Prajuru Desa’s Role in Mediating Inheritance Right Disputes for Men “Nyeburin” after Divorce in Tabanan Regency
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Prajuru Desa’s Role in Mediating Inheritance Right Disputes for Men “Nyeburin” after Divorce in Tabanan Regency
Putu Sekarwangi Saraswati1, Ida Bagus Gede Subawa2, Kt. Sukawati Lanang P. Perbawa3
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1 Fakultas Hukum Universitas Mahasaraswati Denpasar, E-mail : [email protected]
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2 Fakultas Hukum Universitas Mahasaraswati Denpasar, E-mail: [email protected]
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3 Fakultas Hukum Universitas Mahasaraswati Denpasar, E-mail: [email protected]
Article Info
Received: 08th May 2022
Accepted: 16th July 2022
Published: 20th July 2022
Keywords:
Traditional official, Nyeburin
Marriage, Divorce
Corresponding Author:
Putu Sekarwangi Saraswati, E-mail:
DOI:
10.24843/JMHU.2022.v11.i02.
p06.
Abstract
The purpose of this study was to analyze the role of traditional village prajuru in mediating inheritance rights disputes for men with “nyeburin” status after divorce in Tabanan Regency. The research method used is an empirical research method. Data collection techniques using document study techniques and interview techniques. The results indicated that the role of the traditional village prajuru in mediating the inheritance rights dispute of men with “nyeburin” status after divorce in Tabanan Regency as one of the obligations of the adat prajuru as the party who has legal authority in the Adat Village in resolving customary problems, the initial stage is carried out case analysis which was followed by a joint meeting with the disputing parties, then related to inheritance rights as stated in awig-awig, in fact, was directed to conduct deliberations for consensus in a family manner by upholding the principle of kinship and the principle of parimatma as the main principle of inheritance distribution so as to obtain a fair and equitable agreement does not cause problems between siblings.
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I. Introduction
Termination of marital relations is a relationship that cannot be maintained in its entirety which is called divorce. According to Muhammad Syarufuddin, Sri Turatmiyah, and Annalisa Yahanan divorce in Bahasa is called “cerai”, which means separate, then it gets the prefix “per”, which functions to form an abstract noun, namely “perceraian”, which means the result of the act of divorce. Divorce is the breaking of the inner and outer bond between husband and wife which results in the end of the family relationship (household) between the husband and wife.1
Actually, divorce is not allowed in some religion or divorce without any basis in the scope of legislation. Values in religion address divorce as the worst thing that happens in domestic relations, while within the scope of legislation, divorce is a legal case if it fulfills the elements of divorce itself. Divorce is something that is not liked bearing in mind that the ideal of a marriage is to have an arranged marriage for lifetime, therefore it must be avoided at all costs.2
Divorce in Indonesia shall be carried out based on the provisions of Law No. 1 of 1974 concerning Marriage (hereinafter Marriage Law) and Government Regulation Number 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage (hereinafter PP No. 9 of 1975). In the Marriage Law, the provisions of the article that require divorce to be carried out are emphasized in Article 38 that “Marriage can be terminated due to death, divorce and by a court decision”.
Based on the above mentioned, the important thing that shall be emphasized that in terms of divorce, according to Budi Susilo, is that divorce certainly cannot be carried out for no reason, there must be reasons justified by law. Including all decisions concerning legal consequences after divorce, such as the distribution of joint property and/or child custody as well as status and position.3 Further, the divorce process for traditional village in Bali does not only refer to statutory regulations but also refers to awig-awig/perarem as customary law that applies within the community. The rules referred to in the Decree of Pasamuan Agung III of the Bali Traditional Village Council in 2010 which states that in order for the divorce process to be in line with the marriage process, divorce should be carried out with the following provisions:
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a. If a divorce occurs, it must first be resolved through a customary process, then proceed with submitting to the district court to obtain a decision.
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b. Submit a copy of the divorce decision or divorce certificate to the prejuru banjar or traditional village. At the same time, the prejuru banjar or traditional village advises people who have been divorced to carry out a divorce ceremony in accordance with the teachings of Hinduism.
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c. The Prejuru announces (nyobyahang) in the paruman banjar or traditional village that the husband and wife have legally divorced according to national law and Balinese customary law, as well as explains the swadharma of the ex-husband and wife in the banjar or traditional village after the divorce.
