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LLB Program

Faculty of Law, Business and Arts Charles Darwin University

Lecturing material series

LWA113 Customary Law (SP2 10 – 14 July 2017)

CUSTOMARY LAW: Balinese Law in Context Prof. Dr. Ida Bagus Wyasa Putra Faculty of Law Udayana University

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CUSTOMARY LAW:

Balinese Law in Context1

Prof. Dr. Ida Bagus Wyasa Putra2

A. INTRODUCTION

Reason for Studying Customary Law

In Indonesia, customary law is the law of the traditional community, a law that is

created by traditional community, applicable or enforceable within the community,

against the whole community members. However, for a certain limitation of

application it is also applicable to the non-community members, the alien who

stays permanently in the community.

Traditional community is the original villages (desa asli) of Indonesia, called desa

adat or adat village or in Indonesian is called desa adat or in Bali named desa

pakraman, all villages that have existed prior to the existence of the state of

Indonesia. Following the independence of the state of Indonesia, the Constitution

posed and treated the village as an autonomous legal entity or a self-governing

community. The state, under the constitution, is under obligation to recognize and

respect the historical and cultural rights of such villages including their rights to

govern the community. Under such principle of recognition and respect, the

constitution provides the village the rights for creating, performing, implementing,

and enforcing the law within the community’s “jurisdiction”. The government under

the constitution is implicitly ordered the government to prevent any act of

intervention against the internal affair of the community as long as the community

1 Prepared for LLB Course on Customary Law, Faculty of Law, Business, and Arts Charles Darwin University,

LAW113 (10-14 July 2017). 2 Professor of law at Udayana University. Professorial Fellow at Charles Darwin University. Head of Center

for Law and Ideology.

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acts in conformity with the constitution or they do not act like a state within a

state.

Customary law, under the constitution, is the law of the adat community which

domestically applicable within the territory of the community against the

community’s members and in a certain limitation to the non-community member.

Therefore, adat law is mostly associated with labels, such as out of date, plebeian

or even primitive. So, why shall we study customary law within the global age?

There are several reasons needed to be considered for studying customary law,

includes: ethics, law, politics, and economics reasons.

The human beings and ethics

Human beings always identify their self as differ to animal. Moral is the most basic

nature of human beings which differs them from animal. All these moral values

rested in ethics, the moral rules, the rules voluntary obeyed by human or obeyed

by empathy and integrity.3 However, human beings do not totally proud with their

identity as a human. There are human deviates their identity, such as cheating or

even doing crime against their friends, family, community, and state.4 For the sake

of this fact, human being needs an instrument which gives them ability to control

their behavior and action, a law. Law, including adat customary law, is an

expression of ethics as a sign of identity of human beings which differs them from

3 For more detail about ethics, see Paul Kleinman, Philosophy: A Crash Course in the Principles of

Knowledge, Reality, and Values (Adams Media, Avon, USA, 2013) 267 4 For the reason why human being do not proud to their qualification as human and act like animal, see

the discourse on the origin of inequality by Jean-Jacques Rousseau (1712-1778). He said that man, like any other animal found in nature, I motivated by two principles: self-preservation and pity. In man’s natural state, man is happy, needs little, and knows nothing of good and evil. The only thing that separates man from any other animal is a sense (though unrealized) of perfectability. Id.70-71

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animal. Its existence need to be understood, maintained, and developed for the

better living of human beings.

The Universal Declaration of Human Rights (UNDHR)

A state is based on constitution. A modern constitution is a constitution giving

enough space for human rights. Article 27 of the Declaration set forth that

everyone has the right freely to participate in the cultural life of the community, to

enjoy the arts and to share in scientific advancement and its benefits. This

Declaration has been supported with a more hard instrument, the International

Covenant on Economic, Social and Cultural Rights 1966 which has been set under

the consideration that: (a) the principles proclaimed in the Charter of the United

Nations recognizes the inherent dignity and of the equal and inalienable rights of

all members of the human family as the foundation of freedom, justice and peace

in the world; (b) these rights derive from the inherent dignity of the human person;

(c) in accordance with the UDHR, the ideal of free human beings enjoying freedom

from fear and want can only be achieved if conditions are created whereby

everyone may enjoy his economic, social and cultural rights, as well as his civil and

political rights; and (d) the obligation of States under the Charter of the United

Nations to promote universal respect for, and observance of, human rights and

freedoms. Hence, the state and the international community are under obligation

to provide freedom of cultural rights of any person, individually or within their

community. Customary law, as a part of culture, recognized and respected by the

Declaration as a moral commitment of the universal society. It needs to be

recognized and respected consistently by all states, individually or collectively,

within or outside their territory.

