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Access Control and Involvement of Women in Dispute Settlement by the Customary Court in Aceh

Authors:

Abstract

Settlement of customary disputes by customary courts in Aceh is regulated in Law Number11 of 2006 concerning the Government of Aceh and various other regulations under the law. Butthe role and involvement and authority of women in solving problems that occur in societythrough customary justice is not optimal in terms of access, roles and control. The reality is thatthe role of women in the customary law system is still in a subordinated, marginalized position,bound to patriarchal culture, even though legal development has equal access dimensions in therights and obligations between women and men which are regulated in the basic constitution ofthe 1945 Constitution. These objectives are to explain, what is the role of customary justice inAceh, how access, role and control of women in legal development in Aceh, the extent to whichadat court decisions are obeyed and have benefits in communities in Aceh Province. This writinguses a type of normative juridical research, The approach used through historical approaches,and conceptual approaches. The specification of descriptive analytical research is then analyzedbased on qualitative juridical, and presented in the form of description. Women must be legalsubjects who have the same rights and obligations that are actively involved in resolvingdisputes in adat courts. This effort is important because it facilitates the communication process,is very helpful and necessary especially for women as victims. Community compliance with judicial decisions is due to the influence of authority, position, social status, religion of customary judges. Keywords: Access control and involvement of Women, Aceh, Customary Court, DisputeSettlement
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Proceedings of International Conference on Law,
Environment, Culture and Globalization
Harmonization of Asean Law to Actualize
The Asean Economic Community
Bengkulu, 11-12 October 2018
Editor Team
Publisher :
Faculty of law
University of Bengkulu
iv
Proceedings of International Conference on Law,
Environment, Culture and Globalization
Harmonization of Asean Law to Actualize
The Asean Economic Community
Committee :
Prof. Dr. Herawan, S.H.,M.S
Dr. Emelia Kontesa, S.H.,M.Hum
Dr. Tito Sofyan, S.H.,M.S
Dr. Nur Sulistyo B. Ambarini, S.H.,M.Hum
Helda Rahmasari, S.H.,M.H.
Ema Septaria, S.H.,M.H.
Rahma Fitri, S.H.,M.H
Stevri Iskandar, S.H.,M.H
Arini Azka Mutia, S.H.,M.H
Lentiara Putri, S.H.,M.H.
Tri Andika, S.H.,M.H
Marduanita, S.H.
Susi Ramadhani,S.H.,M.H
Herlita Eryke, S.H.,M.H.
Ria Anggraeni Utami, S.H.,M.H
Wulandari, S.H.,M.H
Yagie Sagita Putra, S.H.,M.H.
Drs. Akhmad Haqikuddin
Habelleo Chozizar, S.M
Andrian Setiawan, S.T
Rati Dwi Sanitasari, S.T
Reviewer :
Dr. Zunnuraini, S.H.,M.H
Dr. Agus Lanini, S.H.,M.Hum
Dr. Ni Ketut Supasti Dharmawan, S.H.,M.Hum., LLM
Dr. Yeni Widowaty, S.H.,M.Hum
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Editor :
Arini Azka Mutia, S.H.,M.H.
Rahma Fitri, S.H.,M.H.
Lentiara Putri, S.H.,M.H
Stevri Iskandar, S.H.,M.H.
Cover and Design Layout :
Andrian Setiawan, S.T.
Publisher :
Faculty of Law, University of Bengkulu
Contact Address Editor :
Jalan WR. Supratman Kandang Limun Bengkulu
Telp (0736) 20653
Email : fh@unib.ac.id
First Edition, Oktober 2018
All Rights Reserved
No part of this publication may be reproduced,
Stored in a retrieval system, or transmitted
In any form or by any means, electronic, mechanical,
Photocopying, or otherwise,
Without the prior permission of the publisher.
vi
INTRODUCTION
This book contains the proceedings of International Conference on Law,
Environment, Culture, and Globalization which was held in Bengkulu, 11th-
12th October 20181st.
The main objective of this conference is to bring together academics,
researchers, practitioners, students, and other group whose interests are in
the issues of Environment, Culture and Globalization within the framework of
law to share their work and experiences in relation to the topics. In addition to
circulate thinking and study findings, this conference is also intended to
strengthen networking and collaboration among participants.
The conference had 4 invited speakers coming from Thailand, Malaysia and
Indonesia who spoke different issues challenging ASEAN in near future. Dr.
Zainal Amin from Faculty of Law University of Utara Malaysia discussed about
Harmonization of ASEAN Laws on Protection of Migrant Workers Against
Human Trafficking. Prof. Amnat Wongbandit from Faculty of Law Thamassat
Thailand discussed about Harmonization of ASEAN Law in Solving
Environmental Issues focusing on Environmental Impact Assessment Law In
Thailand. Dr. Ukrisdh Musicpunth from Faculty of Law Thaksin University,
Thailand discussed about Harmonization of ASEAN Investment Laws: Any
Possibility Toward Recognition and Enforcement of Foreign Judgments in
ASEAN Member States. Dr. Candra Irawan, S.H.,M.Hum from Faculty of Law
University of Bengkulu, Indonesia discussed about Legal Harmonization in
ASEAN Economic Communities (Looking for the best legal harmonization
model).
There were totally 40 papers selected for oral presentation from 55 papers
received. Every submitted paper went through a blind review process. And
after being reviewed the papers were sent back to the authors and they had to
give feedback to the reviews before they presented their papers.
On the conference day, the committee categorized the presenters into 8
chambers based on topics of the papers. They were Criminal Law,
Environment Law, Private Law, Customary Law, Globalization, Constitutional
Law, and Administration Law. Each chamber was led by a chair person.
After the conference, the committee still give chances to the authors to revise
their papers based on views or ideas they recorded during discussion before
the papers finally published in this book.
As the organizer, we would like to thank all parties involved in ICLECG for
every contributions and willingness to make this conference run well and well
organized.