In the Decision of Pasamuan Agung III of the Bali Customary Law Community Council in 2010 it can be understood that the Traditional Village Prajuru has an important role, not only for the implementation of customary government but also for the divorce process for every citizen (krama) who is a legal subject in a traditional village or customary law community. Therefore, this study aims to find hidden local wisdom and customary law in Bali hence, it can be used as an instrument of protection from any process of distribution of inheritance rights for each heir, including men who are buried after divorce in their original homes, as well as to promote socialization of
Balinese customary law and the importance of protecting the process of inheritance in the balance of Balinese life, and can provide solutions for the community hence, they can protect their rights, without having to feel haunted by feelings of fear of the balance of life from the loss of these rights. According to I Ketut Sudantra, et al. whereas, the inheritance of heirs is one of the essential elements for inheritance to occur, therefore in determining the heirs it is closely related to the family system adopted by the people in Indonesia.4
In connection with this, it becomes important to conduct research regarding inheritance rights carried out in Tabanan Regency by covering 3 (three) research samples based on categories, namely traditional villages in 3 (three) selected subdistricts with the assumption that the Traditional Villages in Tabanan District representing Traditional Villages in urban areas, Traditional Villages in Kediri District representing Traditional Villages in transitional areas and Traditional Villages in Tabanan District representing Traditional Villages in rural areas. Therefore, this encourages researchers to conduct research on "The Role of Indigenous Village Prajuru in Mediation of Inheritance Rights Disputes of Men Nyeburin After Divorce in Tabanan Regency" to be interesting and actual to be examined.
Previous study was conducted by Ni Kadek Ratna Dewi, I Made Suwitra, and Diah Gayatri Sudibya in 2021 concerning “Hak Waris Laki-Laki Perkawinan Nyeburin dalam Hukum Adat Bali di Desa Sawan Kabupaten Gianyar”.5 The study was focusing on the model of heritance for boys who marry in Sawan Village, Gianyar Regency and the ownership rights to inheritance given by men in nyeburin marriages in Sawan Traditional Village, Gianyar Regency. In 2021, Made Gede Arthadana also examined “Kedudukan Suami Berdasarkan Aturan Waris Bali Dalam Perkawinan Nyeburin di Banjar Lepang, Kecamatan Banjarangkan, Kabupaten Klungkung”.6 The study examined about the position of husband based on Balinese customary law in inheritance law in nyeburin marriage in Banjar Lepang, Banjarangkan District, Klungkung Regency.
This study is aimed to analyze the position of the Traditional Village Prejuru in mediating inheritance rights disputes for men in “nyeburin” marriage after divorce with the status of mulih teruna in Tabanan Regency. Further, it also examines the responsibilities of traditional village prajuru as an effort to protect the rights of men with “nyeburin” status in their original homes in Tabanan Regency.
This study used empirical legal research methods because the focus of the study departs from the relationship between the roles of traditional village prajuru in mediating inheritance rights disputes for men who are buried after divorce in Tabanan Regency, using the statute approach and analytical conceptual approach. The approach used in this research is a non-doctrinal approach (socio-legal approach) which is used to understand law in the context of society. The data of this research was obtained with interview techniques and with the help of instruments in the form of interview guides or question guidelines to dig up data or complete answers from the informants.7 The analysis of the study using descriptive analysis, namely by describing problems related to nyeburin, awig-awig marriages and other related provisions and the inheritance process is passed on to the heirs.
The constitutional basis of the customary village in managing customs is contained in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (hereinafter referred to as the 1945 Constitution of the Republic of Indonesia) that:
“The State recognises and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law.”
