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Political Law of Local Government to Resolve Disputes Adat Law in Kei Island

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ISSN: 2005-4238 IJAST Copyright ⓒ 2019 SERSC

Political Law of Local Government to Resolve Disputes Adat Law in Kei Island

Soeleman Djaiz Baranyanan 1, I Gusti Ayu Ketut Rachmi Handayani 2, Isharyanto3

1,2,3 Universitas Sebelas Maret, Surakarta - Indonesia

Abstract:

Indonesia as a state of law, has one of the main characteristics is the importance of laws and regulations. Legal politics in the opinion of Padmo Wahdjono is a state policy about what is used as a criterion for evaluating something (making something legal). The politics of law is related to the formation of law and its application. With the enactment of Law no. 23 of 2014 concerning Regional Government, this Act provides an opportunity for regional governments to regulate and manage their regions based on the interests of aspirations in the community. Based on Amendments to the 1945 Constitution of the Republic of Indonesia, Article 18B, among other things, states that the state recognizes and respects traditional customary community units and their traditional rights. In the case of traditional disputes (hawear / sasi) in the Kei Islands of Maluku, sasi / sealing often occurs in public facilities including schools, government offices, connecting bridges and places of worship. This actually has come out of the values contained in customary law there, thereby disrupting and inhibiting the activities of community life in the area. So far, local governments have only acted as intermediaries in resolving these adat disputes. So the problem in this research is the need for legal politics from the local government that can resolve the issue of customary law disputes (hawear / sasi). The purpose of research is to find the best answers and solutions to problems that have been formulated by researchers. This research was conducted using a normative juridical approach, ie research that would be conducted was aimed more at written regulations, legislation and other legal materials, for secondary data obtained through books in libraries and also from the mass media relating to articles and a journal. related journal. The conclusion of this study is that if the local government must play an active role and also have an important role in regulating and formulating legal politics which in its implementation can resolve the issue of customary law disputes that occur in the Maluku Kei Islands.

Keywords: Political Law, Local Government, Customary Disputes.

I. Introduction

Indonesia is a pluralistic nation, where in terms of geography the Indonesian nation consists of thousands of islands both large and small with cultural and ethnic diversity. Therefore, Indonesia is often referred to as the selling state which consists of provinces and districts or cities that are autonomous and have regional autonomy rights as stipulated in Law Number 23 of 2014 concerning Regional Government. The diversity of the Indonesian nation is a challenge, even the difference is the wealth of God that has been recognized by humans created in groups so that they know each other.

Development of the Indonesian Legal System which prefers the civil and common law systems.[1]

and Indonesian legal politics chosen in law modification and unification, accelerating the disappearance of customary law institutions. Indonesia as a law state that adheres to the tradition of civil law, has one of the main features related to the invitation requirements. In the constitution which emphasized that the state of Indonesia is a state of law (rechtsstaat) which states in article 1 paragraph (4) of the 1945 Constitution of the State of Indonesia that reads the State of Indonesia is the State of Law. The meaning contained in the understanding of the recognition of the rule of law and the

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constitution as one of the principles of the rule of law. Understanding the rule of law that makes the law as the highest command holder in the administration of the state.

The founding fathers have at least provided a normative footing that the power of administering the state must not be in one or a small group of people. The point. the power to manage and administer the government must not only rest with one or a group of power holders, Indonesia has chosen the People as the sovereignty of the unitary state of the Republic of Indonesia. Therefore, an established state organization must be able to bind all of these differences into a unity without having to force the existence of unity. The Indonesian state constitution recognizes the existence of customary law as one of local wisdom that is highly respected. In legal science it is also stated that customary law is one of the sources of law. To reinforce this recognition, the regional government was given the authority to make regional regulations relating to customs in the Kei Islands in particular. Based on Amendments to the 1945 Constitution of the Republic of Indonesia, Article 18B, among others, states that the state recognizes and respects the customary law community units and their traditional rights. Although on the one hand Article 18B in the 1945 Constitution of the Republic of Indonesia is the result of the amendment, it can be considered as an entry point for the obligation to give birth to a law on village autonomy and / or the existence of indigenous peoples, but it turns out in the statutory regulations below such as Law Number 23 of 2014 shows that the entrance is closed and does not have the spirit to respect the existence of villages and or indigenous peoples. Villages are only recognized as a legal community unit that has the authority to regulate and manage the interests of local communities based on local origins and customs. At present, in its empirical reality, there are sometimes many problems that arise by the indigenous peoples of Indonesia when customary law is confronted with positive law. For example when traditional rights of the community are confronted with the interests of investors through state legal means.[2] As is well known that traditional customs have been destroyed and only a memory remains due to the inclusion of state intervention and the exploitation of capital, which then makes local communities (adat) lose ownership of self-esteem and local identity. What remains is little remaining only customary rituals which are completely unrelated to government authority.