Dean,
Prof. Dr. Herawan S, SH., M.S
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Table of Contents
Cover .................................................................................................. i
Introduction ....................................................................................... iv
Table of Contents ................................................................................. v
Opening Speech of the Dean Faculty of Law, Bengkulu of University ... vi
Opening Speech of Governor Bengkulu .............................................. vii
Keynote Speaker
Harmonization of ASEAN Laws on Protection of Migrant Workers Against
Human Trafficking ............................................................................... 1
Zainal Amin Ayub, Zuryati Mohammed Yusoof
Harmonization of ASEAN Law in Solving Environmental Issues Focusing on
Environmental Impact Assessment Law in Thailand ........................... 14
Amnat Wongbandit
Harmonization of ASEAN Investment Laws: any Possibility toward Recognition
and Enforcement of Foreign Judgments in ASEAN Member States ..... 39
U-Krisdh Musicpunth
Legal Harmonization in Asean Economic Communities (Looking for the Best
Legal Harmonization Model) ............................................................... 49
Candra Irawan
Participants
Peatland Restoration and Transboundary Haze Pollution: Law and Institutional
Change in Indonesia .......................................................................... 59
Myrna A. Safitri
The Active Role of The Community Active Role inIntegrated Watershed
Management Based on Law Number 32 of 2009 Concerning Environmental
Protection And Management .............................................................. 71
AL Sentot Sudarwanto, Yohanes Suhardin
Study of the Government Legal Action in the Procurement of Land for General
Interest Development ......................................................................... 86
Shinta Anggraini, Emelia Kontesa
Implementation of Mandatory Labor Report Policy in Distric/Cities in Central
Java ................................................................................................ 102
Endah Pujiastuti, A. Heru Nuswanto
The role of the community and Bengkulu provincial national narcotics agency
in the rehabilitation of drug addicts in the city of Bengkulu ............. 114
Antroy Royan Adyan
Implementation on Settlement of Commercial Disputes in Indonesia and Asean
Countries ......................................................................................... 131
Jafar Sidiq, Bambang Hariyanto
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The Indonesia Contemporary Corruption Prevention Policy in the Procurement
of Goods and Services ...................................................................... 175
Herlambang
Application of Islamic Law in Handling LGBT (ASEAN Religius Social
Harmonization) ................................................................................ 204
Murry Darmoko
Legal Protection Towards Indonesian Traditional Foods and Drinks . 215
Endang Purwaningsih, Muslikh, Nelly Ulfah, Nurul Fajri
Access Control and Involvement of Women in Dispute Settlement by the
Customary Court in Aceh ................................................................. 229
Sri Walny Rahayu
The Role of ASEAN in the Law of World Peace Diplomacy for Palestinian
Independence .................................................................................. 258
Murry Darmoko
The Model of Teaching Materials for Indonesia Communicative Writing in
Teaching Language for Law Faculty ................................................. 268
Syanurdin, Laily Ratna, Ashibly
Opportunities for The Enforcement of Rejang Customary Law in Forest
Protection After Amendment Of The Constitution 1945 .................... 282
M. Yamani
Re Orientation on Curriculum of Law Faculty or Law School in Indonesia :
Arbitration Law Studies ................................................................... 295
Jafar sidik, Bambang Hariyanto
Juridical Analysis Of Decision Number : 60/Pid.Sus.Tpk/2016/Pn.Bgl 16
Februari 2017 Concerning Corporate Criminal Liability In The Case Of Money
Laundering ...................................................................................... 307
Eka Ilham Ferdiady
Restorative Justice as Alternative in the Criminal Solution Of Criminal In the
Influence System In Indonesia ......................................................... 319
Henny Saida
Application of Assessment for The Victims of Narcotics Abuse in Investigation
Level at Musi Rawas Resort Police Station 2018 ............................... 340
Elisyah Marsiah
Legal Protection to the Brands of Micro Small and Medium Enterprises in
Bengkulu City .................................................................................. 357
Radi Meydiansyah
Juridical Basis of Society Refuses Corruption (MAKI) in proposing pretrial to
the Century Bank case .................................................................... 371
Abi Pujangga Putra
Implementation fo Article 8 Paragraph 1 of Law No. 10 Of 2008 about General
Election ........................................................................................... 379
Nanik Mandasari
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Access Control and Involvement of Women
in Dispute Settlement by the Customary Court
in Aceh
Sri Walny Rahayu
Faculty of Law, Syiah Kuala University, Indonesia
E-mail: ayoe_armans@unsyiah.ac.id
Abstract
Settlement of customary disputes by customary courts in Aceh is regulated in Law Number
11 of 2006 concerning the Government of Aceh and various other regulations under the law. But
the role and involvement and authority of women in solving problems that occur in society
through customary justice is not optimal in terms of access, roles and control. The reality is that
the role of women in the customary law system is still in a subordinated, marginalized position,
bound to patriarchal culture, even though legal development has equal access dimensions in the
rights and obligations between women and men which are regulated in the basic constitution of
the 1945 Constitution. These objectives are to explain, what is the role of customary justice in
Aceh, how access, role and control of women in legal development in Aceh, the extent to which
adat court decisions are obeyed and have benefits in communities in Aceh Province. This writing
uses a type of normative juridical research, The approach used through historical approaches,
and conceptual approaches. The specification of descriptive analytical research is then analyzed
based on qualitative juridical, and presented in the form of description. Women must be legal
subjects who have the same rights and obligations that are actively involved in resolving
disputes in adat courts. This effort is important because it facilitates the communication process,
is very helpful and necessary especially for women as victims. Community compliance with
judicial decisions is due to the influence of authority, position, social status, religion of customary
judges.
Keywords: Access control and involvement of Women, Aceh, Customary Court, Dispute
Settlement
Introduction
Legal development cannot be separated from the history of a nation, has
a sustainable concept and never stops. Law development and enforcement
does not only matter of law enforcement officers (police, prosecutors, or
lawyers) but the last related institution also relies on its own justice seekers.
For this reason, it is necessary to increase awareness that litigation is to
uphold law and justice, not solely to win cases.
Legal development must be understood and developed as a single system,
where there are elements, institutions, elements of legal material and elements
of legal culture. National law is a unity of law, which is built to achieve the
goals of the State, which is derived from the philosophy and constitution of the
State. Thus according to Ahmad Ramli (2008: 2), in the unity of the law
contains the basic objectives of the State, and the legal aspirations of the State
of Indonesia. All discourses about national law to be built must refer to both.
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Legal reform efforts depend heavily on constitutional reform.
The 1945 Constitution Amendment was conducted four times from 1999-
2002. This change is a major responsibility for the development of national law
towards the ideals of rule of law, which is regulated by Article 1 paragraph (3)
of the 1945 Constitution, states that Indonesia is a country based on law. The
second Amendment of the 1945 Constitution conducted in 2000 brought
important changes in the development of national law. Especially with regard
to the authority of Customary Court in Aceh.
The basis of the privileges and specificities of Aceh as a Province, refers to
Article 18B paragraph (1) of the 1945 Constitution, which is stated, the state
recognizes and respects specific/special government units, which must be
determined by constitution. Article 18B paragraph (1) of the 1945 Constitution
constitutes the basis for the birth of Law Number 44 of 1999 concerning the
Implementation of the Privileges of the Aceh Special Region Province (Privileged
Law of the Special Region of Aceh Province). The consequence of the Special
Privileges Act of the Aceh Special Region Province, led to the enactment of legal
pluralism in Aceh, namely the state law system (state law) which was enacted
by unification in Indonesia. Islamic Law and Customary Law. The application
of these three legal systems is practiced simultaneously. (Sri Walny Rahayu,
2016: 82, and Sri Walny Rahayu, 2018: 476).
Other important changes with regard to the development of customary
law, contained in Article 18B paragraph (2) and Article 28I paragraph (3) of the
1945 Constitution, stated, the State recognizes and respects Customary Law
community units and their traditional rights as long as they are alive and in
accordance with the development of society and the principle of the Republic of
Indonesia, in line with the development of times and civilizations. But
according to (Sri Walny Rahayu, 2014: 111-114), it must be recognized and
respected, not only for indigenous people and their traditional rights. The state
must also recognize and respect the power to prosecute indigenous peoples in
the form of customary courts. Unfortunately, customary courts in Indonesia
have not been regulated in Indonesia's national legal system.
Customary Court is also not regulated in Law No. 48 of 2009 concerning
Judicial Power. However, Article 24 paragraph (3) of the 1945 Constitution,
stated "other bodies whose functions are related to judicial power are regulated
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in law." If analyzed and scrutinized, in fact implicitly the authority to
adjudicate customary courts outside the state court, is opened by the
regulation room by Article 24 paragraph (3) of the 1945 Constitution, which
must be regulated by law.
Based on the provisions of Article 18B paragraph (1) and Article 24
paragraph (3) of the 1945 Constitution, Aceh Province determines, Customary
Institutions in Aceh, can function and have the authority as Customary
Courts. This is regulated by Article 98 of Law Number 11 of 2006 (Law on the
Government of Aceh). he implementation provisions of Article 98 of the Law on
the Governing of Aceh are regulated by Qanun Number 9 of 2008 concerning
the Development of Indigenous Life and Indigenous Culture. Qanun Number
10 of 2008 concerning Customary Institutions. Governor Regulation Number
60 of 2013 concerning Implementation of Dispute Settlement/Indigenous
Disputes. Customary Courts in Aceh Province have the authority to complete
18 types of petty crimes.