In this provision, it is emphasized that the traditional community (customary village) and their traditional rights shall receive recognition and respect from the State. The recognition is given as long as they are still alive and in accordance with the principles of the State of the Republic of Indonesia.8
Furthermore, in the Constitutional Court Decision, case decision 31/PUU-V/2007 dated June 18, 2008 stated that a customary law community unit can be said to be in de facto existence, both territorial, genealogical, and functional at least whether or not it contains elements of a society whose people have an in-group feeling; the existence of customary government institutions; the existence of assets and/or customary objects; and the existence of customary law norms. Further, specifically in the territorial customary law community unit, there is also an element of the existence of a certain area. The Court is also argued that the customary law community unit and its
traditional rights are considered in accordance with the development of the community if the customary law community unit is:
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1. Its existence has been recognized based on the applicable law as a reflection of the development of values that are considered ideal in today's society, both general and sectoral laws, such as agrarian, forestry, fishery, etc. local regulation;
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2. The substance of these traditional rights is recognized and respected by members of the community unit concerned and the wider community, and does not conflict with human rights.9
The position of customary law in the legal system in Indonesia is based on the original mindset of the Indonesian people hence, it has differences with the legal provisions that apply in Western countries. Therefore, the similarities in customs from countries in the world will not be found in authentic similarities. This diversity is a distinguishing element and/or uniqueness of a nation.10
Furthermore, it is associated with marriages that were terminated through divorce so that legal consequences such as the division of joint property arise. Whereas in Bali, the division applies legal pluralism to groups of indigenous peoples based on the family system adopted in the settlement of inheritance rights disputes by heirs. The application of inheritance customary law will be different between 1 (one) customary law community and others. Including the customary law of inheritance that applies in Bali are the provisions of the customary law of Balinese inheritance.11 According to Nurjaya, “legal pluralism is defined as a situation that explains where 2 (two) or more legal systems interact in 1 (one) social life.”.12
The family system adopted in the settlement of inheritance rights disputes by heirs is important because it contains elements of rights and obligations so that every community can do something or limit not to do something that is outside their authority. The position from the point of view of inheritance rights for men emphasizes that the marital status of the man is as the perdana (female) because the one who is domiciled as purusa is his wife (female). According to Ni Ketut Sari Adnyani, it is emphasized that “at first glance, this form of marriage seems to deviate from the kepurusa system, which emphasizes that offspring are continued by male offspring (purusa). However, if observed carefully, the nyeburin marriage is still consistent with
the kepurusa kinship system because in this marriage the status of the wife is purusa because it has been designated as sentana rajeg in the family.”.13
According to Mr. Anak Agung Anom Suyadnya in his capacity as Jro Bendesa Adat Desa Adat Tabanan the concept of man with “nyeburin” marriage is acknowledge in Tabanan. He stated that as a legal consequence of divorce in a legal marriage, including marriages carried out by means of “nyeburin”, after the husband and wife have completed the divorce process, the ex-wife (sentana rajeg) continues to live in her house with the status of balu luh (widow) along with the rights and obligations including her inheritance and remains domiciled as karma marep or pengerep, while his ex-husband (pradana) returns to his parents’ house and has “mulih truna” status (returns like a virgin or truna).
Futher, it was emphasized by Mr. I Nyoman Budiana Suartika as Jro Bendesa of Desa Adat Marga related to the position of Prejuru Desa Adat in mediating inheritance rights disputes for men with “nyeburin” status after divorce with the status of mulih teruna in Tabanan Regency that technically the terms “customary village” and “pajuru desa adat” are technically legal as the implementing organ, it has the basic rules as set out in the Customary Village Regulation. From the formal formulation of the provisions in the regional regulation that the position of the traditional village which has a unity of tradition and etiquette of social life from generation to generation with the territory, assets and the right to manage their own household as autonomy has been recognized.
In the social etiquette of customary village manners which are regulated through awig-awig hence, this recognition makes the basis for the authority of the traditional village prajuru to manage their own household as agreed as a limitation stipulated in awig-awig however, the authority that is used as a guide for the role of traditional village prajuru is only capable and limited to issues of customary and religious matters. Regarding the role of the Prejuru Desa Adat in mediating inheritance rights disputes for men with “nyeburin” status after divorce with “mulih teruna” status in Tabanan Regency which is only limited to customary violations, one of which is in the position of the parties as customary village manners and rights of property that is collective in nature and contains magical religious elements of Hinduism such as the position of sentana as krama in the dadia (family) and the right to pray, and furthermore, the division, control and ownership as property rights over an object that is material is fully a family agreement.
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3.2. The Responsibilities of Traditional Village Prajuru as an Effort to Protect the Rights of Men with “Nyeburin” Status in their Original Homes in Tabanan Regency
A marriage can only be declared as legitimate, if it is carried out in accordance with the provisions of the Marriage Law. According to the Article 2 paragraph (1) of the Marriage Law, it is stipulated that:
“A marriage is legitimate if it has been performed according to the laws of the respective religious beliefs of the parties concerned.”
According to this provision, it is emphasized that all couples who marry in Indonesia must declare a religion. It means that for Hindu community in Bali who get married then the marriage shall be performed in accordance with the provisions of the legislation.
