Name : Ni Luh Silkani

NIM : 2308010642

Indonesia has 3 sub-systems implemented, namely, positive / Nasional Law system,

Islam Law system, Adat Law system. In this journal entitled Inheritance Laws in Indonesia,
the author discusses how are inheritance matter regulated in each of the aforementioned
sub legal system and discusses how is inheritance matter regulated in Minangkabau
ethnic group. The author used a descriptive qualitative approach for this research.

It is mentioned that one of the sources of Indonesian law is Adat law. According to
Mustafa (2003), adatlaw is a type of law that is transmitted from generation to generation
through inheritance from ancestors. History is what binds the Indonesian people together. The
history talks about their roughly three and a half centuries of Dutch colonization. Over 300
ethnic groups were colonized by the Dutch during their extensive colonization of the
archipelago.

As mentioned in the second amendment to the Constitution, indigenous peoples'

existence is acknowledged:

1. Article 18B (2)

Declares unequivocally that the state must grant customary rights and adatlaw public
recognition for as long as they persist.
2. Article 281 (3)
In this article, the state of traditional communities and cultural identity protection are
actually less guaranteed as a result of this.

In Positive/Nasional system Indonesia is a rich natural resources country. Other than

the Dutch, actually there were some other country which colonialized Indonesia. The
discussion of the Indonesian positive law covers the law which implemented by the Dutchand
the Government of Indonesia. The Dutch implemented regulations which were accordance
with their country and other regulations which were established by the General Governor.
( C.S.T. Kansil & S.T., 2011, p. 131). Three groups of people were identified by the Indische
Staatsregeling (IS) Constitution: indigenous people, east foreigners (Chinese and other East
Foreigners), and westerners (Europeans and Japanese).

The Indonesian Constitution was passed by the Panitia Persiapan Kemerdekaan

Indonesia (Indonesian Independence Preparation Committee) on August 18, 1945, a day after
the country's independence. Article II of the Transitional Rules of the Constitution declared: "
“Segala badan negara dan peraturan yang ada masih langsung berlaku, selama belum
diadakan yang baru menurut Undang-Undang Dasar ini.”

The Indische Staatsregeling (IS) Constitution divided the population into westerns, east
foreigners, and indigenous (now Indonesia) groups. The Civil Code (Kitab Undang-Undang
Hukum Perdata), Penal Code (Kitab Undang-Undang Hukum Pidana) , and Commercial Code
(Kitab Undang-Undang Hukum Dagang) were established to govern the population.

The Civil Code regulates inheritance law in Indonesia, particularly for non-Muslims.
Articles 830, 832, 838, and 852 outline the rules for inheritance. Article 830 states that
inheritance only occurs when someone is dead.
Article 832 states that heirs are family through bloodlines and partners who live longer.
If the deceased does not have a living partner, their wealth will belong to the country. Article
838 outlines conditions that make someone cannot become a heir, such as the person who killed
the decedent(s).
Article 852 states that all children can become heirs, regardless of gender, and they
share the same amount of wealth. Article 852 states that children must share the same amount
of wealth for their parents, children, and the entire family. The Code also emphasizes the
importance of preserving the unity of the family, as well as the right to inherit.
From the articles above, it can be concluded that:

1. Inheritance is only valid when someone has passed away;

2. Partners who live longer will becomethe heirs of their late partners;
3. All children can inherit their parents wealth (regardless what their sex are)with
the same portions;
4. Immediate family could become heirs (regardless of what their sex are);
5. There are some conditions which could inclosed partner(s) and/or children and/or
immediate families to inherit the wealth of the late person.

Ismail Saleh, former Justice Minister, emphasized that Islamic law focuses on two aspects:
connecting with God and relating to fellow humans (mu'amalah). The first aspect is detailed,
while the second is not. Leaders or governments can set more specific provisions on human
relations. Ismail Saleh stated that the government, in Indonesia, handles the detailed
arrangements regarding mu'amalahare. However, Muslim leaders need to conduct constructive
dialogues with the government to establish regulations required by Muslims in Indonesia.
In Islamic System Islamic law has been in effect since the beginning of Islamic teachings in
the archipelago (7th century AD). Islamic courts were established during the formation of
Islamic kingdoms, with different names such as pengadilan penghulu (judicial prince), Shari'ah
courts (Sumatra), and judicial qadi (Sultanate of Banjar and Pontianak).

The Surambi Court was established during Sultan Agung of Mataram kingdom's ruling,
but was eliminated by Amangkurat I. After Amangkurat I ended, the court was reactivated and
an Islamic law code, Sirath al-Mustaqim, was published. During the colonial era, Islamic law
was used for Muslims, with the establishment of a religious court in 1882. In 1937, the authority
of religious courts was revoked, and all religious court verdicts had to be confirmed by the
district court.

After Indonesia's independence, various regulations were made under Islamic law and
religious courts, with local governments having discretion to impose Islamic law in accordance
with the needs of the local community. The compilation of Islamic law, established through
the Presidential Instruction in 1991, consists of three books: (1) Book I, (2) Book II, (3) Book
III, and (4) Book IV. The compilation is used by all judges at the Religious Court. The
government also issued further regulations on marriage, economic law, and property
management.

The establishment of national education in Malaysia has been greatly influenced by

Islamic law, which aims to create religious people who worship the One and Only God. In
2003, the National Education System was modified to incorporate religious beliefs as a
fundamental component. Law Number 44 of 1999 for the Special Authonomy of Nangroe Aceh
Darussalam (NAD) and Law Number 18 of 2001 for the Province Special Authonomy of Aceh
Special Area are two examples of local laws based on Islamic law. Kompilasi Hukum Islam
regulates inheritance matters; articles 172 to 175 deal with heirs, while articles 176 to 193 deal
with amounts.