Article 24 paragraph (3) of the 1945 Constitution is elaborated through
Article 5 paragraph (1) and Article 50 paragraph (1) of Law Number 48 of 2009.
Related to the context of life values that develop in the community, it is stated
that constitutional judges and judges must explore, follow, and understand
the legal values and sense of justice that lives in society (Article 5 paragraph
(1) of Law No. 48 of 2009). Therefore Article 5 paragraph (1) and Article 50
paragraph (1) of Law No. 48 of 2009, is the basis for a judge's decision, when
making a decision, it is mandatory to explore and understand the legal value
contained in the community in Indonesia. A living source of law is one source
that can be used as a basis for assessing the judge when issuing his decision.
Norms and patterns of dispute resolution through customary courts in
Aceh, come from rules that live in society such as life views, philosophy,
experience and character and culture. In Aceh, patterns of social behavior are
described as Adat ngon agama lagee zat ngon sifeut”. This means that the
reflection of Islamic religion is reflected in the culture of Acehnese in their
social life. Based on Islam, as a monotheistic religion, asserting that power,
strength and greatness belong only to God. God is the absolute authority over
all the existence of the universe. Based on this theological view, Islam denies
human superiority over other human beings on the basis of any cultural
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identity.
Aceh Province has a customary institution, which functions as an
customary court, has the authority to prosecute petty crimes, as part of
restorative justice that can be done in Indonesia, (Sri Walny Rahayu, 2016:
88). However, the fast-moving legal developments in Aceh Province still need to
be tested for access to women's involvement in the constitutional aspects as
regulated by the Aceh Governance Law.
The above phenomenon becomes a perspective, in a context that moves
from social facts that occur in Aceh Province. Women, still being sexually
subordinated, marginalized. Patriarchal culture, still in progress today in
Indonesia, including in Aceh Province. When the inclusion of legal instruments
promotes women's human rights and gender justice into the social arena of
people's lives and into the regulations in Indonesia, various perspectives meet,
with various rules that have existed before, which also have their own rules
and sanctions. Rules and sanctions come from religion, habits, habits or
influences from global developments. Including the involvement of women in
customary courts in Aceh. The purpose of writing a paper is to explain how the
role of the community includes access, roles and control of women in legal
development in Aceh. How is the authority of women in customary institutions
and customary courts, as well as the extent to which customary court
decisions are obeyed and beneficial for the people of Aceh.
Method
This writing uses a type of normative juridical research, namely the main
data comes from secondary data, which comes from the primary legal
materials of legislation relating to the writing studied, secondary legal
materials in the form of books, journals, articles and tertiary legal materials
originating from website sources and dictionaries. The approach used through
historical approaches, and conceptual approaches. The specification of
descriptive analytical research is then analyzed based on qualitative juridical,
and presented in the form of description.
Analysis and Discussion
Study Literature
1. Norms for Dispute Settlement through Customary Courts
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Norms are models or standards, that can be accepted by the community.
The standard believed by the public is a measure of good or bad value. Bryan
A. Garner, in Black Law (1161-1162) limits the norms of norms as follows, ―A
model or standard accepted (voluntarily or involuntarily) by society or other
large group against which society judges someone or something. An example of
norm is the standard for right or wrong behavior: an actual or set standard
determined by the typical or most behavior of a group‖.
Norms for resolving customary law community disputes based on the
philosophy of life adopted by the community. Customary law as a legal system,
has a pattern of dispute resolution that was born, composed and built on
values, rules and norms agreed upon and believed to be true by the
community. The norms and rules that develop are existence and, cannot be
separated from the community.
2. Customary Dispute Settlement Pattern
The pattern of dispute resolution in the Customary Court, has strong
relevance to the character, values, and dynamics that develop within
indigenous peoples. (Syahrizal, 2009: 235). The pattern of indigenous peoples'
settlements is based on the life view of the philosophy of human existence.
Humans are creatures who always live together as their nature. In the
customary view, humans are not seen as individual beings, but as communal
beings. Human existence cannot be separated from groups where the parties
together carry out their lives. (Moh. Koesnoe, 1976: 61-62). This view of life is
called a communal view that is contrary to the views of individuals.
In the modern era, the individualization process influences customary law
communities, so that the modernization that must occur remains based on the
collective soul and the spirit of cooperation. Customary Law Society translates
"disputes" not only for civil cases, which focus on individual interests, but
disputes are also used for criminal acts or crimes or violations. The meaning of
disputes for indigenous peoples is aimed at social imbalances. That is, if there
are disputes that occur in the community, there will be an imbalance in the
life of indigenous peoples. Therefore, the community resolves disputes through
the mechanism of Customary Law. (Bushar Muhammad, 2002: 62-63). The
tradition of resolving disputes within the Customary Law community tends to
use traditional patterns or also called family patterns. This pattern is applied
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not only to civil but also criminal disputes. This is because customary law
does not separate the scope of public law from private law.
Hilman Hadikusuma (2001: 176-177), stated that the settlement of
business disputes between each party in Customary Law was resolved by the
disputing parties themselves. Other parties who provide assistance such as,
relatives, neighbors are considered as liaisons and someone appointed as
mediator in resolving disputes. Places and ways to solve them can be done
anywhere agreed by both parties. Places and methods of settlement are not
bound by cultural customs rules, the importance of consensus is fair and
peaceful.
Settlement of disputes with traditional patterns does not mean that there
is no compensation or punishment for violators of customary law. Penalties
are still applied both in the form of physical punishment and property
compensation. The application of punishment depends largely on the type and
severity of the dispute that occurs between the parties. The essence of
resolving disputes in Customary Law is, to realize peace in a comprehensive
sense, not only for parties or perpetrators and victims, but for peace for the
community as a whole. Therefore, the approach used is a persuasive approach
to resolve disputes, using indigenous and religious languages, so that there is
awareness from the parties that there is no meaning in life in the world, if
there are disputes and actions that harm others. The purpose of resolving
disputes in Customary Law is the realization of permanent peace.
Settlement based on the values, nature, characteristics and
characteristics of the community. This philosophy is very important, to
understand decisions that are considered by indigenous holders in their
disputes. Philosophical considerations carried out are very important, can
measure the level of justice, peace, sacrifice and welfare that will be felt by
indigenous peoples. (Hilman Hadi Kesuma, 2001: 242-243). Suyud Margono
further explained that, disputes through consensus agreements, resolving
certain disputes also build, protect and support indigenous peoples so that
they last forever or continuously. (Suyud Margono, 2010: 2).
Settlement of disputes through the mechanism of Customary Court, can
be done through deliberations that take the form of mediation, negotiation,
facilitation, and arbitration. The Four of theses models of dispute resolution
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are often practiced, by indigenous peoples in resolving their disputes.
Traditional leaders carry out their functions as mediators, facilitators,
negotiators and arbitrators. In practice, traditional leaders in general use this
approach together, especially in resolving personal and public disputes.
Discussion
1. The term customary law and custom
The history of legislation in Indonesia distinguishes between customary
law and customs. That is, Customary Law is not the same as habit. Customs
are recognized in constitutional law in Indonesia. Customary law is outside
constitutional, but the spirit of law formation in Indonesia must be based on
Customary Law. The term customary law has long been known in Indonesia.