Law No. 23 of 2014 concerning Regional Government, is more focused on affirming the rights of indigenous and tribal peoples to manage their political and governance systems in accordance with the provisions of local customary law. Article 203 paragraph (3), entitled Election of Village Heads in community ties, customary law, shares their traditional rights, throughout life and in accordance with the provisions of customary law regulated in regional regulations guided by Government Regulations.

With the existence of laws and regulations governing the rights of indigenous peoples, the community will be held accountable for the community and will ask for permission for the community and the government to increase the diversity of cultural identities and values needed by indigenous peoples, Realizing indigenous communities is also a part of Indonesian citizens who have the same rights and obligations in the eyes of Indonesian law. Of course, the rights are according to their needs. The Kei Islands, which is an autonomous region that is still relatively new and has a lot of problems that until now often occur in indigenous social groups that are very thick and grouped in a social community.

Therefore, there are many social groups that are better known as indigenous groups. Indigenous groups that usually exist in communities are based on a kinship. This lasim occurs in a community social group structure that still upholds the values of customary law that exist in an area as it does in the Kei archipelago.

Community social groups that now exist in the life of Kei Archipelago society are very diverse in forms, this is related to the diversity of the island-based regions such as those in Southeast Maluku

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district. Indigenous people usually uphold the customary values that exist in the Kei Islands known as the legal Larvul Ngabal. Larvul Ngabal Law is a law that lives and develops in the Malay Kei Island community, this law is the basic principle underlying the customs in the Kei Islands. Larvul ngabal law consists of three main principles namely Nevnet (criminal law), Hanilit (family law) and Hawear Balwirin (property law). This customary law is a social contract that historically aims to overshadow and unite existing social groups and live in the Kei Island which is still preserved and held firmly by social groups or communities in the Kei Islands. Indigenous peoples in a group often act to block or seal the so-called Hawear (sasi) that has come out of the value of the purity of their customary law.

Hawear (sasi) is a culture that has grown and prevailed in the life of the Kei Islands community in Southeast Maluku which gradually came down.[3] In the case of Adat disputes in the Kei Islands of Maluku, Sasi / sealing often occurs in public facilities including schools, government offices, connecting bridges and there are also places of worship for the local community. This actually has come out of the values contained in customary law there, thereby disrupting and inhibiting the activities of community life in the area. Dispute resolution through consultation always involves the head of the person (Adat leader), both in preventing violations of the law (preventieve rechtszorg) and restoring the law (rechtsherstel).[4]

II. Research Method

This research was approached in terms of legal science, both at the dogmatic level, legal theory, and legal philosophy. Legal research, in this paper also uses a normative legal approach or library law, which is legal research conducted by examining literature or secondary data. Normative legal research or library law includes research on semantic law, research on the degree of vertical and horizontal synchronization, comparison of law and legal history. Research on legal principles is carried out by interpreting the legal rules formulated in laws relating to local governments in Indonesia. Research on legal systematics aims to examine the basic understanding or basis of the legal system contained in the laws relating to the Relationship between the Central Government and Regional Governments, the aim of which is to examine the policy indications of the relationship policies between the center and the regions. government, especially those relating to laws and regulations in the health sector that are not in line with the principles of decentralization and democratic principles. [5]

Research on the degree of vertical and horizontal synchronization was carried out to examine the extent to which positive laws are written in Indonesia that have legal harmony. This research is inseparable from the determination of material objects and formal objects in this paper. Research on the degree of horizontal synchronization aims to examine the alignment in laws and regulations that are parallel or equal that govern the substance of the same research material. Research on the history of law examines the background of the purpose of the formation of laws and regulations on local government which are material objects of this research, namely the health sector law and the law on regional government, and also to determine the extent of the development of decentralized content in each government policy regions that came into force in Indonesia. The purpose of this study is to better describe the relationship between the central government and regional governments that are more in line with the ideals of the 1945 Constitution of the Republic of Indonesia and redefine the laws and regulations relating to the relationship between the central government and regional governments, especially in health sector. Another objective of this research is to describe the impact that occurs with problems arising from the unequal distribution of authority between the center and the regions, and to formulate concepts and principles that are fair and in accordance with the principle of broad autonomy.

