Women in Adat Law

2. Women in Adat Law

1) In everyday life of citizens, there are three legal guidelines: religious law, customary law, and state law. As a country, the diversity in laws really exists, whether in ethnic, religion and other areas. Understanding the mix between adat and religion is widely abused in punishment which actually deviates from its true nature. Komnas Perempuan found many Perda ( Peraturan Daerah; provincial legislations) discriminatory in the name of religion, particularly to women. In Aceh, the adat law is influenced by Islamic religion, while in Bali it is heavily influenced by Hinduism. There are people who in them religious influence is not that much, as in Sundanese people whose beliefs are mystic or esoteric, such as Sunda Wiwitan and others.

2) According to a study by Komnas Perempuan, violence based on religion started from birth to death. When a girl was born, she would face female circumcision, is this of violence or not? Then she must marry someone from certain group and be banned if she marry someone from outside the group. A woman has to give birth to a baby, but, if she doesn’t give birth to a boy, then she should marry another man to have a baby boy.

3) Other examples are the paradigm of the public related to dowry or mahr as values, or assumption that women are bought with the mahr. Women are treated like commodities, anything may be done to her. In Papua, if the child doesn’t go to school, then the husband may hit his wife. In certain cases, if the husband wants to marry again, then the one who should provide the dowry is his first wife. Even when death comes, funeral of the husband in Papua require the wife to cut her fingers.

4) If we look this sequel from life to death, many cases of violence happens to women. Is there a judgment against perpetrators? Culturally there is no judgment because it is part of life or culture that surrounds them. The study has been done in six areas, in West Sumatra, Yogyakarta, Pontianak, Bali, Flores, Mataram and Ambon. In Flores, for example, when there is a rape, if there is punishment then it would 4) If we look this sequel from life to death, many cases of violence happens to women. Is there a judgment against perpetrators? Culturally there is no judgment because it is part of life or culture that surrounds them. The study has been done in six areas, in West Sumatra, Yogyakarta, Pontianak, Bali, Flores, Mataram and Ambon. In Flores, for example, when there is a rape, if there is punishment then it would

5) Another example is in Riau, when a woman is raped, then the offender must pay the customary money; when the money is paid, the case is closed. This also happened in Palembang, the customary money is paid by giving certain cattle, either to women or society. In certain communities, it is not paid to women but to the community. The money is to hold the ceremony, so that the victim doesn’t get anything; in certain areas, a woman is even considered a disgrace. In Aceh, women with tight dress is put in jail, it only applies to women. Punishment which we see in these contexts doesn’t provide justice to women.

6) There are some major problems in the punishment of Adat and women, such as the position of women and the context of violence based on culture: How the injustice of adat law in the context of justice for women? Why women choose adat settlement rather than national law? Some important points are recommended in this study.

Recommendations:

1. Formal and informal education with human rights perspective,

genderequality and justice on victims.

2. Redefinition of Adat law and its institutionalization

3. Constructing and revitalizing Adat courts and Adat Procedural Law with the perspective of the victim and community-based case settlement.

4. Documentation of adat or culture-based violence

5. A recovery system for victims in the penitentiary system of adat and community-based recovery.

6. Advocacy oflegislation related to adat law communities, among others, Bill on Recognition and Protection of the Rights of Adat Peoples ( RUU Pengakuan dan Perlindungan Hak-Hak Masyarakat Adat, abbreviated

PPHMA), the revision of Law No. 1 Year 1974 on Marriage, Criminal Act and Bill on Culture.

3. Women in the Relation between Religion and the State Relation between the state and religion continues to be the topic of discussion everywhere. Some observers understand religion and the state as in Integrality theory that religion and state are united. There is also a view that religion is needed to give spirit to the state, and religion becomes a protector for the state. This theory is commonly called the theory of mutualistic. There is also a theory of separation between religion and the state, in terms of religious laws, which is commonly called secular theory. In practice, these three theories are very well known in Indonesia.

1) There are many reasons why we need to discuss the issue of the relationship between religion and the state because there are many issues that become a point of debate between religion and state. Sometimes the state wins and in other times religion is victorious. Sometimes religion lose while in other times the state would lose. Very often both are losing altogether. For example, in the case of early marriage, religion legitimizes it even from birth, but the state forbids it. In such cases, the fight of legitimacy occurs, the position of religion is in endorsing the early marriage while the state is in contending position.

2. In other cases, such as the matter of the death penalty, which is now being voiced by human rights activists, Komnas Perempuan and other activists request it should be abolished. In the view of the religious organizations, such as NU and Muhammadiyah, death penalty is the price of life, not the price of death. Not to mention the position of religion and state that continues to be debated in the case of polygamy; the state and religion seem to be a liaison to justification. In this perspective, instead of protecting women, it is much more like ignoring female justice.

3. The debate over religion and state positions until now is getting heated. Indonesian society is so plural in nature that the state should 3. The debate over religion and state positions until now is getting heated. Indonesian society is so plural in nature that the state should

4. In terms of the judgment, the state must not be partial to class, race, ethnicity or religion, because it is clearly contrary to the constitutional principle of citizens. The state is obliged to provide oversight to the region in the mechanism of local autonomy to fulfil the constitutional rights. The central government should firmly remove all discriminative policies. It must anticipate and control the local government that produces policies that are discriminatory and not in line with the constitution and the human rights.

Recommendations:

1. The 1945 Constitution and Pancasila are the foundation of nationhood and statehood.

2. The state’s function is to serve, protect and respect all citizens of Indonesia.

3. The state should not intervene the rights of personal (individual morality, such as wearing certain clothes and others).

4. Lex specialis must not be in conflict with the law and constitution above it.

5. The state must not create any laws or policies that regulate a single religious group, a certain religious group that discriminates other faith 5. The state must not create any laws or policies that regulate a single religious group, a certain religious group that discriminates other faith

6. The state cannot regulate public spaces that may reduce the enjoyment of the rights of the citizens, such as the right to worship, belief, civil and political rights and economic, social and other cultural activities.

7. The state is obliged to stop the inhuman punishment which degrades human dignity and to promote public education and create favorable conditions that allow citizens to avoid any violation of laws and regulations.

8. The state should anticipate and control the local government that produces policies that are discriminatory and not in line with the constitution and against basic human rights.