Hak Waris in Adat Bali Communities.

TITLE:Hak Waris in traditional Balinese communities

AUTHORS:

IGAA Dike Widhiyaastuti, SH,MH Hanna Christine Ndun: UNUD

Sarah Suttor: CDU

ABSTRACT

It cannot be denied that culture can play a significant role in discrimination. Traditional Balinese communities legitimise the position of men and women in their social and cultural interactions through the enforcement of Adat law. This research aims to discuss specifically Adat law of Hak Waris in traditional Balinese communities to analyse the contemporary perceptions of this law. Through a literature review and a relevant field pilot research, we will analyse if perception of the law of Hak Waris is perceived to discriminate genders in traditional Balinese communities.

PURPOSE

To determine attitudes towards the customary law of Hak Waris in traditional Balinese communities, in order to provide an insight to the perceptions of gender equality. DEFINTION OF TERMS

Legal System: Refers to a process or procedure used for the purpose of Interpretingand enforcing law. It elaborates the responsibilities and rights in a multitude of ways. Today, there are three major legal systems in the world, civil law, commonlaw and religious or customary law.1

1

Adat Law: This term originated from the Arabian language that means “customary”.It is predominantly unwritten law based on customary traditions. 2Adathas rules which have historical significance and thus are to be followed. It can be broken down into three elements:

1. Adat as customs or behaviours which are customary 2. Adat as tax/excise pursuant to applicable rules

3. Adat as an entity of culture which consists or values, norms, laws and rules that may unite with other elements to form a system

Balinese Traditional Law:This is Adat law applied only in Balinese communities who embrace Hindu as their religion.

Hak Waris: Hak Waris is best translated as inheritance rights. That which is passed onto a son or daughter, not upon death, rather upon marriage.

Traditional Community: Is a form of togetherness within a community social system. It is a personal and intimate form of community where members share thoughts, perceptions and territory. Ter Haar said that traditional community is a well ordered group with their own materials and immaterials good and tools.3Refers to a unity between traditional people who have engaged with local territory, genealogy.

Rightful heritage:This term is used to address one who has a just or legally established claim over heritage. 4

Hindu:Is a religion that originated in India. Bali Island, Hindu is the most common religion embraced by the Balinese people. It is not a culture, but rather a faith to God. The Hindu population on Bali island is approximately 83, 46% around3,247,283 people. 5

INTRODUCTION

Adat is the reflection of a nation, which is the accomplishment from the spirit of the nation that has been followed for centuries. Indonesia has its own Adat law , as well as its

2

Kamus Besar Bahasa Indonesia (KBBI). 3

Soerjono Soekanto, 2011, Hukum Adat Indonesia, PT. RajaGrafindo Persada, Jakarta, hal. 9. 4

Meriam-Webster Dictionary<http://beta.merriam-webster.com/shop/products/books/dictionary-of-law.htm>.

5

traditional communities.6Therefore, this research is intended to gain a greater understanding of the effect of Adat law in Balinese traditional communities. We initially intended to explore the discrimination of women in traditional Balinese communities, with a specific focus on Hak Waris, otherwise described as inheritance customs that apply in traditional customary law. In Australia ‘inheritance’ derives immediate connotations of a possessions being transferred upon the death of an individual. However, in Balinese Adat law, commonly referred to as customary law, Hak Waris is applied upon marriage.

Our research surprised us from the very start, and changed direction very abruptly after a meeting with Professor Windia, University of Udayana’s own expert in Adat Law. This wasto discuss discrimination as a result of the application of Hak Waris in Balinese

communities. However, he informed us that one must not focus soley on women, but realise that this customary law actually discriminates men also. The issue appears to have arisen given that it’s more common application to women, hence why the perception of women’s’ discrimination can be easily mistaken, as was in our case. 7

This new information narrowed our focus immediately as we were now researching potential discrimination generated by the application of the Adat law of Hak Waris in Balinese

traditional communities, irrespective of gender, and re-evaluated our field research questions and scope to focus on misconceptions and attitudes.