Furthermore, according to the Article 66 of the Marriage Law, it is stipulated that:
“For marriage and everything related to marriage based on this Law, with the entry into force of this Law the provisions stipulated in the Civil Code (Burgerlijk Wetboek), Indonesian Christian Marriage Ordinance (Huwelijks Ordonantie Christen Indonesiers) S.1933 No. 74), Mixed Marriage Regulations (Regeling op de gemengde Huwelijken S. 1898 No. 158), and other regulations governing marriage to the extent that it has been regulated in this Law, are declared null and void”.
Taking into account the provisions of the article, it can be analyzed in the phrase “… other regulations governing marriage to the extent that it has been regulated in this law”.
Interpreted a contrario to the provisions of the article above hence, the provisions of the Balinese Customary Law that apply in every Traditional Village in Bali in the aspect of customary provisions that have not been regulated by the Marriage Law can be enforced. This is an affirmation of the provisions of Article 2 which, from the point of view of the Receptio in Complex theory, which states that the Balinese Hindu community fully applies the Balinese Customary Law which accepts the provisions of Hinduism because the people in Bali have embraced Hinduism.
In the implementation of a marriage by the Hindu community in Bali, according to I Ketut Sudantra, I Made Walesa Putra, and Yuwono that in awig-awig the Traditional Village is used as a customary village regulation which always includes a condition that every marriage must meet religious provisions (nganutin kecaping agama) and in its legitimation it is always accompanied by a series of religious ceremonies (pabyakala, pasaapan and kapajatiang ring Pura Kahyangan Desa) and witnessed by the traditional head (pajuru adat).
The testimony of the traditional head (pajuru adat) to the implementation of the marriage is the personification of the testimony of the wider community in the real world (alam sakala), while the testimony of spirits from the unseen world (buthakala), ancestral spirits and God is symbolically manifested from the pabyakala ceremony, pasaapan and kapajatiang at Pura Kahyangan Tiga.14
According to the above mentioned, in a Hindu marriage in Bali, there is a role for the traditional pajuru so that the marriage can be declared valid according to the laws and regulations. Associated with the position and role of the traditional pajuru in Bali, this authority is expressly regulated in the provisions of Regional Regulation Number 4 of
2019 concerning Traditional Villages in Bali (hereinafter referred to as the Customary Village Regulation) in the provisions of Chapter VI Article 28. In the provisions of Article 28 namely:
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(1) Traditional Village governance consists of elements of Traditional Village government institutions and decision-making institutions.
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(2) Traditional Village government institutions as referred to in paragraph (1) consist of:
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a. Prajuru Desa Adat;
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b. Sabha Desa Adat;
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c. Kerta Desa Adat; and
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d. Banjar Adat/Banjar Suka-Duka or others.
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(3) The decision-making body as referred to in paragraph (1) consists of:
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a. Paruman Desa Adat; and
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b. Pasangkepan Desa Adat;
In connection with the responsibility of the traditional village prajuru in an effort to protect the rights of men with “nyeburin” status in their home in Tabanan Regency, that the position and role of the traditional Pajuru in Bali as regulated in the provisions of the Customary Village Regulation confirms that the customary institutions in the Traditional Village are led by a leader called Bendesa Adat/Kelian Desa Adat. According to I Wayan Surpha, in every Traditional Village which has a large area and many residents, the village will be divided into several Banjar Adat or Banjar Suka Duka. Banjar adat also has a traditional leader called Kelian Adat and his assistants who are usually called Prajuru just like at the level of the Traditional Village.15
As an alternative for resolving cases for every community in a traditional village, this can certainly affect the process of strengthening the role of traditional village prajuru in resolving disputes based on local wisdom. With sufficient knowledge from each traditional village officer about the conflicts that occur hence, each customary village officer can position himself as a figure as well as make efforts to reduce or seek potential conflicts that can cause divisions.16
Regarding the responsibilities of traditional village officers in an effort to protect the rights of men with “nyeburin” status in their original homes in Tabanan Regency, inheritance disputes are resolved through consensus deliberation at the customary court. Constitutionally, the existence of customary courts in Indonesia has been recognized based on Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia as an inseparable part of state recognition of the existence of customary
law community units. Based on the results of the analysis, it shows that the term customary justice is not known in the awig-awig of traditional villages, which only mentions the term “kertha desa”, which if interpreted as a preface kertha means judge and desa means traditional village.17
Based on the results of an interview with Mr. Ida Bagus Ketut Arsana as Jro Bendesa Kediri Traditional Village stated that within the scope of responsibility it is necessary to be based on an understanding of the authority possessed by traditional institutions as institutions specifically formed to carry out the task of resolving disputes over village community. The implementation of tasks in terms of resolving disputes over village manners is carried out by Traditional Village Prajuru who have been assigned to their respective customary administrative areas against reports from parties who feel aggrieved (Pesadok).
