scholarly journals NATIVE COURT IN KUDAT AND MATUNGGONG, SABAH: CHALLENGES TO ITS GOVERNANCE AND STRUCTURAL ECOSYSTEM

2021 ◽  
Vol 6 (25) ◽  
pp. 94-113
Author(s):  
Rosazman Hussin ◽  
Johan Johnes ◽  
Jabil Mapjabil ◽  
Jeannet Stephen ◽  
Jurry Foo @ Jurry F. Michael ◽  
...  
Keyword(s):  
Decision Making ◽  
Qualitative Methods ◽  
Indigenous Peoples ◽  
The State ◽  
Customary Law ◽  
Organisational Structure ◽  
Legal Institution ◽  
Discussion Section ◽  
Civil Court ◽  
Depth Interviews

The Sabah Native Court is a legal institution created specifically to address the application of customary law among the ethnics or indigenous peoples of Sabah. Sabah Native Court is a legal institution established by a special act known as the Native Courts Enactment 1992 amendment 1995. The purpose of this study was to identify the challenges to the governance and structural ecosystem of native courts in selected districts, specifically Kudat District and Matunggong Sub-district. This study uses qualitative methods through in-depth interviews with district heads in these two native court. Among the study's interesting findings is the hierarchy of the organisational structure of the native court institution found in both study locations, which has differences in the number of staff appointments either at the decision-making level for district head or among native court implementers such as native chiefs and deputy native chiefs. Furthermore, the two study locations have different day-to-day governance and assignment for every entity within the native court. Questions about the benefits and drawbacks of challenges to both governance and the structural ecosystem of the native courts in both study locations were also addressed in the discussion section. Due to its importance in monitoring these challenges, this study will examine how well the native courts can resolve the concerns of each ethnic in the state compared to other judicial institutions such as the Syariah Court and Civil Court.

scholarly journals Management behavior of indigenous peoples in conserving forest resources

2021 ◽  
Vol 11 (1) ◽  
pp. 106-116
Author(s):  
Rinda Sandayani Karhab
Keyword(s):  
Indigenous Peoples ◽  
Sampling Technique ◽  
Forest Resources ◽  
Customary Law ◽  
Purposive Sampling ◽  
East Kalimantan ◽  
Learning Attitudes ◽  
Community Behavior ◽  
And Behavior ◽  
Depth Interviews

The study aims to prove the influence of local wisdom, learning, attitudes on the intentions and behavior of indigenous peoples in behaving sustainably or preserving forest resources in East Kalimantan Province. The population in this study is customary law communities, namely groups of people who have local wisdom in protecting and managing the environment sustainably in the province of East Kalimantan. The purposive sampling method was used to select districts and villages as sample areas, namely the districts of Berau, East Kutai, and West Kutai with a total population of 12,483. The sample of customary law communities was taken using the nonprobability sampling technique, which includes incidental sampling and purposive sampling of 387 indigenous respondents. Subsequently, in-depth interviews were conducted with 11 customary law community leaders as informants to produce more facts, complete the study description of the phenomenon being studied, and strengthen the research analysis. As a result, local wisdom has influenced the intentions and behavior of indigenous and tribal peoples to conserve forest resources. Learning can increase intention and influence community behavior to conserve forest resources. The attitude of the customary law community in supporting the preservation of forest resources has no effect on the intention to conserve forest resources and the stronger the intention to conserve forest resources, the more it will affect the behavior of the customary law community in conserving forest resources. Furthermore, the perception of indigenous and tribal peoples is that they are very supportive of the preservation of forest resources, forests are seen as an inseparable part of life due to their very high dependence on the economy.

From Individual to Collective Consent: The Case of Indigenous Peoples and undrip

2019 ◽  
Vol 27 (2) ◽  
pp. 251-269
Author(s):  
Richard Healey
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
The State ◽  
Self Determination ◽  
Sexual Ethics ◽  
The Third ◽  
Collective Decisions

Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination.

scholarly journals Legal Development of Coastal Marine Management Based on the Idea of Pancasila

2018 ◽  
Vol 4 (1) ◽  
pp. 113
Author(s):  
Jantje Tjiptabudy
Keyword(s):  
Natural Resources ◽  
Indigenous Peoples ◽  
The State ◽  
Customary Law ◽  
Marine Management ◽  
Positive Law ◽  
Coastal Marine ◽  
The Republic ◽  
The Government ◽  
Marine Areas