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III. Discussion

Etymologically, legal politics is a translation in Dutch, namely rechtspolitiek, from the syllables rechts and politiek. Recht, which has legal and political meaning, which means policy (policy) in short, legal politics has the meaning of legal policy.[5] Politics and law have different meanings because they are more directed at the reality of the reciprocal relationship and the tugging between law and politics itself. Politics and law are often equated with two different sides in one currency that are interrelated. While the politics of law can be said if the law carries the mission of society, nation and state to realize a shared ideology.[6] Legal politics as a general framework that will shape the law (legal frame work), has an important role. Through legal politics, reviewed the applicable law (ius constitutum), as well as which gives direction to the development of the aspired law (ius constituendum), because legal politics is a discipline that underlies the activity of choosing and matching various values, methods, or models to be used in carrying out legal development in order to achieve goals and in the interests of planned legal changes.[7] The dominant element in a policy change is a structural condition, because public policy is the result of the interaction of the structural conditions (the political process between the ruling government and the political process undertaken) that exists. The dominant factor of structural conditions that influence policy depends also on the type of policy. For certain policies perhaps the most dominant structural conditions, but for others policies may be elements of government or political processes that are the dominant factors.

Legal politics can also be seen as a crystallization of political will which intersect in law enforcement so that certain political backgrounds give birth to certain laws.[8] Political law can be realized well if it is done with the aim of providing justice and legal certainty for the community by taking into account the social aspects that develop in the community. To implement the above policy, participation from all elements and components of the country is required. Participation is a matter of power relations or political economic relations, which is advocated by democracy. Community participation in the context of government, namely the correlation between the state (government) and the people. The state is the center of authority and policy that regulates (manages) the allocation of public goods (resources) to society. Whereas in society there are civil and political rights, the power of time and the necessities of life. Thus participation is a connecting bridge between the state and society so that the management of public goods produces prosperity and prosperity for the state. From the point of view of the state, democracy teaches that participation is needed to establish an accountable, transparent and responsive government to the needs of the community. Lack of participation sows authoritarian and corrupt government from the community side, participation is the key to empowering, or strengthening roles. Participation provides community space and capacity for their needs and rights, in developing local potentials and initiatives, making the community's role effective and building community independence.

To implement good governance and to increase community participation as well as existing institutions in society, it is necessary to recognize all existing components that constitute state power.

Since the late 1990s, attention to indigenous peoples has begun to erupt, especially for remote indigenous peoples in Indonesia, especially in the Maluku Kei Islands. This is similar to Article 18 B of the 1945 Constitution. Article 18 B paragraph (2) Governing customary law communities is a legal community (rechtsgemeenschap) based on customary law such as villages, clans, villages, gampongs, meunasah, huta, ohoi, and others. The legal community is made up of people who have a geneological territorial nature who have their own wealth, have citizens who can be distinguished from other legal community members and can connect to all legal entities (legal subjects) who are independent and

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work alone. This association of legal communities not only has the right to an equal life and is as important as the unity of government as in the case of districts and cities. This equality means that the association of the legal community is based on customary law which is entitled to all assistance and which is given the opportunity to develop as a subsystem of the developed, prosperous and modern Unitary State of the Republic of Indonesia. Furthermore, existing traditional rights are recognized and enforced. These traditional rights include customary rights, the right to benefit or enjoy land and water or forest products and others in the vicinity. But such recognition and respect does not mean making rights that cannot be touched or by the State or the government authorized to regulate various traditional rights to the maximum for mutual prosperity without damaging the interests of people associated with this custom. Well. Recognition and respect is given as long as the legal community and traditional rights are still real and functioning (alive) and in accordance with the principles of the unitary state.

Indigenous peoples, incidentally, are the biggest element in the structure of the nation-state.

Indonesia is the party that suffers the most because it has been disadvantaged by development policies. The ability of indigenous peoples to manage and maintain their survival has been paralyzed, and their rights have even been negated by unfair development policies. The systematic suppression even took place in the name of development which was legalized by various sets of laws and regulations. Initially, conflicts between citizens were triggered by disputes that are common in people's lives, but eventually developed and developed into conflicts involving long periods of time.