While the definition of Adat law in theory may seem quite structured, the application of its customs within communities is very organic. Academics have accepted the term ‘Adat’ to refer to the collective action of implementing customary law.

RESEARCH BACKGROUND

In relation to Hak Waris in traditional communities, the perception can so often be that it is only women who are subjected to this law, and subsequently the discriminated gender when it comes to heritage rights. In actual fact this is incorrect.Despite this common perception, our research into the background of this topic defies this belief, as Hak Waris is applied to men equally in Adat law also. To understand and appreciate the complexities of Hak Waris, we

6

Umar Said Sugiarto,S.H.,M.S.,2014,Pengantar Hukum Indonesia,Sinar Grafika,Jakarta, hal 112. 7

must first understand Adat law and how it applies in traditional communities. Hak Waris in Balinese Adat law falls under four elements.

The four elements are:

1. Pewaris (The one who inherit the heritage) 2. Warisan (The heritage)

3. Waris (The next generation)

4. Ahli Waris (The next generation who has the rightful heritage)

Only elements 1, 2, and 4 are applicable in Indonesian civil law.According to the Civil Code Article 833.

“Para ahli waris, dengan sendirinya karena hukum, mendapat hak miik atas semua barang, semua hak dan semua piutang orang yang meninggal.

Bila ada perselisihan tentang siapa yang berhak menjadi ahli waris, dan dengan demikian berhak memperoleh hak milik seperti tersebut di atas, maka Hakim dapat memerintahkan agar semua harta peninggalan itu ditaruh lebih dahulu dalam penyimpanan Pengadilan. Negara harus berusaha agar dirinya ditempatkan pada kedudukan besit oleh Hakim, dan berkewajiban untuk memerintahkan penyegelan harta peninggalan itu, dan memerintahkan pembuatan perincian harta itu, dalam bentuk yang ditetapkan untuk penerimaan warisan dengan hak istimewa akan pemerincian harta, dengan ancaman untuk mengganti biaya, kerugian dan bunga. “8

“ The heirs is by law assume possession of the properties, rights and lawsuits of the deceased. In the event of a dispute over who shall be heir, and who shall be authorized to hold title to the property, the judge may order that the properties shall be held in the court's safekeeping. The judge isorder that the Stateishold the property, andshall beobligated toseal the estate, and have an estate descriptiondrafted, in the form of an acceptance ofinheritances stipulated pursuant to theprivilege of estate description; failure to do sois render the State liable for compensation ofcosts, damages and interest. “ 9

8

Kitab Undang-Undang Hukum Perdata. 9

The difference between Adat Law and Civil Law is the Waris, which means the ‘next generation’ Ahli Waris is the Waris but refers to the generation that has a rightful heritage, because not every person has this right. The rule as applied in Adat law is that the system in the family is patrilineal (patriarchy), traced through their fathers (purusa), except for Tenganan Pegringsingan Village that used the parental system.One of the important aspects in relation to marriage in Balinese traditional communities is the matter of continuing the heritage of the parent to their heirs. It can be misleading as to read the rules of Hindu interpretedliterally appear to favour the male gender given terminology. When in actual fact, this law applies to both genders, as if the son chooses to leave the family to marry the same law will apply, it is just more common for women to leave. According to the specific Hindu law in Manawa Dharmasastra IX:106 (In Puja and Tjok. Rai Sudharta):

“ Segera setelah lahir anak yang pertama, orang mulai dipanggil ayah dari seorang putra dan dilunaskan dari hutangnya kepada arwah orang tuanya yang telah meninggal oleh karena itu anak laki-laki itu layak menerima semua harta itu. “ 10

This means that as the first born islaboured, one will be called as father by the son, then the parents will no longer be bound with debt and sins. The Hindu belief is the son will release the parents from the debts and sins rather than the daughter.

Balinese people take their lineage from the man, otherwise known as a patriarchal system. Due to Balinese customs, married women do not have any rights to the family inheritance, unlike unmarried women who retain full rights. However, if the woman becomes the “sentana rajeg”, this means she will fulfil the mans obligations and in this instance a woman assumes full inheritance rights. This kind of marriage is called as “nyeburin”. 11If we look at this application of customary law, where both genders have the opportunity to assume full inheritance, it is difficult to argue that this Hak Waris discriminates women only.

