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This is my article published by The Jakarta Post newspaper on April 1, 2013.

“Santet”, “Adat” Law, and Criminal Code Revision

Currently, public attention is drawn to the controversy over the draft revision of the Dutch-made Criminal Code now being deliberated at the House of Representatives. Regardless of the House’s much criticized plan to conduct a “comparative study” in Europe related to the bill, its substance, if compared with the old Dutch criminal code, is controversial indeed.

Some of the contentious articles concern punishment for those practicing “black magic” (Article 293) which is commonly presumed to be a way to criminalize santet (Indonesian witchcraft), punishment for “blasphemy over religion” (Articles 341-345), punishment for adultery (Article 483) and punishment for “insult against the government that might create unrest in the community” (Articles 284-285). There are also articles concerning “crime against the state”, in which one of them criminalizes any conduct of disseminating Marxism/Leninism/Communism (Articles 212-213).

Surely, those articles deserve much criticism. However, there are other controversial articles that the public may overlook. Those are Articles 2 and 756, which say a person can be penalized by the state in accordance with “unwritten law” or “the living law of the society”. If passed, the articles will run counter to legal certainty as regulated in the old (Dutch) criminal code, which explicitly stipulates that conduct can only be judged as a crime if it is already written in legislation. One of the arguments to support the articles is the state’s recognition of adat law, which is commonly enforced in traditional communities.

The question is whether adat law is adequate to defend the articles. How could those two articles be the most controversial ones?

First, we have to understand the nature of the criminal law. Criminal law is a positive law (law made by the state) aiming to punish any conduct considered by the state as a crime and preventing such conduct from happening. Thus, sentence can only be handed down by the state. Since it is a state-positive law, it is a unified law and therefore enforceable nationally without any particularity.

By contrast, adat law is a living law that is not made by the state but created and defended by the society and it emerges from the customs of Indonesian people. Given the heterogeneity of Indonesian customs, one of the inherent characteristics of adat law is that it is a very plural law. Its norms vary over various ethnic groups, tribes and villages across the nation. It is also dynamic and always changes over time under various situations and
conditions.

That is why the Dutch scholar Von Vollenhoven, billed as the founder of adat law studies, fully opposed the Dutch colonial government’s plan to codify adat laws, which Von Vollenhoven said would undermine the particularity and the dynamic nature of the adat law.

Criminalizing and penalizing conduct based on adat law would therefore be illogical and absurd for Indonesia, which has explicitly declared itself a unitary state.

The second flaw in the state’s plan to enforce adat law is the possibility that it could undermine the concept of adat law because it separates the existence of the (adat) law from the existence of the social institution where such (adat) law exists, the so-called adatrechtsgemeenschap (adat legal entity, commonly known as adat community).

Once again, adat law is a living law and thus naturally it is created, practiced and defended by the social institution outside the state. Given its nature, adat law is a symbol of the authority of an adat legal entity or adat community, and therefore it would be inappropriate to recognize the adat law without recognizing the authority of its adat
institution.

Enforcing adat law by the state over all people by a criminal code will simply be like uprooting an endemic plant from the land where it grows to be planted on a large scale in another area that has different geographical conditions. So, instead of recognizing the adat, it is an idea that totally disregards and suppresses the adat (institutions).

The final flaw or even the danger of the idea behind the articles on adat law is the potency of an arbitrary power of the state. Since, according to such articles, one’s conduct can be judged as a crime that leads to being sentenced due to something unwritten, a person will potentially be penalized without any certain rule. Thus, it will give the state an opportunity to abuse its power. It clearly violates the rule of law as explicitly recognized by the Constitution, which aims to restrict state power by obliging it to comply with the principles of legal certainty when producing
legislation.

Undoubtedly, we need to renew the Criminal Code, which we inherit from the colonial period. However, since it is criminal law and since criminal law is a coercive tool of the state, its amendment should not neglect the fundamental principles such as the rule of law aiming to protect the citizens from the power of the state and any infringement of fellow citizens.