In relation to the positive law, the management of marine and coastal natural resources, there is also the rule of customary law. Customary law that still lives and develops in indigenous peoples also regulates the management system and utilization of natural resources in coastal and marine areas. Recognition of the rights of indigenous peoples is constitutionally contained in the 1945 Constitution of the State of the Republic of Indonesia where the state recognizes the existence of the Customary Law Community. In Maluku, marine potency management in general is still done traditionally known as marine customary rights that have been going on for generations but not yet fully recognized either by the government or entrepreneurs who are actually important partners in the development process.

scholarly journals Eksistensi Kearifan Lokal dalam Pengaturan Pemilihan Kepala Desa Ditinjau dari Undrip (Studi Kasus Pemilihan Kepala Desa pada Masyarakat Adat Kedepatian Semerap Kabupaten Kerinci)

Wajah Hukum ◽  
2021 ◽  
Vol 5 (1) ◽  
pp. 305
Author(s):  
Dony Yusra Pebrianto ◽  
Budi Ardianto ◽  
Taufan Dyusanda Putra
Keyword(s):  
United Nations ◽  
Indigenous Peoples ◽  
Positive Impact ◽  
The State ◽  
Customary Law ◽  
Community Needs ◽  
The United Nations ◽  
United Nations Declaration ◽  
The Village ◽  
Selection Of

Internationally The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) emphasizes respect for the local wisdom of indigenous legal communities. The selection of village heads is one of the regulatory concepts stipulated in Law No. 6 of 2014 on Villages. The selection of village heads in the concept of this law is conducted simultaneously stipulated by local regulations and the procedures are specifically regulated through government regulations as stipulated in Article 31 of Law No. 6 of 2014 on Villages. But it turns out that in practice, especially in indigenous peoples, the deability of the village head election often clashes with the arrangement of the village head election. So in this case the formulation of the problem in this writing is how the arrangement of the rights of indigenous peoples in The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the value and concept of local wisdom that applies in the selection of village heads in 5 (Five) Villages Semerap Kedepatian. The method used in this writing uses empirical juridical methods. And in this case it is concluded that UNDRIP regulates matters relating to individual rights as well as very specific collective rights sourced from indigenous peoples. In this case the State is obliged to protect or fulfill the rights of indigenous peoples including cultural heritage and their cultural manifestations including human resources and genetics. And in the indigenous people of kedepatian semerap Kerinci regency there is a customary provision where the prospective head of the village must get customary recommendations and be appointed from Depati and Nenek Mamak. The provision is considered contrary to the local Paraturan in relation to the election of the village head. So given the provisions of UNDRIP and the 1945 Constitution, the State is obliged to protect and maintain these customs given the positive impact that arises from it. So in this case the customary provisions should be regulated in the Regulation including also about the recognition of indigenous peoples. In addition, the community needs to open a paradigm on human rights in the selection of village heads in addition to the paradigm of the enforcement of customary law there needs to be flexibility from the State as long as it is not contrary to national law.

scholarly journals Relevansi Hukum Pidana Adat Dalam Pembaharuan Hukum Pidana di Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 195
Author(s):  
Galuh Faradhilah Yuni Astuti
Keyword(s):  
Indigenous Peoples ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Law Reform ◽  
Criminal Offense ◽  
Community Or ◽  
Key Issues ◽  
The Law ◽  
Principle Of Legality

