This essay examines the applicability of international human rights instruments as the legal basis to protect indigenous rights to land, territories, and natural resources to non-ratification countries of the Convention on indigenous peoples’ rights, especially to the Indonesian context. In the last few decades, the United Nations has developed and recognized the rights of indigenous peoples, including rights to their ancestral lands, territories, and resources. These rights have been stipulated in several instruments, such as the ILO Conventions No.169 and UNDRIP. Nevertheless, most Asian and African countries have not ratified the Treaty, including Indonesia. Consequently, the rights failed to be adopted into national policies, which the ratification is a pre-condition before came into force through the national regulations. Indonesia also doubted the exclusive rights of land, territories, and resources traditionally owned by indigenous peoples. Legally, lands, territories, and resources are controlled by the States, as mentioned in Article 33 of the 1945 Constitutional law. Economically, Indonesia relies on land, territories, and natural resources to boost its national revenues. To achieve this aim, the expropriation of indigenous land and territories often occurs through land concession policy for private or state-owned companies. As a result, land tenure and social conflict were common phenomena from the New Order Regime until the current day. This conflict spreads across the country from the west part (Sumatra) to the east of Indonesia (Papua). Therefore, author argues that applying general international human rights instruments will be an alternative approach in protecting the fundamental rights related to their traditional land rights in the Indonesian context.
The process of Islamic law legalization in Aceh since 1999 has not been reflecting the goals of the Islamic law application itself. This can be shown by the existing various crimes and violations against Islamic values, such as crime and other immoral conducts. This paper covers at least there elements of revitalization process which according to Soekanto from Friedman can be used as the measurement of law application effectiveness. That is to say, the enforcement of law requires the execution of all interrelated elements namely rules of law, law enforcement, and culture of law. Accordingly, there are three basic points needed to revitalize this Islamic law. First is reforming the rule of acts, second is empowering awareness of public towards law, and last is to perform law in better condition in term of justice and prestige. This research uses literature approach by collecting many secondary sources regarding to the topic of this study. Finally, it concludes that the application of Islamic law in Aceh truly needs comprehensive and simultaneous revitalization and reform, so the application will actualize values of justice, prosperity and peace for Aceh. However, so far, the enforcement of law has not been optimized due to the conducts of people and law enforcement board which lack reflecting Shari'a values and orders.
Artikel ini bertujuan untuk mengkaji konsep penerapan syari’at Islam di Aceh, di mana pada umumnya lebih banyak ditonjolkan simbolik dari pada subtansi. Sementara, tujuan utama dari penerapan syari’at Islam sering tidak teraktualisasikan. Khususnya ketika substansi tersebut dituangkan dalam ketentuan perundangan-undangan (qanun) tentang penerapan syari’at Islam. Sehingga nilai hukum Islam dalam penerapannya menjadi sangat sempat. Lebih jauh, kepentingan politik diantara para pengambil kebijakan dalam membuat qanun tersebut juga sangat kompleks. Penelitian ini akan mengkaji suatu perspektif yang berbeda dalam proses pelaksanaan hukum Islam di Aceh. Sementara penelitian ini akan dilakukan dengan metode kajian kepustakaan, di mana akan berfokus pada sumber-sumber yang membahas tentang hukum Islam dan sumber lainnya yang berkaitan dengan isu ini. Hasil dari penelitian ini menunjukkan bahwa dibutuhkan banyak pendekatan untuk menerapkan nilai-nilai Islam seperti halnya mewujudkan tujuan dari filosofi syari’at dibandingkan dengan penerapan syari’at yang berperspektif fikih semata.
This paper analyzes the historical shifts of land property rights in Indonesia's archipelago and how new land laws were formed, especially during the Dutch colonization era. After the Netherlands East Indies (NEI) established in the 18th century and proclaimed itself as a sovereign landlord over the East Indies (Indonesia), the role of indigenous law (adat law) and its rights to lands have diminished by a new form of law namely the European law system (the civil code). By adopting the European civil code, the colonial Dutch declared all uncertified lands and all forests’ resources were the Dutch colonial State's property and to be managed by the colonial authority [State’s domain]. For Adat peoples, these rights belong to them, either as individuals or as groups, and it had been recognized by their customary law (adat law) legally, which they have had since their ancestors inhabited within the land, territories, and resources. Further significant impact toward the adat rights to land, when the Agrarian Act (agrarisch wet) applied in 1870 by the colonial government, had severely impacted towards the land right of indigenous peoples in Indonesia, by which most of them had lost their adat property right to lands and forest resources. In contrast, the Dutch colonial State was gained millions of guldens for economic profit from the expropriation of the native land and from unpaid native slaves who worked in the Dutch plantation sectors.
The aim of this research is to find out the concept of ijmak based on Fazlur Rahman’s through. As a general rule, ijmak is understood as a source of Islamic law after al-Qur’an and hadis. Therefore, ijmak has been designed as a concret concept and its position is imposible to be wrong (infalibillitas). Moreover, it’s not available for differences of opinion among of Mujthid during the process of ijmak. Meanwhile, Fazlur Rahman believed that ijmak as a democracy process which may for every scholar (mujtahid) to make differences of opinion. This study based on library research which exploring and examining the book related to Fazlur Rahman’s thought. The result of this study stated that ijmak as a process of opinion interaction each other and will legalized through the formal institution (council/legislative).
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