On the basis of the report (Pesadok) of krama desa, then proceed with an investigation and ask the party who feels aggrieved (Pesadok) to make a written report if the things contained in the report on village manners are true and need to be followed up for peace. If the content of the report is a problem that intersects with customary rules in village awig-awig/perarem, the report is followed up to the Bendesa Adat Village to be handled together. As the basis for traditional prajuru in carrying out their duties as an institution that functions to carry out the task of resolving disputes over krama desa, there are basic provisions, namely: “kaping ajeng kebawosin oleh Kelihan Banjar Adat (translation: the first stage is discussed by Kelihan Desa Adat)”, “tan cumpu ring panepas Kelihan Banjar Adat katunasang ring Pangelingsir Banjar Adat” (this means that if the Kelian Banjar Adat cannot solve it, then ask for help from the figures in the Traditional Village)”, “paruman Banjar Adat tan kanutin kengin nunasang ring Kelihan Desa Adat (it means that if the customary village deliberation cannot be resolved, then ask for help from the Kelihan Desa Adat), “kelihan Desa Adat prade sang mawicara sami-sami patunggilan desa (terjemahan: Kelihan Desa Adat yang berwenang mengatasi masalah di Desa Adat), “sahananing Kelian Desa Adat tan prasida muputang katincapang ring Kerta Desa manut wasaning pamutus (if the Kelihan Desa Adat cannot resolved, it will be brought to the Kertha Desa to decide), “saliwiring wicara sane tan mungguh ring awig-awig lan pasuaran perarem I prejuru ngutsahayang muputang malarapan manut sima pingkalih agama” (translation: other matters that have not been regulated in awig-awig and perarem, the customary village prajuru will endeavor to be guided by the customs and stipulations in religion)”.
Furthermore, it is associated with the protection of men’s rights with the status of “nyeburin” in their original families after divorce in the perspective of the responsibility of the Traditional Village Prajuru based on the results of an interview with Mr. I Nyoman Budiana Suartika as Jro Bendesa Adat Marga Village that as a traditional apparatus that oversees the application of customary law in the area of customary law, in its implementation, it is necessary to emphasize that the position of the traditional Prajuru is as a facilitator, facilitating parties in terms of marriage so that it can take
place wisely so that they can form a happy and harmonious family. The idea of dispute settlement though prajuru is to obtain peace and settlement.
In terms of peace, that as the meaning contained in the kertha desa is a village peace judge hence, peace between the disputing parties can be created based on the life etiquette that exists in the provisions of the pamidanda awig-awig customary village as a form of imposing customary sanctions that are different from judges in general courts with punitive authority based on the provisions of the legislation. With regard to the the protection that as in the customary rules that apply in the traditional village of Marga does not explicitly regulate, however, the issue of men's rights with the status of “nyeburin” after divorce in the family of origin is directed to a sense of family responsibility towards their own family.
Regarding the role of the Prejuru Desa Adat in mediating inheritance rights disputes between men with “nyeburin” status after divorce in Tabanan Regency, that because Bali adheres to a Patrilineal family system, inheritance rights are attached to the purusa lineage. With the adoption of the concept of purusa inheritance from the Patrilineal family system, naturally he has the right, but this is implicitly not regulated in the provisions of customary law in customary villages throughout the Marga District, including the perarem which is used to describe the customary provisions more broadly and specifically because the provisions regarding the inheritance process is fully given to the family of each krama to then regulate further regarding the distribution of inheritances owned by each krama. Regarding the responsibilities of the Prejuru Desa Adat in an effort to protect the rights of the man with “nyeburin” status in their original homes for inheritance rights In Tabanan Regency, it is necessary to emphasize that the position of the Prajuru adat is as a facilitator, providing facilities to every krama desa, including in terms of divorce and the impact it has. Furthermore, within the scope of a dispute, the Traditional Village Kerta in carrying out its duties mediating disputes over the inheritance rights of men with “nyeburin” status after divorce, prioritizes peace in accordance with the principle of druwenang sareng-sareng, which is done based on the customs and provisions in religion.
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Law and Regulations
Law Number 1 of 1974 concerning Marriage
Government Regulation Number 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage
the Decree of Pasamuan Agung III of the Bali Traditional Village Council in 2010
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