The Politics of Law Formula of Customary Court Recognition which Responds to the Indigenous People’s Needs (A Study of the Papua Special Autonomy Act)

Abstract

This article is drawn from a dissertation, entitled “The Politics of Law in the Recognition of Papua Customary Court After the Enactment of Special Autonomy Act.” It discusses the formula of how the state legal system can recognize the institution, authority and verdict of a customary court so that it can respond to the indigenous people’s needs. This article belongs to a doctrinal legal research. It incorporates several approaches including statute approach, historical approach, conceptual approach and philosophical approach. To analyze the legal sources used as the source of data in this research, interpretative methods are used.

After a thorough analysis, this research finds some following formulas to create the politics of law of  customary court recognition  that can respond to the needs of indigenous society. (1) The customary court should be recognized as a non-state legal system. The customary court is established under peace principals among indigenous people and therefore it should be kept independent and autonomous. (2) The state should acknowledge the customary court’s jurisdiction to settle criminal and civil customary disputes among indigenous society. However, it should be emphasized that the customary court can only adjudge pure customary crimes and double criminality cases. In addition, the customary court should be authorized to hand a maximum sentence of five-year jail term to a convict. (3) The verdict of a customary court has to be final and binding. Therefore, it cannot be overruled by any state court.

Keywords: Politics of Law, Customary Courts Recognition, Papua Province, Special Autonomy Act