This happens because the potential for existing conflict is abandoned. so it was extended and the problem escalated. This is no longer just a land dispute, but also ethnic nuances and other motives related to conflict and ethnic nuances. in the kei archipelago shows failure in building national identity which is also shown in several cases of customs conflicts in Indonesia. The abolition of customary law which was then generalized by the state system for the benefit of the authorities has eliminated local wisdom in recognition of the diversity of the Indonesian people. Regional, as a form of local wisdom identity is not understood as a political and territorial concept, but rather is understood as customary territory. Considering that customary law is a law that reflects the personality and spirit of the community, it is believed that some customary law institutions are certainly still relevant to be used as material in shaping the Indonesian legal system.[9] In principle, it is better to prevent, than to have to overcome conflict. Local power to prevent and handle conflicts, as well as critical awareness of the community about the sources of conflict and the triggering factors must continue to be improved. Dependent on the central government initiative to be able to immediately resolve the conflict at this time, the consequences can be fatal, and not wise. Tolerance between religious communities and ethnic groups must be practiced, and preserved step by step.

Democratic principles that accommodate differences. tolerance and fair competition in building a nation is a necessity, so that in the long run it will be able to prevent conflicts that can disintegrate the nation.[10]

IV. Conclusion

Political policies of law which are the authority of local government in the Kei Islands should be able to provide justice and welfare to the community in general as well as to indigenous groups in the area of local government authority in the Kei Islands. As in the case of John Rawls's book "Theory of Justice", it is stated that justice is the result of the existence of social contracts from individuals and groups of indigenous peoples whose nature is agreement. So that justice is grown seen from the interests of many people although it does not rule out individual rights of individuals or other community groups in the Kei Islands. Therefore, if a dispute occurs within a group or indigenous

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community, it will not harm the individual or other community groups. In this case, the regional government which is given authority through regional government laws should be able to make local policies and regulations to be able to take strategic steps in making regional regulations that have clarity of content and legal certainty to be effective in the community so that the legal political policies taken are accountable.

References

[1] S. Djaiz Baranyanan, I.G.A.K. Rachmi Handayani, Isharyanto, Implementation of The Values Sasi Customary Law in the Formation of Regional Regulations on Environmental Sector, https://www.atlantis-press.com/article/125920824;

[2] Jaelani A.K, Handayani I.G.A.K.R, Isharyanto, “Regulation of Regional Government on Halal Tourism Destinations in West Nusa Tenggara Province after Constitutional Court Decision Number 137/PUU-XIII/2015”, Proceeding Atlantis Press: Advances in Social Science, Education and Humanities Research, Volume 358, Tahun 2019.

[3] Jaelani A.K, Haeratun, Djaiz B.S, “Pengaturan Kepariwisataan Halal Di Nusa Tenggara Barat Pasca Putusan Mahkamah Konstitusi Nomor 137/PUU-XIII/2015”, Jurnal Jatiswara, Vol.33, No.3, Tahun 2018.

[4] Handayani I.G.A.K.R, As’Adi E, Hamzah.G, Leonard T, Gunarto G. “Relationship between Energy Consumption in International Market and Indonesia Prices Regulation”, International Journal of Energy Economics and Policy, Vol.7, Issue 5 Tahun 2017.

[5] S. Djaiz Baranyanan, I.G.A.K. Rachmi Handayani, Isharyanto, Implementation of The Values Sasi Customary Law in the Formation of Regional Regulations on Environmental Sector, https://www.atlantis-press.com/article/125920824;

[6] Handayani I.G.A.K.R, As’Adi E, Hamzah.G, Leonard T, Gunarto G. “Relationship between Energy Consumption in International Market and Indonesia Prices Regulation”, International Journal of Energy Economics and Policy, Vol.7, Issue 5 Tahun 2017.

[7] Jaelani A.K, “Pengembangan Destinasi Pariwisata Halal pada Era Otonomi Luas di Provinsi Nusa Tenggara Barat”, Jurnal Pariwisata, Vol.V, No.1, April 2018.

[8] S. Djaiz Baranyanan, I.G.A.K. Rachmi Handayani, Isharyanto, Implementation of The Values Sasi Customary Law in the Formation of Regional Regulations on Environmental Sector, https://www.atlantis-press.com/article/125920824;

[9] Soepomo, 2003, Bab Bab Tentang Hukum Adat, Jakarta: Pradnya Paramita.

[10] Ratna Winahyu Lestari Dewi, “Peranan Hukum Adat dalam Pembangunan Dan Pembangunan KUHP Nasional”, Jurnal Perspektif Vol. X No. 3 Edisi Juli, Tahun 2005, di download dari http://www.scribd.com/doc/ 91915003/ratnawinahyulestaridewi2005juli, pada tanggal 23 September2019,pkl 21.00;

References

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