CHALLENGES IN DOCUMENTING AND FORMALIZING CUSTOMARY

COURT SYSTEM IN ACEH, INDONESIA

TEUKU MUTTAQIN MANSUR

Universitas Syiah Kuala and Research Center for Law, Islam, and Custom,
Universitas Syiah Kuala, Indonesia
Email: [email protected]

M ADLI ABDULLAH
Universitas Syiah Kuala and Research Center for Law, Islam, and Custom,
Universitas Syiah Kuala, Indonesia
Email: [email protected]

MUSLIM AMIREN
Universitas Syiah Kuala and Research Center for Law, Islam, and Custom,
Universitas Syiah Kuala, Indonesia
Email: [email protected]

HASBI ALI
Universitas Syiah Kuala and Research Center for Law, Islam, and Custom,
Universitas Syiah Kuala, Indonesia
Email:[email protected]

Abstract: In the customary justice system in Aceh, Indonesia, the study aims to resolve
minor disputes within the community through consensus. Essentially, the resolution of
customary disputes is informally conducted without formalization and documentation.
However, as the legal landscape and society evolve, government regulations now require
the formalization of dispute resolution through customary courts similar to state courts.
This article discusses the challenges of formalization and documentation in the
customary courts in Aceh, Indonesia. The article identifies three primary challenges to
formalization and documentation in customary justice: first, the belief among some
customary leaders that the case resolution process does not require formality and
documentation due to infrequent complaints from the parties involved. Second, there is
a lack of training among customary leaders in the formal legal process. Third, there is
insufficient awareness and promotion of the formalization of customary justice. The
article argues that formalizing customary justice is not merely a matter of regulatory
compliance but requires socialization and training for customary leaders to implement
formalization and documentation effectively.
Keywords: Formalization, Documentation, Customary Court, Aceh-Indonesia
Abstrak: Sistem peradilan adat di Aceh, Indonesia bertujuan menyelesaikan kasus-
kasus perselisihan kecil yang terjadi dalam masyarakat dengan jalan musyawarah. Pada
dasarnya, penyelesaian sengketa adat dijalankan secara informal tanpa memerlukan
formalisasi dan pendokumentasian. Bagaimanapun, seiring dengan perkembangan
hukum dan masyarakat, pemerintah melalui regulasi mensyaratkan adanya formalisasi
penyelesaian kasus melalui peradilan adat seperti pengadilan negara. Artikel bertujuan
mengulas tantangan formalisasi dan pendokumentasian pada peradilan adat di Provinsi
Aceh, Indonesia. Artikel menemukan tiga tantangan utama formalisasi dan
pendokumentasian peradilan adat yaitu, pertama, anggapan sebagian perangkat adat
bahwa proses penyelesaian kasus tidak perlu formal dan pendokumentasian karena
jarang mendapatkan komplain dari para pihak. Kedua, perangkat adat tidak terlatih
dalam proses pelaksanaan hukum formal. Ketiga, kurangnya sosialisasi terhadap
implementasi formalisasi peradilan adat. Artikel berpendapat, formalisasi peradilan
adat tidak cukup sekedar tertulis dalam regulasi, namun diperlukan sosialisasi dan
pelatihan kepada pemimpin adat dalam melaksanakan formalisasi pendokumentasian
tersebut.
Kata Kunci: Formalisasi, Pendokumentasian, Peradilan Adat, Aceh-Indonesia
Introduction
Alternative dispute resolution (ADR) is becoming more popular worldwide as countries
acknowledge its value.1 The public is increasingly aware and interested in alternative
dispute resolution systems.2. Although state courts cannot be overlooked as a necessity
in modern society for resolving disputes, decisions from state courts often lead to
adverse consequences for the involved parties and disrupt their reconciliation.
The resolution of disputes in state courts is also seen as inadequate in meeting the
principles of simplicity, speed, and cost-effectiveness, which are promoted as the court's
slogan. In some cases, seekers of justice are dissatisfied with the judges' decisions. 34.
Some disputes resolved at the first-level courts must be refiled at the appellate level
and, in some cases, even submitted up to the Supreme Court. This situation further
underscores the importance of resolving cases through alternative dispute resolution
mechanisms. In several countries, alternative dispute resolution is undertaken through
customary courts, such as Aceh, Indonesia. Traditional justice's standing and function
as a different kind of resolving disputes have not been expressly governed by legislation.
In Aceh, customary judicial practices are governed by the Law of 2006 on Acehnese
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1 Jennifer Mills, ‘Alternative Dispute Resolution in International Intellectual Property Disputes’
(1996) 11 Ohio State Journal on Dispute Resolution. See also, Erwin Nur Rif’ah, ‘Freedom or
Restraint: Redefining the Concept of Human Security within the Indonesian Muslim Community’
(2018) 1 Journal of Southeast Asian Human Rights 192; Joe Tomlinson, ‘Justice in Automated
Administration’ (2020) 40 Oxford Journal of Legal Studies 708
<https://doi.org/10.1093/ojls/gqaa025>; Erdos D, ‘Search Engines, Global Internet Publication
And European Data Protection: A New Via Media’ (2020) 79 The Cambridge Law Journal.
2 Joanne Goss, ‘An Introduction to Alternative Dispute Resolution’ (1995) 34 Alberta Law Review 1
<https://www.albertalawreview.com/index.php/ALR/article/view/1098>. See also, Bertrand
Chopard and Marie Obidzinski, ‘Public Law Enforcement under Ambiguity’ (2021) 66 International
Review of Law and Economics 105977
<https://linkinghub.elsevier.com/retrieve/pii/S0144818821000016>.