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The modern state and the value of democracy

Democracy is a political system which always put in opposite position with

monarch and oligarchic political system where the political system is based on

power approach and employed in a top down system. While in the democratic

system, the political system is based on people participation and managed in a

bottom up system. In the recent concept of democracy, the legitimate level of a

state policy is measured under the level of participation of the whole segments of

stakeholder in the policy process. The lacks of level of participation could become a

reason for refusing or even denying the policy. Each stakeholder is recognized and

respected proportionally due to their relation with the purpose of the policy. Under

this concept, customary law finds its position within the traditional community as

one of stakeholder of any state democratic community system. Hence, it needs to

be recognized and respected under the state policy process.

The philosophy of diversity, harmony and peacefulness in human living

It is the fact the universe that the universe consists of various kinds of things and

creatures and never be the similar kinds of things and creatures. So, diversity is

the facts of the universe. All are given on its position and function. Conflict and

chaos happen only when a creature or things accessing or taking position of

others, intentionally or by failure, by force or by accident. The work of the universe

is depended on the integrity of all things and creatures taking position and

function in accordance to their given or natural position and function. The work of

the universe is depended on the balance and the balance is depended on the

integrated energy created by each works of the things and creature from its own

position and function. The consistent position, function or works of each things

and creature in accordance to the natural energy establishing harmony and

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harmony creates peacefulness. So, under such philosophy, recognizing, respecting,

and keeping the diversity is a part of the law of nature. Diversity is the natural

reason of creation of the universe and diversity is the foundation of the harmony

and peacefulness of living. So, the state is needed to recognize, respect, and keep it

in respect with their individual and common purposes in the living of international

society.

The politics of pluralism

The idea of democracy has been transformed into the politics of pluralism.

Pluralism is an affirmation to the diversity. Pluralism requires consistent behavior

on respecting and keeping diversity in the life of state. Pluralism is a common value

of socialism and liberalism. It finds its root in the theory of social components and

the theory of freedom of liberalism. Pluralism is a universal values agreed upon all

member of international society. So, it shall be respect by all members of

international society and express through their policies.

The politics of identity

Indonesia considers customary law as the seed of the state law. It is the mark or

sign of the Indonesia state law. The idea of Indonesian national law is rooted in the

adat law as an Indonesian original law. Hence, studying the Indonesian customary

law is an option for the better way for understanding Indonesian legal system.

Professor Soepomo, the drafter of the constitution of the Republic of Indonesia in

the meeting of the Badan Penyelidik Usaha Persiapan Kemerdekaan Indonesia

(Board of Investigation of Preparation Efforts of Independence of Indonesian), 31

May 1945 stated that the basis and form of organization of a state is closely related

to the social process of their legal system and the structure of their social

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institution. Each state has their own particularity which related to the history and

their social features. Therefore, the form of the state of Indonesia shall be firmly

adapted to the social structure of the Indonesian original social system.5

Traditional community is the home of traditional culture and culture is an economic resource The natural influence of the Smith theory of economics has blinded scientist from

an abundance facts of changing of culture from its classical position and function

into its newest radical position and function. Culture has far away breaking

through its classical demarcation into its new territory, as an economic resource.

Culture has possessed its new position and functioned as an economic resource.

The home of culture is the traditional community. Hence, developing and

maintaining economy shall now mean developing and maintaining culture, and

developing and maintaining culture shall now also mean developing and

maintaining traditional community. Traditional community is the home of

Indonesian national culture.