For example, the power of Sultan Iskandar Muda (1607-1636) Aceh
Darussalam who ordered the creation of the Meukuta Alam Law, the term
Customary Law was used. (Sri Walny Rahayu: 2014).
The term customary law is clearly written in the Book of the Law of
Safinatul Hukkam fi Takhlisil Khassam (the Ark of Judges in resolving all
cruel people) written by Jalaluddin bin Syech Muhammad Kamaluddin Kadhi
son of the Trussan Khatib State in the orders of Sultan Alaidin Johan Syah
(1781-1795). In the opening of the procedural law, the judge examined the
case, must pay attention to Syarak Law, Customary Law, Customary and
Reusam. In the 17th century in Aceh, customary law was used, when the main
law, which are used by the people of Aceh, namely Islamic law (derived from
the Al -Quran, al-Hadith, ijma' and qiyash), did not clearly set the disputed
norms. theoretical custom (adah, urf) has never been an official source of
Islamic Law. In practice, customs are often included in one of the legal
references. Customs in Aceh, must not conflict with the spirit of Islam, which
is contained in the Al-Qur'an and al-Hadith, (Amirul Hadi, 2010: 173).
Customs that have legal character in Aceh include royal and written laws.
The written form of the regulation called sarakata (royal decree) is the main
form of royal customs (royal customs). The term adat is used in sarakata or
more popularly referred to as the Meukuta Alam Adat, which is a royal rule
made by Sultan Iskandar Muda. At that time adat played an important role in
the practice of customary justice. Adat is meaningful in traditional practices of
customary justice and is a custom of the royal custom both in written form
202
(sarakata) and not. Therefore, the sultan in Aceh, besides the ruler who was
the central figure of the kingdom, was also considered the lawmaker and the
highest judge who applied the customs of the kingdom (royal custom), in
Amirul Hadi, (2010: 174-190).
Snouck Hurgronje first conducted a systematic study that used the
adatrecht term for Customary Law when conducting research in Aceh (1891-
1892). Snouck Hurgronje understood customs as custom (custom) and
customary law, with customary emphasis being more used than shari'ah
which is known as law. Customary forms that have legal consequences are
referred to as Customary Law.
2. Customary Law in Aceh in Indonesia Legal System
Customary law in Indonesia until the 14th century grew in the
atmosphere of their respective Customary Law systems. For example, the
people of Aceh, have their own customary law system with principles that are
considered right in the area. The same thing happened to Minangkabau,
Batak, South Sulawesi, Java and others. The similarity of the customary law
system for indigenous peoples is the communality and unwritten nature.
a. Aceh Darussalam Kingdom
Islam entered the archipelago at the end of the 12th century, beginning in
Aceh, brought by Arab and Indian traders where people had embraced
Hinduism, Buddhism and other beliefs. Islam becomes a religion that
influences the system of Customary Law in Aceh as an alternative solution to
problems in everyday community relations (Hilman Hadikusuma, 2003: 53-68,
and Otje Salman Soemadiningrat, 2002: 67-70). The history of customary law
in Indonesia cannot be separated from the role of Islamic law. Indonesia has
the largest adherents of Islam in the world. Thus, customary law in Indonesia
absorbs elements of Islamic teachings. Customary Law Configuration is
influenced by Islamic teachings, because of 2 (two) factors, namely:
1) Islam enters the coast of Sumatra, which is a strategic place to connect
with the outside world. Coastal communities at that time tended to join in
every social tradition that developed in their territory, so it was not difficult
for preachers / scholars to teach Islamic teachings. The Ulama eliminates
social stratification, which is taught by Hinduism, and applies in the
203
community at that time;
2) Islam is able to accommodate all other belief systems that develop in coastal
communities. Islam enters through the Indian state, the majority of them
are Hindus, so the accommodative possibilities of Hinduism teachings are
unavoidable. Thus, it is not too difficult for Sufis to internalize the values of
Islamic teachings to local people who have other beliefs.
Century XII stood 2 (two) small kingdoms in Aceh, Peureulak (read:
Perlak) and Pasai. The Peureulak Sultanate was located to the east of
Samudera Pasai, which was founded by an Arab trader, who married the
daughter of Meurah Peureulak and gave birth to the first Sultan of Peureulak,
namely Sayid Abdul Aziz with the title Sultan Alaiddin Syah (1161-1186). The
government system in Peureulak is based on the teachings of Islam. The
previous Peureulak kingdom was a Hindu kingdom. After King Peureulak was
led by Said Abdul Aziz, because of his father's marriage to one of King
Peureulak's daughters, "Meurah Peureulak", the Peurelak kingdom was an
Islamic kingdom. (Slamet Muljana, 1968: 134). Peureulak Sultanate stood for
83 years. In 1243, the Peureulak Sultanate joined the Samudra Pasai
Sultanate, ruled by Malikul Zahir. The merger of the Sultanate of Pereulak and
the Pasai Kingdom, caused the Kingdom of Aceh Darussalam to implement a
system of government based on Islamic teachings.
b. Islamic Teachings adopted by the Customary Law System
in Aceh
The Aceh Darussalam Government has known the smallest territorial
form, namely Gampong (village), which has a place of worship called
Meunasah, which is led by Keuchik or Geuchik. In his daily activities the
Keuchik was assisted by a spiritual advisor (Qadhi) commonly called Teungku
Meunasah and the village elders (Ureung Tuha). Gampong unity under Mukim
is led by an Imeum Mukim, serving as a leader (imam) in a mosque. The
mukim-mukim unit is under the Nanggroe (state) led by a Uleebalang. The title
of Ulebalang was originally a blessing from the Sultan to the appointed local
ruler. Authorities were given mandate as military leaders in their respective
jurisdictions (Hurgronje Snouck, C, 1985: 4).
During the reign of Nakiatuddin Syah (1675-21678), government activities
were concentrated in the royal capital, which supervised three sagi (Lhee
204
Sagoe), namely sagi 22, sagi 25 and Sagi 26. Each sagi was led by Ulebalang
(Teuku or Chik) who had the authority to arrange some mukim and gampong.
Islamic influence in the legal system of the government of Sultan Iskandar
Muda (1607-1636), among others, is as follows:
1) The implementation of government administration uses Arabic and Arabic-
Malay writing, with a sultanate stamp;
2) Foreign vessels and ships from neighbouring countries entering the port of
Aceh must comply with the rules of migration, customs, and security that
have been determined. Any violations that occur are carried out in
accordance with the law in Aceh;
3) Legal regulations based on Islamic Law and Customary Law, with the
threat of fine, imprisonment, hand-cutting law, exile law and death
penalty;
4) The existence of a customary law book, which contains Islamic teachings
called "The Book of Meukuta Alam". This Book of Law, applies not only in
the territory of the Kingdom of Aceh, but also used by the Sultanate of
Brunei in North Kalimantan;
5) The existence of financial economic rules and business activities, such as
customs regulations, domestic and foreign trade traffic, industrial
company regulations, handicrafts (weaving, gold, silver, copper) mining
large shipyard companies, barges and various types of weapons (rifles and
cannons);
6) The presence of army troops consisting of male soldiers and female army
divisions called "Keumala Cahaya".
Iskandar Muda died, the Aceh sultanate was ruled by Sultan Alaiddin
Muhammad Johansyah (1781-1795). This Sultan ordered Jalaluddin ben
Syech Muhammad Lizard Muhammad Kamaluddin Putra to Khatib in the land
of Trussan in 1533 AH, to write a legal book called "Safinatul Hukkam fi
Takhlisul Khassam" (ark for all Judges in resolving cases). This book regulates
formal procedural law for Judges, to resolve criminal or civil cases in Aceh
Darussalam.
