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453-Article Text-868-1-10-20221026
453-Article Text-868-1-10-20221026
453-Article Text-868-1-10-20221026
Abstract
Alternative dispute outside of court is carried out through the role of Pengulu in Simalungun Regency,
especially in Nagori Silou Paribuan in resolving disputes that occur between communities, it is necessary to
make efforts to resolve disputes fairly and wisely to avoid wider disputes between communities. Dispute
resolution is carried out through customs that have been carried out by the community or the previous
Pengulu. Pengulu has a very large and important role in resolving disputes between communities in a
democratic manner based on the principles of deliberation and consensus, to realize the harmonization of
social and national life, to achieve justice, peace, welfare and community happiness in the midst of rapid
development and change in society. The resolution carried out by Pengulu in disputes between communities
did not reach the court but was resolved by deliberation through a process or method carried out by Pengulu
because the sense of kinship is still high and the role of Pengulu still has a big influence on the local
community.
INTRODUCTION
Nowadays, social life is quite dynamic, so it is not rare for arguments to arise between members of one group and another
owing to differences in interests. In social life, there are different methods for reaching an agreement in a case procedure
or for resolving a conflict. There are still villages in Indonesia that use customary/community conflict resolution systems.
This system is considered as more efficient, speedier, and gives a sense of justice in terms of the community's cosmic
balance. The indigenous community of Tenganan Bali, which has a functioning government structure, laws, and customary
institutions that coexist with the national legal system, is the only one that strictly adheres to customary law. Customary
sanctions are typically more deterrent than state-imposed sanctions.1
-rumah tradisional, alat-alat musik dan jambangan antik selain makanan dan minuman – senilai 150 juta rupiah dalam
bentuk uang dan HSL menyatakan akan membayar denda tersebut. Concerning national-scale issues which resolution is
carried out by customary leaders, particularly, conflicts in Kalimantan between indigenous peoples and British plantation
firms, the resolution of which is carried out by customary leaders. When the villagers of Terusan discovered that the
contractor's bulldozers had damaged around 100 hectares of their forest and farmland, as well as disturbed the burial
area. Following the trial under customary law, the community made very strong requests. According to local customary
law, the HSL business must pay a symbolic punishment for the destruction of woods and grave regions as a result of the
decision. This included turning up traditional dwellings, musical instruments, and antique vases, as well as food and drinks
worth 150 million rupiah in cash, and HSL stated that it would pay the fine.
Furthermore, when PT. Inco built the Larona hydropower plant, 95 households living on the banks of Lake Matano
petitioned PT. Inco. The dispute was then settled out of court. PT. Inco is willing to pay compensation and relocate or
construct a mosque to a higher location.
Of the various disputes and cases that are resolved informally or out of court through the role of leaders of their respective
customary law communities, this role in society in Indonesia is still very large and influential for the community in resolving
disputes that occur between communities outside of the court. Furthermore, the contesting parties must be willing to
follow the choices of dispute resolution agents such as kings, religious leaders, village heads, hamlet heads, or other
community leaders. This is due not only to the authority of their leaders, but also to the fact that the parties punished do
not want to face additional difficulties if they do not comply with the judgments that have been made. This is because the
1
Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI) dan Australian Aid, 2014, Panduan Bantuan Hukum Di Indonesia, Yayasan Obor Indonesia, Jakarta,
hlm. 38.
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ISSN: 0171-4996, Vol. 12, No. 2, 2022, pp 1101-1107
punishments imposed on the disputing parties in dispute resolution are tailored to their capacities, such as the ability to
pay sanctions, settle fines, and so on.
The function of the village head as a conflict settlement mechanism has been strengthened in numerous nations through
legal politics that recognizes (recognition) and state legal instruments. The Government of Papua New Guinea established
the Community Justice Liaison Unit (CJLU) as an official part of the governance field in the Law and Justice Sector, with the
goal of increasing conformity and consistency between formal and informal systems in increasing the capacity of judicial
actors outside the State.2
In West Samoa, the village chief, or Fono, is responsible for developing appropriate community regulations, resolving
disputes through customary debate, and determining what type of sanctions should be enforced. The Fono institution still
exists in Western Samoa and is protected by the Village Fono Act of 1990.3
Within the jurisdiction of North Sumatra Province, particularly in Simalungun Regency, Nagori Silao Paribuan, and Silao
Kahean District. Researchers look at disagreements that occur between communities and are mediated by the
Pengulu/village leader. If there is a dispute between communities, the Pengulu/village leader resolves it by a decision in
the form of a peace/statement or agreement.
