The Existence of Alternative Dispute Outside of Court through

Indigenous Leaders

Abdul Rahman Maulana Siregar, Runtung Sitepu and Edy Ikhsan

Faculty of Law University North Sumatera, Medan, Sumatera Utara, Indonesia

Keywords: Dispute Outside of Court, Indigenous Leaders.

Abstract: Pursuant to Article 18B paragraph (2) of the 1945 Constitution, the State recognizes and respects the unity of

indigenous and tribal peoples as well as its traditional rights as long as it is alive and in accordance with the

development of society and the principle of the Unitary State of the Republic of Indonesia, as governed by

law. Research on “The Existence of Alternative Dispute Outside Of Court Through Indigenous Leaders” is a

normative study supported by data obtained in the field. Normative legal research is a study using secondary

data. The effects of globalization cause the occurrence of various types of customary law conflicts. The

customary law approach in non-court settlement disputes results in a win-win solution, resulting in

harmonization for the parties. Resolving conflicts with customary law approaches based on propriety,

harmony, and harmony can prevent prolonged conflict and realize community harmonization. Harmonization

of the life of society and nation, meaningful to realize the ideals of the struggle of the Indonesian nation that

is imbued by the noble values of Pancasila, the 1945 Constitution, NKRI and Bhineka Tunggal Ika.

1 INTRODUCTION

The Unitary State of the Republic of Indonesia is the

State of Law and not the State of Power. One

indicator of achievement is the formation of

conditions and the ability of citizens or communities

to obey the law or even a law-abiding society. The

process of law enforcement is not entirely done by

using the formal justice method, one of which is

repressive police action and followed by legal

litigation process. The formal act of litigation relies

heavily on the enforced effort and the authority of the

law officers who do so. Furthermore, even if there is

a result, it will generally end up with a "lose-lose" or

"win-lose" situation.

Dispute resolution in Indonesia generally can be

reached by 2 (two) ways that are through the court

and outside the court. Civil procedure law governs the

settlement of disputes within the courts and its

arrangements are contained in the Herziene

Indonesische Reglement (HIR) and Rechtsreglement

voor de Buitengewesten (RBg) or are also governed

by the Criminal Procedure Code No. 8 of 1981.

Dispute settlement outside the court is Law Number

30,1999 on Arbitration and Alternative Dispute

Settlement (APS Law), Supreme Court Regulation

Number 1, 2008 on Mediation or other regulation

related to non-court dispute settlement. If two or more

persons are in dispute and wish to settle the matter, a

third party is required as a way to agree or seek a

verdict, the way taken other than the courts or

litigation is through an out-of-court or non-litigation

settlement deemed to be effective and efficient.

The litigation process places the parties against

each other. Otherwise, the litigation dispute

settlement is the final means after another alternative

dispute resolution has not yielded results [1]. The

alternative to such waivers is expected to be more

appropriate if, under certain conditions, reasons and

or actions, alternative dispute resolution mechanisms

may be employed. The settlement of disputes outside

the court in Article 1 point 10 of the APS Law,

Alternative Dispute Settlement is a dispute resolution

or disagreement institution through a procedure

agreed upon by the parties, namely non-court

settlement by consultation, negotiation, mediation,

conciliation, expert judgment or dispute settlement by

custom.

The settlement of the conflict in a litigation case

is defeated to leave suffering for the losers, even the

verdict of the courts that already have the legal force

remains there are not executable, because it is not by

the feelings of community justice. The spirit of the

738

Siregar, A., Sitepu, R. and Ikhsan, E.

The Existence of Alternative Dispute Outside of Court through Indigenous Leaders.

DOI: 10.5220/0008436107380741

In Proceedings of the 2nd International Conference on Inclusive Business in the Changing World (ICIB 2019), pages 738-741

ISBN: 978-989-758-408-4

struggle of indigenous peoples in settlement of the

conflict with the approach of customary law based on

the principle of propriety, harmony. It aims to achieve

the harmonization of community life and nation to a

life of justice, peace, happiness and prosperous for all

Indonesian people, by the noble values of Pancasila,

1945 Constitution, Unitary State of the Republic of

Indonesia and Bhineka Tunggal Ika. According to

Article 18B Paragraph (2) of the 1945 Constitution,

the State recognizes and respects customary law

community units as well as their traditional rights as

long as it is alive and by the development of society

and the principle of the Unitary State of the Republic

of Indonesia, as governed by law.

Shidarta says that in the civil law system family

tradition, positive norms in the legislative system is

seen as the most important formal legal source. It is

especially emphasized in the realm of criminal law.

The meaning of the written law in the context of

criminal law is often restricted to denotation that is

only in the form of law. Therefore, the law needs to

be made as complete as possible to accommodate and

anticipate any violation of the law.

In some areas of Indonesia, there are still

community communities that use

customary/community dispute resolution

mechanisms. This mechanism is seen as more

efficient, faster and more giving a sense of justice

regarding cosmic balance in the community.