The Book of Safinatul Hukkam fi Takhlisul Khassam consists of an
Introduction, called: Mukaddimah, which is a source of law. Mukaddimah
consists of Syarak Law, Customary Law, Custom and Reusam. The
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Mukaddimah also regulates the position and duties of judges, kings and
kingdoms, the relationship between the king and the people, the judiciary, the
court case, the prosecutor and the defendant, the plaintiff and the defendant,
witnesses and evidence. The Mukaddimah systematics consists of Chapter I,
describes the law of commerce and the settlement of commercial cases.
Chapter II describes family law, marriage and divorce. Chapter III explains
criminal law, threat of punishment, and inheritance law.
Islam entered Indonesia, causing consequences in several regions in
Indonesia. this condition is evidenced by the acceptance of Islamic teachings
into their customs and customary law. this happened in areas such as Aceh,
Banten, South Sulawesi. The regions that continue to maintain the
authenticity of their customs, without being influenced by Islamic teachings
such as Nias, Mentawai, Toraja, Asmat. Areas that maintain the original
nature of Hinduism are found in Balinese indigenous communities.
due to Portuguese and Dutch colonization, customary law in several
regions in Indonesia was influenced by the teachings of the colonial religion.
This happened to the original Batak tribe, also found in North Sulawesi,
Maluku, Flores. The area, initially the customary law was influenced by
Hinduism and Islam. However, due to colonialism, the teachings of
Christianity and Catholicism, entering and influencing into Customary Law is
the area.
3. Structure of the Aceh Society, the Source of Customary Law and
Customary Institutional Relations
Acehnese indigenous people have kinship including differences in gender,
age, and status in the family which reflect the behavior of interaction between
family members. The community structure is as follows:
a. Ordinary People, which in Acehnese terms are called Ureung Le (ordinary
people). This group is the majority group that does not have social status.
b. People who have a lot of assets are hard workers who develop their
economies so they are rich and have their own groups in the structure of
society in Aceh. This group often acts as a contributor to funds for social
problems, religion;
c. Ulama, who are knowledgeable and educated in the field of Islamic religion
and recognized by the community, are called Teungku. Teungku has the
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role of teaching and fostering aqidah and morals;
d. The nobles, including the descendants of the Sultan of Aceh who had the
title "Tuanku" came from "Uleebalang" with the title "Teuku" (for men) and
"Cut" (for women).
The ethnicity of the Acehnese community consists of several tribes. Each
tribe has their own culture, language and mindset as follows:
a Majority of Aceh's population, almost in all Kab / Kota in Aceh Province,
especially in Aceh Besar District, Banda Aceh City, and Pidie District. The
language used is Aceh Language;
b. The aneuk jamee tribe is in the Regencies of Aceh Barat Daya and Aceh
Selatan. Language used by Aneuk Jamee Language:
c. The Alas tribe is part of the Southeast Aceh District. Language used in
Alas;
d. The Gayo tribe is in Central Aceh District, Bener Meriah District, some in
Southeast Aceh District. The language used by the Gayo language;
e. Tamiang tribes are in Aceh Tamiang District and East Aceh. The language
used by Tamiang;
f. Kluet tribe is in South Aceh Regency. Language used by Kluet Language;
g. The Singkil tribe, located in Aceh Singkil District. The language used is
Julu, Haloban, Pak-pak, sialut or Nias Language.
h. The Semeulu tribe is in Semeulu Regency. Language used by Lekon,
Sigulai, Devayan.
Customary Classification and Customary Law in Aceh refers to 3 (three)
sources, namely:
a. Adatullah, namely Customary Law which is sourced almost entirely
(absolutely) on rules based on Al-Quran and Al-hadith;
b Adat Tunnah, which is custom as a manifestation of Qanun and Reusam
that regulates the lives of people in Aceh;
c. Muhakamah customary, namely Customary Law which is manifested in the
principle of deliberation and consensus.
The existence of the Law on the Government of Aceh in 2006, has the
consequences of the form of customary law which is largely unwritten,
formalized into law. The general regulation concerning Adat and the source is
detailed by Article 1 number 8, Qanun concerning Wali Nanggroe 2012. Adat
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is the practice of human life habits carried out from generation to generation
which binds cause and effect and is not written which consists of:
a. Adat syar'i (governing the country);
b Adat aridh (custom that adopts customs from outside);
c. Adat Daruri (important habits);
d. Nafsi nafsu (custom itself);
e. Adat Nazari (derived from thought),
f. Adat 'uruf (habit);
g. Ma'ruf custom (custom that has become a habit that has been accepted),
h. Muqaballah Habits (reciprocal habits);
I. Muamalah Habits (daily social habits);
j. The customary court of ijma 'jam'iyah (custom approved by the DPRA with
the Government of Aceh).
Relations between Customary Institutions in Aceh are illustrated in diagram
I:
Diagram I above shows the relationship between adat institutions in Aceh
coordinated under the Wali Nanggroe and MAA, but the Adat Institute still has
the authority as an adat court in accordance with their respective functions.
This is regulated by Article 98 of the Law on the Governing of Aceh 2006 and
the Qanun concerning the Development of Indigenous Peoples' Life in 2008
and the Qanun on Customary Institutions in 2008, (Sri Walny Rahayu, 2014)
4. Aceh Community Ecosystem Structure
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Religion and Islamic culture have an important role and greatly affect the
daily lives of the Acehnese people. Therefore Aceh was known as the "Veranda
of Mecca" - Seuramo Mecca, (A. Hasjmy, 1981: 193-196). The name of the
Veranda of Mecca for Aceh because based on history, the first entry of Islam to
Indonesia from Mecca through Aceh. The first Islamic kingdom in Indonesia
was in Aceh and other Muslims in the archipelago at the time, who wanted to
make the pilgrimage to Mecca, through Aceh. Aceh is a transit place when
going and going home for those who perform Hajj. (Dervish, A. Soelaiman,
1989: 20-21).
The position of adat and the teachings of Islam are described Adat bak
Poteumereuhom, Hukôm bak Syiah Kuala, Qanun bak Putroe Phang, Reusam
bak Laksamana, Hukôm ngon Adat lagee Zat ngon Sifeut‖. This means that the
holders of customary / political power are sultans / kings. The holder of legal
/ Islamic power is the justice of ulama / qadhi malikul, legislator / Qanun is
the People's Legislative Assembly symbolized by Putri Pahang (Putroe Phang).
The holder of the reusam / protocol power is the admiral / defense minister.
The meaning of Hukôm ngon Adat lagee Zat ngon Sifeut‖ is (law with
custom cannot be separated, for example substances with their nature).
Therefore, law (Hukôm) as a substance is difficult to change. The law as
substance originates from Islamic Law, while adat is the nature (pattern-
behavior) which can basically change. The inclusion of Islamic law as a basis
for adat in Aceh gave rise to the abusive habits formed by the ulamas. One
habit cannot be accepted generally before there is a legal basis. the above
conditions explain, in addition to the norms and customary laws governing the
lives of the Acehnese, there are still other norms, namely Qanun and reusam.
Qanun is an implementing regulation related to the habits of the Acehnese
people. In the time of Sultan Iskandar Muda, the power of the Qanun maker
was in the hands of Putroe Phang (Putri Pahang).
