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I Ketut Oka Setiawan. (2022). Land Dispute Settlement According to

Local Wisdom in The Tenganan Pegringsingan Traditional Village,

Bali. Journal Eduvest. Vol 2(6): 1.051-1.059

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Eduvest – Journal of Universal Studies

Volume 2 Number 6, June, 2022

p- ISSN 2775-3735- e-ISSN 2775-3727

LAND DISPUTE SETTLEMENT ACCORDING TO LOCAL

WISDOM IN THE TENGANAN PEGRINGSINGAN

TRADITIONAL VILLAGE, BALI

I Ketut Oka Setiawan

Notary Masters Study Program, Pancasila University, Jakarta, Indonesia

Email: [email protected]

ARTICLE INFO ABSTRACT

Received:

May, 26

2022

Revised:

June, 8

2022

Approved:

June, 11

2022

Except for people with customary rights, not all customary law

communities have the power to make, implement, and enforce

existing regulations. As long as it does not conflict with

national interests, the existence of this right in land law is still

acknowledged. Disputes arising inside its territories are

likewise not prohibited from being addressed using local

customary law. Because 'custom or customary law' is one of

the roots of state law. In comparison to state rules, the state

strives to resolve civil issues by consensus in order to

accomplish justice for all parties. The results of this study are

also similar, however dissatisfied parties (citizens) are not

prohibited from settling through state courts. In this case, the

recognition of state law is not only positive, even the judge can

cancel the claim of the plaintiff who is not willing to be resolved

first through the village judge. It is just that the articles that

give strict orders are rarely used in practice.

KEYWORDS

Disputes, Customary Land, Local Wisdom

This work is licensed under a Creative Commons

Attribution-ShareAlike 4.0 International

INTRODUCTION

When the "Tenganan Pegringsingan customary village" in Bali is mentioned, both

Balinese people and tourists from across the world, both local and foreign people, think of

ancient villages, unique villages, and so on. The term "uniqueness" refers to the fact that

this study site is unlike any other in Bali Province, despite the fact that this village shares

many characteristics with Bali villages in general. The population, for example, are both

I Ketut Oka Setiawan

Land Dispute Settlement According to Local Wisdom in The Tenganan Pegringsingan

Traditional Village, Bali 1.052

Hindu and speak Balinese (Runa, Raka, & Warnata, n.d.) This customary village attracts

both domestic and international tourists due to its uniqueness. Even though the Governor

of Bali declared this traditional village as a tourism village in 1986, there were social

changes but no significant change ones. Therefore, until the research was carried out, it still

appeared as an ancient and unique traditional village, meaning that it had its own form

compared to villages in Bali in general (Bachri, Irawan, & Kurniawati, 2020)

For example, Article 130 of the HIR provides that the judge must reconcile the

plaintiffs prior to the investigation of a case in order to streamline the provisions of civil

procedural law. Even the Supreme Court of the Republic of Indonesia has released

Regulation No. 1 of 2016 on Court Mediation Procedures (Kurniawan, 2020) In the

consideration, it was stated that mediation is a peaceful dispute resolution method that is

effective and can open wider access for the parties to a satisfactory and fair settlement

(Menkel-Meadow, 1994)

Based on the preceding background, this study will examine the issue of how land

disputes are settled in the traditional village of Tenganan Tegringsingan and how the village

judge's ruling is recognized by the national legal system. The goal of this study is to assist

the government in demonstrating its efforts to reduce the number of civil cases that

accumulate in a court. Laws, customs (customary law), treaties, jurisprudence, and doctrine

are the sources of formal law in Indonesia. Even if they have been designated as the rights

of the Indonesian people, Article 3 of the UUPA firmly supports the customary rights of

customary law communities in the material law on land (Luthans, Luthans, & Luthans,

2021).

RESEARCH METHOD

The variables 'land dispute settlement' and 'customary village local wisdom' were

used in this brief study, which is a 'descriptive analysis.' The subject of this study was

approached from two perspectives: a normative approach based on local customary rules

and state rules, and an empirical (sociological) approach (Avruch, 1998).

Document studies were used to collect preliminary data from a variety of reading

sources. Although empirical research was undertaken, the assumptions (allegations), which

served as the theoretical foundation for the discussion argument, were not established in

advance. Interviews with six traditional chief informants and several ordinary informants

were conducted in the field, using mobile phones that operated as cameras and tape

recorders. The data is presented and analyzed entirely utilizing qualitative analytical

methods, including both secondary and primary data, and is presented descriptively

(Mizrachi, 2010).