Rightful heritage is afforded to those who are firstly Hindu, but secondly hold the responsibility of the family and/or community. There are three elements of responsibilities that must be met to 100% in order to attain 100% of heritage rights under Hak Waris. They will be responsible to:

10

Prof. Dr. I Nyoman Budiana, S,H.,M.SI., 2014, Stridhana dan Perempuan dalam masyarakat adat Bali, Undiknas Denpasar, Bali, hal 2.

11 Ibid.

1. Parahyangan (God ) 2. Pawongan (Human) 3. Palemahan(Nature)12

To fulfil only 50% of the responsibilities will see a person only get 50% of the heritage which is why when women leave their home to marry; they are unable to fulfil these obligations, sacrificing their rights, unless as stated earlier she is the “sentana rajeg”. The exception is if the family that has no son (all of the children are daughters). Most likely, one of the daughters (usually the eldest), will be established as “sentana rajeg”(the position) and will be the same as son or as thepurusa. 13

Therefore, the connection between the heritage, marriage and responsibilities is when a woman marries, she typically leaves her house and family to move to her husband, therefore she is physically unable to complete 100% of the three elements of responsibilities in the house, and subsequently sacrifices her right to the heritage. If she is the only daughter however, her husband may move to her, enabling her to stay at home and meet 100% of her responsibilities and therefore retaining her entitlement to the heritage. This is the likely reason that the misconception of women being discriminated against has emerged, when in actual fact, the rule also applies to men, it is just more common for women to leave.

METHODOLOGY

We conducted an initial literature review of the Adat law of Hak Waris and this involved an interview with Professor Windia, the expert on Adat law at the University of Udayana. During this meeting our focus shifted and we altered our field research to enable us to achieve it on the university campus by interviewing a pilot size sample of local students to analyse current perceptions of Hak Waris in traditional Balinese communities.

We expected that our field research results would discover similar attitudes that we originally had adopted, the perception of gender inequality. From our field research findings and literature, we were able to suggest ways to alter the perception of the customary law, that is not factually correct in practice.

12

Wayan P. Windia, 2013, Hukum Adat Bali Dalam Tanyajawab , Udayana University Press, Bali, hal 103 . 13

LEGAL ISSUES

1: Discrimination of community members if they marry and leave their home to be with partner is assumed to affect women only.

2: The Adat law of Hak Waris is applied in varying degrees within Balinese traditional communities as it is customary and not civil law.

FIELD RESEARCH

We faced a number of limitations that prevented us from getting to speak to members of traditional Balinese communities regarding Hak Waris. So instead we decided to interview a pilot sample size of university students to analyse their perception of Hak Waris and discuss what reforms they may foresee, if any, for the future of traditional Balinese communities. See Annex A for questions.

There were some clear trends that emerged through the analysis of our interviews.

ANALYSIS

We devised a series of 5 questions to ask a sample of 10 people that constituted of 50% men and 50% women to enable us to potentially examine gender perceptions as a point of

difference. All subjects were university students under the age of 25 and all were Hindu. We asked a series of 5 questions and below is an analysis of the responses to these questions. All students interviewed were aware of the customary law of Hak Waris in Balinese traditional communities, although many elaborated with varied (yet similar) interpretations. These descriptions, upon further investigation, appeared to be influenced by the students personal background and/or exposure either directly or indirectly with these laws. By all of the students acknowledging they were aware of this law, we were able to ask follow up questions to be asked of the entire sample.

8 students indicated they believe Hak Waris discriminates only women and the remaining 2 students indicated there is no discrimination at play. This indicates that the perception of women being discriminated against is a popular belief among young Hindu people of both genders. It is also the initial misconception that we as researchers had adopted to initiate this study. The 2 students that indicated no discrimination was at play was one female and one male respectively.

Every student interviewed had an idea or interpretation as to why and how this law exists in Balinese communities. Although slight variations in responses, all students explained this law as a way to maintain and protect heritage, with 6 students explaining their more detailed knowledge of the patriarchal structure that exists.