The urgency of studying customary law lies in the idea of law as an integrator and

balancer of all “energies” within the community and the balance of the community

subsequently determining the existence of the community. Instead of various

reasons of urgency, such as ethics, culture and politics, the needs of keeping the

existence of traditional community in the modern states and global world lies in

the correlative mutual relation between culture and economy where the level of

existence of the community would determine the level of existence of culture and in

5 Sekretariat Negara Republik Indonesia [The Secretariat of the State of the Republic of Indonesia], Risalah

Sidang Badan Penyelidik Usaha-Usaha Persiapan Kemerdekaan Indonesia (BPUPKI) [The Proceedings of Meetings of the Board of Investigation of the Preparation Efforts for the Independence of Indonesia] (Sekretariat Negara Republik Indonesia, Jakarta, 1995) 34

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furtherance the level of existence of culture would determine the existence of the

state’s economy and so the level of sustainability of the life of the state.

B. BALINESE LAW IN CONTEXT

1. Brief history of Indonesia

Indonesia is naturally a country of diversity. They consist of various races with

diversity in their culture. The history of Indonesia is part of the history of

human beings. It is started some 15 billion years ago.6 However, the Indonesian

history has been started some 1.9 million years ago, the time of the living of the

Meganthropus modjokertensis and Meganthropus palaeojavanicus.7 Some

10.000 years ago has been found a typical human race identified as

Austromelanesoid and Mongoloid which is similar to the type of human races

living in Indonesia now days.8 These original races of Indonesia then mixed with

the group of human migration from south of Asia which crossed the South Asia

Sea some 300 BC which then continued by the bigger races migration from all

part of Asia continent age by age and formed the recent Indonesia nation.

However, the model of the village community has been identified as taken from

the model of Doab, a village community model developed by Aryan people in the

banks of rivers of the Yamuna and Gangga in the south of India.9

6 Yuval Noah Harari, Sapiens A Brief History of Humankind (Harvill Secker, London, 2014) 1

7 Sartono Kartodirjo etall, Sejarah Nasional Indonesia I [The National History of Indonesia] (Balai Pustaka,

Jakarta, 1977) 20 8 Id., 119

9 See further Ida Bagus Wyasa Putra, The Existence of Traditional Community in the Modern

State and the Global World: the Experience of Indonesia in Governing its Traditional Community (Faculty of

Law, Education, Business & Arts, Charles Darwin University, 2017) 44

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Under such social process, diversity is a matter of fact of Indonesian social

process. Indonesia has its own original races. However, the race has merged

with any other races from various regions of the earth and formed diversity of

races in Indonesian community. Hence, it is a truth for Indonesia that

Indonesia is a country of diversity by its origin and causing it may not be

simply denied by the government of Indonesian.

2. Awig-awig sources of authority

Only the valid law is binding upon the community members. The validity of law

is determined by its legal basis of its creation, it is the authority for creating the

law. The authority for creating adat law resides in the domestic reason and

external reason of the adat community. The domestic reason for the validity of

the adat law is the recognition or acceptance of the adat community members

over the adat law and the external reason for the validity of the adat law is the

state law, it is the Constitution of the Republic of Indonesia.

Adat law is a custom, it is the best or common practice on regulating any

subject matter within the community, when it successfully and repeatedly

fulfills the expectation of the community, then recognized or accepted as law by

the community. That is why adat law is understood as customary law, the law

drawn up through a process of custom, a repeatedly practices on arranging or

regulating a certain subject matter, when it is successfully and repeatedly

fulfilling the expectation of the community, then adopted as a law by the

community. Hence, the domestic source of validity of adat law is the recognition

or acceptance of the community member over a repeatedly practice of an

arrangement with regard to a certain subject matter.

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The external reason of the validity of the adat law are Article 18B paragraph two

and Article 28I paragraph three of the Constitution of the Republic of Indonesia

which states as follows:

Article 18B paragraph two:

The State recognizes and respects traditional communities along with their

traditional customary rights as long as these remain in existence and in

conformity with the societal development and the principles of the Unitary State

of the Republic of Indonesia, and shall be regulated by law.

Article 28I paragraph three:

The cultural identities and rights of traditional communities shall be respected

in accordance with the development of times and civilizations.

3. Recognition of adat in Indonesian law

Under article 18B paragraph two and article 28I paragraph three, adat law

recognizes and respects as adat community law by the state. This recognition

and respect are valid as long as the adat community remains existed and in

conformity with the principle of the unitary state of Indonesia and the recent

development of human civilization.