Any revision should be projected to accommodate the current social dynamic rather than what some say is “taking the nation back to the medieval period”, including the dynamic happening in the global world. Therefore, abolishing the death penalty in line with human rights, for example, should be more important to deliberate than penalizing something which has been considered a private matter, such as adultery.

Furthermore, there are a lot of things which actually need our policy makers’ attention more than these legal matters, such us the huge social gap in our society, which could be the most probable root of crime, the corrupt behavior of state officials, including the legal enforcers, impunity for the powerful and so on.

Have those serious problems been fixed in our legal system? As long as the fundamental problems remain unaddressed, any revision of the law will be pointless for sure.

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This is my article published by The Jakarta Post newspaper on July 20, 2012.

Ramadhan and the legal problem of Islamic law

Ramadhan has arrived, but as happened in the past, the holy month is marked with public anxiety about acts of violence by radical groups who use force to demand people respect the fasting month in the name of sharia or Islamic law.

They demand closure of restaurants during the day and of nightclubs and other entertainment spots when Muslims gather for Tarawih prayer in the evening.

Such acts of violence frequently receive support from local governments through enactment of regional ordinances identical to the wishes of the radical groups. The question is whether such actions are necessary and legitimate under our legal system.

First, the so-called Islamic law. In the sense of legal theory, this is a misleading concept embedded in the common sense of our people. “Islamic Law,” according to legal science, refers to a particular law which derives from Islamic values. So, because it is a (particular kind of) law, it must be in line with the general concept of law.

According to socio-legal theorist John Griffiths (1986), law can be seen from two different points of view: centralism and pluralism.

The centralism perspective perceives law only as positive law, which is enacted and enforced by formal institutions of the state. The pluralist perspective defines law not only as the state law, but also normative order that comes into effect internally in any kind of social organization.

To qualify as a law, therefore, a normative order has to be established in a social institution, be it formal state institution or social institution, including informal ones.

If we talk about Islamic law, we must question whether there is a social institution establishing such a normative order.

This query will lead us to another and more fundamental question, which is whether Islam as religion is a social institution or simply a belief. It is important to determine if Islamic law is a set of norms or just a set of moral values.

In my point of view, the answer is both yes and no. Yes, that Islam as religion is a social institution if we look into some Islamic social organizations like Nahdlatul Ulama (NU), Muhammadiyah or even hard-line organizations like the Islam Defenders Front (FPI). Undoubtedly all of them are social organizations and therefore each of them has the capacity to establish and enforce a set of normative orders as a law of their own.

However, we have to be aware that the authority of those Islamic institutions is limited to their respective members.

Therefore, “Islamic law” cannot bind the entire Muslim community because its jurisdiction is limited only to member of certain Islamic institutions.

It would be different if Indonesia adopted theocracy as its political system, or at least based on Islam, as Saudi Arabia does.

If this happens, Islamic law is sovereign over all Muslims (and other citizens) because Islamic norms and values have been transformed into the (Islamic) state positive law.

So, in a country like Indonesia, which doesn’t embrace such a political system, the claim that Islamic law is enforceable to all Muslims is simply absurd and deceptive.

Absurd how, if Islamic norms have been translated into regional ordinances? Can’t they be called Islamic law and enforceable to all citizens of the regions?

For such question, the answer is obviously yes.

Such local governments have established Islamic law for their citizens. However, with regard to this phenomena, we must further question whether such practice is legal according to our juridic system, especially the Constitution.

Article 27 paragraph 1 of the Constitution firmly states that everyone is equal before the law and the government. Thus, government action, policy or regulation differentiating people based on any aspect of identity and status, including religion, is unlawful.

If a regulation prohibits a restaurant or a night club from opening at a particular time due to Ramadhan, it is obvious that such a regulation derives from particular arguments based on a particular religion (Islam), and thus biased toward a certain identity and religion.

