Petitioners as Customary Law Community Questioned

The Constitutional Court conducted a trial on Act No. 31 Year 2007 on the Forming of Tual City in Maluku Province (Act on Tual City) towards the 1945 Constitution, on Monday (7/01). The trial was conducted with Checking The Improved Petition as the agenda.

The Petitioners considered Act on Tual City, both formally or materially, was violating Article 18 Paragraph (1), Article 18B Paragraph (2), Article 20 Paragraph (1) of the 1945 Constitution. The Petitioners considered that the existence of the Act a quo had damaged the Petitioners’ constitutional rights, because the Act mentioned above did not meet the regulation on Article 18 Paragraph (1) 1945 Constitution and Act No. 32 Year 2004 on Provincial Government (Act on Provincial Government).

The Petitioners also explained that the forming of Tual City did not have a formal approval from the Regent of Southeast Maluku Regency and the Provincial Parliament of Southeast Maluku; in fact there were not any aspiration polling from the People of Southeast Maluku Regency regarding the extention process of the Southeast Maluku Regency. Besides that, the  approval from Maluku Governor was not based on the result of regional research conducted by a special team.

Early at the beginning of the trial, the Head of Panel of Justices, I Dewa Gede Palguna, demanded the Petitioners to prove that they were the Customary Law Community. Repeating the statement from the previous trial, Palguna adcised the Petitioners to clarify their legal standing. “As the regulation stated on Article 51 Paragraph (1) Act on Constitution Court, there should be made different between the traditional people ant the customary law commnunity because not all the traditional people belong to the customary law community,” explained Palguna.

Referring to the points advised in the previous trial, the Petitioners stated that according to the information on Article 51 Paragraph (1) Act on Constitution Court, there were two factors that considered them as the customary law community, the genealogic factor and the territorial factor. “Because of that, the existence of Tual City Act has caused a loss that resulted in the division and the separation of Southeast Maluku area because some parts of the area belong to North Maluku and the rest of the area belong to Tual City,” explained the Petitioners Legal Counsel, Sapriyanto Refa.

Responding to the statement, a Member of Panel of Justices Prof. H.A.S Natabaya, S.H., LLM. questioned again the legal standing of the Petitioners who claimed themseleves as the representatives of the Customary Law Community. “The Petitioners should clearly prove themselves as the Customary Law Community because based on the attachement of the petition filed, I do not find any prove that the Petitioners belong to the Customary Law Community. The characters of the Customary Law community are staying in a certain area or location, having their own government, having historical antiques, and having native inhabitants or community,” explained Natabaya.

To the question from Natabaya, the Petitioners defined Customary Law Community as a group of people living and growing in certain area or location. “The evidence that shows the group of Customary Law Community still exist is the existence of events held by Kings or Tribes Leaders,” answered the Petitioners.

Towards the explanation given by the Petitioners, Palguna gave an example from the situation in Bali where there were two kinds of villages, the government villages which were under the supervision of provincial government and the customary villages which had their own governments and their own territory. Further explained by Palguna, the customary villages were not affected by the expansion or the shrinking of the village area; even though there was such thing the customary village remained within their unity as Cutomary Law Community. “Because of that the Petitioners should attach solid proves to explain that the Customary Law Community in the Petitioners area still exist,” added Palguna. (Andhini Sayu Fauzia/Yogi Djatnika)

Monday, January 07, 2008 | 20:30 WIB 198