Reinforcing the Status of Customary Law as a Basis for Adjudicating in the Judicial Power System in Indonesia

Abstract

The goal of this research is to investigate the status of customary law as a basis for adjudicating in the judicial power system, and to reinforce the status of customary law as a basis for adjudicating in judicial power laws. This research is doctrinal law research. The research data is secondary data, which consists of primary, secondary, and tertiary legal material. The data was obtained through a document study. The data analysis is qualitative, using an interpretation technique and a legislation approach, case approach, and conceptual approach. From the research results, the following conclusion and findings were obtained. First, the status of customary law in the judicial power system is unclear because it is not stated explicitly. Law No. 48 Year 2009 about Judicial Power does not mention the status of customary law as a basis for adjudicating. Second, in order to reinforce the status of customary law as a basis for adjudicating: (1) Judges are obliged to scrutinize, follow, and understand the legal values and sense of justice and the customary law that exists in the community. (2) The judge’s decision must not ignore the customary law and sense of justice of the community. (3) The court verdict, in addition to stating the reasons and basis of the decision, must also mention the specific articles of the related legislation, the sources of customary law, or other sources of unwritten law that form the basis for adjudicating. (4) A case that has already been decided by a judge of a customary court cannot be retried by a judge in a state court.