Why? It serves the interests of followers of particular religion, Muslims, who fast during Ramadhan, at the expense of the rest of citizens who embrace other religions and beliefs.

If such a regulation is enforced, it will bar those who don’t fast from having lunch at restaurants and going to nightclubs, which are totally legitimate activities in this country. The regulation absolutely contradicts the Constitution and therefore it is not justifiable according to our legal system.

Freedom of religion and the right to profess religious beliefs are human rights protected by the Constitution and the state is obliged to guarantee and protect such rights. However, the Constitution also stipulates that protection of human rights is limited by the rights and freedoms of others.

The Constitution does not tolerate violations of someone’s freedom and rights to eat lunch in a restaurant nor seek entertainment in a nightclub.

In the same tune, the Constitution also protects citizens’ right to observe their religious duties like fasting.

It must be underlined that we live in a country that adopts the rule of law, rather than a particular religion.

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This is my article published by The Jakarta Post newspaper on December 22, 2011.

Mesuji, Land Conflict and Legal Pluralism

We are shocked by the reports of violence in Mesuji, which borders Lampung and South Sumatra. Controversy, however, has shrouded the case, after video footage depicting heinous mass killings were played before the House of Representatives, some parts of which turned out to be taken in the rebellious south Thailand region of Pattani, according to CBS News.

Whether or not the controversial video footage is really associated with the Mesuji killings, violence occurred in the area as a result of a land conflict between local people and an oil palm plantation company, as emphasized by human rights group Kontras (The Jakarta Post, Dec. 12, 2011). As investigations to find the root cause of the violence are under way, a land dispute as the trigger of the conflict should be taken into consideration.

Land affairs are governed under Law No. 5/1960, which is popularly known as the Indonesian Agrarian Law (UUPA). It is clear in the law that, according to the Constitution, the earth, water and all resources fall under the state’s control (Article 2) and therefore the state has the authority to award rights over land to the people, either individuals or corporations (Article 4).

So, according to the law, the right of land can only be obtained if it is given by the state.

However, in the sense of positive law, the UUPA is the primary law regulating all matters of land in Indonesia, and empirically there is also customary (adat) law, as legislation regulating land among the customary societies. Customary law is unwritten law that has existed in our society since a long time ago, composed of traditional values, emergent from daily customs of the people and inherited by ancestors.

Adat law regulated the daily conduct of our people before the Indonesian state was born. It is a fact we can’t disregard that some of our people still believe in adat law more than any other law, and thus they will only obey their adat law and ignore other laws, including state laws.

This happens not because of the spirit of separatism or disobedience to the state, but because adat law is the law reflecting the cultural values of the people.

So, adat law is part of their cultural identity and therefore it is the law closest to their life.

Generally, most adat laws in Indonesia stipulate that land is a property owned collectively by a community of customary people, and thus a right of land is a communal right, derived from the existence of a community of adat people, which is commonly called an ulayat right.

Furthermore, according to adat law, land is not merely perceived as material goods, but is something sacred because it is perceived as “the mother” that gives birth and feeds all people living on the land (Koesnoe, 2000).

As “their mother”, none of the adat people will give up the land to anyone, including the state.

Under agrarian law, the ulayat right of a community of adat people is recognized as long as it is not contradictory to the state’s interest (Article 3).

In other words, if particular land is possessed by a community of adat people with their ulayat right while the state has an interest in such land, the ulayat right of the customary people can be ignored.

Under agrarian law, land is perceived simply as material goods that can be utilized for development by the state as the authorized owner of the land.

The presence of agrarian law and customary law not only demonstrates a conflict, but also a plurality of laws in such a diverse country like Indonesia.

However, the government, the legislature, law enforcers, lawyers and even judges often neglect the fact that plural laws govern land matters and tend to consider the state’s positive law as the most prominent and thus the most powerful law.

They simply take for granted a notion that the state’s positive law should be the only legislation that regulates the society and therefore they ignore the most important element of the law itself, which is the people, who might have enforced their own law for generations before a positive law emerged.

