HARMONISASI HUKUM ADAT DENGAN HUKUM NEGARA DISKURSUS DALAM POLITIK HUKUM NASIONAL (STUDI SOCIO-LEGAL TENTANG RESOLUSI KONFLIK PERJUMPAAN HUKUM ADAT DAN HUKUM NEGARA DI KALIMANTAN BARAT)

Abstract

The study aims at studying the possibility of harmonizing Dayak Customary law with the state law within the unity of national legal order in Indonesia, as an attempt of preventing conflicts due to putting the customary law into effect by the indigenous community of Dayak in West Kalimantan, within the perspective of legal politic. Even though the location and the subjects of the study are customary laws of Dayak, it does not necessarily mean that the study is merely on the the customary law of Dayak, locality in nature and in dimension; however, the study is national in its dimension. Within the local dimension, marriage between two legal entities within the same social domain territory may pose some possibilities, namely conflict, mutual adaptation and mutual avoidance, as well as harmony. With the national dimension, the existence of customary law constitutes a crucial problem in the development of national law. The customary law of Dayak is one of the entry points to figure out how the state elaborates the ideas on the existence of customary law within the national legal development that has been underlined in the national constitutions and in the national legal politic. The recent study attempts to bring up the issues on the legal harmonization, exactly, the harmonization between customary laws and state law within the unity of national legal order. This is a part of state’s recognition of the existence of customary law, as an implementation of Article 18 B of National Constitution of Indonesia. The issues on legal harmonization are brought onto surface with many reasons. Firstly, within the constitutional domain, there is a necessity of creating a harmony between the indigenous communities along with their customary law that becomes the foundation of their traditional customary rights in accordance with the societal development and the unitary principle of Indonesia. Secondly, constitution demands the national governing authority to establish law as an attempt of recognizing the existence of customary laws. Thirdly, within the social domain, there is a judicial extension in the implementation of customary law, both in territorial dimension and in personal dimension; or in other words, the customary law has been in effect outside its habitat. In the study attempts to answer some central issues, including in what way the legal recognition and harmonization model is established so that the customary law is not in contradiction with the principle of unitary state and with the national legal structure, and how to harmonize the legal system of Dayak community in West Kalimantan with the state law. The study finds some critical points. Firstly, Dayak customary law has formed itself as a separate legal system in addition to the state law. Legal system of Dayak community consists of legal constitutional elements, substances of legal norms and legal culture of the indigenous community. Secondly, the politic of state law on the existence of customary law is continuously changing, from a governmental regime to the other. The legal politic of the New Order regime did not accommodate the customary law within the national legal structures. After the ruin of the New Order regime, national legal politic recognizes the existence of customary law; however, under the subsequent governmental regime, exactly under the governance of President Susilo Bambang Yudhoyono, the national legal politic does not explicitly recognize the existence of the customary law. It is also found that within national constitution, accommodation provided to the customary law is highly partial, scattered over some sector constitutions. Based on the result of the study, it is recommended that the recognition of the customary law be performed as a separated system and be regulated in a separate law. By regulating the customary law with a separate law, it may be harmonized with the state law, within various sectors, both in judicial sector and in some other sectors. Keywords: Legal Harmonization; Customary law, Conflict, state law