Legal Pluralism Approaches and Customary Land Rights Disputes on Indigenous Law Communities of Sentani Papua

Abstract

The aim is to understand and analyze the approach of legal pluralism in the resolution of land rights disputes. The methodology of the research is normative and empirical juridical methods. The data are collected through primary and secondary legal materials. It conducts als interviews to relevant rerspondents. The data then analyze qualitative. The results of the research show that the existence of a diversity of legal systems (state law, customary law, religious law, and other customs) affects the object of customary land rights disputes in the customary law community Sentani Jayapura Regency Papua Province. The reasons for the choice of Sentani customary law community are: 1) sense of social justice because of the balance values based on the kinship legal system; 2) low cost and / or even no fees; 3) determined and fast trial is not convoluted; and 4) a sense of collective / social justice based on "cosmic" values not individual justice. The customary land rights disputes itself is determined by: a) patterns of ownership and control of communal customary land to be individual; b) land value from social value to economic value; c) tenuous family relations; d) differences in perceptions between the customary law community and the government of the concept of customary land rights; and e) the source of land disputes due to the history of origin, the system of land ownership and customary land boundaries is unclear because of the regional expansion, administrative boundaries and cultural boundaries at the level Yo kla, village/ Yo Khani, clan-owned lands/Khani Khoselo, service land/Khani Memokhoi, private land/Umbai Khani; f) inherited land, war land, magical land, service land, marital land, forfeit land; and g) historical land, Dutch land, leadership land, cultural customary land boundary to administration, land compensation. The form of dispute over customary land rights, such as 1) the concept of the legal substance of the object of the dispute, 2) the legal structure of the institution that has the function to resolve land tenure and land ownership disputes or land boundaries, 3) the mechanism or procedure in the court and other institutions that can resolve land tenure disputes, and 4) legal culture, legal substance and legal structure. Thus, the form of settlement of customary land disputes over the land of the Sentani customary community through two channels, namely: formal justice (litigation) and non-formal justice (non litigation). The reality is that the indigenous law communities of Sentani are more inclined to the non-litigation mechanism according to reasons of choice of law and sense of justice.

Keywords: Legal Pluralism, Land Disputes, Customary Law Communities.

DOI: 10.7176/JLPG/91-07

Publication date: November 30^th 2019