RESULT AND DISCUSSION

A. Local Wisdom of Tenganan Pegringsingan Customary Village

1. Location and Natural Environment

This study took place in Tenganan Pegringsingan, a customary village in

Manggis District, Karangasem Regency (Amlapura), Bali Province. This location is 10

kilometers from Denpasar, about 2 kilometers from the beach or the Denpasar-

Amlapura road, with an altitude of approximately 70 kilometers above sea level and an

average temperature of 28 degrees Celsius. This customary village is located in a valley

that runs from north to south, surrounded by two hills (Davison, 2014).

Although the area of the Tenganan Pegringsingan customary village was quite

large, according to the village awig-awig, the Tenganan Pegringsingan people were not

allowed to live outside the fence in the form of a wall that looked like a fortress with

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each door in each cardinal direction. Inside the fence (the area of the pattern of settling

they made the house so neat and uniform that was lined up from north to south which

was grouped into 6 rows (Astawa, Budiarsa, & Simpen, 2019) The six rows were

grouped into 3 customary Banjars. Each Banjar consisted of two rows, namely from

west to east, rows 1 & 2 belonged to Banjar Adat Kauh, rows 3 & 4 werev Banjar Adat

Tengah and rows 5 & 6 were Banjar Adat Kangin, which became the location of this

study. Between the two rows of residential areas, there was a field and on the right side,

there were village buildings such as Bale Agung, Bale Banjar, Bale Petemon, and

others.

Each resident's land area was nearly identical, ranging from 4-5 acres to 4-5

acres, with pre-determined buildings and a consistent shape. Bale Boge, Bale Tengah

(Bale Adat), Pawon (Kitchen), and a separate structure named Bale Meten were the

buildings. There was a Tebe (pig drum) behind the Pawon (kitchen). A religious

building known as Kemulan can be seen in front of Bale Boge.

In detail, it is stated in Article (Pawos) 12 Awig-awig of the village, this

customary village area is not only used for residential areas, but also for agricultural

land, fields, rice fields, grave land and forests in the Kangin and Kauh hills, with certain

boundaries. nature, such as large trees, rivers, large rocks and others. Especially for

residential areas, it is surrounded by a wall that looks like a fortress with doors

(lawangan) in the four cardinal directions. The entire territory of this traditional village

in its awig-awig is called prabumian desa (customary rights), which is under the

authority of the traditional village.

2. Village Regulations (Awig-awig of the Village)

In customary village governance in Bali, village’s awig-awig are the basis or

guidelines for controlling village governance. In customary Balinese villages in

general, village’s awig-awig in written form was only carried out in 1986 based on

Perda Dati I Bali No. 6 of 1986, while the awig-awig of the customary village of

Tenganan Pegringsingan was made in written form long ago, which is a record of the

memories of the Tenganan people after the village charter was burned in 1764 Caka

(1841 AD). The writing of the memory was carried out in 1764 Caka (1842 AD) by

royal clerks named I Made Gurit and I Made Gianyar, and was perfected in 1847 Caka

(1925 AD). It is regarding the existence of the village, namely the village rules in

various aspects of life, not only the lands in the village, the inhabitants and the behavior

of life and life, even regulating foreigners (people outside the village), who came to the

village. Meanwhile, the contents of the awig-awig of customary Balinese villages are

generally not as complete as the awig-awig of the customary village of Tenganan

Pegringsingan (Joniarta, Pinatih, & Pratiwi, 2019)

3. Residents

The residents of the Tenganan Pegringsingan customary village, who were

distinct from Balinese customary villagers in general, are the next distinctive

characteristic. Because of that characteristic, the population groups were divided into

two types, namely the Tenganan people and the immigrants.

a. The Tenganan people group were the original inhabitants of the Tenganan

village, domiciled as Krama Desa who were members and administrators of

the Tenganan Pegringsingan customary village (they had the same impression

as a trade organization named Firma) and lived in Banjar Adat

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Land Dispute Settlement According to Local Wisdom in The Tenganan Pegringsingan

Traditional Village, Bali 1.054

b. Kauh and Banjar Adat Tengah. This group of residents who occupied

traditional village positions, in return were entitled to the distribution of "tika"

(sharing of village land). If they violated awig-awig, their status was reduced

to krama gumi and their residence was removed/transferred to row 5 or 6

(Banjar Adat Kangin) which was no longer the status of Krama Desa and was

no longer entitled to the division of tika.

c. Group of Immigrants also known as krama gumi, were people who came to the

village to look for work and certain people who were brought in because they

were needed by the village and were placed in Banjar Adat Kangin, also called

Banjar Pande. This group could not hold positions in the village government,

nor receive tika shares, but still obey village’s awig-awig, such as the

prohibition on buying and mortgaging rice fields, maintaining and repairing

temples, financing for temple services, mutual cooperation and others. It was

explained by Kliang Adat on December 15, 2021.