Penelitian ini mengkaji dua persoalan pokok. Pertama, relevansi Hukum Pidana Adat sebagai kontribusi dalam pembaharuan Hukum Pidana di Indoneisa. Kedua, penerapan hukum dalam penyelesaian tindak pidana berdasarkan Hukum Pidana Adat di Suku Tengger. Hasil penelitian ini menunjukkan bahwa kontribusi Hukum Pidana Adat, berupa penyelesaian perkara di luar pengadilan atau mediasi penal yang dilakukan masyarakat atau masyarakat adat secara turun temurun, sudah relevan dengan pembaharuan Hukum Pidana di Indonesia. Praktik semacam ini selaras dengan nilai dan cita-cita Bangsa Indonesia, sesuai dengan sila keempat Pancasila sebagai dasar negara. Selain itu selaras dengan ide keseimbangan Hukum Pidana, teori sifat melawan hukum, pemenuhan kewajiban adat serta perluasan asas legalitas. Masyarakat Adat Suku Tengger menggunakan mediasi penal sebagai alternatif pertama dalam menyelesaikan perselisihan atau tindak  pidana yang terjadi pada daerah mereka, kemudian menyerahkan kepada pihak yang berwajib ketika mediasi penal tidak mencapai kesepakatan yang adil. <br /><br /><br /><em>This study examines two key issues. First, the relevance of Criminal Customary Law as a contribution to the renewal of Criminal Law at Indoneisa. Second, application of the law in the resolution of a criminal offense under the Criminal Customary Law in Tengger tribe. These results indicate that the contribution of Criminal Customary Law, in the form of settling disputes out of court or penal mediation conducted community or indigenous peoples from generation to generation, it is relevant to the Criminal Law reform in Indonesia. Such practices are aligned with the values and ideals of the Indonesian nation, according to the fourth principle of Pancasila as the state. Moreover tune with the idea of the balance of the Criminal Law, the theory of nature against the law, customary obligations fulfillment and expansion of the principle of legality. Indigenous Peoples Tengger tribe using penal mediation as the first alternative in resolving disputes or criminal acts that occur in their area, and then handed over to the authorities when the penal mediation does not reach a fair deal.</em>

scholarly journals PROSPEK PELEMBAGAAN HUKUM ISLAM DI INDONESIA

2019 ◽  
Vol 17 (2) ◽  
pp. 210
Author(s):  
Achmad Al-Muhajir SAM
Keyword(s):  
Islamic Law ◽  
The State ◽  
Point Of View ◽  
Customary Law ◽  
Muslim Country ◽  
Legal Institution ◽  
Political Struggle ◽  
Reform Era ◽  
Library Research ◽  
Normative Status

Indonesian is constitutionally as the state of Pancasila and not as a religious state, but the state is able to accommodate a number of religious norms in the formation of legislation. Indonesia, as the largest Muslim country in the world with a diversity of ethnic, religious and ethnic groups, has chosen the plural of legal system. This situation provides an opportunity to source a specific law affects the formation and preparation of the norms of national law. Islamic law has long been used in the community, even before the colonial period, has significant effect in certain customary law in society. This paper describes the existence of Islamic Law in the plurality of national law amidst the process of the tug of political struggle of national law in reform era. This discussion is focused on the following; first, the prospect legal institution of Islamic law in Indonesia; second, the resistance and constraint in course of legal institution of Islamic law in Indonesia. This paper was as a result of library research using legal normative status, historical, and sociological point of view.

scholarly journals Gesinspolitiek en die ouer-kind verhouding

2017 ◽  
Vol 1 (1) ◽  
pp. 223
Author(s):  
C Maré
Keyword(s):  
Decision Making ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
Customary Law ◽  
Decision Making Process ◽  
Parent Child Relationship ◽  
Child Relationship ◽  
The Family ◽  
Parent Child

The family-unit did, in one form or another occur since the beginning of man’s existence. The aim of the unit was to sire children and to provide for them until they reached maturity. To realise this provisional aim, a decision making process was required. The child and her parents’ individual interests can generate conflict where decisions have to be made regarding various questions, for example: which church the child should attend and or whether she should attend any church; which school a child should be enrolled in; with whom the child may associate and with whom not; if the child may use contraceptives, and whether an adolescent female may of her free will request or reject an abortion. Henceforth it must be kept in mind that the decision making process, i.e. family politics, is unique for each parent-child relationship. Various social, economic and cultural factors can influence the handling of conflict in the decision making process. Furthermore, fundamental rights can influence the decision making process differently in respectively the common law parent-child relationship and the customary law parent-child relationship. Central to the latter situation is the fact that fundamental rights recognise individual rights, while customary law is founded in communalism. It is furthermore important to note that the nature of the parent-child relationship is not neutral, but is determined by historical and social elements within the community. There are various statutory provisions in terms of which courts can intervene in the exercise of parental authority and can even terminate it, over and above the fact that the courts possess a common law competence as upper guardian. However, no law expressly grants the court the power to intervene in the parent-child relationship where conflict arises within the decision making process. The courts only have the authority to intervene in the parent-child relationship in the event of physical maltreatment or molestation of a child, in divorce proceedings, and where consent must be granted for a minor’s marriage. Even the family advocate is employed as mediator only in divorce matters. The court as common law upper guardian of minors, will only intervene in the parent-child relationship if it is of the opinion that such a step is in the interests of the child and it will therefor not be done lightly. The current constitutional provisions regarding children in a multi-cultural society has brought about changes in the parent-child relationship. Reading together sections 9 and 28 of the 1996-constitution puts it beyond doubt that any child under the age of 18 years is a person possessing fundamental rights. The state is drawn in as a third party in the parent-child relationship and must ensure that the interests of the child, that is fundamental rights, are guaranteed. Section 28 of the 1996-constitution goes further than section 30 of the 1993-constitution and provides a description for the meaning of parental care. The reference to family care, parental care and appropriate alternative care in the 1996-constitution can be indicative of the fact that the changed relationships wherein children find themselves within the community (other than the nuclear family) are recognised. The constitutional provisions also causes a change of emphasis in the parent-child relationship. The emphasis changes from the parent’s rights and responsibilities to the rights that a child may claim. The child can enforce her rights against the state and her parents. The yardstick which determines whether the child is entitled to its constitutional rights, is in whether such a claim would be in the best interests of the child. If the child approaches the High Court as the common law upper guardian to enforce her rights, or to strike a balance in the decision making process, the state must supply the child with the necessary legal representation. Due to the relevant constitutional provisions, the parent-child relationship can no longer be considered to be regulated merely by rules of authority, but the emphasis has shifted to the promotion of the child’s interests. The best interest of the child must thus be the guiding principle in all legal proceedings. It implies further that the South African family law approach to balancing the decision making process within the parent-child relationship has also changed 

