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127 J.L. Pol'y & Globalization 1 (2022)

handle is hein.journals/jawpglob127 and id is 1 raw text is: Journal of Law, Policy and Globalization wwwuii.or ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.127, 2022 15 Restorative Justice: Positivization of Customary Law in Resolving Land Disputes Based on Local Wisdom of Papuan Citizens Alfian Budianto 1 Dominikus Rato2 Bayu Dwi Anggono2 Fendi Setyawan3 1. Doctoral student at Faculty of Law, University of Jember, Indonesia 2. Professors at Faculty of Law, University of Jember, Indonesia 3. Lecturer at Faculty of Law, University of Jember, Indonesia * E-mail of the corresponding authors: bl.alfian93@gmail.com and dominikusrato@gmail.com Abstract The positivization of customary law is the process of turning the source of customary law into various laws and regulations. The unwritten customary laws are obeyed by the people because they originate from social values and agreements to live together. Settlement of land disputes in communities where customary law is still strong, such as Papua, which is known for its local wisdom, is carried out through its own customary institution. To fulfill the element of justice, the dispute resolution approach is carried out by means of deliberations outside the court or non-litigation dispute resolution based on local wisdom. The overall manifestation of this settlement leads to restorative justice. The statutory approach, the conceptual approach, the socio-legal approach, the comparative approach, and the case approach are used in this research, which is a normative judicial and sociological judicial study. In conclusion, it is stated that the existence of Papuan customary law is based on its own legal ethnography, pluralism in social capabilities such as social structure and culture according to its character, types of customary leadership, and social interaction relations in different traditional economies. Recognition of indigenous Papuans is based on the Constitution of the Republic of Indonesia 1945, Article 18 B, Paragraph 2; UUPA Articles 3 and 5; and the Papua Special Autonomy Law in Chapter XI concerning Protection of the Rights of Indigenous Peoples. The Provincial Government of Papua is obliged to recognize, respect, protect, empower, and develop the rights of indigenous peoples based on the provisions of applicable laws and regulations. Keywords: positivism, customary law, restorative justice DOI: 10.7176/JLPG/127-01 Publication date: December 31st 2022 1. Introduction The Indonesian legal system for resolving disputes, especially land disputes, can be carried out through various settlement processes, both through judicial institutions such as the general court and the State Administrative Court as well as outside the judicial institutions, such as through mediation or customary institutions. The large number of institutions with authority in resolving land disputes frequently results in decisions that contribute to a lack of legal certainty. Land disputes are disputes over land between individuals, legal entities, or institutions that do not have a broad socio-political impact. Land disputes can occur in any community, including the Papuan community, namely through the social interaction of the customary law community. If the Papuan people have a problem at that time, it is also resolved, either peacefully by the parties to the dispute or through the mediation of the head of the local customary institution. 1 The commitment and legal awareness of indigenous peoples to comply with the decisions of traditional leaders is a potential that should be developed in order to provide a basis for creating restorative justice as well as being institutionalized to build legal certainty. Meanwhile, on the other hand, the performance of the judiciary in resolving land disputes has not been optimal compared to the number of cases handled. Permanent legal decisions (inkracht van Gewijsde) can't seem to be carried out, so the dispute continues and the land in question is left empty because it's not clear who owns it legally. Some of the problems related to land dispute resolution include: Firstly, philosophically, legal unification and state law-based judicial mechanisms cannot accommodate the principles and values of the indigenous Papuan people, so that decisions issued by courts have the potential to create disharmony and are far from the values of justice. Second, juridical problems, namely national legislative policies that favor juridical positivization, tend not to guarantee the values or principles that are born into and grow in society. so that there is an opportunity for many parties, especially those seeking justice, to issue various complaints and criticisms.2 Third, the theoretical problem is the need for a new concept that should be a benchmark for the development of national law in resolving land disputes based on local wisdom, which emphasizes restorative justice. Fourth, sociologically, the system of positivizing land law and justice based on 1 Daniel Fitzpatrick, Disputes and Pluralism in Modern Indonesian Land Law, Vol. 22, h. 40, h. 15. 2 Susanti Adi Nugroho, 2009, Mediasi Sebagai AlternatifPenyelesaian Sengketa, Telaga Ilmu Indonesia, h. 158. 1

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