One of the disputes whose resolution was by the Pengulu/village head in Nagori Silou Paribuan, Silou Kahean District,
namely between Mardianto as the first party and Ardi Purba as the second party whose resolution was by the Pengulu,
i.e., the parties had agreed to have and put it in the Statement Letter Together to make peace regarding land border
issues. According to the terms of the peace agreement, the second party is willing to revoke the oil palm plantations that
have crossed the land border, and the rice plants belonging to the second party will remain their property until the rice
can be harvested, and the second party will not seek compensation from the first party for this problem; however, the
first party is willing to pay the second party money in advance. Following the resolution of these conflicts by their
respective Pengulu in Simalungun Regency, it is vital to make efforts to handle disputes fairly and sensibly in order to avoid
disagreements that lead to more widespread cases between communities. In the midst of rapid development and change
in society, Pengulu plays a very large and important role in resolving disputes between communities in a democratic
manner based on the principles of deliberation and consensus, in order to realize the harmonization of social and national
life, to achieve justice, peace, welfare, and community happiness. The Pengulu's resolution in the dispute did not go to
court, but was resolved by deliberation through the Pengulu's process or technique since the sense of kinship is still strong
and the Pengulu's function in the local community is still significant.
METHOD
Type of research
This research is descriptive in nature, defining and assessing the difficulties that will be presented, and is carried out using
a normative juridical approach and an empirical juridical approach, specifically by performing field research. The normative
juridical approach is carried out by researching library materials or using only secondary data 4 with the intention of
approaching the problem by looking at applicable laws and regulations as well as reading sources relevant to the research
theme5 which includes principles law, legal systematics, legal history, legal sources6, statutory regulations of a scientific
theoretical nature that can analyze the problems to be discussed and add other data obtained.
Type of data
This study utilized of both primary and secondary data, specifically:
Primary data, that is, information acquired directly from the field about the issues that would be discussed through
interviews with Pengulu.
2 Pat Howley, Incorporating Custom Law into State Law in Melanesia, (Queensland: International Diploma in Restorative Justice at Queens University,
2007, Hal. 1.
3 Gabriel, Maxwell and H. Hayes. Restorative Justice Developments in the Pacific Region: A Comprehensive Survey. Dalam Contemporary Justice Review,
7
Peter Mahmud Marzuki, 2005, Penelitian Hukum, Prenada Mulia, Jakarta, hlm. 141.
8 Soerjono Soekanto, Op.cit, hlm. 52.
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ISSN: 0171-4996, Vol. 12, No. 2, 2022, pp 1101-1107
Indonesia. Furthermore, special requirements are outlined in the Regulation of the State Police of the Republic of
Indonesia Number 8 of 2021 concerning Handling Crime based on Restorative Justice.
It is hoped that the role of Pengulu would be effective in settling disputes and ensuring that the rights of all parties are
maintained. If required, Pengulu might enlist the Police in addressing any conflicts that arise. The procedure of
implementing dispute settlement that occurs is carried out in accordance with the preceding Pengulu's habits.
According to the research done at the research location, in general, by the people of Nagori, if a dispute arises, the parties
who have been affected by the victim can pursue the following resolution procedures:
If a conflict arises, the victim or both parties may report it to Gamot and/or Pengulu.
If the Pengulu gets a report from Gamot or the victim, he or she must promptly set a timetable for dispute settlement by
inviting Gamot, Secretary Nagori, and Maujana nagori, which is normally done at the Pengulu Office or Village Hall, or at
the parties' houses, as agreed upon by each side.
Prior to the execution of dispute resolution, the Pengulu or through Gamot normally approach the parties to find out the
disputed problems that occur, as well as the parties' willingness or agreement to be resolved peacefully.