Implementasi Hukum Adat Suku Jerieng Dalam Perspektif Pendidikan Islam

2021 ◽  
Vol 7 (1) ◽  
pp. 100-115
Author(s):  
Yuni Iswanto ◽  
Sardi Sardi
Keyword(s):  
Content Analysis ◽  
Data Collection ◽  
Qualitative Methods ◽  
Secondary Data ◽  
Customary Law ◽  
Educational Values ◽  
Tribal Area ◽  
Scientific Papers ◽  
Depth Interviews ◽  
Theoretical Foundations

This research was carried out to see the existence of the Jerieng tribe who still carry out tribal activities such as enforcing customary law for their citizens, it is considered that some residents outside this community are something useless and not in accordance with the present era or are often called conservative. This research is expected to be able to generate and change this paradigm. In fact, what is the perspective of residents outside the Jerieng tribe community is not true. In this study, researchers used qualitative methods, namely research or investigations that aim at solving problems that exist in the implementation of Jerieng tribal law. The intention is to see the implementation of customary law in the current Jerieng people. The main data collection was done through observation and in-depth interviews. Furthermore, all data collected, both primary and secondary data in the form of books, scientific papers, articles, observations or interviews, are analyzed (content analysis) and collided with theoretical foundations in order to obtain a picture and conclusion. The results showed that the implementation of customary law of the Jerieng tribe such as Maleng customary law, Betian customary law in Uten, Bekelai and Munoh customary law, Buyong and Pateng Pemalei customary law which is still valid in the Jerieng tribal area contains Islamic educational values.   Penelitian ini dilaksanakan untuk melihat eksistensi suku Jerieng yang masih melaksanakan aktivitas kesukuan seperti memberlakukan hukum adat bagi warganya dianggap sebagian warga diluar komunitas ini adalah sesuatu yang sia-sia dan tidak sesuai dengan zaman sekarang atau sering disebut kolot. Penelitian ini diharapkan mampu menghasilkan dan merubah paradigma tersebut. Sesungguhnya apa yang menjadi perspektif warga diluar komunitas suku Jerieng itu tidak benar. Pada penelitian ini, peneliti menggunakan metode kualitatif, yaitu penelitian atau penyelidikan yang bertujuan pada pemecahan masalah yang ada pada implementasi hukum adat suku Jerieng. Dimaksudkan untuk melihat implementasi hukum adat pada masyarakat suku Jerieng yang berlaku sekarang ini. Pengumpulan data utamanya dilakukan melalui observasi dan wawancara mendalam. Selanjutnya semua data yang terkumpul, baik data primer dan sekunder yang berbentuk buku, karya ilmiah, artikel, hasil observasi atau wawancara dianalisis (content analysis) dan diperbenturkan dengan landasan teori agar didapat gambaran dan kesimpulan. Hasil penelitian menunjukkan bahwa implementasi hukum adat suku Jerieng seperti Hukum adat Maleng, hukum adat Betian di Uten, hukum adat Bekelai dan Munoh, hukum adat Buyong dan Pateng Pemalei yang hingga kini masih berlaku di wilayah suku Jerieng mengandung nilai-nilai pendidikan Islam.