3 Ari Indra David and Maryanto Maryanto, ‘Justice In Judges’ Decisions On Criminal Cases According
To The View Of Progressive Law’ (2021) 3 Law Development Journal 205
<http://jurnal.unissula.ac.id/index.php/ldj/article/view/15986>.
4 S Noer, ‘Recusal and the Constitutional Right of Justice Seeker’ (2018) 4 Journal of Legal Studies
and Research 212.
governance, Qanun of Aceh, and Governor Regulation No. 60 of 2013, which
institutionalizes official legal institutes. As the laws and regulations under Qanun form
the basis of the epistemology of traditional authority and legal authority reflected in
legislation in Aceh products, the binding strength and the acceptance of decisions made
by customary justice in Aceh are recognized and obeyed. In Aceh's legal pluralistic
environment, charismatic authority is a defining feature of Indigenous judicial
leadership.5 Many internal and external element appear to support its resilience. The
primary internal factor is that distant normative frameworks are the source from which
indigenous institutions derive their authority and power. The indigenous institutions
aim for more than just correcting the wrongs and making amends. They work to prevent
social unrest and establish circumstances leading to future peace. An other internal
aspect at play is the common knowledge and regard that the disputants have for the
individuals stepping in to mediate disputes—clan leaders, elders, and local mediators.
As a result, the parties in dispute are aware of the processes and they are involved in
advance. 6
Compared to alternative dispute resolution through customary courts and state courts,
the state courts offer a high level of legal certainty and authority. State courts also
adhere to strict formal procedures, beginning with the filing process at the police and
prosecution offices, the examination of evidence in court, the pronouncement of
judgments by judges, and formal documentation.
The customary justice system in Aceh is customary justice which is organized by
Gampong and Mukim traditional institutions. The process of administering customary
justice is usually done in Meunasah (langgar/musala) using a deliberation system based
on the customary judicial practices governed by the Law of 11, 2006 on Acehnese
governance, Qanun of Aceh, and Governor Regulation No. 60 of 2013. Rules to make the
customary court process more structured exist, however, these courts have not fully
implemented them. Additionally, there are instances where the involved parties
disregard the decisions made by these courts. Issues arise when the parties are unable
to present concrete proof to the state court that the case has already been settled within
the customary court. Consequently, identical cases are readdressed multiple times in
state courts, leading to legal ambiguity concerning the rulings of the customary courts.
In practice, the tension between the need for legal certainty often leads to new disputes
among those seeking justice. They have concerns that dissatisfied parties may challenge
customary court decisions in formal courts. Consequently, there is pressure for
traditional courts to adopt formal procedures similar to those in state courts as an
alternative. This transition has been implemented in the research area in Aceh,
Indonesia, by issuing regional government policies. The Aceh government enacted
Regional Regulation No. 9 of 2008 concerning the preservation of customs and
traditional life, further elaborated in Aceh Governor Regulation No. 60 of 2013
regarding the resolution of customary disputes. The introduction of these policies is
closely tied to the efforts to recognize customary justice through legal regulations.
Another contributing factor is the influence of positive law on legal discourse in
Indonesia, fostering a desire for formalization, even within customary courts.

____________
5 SW Rahayu, ‘Alternative Dispute Resolution through Customary Tribunal in the Context of Legal
Pluralism in Aceh’ (2018) 9 International Journal of Civil Engineering and Technology 472.
6 K Tafere Reda, ‘Conflict and Alternative Dispute Resolution among the Afar Pastoralists of Ethiopia’
(2011) 3 African Journal of History and Culture (AJHC) 38.
The influence of positive law in Indonesia
According to Austin, laws are regulations containing orders intended for intelligent
creatures and are made by other intelligent creatures who have power over them.
Therefore, the foundation of law lies in the authority of the ruler. Jeremy Bentham,
credited as a pioneer of positivist legal doctrines, emphasized this aspect. However, it is
essential to note that in Indonesia, the impact of positive law is significantly influenced
by the pure theory of law proposed by Hans Kelsen. Austin put forward the idea that
law represents the commands of the governing authority. In Austin's perspective, law
is a system that compels individuals to obey directives from their superiors and
obligates subordinates or those beneath them to execute them. 7, 8, 9. Bentham is often
acknowledged as a key figure in this academic tradition, although he is better
recognized for articulating philosophical concepts tied to utilitarianism. In Banović's
review10- The focal points of his attention are moral and political philosophy, along with
reforms in institutions and the economy. The influence of legal positivism in Indonesia
is also acknowledged by 11. He believes that law in Indonesia is shaped by the teachings
of positivism, which is understood as positive legal norms within the legislative
framework. Referring to Samexto12, in Indonesia, positive law is predominantly
influenced by Hans Kelsen, who replaced Austin's legal positivism with legal
conceptualism in his pure theory of law 13.
In the pure theory of law, Kelsen argues that law should be cleansed of non-legal,
extraneous elements. The law prioritizes formal structure over content alone. The law
may not necessarily be just, but it remains because authorities issue it. 14, 15, 16, 17, 18.
After Indonesia gained independence in 1945, the prevailing legal framework followed
colonial-era laws. Indonesia declared the adoption of a civil law legal system. 19, 20.
