Indonesia is considered as one of the most diverse countries in the world. There are various ethnic groups, languages, religions, beliefs, and customs in Indonesia. Based on the census conducted by the Central Bureau of Statistics or Badan Pusat Statistik (BPS) in 2010, there are around 1,340 ethnic groups or tribes in Indonesia. The advance in technology and easy transportation access encourage an increase in population mobility. Eventually, it accelerates a change in ethnic groups’ composition in a region.
As Indonesian citizens, the members of these ethnic groups obey and apply the rules set by the government of Indonesia. However, other ethnic groups, especially those who are still living in rural and remote areas still apply their own customary laws. Customary law is a law that prevails and develops in a community in an area. According to R. Soepomo, customary law is an unwritten law that includes a regulation of life that is not established by the authorities, but adhered to by the society based on the belief that the regulation has legal force.
In a legal state, the principle of legality is applied. It states that there is no law other than those written in the law. This is to ensure legal certainty. However, if a judge cannot solve the legal issues based on the written law, he/she may be able to consider the living rules of society. Thus, the customary law also has a role in the Indonesian legal system.
Unfortunately, customary law cannot always be used as a legal basis in practicing government programs that are based on Indonesian law, for example, a noken system which is applied in some districts in the central highlands in Papua and West Papua during the presidential elections. Ultimately, this issue became popular as many lawsuits were filed in Indonesia’s Constitutional Court or Mahkamah Konstitusi (MK) due to the unfairness of vote acquisition happened during the electoral process.
Noken is a traditional Papuan woven bag which is also used in the election process. It also refers to an election system in Papua. The noken system has been known since the referendum of Perpera in 1969 in West Irian before its name was changed into Papua.
The noken system is a voting system through representation by the tribal chief upon the agreement of the villagers. There are two systems that are typically used in the general election, namely big man system and hanging or noken system. In the Bigman system, the voters’ voice is represented by the tribal chief.
Meanwhile, in the noken system, a noken which is used as a substitute of the ballot box is hung on a block of wood, as stated in the Technical Guidance (Juknis) KPU Papua No.1 year 2013. People might be able to see the ballots which have previously been agreed upon in the noken. This later system was the system being used during the legislative election on 2014. These local people still prefer the noken system as the system is fair as a result of collective consideration.
There were many parties who filed a lawsuit to the Constitutional Court during the 2009 election because they felt that the noken system was detrimental to a particular candidate since the decision to vote for a certain candidate was made by one person, even though the result was a deliberate decision.
However, the Indonesian Constitutional Court recognizes the noken system and validates the results of the noken. According to the decision of Constitutional Court No. 47-48/PHPU.A-VI/2009 as with Article 18B paragraph (2) of the 1945, Constitution Court states: “The State recognizes and respects the unity of indigenous peoples along with their traditional rights as long as they are alive and in accordance with the development of society and the principle of the Unitary State of the Republic of Indonesia, as governed by the law.” That means, the Constitutional Law also recognizes the noken system which is considered as a traditional right of Papuan indigenous people.
The Constitutional Court stated that the noken system had been used by Papuan people since following the general election in 1971. The Constitutional Court indeed has acknowledged it through a decision in the dispute over the election of the Regional Representative Council or Dewan Perwakilan Daerah (DPD) members in Yahukimo district No.47-81/PHPU.A-VII/2009 on 9 June 2009.
According to the above verdict, the Constitutional Court appreciated the cultural values that live among the Papuan people in organizing the General Elections through a “community agreement” or “acclamation” system.
The Constitutional Court accepted the collective selection process that has been accepted by Yahukimo District community. If the General Election was forced to be held by the prevailing laws and regulations, it is feared to cause conflict among the local community groups. The Constitutional Court expressed its opinion that the election system in this region should not be involved or brought into a competition or division system within the groups, which in the end will disrupt the conformity within the community. The above verdict may be applied to the same case in different districts in Papua and West Papua which apply the noken system.
However, the use of the noken system shall not disregard the administration of the election according to the electoral legislation.