Constitutional Jurisdiction Review of the Existence of Indigenous Law Communities in Indonesia

Abstract

The purpose of this study is to find out the reasons for the formation of the Indigenous Law Community which are stated to still exist in Indonesia and the reasons why customary law is not codified in Indonesian laws and regulations. Customary law is based on Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. The research method used in this article is normative legal research or commonly referred to as doctrinal law research that focuses on written regulations. The findings in this article reveal that customary law is not one of the laws in the hierarchy of laws and regulations in Indonesia because customary law is not a written law. Customary law will continue to change according to the desired interests and will ensure a sense of justice for the community because of the problems that exist in the community. Therefore, the codification of customary law iscontrary to the existing law in Indonesia which was made to be valid forever. According to Satjipto Raharjo, there are 4 requirements in Article 18 B paragraph (2) of the 1945 Constitution of the Republic of Indonesia as a form of state power that determines the existence of a Customary Law Community, namely. as long as they are alive, in accordance with the development of society, according to the the principle of the unitary state of the republic of Indonesia and regulated by law.

Customary Law ``Bolit Mate Nawar Uman" As ``Living Law" in West Kutai Regency, East Kalimantan.

“…Then it became legally meaningful after C. Van Vollenhoven wrote in his book entitled Adatrecht. C. Van Vollenhoven, who conveyed for the first time that customary law is the law that applies to native Indonesian people and makes customary law an object of separate subjects and knowledge in positive law [1], [2].…”

“…Customary law is also known as one of the positive laws in Indonesia where customary criminal law, the country of Indonesia is a country whose people have a variety of 4th INCLAR customs and cultures that are different from the current situation of the Indonesian state where there is diversity of Legal Pluralism (Law), where applied simultaneously to the development of the life of these indigenous peoples ( [3]& [4]). Recognition of the existence of customary law has been contained in the 1945 Constitution of the Republic of Indonesia article 18B clause (2) and article 28I clause (3) ( [5]& [6]).…”