Holding such perceptions, which is referred to as a “legal centralism paradigm” (Griffiths, 1986), the state and other stake holders of this country simply fail to understand society.

 

English:

It is my book entitled “Legal Pluralism in Industrialized Indonesia: A Case Study on Land Conflict between Adat People, the Government, and Corporation Regarding to Industrialization in Middle Java” published by VDM Verlag Dr. Muller Publishing House – Germany. This book analyzes the phenomenon of legal pluralism in the context of industrialization in Indonesia by taking a case study on the land conflict between Sedulur Sikep community as an adat people community living in Middle Java and Semen Gresik Company as a cement manufacturer proposing to establish its new factory and to exploit limestone in the Kendeng Hills as the place where the Sedulur Sikep community are living, in which such plan is fully supported by the government.

Here is the abstract of this book:

“Industrialization has been so popularly established in the modern world, and it is justified by a perception that it can foster development in a country. So many countries are then encouraged to establish policies expected to promote industrialization, including in the realm of legal policy which is usually imposed through the politics of legal centralism. However, such perception may contain serious risk. In a pluralistic country like Indonesia where there are still so many people living in traditional socio-political groups called as adat people, such centralistic policies imposed regarding to the development interest often neglect the existence of these people and this situation often leads into tensions and conflicts between the government and corporations in one hand and the adat people in another hand. This book provides a contemporary picture about a state of legal pluralism in Indonesia in the middle of industrialization era as reflected by a conflict of land involving a community of adat people called as “Sedulur Sikep” and a cement company supported by the government regarding to a plan of industrial establishment in Middle Java.

For getting this book, you can buy it through online bookstores as listed below:

 

Bahasa Indonesia:

Telah terbit buku saya berjudul “Legal Pluralism in Industrialized Indonesia : A Case Study on Land Conflict Between Adat People, the Government, and Corporation Regarding to Industrialization in Middle Java” yang diterbitkan oleh Penerbit VDM Verlag Dr. Muller – Jerman. Buku ini mengkaji fenomena pluralisme hukum dalam konteks industrialisasi di Indonesia dengan mengabil studi kasus pada konflik yang terjadi antara Masyarakat Sedulur Sikep (wong Samin) di Pati Jawa Tengah dengan Pemerintah dan P.T Semen Gresik atas rencana pendirian pabrik semen dan eksploitasi batu kapur di Pegunungan Kendeng Utara sebagai wilayah tempat tinggal masyarakat Sedulur Sikep.

Adapun abstrak dari buku ini adalah sebagai berikut:

Industrialization has been so popularly established in the modern world, and it is justified by a perception that it can foster development in a country. So many countries are then encouraged to establish policies expected to promote industrialization, including in the realm of legal policy which is usually imposed through the politics of legal centralism. However, such perception may contain serious risk. In a pluralistic country like Indonesia where there are still so many people living in traditional socio-political groups called as adat people, such centralistic policies imposed regarding to the development interest often neglect the existence of these people and this situation often leads into tensions and conflicts between the government and corporations in one hand and the adat people in another hand. This book provides a contemporary picture about a state of legal pluralism in Indonesia in the middle of industrialization era as reflected by a conflict of land involving a community of adat people called as “Sedulur Sikep” and a cement company supported by the government regarding to a plan of industrial establishment in Middle Java.

Untuk mendapatkan buku tersebut, silahkan mengakses online bookstores sebagai berikut:

Indonesian (See the English version below this article):

Seringkali orang mengaku dirinya ber-agama guna ber-Tuhan. Sayangnya mereka seringkali terjebak lebih menuhankan agama itu sendiri dari pada Tuhan. Kita harus sadar bahwa walau agama membawa klaim nilai-nilai ketuhanan, antara agama (sbg suatu hal yg imamen) dan Tuhan (sbg suatu hal yg transenden) adalah entitas yg berbeda. Bagaimanapun, agama jelaslah suatu produk budaya.