Besides colonization, the inclination towards adopting a civil law system is also closely

____________
7 R Berkowitz, ‘From Justice to Justification: An Alternative Genealogy of Positive Law’ (2011) 1 UC
Irvine L. Rev 611.
8 James Bernard Murphy, ‘Positive Divine Law in Austin’ (2013)
<https://link.springer.com/10.1007/978-94-007-4830-9_9>.
9 Damir Banović, ‘About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal
Positivism’ (2021) 21 International and Comparative Law Review 242
<https://www.sciendo.com/article/10.2478/iclr-2021-0010>.
10 ibid.
11 F. Budi Hardiman, Melampaui Positivisme Dan Modernitas: Diskursis Filosofis Tentang Petode Ilmiah
Dan Problem Modernitas (Kanisius 2003).
12 FX Adji Samekto, ‘Menelusuri Akar Pemikiran Hans Kelsen Tentang Stufenbeautheorie Dalam
Pendekatan Normatif-Filosofis’ (2019) 7 Jurnal Hukum Progresif 1
<https://ejournal.undip.ac.id/index.php/hukum_progresif/article/view/23610>.
13 ibid.
14 Julius Cohen, ‘The Political Element in Legal Theory: A Look at Kelsen’s Pure Theory’ (1978) 88
The Yale Law Journal 1 <https://www.jstor.org/stable/795677?origin=crossref>.
15 Hans Kelsen, What Is the Pure Theory of Law? (Taylor & Francis 2017).
16 Henry Cohen, ‘Kelsen’s Pure Theory of Law’ (1981) 26 The Catholic LawyerThe Cat 147.
17 Andi Munafri D Mappatunru, ‘The Pure Theory of Law Dan Pengaruhnya Terhadap Pembentukan
Hukum Indonesia’ (2020) 2 Indonesian Journal of Criminal Law 132
<https://journal.ilininstitute.com/index.php/IJoCL/article/view/541>.
18 Peter Goodrich, ‘The Pure Theory of Law Is a Hole in the Ozone Layer’ (2021) 92 Colorado Law
Review.
19 Aloysius R Entah, ‘Plularisme Private Law / Civil Law in Indonesia’ (2018) 6.
20 Mohammad Amir Hamzah, ‘Reform Of Civil Procedural Law At The Appellate-Level Courts In
Indonesia’ (2016) 28 Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 348
<https://jurnal.ugm.ac.id/jmh/article/view/16723>.
linked to the impact of positivist principles found in Hans Kelsen's development of the
pure theory of law. According to Kelsen21, 22, new laws are acknowledged as legitimate
laws when they are devoid of foreign elements. This demonstrates that a new law is
acknowledged as legitimate when formulated in a written (positive) manner, ensuring
legal certainty in its application. This influence subsequently extended to Aceh, guiding
the establishment of formal legal policies. Indigenous justice, which draws its authority
from customary law, recognizes Indonesia's rich local knowledge. Adat, or customary
law and tradition, is a way of perpetuating culture. Customary law and traditional
(adat) institutions have long existed in Aceh. During the ruling period of Sultan Iskandar
Muda, the judiciary was divided into four categories. Civil courts, criminal courts,
religious courts, and commercial courts were the four branches of the judiciary 23. The
impact of Kelsen's theory in shaping the legal framework in Indonesia is also
acknowledged by 24. Furthermore, Buana25 reviews that the strong influence of civil law
can impede the development of living law in Indonesia because civil law places greater
emphasis on formal legal structures than the outcomes of resolving disputes through
customary adjudication
Customary Court
According to Mansur26, customary court is an alternative dispute resolution process
that involves reaching resolutions through consensus. It also serves as a peaceful
judicial institution among members of a specific customary legal community within
their customary legal environment.
Customary adjudication has received recognition within the national legal framework.
Consequently, it can coexist with the national judiciary, but in practice, customary
adjudication is carried out in a traditional manner27, 28, 29, 30. The acknowledgment of
the presence of traditional courts is indirectly implied in the Republic of Indonesia's
1945 Constitution (UUD). Article 18B, paragraph 2 of the constitution declares, 'The
state acknowledges and respects community units governed by customary law as long
as they continue to exist and develop in society.' This expression of respect for
community units governed by customary law is consequently linked to an implied
acknowledgment of customary justice. To this day, customary justice persists and is
administered by the community. Even in the absence of formal regulations, customary

____________
21 Hans Kelsen (n 15).
22 Hans Kelsen, Pure Theory of Law (University of California Press 1967)
<https://www.degruyter.com/document/doi/10.1525/9780520312296/html>.
23 Denys Lombard, Kerajaan Aceh Zaman Sultan Iskandar Muda (1607-1636) (Kepustakaan populer
Gramedia (KPG) 2007).
24 Mappatunru (n 17).
25 Mirza Satria Buana, ‘Living Adat Law, Indigenous Peoples and the State Law: A Complex Map of
Legal Pluralism in Indonesia’.
26 Teuku Muttaqin Mansur and others, ‘The Effectiveness of the Implementation of Customary Fines
in Settlement of Seclusion Cases in Banda Aceh’ (2020) 4 Sriwijaya Law Review.
27 SI Ketut, Recognition of Customary Courts in Legal Politics of Judicial Power (Pusat Pelayanan
Konsultasi Adat 2016).