All students believed the intention of this law in communitieswas to protect and carry onheritage; however 6 students qualified this statement with changes that could be implemented around the law to make it “more progressive”. 2 students were able to clearly articulate the Decree of the Supreme Pesamuhan III/2010.14

In the Decree of the Supreme Pesamuhan III/2010 it has been decided that the position of husband-wife and child to the inheritance and wealth will including the daughter’s Hak Waris (either biological or adopted child).

Briefly, Hak Waris of the daughter according to the Decree of the Supreme Pesamuhan III/2010 is being explained by the Adat law expert from Udayana University Faculty of Law, Prof. Dr. Wayan P. Windia, S.H., M.Si.15

2 students highlighted that greater flexibility in interpretation of the law may make it more accepted by younger generations.

14

After 2010 Balinese women will have the right for the heritage as the Keputusan Majelis Utama Desa Pakraman (Decree of Bali Pakraman Village Primary Assembly)No. 01/KEP/PSM-3/MDP Bali/X/2010, on October 15th, 2010. In this Decree, Balinese women will receive half of the purusa Hak Waris after given 1/3 of it for the inheritance and the conservation interest. If the only the Balinese women move to another religion (rather than Hindu), they have no right for the Hak Waris . If the parent is willing to give the goodwill or provision.

15

http://www.hukumonline.com/klinik/detail/lt4f6ac3987ac0e/hak-waris-perempuan-menurut-hukum-adat-bali-.

RECOMMENDATIONS

Our recommendations have been derived from a combination of our literature review and our field research responses in which students provided suggestions as to how they foresee the law potentially being reformed for the benefit of Balinese communities and its affected members.

1: The law needs to remain progressive with society. According to the verdict of the Supreme Court No. 200 K/Sip/1958 on December 3rd,1958, who explained:

“According to the Adat Bali law the one who has the right to inherit only the men descent and from the men’s family side and adopted son; Then Men Sardji (mother) as sister is not the rightful heir and the late Pan Sarning (father).”16

As we see that it has said that the one who has the right for the Hak Waris is the descent of men, the patrilineal. It has been the traditional law since 1958 in Bali.

2: Getting the head of each traditional community to apply the law of Hak Waris in a consistent and standard manner in all communities to avoid variations that may encourage less criticism of gender discrimination.

CONCLUSION

The perception is that the customary law of Hak Waris in Balinese traditional communities discriminates women, when upon further investigation this law actually discriminates both genders. As we have only conducted a pilot study, we believe there would be enough support in our analysis to support a further, and more complex research project on this topic.

BIBLIOGRAPHY

Bali Province Statistic Institution (2010)

Prof. Dr. I Nyoman Budiana, S,H.,M.SI., 2014, Stridhana dan Perempuan dalam masyarakat adat Bali, Undiknas Denpasar, Bali, hal 2.

<http://www.hukumonline.com/klinik/detail/lt4f6ac3987ac0e/hak-waris-perempuan-menurut-hukum-adat-bali->

Kamus Besar Bahasa Indonesia (KBBI)

<http://www.kuhper.com/Trilingual%20Indonesian%20Civil%20Code.pdf>

Meeting with Prof. Windia , at Bali Santhi, Friday, December 4th,2015 Kitab Undang-Undang Hukum Perdata

Meriam-Webster Dictionary (2015)

Soerjono Soekanto, 2011, Hukum Adat Indonesia, PT. RajaGrafindo Persada, Jakarta, hal. 93 Umar Said Sugiarto,S.H.,M.S.,2014,Pengantar Hukum Indonesia,Sinar Grafika,Jakarta, hal 112.

US Legal, Legal Terms, Definitions and

Dictionary(2015)<http://www.definitions.uslegal.com/l/legal-system/>

Wayan P. Windia, 2013, Hukum Adat Bali Dalam Tanyajawab , Udayana University Press, Bali, hal 103-104

CV’S

IGAA Dike Widhiyaastuti, SH,MH

Hanna Christine Ndun – University of Udayana

Hanna Christine Ndun is currently studying Bachelor of Law through Udayana University in semester 3. She takes the non-regular program due to her job as a kindergarten and

elementary teacher in the morning. She is also part of several organizations in the university and did her role as organizing committee in the programs that is mandatory for the university students in Faculty of Law.

