Customary Institutions in the Kei Indigenous Community Against Criminal Case Resolution

ARTICEL INFO This research is focused on exploring the values of Kei customary law on the settlement of criminal cases that are resolved through customary institutions, by proposing 2 (two) problems, First, how is the existence of the law customary criminal Kei? Second, what is the role of customary institutions in the settlement of criminal cases? This research uses non-doctrinal legal research methods with interviews and observations as primary data. Meanwhile, data analysis is inductive and qualitative. It can be concluded that (1) the formal customary law of Kei is the values that live in the community that are agreed upon and are binding on the community, where the settlement of customary Kei crimes is taken in stages starting from the family level, customary institutions (Soa, Orang Kai and the last tier of Rat). (2) the role of traditional institutions in the settlement of criminal cases is starting to strengthen in society, this is indicated by the level of compliance with decisions and sanctions that are stipulated. People believe that customary cases are resolved by “insiders” (customary institutions) through deliberation (dok Tasdov) with a local wisdom approach to create social justice.


INTRODUCTION
Marcus Tullius Cicero, a very famous philosopher, lived more than 2000 years ago, he said: "ubi societas ibi ius" which means "where there is a society there is law". 1 If this line of thought is continued, it can be said that where there is a community there is a judiciary or a case settlement mechanism. The existence of this solution is as old as human existence itself. In every indigenous community, especially in Indonesia, for a long time, the settlement of cases that have occurred has been resolved by deliberation and consensus through customary structures or institutions which are commonly known as customary courts. Culture in Indonesia includes traditional works of art. 2 Traditional communities are people who uphold their ancestors and uphold their customs. 3 It is important to study the role of customary institutions in the Kei customary community in solving cases, especially in the field of criminal law, based on 4 (Fourth) reasons. First, the question of the existence of customary institutions regarding the settlement of customary criminal cases still exists and continues to this day and is closely related to the cultural values (local wisdom) of the Kei people as a mechanism for peace in society. Even if there is a settlement through state law, this is still a burden and even an obligation for the local community if it is not resolved through customary mechanisms.
Second, the settlement of criminal cases through state law has so far focused more on the convoluted formal procedural aspects. State law seems not to pay attention to aspects of justice but to pursue aspects of legal certainty, this is different from settlement through cultural values in society that prioritizes the cosmic balance of society on the emphasis of social justice.
Third, in Indonesia, according to the statutory mandate, one of them is Law no. 48 of 2009 concerning Judicial Power, apart from the state court as a formal case settlement institution, it is also known through other case/dispute resolution institutions that refer to customary law. This is motivated by the existence of legal pluralism in effect in Indonesia, 4 the applicable law does not only belong to those of legal scholars with political and technical characteristics but also people's law or laws that live in a natural society 5 (adat law) as well as laws derived from religious teachings (religious law).
Fourth, the existence of criminal law as an instrument for overcoming criminal acts cannot be separated from the diversity of cultural values of a society in resolving cases. The settlement that rests on the construction of criminal law thinking only looks at the case from one aspect. Cases that are caused by crimes against the living law require the presence of customary institutions as an important reference so that the case can be resolved. 6 Referring to the four reasons above, an interesting problem to research is how the existence of the formal Kei customary criminal law and the role of customary institutions in the Kei customary community in the settlement of criminal cases?

METHOD
Type of research belongs to the type of non-doctrinal legal research (socio-legal research) because the law is conceptualized as a social phenomenon that can be observed in people's observations. The point of emphasis is to find out about the process of working the law in society. The data used in this study came from primary sources consisting of primary data and secondary data. Primary data consists of field studies in the form of interviews and observations. Secondary data is in the form of related legislation, books, journals, papers and other scientific works related to how the existence of the Kei customary formal criminal law and the role of customary institutions in resolving criminal cases. As for data collection through interviews and literature studies, namely by tracing and examining literature related to the laws living in the Kei community, state law, the role of customary institutions in solving criminal cases based on Kei customary law. Furthermore, the data is processed and analyzed the research problem. The specification of this research belongs to the analytical descriptive research circle because it is an attempt to describe (disclose and explain) the problems in this research, which are then analyzed using qualitative methods. The processing method is carried out inductively, namely concluding data and specific facts for further conclusions to be drawn.