28 Muhammad Siddiq et all Armia, ‘Post Amendment of Judicial Review in Indonesia: Has Judicial
Power Distributed Fairly?’ (2022) 7 JILS 525; Muhammad Siddiq Armia, ‘Ultra Petita and the
Threat to Constitutional Justice: The Indonesian Experience’ [2018] Intellectual Discourse.
29 H Herinawati, ‘Aceh’s Traditional Judicial System in Indonesia’s Legal System’ [2019] Journal Of
Law And Government Science.
30 RI Eka, ‘The Existence of Traditional Jurisdiction in the Criminal Law System in Indonesia in the
National Criminal Law Renewal Effort’ [2021] Pakuan Justice Journal Of Law.
justice remains in the community, albeit in the current context, it necessitates
recognition under state law. This is what we refer to as customary justice, which has
also been influenced by the principles of positivism.
In addition to being recognized by the constitution, in the research area, customary
courts are also acknowledged by the Republic of Indonesia Law Number 30 of 1999 on
Arbitration and Alternative Dispute Resolution, Law Number 44 of 1999 on the
Implementation of Acehnese Special Autonomy, Law Number 11 of 2006 on the
Governance of Aceh (UUPA), Aceh Regional Regulation (Qanun) Number 9 of 2008 on
the Development of Customary Law and Traditions, Aceh Qanun Number 10 of 2008 on
customary institutions, as well as Aceh Governor Regulation Number 60 of 2013 on the
Implementation of Customary Dispute Resolution. This recognition impacts the
existence of customary courts in Aceh, which is the subject of this article's study within
the national legal framework. Consequently, practitioners of customary justice need not
worry when conducting the resolution of small cases brought to them. According to
Husin's research31, the resolution of small cases in customary courts aims to prevent
the accumulation of cases in formal state courts. The backlog of cases in formal courts
is consistently linked to lengthy case resolution processes, from filing complaints and
demands to reaching a verdict. Furthermore, corruption issues in the judiciary add to
the perception of a selective process, determining which cases should be prioritized or
delayed. Meanwhile, the case resolution process in customary courts is considered
swift. In fact, some cases are resolved on the spot when disputes occur because the case
resolution in customary courts consistently adheres to principles of being fast,
accessible, straightforward, cost-effective, transparent, and responsible32. Most
importantly, the case resolution process is conducted through consensus, leading to
reconciliation33.
Customary Justice Contribution
The research findings indicate that customary courts as alternative dispute resolution
mechanisms significantly deter small cases from being processed in state courts.
Customary courts also can reduce the incarceration of individuals involved in minor
legal violations. The research also identified that one of the issues in law enforcement
in Indonesia is the excessive imprisonment of individuals for minor offenses.
Referring to Article 13 of Aceh Qanun Number 9 of 2008 concerning the development
of customs and traditions, Article 3 of Aceh Governor Regulation Number 60 of 2013
regarding customary dispute resolution, and these 18 minor disputes encompass
domestic disputes, illicit relationships, petty theft, theft of livestock, disputes at sea,
minor assault, small-scale forest fires, defamation, incitement, character assassination,
minor environmental pollution, threats, disputes among family members related to
inheritance, conflicts among residents, disputes over property rights, disputes over the
joint property (‘sehareukat’), customary violations related to livestock, agriculture, and
forests, disputes in markets, and other disputes that violate customs and traditions. This

____________
31 Taqwaddin Husin, ‘Penyelesaian Sengketa/Perselisihan Secara Adat Gampong Di Aceh’ (2015) 17
Kanun: Jurnal Ilmu Hukum.
32 Teuku Muttaqin Mansur Lailan Sururi, Dahlan Ali, ‘Penyelesaian Sengketa Melalui Peradilan
Gampong’ (2019) 21 Kanun: Jurnal Ilmu Hukum.
33 Teuku Muttaqin Mansur, Sulaiman Sulaiman and Hasbi Ali, ‘Adat Court in Aceh, Indonesia: A
Review of Law’ (2020) 8 Jurnal Ilmiah Peuradeun 423
<https://journal.scadindependent.org/index.php/jipeuradeun/article/view/443>.
is also what Nur Rochaeti and Dwi Sutanti conveyed34. In addition to its significant role
in reforming the criminal justice system in Indonesia, customary justice also assists the
government in resolving 18 types of minor and light disputes occurring within the Aceh
community.
Quantitatively, the research findings reported 7,445 customary courts in Aceh,
distributed across 23 regencies and cities in Aceh, covering the entire population of
those regions. Out of this number, 7,253 handle community disputes on the mainland,
consisting of 6,474 village-level customary courts (known as 'peradilan adat gampong').