4. Village Governance System

If the traditional village government structure in Bali consisted of a chairman

(Kliang), treasurer, and secretary (the three are known as prajuru/ administrator),

then all members of the Tenganan indigenous group (Krama Desa) occupied

positions in the government in the Tenganan Pegringsingan traditional village,

which are as follows:

a. Mangku (1 person), the highest position and was considered a descendant of

Sanghyang, was considered sacred and highly respected, including his

descendants. To obtain this position, one had to go through the lowest level of

office (Pengeladuhan). The function of this position only existed if the

previous position had difficulty carrying out its duties, and sought advice from

this position. At the time the study was conducted, the position was vacant.

b. Luanan (6 people), the position was the same level as Mangku, and the six

were based on the order of marriage age, the one who marries first occupied a

higher position. This position was seen as a teacher for the customary village

community. In addition to being highly respected, their attendance and

returning from village meetings (Sangkepan) had to be helped by other people

by having them picked up and taken to their destination. The function of this

position was to organize ceremonies and provide advice inside and outside the

meeting.

c. Bahan Duluan (6 people), also called Kliang (chairman), which was a position

at the level below Luanan, two of them were Tamping Takon (spokespersons),

another person was a writer. The task of this position was the most difficult,

because they took care of daily village work.

d. Bahan Tebenan (6 people), a position at the level below Bahan Duluan, whose

job was to help Bahan Duluan manage the village.

e. Tambalapu Duluan (6 people), a position level below Bahanan Tebenan,

whose job was to carry out orders from the village Kliang as planned in the

meeting (Sangkepan).

f. Tambalapu Tebenan (6 people), a position at the level below Tambalapu

Duluan, who was basically obliged to help Tambalapu Duluan, namely leading

and ordering village workers.

g. Pengeladuhan (unlimited), an unlimited number of positions below Tambalapu

Tebenan, originated from Krama Desa members either married, but not yet

occupying a position or who were not yet married.

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The positions mentioned above were held indefinitely, because the shift

(increase) only occurred if the position above it was vacant. due to death or

punishment (Interview with Kliang Desa, 15 December 2021).

5. Marriage System

If the marriage was classified in the Tenganan Pegringsingan traditional

village, then there would be:

a. Endogamous marriage: the implementation of marriage that was justified

based on the provisions of village’s awig-awig, namely marriages carried out

by young men and women between Krama Desa members only. Any acts of

violation would be punished, based on the provisions of awig-awig and

decided at a village meeting (sangkepan) in Bale Agung. This true marriage

brought the husband and wife to the position of Pengladuhan, over time they

obtained a higher position.

b. Exogamous marriage: a marriage that was prohibited on the basis of village’s

awig-awig, if it was carried out by youth from the indigenous group (Krama

Desa) with women from immigrant groups, the marriage was called an internal

exogamous marriage. Another type of violation is when a man from the

indigenous group of Tenganan (Krama Desa) married a woman from outside

the village, the sanction was they would be expelled to Banjar Adat Kangin

(Banjar Pande), and lost their Krama Desa status as well as the tika sharing.

Their marriage was regarded as external exogamous marriage as explained by

Kliang Adat, 15 December 2021.

6. The Land and its Benefits

All land in the area of the Tenganan Pegringsingan customary village, whether

it had been acquired by a resident or not, was under the control of the Tenganan

Pegringsingan customary village under the supervision and management of the

village’s Prabunian, as explained earlier.

Except for privately owned land, communal land in the forms of rice fields/

farm was managed by migrants for wages, while the proceeds were distributed to

members of Krama Desa, the amount of which was based on the level of their position

in the customary village government. When this study was conducted, the form of

division of tika was already efficient, because it was no longer in the form of rice/grain,

but had changed in the form of money, so it was a kind of salary that was given every

month. Because those who did not dare to violate awig-awig generally had low

education and were not employees, they also received monthly income called tika in

the form of monthly money. On the other hand, those who violated, generally educated,

there were those who worked in the city both as employees and Civil Servants did not

receive the division of tika and house repairs.

