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Tuesday, April 20, 2021 | 16:51 WIB

Petitioner Wielfried Milano Maitimu at the virtual preliminary hearing of the material judicial review of the Civil Code, Tuesday (20/4/2021) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations—Wielfried Milano Maitimu represented the Ambon-Lease customary law community to file for material judicial review of the Civil Code (KUHPer). The preliminary hearing for the case No. 1/PUU-XIX/2021 was held by the Constitutional Court (MK) on Tuesday, April 20, 2021.

Before Constitutional Justices Arief Hidayat (panel chair), Wahiduddin Adams, and Saldi Isra, he alleged that the norms in question are in violation of the customary law on inheritance practiced in Maluku, especially Ambon. The reason being that the customary law on inheritance no longer applies since the courts refer to the Civil Code. As a consequence, the Petitioner, failed to receive housing inheritance as ‘anak rumah’ (or ‘rumahtua’ in the Moluccan customary law)—a term in the Moluccan kinship system that means a child that is not acknowledged by the paternal relatives but acknowledged by the maternal relatives and, thus, can continue the matrilineal line.

After the Petitioner’s mother passed away in 2018, a house previously belonging to the ‘rumahtua’ fell to the hands of his mother’s husband. It was to be sold and the proceeds be distributed according to the norms in the Civil Code. The Petitioner believes that this shouldn’t apply in the Moluccan customary law.

“The loss concerns the Moluccan customary law on inheritance. The inheritance to apply and be prioritized should be the customary law, not the Civil Code. As our [customary] law doesn’t violate the NKRI [the Unitary State of the Republic of Indonesia], it should apply,” Maitimu said.

In his petitum, he requested that the Court “declare that all inheritance part one due to death, part two of longest surviving kin and husband or wife, part three in case of children born outside of marriage, and part four on legitime portie specifically all phrases in Articles 831, 832, 834, 849, 852, 852a, 857, 862, 863, 864, 865, 867, 869, 872, 913, 914, 916, 916A, 920, and 921 of the Civil Code in violation of the 1945 Constitution Article 18B paragraph (2) and Article 28I paragraph (3) and not legally binding or conditionally constitutional insofar as not be used to rule on disputes within customary law communities.”

Legal Standing to Be Changed

Constitutional Justice Saldi Isra advised that the Petitioner prove his authority to represent the Ambon-Lease customary law community. “You cannot claim without any prove that the Court can accept that you truly represent a customary law community. Please explain your authority,” he said.

Justice Saldi also noted that the Petitioner hadn’t elaborated on the factual loss suffered by him or the customary law community. He also said that there hadn’t been clear and firm explanation of how the contented norms violate the 1945 Constitution. He advised the Petitioner to build an argument regarding his loss due to the enactment of the norms.

“So, Mr. Maitimu, the more articles are petitioned, the more you have to explain to us that the articles indeed violate the 1945 Constitution,” Justice Saldi stressed.

Monograph on Customary Laws

Meanwhile, Constitutional Justice Wahiduddin Adams advised the Petitioner to refer to monographs of customary law communities commonly compiled by judges in the eastern parts of Indonesia to record the development of the customary law in those communities.

“Such monographs were compiled, and some judges apply customary laws and are not limited to the provisions of the Civil Code. You can read them. I remember this because [the Court] has organized events with the National Law Development Agency where such monographs exist from each court. I saw that a lot of them came from Ambon, from [East Nusa Tenggara] because of the oral traditions. The judges wrote the monographs to learn those [customary] laws. You can add them [on the petition] later,” he explained.

He then reminded the Petitioner to understand the law that has been developing in the region. “Therefore, the Petitioner, who graduated from law, is expected to be able to explain the implementation of customary laws and civil law that has undergone changes and adjustment to oral traditions in the communities, so that it can support the Petitioner’s explanation in this case,” he said.

Meanwhile, Constitutional Justice Arief Hidayat advised the Petitioner to observe the legal object, whether the Civil Code or the Village Administration Law has not allowed for the implementation of the Ambon customary law or other such laws. If the object is the Village Administration Law, more parts of the petition should be revised.

Before concluding the hearing, Justice Anwar informed that the Petitioner was to revise the petition no later than 14 workdays since the hearing and submit it by May 3, 2021 at 10:00 WIB to the Registrar’s Office.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 4/21/2021 12:26 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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