Village-level customary courts have the authority to resolve minor disputes at the
primary level, similar to district courts in the formal legal system. There are also 779
appellate-level customary courts at the 'mukim' level (known as 'peradilan adat
mukim'). Mukim-level customary courts have two prominent roles: first, they handle
minor disputes between villages or across 'mukim' within the same sub-district. Second,
they serve as an appellate court to review cases brought by those seeking justice who
are dissatisfied with the decisions of village-level customary courts. Mukim-level
customary courts represent the final level within the customary justice system. If the
parties involved do not accept the decision of the mukim-level customary court, their
recourse is to file a formal legal case through the local police jurisdiction in their
respective 'mukim' areas (see,35; 3637, 38. Next, there is a type of customary court that
deals with maritime customary disputes, known as 'peradilan adat laot.' The 'peradilan
adat laot' specifically handles disputes among fishermen at sea. The maritime
customary court does not have the authority to resolve cases involving residents on
land, even if they are fishermen. 3940 This comprises 192 customary courts, with 174
'peradilan adat laot' at the 'lhok' level. The 'peradilan adat lhok' is responsible for
resolving fishermen's disputes within their respective 'lhok' territories. 'Lhok'
represents a territorial sea area and is essentially a bay. In terminology, 'lhok' is a region
inhabited by a group of fishermen led by a chosen boat captain (nahkoda boat) within
the 'lhok' area. This leader is also considered an elder responsible for governing the
territory and is called the 'Panglima Laot Lhok.' 'Lhok' areas do not align with village
administrative boundaries; they historically form as bays, estuaries, coastal areas, or
inlets that protrude inland and often have docks for fishermen's boats to moor. (See,
41.42)

____________
34 Noer (n 4). See also, Muhammad Siddiq Armia and Muhammad Syauqi Bin-Armia, ‘Introduction:
Maintaining the Constitutional Rights to Create a Better Society’ (2023) 8 Petita : Jurnal Kajian Ilmu
Hukum dan Syariah 69; Muhammad Siddiq Armia and Muhammad Syauqi Bin-Armia,
‘Introduction: Form Over Substance, Achieving Objectives While Preserving Values’ (2023) 8
Petita : Jurnal Kajian Ilmu Hukum dan Syariah i.
35 Teuku Muttaqin Mansur, ‘Challenges of the Laot Customary Court in Aceh’ [2012] Kanun: Jurnal
Ilmu Hukum.
36 Mansur, Sulaiman and Ali (n 33).
37 Teuku Muttaqin Mansur (n 35).
38 Mansur, Sulaiman and Ali (n 33).
39 Kamaruzzaman Bustamam-Ahmad, ‘A Study of Panglima La’ōt: An ‘Adat Institution in Aceh’ (2017)
55 Al-Jami’ah: Journal of Islamic Studies 155
<http://aljamiah.or.id/index.php/AJIS/article/view/55107>.
40 ibid.
41 MA Abdullah, A Arifin and S Tripa, ‘Panglima Laot: His Legacy and Role in Conserving Marine
Resources in Aceh, Indonesia’ [2018] SHS Web of Conferences.
42 ibid.
Additionally, there are 18 'peradilan adat laot' at the District/city level. These 'peradilan
adat laot' at the District/city level have the authority to settle disputes among 'lhok'
areas or disputes that cannot be resolved by the 'panglima laot' at the 'lhok' level.
Despite the existence of 'panglima laot' institutions up to the provincial level, parties
dissatisfied with the resolutions at the District/city level 'peradilan adat laot' cannot
escalate their cases to the provincial level. This is because, within the customary court
structure, the provincial level is not considered a judicial level; it serves other roles,
such as advocating for fishermen stranded abroad during their fishing expeditions.
There are no further customary court avenues. Thus, fishermen unsatisfied with the
District/city-level 'panglima laot' decisions can appeal their cases to the state court
system through the police, similar to dissatisfied parties in customary dispute
resolutions at the 'mukim' level.
Imagine if minor disputes, such as altercations resulting in minor injuries, were brought
before the state courts. If just one case occurred per month, how many people would
end up in prison for minor violations in a year? What if there were 18 cases and now
under the jurisdiction of customary courts in Aceh they were all brought to the state
courts? It would potentially result in 216 cases per year, where individuals could face
imprisonment.
This situation starkly contrasts the availability of prison space in Indonesia. Today,
prison capacity in Indonesia is not just at the level of overcapacity; it has reached
overcrowding. According to Dodot Adi Kuswanto (2021), as of February 15, 2021, the
capacity of correctional institutions reached 252,384 people, the available room
capacity was only 135,704 people. This overcrowding also triggered the prison riots in
Tangerang, Banten, on September 8, 2021 (Mahfud MD, 2021). While in Aceh have the
same issues, Correctional Institutions (Lapas) in Aceh experienced overcapacity of up
to 300 percent, causing prisoners to be crowded into cells. The Aceh Ministry of Law
and Human Rights plans to add blocks to create a new prison.43
Therefore, the delegation of authority for the resolution of minor cases to customary
courts is a necessity. The state must also provide legal certainty to customary courts,
ensuring their decisions are legally binding. This means that once a decision is made by
a customary court, it should have the same status as a decision in the state court system,
i.e., it should be considered final and binding. State courts must reject cases brought
back to them by the parties involved if a customary court has already decided the minor
dispute.
Methods
This research focused deeply and holistically on fieldwork to uncover important facts,
circumstances, phenomena, and variables related to the objects in question. The study
employed phenomenological, social, and humanistic approaches to gather and analyze
data. The findings are presented through detailed descriptions, incorporating written
and oral accounts from various information outlets.
Observation and documentation served as the primary data collection techniques in this
study. Observation involves directly observing the object of research to identify what
happens, and it provides researchers with the ability to understand complex situations.
The direct observation technique is particularly useful for obtaining first-hand
____________
43 ‘Https://Www.Detik.Com/Sumut/Berita/d-7023812/4-Penjara-Di-Aceh-over-Kapasitas-300-
Persen-Napi-Tidur-Berdempetan’.
information about the object being studied. Meanwhile, documentation involves
reviewing written data in the form of documents related to the focus of the study. This
approach enables researchers to collect a large amount of data in a relatively short
amount of time and provides an opportunity to analyze past events and trends.