C. HOW AWIG-AWIG IS MADE IN BALI

1. Jurisdiction

Jurisdiction is a power to create, perform, implement, and enforce law.

Jurisdiction is a secondary power derived from sovereignty, a prime power that

only owned by a state. A prime power is a highest power. There may not be any

other power above it. Hence, the only state may own such power and so such

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jurisdiction.10 Jurisdiction under the discourse of customary law is a quasi

jurisdiction. It is a community power provided by or derived from the state

constitution. The constitution recognizes and respects the cultural rights of

adat community which means the constitution granted a community authority

to the adat community for creating, performing, implementing, and enforcing

the law of the adat community. The constitution provides such power to the

adat community for performing such adat community legal system.

Article 18B and 28I of the state constitution of the Republic of Indonesia

recognizes and respects the jurisdiction of the adat community. They shall

enjoy a full community jurisdiction on managing their domestic affair including

on creating, performing, and enforcing adat law. They may enforce their law

against their community member and in a certain limitation may also against

the non-community member. The non-community member who permanently

resides in the adat community territory commonly treated as a visiting

community member, called krama tamiu (a visiting community or non-

permanent community member). Adat law, for a certain limitation, shall

applicable to them, such as on implementing the community rules for

participating in the daily arrangement of security or cleaning up the community

environment. The law creating process, performance, and enforcement are fully

in the hand of the community member. The non-community member have

never involved in such process. The community law determines that only

community members may be granted status as a full community member and

only a full community member may be fully bound by community law.

10

Harris, Cases and Materials on International Law (Third Edition, Sweet & Maxwell, London, 1983) 210

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2. Process

The adat law previously has been created under a natural customary law

process. A natural customary law process is a practices based process of

drawing up law. The adat law has been drawn up under a process of reaffirming

any of the community best or the common practices on governing the

community or settling any dispute arising out from any inter-member

community social relation. This process has been taken place for ages and has

been a reason why adat law has been considered as customary law or living

law. Since 1970s, such kind of process has been influenced by some

academicians from Faculty of Law Udayana University who doubted on the

certainty aspect of adat law and further justice. Under such doubtfulness, they

proposed to transform the living law model into a written law model, which is

closely a like to legislation model. They strongly suggested adat community to

adopt such model. In 1986s, the Province Government of Bali conducted an

adat community competition which required a written awig-awig as one

compulsory requirement for the attendance. Since then, the written model of

awig-awig enters into the community legal system. So, this model has entered

the adat community legal culture through the adat community competition

conducted by the Province Government of Bali.11

3. The role of Majelis Desa Pakraman

The Majelis Desa Pakraman is an assembly of the adat communities in Bali

established under the Province Government of Bali Act (PGBA) Number 3 of

2001 concerning Desa Pakraman. It is a non-governmental body responsible for

11

See above n4, 38

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assisting and facilitating the adat village or the desa adat12 on managing the

adat, culture, and religion. The Act, article 16 paragraph one letter (d), orders

the Majelis to provide assistance to the desa pakraman on drafting the awig-

awig. Hence, the Majelis bears a functional position against the desa pakraman.

Under such function, the Majelis may also actively supporting the drafting

including providing information, consultation, supplying a model of rules

formulation, guiding the process, and delivering a correct information regarding

the drafting and the adoption process.

Article 14 of the PGBA determined that the Majelis is consisted of three levels:

the prime assembly of the desa pakraman (Majelis Utama Desa Pakrama), the

second level assembly of the desa pakraman (Majelis Madya Desa Pakraman),

and the lowest level of desa pakraman (Majelis Alit Desa Pakraman).13 The

Majelis Utama is placed in the Province Government level, the Majelis Madya is

placed in the Regencies Government level, and the Majelis Alit is placed in the

District Government level. The Majelis Alit is established by the representatives

of all desa pakraman within the district territories through a meeting called

Paruman Alit. The meeting shall also determine the head of the Majelis and its

officials. The Majelis Madya is established in each of regency of Bali by all desa

pakraman within each of the regency through a meeting called Paruman Madya.

