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19 J.L. Pol'y & Globalization 74 (2013)
The Politics of Law Formula of Customary Court Recognition Which Responds to the Indigenous People's Needs (A Study of the Papua Special Autonomy Act)

handle is hein.journals/jawpglob19 and id is 82 raw text is: Journal of Law, Policy and Globalization wwiiste og ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.19, 2013 lisT The Politics of Law Formula of Customary Court Recognition which Responds to the Indigenous People's Needs (A Study of the Papua Special Autonomy Act) Mohammad Jamin'*, I Nyoman Nurjaya2, Moh. Ridwan3, Rachmad Safa'at4 1.Doctorate Candidate at Law Faculty, Brawijaya University, Malang and Lecturer at Faculty of Law, Sebelas Maret University, Surakarta 2.Professor of Law, Faculty of Law, Brawijaya University, Malang. 3.Lecturer at Doctorate Law Studies Program, Faculty of Law, Brawijaya University, Malang. 4.Secretary of Doctorate Law Studies Program, Faculty of Law, Brawijaya University, Malang. E-mail of the corresponding author : jamin mh@yahoo.com Abstract This article is drawn from a dissertation, entitled The Politics of Law in the Recognition of Papua Customary Court After the Enactment of Special Autonomy Act. It discusses the formula of how the state legal system can recognize the institution, authority and verdict of a customary court so that it can respond to the indigenous people's needs. This article belongs to a doctrinal legal research. It incorporates several approaches including statute approach, historical approach, conceptual approach and philosophical approach. To analyze the legal sources used as the source of data in this research, interpretative methods are used. After a thorough analysis, this research finds some following formulas to create the politics of law of customary court recognition that can respond to the needs of indigenous society. (1) The customary court should be recognized as a non-state legal system. The customary court is established under peace principals among indigenous people and therefore it should be kept independent and autonomous. (2) The state should acknowledge the customary court's jurisdiction to settle criminal and civil customary disputes among indigenous society. However, it should be emphasized that the customary court can only adjudge pure customary crimes and double criminality cases. In addition, the customary court should be authorized to hand a maximum sentence of five-year jail term to a convict. (3) The verdict of a customary court has to be final and binding. Therefore, it cannot be overruled by any state court. Keywords: Politics of Law, Customary Courts Recognition, Papua Province, Special Autonomy Act 1. Introduction Following the spirit of reformation, in 2001 the Indonesian government enacted Act No. 21/2001 on Special Autonomy for Papua Province (The Papua Special Autonomy Act). This enactment was endorsed by People's Consultative Assembly's decree No. IV/MPR/2000. Various scholars, however, consider the law's enactment is ridden by some political motivations. Many believe the Act merely serve as a political bargain between the Indonesian government and the Papua indigenous people (Jimly Asshiddiqie, 2007: 507; I Ngurah Suryawan, 2011: 118). In the lives of Papua indigenous people, customary court still plays a very great role. Therefore, the Papua Special Autonomy Act, which recognizes the existence of a customary court in its article 50 and 51, has marked itself as the very first legal product in Indonesia that acknowledges the jurisdiction of courts outside state justice system. Nevertheless, several problems remain as the law contains some judicial inconsistencies. The act, according to various scholars, also still failed to accommodate the needs of native Papuans. I Nyoman Nurjaya considers that the Papua Special Autonomy Act only gives illusionary recognition or pseudo recognition to the native Papuans' customary court (I Nyoman Nurjaya, 2011 : 385). The act places the customary court under the state court systems. Therefore, the customary court cannot be autonomous and independent because all of its verdicts can be overruled by state courts. The Papua Special Autonomy Act also contains norms obscurity. Article 51 (1) of the act contains phrase (the customary courts) has the authority to hear and adjudge both civil customary dispute and criminal cases. The phrase is ambiguous because it gives no elaboration on the type of criminal cases, whether they refer to those regulated under Indonesian Criminal Code (KUHP) or only just pure crimes in customary disputes. As a comparison, in the Philippines, its Criminal Code authorizes the customary courts (Katarungang Pambarangay) only to try minor criminal cases (Alfredo Tadiar, 1988: 24). In addition, the dichotomy of customary cases into criminal and civil cases becomes another problem the law posits. Such a dichotomy is a foreign concept to the Papuans' customary law (Hilman Hadikusuma, 1992: 232). Besides the norms obscurity, the Papua Special Autonomy Act also contains conflicting norms. The Definition Section of article 51 (2) says that the customary courts are not included into the state court system but only

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