During the dispute settlement process, the parties are represented by witnesses or, in most cases, members of each
family.
The Pengulu resolves disputes with the help of Nagori authorities such as Gamot and Maujana nagori, as well as traditional
leaders, community leaders, and religious leaders.
Except in cases of divorce or domestic abuse, settlement is done in a formal and open manner.
The Pengulu communicated the problems that happened to the parties during the dispute settlement procedure. If there
are witnesses who are aware of the problems, the Pengulu will enable the witnesses to present information regarding the
problems.
Furthermore, the Pengulu gave parties like Gamot and Maujana nagori, as well as traditional authorities, community
leaders, and religious figures, the opportunity to submit answers or alternatives for settling the issue.
The Pengulu, along with the parties participating in the conflict resolution, hold a deliberation to determine the conclusion
of the conciliation to be allowed or decided. Typically, either orally or in writing, if the writing is in the form of a Statement
Letter, Letter of Agreement, or Peace.
If the parties participating in the dispute settlement have decided to produce a peace outcome, the Pengulu will express
to the disputing parties the peace outcome as well as the losses sustained as a result of one of the parties' acts to make a
Statement, Letter of Agreement, or Peace.
If one or both parties do not agree with the outcomes of the Statement, Agreement, or Reconciliation Letter, the parties
may take their dispute to the Police or the Court based on the results of the implemented Statement, Agreement, or
Reconciliation Letter.
As a result of the settlement, one or both parties will face sanctions based on the acts taken, with the severity varying
depending on the type of dispute that arises.
The punishments include usually apologies from both sides, money, food, and societal sanctions such as cleaning houses
of worship, schools, and roads, among other things.
Following the release of the agreement's conclusions, the sanctions imposed by the peace decision are carried out by
deliberation. The decision's implementation is determined by the type of dispute at hand. Some of the settlement
solutions might be carried immediately directly and agreed by the parties, while others are carried out the next day.
The punishments include usually apologies from both sides, money, food, and societal sanctions such as cleaning houses
of worship, schools, and roads, among other things.
Following the release of the agreement's conclusions, the sanctions imposed by the peace decision are carried out by
deliberation. The decision's implementation is determined by the type of dispute at hand. The execution of the settlement
findings can be done immediately and accepted by the parties, and some are done the next day.
CONCLUSION
The Pengulu's role in resolving major issues arising from disputes between both parties is to present Gamot, Traditional
Leaders, Family Parties, witnesses, Community Leaders, and Religious Leaders who are appointed directly by the Pengulu
to seek information, opinions, or information on problems that arise. If the Pengulu discovers inconsistencies in the
information, the steps that will be taken as a final settlement of the dispute are to request an agreement from both parties
to make peace, which means that the dispute can be resolved immediately by the two parties to the dispute so that it
does not cause problems in the future. a disagreement between the two disputing parties.
Based on the rules that have been regulated, namely Simalungun Regency Regulation Number 2 of 2016 concerning
Nagori, Simalungun Regency Regional Regulation Number 13 of 2006 concerning the Nagori Government, and Law
Number 6 of 2014, the Pengulu does not know much about his duties and authorities, particularly in terms of resolving
disputes in the community, which in this case is only carried out because it follows the settlement method that has been
established. Similarly, the community does not know if there are problems or if disputes may be addressed through the
role of the Pengulu, but solely based on the community's historical habits. Similarly, the procedure for settling conflicts
between the parties is carried out in accordance with custom, as was done by the former Pengulu-Pengulu. Although it is
not controlled in special laws in writing form in general, the settling practice follows the customs that have been carried
out by the community for years.
REFERENCES
[1]. Gabriel, Maxwell and H. Hayes. Restorative Justice Developments in the Pacific Region: A Comprehensive Survey.
Dalam Contemporary Justice Review, 9(2), 2006.
[2]. Hendra Nurtjahjo dan Fokky Fuad, 2010, Legal Standing Kesatuan Masyarakat Hukum Adat “Dalam Berperkara Di
Mahkamah Konstitusi”, Salemba Humanika, Jakarta.
[3]. Liza Erwina, Ilmu Hukum, Pustaka Bangsa Press, Medan, 2012.