They also appoint the head and officials of the Majelis Madya. The Majelis

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Under this Act, the name desa adat has been replaced with desa pakraman. The word pakraman is the original name for desa adat in Bali. The use of the name has been proposed by I Made Suasthawa Dharmayuda, a scholar from Faculty of Law Udayana University, based on the result of his research on adat community in Bali. However, there are some desa adat in Bali remain use the name of desa adat as they considered that the word has been adopted into Balinese Language and much more familiar to Indonesian. The Government of Bali recognizes the practice on using the name. Now, some adat communities in Bali use the name desa adat and the others use the name desa pakraman. They are both referring to the same community, the adat community.

13 Majelis means assembly. Utama means prime. Madya means second level. Alit means small or lowest.

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Utama is established by the representatives of all desa pakraman in Bali

through a meeting called Paruman Agung.14 The paruman shall also appoint the

head and officials of the Majelis.

The Majelis Alit provides services to all adat communities in the district and so

the Majelis Madya to all adat communities in the regency. The Majelis Utama

shall provide services to all desa pakraman in Bali with particular issues

related to inter-district and inter-regencies matter. Article 1 point 14, 15, and

16 of the Act also provides authority for conducting paruman and taking

decision within the paruman in accordance to particular levels. Paruman at

each of the level shall be represented by representative of each desa pakraman

at each of the level concern. The paruman shall be held in the city or district for

Paruman Alit, city of regency for each of regency, and city of Province of Bali for

Paruman Agung.

D. BALINESE CUSTOMARY LAW ON MARRIAGE, LAND, SUBAK

1. Marriage Law

Concept of marriage

Marriage is a religion, culture, adat, and legal event. As a religion event,

marriage is based on a sacred concept of Hindu. Marriage is a meeting of the

male element or power (purusha) and the female element or power (pradana) of

the universe. This meeting intends for developing and maintaining the power of

creating, maintaining, and recycling (prakirthi) the living of human being, such

as creating a new generation of human being, maintaining the family life of

14

Paruman means meeting. Alit literally means small, but in this context means lowest level of Majelis. Madya literally means medium, but in this context means the regency level. Agung literally means the biggest, but in this context means the province level of the the prime assembly.

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human being, and taking care of the parent or senior when they (the soul) left

the body. It is ordered by God the Almighty that human is under obligation to

sustain their living through producing generation. It is one of the form of holy

obligation of human being (dharma) ordered by God. The level of human

achievement in this universe is measured i.e. by their dedication in

participating in the keeping the balance and harmony of the universe. It is

through i.e. marriage.

Principle of marriage

There are four principles of marriage under adat law:

(1) Fulfilling standard of maturity;

(2) Couple;

(3) Patriarchal; and

(4) Valid.

The standard of maturity under adat law does not based on ages, but biological

indication and followed with a certain ceremony called menek kelih or munggah

daha.15 The ceremony for the lady named raja swala and for the man called

raja singha. Couple means the marriage shall be conducted by man and

women. Patriarchal means the wife shall follow the husband or after marriage

the wife shall stay in the husband’s home or family. There is a unique concept

in the adat community in Bali that the lady may take position as purusha and

function as husband and the man may take position as pradhana and function

as wife. This concept is applicable upon facts when a family in a community

does not have son, but daughter. Under such fact, the lady may stand as a man

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Menek or munggah means stepping into a higher level. Kelih or daha means adult.

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and propose marriage to a man who stands as women and take the man into

the home or family of the lady. The lady shall take position as purusha (male)

and will function as husband and the man shall take position as pradhana

(female) and shall function as wife. Valid shall mean that the process of

marriage shall meet the adat standard, such as:

a. Informing. The man and the women who wish to have marriage shall inform

each of their parents. In case of no parents, there shall inform the oldest of

their family member or those who representing their family in the

community.

b. Proposing and acceptance. The family of the man shall propose marriage to

the family of the women and the family of the women shall express

acceptance. Within the process, each of their family may ascertain and

recheck each of their son and daughter whether the proposed for marriage is

true.

c. Proposing and acceptance through adat process.

d. Picking up the lady and transferring into the man family.

e. Ceremony for validating the marriage.

The marriage is valid only when the marriage has met such whole process.