Sarah Suttor – Charles Darwin University

After graduating Secondary School Sarah undertook a Bachelor of Secondary Education at Monash University after which she taught English and Geography at a Melbourne Secondary School for three years. During this time she began to study a Master in Education through Deakin University. Half way through she took a break, travelling around the world for a number of years, before recommencing her Masters through Charles Darwin University, completing this in 2012, in the same week as giving birth to her first daughter. This year shebegan studying a Bachelor of Laws (Graduate entry) once again through Charles Darwin University commencing in Semester 2. She has since given birth to her second daughter and continues to study while raising her two girls. Once she has completed this degree, shehopes to work in the field of wills, estate planning and litigation as she hasa genuine interest in this area of law.

Annex 1

Field Research Questions

Sample size: 10 students (5 male , 5 female), average student age was 21 years old.

1. Do you know what Hak Waris is?

2. Do you feel it discriminates men, women or neither? 3. Do you agree with this Adat law?

4. Do you know why this law exists?

LEGAL ISSUES

1: Discrimination of community members if they marry and leave their home to be with partner is assumed to affect women only.

2: The Adat law of Hak Waris is applied in varying degrees within Balinese traditional communities as it is customary and not civil law.

FIELD RESEARCH

We faced a number of limitations that prevented us from getting to speak to members of traditional Balinese communities regarding Hak Waris. So instead we decided to interview a pilot sample size of university students to analyse their perception of Hak Waris and discuss what reforms they may foresee, if any, for the future of traditional Balinese communities.

See Annex A for questions.

There were some clear trends that emerged through the analysis of our interviews.

ANALYSIS

We devised a series of 5 questions to ask a sample of 10 people that constituted of 50% men and 50% women to enable us to potentially examine gender perceptions as a point of

difference. All subjects were university students under the age of 25 and all were Hindu. We asked a series of 5 questions and below is an analysis of the responses to these questions.

All students interviewed were aware of the customary law of Hak Waris in Balinese traditional communities, although many elaborated with varied (yet similar) interpretations. These descriptions, upon further investigation, appeared to be influenced by the students personal background and/or exposure either directly or indirectly with these laws. By all of the students acknowledging they were aware of this law, we were able to ask follow up questions to be asked of the entire sample.

students indicated there is no discrimination at play. This indicates that the perception of women being discriminated against is a popular belief among young Hindu people of both genders. It is also the initial misconception that we as researchers had adopted to initiate this study. The 2 students that indicated no discrimination was at play was one female and one male respectively.

Every student interviewed had an idea or interpretation as to why and how this law exists in Balinese communities. Although slight variations in responses, all students explained this law as a way to maintain and protect heritage, with 6 students explaining their more detailed knowledge of the patriarchal structure that exists.

All students believed the intention of this law in communitieswas to protect and carry onheritage; however 6 students qualified this statement with changes that could be implemented around the law to make it “more progressive”. 2 students were able to clearly articulate the Decree of the Supreme Pesamuhan III/2010.14

In the Decree of the Supreme Pesamuhan III/2010 it has been decided that the position of husband-wife and child to the inheritance and wealth will including the daughter’s Hak Waris (either biological or adopted child).

Briefly, Hak Waris of the daughter according to the Decree of the Supreme Pesamuhan III/2010 is being explained by the Adat law expert from Udayana University Faculty of Law, Prof. Dr. Wayan P. Windia, S.H., M.Si.15

2 students highlighted that greater flexibility in interpretation of the law may make it more accepted by younger generations.

14

After 2010 Balinese women will have the right for the heritage as the Keputusan Majelis Utama Desa Pakraman (Decree of Bali Pakraman Village Primary Assembly)No. 01/KEP/PSM-3/MDP Bali/X/2010, on October 15th, 2010. In this Decree, Balinese women will receive half of the purusa Hak Waris after given 1/3 of it for the inheritance and the conservation interest. If the only the Balinese women move to another religion (rather than Hindu), they have no right for the Hak Waris . If the parent is willing to give the goodwill or

provision.

