CRIMINAL LAW & CIVIL LAW RELATED TO DAYAK KALAI TRIBE

CUSTOMARY LAW IN KALIMANTAN

By Arya Ferdinan Sultansyah

017201700009

Law 2017

Customary Law and It’s Development

Criminal Law

In ancient times in the territory of the Dayak Kalai tribal customary law Ketapang Regency, West
Kalimantan, if someone has been proven to have committing adultery then both are punished by paying
a fine by paying the price of a jar or tajau. Adultery in West Kalimantan is a type of customary Dayak
case which is called mengampang which means adultery. The adultery also has the value of punishment,
verdicts and several legal rules Dayak Kalai tribe, Ketapang district, West Kalimantan province that is

a. Adultery with one's own family is actually prohibited

Name of violation : Menyumbang (pelanggaran)
Penalty value: empat loso sampai seketi limo loso (Empat buah mangkok sampai satu lusin
atau krat lima buah mangkok)
Penalty details : Delapan buah tajau sampai tiga puluh tajau (Delapan buah guci sampai tiga
puluh guci)

b. Adultery with someone wife

Name of violation: Beduso wan bini urang (Berbuat dosa dengan istri orang)
Penalty value : 4 (empat loso) atau empat buah mangkok
Penalty details : delapan buah tajau (delapan buah guci)

c. Adultery with an abnormal person

Name of violation : Boji dibojian mati dimatian (Dipukul sampai mati dengan sebuah bambu)
Penalty value : seloso sampai duo loso (Tiga buah mangkok sampai dua buah mangkok)
Penalty details : dua buah tajau sampai empat buah tajau belum termasuk jika sumbang
(Dua buah guci sampai empat buah guci belum termasuk jika melanggar)

d. Forced adultery
Name of violation : Pikso peranglah (dipaksa perang)
Penalty value : Seloso sampai duo loso (Tiga buah mangkok sampai dua buah mangkok)
Penalty details : Tiga buah tajau (tiga buah guci)

e. Adultery and produce children

Name of violation : Mengampang (zina)
Penalty value : Tajau tigo dikompoli (Tiga buah guci diisi dengan arak)
 Penalty details : Apai bunting (Sebuah tajau (pihak laki-laki, ditambah upacara kehamilan
dan sebuah guci)

Adultery in the district of Ketapang, West Kalimantan, including types Dayak customary matters
which are also named by mengampang which means adultery. In addition, adultery is trusted can
damage the life order of these tribal and tribal peoples it is believed that it will bring disaster or disaster
to the village the place of residence concerned.

Sanctions for adulterers in the form of material adat reactions, ostracized from indigenous
peoples, ridiculed to the utmost sanctions that is, being driven out of the village. But the verdict of
sanctions against adulterers depends on the case and the culprit's status. If this is done between people
who are married and cause pregnancy, then both will be driven out of the village, including a fine the
amount of which is adjusted with customary law in force in indigenous Dayak communities.

However, according to customary law and morals until now the act is still called adultery. There
is no physical punishment, but rather moral that must be faced by the offender when dealing with
people in around it. Adultery can be criminally punished only if there is one party who felt aggrieved as a
rape victim. If proven both ways parties do it the same as they like it, the lawsuit can also still be filed,
for example, from claiming property rights that move or steal honor.1

Civil Law

At the highest hierarchical level, the legal instrument of the 1945 Constitution Article 18b
paragraph 2 states that: "The state recognizes and respects the customary law community units along
with their traditional rights as long as they are alive and in accordance with the development of society
and the principles of the Unitary State of the Republic of Indonesia, which are regulated in Constitution."
The Maanyan Dayak tribe understands that a marriage or marriage is sublime and sacred, eternal and
eternal, this is the reason why a celebration of marriage must be celebrated as vibrantly as possible and
fulfill all applicable customary provisions. In the Dayak Maanyan community does not recognize the
existence of polygamy in marriage, because they believe that in marriage there is a symbol of balance
from humans in continuing their lives and preserving life on earth. What is unique from the Maakan
Dayak marriage law is, their custom is to divide the type of marriage before the contract becomes 3,
that is:

a. Adu Pamupuh (engagement)

It is a marriage done by the parents of the bride and groom who bless the couple's relationship
witnessed by the mantir and traditional leader, but they are not allowed to gather like a husband and
wife. In modern life, the fighting is known as engagement, but the Dayak Maanyan people consider this
to be a marriage so it should not be canceled.

1
Asribullah,Ziun, Undergraduate Thesis:”Sanksi pidana perzinaan dalam hukum pidana adat Suku Dayak Kalai
Kabupaten Ketapang Provinsi Kalimantan Barat” (Semarang:UIN Walisongo,2009) 35-38.
 b. Adu Ijari

Is a marriage conducted by a couple who ran away and asked to be married to a guardian of one of the
bride colon, but not from the biological parents. Usually the couple of this certificate give evidence in
the form of a pair of rings, necklaces, etc. as proof that they want to get married. Ijari itself occurs
because of incompatibility between the parents of the bride and groom, but the bride and groom insist
on wanting to get married. In the modern context, Ijari is commonly called elopement or in the context
of Islam it is called marrying guardian adhol.

c. Adu Pangu’i

Is a marriage that was agreed by both parties witnessed by the fourth mantir and isa prince and
guardian of the usbah from both parties but carried out at night / evening.

However, there are some legal conflicts that occur in this marriage problem where in the
customary law of Dayak Maanyan, they recognize the existence of elopement or which in the Dayak
Maanyan tribe is called Adu Ijari with positive Indonesian law governed by Law No. 1 of 1974 Article 6
paragraph 4 which states that marriage must obtain permission from both parents. In the Maakan Dayak
customary law, ijari fighting or elopement is carried out by the marriage of the couple by a guardian
from one of the bride's colon, but not from his biological parents. This also contradicts Indonesia's
positive law, because Indonesia's positive law regulates the guardian who has the right to marry, if
parents do not want to marry then it must be submitted to the court and the court will decide on a
marriage permit by establishing a marriage guardian for the couple.

However, the issue of a legal conflict may not have a significant impact on Indonesia's positive
legal order and does not damage the principle of statehood, and a logical solution can be found.
Customary law is a small regional law that is not on the regional scale of a country, where each human
has a different thought in dealing with a particular problem. It is true, if customary law has been agreed
upon by each person who is chaired by certain traditional leaders. However, in the implementation of
this marriage, it must be said that marriages recognized by the state are registered marriages, in other
words like it or not the customary couples who wish to be married and recognized by the state must
follow the marriage procedures according to existing positive laws.2

2
Annisa,”Relasi Hukum Adat Dayak Manyaan dengan Hukum Positif Indonesia tentang Pernikahan”
http://syariah.uin-malang.ac.id/index.php/komunitas/blog-fakultas/entry/relasi-hukum-adat-dayak-maanyan-
dengan-hukum-positif-indonesia-tentang-pernikahan, accessed on October 8 2019.