Enhancing the Participation of Indigenous Peoples at the Intergovernmental Level to Strengthen Self-Determination: Lessons from the Arctic

2018 ◽  
Vol 87 (1) ◽  
pp. 26-55
Author(s):  
Dorothée Cambou
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
State Level ◽  
The State ◽  
Regional Level ◽  
Self Determination ◽  
The Arctic ◽  
Policy Goal ◽  
The Future ◽  
The Right

With a focus on the right of indigenous peoples to self-determination, and an eye on Arctic practices, this article analyses the right of indigenous peoples to self-determination and its exercise at the intergovernmental level. While the exercise of self-determination necessarily implies the right of indigenous peoples to autonomy in their internal and local matters and their involvement in decision-making at the state level, this article argues that self-determination additionally includes the right of indigenous peoples to be represented and to participate in the international arena: the intergovernmental aspect of self-determination. Although this analysis determines that it is yet too early to indicate the existence of a fully-fledged right, this article also evidences that there is a new policy goal at the un level, accompanied by practices at the arctic regional level, which could support the emergence of such a right in the future.

scholarly journals Hak Masyarakat Hukum Adat Dalam Pelaksanaan Pengadaan Tanah Ulayat Bagi Pembangunan Untuk Kepentingan Umum

2021 ◽  
Vol 8 (1) ◽  
Author(s):  
Miranda Nissa Hilal Liani ◽  
Atik Winanti
Keyword(s):  
Indigenous Peoples ◽  
Public Interest ◽  
The State ◽  
Customary Law ◽  
Land Acquisition ◽  
Conceptual Approach ◽  
The Public ◽  
Role Of The State ◽  
The Government

AbstractLand is a natural wealth that is very important for humans and has an important function in development. In carrying out activities carried out by the government, namely land acquisition for the public interest, which has the aim of building public facilities for the benefit of the community. In carrying out land acquisition, ulayat land is often the target for alleged land acquisition. However, using ulayat land for land acquisition often creates problems. The purpose of this paper is to determine the control of indigenous peoples' rights in land acquisition and to determine the role of the state in providing compensation for land acquisition for development in the public interest. The research method used is juridical normative using a statutory approach and a conceptual approach. The result of this research is that the rights of customary law communities have been regulated constitutionally by the State, and the role of indigenous peoples is regulated in Law no. 71/2012. However, the fact is that during the land acquisition process, customary law communities are often not involved, the government should provide legal certainty and protection to the customary law community so that these problems do not harm the customary law community.Keyword: Land Procurement, Customary Law Communities, Customary Land. AbstrakTanah merupakan kekayaan alam yang sangat penting bagi manusia dan memiliki fungsi yang penting dalam pembangunan. Dalam melakukan kegiatan yang dilakukan oleh pemerintah yaitu pengadaan tanah bagi kepentingan umum, yang mana memiliki tujuan untuk membangun fasilittas umum agar bermanfaat bagi masyarakat. Dalam melakukan pengadaan tanah, seringkali tanah ulayat dijadikan sasaran untuk diduganakan pengadaan tanah. Namun, dalam menggunakan tanah ulayat untuk pengadaan tanah tersebut seringkali menimbulkan masalah. Tujuan dari penulisan ini untuk mengetahui pengantutan mengenai hak-hak masyarakat adat dalam pengadaan tanah dan untuk mengetahui peran negara dalam pemberian ganti kerugian pada pengadaan tanah bagi pembangunan untuk kepentingan umum. Metode penelitian yang digunakan adalah yuridis normative dengan menggunakan pendekatan perundang-undangan dan pendekatan konseptual. Hasil dari penelitian ini adalah bahwa hak masyarakat hukum adat telah diatur secara konstitutional oleh Negara, serta peran masyarakat hukum adat diatur didalam UU No. 71/2012. Namun pada faktanya saat proses pengadaan tanah, masyarakat hukum adat seringkali tidak dilibatkan, seharusnya pemerintah dalam pengadaan tanah memberikan kepastian serta perlindnungan hukum kepada masyarakat hukum adat agar permasalahan-permasalahan tersebut tidak merugikan masyarakat hukum adat.Kata Kunci: Pengadaan Tanah, Masyarakat adat, Tanah Ulayat

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