B. Settlement of Customary Land Disputes

Because the customary village area of Tenganan Pegringsingan had the power to

regulate it so tightly, the process of imposing sanctions for violations based on local

wisdom (awig-awig) was also not arbitrary, meaning that it was decided through a village

meeting (Sangkepan) in Bale Agung. It was where the meeting participants were all

administrators, who then he acted as a village judge in Bale Agung. Especially for the

presence of the administrator who hed the position of "Bahan Duluan" according to

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village’s awig-awig and to maintain the authority, they should be picked up and should be

taken to their destination. All disputes that arose in the customary village area, both private

and public (including customary land disputes), were resolved in the manner and place of

the Bale Agung.

a. Bad Credit Case at BPR Manggis:

According to the provisions of Article 7, each customary villager was prohibited

from mortgaging land (privately owned) to people outside the village, but this

prohibition was violated by Samudra, a citizen of Krama Desa, to Bank Perkreditan

Rakyat (BPR) Manggis in 1998. Because the loan was not repaid, then the bank

sold the Samudra land. In that case, Kliang Adat had made an appeal so that the

villagers were willing to buy the land so that it was not bought by someone else,

but none of the residents had money as big as Samudra's debt. Even according to

the Kliang, the village tried to buy it using the village treasury, it was also not

sufficient, in the end the land was bought by someone outside the village, namely

from Nyuh Tebel village. Based on the awig-awig provisions, Samudra was

demoted from the status of Krama Desa to Krama Gumi and exiled to the Banjar

Pande and no longer entitled to tika.

b. Bad Credit Cases at BPD Amlapura:

A villager named SDM (45 years old), with a high school education, pawned his

private land of 56 acres for Rp 85,000,000,- for the creation of an art shop, initially

offered to residents, but because no one was willing, then mortgaged it to the

Amlapura Regional Development Bank (capital of Karangasem district). After

maturity and the debt had become Rp 95,000,000, - the bank reported to the

village’s Kliang. Kliang Desa tried as in the previous case, and the debtor never

came to the meeting (sangkepan) at Bale Agung, so the Kliang Adat asked for the

execution to be postponed, accompanied by a request to borrow money from BPD

to redeem the debtor's land, also to no avail, finally the bank auctioned the SDM's

land at a price of Rp. 100,000,000, - and bought by someone outside the village,

namely from Ngis village. Based on the awig-awig of the SDM’s village, finally

the status was lowered to Krama Gumi and was expelled and did not receive any

more tika distribution.

c. Cases of Changes in Cropping Patterns:

Based on the provisions of Article 8 of awig-awig of the village, the village people

were prohibited from making sugar and planting shallots, if there was a violation,

the village should be fined with 400 Kepeng, if not paid, the land where the plants

were would be confiscated. In a village meeting (Sangkepan) objective information

was obtained that before Mount Agung erupted (in 1963) the land could be planted

with rice, but after that, the land could no longer be planted with rice, except for

planting red grass. Based on that information, the awig-awig sanction was not

applied.

d. Sacred Building Utilization Case:

Based on the village’s awig-awig, any sacred buildings, both village-owned and

private, should not be used other than for traditional and ritual purposes. In its

development, especially since the traditional village of Tenganan Pegringsingan

was appointed as a tourist attraction in one of the ancient villages in Bali, the

benefits of the sacred building for the villagers had increased as a place to sell

souvenirs. Not only sacred buildings belonging to the village, but also sacred

buildings belonging to private residents, because it turned out that privately owned

sacred buildings were affixed with merchandise for domestic and foreign tourists,

so it was crowded with people, including people who had their periods, known as

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impure. It was stated in awig-awig as a prohibited act but this phenomenon

continued until now.

It was told by the Kliang of Tenganan Pegringsingan village in resolving customary

land disputes in his territory (Interview, December 15, 2021). In this case, regarding the

actions of citizens violating or not violating, Von Benda Backmann had predicted long ago,

that it would be determined by the size of the social meaning that would be obtained from

the act of violating/obeying, as was the case last revealed.