There is also a marriage called ngerorod, a marriage conducted directly by the

couple in case of they obtain no agreement from their parents. The basic reason

for this type of marriage is the refusal of the parents for the marriage for

various reasons, including personality, etc. However, this marriage shall be

considered valid only when such marriage meets the rest of the standards and

procedures of adat law, such as: informing, by the man family to the lady

family; the religion ceremony, for formalizing the marriage and shall also be

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witnessed by the head and the community members. In many case, the

presence of the lady’s parents does not required.

The effect of marriage

As an adat and legal event, marriage is a changing status of individual.

Marriage will change the individual and social status of an independent

individual person into couple and full community member. It will also change

the status of every single person within each of their family including their

family relation, such as: the man become the husband and the women become

the wife; the father and the mother changed into the father and the mother in

law; and the brother and sister changed into the brother and sister in law, etc.

Their social status also changes from limited community member into a full

community member.

Article 2 paragraph one of Act Number 1 of 1974 concerning Marriage

determines that the validity of marriage is based on the fulfillment of the

requirements determined by the religion’s of the couple. In the concept of

religion includes adat as an implementation of religion. Under this rule, adat

law, particularly the adat marriage law finds its position and function within

the state law. Hence, adat marriage law is part of the state marriage law.

Adat marriage laws are particular to each desa adat. The marriage law of the

adat community in Bali is based on the Balinese Hindu. Each marriage is valid

upon passing the Balinese Hindu ceremony for formalizing the marriage. This

marriage ceremony called masakapan.

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Adat marriage law is closely related to the family system adopted by the

community. The Balinese family system is based on the patriarchal principle,

the principle that follows the male family line.16 So, the female shall follow the

male, including in the case of the different religion between the male and the

female. This family line system is also applicable to the heritance law. The male

is the heir of the family heritage as the family obligations, includes spiritual,

religion, ancestor, and community obligations, will be passed to the male,

whoever posed in the male (purusha) position.17

2. Land Law

The law applicable to the adat land is the state law, Act Number 5 of 1960

concerning Agrarian Basic Guidance Rules (Peraturan Dasar Pokok-Pokok

Agraria), commonly abbreviated in Basic Agrarian Act (Undang-Undang Pokok

Agraria or abbreviated in UUPA). Under the law, all lands are subject to the

rights of dominating by the state (hak menguasai oleh negara). Such rights shall

cover authorities for: (a) governing the use and maintenance of the land; (b)

determining and governing any legal relation between person with the land; (c)

determining and governing legal relation between persons with legal act with

regard to land. Such rights of the state shall be used mainly for fulfilling the

purpose of the wealth of the nation. The performance of the rights may be

transferred by the state to the local government and the adat community.

Article 3 of the Act recognizes the adat land rights, called the adat rights over

the land (hak ulayat), as long as in reality it is still existed. This rule has been

in detail governed by the Agrarian Ministry Regulation Number 5 of 1999

16

Above n4, 39 17

Id., 40

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concerning Guidance for the Settlement of Problem of Adat Land Rights. Article

1 of the Regulation set forth that the Adat Land Rights (ALR) of the adat

community is an authority under the adat law owned by the adat community

over a certain piece of land as its territory where the member of the adat

community is living and taking benefit from the existence of the land including

natural resources within the land for the sustainability of their life and living

which born from the natural (physical and psychological) and continuous

relation generation to generation with no phase of time between the adat

community with the land. So, the ALR is a collective or community rights over

the adat land. The ALR is recognized by the state as long as the adat

community remains existed. The Act and the Regulation recognizes the ALR as

a full community ownership rights over the adat land. Hence, it includes a full

right for governing, using, and transferring among the community member by

the adat government. Article 4 of the Regulation determines that the adat land

may be used for commercial purposes under a certain scheme of commercial

cooperation with the third parties. The cooperation shall be based on agreement

agreed upon the parties, the adat community and the third parties.

The adat land under the ALR commonly divided into four classes: (1) the land

for living or houses of the community member, called land for living for the adat

community member (tanah ayah desa – AYDS)18; (2) land for the asset of the

temple, called asset of the temple (tanah pelaba pura); (3) land for the yard of

the adat community, called tanah pekarangan desa – PKD; and (4) land for the

asset of the adat community, called land as the wealth of the adat community

(tanah druwen desa).

18

Tanah means land.