Reusam is the habit of local residents who differ from one region to another
in Aceh. Reusam is a local habit, because it's called "adat reusam". Reusam
has a level. Reusam, which is a local habit, arranges things that are simple,
complicated. Some Reusam rules are for ordinary people, and some other rules
are only for Kings and nobles. Multilevel understanding of adat reusam relates
to the position of reusam, as the content of adat in Aceh. The government of
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Sultan Iskandar Muda, the customary procedure was arranged and lived with
an Laksamana named Bentara Seumasat, so the reusam problem was under
the Laksamana. To find out the structure of the Acehnese indigenous people
who inhabit and support themselves by earning a living in the customary law
area in the fields / fields, sea and forest, described in diagram II (Sri Walny
Rahayu: 2014).
Data diagram II shows that the livelihoods of indigenous peoples in Aceh
are divided into 3 (three), namely earning a living, in the Sea (Laôt) as
fishermen, led by Panglima Laôt. Customary law communities who make a
living by farming, cutting wood in the mountains/forests (glee/ uteuen), are led
by Pawang Glee/Pawang Uteuen. Customary law communities who make a
living working on fields (blang) led by Keujruen Blang. Each of these customary
law communities has their own autonomous rights over their own territory
based on Customary Law (Hukôm Adat) derived from Islamic teachings (Islamic
Sharia).
The three types of ecosystems of indigenous peoples, are part of the Aceh
Customary Institution, as well as functioning as customary courts that
regulate and have authority in every customary law community. This is in
accordance with the privileges of the Aceh Province, which is regulated by Law
No. 44 concerning the Implementation of the Special Rights of the Aceh Special
Region in 1999 and specifically stated in Article 98 and Article 162 of the Law
on the Governing of Aceh in 2006.
5. The History of Courts in the Kingdom of Aceh
During the reign of Sultan Iskandar Muda in Aceh, there were four types
of judicial institutions. The first is called a civil court. Second, criminal court.
Three religious courts and four commercial courts, (Denys Lombard, 2007:
Institution
2. Legislation in Indonesia
3. Customary Institutional Court
210
118). The civil court is held every morning except Friday in the big hall (Balai),
near the main mosque. The Balai shows every building is rather large,
intended for public life (paseban) "main mosque" is Bait Baitul Rahman
(Baiturrahman) which was established during the time of Sultan Lskandar
Muda. Now this mosque is known as the Baiturrahman Great Mosque. The
judge who was tried was led by the richest person in Aceh.
Criminal court practice is held in another hall towards the palace gate
(pendopo). A number of rich people took turns to become its chairman. The
method of examination and punishment imposed is quite difficult, namely
dipping the prisoner into hot oil, and licking hot iron. During the time of
Sultan Iskandar Thani, the inhumane punishment was abolished. there is a
judge's decision in the criminal court, with the decision to whip using rattan.
This penalty can be avoided by paying a gold fine. If the mistake made by the
person sentenced is very severe, the judge's decision is to pry the prisoner's
eyes, cut their noses, cut off their hands or feet. When finished cutting their
hands or feet, immediately dip them in very cold water to stop bleeding.
Finally, the legs or hands that have been cut are wrapped in leather. (Sri
Walny Rahayu, 2014: 160-161).
People who have served sentences are accepted back in the community
and their honor is restored. However, against serious crimes, several disabled
people sentenced were returned to Pulau Weh. Crimes punishable by capital
punishment because adultery is punished by fighting elephants. This
punishment also applies to most people. For the nobility, the execution of the
death penalty was carried out honorably than ordinary people. The nobility
was placed in a large field which was closed, given a large scythe as a weapon
to defend themselves by fighting the attacking group consisting of the families
of the victims.
Two other courts, namely religious courts and commercial courts, only
examine special cases. The judge referred to as "Kadi" who was responsible for
resolving this case in the trial of the Religious Court, had broad authority
covering those who violated religion. Sultan Iskandar Muda formed a
government system based on Islamic law to his people. There is an order
requiring prayer five (5) times a day, fasting of Ramadan, prohibiting gambling
and liquor. Commercial Court, which was held in a building near the port to
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settle disputes between traders, both foreign and indigenous traders. This
court was led by a rich man named "Admiral" who was considered the same as
the mayor. The commercial court is the forerunner to the formation of the Sea
Customary Court (Laôt) and its leader is called Panglima Laôt. (Dennys
Lombard, 2007: 120-121).
6. Customary Courts and Women's Relations in Socio-Cultural
Construction in Aceh
The position of women and men in the 1945 Constitution is regulated by
Article 27 of the 1945 Constitution, in which men and women have the same
rights and obligations in law and government. Thus women are seen as
subjectum juris. However, the patriarchal system that has taken place in
various parts of the world including Indonesia, especially in Aceh, has caused
patterns and ways of thinking, and partiality towards men, causing unequal
relations. this causes customary justice in Aceh and the government system to
be dominated by men as holders of control and decision makers.
Adat and culture is a guide for the community to behave daily which is
passed on from one generation to the next and internalized to form a mindset.
There are still restrictions on access to women's control starting with double
burden, stereotyping and subordination, both in the domestic sector and the
public sector. Women are often considered not to have the same strength as
men in doing things. What women produce is only called sides. This
subordination and stereotype causes women to be in a very weak position as
decision makers, (Fauzi Abubakar: 2015: 333).
In Aceh, there are differences in roles between women and men in kinship
social relations and employment based on the criteria of community structure.
Communities with those who make a living as farmers, having a philosophy
that is "Ureung agam geujak meuue ureung inong geujak bak dapu" means that
men (husbands) go to the fields, women (wives) go to the kitchen. This concept
shows the role of domestic and public. The division becomes different from the
community/ fisherman, where the husband works to find fish in the sea, then
the woman works to clean the fish, dry the fish. Husband/man sells fish to the
market. Furthermore, the phenomenon of "habits" was discovered and is now
a trend in social life in Aceh. The majority is done by men. Men / husbands
spend their time in coffee shops or caffe, or sit in public places. Wives /
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women do almost all household matters and also take care of children
(domestic scope). This condition is closely related to a number of wise words in
Aceh, (Sri Walny Rahayu et al, 2007: 62-64) which includes:
1) "Lagee aneuk hana ma" It is said to children who do not have anyone to care
for him, both body, clothes, character and morals. Ma is a mother, playing
a role in caring for her children.
2) "Paleh aneuk muda hana lob pakat". That is, Men must get along in the
community. It is very bad if their people do not enter into a relationship
3) "Paleh aneuk dara hana jeut buet droe". That is, every girl must be good at
doing handwork related to femininity.
4) "Manok Agam Tuleueng Rapoh, Inong Mita Agam Pajoh", meaning, men who
are lazy to make a living, their lives depend on the work of the wife. These
wise words are intended for people who are lazy in earning a living and only
enjoy the results of his wife's hard work.
Some examples of wise words (hadih madja) above regulate the
standardization of domestic roles for women and the public role is only for
men. Public activities are explained in wise words, more to relationships and
joint decision making that starts at the village level. The role of women is more
oriented to physical work in the domestic realm.
Another thing from women's subordination occurred in the field of law in
Aceh. This imbalance is shown by an unequal relationship between women
and men. Gender inequality is usually based on internal thought patterns and
internalization. This is a social problem that must be resolved integratively.
coupled with the existence of interpretive arguments that tend to be subjective
which use reasons for arguments that marginalize women's rights in various
aspects of social, cultural, legal and governmental, in the name of Islamic
teachings as justification. Stereotypical views among members of society that
place women as moral buffer, so that efforts to uphold morality and law in
society must begin with women. This is what causes the limited access and
control of women in the public space, so that they are also not equal to men as
beneficiaries of the results of development in the field of law and government.
