Complete History of Political Customary Law
POLITICAL HISTORY OF CUSTOM LAW
Introduction
Custom is a reflection of the personality of a nation, is one of the incarnations of the soul of the nation in question from century to century. So every nation in this world has its own customs and habits - one with the other. Customary regulations existed in ancient times from before the Company era but before 1602 no records were found or there was no attention to our customary law from foreigners.
It was only during the Company era that foreign nations began to pay attention to our customs. There were those who paid attention to it as individuals, positions, or people who were assigned by the colonial authorities at that time.
II. Problems
In this paper, several issues regarding customary law will be discussed:
a. Time Comp
b. Time Daendles
c. Time Raflles
d. Dutch colonial era
e. The Period Approaching 1848
f. Period 1848 – 1927
III. Discussion
A. Time component (1620-1800)
The Company (VOC) is essentially a trading company. Therefore, it is easy to understand that the Kompeni only prioritizes interests as a trading body. Thus, the building of customary law which until then had existed in remote areas was left alone so that people's law continued to apply.
Only when the company's interests are disrupted will the company use its power.
Initially, the company allowed customary law to apply as before, but company officials in the Netherlands (Heren XVII) stipulated an order dated March 4, 1621 which required that Dutch civil law be applied in areas controlled by the company.
It was only in 1625 that the Governor-General De Carpentier would fulfill the management of the aforementioned compeno, but with conditions if it could be carried out in this country and if according to the conditions in this country it could be carried out.
By meeting the conditions above, it is concluded that it is possible not to treat Dutch law if the situation is compelling.
B. Time Deandels (1808 – 1811)
during the reign of Daendels it can be said that all the laws of the population remained as before and were generally carried out for the nation of the earth's own sons and daughters as well as the legal procedures that they usually used with the understanding that in order to investigate a criminal case it is no longer necessary to indict the person who is the victim or his family and about punishment is allowed to deviate from customary law.
So during the Deandel era, it was generally assumed that customary law was of lower rank than European law and that customary law consisted of Islamic law. Even so, Deandels has an understanding of the village as a community. He wanted to change the landrente of the kings in Banten. He tried to find out the basics of tax according to custom. Deandles seemed to know about panjer matters in customary procedural law. And in 1808 (September) he announced his desire to teach children throughout the coast of Java, including the customs of the Javanese people.
C. Time Raffles (1811 – 1816)
The first action taken by Raffles was the formation of the Mackenzie committee to conduct an investigation of the Indonesian people on the island of Java. The fruit of the work of this committee will be used as the basis for making certain changes which will determine the form of the further composition of the government. After the Mackenzie committee finished its work on 11 February 1814 Raffles announced the proclamation "Regulation for the more effective administration of justice in the provincial court of Java". Which consists of 173 articles. The basis of this regulation is that the resident becomes the Chief Judge and Magisterate in his area and the regents and other government officials are under his supervision. It is also stipulated that there is a multilevel court whose structure is as follows Division's Court headed by Wedana, Bopati' s Court is headed by the Regent. Resident's Court Headed by the Resident.
D. Dutch colonial era
after Raffles came the era of the general commissie (1816-1819) in essence the general commission still carried out customary law against the Indonesian people like during the Raffles era this attitude was not due to his awareness of customary law but as Van Colen haven wrote in his book (De Ontdekking van het Adatrecht” page 58. in 1819 people were thinking about the question (of customary law), until the procession of statutory law in the Netherlands was established.
Van Der Caoellen, who became governor of the Commissie General in 1824, announced that for Sulawesi Selaran where customary law did not get any attention.
Du Bus has the understanding that customary law is original Indonesian law.
style="text-align: justify;">Van den Bosch said that the inheritance was carried out according to Islamic law and the right to land is a mixture of Bramien and Islamic regulations.
E. The period leading up to 1848
for the first time that customary law was highlighted as a legal issue by the Dutch government in their country was at the time of the appointment of Mr. G. C Hageman as chairman of the supreme court in the former Dutch colonial government.
Hageman was given a special assignment to carry out a deliberate and expeditious inspection in such a way that the general laws stipulated by the Dutch Kingdom were also applied in Indonesia as far as possible.
To prepare for the achievement of the aim of adjusting the law in force in Indonesia with the new law in the Netherlands, a committee was formed by the Governor Henderal on the date
October 31, 1837 chaired by MR. CJ Scholten Van Oud Haarlem, this committee was disbanded because Scholten was sick and returned to the Netherlands. But in 1938 Scholten was appointed again to chair a committee formed in the Netherlands and whose task was to make the necessary plans so that the new Dutch laws could be applied in Indonesia and to propose matters considered important in connection with the above.
According to Van Vollenhoven, Scholten from the beginning intended not to tarnish civil customary law. As chair of the Secholten, he argued that the law of the Indonesian nation was prevented from applying the principle of legal equality contained in the Dutch administration.
F. Period 1848 – 1927
the atmosphere around 1848 was very much dominated by the worship of values and codification interests. This was the main reason for the beginning of changing customary law.
If chronologically the efforts of both the Dutch government in its own country and the colonial government in Indonesia are as follows,
Mr.'s 1st attempt Wichers, the president of the supreme court at that time investigated whether private customary law could not be replaced by western codified law, the plan failed because western law was incompatible with the simple legal relations of the Indonesian nation.
The second attempt around 1870 Van Der Putte, Dutch Colonial Minister proposed the use of European land law for Indonesia for Dutch agrarian interests, this attempt failed because the Dutch demanded a local investigation of the people's rights to land.
In the 3rd century in 1900, the cremer of the Minister of Colonies, wanted a local codification of some customary laws by prioritizing Christian residents. This attempt also failed again because of the absence of legal guarantees for residents who are Christians.
The 4th attempt, the Kuyper cabinet in 1904 proposed a bill to replace customary law with European law. This attempt failed because the Dutch parliament accepted the Can Idsinga amendment which allowed the replacement of customary law with western law if the social needs of the people so desired.
The 5th attempt in 1914, the Dutch, regardless of the idsinga amendment, announced plans for the Civil Code for all population groups in Indonesia. This plan failed because it was not proposed in the Dutch parliament.
The reason for the failure of all these efforts is that it is impossible for the Indonesian people, who are the largest part of the population, to be adapted to the needs of the European people, who are only a small part.
Van Vollenhoven's Conception, whose content advocates for the holding of systematic records of the actual legal notions of the population, jurisdiction by jurisdiction, but preceded by research and inquiry led by experts.
This purpose is to advance legal provisions and to assist judges who must try according to customary law. The conception championed by van Vollenhoven is supported and justified by two things, namely:
a. years of bitter experience, that imposing western law from above always fails.
b. There is always a growing understanding of the importance of customary law within the population of the Indonesian nation.
Finally in 1927 van Vollenhoven's conception was accepted. And Dutch government politics from then until the Japanese occupation in 1942, was marked by a regular move back toward dualism. Dualism, according to Damson Arthur Schiller in their book "adat law in Indonesia" is called progressive dualism (enlightened dualism).
Mr. B. Ter Haar, van Vollenhoven's student, continues the struggle of his teacher and strives for customary law to be maintained and implemented as very suitable for the needs of the Indonesian people in their current position. The views of ter haar inoi are especially directed towards the peasant population in agrarian societies. Most of the legal relations in the agrarian sector are regulated by customary law.
The recording of the results of investigations carried out by experts must be explained as thoroughly as possible so that there is greater legal guarantee and ultimately also to help judges who have to use unwritten customary law.
Customary law politics since 1927 after von Vollenhoven's conception was accepted also requires a re-organization of the court system.
source: fjfj