Adalah benar bahwa dalam setiap agama terkandung nilai-nilai ketuhanan (religio-magis). Namun perlu diingat bahwa nilai-nilai tersebut bekerja dalam wilayah kesadaran manusia, dan, sebagaimana kita tahu, setiap produk kerja kesadaran manusia adalah budaya. Sebagai suatu hasil artikulasi pencerapan atas kekuatan adi-kodrati di luar dirinya (Tuhan), dalam kesadarannya manusia melakukan pro-kreasi, produksi, dan re-produksi nilai yang kemudian kita namakan sbg nilai-nilai ketuhanan. Sebagai suatu realitas, rangsangan kekuatan adi-kodrati (eksistensi Tuhan) sedari awal masuk ke dalam wilayah kesadaran manusia melalui aktivitas penafsiran, yg kemudian diolah lebih lanjut dan di re-produksi mjd nilai-nilai ketuhanan (spiritualisme, religio magis), yg lebih jauh lagi dikongkritisasi dalam ruang sosiologis dg nama: agama.

Sebagai suatu kerja kesadaran, dan sebagaimana yg mjd sifat khas budaya, semua rentetan aktivitas di atas tentunya bersifat: subyektif-relatif-kondisional. Segala macam pengalaman yg dimiliki si subyek ybs dlm melakukan aktivitas penafsiran akan mjd determinan atas hasil penafsiran yg dicapai. Itulah mengapa, dalam setiap agama, tdp subyek Tuhan yg berbeda-beda (Kristus, Allah, Sang Hyang Widhi, Yahwe, dsb) beserta nilai-nilai yg secara relatif berbeda-beda pula. Hal tsb disebabkan karena semua aspek historis yg sifatnya relatif yg muncul di saat agama tsb dilahirkan, yg kemudia scr terus-menerus diprokreasi (baca: disebarkan), mjd determinan atas aktivitas tsb yg scr logis akan menghasilkan keberagaman. Keberagaman (subyektivisme, relativisme, dan kondisionalitas) adalah ciri khas kerja kesadaran manusia, dan karena agama adalah bagian dari padanya, maka keberagaman adalah juga mjd ciri khas keberagamaan, dan hal ini tidak bisa dicegah terlebih lagi disalahkan. Namun di sisi lain, karena semua agama berawal dari aktivitas kerja kesadaran manusia atas adanya realitas tunggal yaitu kekuatan adi-kodrati (eksistensi Tuhan) di luar dirinya, maka dibalik subyek Tuhan yg berbeda-beda dan di balik keberagaman relatif nilai-nilai yg ada, tdp garis besar yg sama atas semua agama yg pernah ada dalam peradaban manusia, dan ini berlaku sejak haman purba hingga jaman kontemporer sekarang ini.
Berdasarkan hal di atas, maka seharusnya disadari bahwa hal terpenting dari agama bukanlah hal yg sifatnya relatif-subyektif- serta kondisional, namun garis besar yg sama yg mjdkannya karakteristik umum proses kerja pencerapan manusia atas kekuatan adi-kodrati di luar dirinya yg tjd sejak jaman dahulu hingga akhir jaman nanti. Dengan demikian, hal terpenting dari agama bukanlah siapakah subyek Tuhan itu sendiri, serta nilai-nilai relatif yg beragam lainnya, melainkan adanya premis umum bahwa tdp kekuatan adi kodrati di luar diri manusia (eksistensi Tuhan) dimana manusia menundukkan diri terhadap kekuatan tersebut guna menciptakan realitas kehidupan yg lebih baik bagi mereka.