15

http://www.hukumonline.com/klinik/detail/lt4f6ac3987ac0e/hak-waris-perempuan-menurut-hukum-adat-bali-.

RECOMMENDATIONS

Our recommendations have been derived from a combination of our literature review and our field research responses in which students provided suggestions as to how they foresee the law potentially being reformed for the benefit of Balinese communities and its affected members.

1: The law needs to remain progressive with society. According to the verdict of the Supreme Court No. 200 K/Sip/1958 on December 3rd,1958, who explained:

“According to the Adat Bali law the one who has the right to inherit only the men descent and from the men’s family side and adopted son; Then Men Sardji (mother) as sister

is not the rightful heir and the late Pan Sarning (father).”16

As we see that it has said that the one who has the right for the Hak Waris is the descent of men, the patrilineal. It has been the traditional law since 1958 in Bali.

2: Getting the head of each traditional community to apply the law of Hak Waris in a consistent and standard manner in all communities to avoid variations that may encourage less criticism of gender discrimination.

CONCLUSION

The perception is that the customary law of Hak Waris in Balinese traditional communities discriminates women, when upon further investigation this law actually discriminates both genders. As we have only conducted a pilot study, we believe there would be enough support in our analysis to support a further, and more complex research project on this topic.

BIBLIOGRAPHY

Bali Province Statistic Institution (2010)

Prof. Dr. I Nyoman Budiana, S,H.,M.SI., 2014, Stridhana dan Perempuan dalam masyarakat adat Bali, Undiknas Denpasar, Bali, hal 2.

<http://www.hukumonline.com/klinik/detail/lt4f6ac3987ac0e/hak-waris-perempuan-menurut-hukum-adat-bali->

Kamus Besar Bahasa Indonesia (KBBI)

<http://www.kuhper.com/Trilingual%20Indonesian%20Civil%20Code.pdf>

Meeting with Prof. Windia , at Bali Santhi, Friday, December 4th,2015 Kitab Undang-Undang Hukum Perdata

Meriam-Webster Dictionary (2015)

Soerjono Soekanto, 2011, Hukum Adat Indonesia, PT. RajaGrafindo Persada, Jakarta, hal. 93

Umar Said Sugiarto,S.H.,M.S.,2014,Pengantar Hukum Indonesia,Sinar Grafika,Jakarta, hal 112.

US Legal, Legal Terms, Definitions and

Dictionary(2015)<http://www.definitions.uslegal.com/l/legal-system/>

Wayan P. Windia, 2013, Hukum Adat Bali Dalam Tanyajawab , Udayana University Press, Bali, hal 103-104

CV’S

IGAA Dike Widhiyaastuti, SH,MH

Hanna Christine Ndun – University of Udayana

Hanna Christine Ndun is currently studying Bachelor of Law through Udayana University in semester 3. She takes the non-regular program due to her job as a kindergarten and

elementary teacher in the morning. She is also part of several organizations in the university and did her role as organizing committee in the programs that is mandatory for the university students in Faculty of Law.

Sarah Suttor – Charles Darwin University

After graduating Secondary School Sarah undertook a Bachelor of Secondary Education at Monash University after which she taught English and Geography at a Melbourne Secondary School for three years. During this time she began to study a Master in Education through Deakin University. Half way through she took a break, travelling around the world for a number of years, before recommencing her Masters through Charles Darwin University, completing this in 2012, in the same week as giving birth to her first daughter. This year shebegan studying a Bachelor of Laws (Graduate entry) once again through Charles Darwin University commencing in Semester 2. She has since given birth to her second daughter and continues to study while raising her two girls. Once she has completed this degree, shehopes to work in the field of wills, estate planning and litigation as she hasa genuine interest in this area of law.

Field Research Questions

Sample size: 10 students (5 male , 5 female), average student age was 21 years old.

1. Do you know what Hak Waris is?

2. Do you feel it discriminates men, women or neither? 3. Do you agree with this Adat law?

4. Do you know why this law exists?