not written down, the reality is that it is obeyed. Just look at the legislators at the House of Representatives (DPR). Legal issues are discussed in Commission III, yet how many legal experts are there? Many often think only of improving the economy. They think that if adat law is integrated, investors won't come. Yet, the law should reign supreme, not the economy.
So how should conflicts involving adat land be resolved?
Three concepts could be applied. First, an independent adat court or tribunal. Like it or not this means developing and constructing the facilities and structure. Secondly, the adat court could be integrated with state courts. State judges must be trained to be knowledgeable about adat law. Thirdly, state judges could be accompanied by ad hoc judges on special cases. The second and third concepts are more pragmatic and efficient but the first concept is ideal. Furthermore, there must be a mapping which distinguishes adat land borders from those belonging to the state.
How should this mapping be done?
Each region must look at their own land history. This map will then be integrated in the state law through a process of legislation. A clear legal umbrella will appease the investors.
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