Researchers can compile a comprehensive dataset for analysis by employing both
observation and documentation techniques, leading to well-founded conclusions.
Results and Discussion
Customary Court Formalization Policy
The legal positivism doctrine in Indonesia has influenced the perspective of lawmakers
in regulating every aspect of societal behavior through formal legislative regulations.
Numerous calls have been for customary law to be incorporated into legislation. Even
at the grassroots level, society has been influenced by legal positivism, as expressed by
Bentara Linge44, a prominent figure in the Gayo customary community. They have
started to become concerned about resolving cases within the community through
customary courts. Some cases they have resolved, such as inter-tribal or inter-clan
marriages with the penalty of both parties being expelled from the village, are viewed
as law violations. Consequently, customary leaders have been questioned by law
enforcement authorities (the police) and asked about the legal basis for the expulsions.
The police believe that all cases must adhere to the principle of legality, meaning a legal
norm must be established before it can be applied to society.
In Aceh, procedural policies for case resolution through customary courts are governed
by several legislative regulations, including Qanun Number 9 of 2008 and Aceh
Governor Regulation Number 60 of 2013. This policy of The kingdom of Aceh
Darussalam's Constitution was first published in Qanun Al-Asyi by Sultan Alaiddin
Riayat Syah II Abdul Qahhar (1539–1571), and was later refined by Sultan Iskandar
Muda (1617–1636) and Ratu Tajul Alam Safiatuddin (1641–1675). This document was
also known as Qanun Meukuta Alam, Adat Meukuta Alam, Adat Mahkota Alam, or Qanun
Meukuta Alam Al-Asyi, or Adat Aceh 45. in fact, contradicts the historical development
of customary law itself, as it is unwritten and not codified. Although it is acknowledged
that dispute resolution through customary courts has contributed to the state, the
presence of formal procedural policies and documentation requirements imposed on
customary courts has introduced new challenges to implementing dispute resolution
within customary courts.
Formalization is unnecessary
The research findings from 2019 to 2021 in Aceh indicate that many customary courts
still lack an understanding of and do not procedurally implement the formalization
process of customary courts. According to Subhan Fajri46, the current customary
dispute resolution process is conducted traditionally, where disputing parties manually
report their disputes to customary court authorities. In practice, the reporting process
and the proceedings leading to a customary court decision are rarely well-documented,
and in some cases, disputes are resolved without any documentation. Asnawi

____________
44 ‘Bentara Linge, Tokoh Adat Gayo, Kabupaten Aceh Tengah’ (2021).
45 Mohammad Said, Aceh Sepanjang Abad (Jilid Kedu, PT Harian Waspada 1985); Raden Hoesein
Djajadiningrat, Kesultanan Aceh Suatu Pembahasan Tentang Sejarah Kesultanan Aceh Yang
Terdapat Dalam Karya Melayu (Departemen Pendidikan dan kebudayaan Proyek Pengembangan
Permuseuman Daerah Istimewa Aceh 1984).
46 ‘Subhan Fajri, Sekretaris Imeum Mukim Siem, Kabupaten Aceh Besar’ (2020).
acknowledges the same thing47. He mentioned that ‘the formalization process of dispute
resolution is still not being implemented effectively. Despite the policies issued by the
Governor of Aceh and the recommendations from the Aceh Customary Council to
document every step of the dispute resolution process, the reality is that it has not been
fully optimized. Customary court officials are still accustomed to using the old, unwritten
procedures’, he said. Customary authorities and the community believe that customary
dispute resolution does not need to be formalized because it has been traditionally
practiced for generations. So far, the informal process has not received complaints from
the community. Moreover, the agreed-upon decisions are adhered to by all parties
involved.
Form of Formalization
If the formal legal process is followed, the customary court procedure must follow the
following stages: First, the complainant/reporter submits a complaint to the customary
authorities; Second,traditional figures provide protection to the complaining parties;
Third, the traditional justice apparatus coordinates and categorizes cases; Fourth, the
traditional authorities summon the reporter, victim, and perpetrator to investigate the
dispute's background; Fifth, the traditional justice apparatus examines the involved
parties, witnesses, evidence, and the dispute's location; Sixth, the customary court judge
decides whether the dispute is suitable for further resolution within the customary
court or if it can be settled outside of it. If it is not deemed appropriate for customary
court resolution, the case is returned to the parties for amicable settlement.
However, if it proceeds to the customary court, it enters the seventh stage, where the
customary court judge requests a mediator to facilitate negotiations between the
disputing parties. Typically, this mediation is effectively conducted by a mediator
chosen by a traditional judge, often a 'tuha peut' with authority and conflict resolution
expertise. Like mediators in general, the mediator aims primarily at achieving peace and
reducing the dispute.
Once the mediation process is complete and an agreed-upon decision is reached, the
mediator reports the results to the chairperson of the panel of judges at the customary
court. Subsequently, a customary hearing is held, and a decision is made. Before
announcing the decision, the chairperson of the traditional panel often consults
privately with other panel members to reach a consensus. On the designated day,
attended by the involved parties, their families, witnesses, and the community, the
chairperson of the traditional council publicly announces the decision to resolve the
complaint. The chairperson then asks both parties whether they accept the announced
decision. In practice, both parties usually accept the decision, primarily due to the
mediation process conducted before the trial.