If it was questioned whether the settlement of customary land disputes through

local wisdom was a final decision, the answer is as long as the word final is not interpreted

the same as "a decision with permanent legal force (inkracht van gewijsde), then the

settlement of customary land disputes through local wisdom was final, in the sense that the

dispute for the parties involved had been resolved or there were no more problems.

Because decisions were made through local wisdom (in this case village judges/sangkepan

desa), justice was generally based on a win-win solution agreement, so the finalization

(completion) could be accepted as completed for the parties, such as the statement of

agreement contained in the agreement. Article 1338 paragraph (1) of the Civil Code

(KUHPerd) states that "All agreements made legally apply as law for those who make

them".

Conclusion: The settlement of customary land disputes through local wisdom in

the traditional village of Tenganan Pegringsingan was based on local customary rules

(awig-awig) which were decided at a village meeting (sangkepan desa) in Bale Agung. Not

all awig-awig violators were given punishment because the village judge was aware of the

development of a situation, the needs of the residents and the existence of the village in the

the Republic of Indonesia were wise considerations.

C. National Law Recognition on Village Judge's Decisions

Since customary (prabumian) rights had been appointed as the rights of the

Indonesian people, their existence was still recognized as long as they existed and did not

conflict with national interests. This statement implied that in the event that the state

guaranteed human rights for all Indonesian citizens, including the residents of the Tenganan

Pegringsingan traditional village, for example seeking justice in the state court, the local

village regulation (awig-awig desa) could not be prevented, because it means that it was

contrary to national interest. In fact, the local wisdom of the Tenganan Pegringsingan

customary village did not regulate it and the administrators (Kliang Desa) also did not

prohibit it. In the perspective of the state, the decision of the village judge was not only to

give appreciation, it was even more than explicitly stated through the norms they have,

including:

1. In the field of civil procedural law at the time of the first trial, Article 130 of the

Herzien Indonesis Reglement (HIR) which contains a statement that the judge is

ordered before the examination procedure is carried out in a contradictory manner,

meaning that it is based on right and wrong according to state law, so that the

parties make peace first. If there is a peace agreement between the parties, then that

will be the judge's decision, if there is no peace, then the examination based on

state law will begin. It implies that how high the value of justice is if it is obtained

through consensus, known as a win-win solution, which is generally obtained in

customary law communities in rural areas. In other words, how high the value of

rural justice is not only in the current era but also in the previous era which was

even determined by the colonial state based on Pancasila.

2. Likewise in the next example, since the days of the Dutch colonial administration,

the Dutch colonial government had provided regulations that strongly supported

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Land Dispute Settlement According to Local Wisdom in The Tenganan Pegringsingan

Traditional Village, Bali 1.058

the settlement of customary land disputes through Article 135a (1) HIR: "if the

lawsuit relates to a court case that has been decided by a village judge, the district

court must know the decision and the reasons as much as possible”. In this case,

the recognition of dispute resolution based on local wisdom was used as a

requirement by court judges to examine land disputes that had been decided based

on local wisdom. Based on the provisions of paragraphs 5 and 6 of the article, it

states that if the judge feels the need for the lawsuit to be examined by a village

judge, then the district court judge must order that it be examined first by the village

judge, meaning that it is resolved first through local wisdom. Even a further

statement from that article is, if the order is not carried out by the plaintiff, then the

law authorizes the district court judge to dismiss the plaintiff's claim. It is the state

legal recognition of customary land dispute decisions through village judges.

3. Except for both state acknowledgments of the village judge's decision as mentioned

above, until now it is still a positive state law, supported again by the Regulation

of the Supreme Court of the Republic of Indonesia No. 1 of 2016 Regarding

Mediation Procedures in Courts, basically this regulation restores the nature of

civil justice through decisions based on agreements, which are win-win solutions,

in addition to avoiding the accumulation of disputes that must be resolved in court.

It means that the highest law enforcement agencies in Indonesia want civil

disputes, including customary land disputes, to be resolved through agreements

imbued with win-win solutions, as is generally done with local wisdom.

CONCLUSION

Seen from the three examples above, the state legal recognition of the village judge's

decision is not just support, it is even used as a condition for the continuation of the dispute

examination at the state court level, meaning that if the plaintiff is not willing to settle the

dispute with the village judge, the judge has the authority to abort the plaintiff's lawsuit.

Again, it must be said that from the past until now, justice which is based on a win-win

solution is in accordance with the feelings of rural communities and has high value.

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