Existence of Kei Customary Criminal Law
This research shows that in the Kei customary community, there is a customary law called Larvul Ngabal. This customary law was not codified in a book but was made unwritten. This customary law still exists and applies from generation to generation to this day and its sub-systems. The customary law of Larvul Ngabal consists of 7 (seven), as follows: Article 1, Uud entauk na atvunad (the head remains united/resting on the shoulders); Article 2, Lelad ain fo mahiling (our necks are honoured); Article 3, Uil nit enwil rumud (skin from the ground wrapping our bodies); Article 4, Lar nakmot na rumud (blood covered in the body); Article 5, Rek fo kilmutun (the barrier is noble/great); Article 6, Morjain fo mahiling (a place for women to be respected and honoured); Article 7, Hira i ni fo i, it did fo it did (people's property still belongs to us, ours still belongs to us). 7 Labetubun concluded that the substance of Larvul Ngabal contains noble universal human values, which include religious values, basic life together, unity, unity, cooperation, deliberation and consensus as well as the values of honesty, truth and justice. 8 As the parent of the entire Kei customary law, Larvul Ngabal specifies several subsystems called Sasa Sor Fit, which means customary offences or seven-level errors are further regulated in 3 (three) laws. First, the law nevnev (criminal), which regulates human life (derived from Article 1 to Article 4 Larvul Ngabal), second, the law hanilit which set decency/morality (a derivative of Article 5 and 6 Larvul Ngabal), and third, 7 The customary law of Larvul Ngabal is a dual law. The customary law of Larvul was stipulated by Lor Siuw (Guild of Nine), Ngabal was initiated by Lor Lim (Guild Five), besides that there was a "non-aligned" movement driven by an intermediate or neutral partnership (Lor Lobay). Literally Larvul Ngabal consists of four words, namely Lar (blood), Vul (red) = blood red, while Nga (spear), Bal (Bali) = spear (from) Bali. The meaning of these four words means that Larvul Ngabal means the red-blooded spear from Bali. J.P. Rahail, Larvul Ngabal (Jakarta: Yayasan Sejati, 1993). the law hawear balwarin regulating social rights and justice (a derivative of Article 7 Larvul Ngabal). Violation of the customary law of Larvul Ngabal along with Sasa Sor Fit as material criminal law requires a formal criminal law to enforce and defend it.
In the conception of Kei customary formal criminal law, the principle of known ultimum remedium is so that the Kei customary criminal justice system is only used if the settlement of cases at the family level of the parties (victim and perpetrator) does not work. The initial stage always to approach and resolve Sdov (negotiation) in a friendly manner by emphasizing the principle of deliberation to reach a consensus. According to Rahail, every architecture of building houses for the Kei people always uses certain spaces as a medium of negotiation. 9 So in fact, from a broader perspective, the settlement stage at the family level is part of the Kei customary criminal justice system. If in the family stage it cannot be resolved then it is submitted to the Kei customary justice system (customary institution), starting at the hamlet level, The village to the last level of Ratshap.
In the research, it was also found that the Regional Regulation of Southeast Maluku Regency No. 3 of 2009 concerning Ratshap and Ohoi Article 62, is affirmed as follows: (1) Settlement of disputes in the field of customary law, including petuanan 10 disputes, can be handled and decided by the Saniri Ohoi/Ohoi Rat, Ratshap, or customary council in stages specifically formed for that following the authority according to local customary law, as long as it does not conflict with the provisions of the applicable laws. 11 (2) Local governments and/or other law enforcement officers can act as mediators in dispute resolution following the provisions in paragraph (1); (3) In the event of a dispute in the area of customary law which has a broad impact and can disrupt public order and security, the Regional Government and other law enforcement officials can take steps to resolve it, whether requested or not.
To reconcile community disputes in Ohoi/Ohoi Rat. The settlement of Kei customary crimes is passed in stages/levels, as follows: 12 1. After the existence of a criminal act, first, settlement through direct Sdov (negotiation) between the victim and the perpetrator or those who represent him (kinship settlement), the form of settlement of this model is in the form of the collective agreement. After an agreement is reached and the case is deemed finished, it is usually followed by an apology, a fine and so on; 2. If it cannot be resolved, a settlement will be made through the customary institution to the level Ohoi ( 3. The parties are called and interviewed in an open meeting, usually also attended by Saniri. After being examined by a process of evidence (confronting witnesses or simply by a confession from the perpetrator. Under certain conditions a customary oath is taken) then a decision is taken. Usually accompanied by a simple Minutes signed by the parties; 4. At the (last) stage, the level Ratshap the King functions to make customary decisions that are final and binding in resolving a customary case; 5. Even though it is rarely found, if at the level of settlement by a customary institution there is no result in the resolution of a customary case, then the case can be submitted to the competent judicial body for a decision that is considered fairer. In general, if you have taken the court route and the opinion of the court ruling, this does not reduce the application of Customary sanctions (starting from apologies, being reprimanded, fines (money or goods), (fnevh nuh) village cleaning ceremonies, Sasi (prohibition of starting conflicts and so on. ). imposed on the perpetrator. Even customary decisions can be used as consideration for law enforcers.