The limitations of the women's movement in the public sphere in Aceh are
found in the circular letter / regulation of the regional head, even regulated in
the Qanun which always places women as subordinates.
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This condition should be placed in reality, moral enforcement includes the
process of seeking justice, in social and human responsibility (adult and sane),
without distinguishing between men and women. Men and women have the
same obligation to be moral people in religion, law, government, customs,
culture, social and economy.
Religion aims to shape morality and morality. Thus women and men are
legal subjects who have the same obligations as a moral buffer in society and
can contribute equally according to their dignity. The role of women in can be
seen from the perspective of women's transformation which includes
functions, feminism and gender specificity, which involve behavior patterns,
emotional expressions that can be socially studied and used to assess
femininity and personality. (Paulus Tangdilintin, 1991: 9). Gender problems
faced by women occur because of the thick values in society that determine
the nature of women having access to domestic work, so that thoughts and
struggles that provide opportunities for women for activities outside the
household (public space), are considered as something that violates the nature
and not suitable. (Tjandraningsih, 1996: 66).
Access and a balanced role of women and men are generally rarely
involved in the adat justice process. This is due to a number of considerations,
namely: first, customary courts are often conducted at night. In the view of
unethical women's society outside the home at night. Second, women are
considered less assertive in handling cases. However, women's services are
often used by Keuchik as a mediator in resolving various cases, especially
cases of domestic violence. And it turns out that the role of women is very
important in the process of organizing customary justice. So there is no reason
for women not to be involved in the adat justice process and even their
representatives must be in the Tuha Peut institution. So that formally the
presence of women in adat instruments is in the Gampong Government
structure (Fauzi Abubakar, 2015: 342).
The role of women as mediators and negotiators in the deliberation
process is very important to be able to determine whether the trial can be held
or not. Because every complicated case has the possibility to be resolved if the
customary law implementer applies the negotiation and mediation techniques
appropriately. In this technical consultation, women have a role to help
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disputing parties to resolve cases, with results that can satisfy both parties.
The ability and skills of these women to listen carefully, speak clearly and
ensure effective communication among all parties is an important factor in
facilitating the peaceful resolution of joint cases.
Customary justice management practices when there are problems that
cannot be resolved, due to lack of skills or the ability to consult with
traditional leaders, or when the victim is a woman, the case report can be
submitted directly to the female leader in Tuha Peut. therefore, women must
be actively involved in resolving disputes starting from the initial handling to
the decision process in the adat court. This effort is important because it
facilitates the communication process, it will be very helpful to know the
problem. A large number of women must be able to involve women in access,
roles and control over adat courts. (Fauzi Abubakar, 2015: 342).
Community obedience to heavy law is not a compelling rule, but also aims
to create benefits for society. On the other hand, the law is not obeyed,
because the reality is detrimental to society. Settlement of disputes through
adat, in customary law communities, which are based on values, mindset, and
norms have given birth to indigenous peoples. Compliance with disputing
parties to accept the decision of the Customary Court, in accordance with the
optics of Law sociology is closely related to the Authority Theory, as stated by
Max Weber. There are 3 (three) types of authority in the community, (Sri Walny
Rahayu, 2018), namely:
1. Rational Legal Authority. Authority that comes from legality, law or
legislation. Based on the theory of legal authority, the parties' adherence to
Customary Judicial Decisions, because the authority of traditional
instrument functionaries has been legally legalized both in writing and
unwritten.
2. Traditional Authority (Traditional Authority), authority whose validity is
based on customs. Traditional authority is an authority that has validity
based on the sanctity of certain traditions that live in society. Someone
obeys certain rules or authority structures, because their trust in things is
sustainable.
Based on this theory, parties adhere to the Customary Court, because the
creation of relationships between traditional leaders or devices, which have
215
authority with members of the community, is a personal relationship,
which tends to lead to broad family relationships. There is full awareness
between the instruments of traditional institutions to carry out their
obligations in society, as a form of loyalty and love for traditional
institutions. According to Max Weber, in one's traditional order is the
loyalty of the past and they represent the past, loyalty is often rooted in
sacred beliefs. Other things are certain historical events, because there is
authority over sacred habits.
3. Charismatic Authority. The authorities whose validity comes from special
charisma or quality possessed by someone who is recognized by others. This
is only owned by certain people, regardless of economic status. This
charismatic authority tends to be found in selected people in society. For
example, because of personal abilities, the nature of ownership and
personality possessed. (Max Weber, 2009: 293). Community compliance with
adat leadership like this is because its validity is recognized based on its
quality, privilege and excellence as a leader.
Compliance and acceptance of customary court decisions if viewed by the
authority theory approach proposed by Max Weber, namely the legal rational
authority, traditional charismatic authority, can be assessed based on 2 (two)
points of view, positive and negative. The theory of authority is positively
correlated with full and unanimous compliance and acceptance of decisions of
the Customary Court. The disputing party is in a win-win position.
Every peace agreement that has been obtained through customary courts
is always obeyed by the parties. The factors that encourage the compliance of
the parties in implementing the agreements that have been obtained are due to
family factors, besides that the adat court is effective and efficient (cheap). This
low cost due to customary courts does not burden lawyers‘ fees and other
costs such as state courts.
Max Weber's theory is related to the authority (charisma) of traditional
leaders, which causes the community or parties to disobey Customary Justice,
it can be understood that obedience is due to traditional authority (charisma)
of numbers in LAA that behave either written or not. The community will
ignore the decision of the adat court, if there is a possibility of recurring
disputes or conflicts. This is what is called the awareness of thickening and
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thinning in the community when accepting and obeying the decisions of
customary courts.
Community fulfillment of customary court decisions if studied
epistemologically because of the influence of authority, position or social
status or religion of adat judges. The more experienced someone who holds the
position of chairman of the LAA or customary justice judge, influences his
mindset both from the mind and from the heart or mind. The wider the inner
and inner experience of a person, the more charisma and authority gained will
have implications for decisions issued by Customary Judges.
Based on the facts mentioned above, the depletion of the results of the
peace agreement obtained through the Judicial Customary Court based on a
number of reasons, namely, (1) the parties did not accept the decision, (2) the
parties ignored the collective agreement stipulated by the court custom, (3) the
decision of the adat court is judged to have weak sanctions and not optimal to
cause deterrent effects compared to state judicial sanctions. (4) the law in
practice is found to be double faced, protecting strong parties because they
have the power and authority, (5) legal sanctions do not have binding power
for the parties and do not give rise to legal certainty. This is why the decision
of the adat court cannot be fully accepted in the community. this condition is
different from the settlement carried out through the state court which has
execution power.
Based on the facts mentioned above, not all of them can be achieved
through the settlement of customary law. Some people, especially urban areas,
consider the ineffectiveness of customary justice due to reasons, namely, (1)
the parties do not accept the decision, (2) the parties ignore the collective
agreement set by the adat court, (3) the adat court decision is considered to
have weak sanctions and not optimal to cause deterrent effects compared to
state judicial sanctions. (4) sanctions in customary justice are also found, in
practice, double-faced, protecting strong parties because they have the power
and authority in their community, (5) legal sanctions do not have binding
power for the parties and do not cause legal certainty. This is why the decision
of the adat court cannot be fully accepted in the community. these conditions,
in contrast to the settlement carried out through state courts that have the
power of execution, and submit appeals, cassation, and even extraordinary
217
legal remedies with the submission of a Review Again when new evidence is
found.