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3. Subak

Adat community is closely related to the subak. Subak is a traditional

institution for rice field irrigation management. The subak is an independent

and functional organization. It does not sub-ordinate to the desa adat. The

member of the subak is consisted of the adat community member or even

cross-adat community member. It depends on the spreading of the rice field.

The membership of the subak does not limit to one adat community. If the rice

filed is spread out cross-adat community borders or covers more than one adat

community then the member of the subak will also include the community

members of all adat communities involved. The subak member is the owner of

the rice field.

The word subak is transformed from the word suwak means opening a water

canal for connecting the water source with the rice field for watering the rice

field.19 The word subak then become the name of a traditional farmer’s

organization in Bali for managing the rice field watering or irrigation system.

This organization has existed since 9th Century as proven by the Bebetin

Manuscript (896 AD), Trunyan Manuscript (891 AD), and Pandak Badung

Manuscript (1071 AD). Subak is an implementation of the Tri Hita Karana

Philosophy, a philosophy of balance and harmony, relation between man and

God (PARHYANGAN),20 man and man (PAWONGAN),21 and man and its

19

Direktorat Internaliasasi Nilai dan Diplomasi Budaya, Direktorat Jendral Kebudayaan, Kementerian Pendidikan dan Kebudayaan, Lanskap Budaya Subak (Direktorat Internaliasasi Nilai dan Diplomasi Budaya, Direktorat Jendral Kebudayaan, Kementerian Pendidikan dan Kebudayaan, 2014) 13

20 The word Parhyangan coming from the word hyang means God. Parhyangan means anything related to

God. 21

The word pawongan coming from the word wong means human. Pawongan means anything related to the living of human being.

21

environment (PALEMAHAN).22 In subak system, this philosophy is implemented

in forms of rice field (the palemahan), the subak organization (the pawongan),

and the subak temple (the parhyangan). A subak system always composed of

those three components and the subak organization always connected with the

other two elements, the rice field and the subak temple.

Parhyangan

The subak temple is called Pura Subak. It may perform in various name of

subak temple, such as:

(1) Pura Ulun Danu, temple at the main source of water (lakes);

(2) Pura Ulun Suwi, temple at a territory of a certain subak;

(3) Pura Masceti, temple at downstream of the subak canal or river;

(4) Pura Empelan or Bedugul, temple at the subak water distribution center;

(5) Sanggah Catu, a small building for ceremony placed at the entrance of water

flowing into a certain rice field;

(6) Temples commonly function as a subak temple and prayed by subak

communities.

Pawongan

The word pawongan is transformed from the word “wong” means a man. The

main form of pawongan is the subak community member, called “krama” or

krama subak. Krama subak is organized in subak organization. The official of

the subak is called prajuru subak, the people who managed the subak

organization. The prajuru is consisted of:

(1) Pekaseh, the head or the organization;

22

Palemahan means a piece of land or a certain width of land. Palemahan can be translated as yard or territory.

22

(2) Petajuh, the vice of head;

(3) Penyarikan, the secretary;

(4) Patengen or juru raksa, the financial manager.

Therefore, the simple form subak organization may be drawn up as follows:

KRA

Kesinoman is a position taken by each of the subak member under a regular

rotation monthly from one to the other member. The main function of the

kesinoman is to supply community information for any activity that going to be

carried out by the community, including information regarding a community

meeting, called sangkepan.

The more complex structure of subak organization may be drawn up for the

bigger number of its community member or the wider territory of the subak.

The more complex structure of the subak organization may be drawn as follows:

PEKASEH/KELIHAN

SUBAK

KRAMA SUBAK

KESINOMAN/JURU ARAH

23

Tempek is a sub-group of the subak community. Tempek is divided under a

territorial basis, it mostly following the position of the sub community in line

with the nature direction (east, south, west, north, and center). Some time

tempek has its own organization structure, depend on the number of its

membership and/or the width of their sub-territory.

The rule governing the community is called awig-awig subak. The awig-awig is

independently developed by the subak community. It adopted through a subak

meeting, named paruman subak.