Sebagai suatu budaya, adalah seharusnya jika agama tidak bersifat solid dan kaku, karena bagaimanapun dia adalah wujud kerja aktivitas kreasi-prokreasi dan interpretasi-reinterpretasi nilai yg akan senantiasa bergulir sepanjang sejarah. Sebagaimana artikulasi budaya lainnya, agama seharusnya bersifat cair, luwes, terbuka, inklusif, dan dialektis, yang bisa diserap dan dituangkan kembali dalam berbagai “bejana sosial” yang berbeda-beda. Sebagaimana kemampuan penangkapan manusia akan realitas (aktivitas penafsiran) yang senantiasa terbatas (shg bersifat subyektif, relatif, dan kondisional), agama-agama yg beragam adalah bagaikan kepingan-kepingan kecil sebuah puzzle, di mana untuk mendapatkan gambaran umum yg lebih baik ttg esensi dasar agama yg beragam tsb, masing-masing puzzle harus dirangkai satu sama lain. Oleh karena itulah, komunikasi dan dialog atas keberagaman keberagamaan yang didasari kesamaan dalam garis besar yang ada guna mendapatkan gambaran kebenaran yg labih baik adalah suatu keniscayaan.

Namun sayangnya, agama yang seharusnya berada dalam ruang kultural tersebut seringkali diseret jauh ke luar untuk dibawa masuk dalam dimensi kekuasaan melalui klaim-klaim universalitas. Apa yang seharusnya relatif (personifikasi Tuhan, nilai-nilai relatif yang beragam scr sosiologis) dijadikan sbg nilai-nilai umum dan meminggirkan serta mengaburkan premis umum yg sebenarnya (ketertundukan atas kekuatan adi kodrati guna menciptakan kehidupan yg lebih baik) dg tujuan utk dpt menguasai klaim kebenaran scr monolitis untuk kemudian dapat melakukan kooptasi pada agama-agama dan aspek-aspek budaya yang lainnya. Agama kemudian menjadi klaim identitas, yg berfungsi sbg alat eksklusi dan marjinalisasi atas yang lain (the other). Sampai di sini, agama sudah berubah menjadi alat penindasan. Itulah mengapa, sejarah dunia telah terlalu sering membuktikan, betapa banyaknya fenomena pembantaian anak manusia atas dasar klaim agama. Untuk mempertahankan kedok kekuasaan ini, maka digunakanlah jargon-jargon kesakralan. Agama menjadi suatu entitas yg final, solid, rijid, dan irasional yang terlarang untuk dimasuki aktivitas akal, kritik, modifikasi, dan komunikasi. Inilah fenomena dimana agama telah dituhankan melebihi Tuhan itu sendiri.

English:

People often claim them self as religious persons in order to claim that they believe in God. Nevertheless, they are often trapped to worship their religion more as “God” rather than the God itself.  We have to realize that even though the religions bring theism values, religion (as an immanent existence) and God (as a transcendence existence) are different entity. Religion is produced by culture.

Indeed, every religion has theism values inside it. But we have to remember that these values work inside human’s consciousness, and, as we already know, everything produced by human’s consciousness is what we call as culture. As a result of humans’ perception of the natural supreme power outside them self, they (humans) create, produce, and re-produce values inside their consciousness, and these values are what we know as theism values. As a reality, the stimulus of the natural supreme power enters the humans’ consciousness through interpretation activity, and then processed and reproduced as theism values (spiritualism), in which these theism values will be concretized further in a sociological space as religion.

As a conscious work, and as what cultural characteristic is, every single phase of the activities above is, off course, subjective-relative-conditional. Every thing which has been experienced by the subject (human) will determine the result of the interpreting process done by this subject. That’s why in every single religion there are many different personifications of God (i.e.: Christ, Allah, Yahweh, Sang Hyang Widhi, etc.), including the relatively different values following them. It is because all relative historical aspects existing at the time when a religion raises and then spreads, determine all those activities which logically results in diversity and plurality. Relativity, plurality, diversity, subjectivity, and conditionality are the characteristics of human’s consciousness, and because religion is part of human’s consciousness so all the characteristics above are the characteristics of religion as well, and this fact can not be avoided or even be blamed. However, there is one same essence lies behind various values among various religions which has been being established since ancient time until nowadays because though human interpret the natural supreme power in various way and results variously as well the interpreted object is the same thing. According to this, we should realize that the most important things of religions are not the relative-subjective-conditional things of them but the same essence which is the general characteristic of the perception activity of the natural supreme power done by humans since ancient time until contemporary time right now. So, the most important thing of religions is not who the God is including all relative values following it but the general premise that there is natural supreme power  (the God) existing outside humans whom humans submit them self on it in order to create a better life.

