Legitimacy, Legal Development and Change by David K. Linnan

Author:David K. Linnan
Language: eng
Format: epub
Publisher: Ashgate
Published: 2012-06-13T16:00:00+00:00

Settlement of Inheritance Disputes in the (Secular) District Courts

Although Sasak ethnic communities are Muslim, its members disputing inheritance matters do not always go to the religious courts where Islamic law would apply, but may also seek justice in a District Court where adat or national law would be recognized. The Indonesian Supreme Court arguably has changed Sasak women’s rights to inherit under something approaching an equal rights analysis under its decision in Inaq Rasini v. Amaq Atimah et al. (1978). The Supreme Court decided that equal treatment in accordance with its jurisprudence concerning the inheritance rights of a daughter in Tapanuli (North Sumatra), should also be the rule in Lombok. In order to be fair, the daughter was named as beneficiary, so that in this case the daughter as only child should inherit the whole of her father’s estate (in opposition to the traditional Sasak adat law rule that would deny her any inheritance).

The Indonesia Supreme Court had previously effectively changed Batak Karo customary law applicable in North Sumatra (in a challenge to patrilineal descent analogous to the traditional Sasak adat rule in the 1961 case of Sitepu v. Ginting). According to the current views of Batak Karo customary law, in accordance with principles of the patrilineal community inheritance was only for sons. However, the Supreme Court at cassation level decided to annul the lower court decisions applying the traditional Batak Karo adat law, deciding that a daughter should receive a portion of the inheritance. According to the Supreme Court, under principles of humanity and general justice on the essence of equality of rights between man and woman as the living law in Indonesia (without formal reference to the 1945 Constitution in Indonesia as a Civil Law jurisdiction where separation of powers principles rendered it difficult for courts to apply the constitution directly, but seemingly contemplating its third party effects), a daughter and son of someone leaving inheritance equally had the rights to the inheritance, in the sense that the portion of a son should be the same as the daughter’s. This Supreme Court decision initially shocked the Batak Karo community in North Sumatra, but received a warm welcome from women’s society there. This decision was considered in Indonesian law to be a historical milestone in the struggle for legal equality between women and men. With this decision the Supreme Court made new law in the area of inheritance formally only in Tapanuli (North Sumatra) under local adat law, but the principle could be extended more broadly under a kind of nationalized approach to adat law.

With that in mind, we can return to the decision of the Indonesian Supreme Court for Lombok in Inaq Rasini v. Amaq Atimah et al. The Supreme Court simply quoted its decision in Ginting v. Sitepu for Batak Karo, saying that Sasak women in Lombok were also the beneficiaries of their late parents, fully entitled to inherit under now current Sasak adat law views. The question is whether this decision of the Supreme Court would

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