Examples of people who still use customary law are

strictly Tenganan indigenous Balinese people who

have the structure of government, law and customary

institutions that are still running well and coexist with

the national legal system. If there are Tenganan

residents who steal, for example, it will be sanctioned

if done in the territory of indigenous peoples

Tenganan. Customary sanctions usually have more

deterrent effect compared to sanctions given by the

state [2].

The existence of alternative dispute outside of

court through indigenous leaders is expected to create

a win-win solution for the parties to the dispute. The

role of the indigenous leader is urgently needed to

avoid dispute resolution through the courts.

2 METHODOLOGY

Legal research is a scientific activity, based on

methods, systematics and individual thoughts, which

aims to study one or several specific legal

phenomena, by way of analysis. There is also a

thorough examination of the legal facts and then

attempts to solve the problems that arise in the

relevant phenomena [3]. The research on “The

Existence Of Alternative Dispute Outside Of Court

Through Indigenous Leaders” is data obtained in the

field supports research normative. Normative legal

research is a study using secondary data.

Research the existence of alternative dispute

outside of court through indigenous leaders as

research Normative legal is collecting data that is

sourced from literature study using various scientific

literature, books, magazines, documents, legislation,

and the work of law, as well as other sources of

literature. Data in normative legal research, i.e., data

obtained directly from the subject of research [4].

3 RESULT AND DISCUSSION

3.1 Alternative Dispute Outside the

Court Through Indigenous Leaders

It can be known from the application of the law in

conflict resolution to understand the enactment of the

law in public life. With the rise of customary conflicts

in society, it is imperative that efforts be made to

resolve them justly and wisely, to prevent the

occurrence of prolonged conflict, leading to national

divisions.

With the approach of customary law that contains

the value of propriety, harmony, and harmony then

the settlement of adat conflicts conducted outside the

court leads to a win-win solution. Historically, the

culture of Indonesian society upholds the familial

approach. In the case of disputes arising within

indigenous peoples, the members of the community

choose to resolve them customarily either through

traditional elders or deliberation.

The role of Through Indigenous Leaders has a

huge role in solving adat conflicts democratically

based on the principles of deliberation and consensus

to realize the harmonization of community life and

nationhood, to achieve justice, peace, prosperity and

happiness in the midst of rapid development and

social change.

Customs and customary institutions strived to be

empowered and conserved and developed to be useful

for national development. The empowerment of

customs, customs, and customary institutions are

intended to make the condition and existence

sustainable and stronger. It plays a decisive role in

national development and is useful for the people

concerned by the level of progress and development

of the times and especially to maintain ethical values,

moral and culture which are the core of customs,

The Existence of Alternative Dispute Outside of Court through Indigenous Leaders

739

customs in society and customary institutions so that

their existence is maintained and continues.

The customary law approaches non-litigation

conflict resolution by creating a win-win solution,

resulting in harmonization for the parties. Resolving

conflicts with customary law approaches based on

propriety, harmony, and harmony can prevent

prolonged conflict and realize community

harmonization. Harmonization of the life of society

and nation, meaningful to realize the ideals of the

struggle of the Indonesian nation that is imbued by

the noble values of Pancasila, the 1945 Constitution,

the Unitary State of the Republic of Indonesia and

Bhineka Tunggal Ika.

According to Lawrence M. Friedman (1994)

differentiated the legal system into three components

namely structure, substance and legal culture.

Structural components include institutions such as

courts as institutions authorized to apply the law.

Substance component is the real form produced by

the legal system either in the form of norm, doctrine,

prohibition, obligation, sanction, and legal validity.

The legal culture includes the attitudes or values of

the community that determine the workings of the

legal system concerned. Legal culture plays a vital

role in guiding the development of the legal system,

which affects the behavior of society, because it

relates to the perception, values, ideas, and

expectations of society against the law. The legal

culture determines the workings of the legal system

in society.

In real life, people act by the legal culture

prevailing in the society. People must not only obey

the national law but also pay attention to the living

rules of society. In resolving adat conflicts,

communities use laws that live in communities such

as customary law and religious law.

3.2 Comparison of the Legal System to

Dispute Resolution Outside the

Court

Only emphasizing state law as the only law that

should be applied in dispute resolution is inadequate.

In the life of the Indonesian people, especially in the

dispute resolution of valid legal diversity that is in

addition to legislation also apply the existing law in

society such as customary law and religious law

which is maintained as a guide to behavior that can

play effectively.

In legal positivism, that positive law is the law.

The positive law is the legal norms that have been

built by the state authorities. The law of the state is

obeyed or obeyed in absolute terms concluded in a

statement "gezetz ist gezet" or "law is the law." This

view differs from legal positivism which teaches that

the way of view is abstract and formal legalist, the

sociological or empirical juridical paradigm, such as

the von Savigny pioneered school of thought, which

has begun to draw the attention of many from an

abstract and ideological analysis of law to a legal

analysis focused on the social environment that

shaped it.