As part of culture, religions should not be solid and rigid because it is a result of creation, pro-creation, interpretation and re-interpretation activities which always happen along the history. As commonly articulated culture, religions should be liquid, flexible, open, and dialectical which can be absorbed and then re-manifested in different social context. According to the limited human ability in capturing the reality, various religions existing in this world is like pieces of puzzle which has to be linked one to another. Therefore, communication and dialogue among these various religions based on their same essence in order to get a bigger and better picture about the truth is inevitable.

Unfortunately, religions which should be developed in cultural space are often taken out from that space in order to be bring into power dimension through claims of universality. What should be relative (the personifications of God and various sociological values) is perceived as general values which marginalizes and obscures the real general premise (humans submission on the natural supreme power outside them)in order to get a monolithic control of the claim of truth that makes possible to be dominate over another religions and cultures. Religion then becomes claim of identity which functions as tool to exclude and marginalize the others. At this stage, religion has transformed into a suppression tool. That’s why history has proven too often how many man slaughters has been happening based on religious claims. In order to defend this disguise of power, many jargons of holiness are used. Religion becomes a final, rigid, solid, and unreasonable entity which is forbidden for any reasoning activity, critique, modification, and communication. This is what we can say here as worshiping religion more than the God itself.

Note: Tulisan ini dimuat di Harian Surabaya Pagi tanggal 27 Maret 2010 (This article was also published in Surabaya Pagi Daily News on March 27, 2010.)

To understand the judicial system in Indonesia, first of all we have to look into the Indonesian Constitution as the fundamental norm. According to the article 24 paragraph 2 of the Indonesian Constitution, the judicial power is operated by two institutions which are: Constitutional Court and Supreme Court. The constitutional court is a court which has competencies [article 24C paragraph 1 and 2 of the Indonesian Constitution]: Adjudicating any judicial review of the legislation which is contradictory with the constitution, resolving dispute about competency among of the state institutions, deciding to dismiss a political party, resolving dispute about the result of an election, and adjudicating an impeachment against the president. Meanwhile the Supreme Court is the top of courts supervised by it which has capacities [article 24A paragraph 1 of the Indonesian Constitution]: adjudicating any judicial review of the regulation which is contradictory with any legislation, and as the final appeal court.

As the final appeal court, the Supreme Court of Indonesia supervises four different courts in Indonesia either in the first level or in the appeal level, which are: General Court, Administrative Court, Religion Court, Military Court, and some specialized courts. General Court is a court which has competency to adjudicate any common criminal case and common civil / private case [article 50 of the Indonesian Legislation number 2 of 1980]. Administrative Court is a court which has competency to adjudicate any administrative dispute between citizen and the government [article 47 of the Indonesian Legislation number 5 of 1986]. Military Court has competency to adjudicate any criminal case done by an army [article 9 of the Indonesian Legislation number 31 of 1997], meanwhile the Religion Court has competency to adjudicate several civil cases among Muslims which are marital, inheritance, wasiat, hibah, zakat, infaq, shodaqah, and economic business which is held based on Islamic principle [article 49 of the Indonesian Legislation number 3 of 2006].