The subsequent step involves signing a customary court dispute resolution report by
the parties involved, the chairperson of the panel, members of the customary court
session, and witnesses. Before concluding the session, the parties are requested to
shake hands (known as 'peumat jaroe') as a symbol of their acceptance of the decision
and reconciliation. Some decisions may involve customary obligations, such as fines or
“peusijuek” (peace offerings), a formal resolution procession through customary
(public) procedures in public. In Aceh, “peusijuek”, or peace offerings, are made when

____________
47 ‘Asnawi, Ketua Majelis Adat, Kabupaten Aceh Besar’ (2021).
someone is happy or fortunate or when they are able to escape a misfortune or issue
that has befallen them. Individuals are trusted to carry out each other's peusijuk (peace
offerings) during the procession, these will be addressed on another pre-determined
day. The execution of customary fines or 'peusijuek' is attended by village residents.
This activity holds values of building camaraderie and fraternity, as well as the
reintegration of the disputing parties into the community.
Traditional justice's standing and function as a different kind of resolving disputes have
not been expressly governed by legislation. Acehnese customary judicial procedures,
which are an institutionalization of the official legal system, are governed by the
Governor Regulation No. 60 of 2013, the Acehnese Law of 2006, and Qanun of Aceh. 48
Because the laws and regulations under Qanun form the basis of the epistemology of
traditional authority and legal authority reflected in legislation in Aceh products, the
binding strength and the acceptance of decisions made by customary justice in Aceh are
recognized and obeyed. In Aceh's legal pluralistic environment, charismatic power is a
defining characteristic of indigenous judicial leadership.
As previously explained, dispute resolution stages sometimes create discomfort among
customary authorities as not all cases can be resolved through such formal stages. This,
in turn, raises concern for the customary court officials. If they do not follow such formal
procedures, will the dispute resolution they carry out be in vain, and will it be legally
void?
The concerns, as recounted by the chairperson of the customary court panel, Reje
Kampung Toweren Toa49 , “The imposition of customary sanctions, such as expulsion and
exclusion, raises concerns about potential human rights violations. Meanwhile, fines are
feared to be accused of extortion”. It turns out that society has started to believe that
what is regulated by the law is the only law. However, in a broader context, the law
encompasses not only legislation but also unwritten laws practiced by the community.
This is also recognized by Article 67 of Law Number 39 of 1999 concerning Human
Rights, stating, 'In the enforcement of human rights, differences and needs within
customary law communities must be considered and protected by the law, society, and the
government, as well as the cultural identity of customary law communities, including the
right to protected customary land, in line with the times’. This indicates that law
enforcement agencies should educate and provide protection guarantees to the
community in resolving small cases at the customary court level, especially since they
have been proven to contribute to helping the government maintain public peace and
order.
Inadequate dissemination of the formalization of customary court
In 2018, after the election of the chairman of the Aceh Customary Council (Majelis Adat
Aceh or MAA), which was initially won by Badruzzaman, was annulled by the Governor,
the MAA seemed to lose its enthusiasm for conducting formalization of customary
justice socialization. The MAA was initially formed through Qanun Number 3 of 2004.
The basis of this Qanun also led to Badruzzaman not being inaugurated. The Aceh
____________
48 Muhammad Siddiq Armia and others, ‘Criticizing the Verdict of 18/JN/2016/MS.MBO of
Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of
Restorative Justice’ (2022) 17 AL-IHKAM: Jurnal Hukum & Pranata Sosial 113; Muhammad Siddiq
Armia, ‘Public Caning: Should It Be Maintained or Eliminated? (A Reflection of Implementation
Sharia Law in Indonesia)’ [2019] Qudus International Journal of Islamic Studies.
49 ‘Reje Toweren Toa, Kepala Desa Toweren Toa, Kabupaten Aceh Tengah’ (2021).
government chose to appoint an Acting Chairman of the MAA to continue leading the
institution. Subsequently, Badruzzaman and his associates filed a lawsuit against the
Governor of Aceh at the State Administrative Court (Pengadilan Tata Usaha Negara or
PTUN) on April 15, 2019 (case registration number 16/G/2019/PTUN.BNA). While the
process was ongoing at the PTUN, the Aceh government actually enacted a new Aceh
Qanun regarding the MAA, namely Aceh Qanun Number 8 of 2019. One of the
considerations was that Aceh Qanun Number 3 of 2004 was deemed insufficient to
address factual issues.
On September 24, 2019, the PTUN issued a verdict accepting Badruzzaman's lawsuit
and requested the Governor to continue the process of appointing MAA officials
resulting from the 2018 deliberations. However, the Governor filed an appeal with the
the State Administrative High Court (Pengadilan Tinggi Tata Usaha Negara or PTTUN).
After losing at the PTTUN, the Governor re-appealed to the Supreme Court. Following
the Supreme Court's decision No 263 K/TUN/2020 at the cassation level, the MAA
rejected the Governor of Aceh's appeal and ordered him to pay the court costs. However,
the Governor of Aceh did not inaugurate Badruzzaman, citing that the PTUN's decision
was not mandatory to be implemented.
Many parties expressed disappointment with the Governor of Aceh's decision not to
inaugurate Badruzzaman. According to Taufiq Rahim (2019), the appointment of the
Acting Chairman of the MAA had political nuances. Zainal Abidin (2019) argued that the
Governor's action was procedurally flawed. This situation is believed to weaken the
MAA institution's role of guiding customary justice at the district, municipal, and village
levels.