This gradual solution is also differentiated based on the severity of the action. For "serious" actions, such as customary conflicts that are criminal (murder), the settlement can be stepped directly to the level Ratshap handled by Rat.
The resolution of Kei customary crimes always emphasizes the honesty of the parties involved. Always accompanied by advice or advice traditionally by Rat. Even though he was proven guilty, Rat always considered the circumstances of the perpetrator which also affected the severity of the sanctions he was given.
Lem yau warsa, yau waro (decisions and sanctions only based on truth and justice), this shows how a Rat must be wise in examining and adjudicating a case based on the value of truth and justice. Thus, the final and binding decision of the Rat closes the room for resolution through the Criminal Justice System.
Starting from the description above, in general, the settlement of a criminal offence through the formal Kei customary criminal law is pursued in stages by prioritizing negotiation/deliberation (mediation) which is a reflection of the original values of the Indonesian people. The victim and the perpetrator in a case are brought together, dialogues are held by prioritizing the philosophy of brotherhood and a solution that benefits all parties (win-win solutions).

The Role of Kei Traditional Institutions in Criminal Case Resolution
In the international world, informal case resolution processes are known as circle sentencing, alternative dispute resolution/ADR, and restorative justice. In Indonesia, it is known as penal mediation, customary peace or other terms which are essentially a complete and comprehensive peace effort. 13 For the community, mediation is not something new. The indeterminacy of mediation is evidenced by deliberation. Presented by Marc Levin, an approach that was declared obsolete, ancient and traditional is said to be a progressive approach. 14 Indonesian culture that is full of compromise and cooperation appears everywhere in various layers of society. It needs to be realized that culturally, Indonesian society highly upholds the consensus approach. According to Muladi, dialogue between disputing parties to solve their problems is a very positive step. With this concept, the term ADR appears which in certain cases is more fulfilling the demands of justice and efficiency. ADR is part of the concept of restorative justice 15 which places the judiciary in the position of mediator. 16 Mediators in the context of national law are generally law graduates who have received certain training/education, while in customary law the mediator positions are filled by customary institutions such as kings, customary elders and community leaders. Von Savigny revealed that although law belongs to some legal scholars, some parts are still people's law. 17 This law is called a living law (adat law) which is controlled by customary institutions to be rebuilt from this chaotic situation.
For example, tracing the local history of the Kei people is never devoid of conflict, even in the past there were wars between indigenous territories. However, the long history of conflict or war can ultimately be resolved by prioritizing deliberation, peace and mutual forgiveness and not hastily handing it over to the state court. 18 In addition to uniting fellow Kei people, local wisdom is intended to heal or restore the balance caused by criminal acts. The presence of a state court, represented by national law, which is far from the spirit and soul of the Kei people, is felt to be a source of "disease" that keeps peace away.
This condition is exacerbated by the appearance of components in the SPP such as the police, prosecutors, judges and social institutions as a scourge both frightening and foreign to them. 19 According to Muladi, SPP is a network judicial that uses material criminal law, formal criminal law and criminal law enforcement. However, this institution must be seen in a social context. The nature that is too formal if it is based only for the sake of legal certainty will bring disaster in the form of injustice. 20 It means that here an SPP does not only teach material truths that exist in the text of laws and regulations but also must see the values that exist and are recognized in society. In resolving a customary crime, it is better if the authority of a customary institution to settle a act deemed disturbing the cosmic balance of the community.
Thus, the construction of criminal law is no longer exclusive by giving full authority to the state to determine what actions are prohibited and only law enforcement officials have the right to settle them, but opening themselves up to the process of settling cases outside the court. Mediation, which so far can only be applied in civil cases and is taboo, and even "forbidden", its application in criminal law is functional, one of which is the resolution of the SARA Kei conflict (criminal cases) driven by the Kei customary institution. According to Eko Soponyono, in penal mediation/restorative justice, crime is not seen as a violation of the interests of the state but is considered a violation of one's rights by others. In this case, restitution and restoration are means of improvement for the parties and reconciliation and restoration are the main objectives. Victims and perpetrators of criminal acts are recognized, both in problems and in resolution. 21 In the Kei Islands, every customary criminal act for violation of adat, the role of customary leaders/stakeholders is responsible for the settlement process which according to Friedman is a legal structure/institution. According to VA Rahail, expressing the following: 22 The king must be attached and cannot be separated from his people. Uud entauk na atvunad (head resting on shoulders). 23 In every human "head" there is a brain, eyes, ears, nose and mouth which carry out their respective functions. The heart and the heart are in the human body. This means that a leader (head) in the Kei indigenous community in carrying out his function must hear, see, protect and understand the conscience of his people, speak according to the will of the people because the sound that comes out when speaking is driven by breath from the chest or stomach.