Some specialized courts are courts which have very specific competency regulated by specific legislation. Some examples of this kind of court are: Special Court of Human Rights to adjudicate any gross human rights violation [based on the Indonesian Legislation number 26 of 2000], Special Court of Corruption to adjudicate any case of corruption [based on the Indonesian Legislation number 31 of 1999],  Special Court of Commerce to adjudicate bankruptcy case [based on the Indonesian Legislation number 37 of 2004], case of copy rights violation [based on the Indonesian Legislation number 19 of 2002], and resolve dispute about patent [based on the Indonesian Legislation number 14 of 2001], dispute about trade mark [based on the Indonesian Legislation number 15 on 2001], dispute about trade secret [based on the Indonesian Legislation number 30 of 2000], and dispute about trade competition [based on the Indonesian Legislation number 5 of 1999], and Special Court of Children to adjudicate common criminal case committed by children [based on the Indonesian Legislation number 3 of 1997].

Alongside the judicial system explained above, the Indonesian legal system also recognize “Alternative Dispute Resolution (ADR)” as an alternative way in resolving dispute in civil and private law field especially in commercial matter outside the court. The ADR mechanism is perceived as an urgent thing because of its ability to provide “win-win solution,” and this mechanism ranges from negotiation, mediation, to arbitration.  The ADR menchanism is regulated by the Indonesian Legislation number 30 of 1999. This legislation may reflect the insistence done by the government about the importance and urgency of this dispute resolution mechanism. Furthermore, according to the Supreme Court’s regulation number 2 of 2003, the General Court and the Special Court of Commerce is obliged to organize mediation among conflicting parties who submit their case in civil and commerce field into these courts.

17 Agustus 2009, tepat 64 tahun Proklamasi Kemerdekaan Indonesia. Sebagai suatu hal yang telah tereduksi menjadi sebatas ritual simbolik semata, peringatan “kemerdekaan bangsa” pun secara hingar-bingar nan semarak dilaksanakan di sana sini, namun minus akan makna. Bahkan, secara menyedihkan berbagai ritus seremonial ini justru cenderung mengasingkan masyarakat akan realitas yang sesungguhnya terjadi, yakni suatu realitas pahit bahwa sesungguhnya apa yang telah dijalani dan dilalui oleh rakyat Indonesia dalam sistem sosial kehidupan mereka selama 64 tahun ini pada hakekatnya jauh dari makna merdeka.

Bahwasanya kemerdekaan sebagaimana dicita-citakan oleh para nenek-moyang pendiri bangsa ini (the founding fathers) bukanlah sekali-kali kemerdekaan dengan arti yang sangat minimalis berupa lepasnya Indonesia dari cengkraman kolonialisme dan imperialisme bangsa asing saja, melainkan sebagai pintu gerbang atau yang oleh Soekarno disebut sebagai “jembatan emas” (the golden bridge) menuju tata sosial masyarakat Indonesia yang adil, makmur, dan sejahtera sebagaimana yang secara eksplisit dituliskan dalam Pembukaan UUD 1945 alenia ke-2 dan ke-4 sebagai suatu rumusan filosofis nan fundamental dari tujuan didirikannya Negara Republik Indonesia ini.

Bardasarkan tujuan kemerdekaan yang kemudian langsung disambung dengan pendirian Negara Republik Indonesia sebagaimana dijabarkan dalam Pembukaan UUD 1945 di atas, maka dapat disimpulkan bahwa kemerdekaan dan pendirian negara ini hanyalah memiliki makna jika ia dapat menjadi akses bagi rakyat secara keseluruhan menuju kemakmuran dan kesejahtreraannya yang hanya dapat dicapai dengan cara menciptakan suatu struktur masyarakat yang berkeadilan sosial (social structure based on social justice).

Pertanyaannya, selama 64 tahun ini, apakah tatanan masyarakat yang berkeadilan sosial ini telah benar-benar tercipta? Untuk mempermudah menjawab pertanyaan ini, maka saya akan menggunakan analisis mikro, yakni dengan tidak melebarkan spektrum pada skala nasional melainkan dengan membatasi spektrum dalam skala lokal. Sebagai masyarakat Jawa Timur, tentu kita semua (seharusnya) masih aware (memberikan perhatian penuh) pada kasus terbesar nan multi dimensional yang tak terselesaikan hingga kini, yakni kasus lumpur Lapindo.

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