Conclusion
Women are legal subjects who have the same rights and obligations as
men regulated in the 1945 Constitution. They must also be accommodated in
customary law. women's access and control over adat decisions is very
important as a form of balance of roles, women are very important and needed
when women and children become victims. Women must be involved in the
access, role and control of adat courts to fill development in various fields.
Community fulfillment of customary court decisions if studied
epistemologically because of the influence of authority, position or social
status or religion of adat judges. Someone who is more experienced who
occupies the seat of the Aceh Customary Institution (LAA) or customary justice
judge, influences his mindset both from the mind and from the heart or mind.
The wider the inner and inner experience of a person, the more charisma and
authority gained has implications for decisions issued by the Customary
Court.
Recommendation
There must be political will from the village / village government, to
include a budget to increase women's capacity that can be budgeted through
village funds based on Law Number 6 of 2014 concerning Villages.
In-depth study is needed through academic texts or the results of ongoing
research from academics and non-governmental organizations in collaboration
with other donors, to develop models of customary courts in Indonesia, as
input for Customary court designs and the Bill on Rights Indigenous Peoples
in Indonesia.
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International Journal of Civil Engineering and Technology (IJCIET),
IAEME Publication, Volume 9, Issue 1, January 2018, pp. 472483,
Article ID:
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ype=1
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The Role of ASEAN in the Law of World Peace
Diplomacy for Palestinian Independence
Murry Darmoko
Faculty of Law, Bhayangkara University of Surabaya, Indonesia
E-mail : murry@ubhara.ac.id
Abstract
This paper examines the role of ASEAN in realizing world peace with the main indicator,
Palestinian independence. This study uses IMRAD Structure. The background research is the
role of ASEAN is still regarded as a small role in realizing world peace, especially in Palestinian
independence. Legal and geographical-political issues make ASEAN no role. There are two
research questions, first, how to improve the role of ASEAN diplomatic law in realizing world
peace? Second, how to improve the diplomacy pattern of communication in law and geographic-
politics of ASEAN has a stronger influence on Palestinian independence?. The purposes of the
research is to find the answers of the two research questions with qualitative methods derived
from documents that are directly related to the two approaches of sociology of law and science of
communication. Results, First, the role of ASEAN in the independence of Palestine can be
strengthened along with the improvement of political and economic power of the culture and
defense culture of ASEAN countries' legal security. Second, the diplomacy pattern plus the
solution to Palestinian independence in the form of a win-win solution. Discussions, pro parties
claim that ASEAN has played a role in various fields and has a strong influence in peace
diplomacy law that needs to be strengthened even more strongly, the contra stated that ASEAN
countries do not need to interfere in the independence of Palestine because it is not from the
political geography of ASEAN. In conclusion, first, the role of ASEAN diplomacy in realizing world
peace with Palestinian independence can be urged through international forums and both of
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Full-text available
p> Abstract : This study was aim ed at assess ing the role of women in the discourse of feminism which was not only in the form theoretical talks and debates but also practical ones in various parts of the world, including in Aceh, Indonesia. In practical level , the role of women had played in various institutions such as in traditional/conventional institutio ns and government ones . The focus of the problem was how the role of women in traditional institutions 'Tuha Peut' and the local government of Aceh were . Through a historical approach, this paper tried to explore the role of women in traditional institutions 'Tuha Peut' and local government in Aceh. Based on the v arious data collected such as observation, interviews and documentation, it showed that the role of women in institutions of Tuha Peut , as a traditional institution of Aceh and a government administrator of Gampong Aceh , was equal to the role of men, especially in formulating policies in Gampong. Data also show ed that women had more prominent role, especially in efforts to achieve policies on the equity of gender. Acehnese women could not only give advice and consideration to Keuchik (head of the alliance of indigenous peoples of Gampong) but also could give supervis ion to the R eusam Gampong. Women also could become a mediator to resolve the conflicts that arise d in Aceh through the consultation of indigenous peoples and offer ing a solution for the sake of ending the conflict properly without taking the formal and official legal justice. الملخص :أصبح دور المرأة – في فكرة النسوية – حديثا ليس فقط نظريا بل تطبيقيا في كثير من أنحاء العالم ومنها في أتشيه، إندونيسيا. وفي التطبيق، كان دور المرأة في شتّى المؤسسات، مؤسسة عادة أو حكومة. كان تركيز المسألة في هذه الدراسة هي كيف يكون دور المرأة في مؤسسة العادة " Tuha Peut " والحكومة في أتشيه. حاولت هذه الدراسة – بالمدخل التاريخي – دراسة دور المرأة في مؤسسة العادة " Tuha Peut " والحكومة . دلّت البيانات – المحصولة عليها عن طريق الملاحظة، والمقابلة، والوثائق المكتوبة – على أن دور المرأة في مؤسسة العادة " Tuha Peut " أو الحكومة القائمة " Gampong " متوازيا بدور الرجل، خاصة في تصميم القرارات. ودلّت البيانات كذلك على أن دورها أكثر وضوحا وخاصة فيما يتعلق بالقرارات المتعلقة بالجنس. إن المرأة –ليس فقط- قادرة على تقديم الآراء والاعتبارات إلى " Keuchik " (رئيس اتحاد مجتمع العادة Gampong ) بل قادرة على القيام بالملاحظة والتفتيش تجاه Reusam Gampong . واستطاعت المرأة كذلك أن تكون همزة وصل لحل المنازاعات والخلافات بين مجتمع العادة أتشيه عن طريق الاستشارة وطرح سبيل الحل لحل هذه الخلافات حتى لا يكون حلّها عن طريق المحكمة. Abstrak: Peran perempuan dalam wacana feminisme tidak saja menjadi perbincangan teoritis tetapi juga praktis di berbagai belahan dunia, termasuk di Aceh Indonesia. Dalam tataran praktis, peran perempuan berada dalam berbagai institusi baik institusi adat maupun pemerintahan. Fokus masalahnya adalah bagaimana peran perempuan dalam institusi adat ‘Tuha Peut’ dan pemerintahan di Aceh. Melalui pendekatan sejarah, tulisan ini mencoba untuk mengeksplorasi peran perempuan dalam institusi adat ‘Tuha Peut’ dan pemerintahan di Aceh. Beragam data, melalui observasi, interview dan dokumentasi, menunjukkan bahwa peran perempuan dalam institusi Tuha Peut baik sebagai institusi adat Aceh maupun penyelenggara pemerintahan Gampong memiliki peran yang setara dengan laki-laki khususnya dalam merumuskan kebijakan Gampong. Data juga menunjukkan bahwa peran perempuan lebih menonjol terutama dalam upaya mewujudkan kebijakan yang berkeadilan gender. Perempuan Aceh tidak saja dapat memberi saran dan pertimbanga kepada Keuchik (kepala persekutuan masyarakat adat Gampong) tetapi juga dapat melakukan pengawasan terhadap Reusam Gampong. Perempuan juga dapat menjadi mediator penyelesaian konflik yang muncul dalam masyarakat adat Aceh melalui konsultasi dan tawaran solusi demi terselesaikannya konflik dengan baik tanpa menempuh jalur peradilan formal. Keywords: perempuan, institusi adat, pemerintahan Gampong, Tuha Peut, Reusam Gampong, mediator.</p
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______________, (2018, Januari), Alternative Dispute Resolution Through Customary Tribunal In The Context Of Legal Pluralism In Aceh, International Journal of Civil Engineering and Technology (IJCIET), IAEME Publication, Volume 9, Issue 1, January 2018, pp. 472-483, Article ID: http://www.iaeme.com/IJCIET/issues.asp?JType=IJCIET&VType=9&IT ype=1