The Recognition of Customary Rights by Indonesian Constitutional Court

Abstract

Formal law and customary rights never-ending contest have been a challenge for Indonesia in its effort to construct a modern nation. In this kind of battle, there are two conflicting values, the certainty of law versus harmonious value within society. However, the idea of constitutionalism can incorporate customary law as part of its fabric. Within the array of positivism and legal pluralism, the Indonesian Constitutional Court is trying to take leadership in the role of customary rights recognition. One of the legal standings that can put a petition to the constitutional court is a representative of the adat community as long as it still lives according to the values Indonesian State as required by legislation. The provision requires the existence of customary communities stipulated in a specific law. However, the required legislation is not stipulated yet in Indonesia, creating the institutional difficulty for The Constitutional Court upon accepting the customary rights case from specific adat communities. Given the limitation, this paper turns attention to how the Indonesian Constitutional Court deals with the recognition of customary rights as outlined in the Constitution. This study will attempt at answering this question by integrating the reading of Indonesia Constitutional Court judgments, the institutional framework analysis with a sociological approach through Indonesian Constitutional Court judges’ interviews. The study reveals one possible picture of how customary law and constitutionalism can co-exist in the same vision in Indonesia's pluralistic society.   This co-existence is not without risk of tension, but with the possibility of success under the name of constitutionalism order to protect, rather than neglect, the national people living on the plural law.

Received: 16 January 2021 / Accepted: 6 April 2021 / Published: 10 May 2021