The definition of inheritance law, the function of a deceased, the kind of heirs, the size
of the legacy, the determination of heirs, the circumstances that could prevent someone from
becoming an heir, the categories of heirs, the heirs' responsibilities, and the size of the legacy
are all covered in this article.

According to the article, inheritance law is a set of laws that controls who is eligible to
inherit large amounts of money and how they can be inherited. It also specifies that there is no
restriction on an individual's ability to become an heir, only a lineage to the deceased
or their spouse.

There are two types of legacy: tangible and immaterial. It is decided by the factors that
could prevent someone from being an heir as well as whether or not the heirs are Muslims. The
groupings of heirs are also explained in the article, along with the responsibilities of the heirs,
the amount of the bequest, and the roles of the deceased's family members.

The article further states that only after learning of their allocation can heirs agree on
the number of their shares. This is based on the Qur'an and attempts to guarantee that all
children have the right to inherit as long as they don't do anything that would prevent
them from doing so.

In Adat Law System "Custom" or "tradition," according to Henley and Davidson, refers
to "a peaceful order and consensus" (Henley & Davidson, 2010, p. 1). According to Christian
Snouck Hurgronje's book De Atjehers (Fasseur, 2010, p. 58), the term "Adat Law" (also known
as "hukum adat") was first used by him. The post-independence era, known as the Old Era, saw
discussions regarding the enforcement of democratic principles derived from adat law. Adat
communities, which are considered part of the Indonesian people, were recognized through the
Indigenous Peoples Alliance of the Archipelago (AMAN) formed after the fall of President
Suharto. However, the New Order regime ransacked and oppressed the existence of Adat
communities, leading to the abolishment of customary rights to land and traditional governance
systems.

In each regime, the influence of adat law on the Indonesian law system is different. In
the colonialism era, the Dutch applied criminal and civil law against Indonesian people, but
this did not fully address Adat law. Adat laws were implemented in family law and inheritance
law, but they were abolished in the second world war.

In the Old Order Era, the law used was western law, and the Constitution recognized
the existence of indigenous peoples but was ignored in implementation. The Indonesian
government's efforts to protect the Adat communities have been criticized for their lack of
respect for their cultural heritage. Customary land law is mentioned in Articles 2 (4) and 3 of
Law No. 5 of 1960 regarding the Primary of the Agrarian Law. The law was effectively
implemented in the Soeharto regime, changing the rights on lands derived from Adat law into
new titles of rights. The recognition of customary rights was also included in the Primary
Forestry Law of 1967. However, the exercise of customary rights should not interfere with the
implementation of national programs. Legal recognition of indigenous peoples is now
contained in several laws and bills, including the amendment of the 1945 Constitution in 2000.
The government has tried to accommodate the need for Adat community recognition by
establishing the Recognition and Protection on the Rights of Adat Law Communities.

The nature of adat inheritance law are(Samosir, 2014, pp. 305-306):

1. Based on adat law, legacy does not only aboutwealth which could be valued by
money. The legacy could be something which may be distributed among the heirs based
on types and benefit;
2. The equality of rights among the heirs;
3. The legacy could be handed down before someone passes away;
4. The settelement of inheritance disputes implement principles, among others,
deliberation, self control and kinship.

In addition, Sulistyowati Irianto stated that the adatinheritancelaware varies. The variations
which causedthe differences are based on(Irianto, 2016, p. 5):

1. The family system that of ethnic group, whether the ethnic group
implementmatrilineal system, parental system or patrilineal system;
2. How far the ethnic group incorporate islamic inheritance law to theirs;
3. The recogrition of the courts on adat inheritance law;
4. The position of women as heirs or not.

What is Adat Law of Minangkabau Ethnic Group in Regards of Inheritance?

The Minangkabau ethnic group, based on the principle of Adat basandi syarak, syarak basandi
katabullah, strongly holds Islamic teachings. They have a well-established adat law and
implement it in their daily lives. When Islam entered Minangkabau, Islamic teachings were
accommodated and seen as a better alternative to their ideology. However, Islam did not abolish
what was already strongly held and implemented by the ethnic group.

Adat law differs from Islamic teachings in that Minangkabau implements matrilineal values,
while Islam is more patrilineal. The Minangkabau consists of three areas: darek, pasisia, and
rantau. Before Islamic teachings, the ethnic group held Hindu and Budhist religions. The
Minangkabau adat law was established by Datuak PerpatiehNan Sabatang and Datuak
Katumanggungan.
Minangkabau is a society bound by both teritorry and genealogy, using a matrilineal system
called paruik (stomach) to refer to large families. The inheritance law was strongly maintained
after Islam, allowing men to earn living for their wives and children.

Harta pencarian, a type of legacy that can implement Islamic law, is wealth earned by husband
and wife. The inheritance system differs from Islamic inheritance law, but there are two types
of inheritance: pusako Tinggi, which is passed down by paruik or jurai from generation to
generation, and harta pancarian, which is earned by husband and wife and inherited to their
children. Pusako Tinggi is categorized as harta syubuhat or ganggam bauntuak, and can only
be sold to another party under four conditions: funeral costs, wedding costs for daughters,
renovation costs of adat houses, and debt payments. Harato Pancarian is inherited to their
children and implements Islamic inheritance law. If pusako tinggi decreases due to these
conditions, it can be increased through Pusako Randah, which is a form of inheritance that can
be passed down through generations.. `