With Von Savigny's view, it is stated that the law

arises not by command of authority or power, but

because of the sense of justice that lies within the soul

of the nation. The soul of the nation is the source of

the law. The dialectic process between the legal

positivism thesis and the antithesis of the historical

flow pioneered by Von Savigny spawned another

school called the Sociological Jurisprudence which

teaches that good law must be law by the laws that

live in society. This theory separates strictly between

positive law and living law. The following figures

include Eugen Ehrlich, who argues that the question

of law today is no longer a matter of formal legality

but moves toward the use of the law as a means of

contributing to the formation of a new order of life or

according to the conditions of the day. The new

positive law will apply effectively when it contains or

conforms to the living laws of the community.

Empirically it can be said that the law that prevails

in society other than formed by state law is also

formed from customary law. However,

anthropologically the formation of mechanical

mechanisms in community communities is also a law

that locally serves as a means of maintaining social

order.

Legal pluralism is generally defined as a situation

in which two or more legal systems work side by side

in a similar field of social life or to explain the

existence of two or more systems of social control in

one area of social life. Strong legal pluralism refers to

the fact that there is a plurality of legal orders in all

societies that are regarded as equal, so there is no

hierarchy that shows the one legal system which is

more dominant than other legal systems. For this,

Eugene Ehrlich's Living Law theory states that in

every society there are living rules of normative order

which are usually contrasted or contrasted with the

legal system of the state in the category of strong legal

pluralism.

Shidarta [9] says that in the civil law system

family tradition, positive norms in the legislative

system is seen as the most important formal legal

source. It is especially emphasized in the realm of

criminal law. The meaning of the written law in the

context of criminal law is often restricted to

ICIB 2019 - The 2nd International Conference on Inclusive Business in the Changing World

740

denotation that is only in the form of law. Therefore,

the law needs to be made as complete as possible to

accommodate and anticipate any violation of the law.

Shidarta further said, that: "However, such beliefs

above are only limited to assumptions." [10].

According to Koesno [11], there are at least four main

points that can be as a theoretical problem of

customary law. First, the application of the law of

custom. In fact, it is an ontological problem which

shows Koesno's view of the difference between adat

and adat law. Second, the categorization of adat in

Indonesia. Also still in the ontological domain, is the

issue of indigenous diversity according to some

regions in Indonesia. The third thing is about the

search for customary law through research. Its search

activities through field research on indigenous and

tribal peoples in Bali and Lombok. This subject is in

the epistemological domain. Fourth is the principles

of work in settlement of customary cases. Three

principles are included such as the principle of

harmonious, proper and barrel. These principles

reflect the axiological dimension of customary law in

Indonesia.

4 CONCLUSION

1. The existence of alternative dispute outside of

court through indigenous leaders is expected to

create a win-win solution for the parties to the

dispute. The role of the indigenous leader is

urgently needed to avoid dispute resolution

through the courts. With the approach of

customary law that contains the value of

propriety, harmony, and harmony then the

settlement of adat conflicts conducted outside

the court leads to a win-win solution.

2. The effects of globalization cause the

occurrence of various types of customary law

conflicts. The customary law approach in non-

litigation conflict settlement which resulted in a

win-win solution, resulting in harmonization for

the parties. Resolving conflicts with customary

law approaches based on propriety, harmony,

and harmony can prevent prolonged conflict and

realize community harmonization.

Harmonization of the life of society and nation,

meaningful to realize the ideals of the struggle

of the Indonesian nation that is imbued by the

noble values of Pancasila, the 1945

Constitution, the Unitary State of the Republic

of Indonesia and Bhineka Tunggal Ika.

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Hendra Frans Winarta, 2012, Hukum Penyelesaian

Sengketa, Sinar Grafika, Jakarta, page 1-2.

Yayasan Lembaga Bantuan Hukum Indonesia [YLBHI]

and Australian Aid, 2014, Panduan Bantuan Hukum Di

Indonesia, Yayasan Obor Indonesia, Jakarta, page 38.

Soerjono Soekanto and Sri Mamudji, 2004, Penelitian

Hukum Normatif Suatu Tinjauan Singkat, PT. Raja

Grafindo Persada, Jakarta, page 14.

Soerjono Soekanto and Sri Mamudji, 2004, Penelitian

Hukum Normatif Suatu Tinjauan Singkat, PT. Raja

Grafindo Persada, Jakarta, page 14.

Shidarta, Penemuan Hukum Melalui Putusan Hakim,

Makalah diskusi tentang penemuan hukum dalam

putusan Hakim, tanpa tanggal, tahun and tempat, hal.

Shidarta, Penemuan Hukum Melalui Putusan Hakim,

Makalah pengantar diskusi tentang penemuan hukum

dalam putusan Hakim, tanpa tanggal, tahun and tempat,

hal. 2.

Mohammad Koesnoe, 1979, Catatan-catatan terhadap

Hukum Adat Dewasa Ini, Airlangga University Press,

Surabaya, page 66.

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