Palemahan

The palemahan is the territory of the subak, covers: the rice fields, the water

source, the water distribution points, the water canal, and the downstream of

Pakaseh

Kelihan Tempek

Member of Tempek

Secretary

Financial Manager

Kesinoman

24

the water flow. The rice filed is a leveled land structure (terrace) for planting

rice.

E. INDONESIAN LAW REGARDING DESA ADAT

The constitution

The Constitution of the Republic of Indonesia recognizes and respects the adat

community in Indonesia as it has been conformed explicitly under article 18B

paragraph two and article 28I paragraph three of the Constitution. It has also been

confirmed by various legislation products, such as:

a. Act Number 23 of 2014 concerning on Local Government confirms culture as

one of the main obligatory matter that shall be managed by local government

(Article 12);

b. Act Number 5 of 1960 concerning Agrarian Law confirms the state recognition

and respect to the adat rights of the adat community over the adat land;

c. Regulation of Ministry of Domestic Affair Number 5 of 1999 concerning Adat

Land Rights confirms adat ownership rights over the adat land;

d. Act Number 1 of 1974 concerning Marriage confirms that the validity of

marriage for the member of adat community shall be based on adat law. The

rules include the validity of heritance which shall also based on adat law;

e. Act Number 41 of 1999 concerning on Forestry confirms the rights of adat

community over adat forest (Article 37);

f. Act Number 26 of 2007 concerning Space Management confirms that culture

shall be considered properly in the regulation of space management (Article 6);

g. etc.

25

However, the emptiness of Act governing the adat community as ordered by Article

18B paragraph two has caused the status and legal capacity of the adat

community remain vague, whether the adat community is a legal entity with full

capacity or it is not. This vagueness has caused the adat community loses its

chance to managed and developed their community economically. The third parties

remain doubt on the legal status and capacity of the adat community. Hence, they

decide do not conducting business or economic activities with the traditional

community. This situation much more worst in the past, but it has been recovered

recently by intervention of many result of research performed by universities. There

is a result of research regarding the status of adat community as a legal entity with

full legal capacity in fair dealing business relation and contract conducted by Dr. I

Wayan Arka. He confirms that adat community is a legal entity with full capacity

for developing business activities, including any contractual dealing, under the

Constitution of the Republic of Indonesia.23

The local government act

The emptiness of legislation governing the adat community has caused vagueness

of the status and legal capacity of the adat community. In Bali, it has been

responded in the form of providing local legislation act by the Province Government

of Bali. The Province Government of Bali has enacted a local act for the first time in

1986, Province Government of Bali (PGB) Act Number 06 of 1986 concerning

Existence, Function, and Role of Desa Adat, which then amended by PGB Act

Number 3 of 2001 concerning Desa Pakraman and finally amended by PGB Act

23

I Wayan Arka, Desa Adat Sebagai Subyek Hukum Perjanjian [Adat Village as A Subject of Contract] (Udayana University Press, 2016) 353

26

Number 3 of 2003. The Act confirms the recognition and respect of the state over

the adat community including all of their cultural rights.

The Province Government of Bali has also adopted PGB Act concerning the

Financial Institution of Desa Adat (FIDA), called Lembaga Perkreditan Desa, under

PGB Act Number 8 of 2002 as then amended by PGB Act Number 3 of 2012 and

finally by PGB Act Number 3 of 2017 which confirms that FIDA is belong to the

adat community and shall fully managed by the adat community.

The act of governing the adat community in Bali has improved the legal status and

cleaned up the legal status of the adat community in Bali. Adat community in Bali

is now enjoying their full legal status as a legal person. Dr. I Wayan Arka reported

in his research that there are de facto that desa adat has been accepted as parties

in number of business contracts in Bali.24

F. BALINESE CUSTOMARY LAW AND TOURISM

Almost all parts of region of Bali are divided into adat territories. There are some 1.488

desa adat in Bali spreads out all over the regions of Bali. They own tourism object and

destination within their territory. In the previous year, all the destination objects have

been managed by the local governments in Bali and the private sectors. But, lately it

has been recovered through a business fair dealing. Now, most of desa adat who own

business object have cooperation with the government or private sector. Business

dealing between the parties is subjected to the state law of contract. The customary

law remains valid for governing the internal affair of the desa adat and for a certain

limit including the non-community member who permanently lives in the adat village.

24

Above n9, 233

27

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