According to Ramli Yusuf (interview, 2019), leadership issues within the MAA at the
provincial level have significant consequences for regions, such as in the case of Sabang
City. So, we seemed to have lost direction because, to date, the programs implemented
by Badruzzaman had a clear roadmap. Syeh Marhaban echoed this sentiment during our
interview at the Nagan Raya District MAA office. At least, between 2019 and 2021, the
formalization policy of customary justice was not effectively disseminated to customary
apparatus.
Referring to a survey by Taqwaddin et al. (2013), traditional leaders claimed to have
carried out the formal customary justice stages and documented them effectively,
accounting for 59.9% of the total 50 individuals surveyed across 10 districts and cities
in Aceh. This percentage increased from the reported figure five years earlier (54%),
and the improvement was influenced by MAA's training and customary justice
socialization efforts over the past two years.
In 2011, efforts to formalize customary justice were initiated. This was marked by the
Joint Decree (SKB) signed between the Aceh Regional Police Chief, MAA, and the
Governor of Aceh during Irwandi Yusuf's tenure as Governor. The MOU included
agreements such as 'the police authorities would provide an opportunity for any
disputes falling under the jurisdiction of customary justice to be resolved first through
customary justice.' This collaborative document was extensively disseminated at the
time, reaching even the level of Police Sector offices. As a result, law enforcement
officers referred cases for resolution by customary justice.
According to Sarwoko 50, “'there was a case of the theft of three pairs of shoes at a
dormitory in Aceh Besar District. The thief was apprehended by the community and
subsequently handed over to the police.' In Indonesia, theft cases can be categorized as
criminal offenses and subject to national laws, specifically Article 362 of the Criminal
Code (KUHP), with a penalty of up to five years in prison. However, the police who
received the complaint explained that, in Aceh, there were local regulations and the the
Joint Decree (SKB) regarding theft cases categorized as minor, to be resolved by
customary justice.
However, due to a leadership dispute within MAA, two factions emerged. The first
faction supported Badruzzaman as the MAA chairman elected during the 2018
deliberations. The second faction supported the MAA chairman appointed by the
Governor in 2020, based on Regional Regulation No. 8 of 2019. This situation led to
discontinuing customary justice socialization programs, which had been ongoing since
2011. For instance, 51 discovered that the police were handling minor cases reported to
them, citing the police's inability to reject every complaint submitted by citizens as the
reason.
Thus, it is not surprising that in the past two years, the police and some members of the
community have begun to question the legality of small case resolutions by customary
courts. Despite clear regulations, the formalization of customary courts as an alternative
dispute resolution has not progressed optimally as anticipated.
Conclusion
This doctrine has led to a shift in legal thinking and society towards formality.
Customary justice, on the one hand, is a traditional form of justice without the need for
formalities. However, due to government policy demands, it must adapt to legal and
societal preferences. The efforts to formalize customary justice face dynamic challenges.
Firstly, internal challenges arise from the belief among customary officials and some
community members that formalization is unnecessary, as customary justice practices
have been passed down through generations without significant issues. Secondly,
external challenges are closely related to the Governor's interference in customary
institutions, which has hindered the formalization of customary justice in various
regions. The Governor appears to have political interests, or at least personal
tendencies, particularly concerning the leadership of the MAA resulting from the 2018
deliberations. This is evident in the Governor's refusal to comply with the Supreme
Court's decision rejecting the cassation filed by him. Nevertheless, customary justice
significantly contributes to assisting the government in resolving minor cases, and it
even helps more people avoid imprisonment for minor offenses.
____________
50 Sarwoko, ‘The Role of Police in Banda Aceh in the Supervising Customary Court Decisions’ (2017)
1 Syiah Kuala Law Journal 301. See also, Sulaiman, ‘Mereposisi Cara Pandang Hukum Negara
Terhadap Hukum Adat Di Indonesia’ (2017) Volume 2 Petita : Jurnal Kajian Ilmu Hukum dan
Syariah; Ratno Lukito, ‘Shariah And The Politics Of Pluralism In Indonesia: Understanding State’s
Rational Approach To Adat And Islamic Law’ (2019) Volume 4 Petita : Jurnal Kajian Ilmu Hukum
dan Syariah; Asri Wijayanti and others, ‘The Mbojo Local Wisdom As An Alternative For The
Settlement Of Industrial Relations Disputes’ (2022) 7 PETITA: Jurnal Kajian Ilmu Hukum dan
Syari’ah 91 <https://petita.ar-raniry.ac.id/index.php/petita/article/view/151>.
51 Lailan Sururi, Dahlan Ali (n 32). See also, Yasar Aulia, ‘Fundamental Principles of The Legislation
Process: Comparative Study Between Indonesia and The United Kingdom’ (2021) 6 Petita : Jurnal
Kajian Ilmu Hukum dan Syariah 40; Anang Dony Irawan, ‘Nationalism In A State Based On
Pancasila’ (2020) 5 Petita : Jurnal Kajian Ilmu Hukum dan Syariah <http://petita.ar-
raniry.ac.id/index.php/petita/article/view/85>.
Acknowledgement
We would like to express my sincere appreciation to the Institute for Research and
Community Service (LPPM) of Universitas Syiah Kuala (USK) for providing funding for
this study under the “Penelitian Unggulan Universitas (PUU)” scheme. Their funding
played a crucial role in the successful execution of this study and the attainment of our
research goals.
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