All of this is difficult for people who do not understand Kei customary law to do.
Further Refra emphasized that the duties of a customary leader are: 24 1. Protect and maintain customary law; 2. Disseminate and defend customary law; 3. Describe the law of Larvul Ngabal; 4. Trial violating the law Larvul Ngabal.
These tasks are still being maintained and implemented. In the life of the cultural values of the Kei people, they have also seen hierarchically obedience, submission and surrender to the "head", namely Duad, Uun Yanan, and Daud Kabav (God, Rat, Orang Kai, Soa and parents). 25 With this "head" they put hope and confidence in resolving every conflict that twists them.
The traditional leaders have a customary title called Dir U Ham Wang, this title has a meaning that is understood by Dir U standing/trusted while Ham is understood in dividing/assigning/as a fair judge, while Wang is understood as a part/right. Thus, these leaders have attached themselves to exemplary values such as trustworthy leadership, trust, honest and fair personalities, honour and exemplary values. Therefore, the community in solving problems puts forward the principle of deliberation and consensus because it is recommended in the customary law of Larvul Ngabal which they believe in rather than the applicable formal law. 26 The principle of a customary institution as a conciliatory judge ( Customary institutions in their role as mediators must have certain principles/prerequisites, including: 29 1. Tablo uban ruran (must be honest). The mediators in conflict resolution are those who are well known to be able to behave, think, and act honestly and honestly, have no interest in anything but a sacred intention to reconcile the two parties to the conflict. The assessment is based on a track record.
Mediators are generally customary stakeholders. For the Kei people, customary holders are often called 'taha wear yauf' (fire and water holders). That is, they are the ones who are given the authority to determine punishment or declare war (fire), but at the same time also abolish punishment, or give forgiveness, and seek peace (water, to extinguish the fire); 2. Tablo Duad nit (to be honest with God and ancestors). Another prerequisite is, to be honest with "God who gave life and life to humans", and to "the ancestors who gave birth to and left everything to live and protect our lives as his descendants".
It can be argued that these two things are a social obligation as well as a moral responsibility. With the capital of reliable customary instruments, the urge to resolve criminal acts (conflicts) through an informal approach/customary institutions with the hope and belief that cases can be resolved according to custom.
The Kei people prefer to settle cases by bringing them to existing customary institutions to be resolved peacefully. According to Rato, justice seekers feel safer and more comfortable resolving their conflicts to people they know, trust, are familiar with and can provide a sense of security, calm, serenity and peace. Sociologically, these 27 Ibid. 28  people are called "insiders" such as tribal chiefs, traditional leaders, religious leaders or parents. 30 The presence of this "insider" is very much needed by the Kei community in managing conflicts (criminal and civil cases).
The settlement of cases in the Kei islands emphasizes local wisdom, talks and proverbs recorded in the mechanism Sdov or negotiation/deliberation (which are the original values of the Indonesian people) and peaceful methods. Sdov means gathered to sit down to confer/deliberate (dok Tasdov). Sdov (negotiation) is carried out by the parties in their respective communities/groups, the results of these negotiations are submitted to traditional institutions as Vhis Bad (mediator) who then hold deliberations by inviting or visiting the parties in the community to end the case/dispute. The parties brought together, then held dialogues based on the philosophy of "Ain ni ain" (we are one), and "Manut ain mehe ni tilur, fuut ain mehe ni ngifun" (all Kei people come from one lineage), 31 accompanied by the spirit of fangnanan (affection), this feeling of solidarity radiates an atmosphere of life that is harmonious, harmonious and serene with the "Kei way and language" approach. One thing that appears to be included in the resolution of the SARA Kei conflict is the mechanism Sdov (negotiation/deliberation/mediation).

CONCLUSION
In the Kei customary community, which is still present and valid, violations of the law of Larvul Ngabal along with the feeling of sorrow as material criminal law, efforts are needed to enforce and defend it through the formal Kei customary criminal law. The conception of Kei customary formal criminal law is known as the principle of ultimum remedium so that the customary criminal justice system (customary institution) of Kei is only used in stages/levels if the settlement of criminal cases at the family level of the parties (victim and perpetrator) does not work. Thus giving the role of the Kei traditional institution in solving criminal cases, the community believes more that the case is resolved by "insiders" (customary institutions) through deliberation (dok Tasdov) using the approach of local cultural values (local wisdom) as reflected in the philosophy. Ain ni Ain, Manut ain mehe ni tilur, fuut ain mehe ni ngifun and the spirit of fangnanan to meet the cosmic balance in the form of social justice.